LoginImmigration lawyers fear Laken Riley bill could have broad impact as Trump takes office
Migrants from Mexico and Guatemala are apprehended by U.S. Customs and Border Patrol officers after crossing a section of border wall into the United States on Jan. 4, 2025, in Ruby, Arizona. (Photo by Brandon Bell/Getty Images)
WASHINGTON — The U.S. Senate this week is moving to pass a bill that immigration attorneys and experts warn could have far-reaching ramifications, such as swamping federal courts with challenges by state attorneys general and subjecting some migrants — including children and teens — to rapid detention and deportation.
The legislation, the Laken Riley Act, S. 5, would greatly expand detention of immigrants and give state attorneys general broad discretion to challenge federal immigration policy if enacted into law.
Experts are concerned that the bill would aid President-elect Donald Trump’s campaign promise to enact mass deportations by requiring the U.S. Department of Homeland Security to detain a noncitizen on an arrest, charge or conviction of petty theft — a response to the murder of the 22-year-old Georgia nursing student for whom the measure is named.
Laken Riley went out on a run and her roommates became concerned after she did not return home. Jose Antonio Ibarra, a 26-year-old migrant from Venezuela, last month was convicted of her murder and received a life sentence. According to U.S. Immigration and Customs Enforcement, he allegedly entered the country illegally in 2022 and was charged with shoplifting but was not detained by ICE.
In a presidential election in which immigration was a central theme, the measure has gained bipartisan support, with 48 U.S. House Democrats voting with Republicans for passage. An overwhelming 32 Senate Democrats and one independent sided with Republicans on a procedural vote to move the bill forward.
Senate Democrats have argued that the procedural vote is an opportunity to debate the bill and add amendments, but it’s unclear if Senate Republicans will agree to that process.
The bill’s lead sponsor, Alabama Sen. Katie Britt, said on the Senate floor before the procedural vote that the bill “is necessary as it is straightforward.”
“I want to be very clear, only individuals that would be subject to this bill are criminal illegal aliens,” Britt said. “These individuals crossed our border illegally, and then they committed a crime after getting here. That’s who we’re talking about.”
But immigration attorneys argue that the bill would not only affect undocumented people, but would ensnare some immigrants with legal status, lead to the detainment of children, challenge the release and bond decisions of immigration judges and have the potential to interfere with the issuing of visas on the international stage.
The bill, in its definition of “immigrants who are inadmissible” as those who are affected, is problematic, they say.
“This will fuel mass deportation,” Nithya Nathan-Pineau, a policy attorney and strategist with the Immigrant Legal Resource Center, said.
She said that if someone is detained and they’re not able to defend themselves — because immigrants are not guaranteed a lawyer under U.S. law — they could easily end up with a conviction.
“That conviction may then subject them to deportation,” she said. “It’s designed to funnel people into detention so that they can be deported.”
Heidi Altman, the federal advocacy director at the National Immigration Law Center, said she’s concerned about the bill because there’s a long history of immigrant communities being heavily policed and more likely to have interaction with law enforcement.
“There remain serious racial disparities in policing and arrest in the United States, and so basing immigration detention on a mere arrest, quite clearly and inevitably, imports even more racial disparities from the criminal field system into the immigration system,” she said.
New powers for attorneys general
If it becomes law, the legislation would give broad legal standing for state attorneys general to challenge federal immigration law. Aaron Reichlin-Melnick, a senior fellow at the left-leaning think tank American Immigration Council, said that provision aims to circumvent a recent U.S. Supreme Court decision.
In a 2023 case, the Supreme Court ruled that Texas and Louisiana did not have standing to challenge the Biden administration’s priorities for who would be deported.
Additionally, the bill would allow those state attorneys general to question the bond decisions of immigration judges.
U.S.immigration courts are already strained, Altman said, adding that kind of legal power given to attorneys general would undermine the authority of immigration judges “and swamp the federal courts with decisions that have already been made by immigration judges being revisited.”
“You can’t have a functioning judicial system of any kind that can be questioned at any moment and on any individual decision by any state attorney general who has a political ax to grind,” she said.
That kind of authority could impact international diplomacy, Reichlin-Melnick said.
Those state attorneys general could seek a federal court order to compel the U.S. State Department to halt issuing visas to a country that refused to accept nationals who were eligible for deportation, known as recalcitrant countries. Some of those countries include China, Cuba, India and Russia.
“So you could have a single state attorney general and a single federal judge dictating international policy towards other countries around the world, and potentially forcing the secretary of state to impose sweeping visa bans on nationals of entire countries,” Reichlin-Melnick said.
Altman said that kind of authority for a state to halt visas “could potentially be among the most destabilizing in terms of larger government functioning and also foreign relations.”
“There’s concerns with regard to (a) foreign nation’s ability to trust that the federal government actually has any uniform control over visa policy, in addition to the destabilizing impact it would have on the ability of people from any countries targeted to be able to continue traveling to and from the United States for various reasons that are important to trade and the economy, like work visas and students’ visas,” she said.
DACA program
While the bill pushed by Republicans aims to require mandatory detention of immigrants without proper legal authorization who are arrested, charged or convicted of theft, shoplifting or burglary, it could also have an impact on people with a discretionary legal status, such as those with parole or in the Deferred Action for Childhood Arrivals program, or DACA, Altman said.
“It’s written right into the (DACA) regulation that the Department of Homeland Security has the discretion and the authority to terminate DACA status at any time on any basis,” she said. “And so if the Laken Riley Act were to be enacted and require the mandatory detention of people with a theft offense, what would likely happen under a Trump administration is that if a DACA recipient was arrested, that they would be taken into custody and DHS would have the authority to concurrently terminate their DACA status.”
Nathan-Pineau added that because the legality of DACA is currently being challenged in the courts, recipients are “at risk, because deferred action could be rescinded at any time.”
Immigrants who hold a green card, typically known as Lawful Permanent Residents, would not fall under the mandatory detention requirement, unless they were considered removable by violating immigration law, Altman said.
For the more than 1 million people with Temporary Protected Status, meaning their country is deemed too dangerous to return to so they are allowed to work and live in the United States, Altman said that “we would argue that TPS recipients could not be subject to (the bill), but as it’s written it’s quite ambiguous.”
Nathan-Pineau raised the issue that the bill does not provide a carve-out for immigrant youth and would subject them to mandatory detention.
“There is no exception for children,” she said.
Nathan-Pineau said that in her work as an immigration lawyer, she’s often represented youth who have been charged with shoplifting groceries.
“That is one of the most common interactions between my young clients and law enforcement,” she said.
‘Quite extreme in American law’
DHS has broad authority to detain immigrants, Altman said, but “what this bill does is expand a particularly harsh type of detention, which we refer to as mandatory detention, because people detained under this authority cannot even ask for a bond hearing.”
“Their detention is just automatic, and this bill expands that category of detention for people just on the basis of an arrest or a charge, regardless of whether that arrest ever is going to result in a conviction,” she said. “That’s quite extreme in American law.”
Reichlin-Melnick noted that the bill has no time limit to when the petty theft charge applies.
“If you were arrested for theft when you’re 13, and you’re an undocumented immigrant now, you’ve been here for 30 years, and you apply for a Green Card through your spouse, you would be (considered for) mandatory detention,” he said.
Nathan-Pineau said that mandatory detention already applies for immigrants who have “committed pretty significant offenses,” not something that is considered property crime.
Nathan-Pineau said if the bill were to become law, it would have required a former client of hers to be detained. That client was a mother in an abusive situation, where her abuser refused to give her money for groceries to feed her kids so she shoplifted and was arrested, Nathan-Pineau said.
“Those are the kinds of things that we want people to think about when we’re thinking about property crimes, and we’re thinking about burglary,” she said. “These are the kinds of offenses that could lead to someone being sent to detention for months or years on end.”
