Lawfare Daily: Nayna Gupta on the Laken Riley Act

[Intro]

Nayna Gupta: His framing of his immigration agenda is one that focuses on criminals like the Venezuelan man who killed Laken Riley. The reality of course is that what we're seeing is a sweeping in of hundreds of thousands of people who have no criminal record and pose no public safety threat.

Anna Hickey: It's the Lawfare Podcast. I'm Anna Hickey, Associate Editor of Communications at Lawfare with Nayna Gupta, Director of Policy at the American Immigration Council.

Nayna Gupta: Although, you know, keeping somebody detained without access to a bond hearing would absolutely violate basic due process in the criminal legal system, the courts have allowed the use of this kind of mandatory detention in a case called Demore v. Kim.

Anna Hickey: Today, we're talking about the Laken Riley Act, the first piece of legislation signed by President Trump in his second term, and its impact on the immigration detention system.

[Main podcast]

So before we discuss what is actually included in the Laken Riley Act, can you give listeners an explanation of when it was first introduced and why?

Nayna Gupta: Yeah, happy to. So the Laken Riley Act was first introduced in March of 2024 by Congressman Collins from Georgia, Mike Collins, and Senator Katie Britt from Alabama. The thing to know is that the bill was originally introduced essentially as a messaging bill for the Republicans when they were in the minority in Congress as a way to signal their support of Trump's immigration agenda during the election cycle.

And then the bill was reintroduced right at the beginning of the new congressional session by those same members of Congress. And within just a few weeks, that law was passed in both chambers, and, and as you all know, was signed by the president into law.

Anna Hickey: Laken Riley obviously is a name of a young woman. Can you give listeners an explanation of who that was and why the act was named after her?

Nayna Gupta: Sure. Laken Riley was a resident of Georgia. She was murdered by a Venezuelan man who'd entered the United States without authorization who had crossed at the U.S. Mexico border. And prior to the violent act that he committed against Laken Riley, he had been charged with two lower level offenses, one related to shoplifting and another about operating a vehicle. The, the theft arrest was in Georgia, the other was in New York City, but neither of those were sufficient to flag for immigration authorities his, you know, non citizen unlawful status, nor that he would pose a threat to public safety.

And so when the violent act was committed against Laken Riley, there was outcry, particularly from Republican politicians about the fact that the immigration system hadn't picked up the fact that this person was such a safety threat in time to save Laken Riley's life.

Anna Hickey: What was the symbolism of this piece of immigration legislation being the first piece of legislation President Trump signed in his second term?

Nayna Gupta: Look, I mean, we've heard President Trump both on the campaign trail and since he's been in the White House talk about targeting criminal immigrants. His framing of his immigration agenda is one that focuses on criminals like the Venezuelan man who killed Laken Riley. The reality, of course, is that what we're seeing is a sweeping in of hundreds of thousands of people who have no criminal record and pose no public safety threat.

We know that less than one in 10 undocumented people in the United States even has a criminal record. And those who do mostly have traffic violations or violations of immigration law. In other words, the man who murdered Laken Riley was very much an exception in terms of the millions of people who are here in our country contributing richly.

And what the Laken Riley Act signals is a disproportionate focus by the Trump administration on rhetoric that criminalizes all immigrants and that takes a system that already has many mechanisms in place to hold violent offenders accountable on top of what the criminal legal system already does. The Trump administration is saying, no, we're going to go even further and we don't care if we sweep in millions of people who are not at all a threat and have no record and who contribute richly because of this, of this individual act that garnered public attention.

Anna Hickey: And what does the bill purport to do? Like, what do the crafters of the bill say the bill is going to do?

Nayna Gupta: Well, first I should just say up top that this bill was messaged by its original cosponsors as a border safety bill as a way to stop people like the Venezuelan men who murdered Laken Riley from entering our country.

The reality is the bill has absolutely nothing to do with the U.S./Mexico border. It is a bill that's focused on arresting immigrants in the interior of the United States and about giving attorney generals the authority to dictate federal immigration policy.

In practice, what the bill does is it first says that any non-citizen who's here without lawful status who's even just arrested, charged, or convicted of shoplifting, burglary, or larceny, will be subject to mandatory detention. Mandatory detention under immigration law means you don't get the right to a bond hearing. You don't get to go to a judge and say, look, I'm not a public safety threat. I should get to fight my case at home.

It's worth noting in the criminal legal system, right, the, the young man who killed the insurance company executive, right—that was out in the open. He murdered somebody. He still got a bail hearing. bail bill was denied, but he got that hearing. In the immigration system, over 60 percent of people are subject to mandatory detention.

And what the Laken Riley Act says in part one, is that now we're going to extend that to include people who are merely arrested and arrested for low level offenses. And it sweeps all of those folks in and essentially forces immigration authorities to prioritize people with low level arrests. for detention rather than allowing them to focus on people who might actually pose a serious public safety threat.

Anna Hickey: This detention, is it in immigration facilities run by ICE and DHS or in state and local jails and prisons?

Nayna Gupta: No, this is absolutely detention in the federal immigration system. So these are folks who might get accused of or charged or arrested in a state system for a low level offense. who are then subject to incarceration in the immigration system by federal authorities. In other words, these are folks who would sit in facilities that are primarily run by private prison companies who get contracts from the federal government to house federal immigrant detainees.

Anna Hickey: You mentioned that this piece of legislation gives state governments the authority to dictate federal immigration policy. Can you expand on that and say how it gives them this authority?

Nayna Gupta: Yes. So, section three specifically of the Laken Riley Act, authorizes state attorneys general to go to federal court to ask a federal judge for an order that requires the government to take certain actions in five areas of immigration law.

In other words, Ken Paxton in Texas could go to a federal judge and say, I want to order the United States government to do the following. And he could get that order. It gives him standing. It gives state attorneys general standing to seek these orders in federal court. And the five areas of policy this covers includes decisions as small, as individual as ICE's decision to release somebody from immigration detention, or to grant humanitarian parole to somebody fleeing persecution.

But it also goes as far as to let a state attorney general sue the U.S. government for deciding to issue visas to an entire country that otherwise won't accept deported people. In other words, countries like India or Venezuela that have traditionally not accepted deported people, a state attorney general could get an order that says the U.S. government has to stop issuing visas to everybody from China, India, and Venezuela.

Anna Hickey: People with visas, just to clarify that for the listeners, would that include people on work visas, like H-1B visas, or is it just people on the same type of visa or green card that the person who was arrested was on?

Nayna Gupta: No, this would include any kind of visa, including the visas that are used for those kinds of lawful programs and pathways. It could include non immigrant visas, like tourist visas. It could be as sweeping as that. In other words, this is unprecedented standing in federal court. Now, there's a question as to whether this would withstand constitutional litigation, whether or not this oversteps what the Constitution says about standing in federal court, but that would have to be challenged, you know, in the courts.

And, you know, the, the other point to mention here is that from a law enforcement perspective again, this is another way to strip discretion and line level authority from immigration enforcement agents. They make decisions working in a universe of constrained resources. If there's one person that poses a public safety threat and has, you know, a more serious violent record. They might want to keep that person in detention rather than waste resources let's say on a single mother who's been living here for 20 years, undocumented, who is accused of shoplifting diapers for her infant. That person doesn't pose a public safety threat to ICE and their resources are better used somewhere else.

This strips them of that authority which actually makes everybody less safe. It makes it harder for them to do their job. And that's why their ICE spoke out in opposition to this bill.

Anna Hickey: Yes. So you actually jumped the gun. I was about to ask you about that with ICE and that you mentioned that they had been opposed to this bill. So does ICE and DHS, do they have the capacity to enforce it?

What would Congress or the federal government need to do to give ICE the capacity? Is that even possible?

Nayna Gupta: Right. So the first thing is that this bill could potentially sweep in tens of thousands of more people. who would be subject to mandatory detention. Nobody would have the discretion to release those people.

And so the first thing ICE would need is a significant amount of funding to expand immigration detention capacity. In the early days of the Laken Riley Act, some estimates we heard were that ICE would need to open multiple facilities with 10,000 beds each just to support the number of people, the Laken Riley app sweeps in.

Right now, the immigration detention system is funded to support around 40,000 beds. Those are essentially at capacity, and so under the Laken Riley Act, they would be in a universe of having to release people that they actually decided might have posed a public safety threat just to fit in the people swept in by this bill. And that is a way in which this bill undermines public safety from the perspective of law enforcement officers who need the flexibility to make decisions on the ground.

Anna Hickey: Just to clarify, you've mentioned ICE would have to release people who they had deemed to be a public threat—are you referring to people who ICE has already arrested and detained who are currently in facilities who then would have to be released because they had discretion during that arrest, but they won't have discretion during future arrests?

Nayna Gupta: Exactly. That's exactly right. So, you know, there are different statutes that authorize immigration detention. Some of those give ICE the discretion to release people, or immigration judges the discretion to issue a bond for release and mandatory detention, for example, does not offer that. So ICE could be holding somebody in immigration detention that they could release, but they've decided not to for a reason.

But under the Laken Riley Act, there are a whole group of people now they'd have to keep detained. And those people—we will assume most of them do not pose a public safety threat because the nature of offences implicated are low level offences—and those are folks they'd have to keep detained, which as you say, would mean releasing people where they have discretion to do so, even though their recommendation might be to not.

Anna Hickey: And then you mentioned immigration courts. Would each immigrant who became detained under this act go to the state or local court where they had originally been arrested to have their case tried and plead their case? Or would this be done through immigration?

Nayna Gupta: No. So that's something that a lot of people in the American public don't understand.

We were taught right in this country, innocent until proven guilty, right? That you get an opportunity to defend yourself when you're being prosecuted for a criminal case. When people are arrested, just arrested, and even just charged with an offense, and federal immigration authorities are notified right away that here's a non-citizen who's been arrested, who can now be put into your custody—once that person is in federal immigration custody, if they're detained, they don't get to go back to state criminal court.

So it could be that that charge they receive that they're actually not guilty of the charge. Or it could be that the prosecutor drops the charges because there's actually no evidence to support them. But that won't matter. That person will already be subject to indefinite mandatory detention.

And that, by the way, you know, in the current system, people who are transferred to federal immigration custody don't get a chance to complete their criminal cases. That's always been the case. The problem here is that they wouldn't even get to say to a judge, I'd like to go back to state criminal court. Can you release me so that I can go and make my case there? They would just be stuck in detention indefinitely.

Anna Hickey: How have state governments or local governments reacted to this legislation since Trump has signed it?

Nayna Gupta: So there has been a range of reactions, but in particular, you know, we know that there are dozens of states around the country that have enacted sanctuary provisions that explicitly protect non-citizens from being transferred from state or local criminal custody to federal immigration authorities precisely to protect people with low level arrests who've been in our communities from decades from being subject to indefinite detention and deportation. So those states and localities, of course, take issue with this bill, which is essentially, you know, pushing ICE to target their communities and to undermine the sanctuary protections they've enacted.

It can also interfere with state and local law enforcement agencies enforcing their laws. You know, in Georgia, the Venezuelan man who committed the offense against Laken Riley. He received a citation for his theft offense because that is matter of course in that county in Georgia. Anybody who gets that low level offense gets a citation.

So, in other words, what's funny about this bill is that it wouldn't have even detected the person who killed Laken Riley. Because the point here is it's the local law enforcement agencies who aren't flagging this person for ICE unless they have to. This bill is about what ICE has to do. In other words, in the fact pattern, in the situation of this Venezuelan person, it wasn't that ICE knew about him and decided not to detain him. It's that they didn't know he had this offense. Because local state authorities treat these offenses differently based on the resources that they have.

Anna Hickey: As we're speaking, it's only been a few days since President Trump has signed this piece of legislation into law. But in the few days since, how has it been implemented? Have you seen any changes for how ICE is interacting with state and local law enforcement?

Nayna Gupta: Yeah. So look, what we know is that in these first two weeks of the Trump administration, there has been, you know, obviously an intentional effort to increase daily arrests of people around the country, right? They're doing non targeted enforcement actions through community arrests, you know, a couple of worksite type raids.

Those enforcement actions don't even need state and local authority help, but under the Laken Riley Act, if they find out that someone who's not a citizen and who's also in violation of civil law, has an arrest from 30 years ago for shoplifting, or for an offense from 20 years ago for something in this bill, that person can immediately be subject to mandatory detention. In other words, this bill, paired with the way the Trump administration is arresting in communities, makes it easier to sweep in more people who will be subject to mandatory detention.

Anna Hickey: How does this piece of legislation connect with President Trump's executive orders? You've already mentioned sanctuary cities, obviously, are going to have a complex reaction to this piece of legislation, and he has targeted them with his executive orders. So can you touch on that, and then also his other executive orders based on immigration?

Nayna Gupta: Sure. So look, I think the first thing about the Laken Riley Act is it, it makes it easier for the Trump administration to pursue its mass deportation agenda. It makes it easier to sweep in more undocumented people into the immigration system. It allows them to move those cases along faster because people are stuck in detention and those cases tend to move more quickly.

In other words, it's an important tool for the agenda that Trump laid out in his executive orders where he said, you know, we want to collaborate more with local police. We want to expand detention. Those are things that are now being essentially authorized in a statute like the Laken Riley Act.

In terms of sanctuary protections, I mean, what we're mostly hearing from the Trump administration in the executive order, but also in memos. Since then, is the threat that if local police don't work with immigration authorities, you know, —to help find people with these kinds of arrests, to transfer people to federal immigration authorities—that the Trump administration will withdraw federal funding from them.

And, you know, there is a bill that will be voted on starting next week in Congress, the No Bailout for Sanctuary Cities Act, which would essentially say, The federal government will not give funding to these kinds of localities for any program that happens to serve an undocumented person, even if that program serves thousands of U.S. citizens.

So, it's putting at risk school lunch programs, legal services programs as a way to punish localities that are not willing to cooperate in full ways with federal immigration enforcement. And that bill is an example of the kind of action being threatened in these executive orders.

Anna Hickey: And is there anything you're specifically watching for, for as the Laken Riley Act becomes implemented by ICE and DHS?

Nayna Gupta: Yeah, you know, I think two things. First, we're watching for the, the multiple examples of people who we know just pose no safety threat. They don't make your life or my life any less safe, who are nevertheless going to be in incarcerated with no due process rights. We want to know who are those people, who are those community members.

We're also going to be watching and listening to law enforcement folks on the ground to hear how in that enforcing this bill might be interfering with their authority and ability to do their jobs. And we will be watching to see if any state attorney generals will use this new standing authority to upend the balance of power between Congress and the state governments.

And, and that is something we'll want to push back on because that has seismic effects beyond just the people impacted in this bill. This would open the, the door to a floodgate of lawsuits and the idea that the states can dictate national federal immigration policy and even foreign policy.

Anna Hickey: Thinking about litigation, do you see any specific group of people having standing to contest the constitutionality of this act? Or do you think any kind of contesting of this act would happen through a different venue?

Nayna Gupta: I think legal challenges to the mandatory detention provision of this act. are somewhat challenging because of current Supreme Court precedent on mandatory detention in the immigration system. Although, you know, keeping somebody detained without access to a bond hearing would absolutely violate basic due process in the criminal legal system, the courts have allowed the use of this kind of mandatory detention in a case called Demore v. Kim in the immigration system.

And the way in which the Laken Riley Act expands mandatory detention to include not just people with certain offenses, but just with arrests, could be a possible way to push back, but generally speaking, what we've seen from the Supreme Court and federal courts is great deference. to the executive branch when it comes to immigration authority. That is seen as a political question. The plenary power doctrine gives exceptional deference when it comes to immigration.

So we, we might expect to see that again and that's why the really effective way to correct the harms of this bill and the wasted resources of this bill will be for us to amplify the pushback that we're hearing from law enforcement officers and agents and make sure that members of Congress understand how this bill really just makes it makes a mess of effective and smart immigration enforcement.

Anna Hickey: And so with the visa ban piece you had mentioned earlier in this conversation—if, for example, the Attorney General of Texas, Ken Paxton, sues to have, you know, all immigrants from India under visas, you know, have those rejected, does another state have any standing to push back against that or would that be something that judges would figure out in that lawsuit?

Nayna Gupta: It's more so the latter that judges would have to tee up that question and you know in looking at that question, they would first have to decide, you know, is the Laken Riley Act on its face constitutional? And is it constitutional as applied to giving this state attorney general standing to even bring this case?

So, before they actually got to the question of the visa itself, they would have to look at whether it makes sense for the state attorney general to have standing on this issue. You know, there have been cases like this where other organizations and plaintiffs intervene in a case because they have a shared interest and they offer, you know, their perspective through litigation in a related manner to that controversy.

So we could expect to see something like that. And, and I will just reiterate that we do think there are, you know, strong constitutional challenges to bring to the standing provision of the Laken Riley Act, even if the mandatory detention provision is more challenging to litigate in federal courts under current precedent.

Anna Hickey: When thinking about congressional action on immigration, are you looking at any other pieces of legislation or bills being debated in Congress that would work with or against the Laken Riley Act? Or does it seem like Congress is happy with this as it stands?

Nayna Gupta: Well, look, the Laken Riley Act did get some bipartisan support. And what's disappointing, frankly, about that bipartisan support is that the members who supported it continued that inaccurate message of this being a bill about border security. And I think what that signals is that there are members of Congress on both sides of the aisle that feel obligated after this election to give answers to the American people on border security and also public safety.

And so, you know, what we're looking for from Congress, regardless of political party, are bills that, yes, can ensure public safety and border security, but that don't harm people unnecessarily and make a further mess of the system, making it harder for immigration authorities to actually do their jobs.

We want bills that actually meet the stated goals that these members are talking about and, you know, there are a few other bills that, like the Laken Riley Act, would expand the already sweeping mandatory detention provision that would further complicate the Immigration Nationality Act, further complicate the jobs of law enforcement officials.

We'd rather not see those bills enacted. We would instead like to see comprehensive bills that talk about smarter immigration enforcement and fair treatment of people who've been here for decades and decades, you know.

Just to add, there are 13 million undocumented people approximately living in the United States. Yes, they are in violation of civil immigration law, but again, fewer than 1 in 10 even have a criminal record. And of those, most are low level violations. There's no reason to be wasting billions of taxpayer dollars on penalizing consequences for people who have decades of life in our country, who represent one in seven agricultural workers, one in seven construction workers, who pay federal and state taxes. That's something a lot of Americans don't know, that undocumented people contribute $40 billion annually in federal taxes. Those are not people who should be targets of aggressive enforcement.

We can get smarter than that and still prevent future tragic, horrific acts like what Laken Riley experienced. We don't need this, this kind of legislation to do that.

Anna Hickey: To kind of close out our conversation, do you have any final thoughts about how the Laken Riley Act may be implemented or just what you're looking at over the next few weeks and months with the immigration system and this like detention piece that you've talked about?

Nayna Gupta: Yeah, I think what we are looking at very closely is who are the people being swept in under this bill and under Trump's aggressive immigration enforcement agenda, and you know, does it make any sense from any perspective for this many people to be swept in? That's what we're going to be looking at over the next several weeks so that we can make a case for better, smarter, more targeted enforcement, that's also more humane.

Anna Hickey: And when you think about targeted enforcement, why does the Laken Riley Act make targeted enforcement so hard? Obviously, you've mentioned this detention piece, but is ICE going to have to then go to jails and go to prisons across the country to take people to detention facilities? Or do you see that as something states will have to take on?

Nayna Gupta: So in the past decade, around 75 percent of ICE arrests have been handoffs from state and local police. It's always been the case that the majority of ICE enforcement work happens in collaboration with local and state police officers, right? And the way that happens is that you know, there are a few different programs that immigration authorities use to collaborate.

But if a person is flagged for immigration authorities, they typically issue what's called a detainer. That's a document or an ask of a local state agency to hold a person in criminal custody or to let ICE know when that person is going to be released so they can be waiting there to pick up the person and transfer them over to, to federal immigration authority in custody.

Now, what the Laken Riley Act is doing is it's essentially telling ICE, you have to issue a detainer for every single person that falls under this bill. Usually ICE has some discretion in who they issue detainers for. This is ratcheting up that requirement, forcing them to issue detainers for anybody who comes on their radar that way. You're right that they're not going to be able to find every single person in the country who has a shoplifting offense, let's say, unless they have some collaboration from state and local police.

But once those folks are identified—however they're identified—what this bill says is ICE has to place that detainer, and then ICE has to put them into mandatory detention. It takes away that element of discretion at the front end.

Anna Hickey: Logistically, it would be ICE going, picking up immigrants in various places, and then driving them to the closest detention facility.

Nayna Gupta: Yes, so the Laken Riley Act is all about what ICE and immigration authorities have to do and that is once they know somebody has one of the offenses listed in the bill, even if it's an arrest again or a charge, they have to make sure that person gets into mandatory detention. It does not require state or local agencies to do anything It just pushes ICE to expand its cooperation with state and local authorities to try to find these folks.

Anna Hickey: Yeah, and then any final thoughts? Anything before I close out the conversation?

Nayna Gupta: Sure, just to say, you know, of course what Laken Riley experienced was incredibly horrific and tragic, and every American deserves to feel safe, and to feel like there's a response to these acts. But we have to be vigilant of elected officials using individual acts as a way to trick the American public by preying upon fear into supporting policies that don't actually make us safer and that waste resources unnecessarily.

And that's what the Laken Riley Act does, unfortunately. It doesn't mean we can't support justice for Laken Riley, or we can't support public safety. We can do those things, but we can do that with smarter, fairer, more proportionate and effective bills. And this one just doesn't do that.

Anna Hickey: And we'll leave it there. Thank you so much.

Nayna Gupta: Thanks so much.

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