The Laken Riley Act (S.5): Policy Analysis

*Subject to changes and ongoing edits as the new federal administration implements new executive actions and signs legislation that alters the cope/impact of the following policy summary.

Executive Summary: This bill requires the Department of Homeland Security (DHS) to detain certain non-U.S. nationals (aliens under federal law) who have been arrested for burglary, theft, larceny, or shoplifting. The bill also authorizes states to sue the federal government for decisions or alleged failures related to immigration enforcement. Under this bill, DHS must detain an individual who (1) is unlawfully present in the United States or did not possess the necessary documents when applying for admission; and (2) has been charged with, arrested for, convicted of, or admits to having committed acts that constitute the essential elements of burglary, theft, larceny, or shoplifting. The bill also authorizes state governments to sue for injunctive relief over certain immigration-related decisions or alleged failures by the federal government if the decision or failure caused the state or its residents harm, including financial harm of more than $100. Signed into law on January 29, 2025.

(This executive summary is adapted from Congress.gov and the description of S.5 provided by legislative analysts in the Congressional Research Service). 

Citation: Congress.gov. "S.5 - 119th Congress (2025-2026): Laken Riley Act." January 29, 2025. https://www.congress.gov/bill/119th-congress/senate-bill/5.

General provision: “To require the Secretary of Homeland Security to take into custody aliens who have been charged in the United States with theft, and for other purposes.”

(From the original S.5 text; the following text is a detailed line-by-line interpretation of the law alongside its references to earlier immigration Statutes from the Immigration and Nationality Act referenced throughout S.5). 

Section 1: Designates the short title of the bill as the “Laken Riley Act”

Section 2: Detention of Certain Aliens Who Commit Theft

Subpoints 1(A)-(C) of S.5 provides language changes and small amendments to section 236(c) of the Immigration and Nationality Act (8 U.S.C.1226(c)) that change the way the bill can be read and interpreted by legal experts and policymakers. The changes alter small linguistic elements of the policy so that it is articulated and structured differently in accordance with some of the major changes below. 

Subpoint 1(E) further amends the first paragraph of the statue and is divided into two parts, the first (i) outlines a provision of inadmissibility under (6)(A), (6)(C), and (7) of section 212(a) of 8 U.S.C.1226 and the second (ii) allows detention of an unlawful entrant if they are convicted or admits to theft, larceny, shoplifting, assault of law enforcement, or any crime that results in death or serious bodily injury to another person.

NOTE: the provided details of applicable unlawful acts is quite expansive, i.e. any of the provisioned unlawful acts under which an unlawful entrant may be detained are general in nature and subject to a wide bandwidth of legal interpretation. 

Subpoint 2 redesignates the ordering of paragraphs in the body of the legislation. 

Subpoint 3 inserts two paragraphs after the first paragraph. The first is a “DEFINITION” paragraph that primarily outlines the definitions of different terms associated with the unlawful acts provided in Subpoint 1. The definitions of the unlawful acts within Subpoint 1 are deferred to the jurisdiction in which they occur (i.e. the state or municipality where the act happened is responsible for providing the definition of the criminal act). The second is a “DETAINER” paragraph that allows the Secretary of Homeland Security to issue a detainer for an unlawful entrant—described in (1)(E) of the act—and allows that if the person in question is not detained by Federal, State, or local officials, then the Secretary will take custody of the alien “expeditiously.”

NOTE: The “DEFINITIONS” subpoint allows a wide bandwidth of interpretation to be applied to the criminality of unlawful entrants; it also permits inherent variability within the individual penal codes of different states and municipalities within the US to determine detention procedures. Further, the “DETENTIONS” point does not differentiate a detainer from a judicial warrant, which will affect the way detentions are carried out in accordance with standard immigration legal procedure (with specific application to sanctuary cities with non-compliance legislation built into local laws). 

Section 3: Enforcement by Attorney General of a State

Part A (1)-(2) re-orders the sequence of existing paragraphs within 8 U.S.C.1225(b) and provides a precursory formatting update for Subpoint 3. 

Part A (3) is the most substantial section of Section 3. Any Attorney General (AG) or similar state official that alleges a violation of the detention/removal requirements or that harms the State, or its residents will have standing to bring legal action against the Secretary of Homeland Security on behalf of the state or the residents in the state. This action can be brought against a district court of the US to obtain injunctive relief. The court will advance and expedite the deposition of civil action to the greatest extent. The State can argue for injunctive relief and will be considered harmed if the State or its residents experience harm, including financial harm over $100. 

NOTE: district court judges—classified as federal judges—are nominated by the President and confirmed by the Senate to rule on cases of injunctive relief against harms incurred throughout any of the provisioned processes of this act. Thus, the determination of harm and the extent to which injunctive relief is granted depends on the Presidential nominee and the approval process of the Senate. 

Part B (1) pertains to amendments in the language of the Apprehension and Detention of Aliens provisions in Section 236 of the Immigration and Nationality Act (8 U.S.C. 1226). The amendments strike “or release” from subsection (e) and strikes “grant, renovation, or denial” in place of “revocation or denial.” 

Part B (2) outlines a similar injunctive relief process as Part A (3) but specifically pertains to the harm experienced by anyone being subject to the detention procedures in the act. 

Part C outlines Penalties in section 243 of 8 U.S.C. 1226 by adding the same language as above about processes to seek injunctive relief during the process of discontinuing granting visas to citizens, subjects, nationals, and residents outlined in subsection (d) of the act (see notes on part A (3) for more information about the injunctive relief process and expedited court action protocol outlined in the amendment). 

Part D outlines Certain Classes of Aliens under Section 212(d)(5) of 8 U.S.C. 1182(d)(5). In the first subsection (1), it strikes the term “Attorney General” in Section 212(d)(5) of 8 U.S.C. 1182(d)(5) with the position of “Secretary of Homeland Security.” Subsection (2) outlines the process to seek injunctive relief if harms are inflicted on the state or its residents from violations against the limitation on parole being solely granted on a case-by-case basis for urgent humanitarian reasons or a public health benefit (see notes on part A (3) for more information about the injunctive relief process and expedited court action protocol outlined in the amendment). 

Part E outlines Detention under section 241(a)(2) of 8 U.S.C. 1231(a)(2). It strikes “during the removal process” and inserts “IN GENERAL—during the removal period.” It also adds procedures for seeking injunctive relief against harms incurred for violations against the detention requirement from subparagraph (A) where harms are inflicted against the State or its residents (see notes on part A (3) for more information about the injunctive relief process and expedited court action protocol outlined in the amendment). 

Part F puts limits on injunctive relief by amending Section 242(f) of 8 U.S.C. 1252(f) by adding provisions for certain actions. It states that paragraph (1) of the act will not apply to an action brought pursuant to: section 235(b)(3), subsections (e) or (f) of 236, or section 241(a)(2)(B).