Amid reports in mid-May that Immigration and Customs Enforcement will enact a new wave of enforcement, targeted at recent arrivals who have deportation orders, the Catholic Legal Immigration Network, Inc. offers an information sheet to help people understand ICE efforts to take into custody and deport families. Similar actions in January in a handful of states led to an environment of confusion and fear in immigrant communities around the country.
CLINIC’s information sheet, in English and Spanish, is intended to provide the staffs of our affiliates, parishes and other organizations a useful guide to which rumors and other reports have merit and which do not. It may be freely distributed electronically or in printed form. It will be revised as changing circumstances warrant, so check this page regularly.
With the support of the Four Freedoms Fund, and in conjunction with other immigrant right organizations, CLINIC is tracking trends in immigration enforcement abuse in order to form a litigation strategy. To support this goal, CLINIC is asking affiliates to share information about cases that may be in need of litigation before state, local, and federal court systems.
CLINIC will be tracking several different types of abuses against immigrants in the context of immigration enforcement by federal or local authorities. The cases might include issues such as:
- Depriving a person of the opportunity to contact a lawyer after an arrest
- Racial or ethnic profiling during a traffic stop leading to an encounter with ICE
- A traffic stop by police without any legal basis, in which the police turn over the driver or passengers to ICE
- Physical or psychological abuse during an encounter with ICE or local authorities enforcing immigration laws
- Failure to provide an interpreter to a person who speaks little English
- ICE exceeding the scope of a warrant in searching a home or workplace (e.g., improper questioning or search of occupants or workers)
If your organization has a case involving immigration enforcement abuse, please fill out the form below. CLINIC will compile the information about cases it receives. If the case meets CLINIC’s litigation criteria, CLINIC may ask for more information and share information about the case with partnering organizations and law firms. Please note that CLINIC is compiling this data for informational purposes. Submission of this form does not guarantee that CLINIC will attempt to match or litigate your case.
If you would like to submit information for consideration by CLINIC, please complete this form.
For more information, please contact Bradley Jenkins, Advocacy Attorney at firstname.lastname@example.org or 301-556-4820.
 The following groups are involved in this Four Freedoms Fund initiative: the American Civil Liberties Union (ACLU) Immigrants’ Rights Project, the American Immigration Council (AIC), the Detention Watch Network (DWN), the Immigration Advocates Network (IAN), the National Immigration Law Center (NILC), and the National Immigration Project of the National Lawyers Guild (NLG).
As members of Congress prepare to return to Washington, D.C. from the summer recess, the future of U.S. federal immigration policy remains uncertain. Families and communities across America continue to advocate for comprehensive reform to fix our broken immigration laws. Despite the looming uncertainty on a federal level, one thing is becoming increasingly clear: Many of the immigration enforcement actions undertaken by state and local actors attempting to make up for federal inaction are not workable solutions. This message is coming both from court decisions in legal challenges to state and local immigration enforcement as well as from the states and localities themselves. Some recent developments are highlighted below.
4th Circuit Issues Two Decisions Limiting State and Local Role in Immigration Enforcement
Three Provisions of South Carolina Anti-Immigrant Law Must Remain Blocked
On July 23, 2013 the 4th Circuit Court of Appeals held that three major sections of South Carolina’s 2011 anti-immigrant law, SB 20, must remain blocked. Among other things, the law made it a felony for someone to harbor or transport an unauthorized immigrant and for unauthorized immigrants to allow themselves to be harbored or transported. In addition, SB 20 made it a misdemeanor to fail to carry immigration paperwork. Finally, it made it a state crime to carry false or fraudulent identification documents for the purpose of proving lawful presence in the U.S. The 4th Circuit found that, because each provision was preempted by federal law, the lower court was correct to prevent them from being enforced. According to the court, criminalizing individuals who are “attempting to do no more than go to school, go to work, and care for their families” is inconsistent with federal immigration policy and objectives. Despite this legal victory, the provision of South Carolina’s law that requires local police to check the immigration status of detained individuals they suspect of being in the country without documents has been in force since the U.S. Supreme Court permitted implementation of a similar “show me your papers” provision of Arizona’s immigration law (SB 1070) last June.
Maryland Sheriffs Cannot Detain or Arrest Solely on Suspicion of Immigration Status Violations
On August 7, 2013, the 4th Circuit Court of Appeals held that local and state law enforcement officers may not detain or arrest an individual based solely on a known or suspected civil violation of federal immigration law. This lawsuit was brought by Roxana Santos who was seized and arrested by two Frederick County, Maryland sheriffs based on their discovery that ICE had issued a civil warrant against her. Neither deputy was authorized to engage in federal immigration law enforcement under a 287(g) agreement between the Sheriff’s Office and ICE. Citing to the U.S. Supreme Court’s decision in Arizona v. United States, the circuit court found that local law enforcement officers do not have the authority to arrest individuals solely based on civil immigration violations. The court reminded us that most immigration violations are civil infractions - not crimes - and that Congress entrusted the authority to make removability decisions to the federal government - not to state or local actors. As a result, Santos’ unlawful detention by the sheriffs violated her 4th amendment right to be free from unreasonable search or seizure.
New Orleans and Newark Join Growing List of Cities to Limit Compliance with ICE Detainer Requests
Localities across the country continue to adopt policies or ordinances restricting the extent to which local law enforcement may cooperate with ICE by honoring immigration detainers. ICE detainers are requests that a local law enforcement agency continue to hold an individual in criminal custody for up to 48 hours beyond when he or she would otherwise be released so that ICE can assume custody. The Sheriff of Orleans Parish announced on August 14, 2013, that his office would only comply with such requests from ICE when they involved individuals charged with specific violent felonies. The Sheriff’s Office also stated that it will no longer initiate investigations into the immigration status of individuals in its custody. This policy is “one of the farthest-reaching of its kind in the country.” The new guidance followed a unanimous New Orleans City Council resolution urging the Sheriff to stop honoring ICE detainers entirely. It is also part of a settlement agreement in a federal lawsuit filed by two immigrant workers who were held unconstitutionally on the basis of ICE detainers for 90 and 160 days beyond the conclusion of their criminal sentences. New Orleans is the first locality in the Southern U.S. to implement an anti-detainer policy. Other jurisdictions with similar policies include San Miguel and Taos counties in New Mexico; San Francisco and Santa Clara counties in California; Cook and Champaign counties in Illinois; Milwaukee County, Wisconsin; Multnomah County, Oregon; and the cities of Washington, D.C., Chicago, Berkeley, Los Angeles, and New York.
Newark, New Jersey also recently announced that it will cease complying with ICE requests to hold suspects accused of minor crimes such as shoplifting or vandalism. Advocates for the new policy directive, signed by Newark’s Police Director on July 24, 2013, included the Newark Archdiocese Department of Social Concerns and several Newark churches. Reverend Karl Esker of St. James Church acknowledged the role of local law enforcement in “funnel[ing] immigrants into the detention and deportation dragnet through problematic information-sharing initiatives that devastate the stability of communities.” He commended the Newark Police Director for his leadership on this issue and called the policy “absolutely essential in a city…. [w]here trust between local law enforcement and the community is crucial to protecting public safety.”
ICE Declines to Sign Immigration Enforcement Partnership Agreement with Knox County, Tennessee
In contrast to local law enforcement leaders in New Orleans and Newark, the Sheriff of Knox County, Tennessee would like to enhance his agency’s role in federal immigration enforcement. The Sheriff had expressed interest in entering into a partnership with ICE under section 287(g) of the Immigration and Nationality Act. The 287(g) program allows certain local law enforcement officers, following training from ICE, to be deputized to enforce federal immigration law in their local jurisdictions. ICE currently maintains 287(g) agreements with 36 law enforcement agencies in 19 states, has trained more than 1,300 local law enforcement officers, and credits the program with identifying more than 309,283 potentially removable aliens since January 2006. Following several weeks of negotiations, ICE ultimately declined to enter into a 287(g) partnership with Knox County. The Sheriff posted the following response on his agency’s website: “I will continue to enforce these federal immigration violations with or without the help of [ICE]. If need be, I will stack these violators like cordwood in the Knox County Jail until the appropriate federal agency responds.”
This controversial statement by the Knox County Sheriff illustrates the diverse views on the precise role that local law enforcement can and should play in identifying unauthorized immigrants and effectuating their removal under federal immigration laws. For many, last year’s U.S. Supreme Court decision striking down
Arizona’s infamous immigration law made it clear that immigration enforcement is the purview of the federal government, not state legislatures or local police. Yet, there are local law enforcement officers, state legislators, and members of Congress who clearly disagree.
Federal Enforcement-Only Bill Would Compel States to Enforce Immigration Laws
This June, the Judiciary Committee of the U.S. House of Representatives approved the Strengthen and Fortify Enforcement (SAFE) Act (H.R. 2237), an enforcement-only bill that would essentially overturn the Arizona v. United States decision by empowering - in instances even mandating - states and localities to act as immigration agents and criminalize immigration violations. Concerns include further exacerbating strained state and local resources, compromising community safety, and increasing the risks of discrimination and racial profiling. A number of local and state law enforcement officials and departments have opposed further delegation of immigration enforcement to local police. According to Police Chief Roberto Villaseñor in Tucson, Arizona, “Law enforcement officers have taken an oath to protect all those who live within our communities, regardless of race, culture, or nation of birth. We don’t need short-sighted laws that tie our hands and prevent us from establishing the trust we need to protect the communities we serve.” For a summary of the SAFE Act, click here .
This document was prepared in August 2013 for informational purposes only and is not intended as legal advice. For questions, please contact CLINIC’s State & Local Advocacy Attorney Jen Riddle at email@example.com or (301) 565-4807.
On May 31, Connecticut’s State Legislature unanimously passed the Transparency and Responsibility Using State Tools (TRUST) Act, the country’s first state anti-detainer law designed to limit participation in the federal/state immigration enforcement partnership known as Secure Communities. Under Secure Communities, fingerprints taken by local police when booking an individual charged with a state or local crime are checked against federal immigration databases to see whether that individual might be removable from the U.S. If Immigration and Customs Enforcement (ICE) has reason to believe that the arrested individual may be removable, it can issue an immigration detainer requesting thatthe local law enforcement agency continue to hold that individual for up to 48 hours to give ICE a chance to place the person into immigration custody. Secure Communities has resulted in the deportation of more than 272,000 immigrants, including many with no criminal history or who have only been charged with minor traffic offenses. Connecticut’s TRUST Act limits the circumstances under which state and local police will hold immigrants for possible deportation by ICE. The act permits state and local law enforcement to honor immigration detainers only when the requested individual has a felony conviction, is on a terrorist watch list, is a known member of a violent gang, already has an outstanding order of removal or deportation, or presents an unacceptable risk to public safety. The bill is awaiting signature by the Governor of Connecticut and would go into effect on January 1, 2014.
On May 16, 2013, the California State Assembly passed a similar bill also called the TRUST Act (AB 4). The bill would permit local or state law enforcement officials to continue to hold an individual under an ICE immigration detainer only if the individual has been convicted of a serious or violent felony and his or her continued detention would not violate any federal, state, or local law or policy. The bill has moved to the State Senate where it awaits further discussion by the Public Safety Committee which will hold its next hearing on July 2, 2013. A version of California’s TRUST Act was passed by both houses in 2012 but vetoed by California Governor Jerry Brown. Over 96,800 Californians have been deported as a result of the Secure Communities program -- more deportations than from any other state. Last December, California’s Attorney General instructed local law enforcement that participation in Secure Communities was optional given that the program increased distrust of police among immigrant communities and targeted non-criminal immigrants. California taxpayers spend an estimated $65 million each year detaining immigrants for ICE. According to the TRUST Act’s sponsor and author, Assembly member Tom Ammiano, “Immigrants want to live in safe communities but when trivial issues such as selling tamales without a permit or having barking dogs…can turn into extended detention and deportation, confidence and trust between local law enforcement and immigrant communities is eroded…It doesn’t make sense to deport an undocumented Californian today who could be on the road to citizenship tomorrow.”
On April 26, 2013, Colorado’s governor signed into law the Community and Law Enforcement Trust Act (HB 1258) which repealed a 2006 law (SB 90) requiring police to report to ICE those individuals in police custody who were suspected of being in the U.S. without authorization. SB 90 had been blamed for inspiring the passage of Arizona’s SB 1070 and other state immigration enforcement laws. According to the Colorado legislature, this new law will promote public safety by allowing police to build trust with immigrant communities – trust that SB 90 substantially undermined by creating fear of deportation among immigrant witnesses and victims who would otherwise have reported crimes. Colorado law enforcement and public safety officials assert that community trust is essential for effective local policing and that this law will ensure equal protection and safety for all Coloradans including witnesses and victims of crime. According to various local law enforcement agencies in Colorado, their time and resources are better spent protecting the public, as opposed to enforcing federal immigration laws. The enactment of the Community and Law Enforcement Trust Act makes Colorado the first state in the country to repeal a “show me your papers" provision similar to those that are still in effect in Arizona (SB 1070), Alabama (HB 56), Georgia (HB 87), and South Carolina (SB 20).
On April 10, 2013, North Carolina legislators introduced HB 786, the Reasonable Enactment of Comprehensive Legislation Addressing Immigration Matters (RECLAIM) Act. The bill contains a provision similar to the “show me your papers” section of Arizona’s anti-immigration law SB 1070. The RECLAIM Act permits local law enforcement officials to check the immigration status of any individual they stop, detain, or arrest and who they have reasonable suspicion to believe is unlawfully present in the U.S. This raises serious concerns about racial profiling by North Carolina law enforcement agents who lack immigration law training and might consider appearance or ethnicity in making such a determination. The bill also requires undocumented drivers to obtain driving permits that would be marked to distinguish them from the driver’s licenses issued to other state residents. It also permits the police to immediately seize and sell the cars of individuals driving without a driver’s permit or car insurance, and requires the state to charge any undocumented immigrant in criminal custody for the costs of his or her incarceration. The bill is currently under consideration by the House Finance Committee. An estimated 325,000 undocumented immigrants reside in North Carolina and foreign-born workers comprise 9.9% of the state’s workforce.
On May 24, 2013, a U.S. federal court found that Arizona Sheriff Joe Arpaio and the Maricopa County Sheriff’s Office (MCSO) engaged in a pattern of racial profiling against Hispanic drivers and passengers. According to the decision, the MCSO used traffic stops as an excuse to identify and report individuals who are in the country without authorization and considered an individual’s Latino identity as a factor in determining whether to investigate that person’s immigration status. The federal district court determined that Arpaio’s immigration enforcement policies and practices violate the U.S. Constitution’s Fourth Amendment (protection against unreasonable searches and seizures) and Fourteenth Amendment (equal protection), Title VI of the Civil Rights Act of 1964, and the Arizona Constitution. Accordingly, the MCSO was ordered to stop using race or Latino ancestry as a factor in stopping vehicles or making law enforcement decisions related to whether an individual may be in the country without authorization. The court is overseeing negotiations between the MCSO, the plaintiffs, and the Department of Justice (who filed a separate discrimination lawsuit against the MSCO) to determine what
specific steps the MCSO needs to take to ensure compliance with the court’s order. The next hearing will be August 30, 2013. Hopefully, this ruling will serve as a deterrent, not only for Sheriff Arpaio, but for other local and state law enforcement agencies who are overstepping the bounds of their authority in the enforcement of federal immigration laws.
Updated Resource for Community Advocates Concerned With ICE Partnerships with Local Law Enforcement
CLINIC has updated its tool kit that provides an overview of ICE partnerships with local law enforcement agencies including the Criminal Alien Program, the Secure Communities Program, and the 287(g) Program. The toolkit also recommends strategies for communities to advocate against the implementation and continuation of these programs.
This document was prepared in July 2013 by CLINIC’s State & Local Advocacy Attorney Jen Riddle. This document is provided for informational purposes only and is not intended as legal advice. For questions, please contact Jen Riddle at firstname.lastname@example.org or (202) 635-7410.
Overview: HB 1175 creates state-level penalties (suspending and revoking business licenses) for state employers who knowingly or intentionally hire undocumented workers; it also requires employers in the state to use E-Verify starting July 1, 2013.
HB 1175 applies to any “employer” – an individual or a corporate entity – that transacts business in, and has been licensed by, the state of South Dakota. It covers all employers of any size (even self-employed persons and independent contractors), though it does not cover situations in which an employer contracts for work of an independent contractor. It defines other terms in the act as well.
“No employer may knowingly or intentionally employ an unauthorized alien.” Section 1 defines “intentionally” to mean that “a person’s objective is to cause that result or to engage in that conduct.” Section 1 defines “knowingly employ an unauthorized alien” to be those actions that are described in the provision of the Immigration and Nationality Act pertaining to the “Unlawful Employment of Aliens” (8 U.S.C. 1324a) and instructs that the phrase be interpreted consistently with that provision.1 Finally, Section 1 defines “unauthorized alien” as someone who does not have the legal right to work under federal law (8 U.S.C. 1324(h)(3)).
Sections 3 and 4
Sections 3 and 4 dictate that certain consequences for employers and unauthorized workers attach merely upon receipt of a complaint that an employer has violated Section 2. All of the following actions take place before a court rules on whether an employee is in fact unauthorized and whether an employer has violated the act:
- Check work authorization status: (Section 3) The county or state Attorney General (AG) must investigate all complaints that are filed on the prescribed complaint form, even if the complaint ends up being false or frivolous; in order to investigate, the AG must verify the alleged unauthorized worker’s work authorization with the federal government. The AG has discretion to investigate complaints that are not filed on the prescribed complaint form – even completely anonymous complaints. While Section 3 stipulates that the AG cannot investigate complaints based solely on race, color, or national origin, it is unclear how the AG would determine this. While Section 3 stipulates that a person who knowingly files a false or frivolous complaint is guilty of a Class 2 misdemeanor, nothing in Section 3 prevents even false or frivolous complaints from being investigated (meaning that the immigrant’s work authorization must still be checked with the federal government).
- Notify ICE and local police: (Section 4) If the complaint is not determined to be false or frivolous, the AG must notify both ICE and local law enforcement of the unauthorized worker.
- Bring action against employer: (Section 4) If the complaint is not determined to be false and frivolous, the AG must bring action against the employer pursuant to Section 5.
Section 5 describes when and where legal actions against employers may be filed. It further describes what conduct by an employer may properly constitute a second violation.
Section 6 describes consequences for employers for their first violation:
- The employer must terminate the employment of all unauthorized workers and certify that this step has been taken. This means that, upon a finding that an employer knowingly or intentionally hired one unauthorized worker, that employer must then re-examine the authorization of its entire workforce. The employer must also certify that he or she will not knowingly or intentionally hire an unauthorized worker in the future.
- If the employer will NOT so certify, the court must order state agencies to suspend all licenses held by the employer (Section 1 defines what constitutes a “license”).
- Even if the employer takes all of the appropriate steps, the court may still consider ordering state agencies to suspend that employer’s licenses, depending on the nature of the violation.
- The employer must be placed on probation for a period of time determined by the nature of the violation.
Section 7 describes consequences for employers for their second violation:
- The court must order state agencies to permanently revoke all licenses held by the employer specific to the business location where the violation took place.
Section 8 lays out what conduct is considered a first and second violation.
Section 9 requires the attorney general to maintain copies of court orders finding first and second violations of this act and to make those copies publicly available on their website. Section 9 also calls for the creation of a database of the employers and business locations that have committed a first violation.
Section 10 states that, in determining whether an employee is unauthorized, “the court shall consider only the federal government’s determination…” Also, according to this section, verifying the employment authorization of an employee through the E-Verify program creates a rebuttable presumption that the employer did not violate the act. Additionally, this section states that an employer who has acted in good faith to comply with the federal E-Verify procedures can use his/her good faith compliance as an affirmative defense that he/she did not violate the act.
“Nothing in this Act requires an employer to take any action that the employer believes in good faith would violate federal or state law.”
Section12 mandates that all employers in the state use the E-Verify system for all new hires starting July 1, 2013.
It would be very hard to argue that HB 1175 is unconstitutional. The text of HB 1175 is similar in almost every particular to a 2007 Arizona law called the “Legal Arizona Workers Act” (LAWA). Last year, the U.S. Supreme Court upheld the constitutionality of LAWA.2 Challengers of the Arizona law argued that LAWA unconstitutionally stepped into the exclusively federal power to regulate immigration. They also argued that LAWA would obstruct federal execution of federal immigration policies.
The majority of Justices on the Supreme Court disagreed. LAWA’s business license penalty for employers is constitutional, they held, because it fits into a narrow and explicitly protected sphere for states to act to punish the employment of unauthorized workers. Federal immigration law expressly prevents states from passing any law “imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ . . . unauthorized aliens.”3 Because LAWA revokes the business licenses of employers who hire unauthorized workers, the Court held that the law falls within this exception.
Nor is it unconstitutional, the Supreme Court held, for LAWA to mandate that employers in the state use the E-Verify system. This mandate would not conflict with the overall scheme of federal immigration enforcement. Critical to the Supreme Court’s analysis is the fact that LAWA relies wholly on federal determinations of an employee’s work authorization. South Dakota’s HB 1175 contains identical language in this regard: Section 3 states that “A state, county or local official may not attempt to independently make a final determination on whether an alien is authorized to work in the United States.” Section 10 further states that, in determining whether an employee is unauthorized, “the court shall consider only the federal government’s determination…” Rather, HB 1175 mandates that work authorization be verified with the federal government. Thus, this Supreme Court decision opens the door for states to pass similar laws that penalize employers for employing unauthorized workers by revoking their business licenses and that mandate use of E-Verify.
Notwithstanding the fact that HB 1175 is probably constitutionally sound, there are strong arguments that HB 1175 is not good policy.
- The bill is an unfunded mandate requiring local resources to be used in carrying out federal immigration enforcement.
HB 1175 wastes limited AG and court resources. HB 1175 states clearly that the AG must investigate all complaints, must notify the Department of Homeland Security and local law enforcement if the compliant is not false or frivolous, and must bring an action against the employer in state court if the complaint is not false or frivolous. In addition, the AG must maintain copies of court orders that indicate that an employer has a first or second violation of the act and must place these orders on its website. Thus, HB 1175 requires the AG’s office to expend considerable state resources on a myriad of immigration enforcement duties that fall within the purview of the federal government. Not only do these additional duties burden taxpayers, but they take away from other important work carried out by the AG’s office such as prosecuting criminals, Medicare fraud, and consumer fraud. Lastly, it is worth noting that these additional immigration duties are triggered by a complaint that can be made by anyone at any time.
- Mandatory E-Verify without comprehensive federal immigration reform hurts children and their families hardest.
In 2010, South Dakota was home to 22,238 immigrants, almost 41% of whom were naturalized U.S. citizens. Unauthorized immigrants comprise less than 1.5% of the state’s workforce (or fewer than 10,000 workers), according to a report by the Pew Hispanic Center. But 92% of the children of South Dakota’s 22,238 immigrants are U.S. citizens.4 Hurting the ability of South Dakota’s relatively small population of undocumented workers to provide for themselves and their families will have huge collateral consequences for lawful residents and U.S. citizens, and these consequences hit children hardest.
If one of these parents is deported, the emotional and financial damage to the family members left behind can be devastating. Economic insecurity and health insecurity are documented consequences of increased enforcement of our currently broken federal immigration system. Parents in immigration detention often face the loss of their parental rights while incarcerated, since they may not receive notice of court
proceedings, may not have adequate legal counsel,5 cannot comply with the terms of family reunification plans mandated by the child welfare system, and are often not even told where their children are.6 Children of undocumented immigrants suffer terribly as a result of the enforcement of our currently broken immigration laws. The Urban Institute has shown that “Parent-child separations pose serious risks to children’s immediate safety, economic security, well-being, and longer term development.”7 The report continues:
Most families in our sample lost a working parent, because they were detained, deported, or released but not allowed to work. Following job loss, households experienced steep declines in income and hardships such as housing instability and food insufficiency. Many families experienced prolonged hardship in part due to extended efforts to contest deportation that took months and often more than a year to adjudicate.8
- Mandatory E-Verify in South Dakota would discourage economic activity in the state.
Unauthorized workers and their family members (who may be lawfully present or even citizens) are taxpayers, consumers, and entrepreneurs. The Immigration Policy Center has shown that the 2010 purchasing power of Latinos in South Dakota totaled $548.5 million—an increase of 1,162.2% since 1990; Asian buying power totaled $260.4 million—an increase of 811.3% since 1990. According to the Immigration Policy Center, “If all unauthorized immigrants were removed from South Dakota, the state would lose $190.5 million in economic activity, $84.6 million in gross state product, and approximately 1,440 jobs, even accounting for adequate market adjustment time, according to a report by the Perryman Group.”9
Arizona’s LAWA went into effect on January 1, 2008. Since that time, research has been done to study its effects. According to the Center for American Progress, a Public Policy Institute of California report on Arizona’s experiences found evidence that LAWA “shifted many unauthorized immigrants in Arizona from the formal economy, where they pay income taxes, to the informal economy where they do not.”10
- The act provides several protections for employers but none for unauthorized workers.
HB 1175 has much more serious and immediate consequences for immigrant workers than it does for employers. Employers get several safe harbors and affirmative defenses in HB 1175. But for
immigrants, enforcement is immediate. Simply upon receipt of a complaint that is not false or frivolous, ICE and local police automatically will be notified that a particular worker is unauthorized. Under HB 1175, this enforcement process can be started by an anonymous complaint from any person (so long as it is not false or frivolous). While Section 3 states that an AG may not investigate complaints that are based solely on race, color, or national origin, it is unclear how an AG would know that.
- The act will increase fear and distrust in immigrant communities.
This law turns neighbors into immigration agents. This will significantly increase fear and distrust in immigrant communities in the state, and make it harder for police to do their job.
- Mandatory E-Verify imposes costs and implementation burdens that fall heavily on small businesses and on U.S. citizens who may be wrongly denied work because of errors.
Please see our E-Verify fact sheet (attached to this analysis) for a discussion of the problems with E-Verify. Among the problems discussed are the implementation burdens on businesses and the error rates that impact U.S. citizens. Please also see the fact sheet (attached to this analysis) complied by the National Immigration Law Center in July 2011, “E-Verify: The Impact of Its Mandatory Use on South Dakota Workers and Businesses.”
1 “(1) In general.— It is unlawful for a person or other entity…(A) to hire, or to recruit or refer for a fee, for employment in the United States an alien knowing the alien is an unauthorized alien (as defined in subsection (h)(3)) with respect to such employment…” [emphasis added] 8. U.S.C. § 1234a(a)(1)(A). This provision of the INA does not reference intentional hiring, but “knowingly” is broader than “intentionally”; the Legal Arizona Workforce Act, which the U.S. Supreme Court last year found to be constitutional, contained both “knowingly” and “intentionally” as well.
2 Chamber of Commerce v. Whiting, 563 U.S. ___ (2011) http://www.supremecourt.gov/opinions/10pdf/09-115.pdf .
3 Immigration Reform and Control Act, 8 U. S. C. §1324a(h)(2).
4 All of the above data comes from: Immigration Policy Center, “New Americans in South Dakota” (January 2012) http://www.immigrationpolicy.org/just-facts/new-americans-south-dakota
5 National Immigrant Justice Center, Isolated in Detention: Limited Access to Legal Counsel in Immigration Detention Facilities Jeopardizes a Fair Day in Court (September 2010): 8-10. The report found that several factors contributed to inadequate counsel for those in immigration detention including the geographic isolation of many detention facilities, inadequate phone access, and inadequate legal aid resources.
6 Women’s Refugee Commission, Torn Apart by Immigration Enforcement: Parental Rights and Immigration Detention [“WRC Report”] (December 2010): 1 http://www.womensrefugeecommission.org/programs/detention/parental-rights.
7 The Urban Institute, Children in the Aftermath of Immigration Enforcement (February 2010). http://www.urban.org/UploadedPDF/412020_FacingOurFuture_final.pdf
8 Ibid. at vii-viv.
9 Immigration Policy Center, “New Americans in South Dakota” (January 2012) http://www.immigrationpolicy.org/just-facts/new-americans-south-dakota
10 Philip E. Wolgin and Angela Maria Kelley, “Your State Can’t Afford It: The Fiscal Impact of States’ Anti-Immigrant Legislation” (July 2011): 5 http://www.americanprogress.org/issues/2011/07/pdf/state_immigration.pdf .
This document was prepared by CLINIC in January 2012 in response to the introduction of South Dakota’s HB 1238 into the state legislative assembly. This same bill but with a different number, HB 1175, was introduced into the legislative assembly in 2013. Karen A. Herrling has reviewed HB 1175 and has updated the analysis. This document is for informational purposes only and is not intended as legal advice. For questions, please contact CLINIC’s State & Local Advocacy Attorney Jen Riddle at email@example.com or (202) 635-7410.