House Bill 1436 was passed by the House Judiciary Committee on February 19, 2014 and is currently on the House floor. Sponsored by Rep. Mike Turner, this omnibus immigration bill would go into effect on January 1, 2015 and would do the following:
- Make the smuggling of those unlawfully present in the U.S. a felony in Oklahoma and permit the seizure of property used in “smuggling” or in “transporting or harboring” undocumented immigrants;
- Prohibit any limitations by state or local government agencies on the enforcement of federal immigration laws, including federal misdemeanors for failing to carry alien registration documents;
- Permit warrantless arrests by local police of those believed to be subject to an immigration removal order or an ICE detainer, those convicted of an aggravated felony, or those lacking alien registration documents;
- Mandate that local law enforcement verify with the federal government the immigration status of individuals they stop, detain, or arrest;
- Permit local police to transport unlawfully present individuals in its custody to federal facilities;
- Create a cause of action for state residents to force law enforcement and government agencies to enforce federal immigration law as required under the bill;
- Deny access to economic development incentives for business that do not verify their employees’ employment eligibility through E-Verify system;
- Require day laborers to attest to their employment authorization under federal law;
- Make it a misdemeanor for a person to present or accept a foreign consular identification document for any public purpose or to present or accept an individual taxpayer identification number for any public or private purpose.
It is notable that, with the exception of two provisions, this bill is identical to SB 908 which was passed by the Oklahoma State Senate in 2011 but never enacted into law.
Smuggling of Humans Unlawfully Present in the U.S.
Section 1 of HB 1436 creates a new felony for smuggling for profit or commercial purposes individuals unlawfully present in the U.S. The bill defines “human smuggling” quite broadly to include not only transporting individuals known to be unlawfully present in the U.S. but also facilitating their transportation (by making travel arrangements; providing money transmission services, vehicles, or false identification; or selling, leasing, or renting property to the undocumented).
Analysis: This section is written so broadly that it appears to convert common commercial transactions such as renting an apartment, selling a car, or giving a ride to an undocumented immigrant into a smuggling offense which may not comply with the federal definition. Thus, this section may be preempted by federal law. The Immigration and Nationality Act (INA) is a comprehensive law that regulates immigration matters, including §274 that defines alien smuggling to include not only bringing someone into the United States but also transporting, concealing, or harboring them within the U.S. with knowledge or reckless disregard that they are in the U.S. in violation of the law. While the INA does not expressly preempt state laws regarding alien smuggling, a strong argument could be made that, through the INA, the federal government occupies the field in this area.
Section 3 amends Oklahoma’s statute on seizure and forfeiture of property to permit local law enforcement to seize aircraft, vehicles, and vessels used to smuggle immigrants under Section 1 as well as property used to transport or harbor undocumented immigrants (a felony created by HB 1804, the Oklahoma and Citizen Protection Act of 2007).
Analysis: Assuming that Section 1 is preempted by federal law regulating alien smuggling, Section 3 would also likely be preempted under the related INA §274(b) provisions on seizure and forfeiture.
State and Local Enforcement of Federal Immigration Laws
Section 2 of HB 1436 prevents state and local governments from limiting or restricting the extent to which they will assist in enforcing federal immigration laws, including the federal misdemeanors of failing to register as an alien (8 USC §1304(e)) and failing to possess an alien registration document (8 USC §1306(a)).
Analysis: This provision is a response to the recent trend of states and localities choosing to limit their cooperation with Immigration and Customs Enforcement (ICE) in enforcing federal immigration laws. “Sanctuary cities” have adopted policies prohibiting officials from asking questions about an individual’s immigration status. Other localities have “opted out” of the federal Secure Communities program or restricted the circumstances in which police will honor ICE detainers lodged against individuals in local custody.
Generally, states’ ability to enforce federal, non-criminal, immigration status violations is limited in the absence of either direct authorization by federal law or coordination of enforcement efforts with federal authorities. Some circuit courts have found that state and local law enforcement officials have the authority to enforce criminal violations of the INA (such the two federal misdemeanors enumerated here) but not civil INA violations. However, this issue was left open by the U.S. Supreme Court in Arizona v. U.S. It is possible that this section could be found to be pre-empted by federal law. Moreover, from afiscal perspective, forcing local police to take on federal immigration enforcement duties diverts scarce time and resources from community policing and crime prevention.
Section 5 prohibits a governmental body from limiting or restricting enforcement of federal immigration law to less than the full extent permitted by federal law.
Analysis: This provision is almost identical to provisions in Arizona’s SB 1070 and Alabama’s HB 56 that were challenged but not invalidated over the course of the pending litigation challenging both laws. Thus, Section 5 is likely to withstand legal challenge.
Section 4 of HB 1436 permits peace officers to make warrantless arrests of an individual who they have probable cause to believe is an alien subject to an immigration judge’s removal order, an ICE detainer, an aggravated felony indictment or conviction, or has willfully failed to register under the INA.
Analysis: Local police may be able to confirm with the Department of Homeland Security (DHS) whether a particular individual has had a removal order or detainer issued against him or her. It is much more difficult to determine whether a particular indictment constitutes an aggravated felony under the INA or whether an individual has willfully failed to register under the INA. Such tasks are substantially complex immigration determinations made by federal judges and fall under the exclusive authority of the federal government. Because of this and the likelihood that peace officers might wrongfully arrest legal resident aliens under this section, it is likely to be found preempted by federal law. See also the March 28, 2013 decision of the U.S. District Court for the Southern District of Indiana, Buquer v. City of Indianapolis (Case No. 1:11-cv-0708 SEB-MJD), finding a similar provision (Section 20 of Senate Enrolled Act 590) to be preempted.
Sections 6 and 9
Section 6 mandates that state and local law enforcement officers verify the identity and immigration status of those individuals they have lawfully stopped, detained or arrested for whom they have probable cause to believe are not lawfully present in the United States. Immigration status will be verified with the federal immigration authorities under 8 USC 1373(c). There is an exception to this mandate when such an inquiry would have obstructed a criminal investigation or the treatment of medical emergency or when an officer was the only officer on duty at the time. Finally, under Section 9, an individual is presumed not to be unlawfully present when he or she presents a valid Oklahoma driver’s license, identification card, tribal enrollment card, concealed weapon permit, or other government-issued photo i.d. that requires proof of legal presence.
Analysis: These sections are strikingly similar to section 2B of Arizona’s SB 1070 – the so-called “show me your papers” provision that the U.S. Supreme Court upheld in 2012. The only substantive difference is that Oklahoma’s HB1436 requires law enforcement officers to have probable cause that the detained individual is unlawfully present while SB 1070 invokes the lower threshold of reasonable suspicion. Section 14 implies that an officer’s probable cause to believe someone is unlawfully present cannot be based on the individual’s race, ethnicity or national origin. Because the Supreme Court allowed Section 2B to go into effect, it is likely that this provision of HB 1426 could withstand a preemption challenge at this time. However, if HB 1426 went into effect and Oklahoma police enforced it in such as way as to single people out for discriminatory treatment or indefinitely detain individuals unable to produce adequatedocumentation of their immigration status, its enforcement could be challenged. This section will impose substantial costs on local authorities by forcing them to become immigration agents and will likely result in the wrongful detention of many U.S. citizens and lawful permanent residents.
Section 7 of HB 1426 mandates that law enforcement agencies ask ICE to issue an immigration detainer for any individual in local custody whose immigration status has been verified by DHS as being unlawfully present.
Analysis: The decision to issue a detainer is to be made by an authorized federal immigration official. Only under INA Section 287(g), are certain state and local agents authorized to perform immigration law enforcement functions and only after ICE has executed an agreement with that law enforcement agency and the designated local officers have received appropriate training and are being supervised by ICE officers. Currently, ICE’s only active 287(g) agreement in Oklahoma is with the Tulsa County Sheriff’s Office. Otherwise, it is the responsibility of ICE officers to identify, apprehend, and decide whether to seek removal of certain individuals from the U.S. However, while a non-designated local police cannot issue an ICE detainer, there does not appear to be any federal prohibition against police contacting ICE to bring an individual to ICE’s attention for consideration of a detainer issuance.
Section 8 permits law enforcement to transport individuals in its custody who have been verified by federal immigration authorities as unlawfully present to a federal facility in the state (implicitly without getting ICE’s consent) or outside the state (if ICE agrees to the transfer).
Analysis: This section does not define the mechanism by which an individual in criminal custody would be “verified by federal immigration authorities as unlawfully present.” If the intent is to permit local law enforcement to transport individuals who have had an ICE detainer lodged against them to an ICE facility, the local law enforcement agency would need to have a specific contract with ICE governing transportation services. Otherwise, ICE maintains sole authority to transport individuals in its custody following their release from local criminal custody. ICE’s detention standards govern, among other things, the transportation of immigration detainees. Absent the issuance of an ICE detainer and an explicit decision by ICE to exercise its right to assume custody over the individual, local law enforcement must release the individual as soon as the criminal reason for detaining the individual expires. Even if ICE has requested that the police continue to hold the individual subject to an ICE detainer, this authority only lasts for 48 hours. In addition to being vague, this section appears to create unnecessary burdens on local law enforcement budgets and could create serious liability for any resulting violations of detainees’ liberty rights.
Section 10 creates a cause of action for Oklahoma residents to request that a law enforcement agency or governmental body be enjoined from intentionally or knowingly limiting its enforcement of federal immigration laws under HB1436. The section also creates the right to costs and attorney’s fees for successful plaintiffs and provides indemnification for law enforcement officers who are sued.
Analysis: If Sections 2 and 7 are found to be preempted by federal law, then this section will not stand. From a policy perspective, this section would incentivize over-enforcement of the law as officers would not wish to be accused of not complying with the mandate. This, in turn, would further undermine the trust of immigrant communities in local police.
Section 11 of HB 1426 prohibits an entity from receiving economic development incentives (loans, grants or performance-based incentives from a state or local government that receives and uses tax revenues) unless the entity participates in E-Verify. The Attorney General will publish a list of all E-Verify compliant employers on its website.
Analysis: E-Verify is a voluntary program created by DHS to allow employers to electronically verify workers’ employment eligibility by accessing DHS and Social Security Administration databases. Oklahoma already requires all public employers and public contractors to participate in E-Verify under the Oklahoma Taxpayer and Citizen Protection Act of 2007 (H.B. 1804) and all employers are required to use the federal I-9 identification system upon hiring new employees. Incentivizing private employers to use E-Verify by making it a prerequisite to obtaining a taxpayer-funded loan or grant does not appear to be pre-empted by federal law. In 2011, the Supreme Court upheld Arizona’s state-wide mandate on E-Verify use in Chamber of Commerce v. Whiting. The court concluded that, although Congress had made E-Verify voluntary at the national level, it had expressed no intent to prevent States from mandating E-Verify participation. Arizona’s Attorney General is also required to list on its website all Arizona employers registered with E-verify.
Section 12 requires anyone over 18 who wishes to engage in “day labor employment” (defined as employment without a contract specifying an employment term of more than 3 days) in Oklahoma unless the laborer signs an attestation that he or she is a citizen, lawful permanent resident, or otherwise work authorized under 8 USC 1324a(b)(2). Any peace officer or individual authorized to enforce state employment laws who has probable cause to believe someone violated Section 12 can lodge an I-9 violation complaint with ICE.
Analysis: This provision attempts to regulate the employment of immigrants which is an area regulated by the federal Immigration Reform and Control Act (IRCA). Congress purposely excluded independent contractors (including day laborers) as “employees” under IRCA meaning they can lawfully solicit work despite lacking employment authorization. Because this section appears to conflict with the comprehensive federal scheme regulating immigrant employment, it is likely preempted.
Section 13 of HB 1426 makes it a misdemeanor for a person to knowingly or intentionally offer or accept a foreign government’s consular identification “for any public purpose” (with an exception when an individual presents a consular id to law enforcement officer during a criminal investigation). Section 13 also makes it a misdemeanor for a person to offer or accept an ITIN as a valid form of identification “for any public of private purpose” (other than paying taxes).
Analysis: Section 13 attempts to criminalize the act of accepting a consular identification for any public purpose. This may interfere with executive discretion in the field of foreign affairs. A similarly broad prohibition in Indiana making the use of identification cards issued by consulates of foreign countries illegal (Section 18 of SEA 590) was enjoined by the U.S. District Court as preempted by federal law as well as in violation of due process.
This document was prepared in February 2014 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.
 Section 3 of HB 1436 contains some edits to the way it read in the 2011 version. Section 6 of HB 1436 (the Arizona-style “show me your papers” provision) was an entirely new addition that did not appear in the 2011 bill.
 Available at: http://www.law.cornell.edu/uscode/text/8/1373. DHS must respond to inquiries by seeking to verify or ascertain citizenship or immigration status. Procedurally, local, state, and federal law enforcement agencies contact ICE’s Law Enforcement Support Center, which promptly provides immigration status and identity information regarding aliens suspected of, arrested for, or convicted of criminal activity.
 The primary difference is that Oklahoma’s HB1436 requires the law enforcement officer to have probable cause (a term that derives from the Fourth Amendment) that the detained individual is unlawfully present while Arizona’s SB 1070 requires that officers have only a reasonable suspicion - a level of suspicion that is lower than probable cause.