Law Enforcement/Criminal Justice
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 firstname.lastname@example.org 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.
New York Passes Law to Protect Immigrants Against Fraud
On August 6, 2014, New York enacted the Immigrant Assistance Service Enforcement Act to protect individuals against immigration fraud and punish perpetrators. The law ensures that only attorneys and representatives accredited by the Board of Immigration Appeals (BIA) can provide immigration legal services, strengthens translation requirements, increases civil penalties for immigration fraud violations, and creates two new immigration assistance fraud crimes – a felony and a misdemeanor. The legislation also institutionalizes the New York State Office for New Americans, an entity created by the Governor last March to offer immigrant communities legal services, civics and English as a Second Language classes, and other services. This law will serve as a model for other state legislatures around the country. Congratulations to Catholic Charities of New York which worked with other allies to get the bill passed.
Colorado Begins Issuing Licenses to Undocumented Drivers
Starting August 1, 2014, undocumented residents of Colorado began applying for driver’s licenses at five Department of Revenue locations across the state. Colorado’s law permits residents who cannot demonstrate lawful presence but have a federal Individual Taxpayer Identification Number (ITIN) to apply for a three-year driving license. However, the license is distinguishable from the standard license in that it has a black banner on the front reading “Not Valid For Federal Identification, Voting or Public Benefit Purposes.” An estimated 45,000 people are expected to be eligible. Colorado was one of eight states that passed laws last year permitting undocumented residents to apply for driving privileges. Illinois, Maryland, Nevada, and Vermont have already begun granting licenses. California and Connecticut will start in January 2015. The implementation of Oregon’s driver’s license law is on hold pending the outcome of a voter referendum in November.
According to Appeals Court, Arizona Must Grant Driver’s Licenses to DACA Recipients
On July 7, 2014, the 9th Circuit Court of Appeals ruled against Arizona’s policy of denying driver’s licenses to state residents with Deferred Action for Childhood Arrivals (DACA). According to the court, the plaintiffs succeeded in showing that they were likely to suffer serious harm as a result of the state policy. The Appeals Court ordered the lower federal court in Phoenix to issue an order prohibiting the state from refusing to accept DACA recipients’ employment authorization documents as proof that they are authorized under federal law to be present in the United States and, therefore, eligible to receive a driver’s license. However the lower court has not yet issued the order because the state of Arizona has asked for a rehearing. The only other state that continues to deny driver’s licenses to DACA recipients is Nebraska.
Boston Becomes the Latest Major City to Limit Police Cooperation with ICE
On August 20, 2014, the Boston City Council unanimously passed an ordinance limiting the instances in which police will detain immigrants for possible deportation. The Boston TRUST Act prohibits law enforcement from holding someone pursuant to an Immigration and Customs Enforcement (ICE) detainer unless the individual in custody has been convicted of a violent crime; has been convicted of a felony in the past ten years; is a registered sex offender; is on the federal terrorist watch list; or is the subject of a criminal warrant. Advocates claim the measure will improve relations between police and immigrants who often fear that reporting crimes will result in deportation. According to federal statistics, nearly half of the 757 individuals deported from Boston and Suffolk County from 2008 through March 2014 had no criminal record. The act will also protect Boston from civil lawsuits challenging the constitutionality of detaining immigrants. Boston’s Mayor believes the ordinance will uphold immigrants’ rights and preserve public safety, family unity, and due process, and has expressed his intent to sign the measure into law. Boston joins more than 200 municipalities across the country that have adopted anti-detainer measures.
Maricopa County Agrees to Stop “Self-Smuggling” Prosecutions Under Arizona Law
In late July, Maricopa County agreed to settle a lawsuit challenging its controversial policy of prosecuting undocumented immigrants for the felony of conspiring to “smuggle themselves” into the United States. According to a 2005 law, it is a state crime to smuggle unauthorized immigrants into Arizona. While this law was passed to target human smugglers, Maricopa County was using it to also charge migrants – i.e. individuals who had paid to be smuggled into the country. Since 2006, the county convicted approximately 14,000 individuals of felony conspiracy to smuggle themselves. This conviction made them ineligible to legalize their immigration status and become lawful permanent residents in the future. Last year, a U.S. District Court in Phoenix found these prosecutions were an unconstitutional attempt by a state to regulate immigration, which is a federal matter. However, Maricopa County appealed the court’s ruling. Now, the Maricopa County Board of Supervisors has decided to end the litigation, pay $675,000 in attorneys’ fees to the plaintiffs, and cease the practice.
San Francisco and Alameda Counties Provide Free Representation to Immigrants Facing Deportation
New York City was the first jurisdiction in the country to create a functioning public defender system for immigrants facing deportation. In June, the city announced that its municipally funded Immigrant Family Unity Project would guarantee legal representation to all detained immigrants in deportation proceedings. Recently, the public defender offices in San Francisco and Alameda counties have each hired an immigration lawyer to provide free representation to noncitizen public defender clients who face subsequent deportation proceedings. These immigration experts will also advise their fellow public defenders about the complicated intersection between criminal law and immigration law. Both counties hope that this model will inspire other county public defender offices to develop similar programs which can play a critical role in ensuring due process for immigrants. In the words of San Francisco Public Defender, Jeff Adachi, “Even a minor brush with the law can trigger devastating consequences for…families. This collateral damage is far worse than a jail sentence and includes losing the right to work, to support one's children and to stay in the country.”
New State-Level Data on DACA Applicants and Recipients
It has been 2 years since the Obama Administration implemented the DACA program. U.S. Citizenship and Immigration Services (USCIS) recently released statistics on the characteristics of DACA applicants and recipients, including the number of applicants and recipients and the application approval rates based on state and metropolitan area. The Brookings Institute took a closer look at the metropolitan data. Finally, the Migration Policy Institute (MPI) issued a profile of DACA applicants containing the application rates in the 15 states with the highest number of DACA-eligible residents as well as an interactive map with detailed state profiles of the DACA-eligible population.
This document was prepared in August 2014 for informational purposes only and is not intended as legal advice. For questions, please contact State & Local Advocacy Attorney Jen Riddle at email@example.com or (301) 565-4807.
After a series of legal battles, federal courts have blocked many of the harshest provisions of Alabama’s H.B. 56 and H.B. 658. Unfortunately, some parts of these laws remain in effect, including the following provisions:
- Undocumented immigrants cannot enroll in public universities and colleges and are not eligible for financial aid in Alabama.
- People are required to prove they are in the United States legally in order to obtain or renew a driver’s license, register a vehicle, or obtain a business license, commercial license, or professional license.
- All employers must use the E-Verify system to determine whether new hires are eligible to work in the U.S.
- Law enforcement officers are required to check the immigration status of people arrested and booked into jail.
- Undocumented immigrants convicted of violating a state law must be reported to Immigration and Customs Enforcement (ICE) and the Alabama Department of Homeland Security.
- Law enforcement officers are required to check the immigration status of anyone they reasonably suspect is in the country without authorization. However, they cannot detain or hold someone, nor prolong detention, solely to check immigration status.
As a result of court decisions, the following provisions of H.B. 56 and H.B. 658 have been amended. Currently:
- Proof of lawful status is not necessary to pay state or local taxes, register a mobile home, apply for a marriage license, rent housing, enforce contracts in court, or enroll children in elementary or secondary school.
- It is not illegal to provide a ride or rent housing to an undocumented immigrant.
- Attorneys do not need to report their clients’ immigration status to state or federal officials.
- People in Alabama can hire and work as day laborers.
- Passengers in cars are not required to answer questions about immigration status. Drivers may only be asked about their immigration status if they fail to present a valid driver’s license.
- Law enforcement officers cannot stop someone for the sole purpose of checking his or her immigration status or prolong an individual’s detention any longer than the stop otherwise requires in order to check immigration status.
Some areas of the law remain in dispute. H.B. 658 required Alabama to post publically on its website a list of all undocumented immigrants who were detained for a state law violation and appeared in court. Alabama state officials have said they do not currently have any plans to start maintaining such a list. However, a lawsuit is underway in federal district court challenging the legality of this mandate. The suit alleges that the list would facilitate private discrimination and violate the Supremacy and Due Process clauses of the Constitution. A federal judge in May denied the state’s motion to dismiss the lawsuit.
Finally, while it is not legal to deny children access to elementary or secondary education based on immigration status, there are reports that this may still be occurring in Alabama. The Southern Poverty Law Center notified Alabama’s state superintendent in May that school districts are still asking new students for birth certificates and social security numbers, without indicating that supplying such documentation is voluntary. The U.S. Departments of Justice and Education have recently issued guidance clarifying what documentation schools may ask for from parents.
This document was prepared in July 2014 by CLINIC Advocacy Intern Kelly Kidwell Hughes. It is for informational purposes only and is not intended as legal advice. For questions, please contact State & Local Advocacy Attorney Jen Riddle at firstname.lastname@example.org or (301) 565-4807.
By Jen Riddle
CLINIC is happy to announce an important new resource for affiliates concerned about the ways in which state and local governments may be participating in the enforcement of federal immigration laws. There are a number of programs through which Immigration and Customs Enforcement (ICE), the Department of Justice (DOJ), and other federal agencies recruit state and local law enforcement officials to help conduct immigration enforcement.
Often, participating in these programs may not be in the best interest of law enforcement or the local community. The cost of participation can be a drain on state and local resources and divert limited law enforcement efforts from more effective safety and crime prevention methods. Fortunately, most of these programs are completely voluntary. CLINIC’s new resource, “The Cost of State & Local Involvement in Immigration Enforcement,” outlines the major programs through which your state or local government may be cooperating in immigration enforcement, including how much they cost and whether they are mandatory. The document can be found here.
CLINIC will continue to develop resources so partners and affiliates can approach their state and local governments and law enforcement agencies and advocate for positive reforms that welcome and integrate – rather than punish – immigrant families.
In a decision in June of 2012, the U.S. Supreme Court decided that three of the four contested provisions of Arizona’s controversial S.B. 1070 could not be upheld because they were pre-empted by federal immigration law.
Section 3 of the law required immigrants to carry papers proving they were legally allowed to be in the country. The Supreme Court said this provision was invalid because the federal government had already provided standards for when and how immigrants should receive and carry documentation. Additionally, Arizona’s law would have provided different penalties for failing to carry the correct paperwork, which conflicted with federal penalties.
The Court also struck down Section 5(c) which would have made it a state crime to apply for and hold a job without valid immigration papers. Once again, the Court said this provision conflicted with federal law by criminalizing something the federal government had explicitly chosen not to criminalize.
Finally, the Court struck down Section 6, which would have allowed a law enforcement officer to arrest someone without a warrant if the officer believed that person had done something that would justify deportation. The Supreme Court said only the federal government had the power to make decisions concerning deportability.
What is the Status of the “Show Me Your Papers” Provision?
The sole section of S.B. 1070 that the Supreme Court upheld in 2012 was the provision requiring police to determine the immigration status of someone arrested or detained when there is “reasonable suspicion” that the person is unlawfully present in the U.S. The Court said this section did not violate the constitution because nothing in federal immigration law prohibits state law enforcement officers from reporting the status of an immigrant to federal law enforcement officers. The Court also noted that the Arizona statute had language forbidding discrimination based on race or national origin. Although the Court ruled that the provision was not unconstitutional on its face, the Court left open the possibility that the provision could be challenged at a later time based on the way it is implemented or enforced.
At least one civil rights organization has filed a lawsuit based on implementation at the local level. As a result of a suit brought by the ACLU, officials in South Tucson signed a settlement to avoid litigating a racial profiling complaint. The settlement prohibits South Tucson police from detaining people for extended periods of time to determine immigration status, questioning crime witnesses or students about immigration status, and relying on lack of English fluency to assume someone is in the country unlawfully. The settlement also requires the police to participate in education on bias-free policing, check with a supervisor before making immigration-related inquiries, and articulate to police dispatch the reason for stopping a vehicle at the beginning of a traffic stop.
The ACLU has also sued local Arizona law enforcement officials for using racial profiling when carrying out law enforcement duties unrelated to immigration. A federal district judge ruled in 2013 that the sheriff’s office of Maricopa County was using racial profiling to target Latinos. Last October, the court issued a series of mandates including requiring a monitor to keep tabs on the sheriff’s department, increased training, audio and video recording of traffic stops, the creation of a community outreach plan, and a requirement that officers radio in the reason for stopping a vehicle before making contact with passengers.
CLINIC and its affiliates will continue to monitor incidents of racial profiling in Arizona and the implementation of S.B. 1070 throughout the state.
What about S.B. 1070’s Harboring Provision?
The harboring provision of S.B. 1070 was not a part of the 2012 Supreme Court case but has been the subject of a separate legal challenge. As a result of this lawsuit, the state of Arizona entered into an agreement with the U.S. Department of Justice to drop the harboring provision, which made it a misdemeanor to transport, conceal, harbor, or shield an undocumented immigrant. Arizona had already been barred from enforcing this provision by an injunction issued in federal district court and upheld by the Ninth Circuit Court of Appeals. The Supreme Court declined to get involved in the matter.
Arizona agreed to end the legal battle and refrain from enforcing the harboring provision in a deal approved by a federal judge on June 9, 2014. Harboring an unauthorized immigrant is still prohibited under the Immigration and Nationality Act. However, the Arizona law would have made harboring a state crime as well. It would also have applied the law more expansively, and with different penalties, than the federal law.
Information about the federal harboring law is available on CLINIC’s website.
This document was prepared in July 2014 by CLINIC Advocacy Intern Kelly Kidwell Hughes. It is for informational purposes only and is not intended as legal advice. For questions, please contact State & Local Advocacy Attorney Jen Riddle at email@example.com or (301) 565-4807.
New York City Council Approves Municipal Identification Card Program
On June 26, the New York City Council voted 43-3 to create a municipal identification card for city residents. Starting in early 2015, the new “City ID” card will be available to all New Yorkers, regardless of immigration status, and will be recognized as proof of identity by all city agencies. New York’s municipal ID program will be the largest in the country and could benefit as many as 500,000 undocumented immigrants in addition to other vulnerable New Yorkers. The cards will empower holders to report crimes to the police, allow them to establish their identity to emergency medical responders, and enhance their access to essential services from opening bank accounts and obtaining loans to renting apartments, filling prescriptions, and picking up children from school. According to Mayor de Blasio, who is expected to sign the bill into law, "the municipal ID is more than just a card—it provides New Yorkers who are currently living in the shadows with dignity and peace of mind.” Similar programs are active in a handful of cities including New Haven, Los Angeles, and San Francisco. A recent Center for Popular Democracy report found that municipal ID cards “play a consistently positive role in empowering and protecting vulnerable communities” and result in practical benefits as well as carrying “symbolic importance in creating a sense of shared community and belonging for immigrants and other marginalized individuals.” If you are interested in advocating for municipal IDs in your county or city, please consult CLINIC’s talking points on why such programs are fundamentally fair, make our communities safer, promote community inclusiveness, and further Catholic social teaching as well as a list of ways in which ID cards will enhance individuals’ daily lives.
This month, the New York City Council allocated $4.9 million dollars to fund the New York Immigrant Family Unity Project. The program began as a pilot last year in two public defenders’ offices but the increased funding will guarantee that, starting in 2015, all of New York City’s poor detained immigrants have legal representation in their removal proceedings. The federal government does not provide immigrants facing deportation with free court-appointed attorneys, and those who are detained are even less likely to be represented by counsel and, as a result, more likely to be deported. According to Councilmember Carlos Menchaca, “New York City will become the first jurisdiction in the nation to have a functioning public defender system for immigrants facing deportation…[and] no family will have a loved one locked up and deported simply because they cannot afford a lawyer.” The project will fund representation for well over 1,300 immigrants, and advocates hope to eventually expand the project to cover all immigrants facing deportation in the state of New York. Proponents believe a state-wide project would save the government millions of dollars by reducing the length of adults’ stay in detention and the costs of foster care and health care for the U.S. citizen children of those deported, as well as savings to employers who have to replace workers who are detained and deported.
First of Its Kind State Citizenship Bill Introduced in New York Legislature
On June 16, days before the New York legislature adjourned for 2014, the New York Is Home Act (SB 7879/ A. 10129) was introduced. The bill would grant “state citizenship” to an estimated 2.7 million non-citizens - both documented and undocumented - who have lived and paid taxes in New York for at least three years. Intended to promote fuller civic, economic, and political participation by immigrants, the bill would confer the right to vote in state and local elections and run for public office in addition to access to state Medicaid coverage, professional licensing, tuition assistance, and driver’s licenses. The responsibilities of state citizenship would include swearing to uphold the state's constitution and laws and committing to serve on a jury. Finally, the bill would limit state and local law enforcement officers’ participation in immigration enforcement by prohibiting them from honoring immigration detainers, restricting ICE’s access to state and local facilities such as courthouses, and limiting information sharing with the Department of Homeland Security without a criminal warrant. The bill’s sponsor, Senator Gustavo Rivera, says the bill is a direct response to the failure of Congress to pass federal immigration reform and he hopes it will start a conversation, both locally and nationally, about what changes can be made at the state level. The bill is expected to be re-introduced in 2015 and may serve as a model for other states seeking to pass pro-immigrant integration measures.
Courts Find Utah and Montana Immigration Enforcement Laws Unconstitutional
On June 20, a federal district court in Montana ruled that provisions of a law requiring state agencies to make immigration status determinations before they could grant certain state services were preempted by federal immigration law. Legislative Referendum No. 21 was approved in 2012 by more than 80% of Montana voters and would have required all Montana residents to prove their citizenship or legal immigration status before they could attend a public university, receive unemployment insurance benefits, obtain a professional license, work for a state agency, or receive services for crime victims or the physically disabled. The law permitted state agencies to determine whether or not a Montana resident was an “illegal alien” (the term used by the law) and required state employees to report unlawfully present non-citizens to the federal government. Since only authorized federal agents are permitted to determine someone’s immigration status, the court found this aspect to be an impermissible state regulation of immigration. While the court upheld the provision permitting state agencies to report an individual’s immigration status to ICE, it is believed that they will not do so since they are not permitted to make immigration status determinations in the first place. This law was initially proposed by the legislature, which subsequently referred it to the state’s voters instead. The Montana Immigrant Justice Alliance attorney who filed the lawsuit hopes that Montana’s legislature and other state legislatures will learn “from this ruling that the state has no business enforcing federal immigration policy and needs to leave these issues to the federal government.”
On June 18, a federal judge in Utah struck down several sections of Utah’s 2011 immigration enforcement law, HB 497. Notably, the court found that federal law preempted the provision allowing warrantless arrests based on the suspicion that someone has violated his or her immigration status as well as the provision making it a state crime to harbor or transport an undocumented individual (including such activities as driving someone to church or to the store). The decision also clarified that people are not required to carry federal documents verifying their immigration status with them at all times. The district court upheld the “show me your papers” provision of Utah’s law that allows police to check the immigration status of those stopped for other lawful reasons. However, it imposed limits on how this section can be enforced. For example, Utah police may not prolong the detention of individuals during traffic stops or other types of stops solely to verify immigration status with federal officials. Provisions similar to those struck down this month by the Utah court have already been halted in other states including Alabama, South Carolina, Georgia, and Indiana. According to an attorney for the plaintiffs, “[this] decision really is the last across the country to issue a stinging rebuke of the anti-immigration agenda.”
Maine Restricts Undocumented Immigrants’ Rights to State Welfare
On June 11, the Maine Department of Health and Human Services ("DHHS") announced a change in who will be eligible for welfare benefits under the state’s General Assistance program that helps low-income residents cover necessary living expenses. Under the previous rules, an applicant was only required to demonstrate need, without verifying his or her immigration status, in order to qualify for the municipally-administered benefits that are jointly funded by state and local taxes. Under the new policy, the state will cease its General Assistance funding for undocumented residents. Maine’s DHHS Commissioner claims the change in policy is required under 8 U.S.C. 1621(a), a federal law that prohibits states from providing certain public benefits to non-citizens without lawful status unless the state has adopted a law affirmatively providing for the provision of such benefits. According to the Commissioner, Maine does not have such a statute. Among opponents to the recent policy change are Maine’s Attorney General who objected to an earlier and broader proposal to deny General Assistance not only to undocumented immigrants but also to those with lawful status including asylum seekers and asylees. According to the Attorney General’s legal opinion, the proposal would violate the equal protection clause of the U.S. and state constitutions and requires approval by the Maine legislature. She warned, “You can’t make every town in Maine a mini immigration office.” The recent change in policy may affect an estimated 1,000 Maine residents.
Judge Dismisses DACA Grantees’ Lawsuit Seeking In-State Tuition in Georgia
A superior court judge dismissed the lawsuit brought against the Georgia Board of Regents by 39 DACA grantees last year seeking eligibility for in-state tuition at public universities. According to the board’s policy, non-citizens with “lawful presence” qualify for in-state tuition rates, yet students with DACA have been denied. The plaintiffs argued that this language covers DACA recipients who are recognized as lawfully present by the federal government. According to the court, the case must be dismissed under the concept of sovereign immunity which prevents the state from being sued for “declaratory relief” (a legal term for a judge’s determination of the parties’ legal rights). The DACA students plan to appeal and are also considering filing a new lawsuit in federal court alleging a violation of the equal protection clause of the U.S. Constitution.
U.S. Citizen Challenges Tuition Policy of South Carolina Commission on Higher Education
On June 10, a South Carolina student filed a lawsuit in federal district court challenging the state Commission on Higher Education’s policy that denies U.S. citizens with undocumented parents eligibility for financial aid and in-state tuition. The plaintiff, a U.S. citizen and long-time South Carolina resident, was denied financial aid and in-state tuition because, as a dependent of undocumented parents who are not considered to be state residents, she is also considered a “non-resident” under the commission’s policy. The lawsuit alleges that the student has been denied equal protection and due process under the Fourteenth Amendment of the U.S. Constitution.
New Report Examines States’ Role in Implementing Immigration Reform
The Pew Charitable Trusts recently released a report exploring the critical role that states and localities would play if Congress were to pass immigration reform with a legalization component. Among the state and local governments’ responsibilities in implementing legalization and integrating its beneficiaries are conducting outreach and public education, providing documentation needed to meet the eligibility requirements of the program, offering English language and civics education, and protecting immigrants from fraudulent legal service providers. The report also provides data and a map of the growth and size of the unauthorized immigrant population across the 50 states.
Massachusetts Legislature Declines to Pass Driver’s License Law for Undocumented Residents
On June 23, the Massachusetts legislature voted to send the “Safe Driving Bill” (HR 3285) to study rather than proceeding to approve the legislation. The bill would have made driver's licenses available to undocumented residents by removing the requirement that applicants present a Social Security number. Advocates are committed to reviving the bill during next legislative session. Click here for information about the 11 states that have passed laws permitting undocumented drivers to apply for licenses.
Florida Governor Signs Bills on Tuition Equity and Law Licenses into Law
This month Governor Rick Scott signed into law two pro-immigrant measures passed by the state legislature this session. HB 851 extends eligibility for in-state tuition at public universities and colleges to undocumented residents. Click here to listen to an interview with the Florida Conference of Catholic Bishops about advocating for passage of the new tuition equity law. Governor Scott also signed HB 755, a bill that will permit DACA recipients who have been in the U.S. for over 10 years to practice law so long as they meet the other requirements for acquiring a law license in the state.
This document was prepared in June 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 firstname.lastname@example.org or (301) 565-4807.
Florida Becomes 20th State to Offer In-State Tuition to Undocumented Students
Advocates had been pushing for tuition equity in Florida for over a decade. On May 2, 2014 the state legislature passed HB 851, a bi-partisan bill that will grant in-state tuition at public universities and colleges to all qualified Florida residents, regardless of immigration status. The bill is still awaiting signature by Governor Rick Scott who called it “an exciting day for every student that dreams of a college education.” Under the new law, Florida high school graduates who attended at least 3 years of high school in the state will now qualify for in-state tuition rates. Approximately 200,000 students may now be able to pursue higher education. According to one young advocate: “Some of Florida’s best and brightest students are forced into low-wage jobs instead of going to college—jobs in construction, agriculture, and housekeeping—that kept me and my fellow immigrant students in the shadows instead of giving us the opportunity to contribute our best to our communities and our state…For me, the passage of the bill is the answer to my prayers and the prayers of all the undocumented youth in Florida.”
Legislature Attempts to Pave the Way for Undocumented Lawyers Seeking Bar Admission in Florida
On May 1, 2014, the Florida legislature passed HB 755, a family law bill with a provision authorizing the State Supreme Court to admit to the Florida Bar undocumented attorneys who were brought to the U.S. as children, have been in the country for over 10 years, and have received work authorization and a social security number as long as they meet the other admission requirements. This law followed a March decision by the Supreme Court of Florida denying admission to DACA recipient Jose Godinez-Samperio based on his undocumented status. It is now up to the Florida Supreme Court to reconsider its previous decision and decide whether to admit Mr. Godinez-Samperio. Florida’s law is similar to one passed by the California legislature last year.
Supreme Court Will Not Interfere with Fremont’s Anti-Immigrant Housing Ordinance
This month, the U.S. Supreme Court declined to hear the legal challenge to the Fremont, Nebraska ordinance aimed at preventing undocumented immigrants from renting housing. As a result, the 8th Circuit Court of Appeals’ 2013 decision, which found the city’s rental ordinance does not interfere with federal immigration laws, will stand. City police began implementing the ordinance last month and report that 140 occupancy licenses have already been issued to renters who have paid the $5 fee and attested to their immigration status. According to Fremont’s mayor, the town has already spent $186,000 defending and enforcing the ordinance and plans to spend up to $1.5 million moving ahead. Opponents are monitoring the ordinance’s implementation and may bring a future legal challenge if prospective tenants report discriminatory enforcement. Kansas’ Secretary of State, Kris Kobach, who defended the ordinance, called the Supreme Court’s decision a “bright green light” for cities in other states in the jurisdiction of the 8th Circuit (Arkansas, Iowa, Minnesota, Missouri, North Dakota, and South Dakota) to adopt similar measures. Earlier this year, the Supreme Court declined to hear cases involving similar ordinances in Hazelton, Pennsylvania and Farmers Branch, Texas that were found to be unconstitutional by the 3rd and 5th Circuit Courts. Despite the obvious circuit split, the Supreme Court has been unwilling to get involved so far but may decide to weigh in on the issue at some point in the future.
Federal Government Reminds Schools about Immigrants’ Right to Education
On May 8, the Departments of Education and Justice updated their guidance to public elementary and secondary schools about their obligations to provide all children with equal access to an education. The resources aim “to ensure the schoolhouse door remains open to all” and that enrollment processes do not discriminate on the basis of race, color, national origin, citizenship, or immigration status (including the status of students’ parents or guardians). Included in the practical guidance are examples of the types of documents schools may accept as proof of a child’s age or residency (including foreign birth certificates) and reminders about the impermissibility of requiring certain documents – such as parents’ state-issued driver’s licenses (which are often unavailable to undocumented residents). Schools are asked to translate information about enrollment into languages other than English for parents with limited English proficiency. The Department of Education has resolved complaints against 11 schools or districts since 2011 and investigations are ongoing against schools in Louisiana, New Mexico, and South Carolina. The Justice Department has entered into settlement agreements with school districts in Georgia, Florida, and Virginia. Examples of improper practices include requiring students to provide their immigration status or date of entry into the U.S. or denying enrollment because of a parent’s decision not to provide the child’s Social Security number.
California Legislature Continues to Lead the Country with Pro-Immigrant Bills
For those looking to promote pro-immigrant integration bills in state legislatures, consider some measures being debated in California this session. SB 1005 would extend affordable, all-inclusive health coverage to undocumented Californians. Specifically, it would expand eligibility for Medi-Cal (California's Medicaid program) to low-income individuals who cannot currently qualify due to lack of immigration status and would also create a state-run exchange for the undocumented to purchase health care insurance. Its sponsor claims the bill will save taxpayers money by facilitating preventative treatment and reducing reliance on expensive emergency room care.
Another California bill, SB 1159, would remove professional licensing barriers that prevent undocumented workers from practicing their occupations including doctors, nurses, dentists, psychologists, pharmacists, real estate agents, and security guards. The bill would allow 40 state boards to accept a federal Individual Taxpayer Identification Number (ITIN) in lieu of a Social Security number as proof of identity for individuals applying for professional licenses. The bill was passed by the Senate on May 8, 2014 and will now go to the Assembly. The change would be of tremendous benefit to California’s workforce, an estimated 1.85 million of who are undocumented.
On May 23, the California State Assembly passed AB 1876, a bill that would reduce the cost of phone calls for immigrants and others detained in California’s jails and limit the ability of phone companies, law enforcement agencies, and private prison corporations to profit from inflated phone rates. The exorbitant cost of phone calls for those held in county jails is an affront to human dignity because it prevents detainees from communicating with their families and limits their ability to obtain and communicate with legal counsel. The bill now moves to the Senate.
On May 28, the Senate passed SB 1210 which would create the California DREAM loan program to provide loans of up to $4,000 to qualifying undocumented youth who wish to study at participating institutions within the University of California and California State University systems.
Reacting to Court Decisions on Immigration Detainers, Dozens of Counties Say “No” to ICE
Two recent court decisions on the use of ICE detainers have resulted in a domino effect of local law enforcement policies limiting cooperation with ICE in enforcing immigration laws. In March, the Third Circuit Court of Appeals found that immigration detainers are not mandatory and that Lehigh County, Pennsylvania could be violating the Constitution by complying with ICE detainers. In April, a U.S. District Court in Oregon found that Clackamas County sheriffs had violated the Fourth Amendment rights of an individual they continued to hold under an ICE detainer without probable cause. In the wake of these decisions, local law enforcement agencies across the country are changing their policies about when they will hold individuals for ICE. More than 75 counties in Colorado, Washington, Oregon, and California as well as Lehigh County, Pennsylvania and Somerville, Massachusetts have announced they will only honor detainer requests from ICE under limited circumstances, such as when a federal magistrate has issued an arrest warrant. Many local law enforcement leaders cited fears of civil liability in addition to concerns about the constitutionality of ICE detainers. A complete list of the jurisdictions that limit compliance with ICE detainers is available here.
In addition, the Department of Homeland Security (DHS) is in the process of conducting a review of federal immigration enforcement policies following a request in March by President Obama to look into ways to make enforcement more “humane.” On May 29, 2014, DHS Secretary Jeh Johnson testified at an oversight hearing before the House Committee on Homeland Security that the controversial Secure Communities program “need[s] a fresh start.” Through Secure Communities, the fingerprints of people arrested by local police are automatically run through a DHS database so that ICE can decide whether to issue detainers in order to take these individuals into immigration custody.
The 15 States with the Largest Immigrant Populations
The Pew Research Center recently compiled a summary of the percentages of foreign-born residents living in each of the 15 “top immigrant states.” According to the 2012 data, 79% of the country’s total immigrants reside in these 15 states. In California, New York, New Jersey, and Florida, one in five residents are foreign-born. Click here to see the data in addition to how the rankings have changed over the past two decades.
This document was prepared in May 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.
By Jen Riddle
In our March 2014 newsletter, we wrote about ways affiliates can make a difference in encouraging state and local law enforcement to limit compliance with civil immigration detainers issued by ICE. We have recently released talking points sharing reasons states should keep local law enforcement separate from federal immigration functions. We encourage you to use these in advocating to limit the extent to which your local police and sheriffs are cooperating with ICE by detaining individuals for transfer to ICE custody.
An increasing number of states and localities are refusing to do the federal government’s job of enforcing immigration laws. Many states, counties, and cities have passed laws or policies that officially restrict the extent to which law enforcement may continue to detain individuals to hand over to ICE.
Two states, California and Connecticut, have passed state-wide TRUST (Transparency and Responsibility Using State Tools) Acts. Twelve cities and fifty-five counties (in orange) have passed anti-detainer measures. Some of the cities include: Los Angeles, San Francisco, NYC, Chicago, Baltimore, Philadelphia, Washington DC, and New Orleans. Counties include: Miami-Dade County in Florida and 31 of Oregon’s 36 counties. A complete list of these jurisdictions is available on CLINIC’s website. The policies adopted range from broad limitations prohibiting local law enforcement from honoring any ICE detainer requests to more narrow measures, such as complying only when the arrested individual has actually been charged with or convicted of a particular serious crime or violent felony, when there is a prior written agreement from ICE agreeing to reimburse them for all detainer-related expenses, and when ICE has obtained a judicial warrant backed by probable cause (like a warrant issued by a judge).
For more information, see the State and Local Immigration Project page on CLINIC’s website.
This webinar is for current and aspiring immigrant advocates on a grassroots level. Immigration laws and policies come from the federal government but immigrants' lives are also impacted by state and local laws and policies. This webinar provides an overview of the role each level of government plays in regulating the lives and livelihoods of immigrants. You will learn about our broken federal immigration system and what you can do to help convince Congress to pass comprehensive immigration reform. We also cover the limited role of the Executive Branch in setting immigration policies. Finally, we discuss the types of laws and policies that state and local governments around the country are passing on such important matters as higher education, driver's licenses, immigration fraud, and police involvement in immigration enforcement. In addition to learning about these issues, you will acquire tools and strategies for advocating to change policies and practices in your communities.
Held on: 5/22/14
- Allison Posner, Director of Advocacy, Catholic Legal Immigration Network, Inc (CLINIC)
- Jen Riddle, State and Local Advocacy Attorney, CLINIC
- Reverend Timothy Graff, Pastor, St. Joseph's Parish, Bogota, NJ and Director of Human Concerns, Archdiocese of Newark
Philadelphia, Baltimore, and the Majority of Counties in Oregon Limit Local Police Involvement in Enforcing Immigration Laws
The list of localities that have adopted ICE detainer policies that enhance public safety and build trust between immigrant communities and police continues to grow. On April 16, the Mayor of Philadelphia signed an Executive Order restricting when city police will detain individuals to hand over to ICE for immigration enforcement. Philadelphia’s policy has been called “one of the most progressive in the country.” It prevents police from honoring an immigration detainer request unless the individual has been convicted of a violent felony and ICE has obtained a judicial warrant based on probable cause. This policy comes on the heels of last month’s Third Circuit Court of Appeals decision, holding that ICE detainers are merely requests and state and local law enforcement are not required to honor them.
Under an April 18 policy, the Baltimore City Detention Center will only hold individuals for possible deportation by ICE when they have been charged with or convicted of a felony, three misdemeanors, or a “serious” misdemeanor. In announcing the change, Maryland’s Governor O’Malley stressed the need to limit compliance with ICE detainers to cases where there is an actual public safety threat rather than separating families simply because Congress is unwilling to “reach a reasonable compromise on comprehensive immigration reform.”
Finally, 23 of Oregon’s 36 counties have ceased honoring ICE detainers. These policies followed a federal court decision finding that Clackamas County sheriffs violated the Fourth Amendment rights of an Oregon immigrant they continued to hold for 19 hours after her state charges were resolved and she was eligible for release. The federal court agreed that immigration detainers are only requests and the mere existence of a detainer did not constitute probable cause permitting the County to continue to detain this individual. This ruling clarified that honoring ICE detainers may result in constitutional violations. Fears of legal liability may spur other cities and counties to adopt detainer policies such as those recently announced in Oregon, Baltimore, and Philadelphia.
Click here for a comprehensive list of the states and localities that to date have limited compliance with immigration detainers and here for Talking Points on Why States Should Separate Local Policing From Immigration Enforcement.
Harboring Provision of Arizona’s SB 1070 Will Remain Blocked
On April 21, the U.S. Supreme Court declined to hear the appeal brought by the state of Arizona in Arizona v. Valle del Sol, Inc. This case involved the provision of SB 1070 that would have made it a state crime to encourage unauthorized immigrants to enter Arizona or to harbor or transport them within the state. Both the district court and the 9th Circuit Court of Appeals had prevented the provision from going into effect after finding that it was preempted by the federal law against harboring (8 U.S.C. §1324). The Supreme Court’s refusal to intervene is a relief for the parishes, teachers, social workers, and others who work regularly with immigrant communities in Arizona and may provide shelter or rides to many of its estimated 400,000 undocumented residents.
Which Ten States Have the Largest Populations of Unauthorized Immigrants (According to DHS)?
The Department of Homeland Security (DHS) recently released statistics on the estimated number of unauthorized immigrants residing in the United States as of January 2012. According to the report, the total number of undocumented individuals in the country was 11.4 million. DHS also published the following estimates for the 10 states with the highest numbers of undocumented residents:
- California (2,820,000)
- Texas (1,830,000)
- Florida (730,000)
- New York (580,000)
- Illinois (540,000)
- New Jersey (430,000)
- Georgia (400,000)
- North Carolina (360,000)
- Arizona (350,000)
- Washington (270,000)
Virginia Attorney General Extends In-State Tuition Eligibility to DACA Recipients
On April 29, the Attorney General of Virginia announced that young Virginians who were brought to the U.S. as children and have been recognized under the Deferred Action for Childhood Arrivals (DACA) program would no longer be treated as “international students” for college tuition purposes. Moving forward, these students may legally establish Virginia domicile and will be eligible for in-state tuition rates at Virginia’s public colleges and universities. State legislators in Virginia have introduced tuition equity bills for several years but such proposals have been unable to pass. Last year, a group of DACA recipients, who pay out-of-state tuition rates of 230% to 245% more than in-state rates at the Virginia community colleges, filed a lawsuit against the State Council of Higher Education. The change in Virginia tuition policy is being celebrated by the student plaintiffs. According to the Legal Aid Justice Center, which represented them in the legal challenge, “we continue to fight on the federal level for a path to full citizenship for these Virginia students and their families.”
This document was prepared in April 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 firstname.lastname@example.org or (301) 565-4807.
Supreme Court Leaves Lower Court Decisions on Anti-Immigrant Housing Regulations Intact
On March 3, the U.S. Supreme Court declined to hear appeals brought by the towns of Hazelton, Pennsylvania and Farmers Branch, Texas related to their anti-immigrant housing ordinances. As a result, the decisions of the 3rd and 5th Circuit Courts of Appeals, finding that the housing ordinances were unconstitutionally preempted by federal immigration law, remain intact. Both ordinances would have required prospective tenants to prove their lawful presence in the United States and obtain a rental license before being permitted to rent an apartment. At this time, the only discriminatory housing ordinance that has withstood legal challenge is the policy that will go into effect on April 10 in Fremont, Nebraska. The 8th Circuit Court of Appeals upheld Fremont’s anti-immigrant rental ordinance last year and a majority of the town’s residents voted last month to keep the law. Fortunately, other localities across the country, including Omaha and Lincoln, Nebraska, are choosing instead to embrace and integrate immigrants into their communities and economies through a number of welcoming initiatives.
Legal Settlement Blocks Key Sections of South Carolina’s 2011 Anti-Immigrant Law
Following in the steps of Arizona, Alabama, and Georgia, South Carolina is the latest state to limit enforcement of its harsh anti-immigrant law. The state has agreed to a settlement in legal challenges to key provisions of SB 20 that sought to criminalize undocumented immigrants and drive them out of the state. Once the settlement with civil rights organizations and the U.S. Department of Justice is approved by the federal court, it will limit how the state can enforce the law’s controversial “show me your papers” provisions which permit local police to request immigration status documents from individuals stopped or detained for other lawful reasons. The South Carolina Attorney General issued a formal opinion clarifying that law enforcement agents cannot continue to hold people to investigate their immigration status after the original reason for stopping or detaining them has been resolved. The pending settlement will also permanently block the section of the law that makes it a state misdemeanor to fail to carry immigration documents. Finally, the settlement will permanently enjoin the provisions making it a state felony to engage in such routine interactions with undocumented immigrants as driving them to church or renting them a room. Similar provisions criminalizing transporting and harboring have also been blocked in Alabama and Georgia.
Tuition Equity Bill Advances in Florida Legislature While Financial Aid Bill Is Defeated in New York
On March 20, the Florida House voted to approve HB 851 that would permit undocumented residents to pay in-state tuition at state universities. All eyes now turn to the state Senate where the Judiciary Committee recently approved a similar proposal (SB 1400) that must eventually clear the Senate as a whole. Reports indicate that Governor Scott would sign the tuition equity bill, if passed by the legislature. If Florida does enact this legislation, it would become the 20th state with a law or policy extending in-state tuition to undocumented residents. Only four of these states (California, New Mexico, Texas, and Washington) also permit undocumented students to qualify for state financial aid. New York, which has offered in-state tuition to undocumented residents since 2002, was considering a bill enabling undocumented students to qualify for state financial aid, but the legislation was defeated by the state Senate on March 17. Click here for CLINIC’s Talking Points on Why States Should Offer In-State Tuition to All Residents.
Massachusetts May Become Third State to Decline to Hold Individuals for ICE
Massachusetts’ SB 1135, an Act to restore community trust in Massachusetts law enforcement, passed out of the Joint Public Safety Committee on March 19. This legislation would limit the use of scarce state and local law enforcement resources to do the federal government’s job of enforcing immigration laws. Specifically, Massachusetts law enforcement would only be able to hold someone under an ICE detainer when the individual is over 18, has been convicted of a certain felony, and has either been ordered removed or charged with being removable, and when ICE has agreed to reimburse the law enforcement agency for all associated costs. Recent ICE statistics show that an alarming percentage of individuals deported from Massachusetts as a result of federal partnerships with local law enforcement had no criminal convictions or had only been charged with minor offenses. According to the bill’s sponsor, it will limit “unjust, unnecessary, and unsafe federal deportation programs, therefore restoring the trust between immigrant communities and police, and increasing the public safety for all residents in Massachusetts.” While the Maryland legislature had been considering similar legislation this session (HB 29/SB554), the Maryland Law Enforcement Trust Act failed to move out of the necessary House and Senate committees.
This document was prepared in March 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.
This webinar will address immigration detention, including the federal mandate requiring the detention of certain immigrants, the recent rise of immigration detention, and alternatives to detention. Additionally, the panel will include local perspectives on the effects of detention facilities on communities and how local stakeholders can help combat this national phenomenon.
- Ashley Feasley, Migration Policy Advisor, USCCB
- Christina Fialho, attorney, co-executive director of Community Initiatives for Visiting Immigrants in Confinement (CIVIC)
- Sister JoAnn Persch, Sister of Mercy, Interfaith Committee for Detained Immigrants
This webinar provides an overview of collaboration between Immigration and Customs Enforcement (ICE) and local law enforcement agencies through the Criminal Alien Program, 287(g) Partnerships, and Secure Communities as well as the use of ICE detainers to identify potentially deportable individuals in state or local custody. Panelists will address how these programs harm American families and communities and suggest ways to advocate on a state and local level against their continuation.
Held on: 11/8/13
- Allison Posner, Director of Advocacy, Catholic Legal Immigration Network, Inc. (CLINIC)
- Jen Riddle, Advocacy Attorney, CLINIC
- Mark Fleming, National Litigation Coordinator, National Immigrant Justice Center
- Alissa Escarce, Policy Associate, Rights Working Group
- Jill Malone, Volunteer Advocate, Justice for Immigrants Campaign of the Diocese of San Jose
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 firstname.lastname@example.org 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 email@example.com or (202) 635-7410.
Overview: HB 1159 creates state-level penalties relating to identity theft and employment.
Section 1: This first section amends current South Dakota Law regarding identity theft. In general, it provides that a person commits identity theft if that person takes, uses, transfers, etc. the identifying information of another person with the intent to deceive or defraud. It also provides that identity theft occurs when a person accesses or attempts to access the financial resources of another person by using identifying information.
Identity theft committed in this section is a Class 6 felony.
Section 2: This section is new. It has two subsections. The first subsection is geared toward employees. The second subsection is geared toward employers. Basically, Section 2(1)states that a person commits identity theft if the person attempts to use another person’s identifying information with the intent to obtain or continue employment. Section 2(2) states that a person commits identity theft if, in hiring an employee, the person accepts any personal identifying information of another person from an individual, knowing that the individual is not the actual person identified by that information, and uses that identity information to determine if the individual has the legal right and authorization to work in the U.S. under federal law.
Identity theft committed in this section is a Class 6 felony.
Analysis: These sections do not appear to violate federal law as states can pass laws that relate to identity theft. However, it is worth noting that Section 2 could be considered duplicative of federal laws and federal efforts to curb identity fraud. Indeed, the federal government has strong fraud and false statement laws in the area of employment, including an Aggravated Identity Theft statute—18 USC Section 1028A. This federal statute has been used by prosecutors to bring cases against individuals for using false documents to gain employment knowing that the document belonged to someone else. Along with the Aggravated Identity Theft Statute, the federal government has other laws that prohibit document fraud, such as: (1) 18 USC. Section 1546 for Fraud and Misuse of Visas, Permits, and other Documents; and, (2) Section 274C of the INA, 8 USC Section 1324c Penalties for Document Fraud.
Additionally, the federal government has courts, prosecutors and investigative agencies that all have experience and expertise in this area and are actively prosecuting fraud and identity theft cases in federal courts across the country. Further, the federal government established in 2006, a Document and Benefit Fraud Task Forces (DBFTF). According to ICE, the DBFTFs were created "to target, seize illicit proceeds of and dismantle the criminal organizations that threaten national security and public safety and address the vulnerabilities that currently exist in the immigration process." The DBFTFs work in partnership with other agencies including, the Department of Labor, the Social Security Administration, U.S. Postal Service, U.S. Citizenship and Immigration Services, the Department of State and various state and local law enforcement agencies. These task forces focus their efforts on detecting, deterring and disrupting document fraud.
In summary, given the federal government’s expertise and resources in the area of document and identity fraud, a strong argument can be made that this bill is unnecessary because it duplicates the efforts of the federal government. This bill will likely burden the taxpayers of South Dakota by adding to the case load of state investigators, prosecutors and judges.
This document was prepared for CLINIC in February 2013 by Karen A. Herrling. 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 firstname.lastname@example.org or (202) 635-7410.
House Bill (HB) No. 50, introduced by State Representative David Howard, prohibits local government from enacting, adopting, implementing, enforcing, or referring to the electorate immigration sanctuary policies. It also allows state agencies to withhold funds to local governments that do not comply with the provisions of the bill. Additionally, a person domiciled in Montana can seek a writ of mandamus to compel compliance with the bill.
In general, bills or laws like HB 50 are introduced as a response to “sanctuary cities,” which refer to localities that are perceived to have adopted policies that limit local officials’ involvement in the business of enforcing federal immigration law. For instance, in recent years, some localities concerned with upholding strong community policing programs have adopted policies prohibiting their police officers from asking questions about an individual’s immigration status. Other localities have attempted to “opt out” of the federal Secure Communities program (when that was still an option). Still other localities have decided to restrict the authority of local police to honor federal immigration detainers.
It appears from the language of the bill and from comments made by Representative Howard that the intent of HB 50 is to have police officers and local and state officials inquire about immigration status and enforce immigration law. Indeed, Representative Howard told the Montana Judiciary Committee that HB 50 “ensures local governments will enforce immigration law and not turn a blind eye to undocumented immigrants.”1
HB 50 is unnecessary. Two provisions of federal law already prohibit all government entities (including state and local government entities) from restricting communication between state/local government entities/officials and the federal Department of Homeland Security (DHS) regarding the immigration status of any individual. First, 8 U.S.C. §1644 (part of the Personal Responsibility and Work Opportunity Act or “PRWORA”) states: “Notwithstanding any other provision of Federal, State, or local law, no State or local government entity may be prohibited, or in any way restricted, from sending to or receiving from the Immigration and Naturalization Service information regarding the immigration status, lawful or unlawful, of an alien in the United States.”
Second, 8 U.S.C. §1373 (part of the Illegal Immigration Reform and Immigrant Responsibility Act or “IIRAIRA”), enacted a month after PRWORA, borrows and expands on the above language:
- In general – Notwithstanding any other provision of Federal, State, or local law, a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual.
- Additional authority of government entities – Notwithstanding any other provision of Federal, State, or local law, no person or agency may prohibit, or in any way restrict, a Federal, State, or local government entity from doing any of the following with respect to information regarding the immigration status, lawful or unlawful, of any individual:
- Sending such information to, or requesting or receiving such information from, the Immigration and Naturalization Service.
- Maintaining such information.
- Exchanging such information with any other Federal, State, or local government entity.
In summary, because the two federal laws listed above already prohibit all state and local government entities from restricting communication between DHS officials and state and local government officials, HB 50 is superfluous.
Additionally, bills such as HB 50 can burden state resources because they require local agencies to take on federal enforcement duties. This mandate means that state and local agencies that are already facing economic challenges may need to devote much needed resources to perform new and different duties. It also may mean that state and local personnel will require additional training and professional development opportunities to handle any new tasks. Lastly, it may mean that important duties that were previously performed by state and local officials simply cannot be done because of lack of time and resources. Thus, having state and local agencies enforce federal immigration law does not make economic sense, particularly in a state like Montana with a small foreign-born population where Hispanics make up just 3 percent of the population.
Interestingly, important guidance can be gleaned from the Texas State Legislature. Toward the end of 2011, Texas battled over proposed anti-sanctuary cities bills in both the House and the Senate. The effort to pass legislation of this type ultimately was undone by opposition from influential Republican donors as well as evangelical Christian leaders. The anti-sanctuary cities bills were considered by these groups to be “unfunded mandates” requiring local agencies to use local resources in carrying out federal immigration enforcement. Similar to HB 50, the bills would have put local governments at risk of losing state grant money if they did not comply.2
Also, having local police enforce federal immigration law by complying with HB 50 can compromise the safety of everyone, including citizens. Bills such as HB 50 often force local police to shift their focus and resources toward immigration enforcement. The devastating effect of this realignment is most evident in Maricopa County, Arizona. The U.S. Department of Justice continues to examine the failure of the Maricopa County Sheriff’s Office to investigate over 300 cases of sexual assault and child molestation while the office shifted its resources toward federal immigration enforcement.3
Moreover, bills like HB 50 also further incentivize over-enforcement of the law, because officers do not wish to be accused of not complying with the state mandate and, in the case of HB 50, become the subject of a writ of mandamus. The over-enforcement of the law can lead to the violation of civil rights and liberties of residents throughout Montana. It also can harm the welfare of communities. Indeed, how will HB 50 impact individuals that need to interact with state and local agencies, such as schools, hospitals, libraries, police departments, and social service offices? Will this bill deter people from seeking help from their local fire department? Will the victim of a crime or a witness to a crime decide not to report a crime or assist in an investigation? Will a person decide not to call 411 in an emergency? Will this bill deter people from getting vaccinations?
Not surprising, law enforcement leaders from Texas4 to California5 to Utah6 to Massachusetts7 have spoken out about the damage that immigration enforcement-only approaches can do to community policing programs. Kenneth E. Lavallee, Police Chief of Lowell, Massachusetts, aptly stated that: “When immigrant residents of Lowell are afraid to report crimes because they worry that contact with my officers could lead to deportation, criminals are allowed to roam free and the entire community suffers as a result.”8 Fear erodes the important element of trust between the police and the communities they serve. The erosion of trust impacts immigrant women particularly harshly. 9 Among other things, it renders them helpless in the face of domestic violence.
Steven Anderson, police chief in Tuscaloosa, Alabama, told This American Life that getting police into immigration enforcement is a waste of resources – that he has real crime to root out in Tuscaloosa, and “[t]he Hispanic population was not the population in our community that was committing those crimes. So immigration was not a problem for our police department. It was not in my top 10, maybe not even in my top 20, of concerns that I had for the city of Tuscaloosa.”10
Further, Section (2) of HB 50 allows a person domiciled in Montana to bring a writ of mandamus to compel compliance by state and local government entities. This section is onerous and, as noted above, can provide the impetus for state and local officials to over-enforce federal immigration law. It also has the potential of burdening the court system and wasting the resources of local and state governments and their agencies.
Lastly, HB 50 runs counter to trends across the nation that have shown a more moderate approach to immigration enforcement by both federal and state officials. Immigration reform remains a top priority of President Obama during his second term. House Speak John Boehner has said that he would consider proposals for comprehensive immigration reform. At the state legislature level, fewer immigration-related bills were introduced and became legislation in 2012.
1 Elizabeth Llorente, “Immigration Enforcement Law Proposed in Montana,” Fox News Latino, January 16, 2013. http://latino.foxnews.com/latino/politics/2013/01/16/immigration-enforcement-law-proposed-in-montana/
2 Zahira Torres, “Texas legislature: Bill banning sanctuary cities headed toward failure,” El Paso Times, June 28, 2011 http://www.elpasotimes.com/ci_18362079
3 U.S. Department of Justice, Civil Rights Division, “United States Investigation of the Maricopa County Sheriff’s Office,” December 15, 2011 http://www.justice.gov/crt/about/spl/documents/mcso_findletter_12-15-11.pdf
4 A. Elena Lacayo, “One Year Later: A Look at SB 1070 and Copycat Legislation,” National Council of La Raza (April 18, 2011) [“Lacayo, “One Year Later”]: 5 (quoting Sheriff Richard Wiles of El Paso, TX: “if the people who live in our community are afraid to talk to us, they won’t report crimes when they’re victims or witnesses.”).
5 The San Jose, CA Police Department released a statement approving the San Jose City Council’s policy of putting community policing before immigration enforcement. Here is the section of the City Council’s policy quoted and approved by the Police Department: The City of San Jose has a strong interest in assuring that legal and undocumented immigrants do not fear interacting with their local governmental authorities. In past years, the City has seen how the reluctance of immigrants to interact with local authorities can critically undermine the health and safety of our community. For example, the failure of victims to report crimes, the reluctance of witnesses to cooperate with the police, or the unwillingness of parents to take children to school or to a health clinic, can have grave impacts on the well-being of all of San Jose's residents, including U.S. citizens. http://www.sjpd.org/inews/viewPressRelease.asp?ID=430
6 Lacayo, “One Year Later,” at 5 (quoting Utah Attorney General Mark Shurtleff: “local law enforcement resources should focus on criminal activities, not civil violations of the federal code.”)
7 Immigration Policy Center Special Report: Debunking the Myth of “Sanctuary Cities:” Community Policing Policies Protect American Communities (April 2011): http://www.immigrationpolicy.org/sites/default/files/docs/Community_Policing_Policies_Protect_American_042611_update.pdf
8 Immigration Policy Center Special Report: Debunking the Myth of “Sanctuary Cities:” Community Policing Policies Protect American Communities (April 2011): 6 http://www.immigrationpolicy.org/sites/default/files/docs/Community_Policing_Policies_Protect_American_042611_update.pdf
9 Witness, for example, the February 10, 2011 testimony of Antonia Peña, a volunteer with Casa de Maryland, before an Ad Hoc Congressional Hearing hosted by Representative Raúl Grijalva (D-AZ). Ms. Peña recounted the story of her friend, Maria, a Salvadoran mother living in Maryland who is now in removal proceedings because she called the police for help against a domestic attack. See U.S. Congress. Ad Hoc Congressional Hearing hosted by Representative Raúl Grijalva. “Emerging Issues in Ending Violence Against Immigrant Women.” Testimony of Antonia Peña, Volunteer with Casa de Maryland. February 10, 2011. http://www.huffingtonpost.com/rep-raul-grijalva/immigrants-need-the-viole_b_822424.html ; http://www.youtube.com/watch?v=zuLHUJa6Pf0 Such stories of victims being further victimized by the immigration system are not hypothetical. They are real and documented.
10 This American Life, “Reap What You Sow,” aired January 27, 2012 http://www.thisamericanlife.org/radio-archives/episode/456/transcript
This document was prepared for CLINIC in January 2013 by Karen A. Herrling. 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.
This webinar is for legal service providers, immigrant advocates, educators, faith leaders, employers, community organizers, and others helping DREAMers apply for DACA or navigate work, school, and life after receiving DACA. Have you had issues helping DACA applicants meet the education eligibility requirements, obtain juvenile records, or access scholarships or loans? Have you or your DREAMers encountered hesitation, confusion or obstruction from state and local actors in understanding what DACA means and what rights DACA grantees have with respect to employment or access to driver's licenses, higher education or health care? We discuss these issues and suggest strategies for advocating on behalf of individual DREAMers as well as broader efforts to change states' policies and practices. We also consider how lessons learned from DACA will likely be valuable in implementing a future legalization program.
Date recorded: June 26, 2013
Last August, the Obama Administration began implementing its Deferred Action for Childhood Arrivals (DACA) program – a policy through which certain undocumented individuals receive temporary permission to stay in the U.S. for two years as well as the right to apply for employment authorization. After some initial resistance to issuing driver’s licenses to DACA grantees, most states eventually decided to do so. At this time, only two states – Arizona and Nebraska – continue to deny state driver’s licenses or identification cards to DACA recipients.
In November 2012, a number of civil rights organizations filed a class-action lawsuit on behalf of the Arizona DREAM Act Coalition and other young immigrants, challenging the Executive Order issued by Governor Brewer of Arizona on August 15, 2012 that denied state benefits, including driver’s licenses, to DACA grantees. The lawsuit alleged that Arizona’s policy violates the Supremacy and Equal Protection clauses of the U.S. Constitution and requested a preliminary injunction in the form of a court order directing Arizona to stop enforcing its policy of denying driver’s licenses to DACA recipients. On May 16, 2013, a U.S. District Judge rejected the argument that federal law preempted the Governor’s order. However, the court concluded that the plaintiffs’ allegation that they are being denied equal protection is likely to succeed at a future hearing on the full merits of the case. The equal protection argument is based on the fact that DACA recipients are being denied Arizona driver’s licenses while other noncitizens who have received deferred action status and work authorization from the federal government under different programs are issued licenses. According to the court’s order , Arizona can continue its policy for now. However, the court will set a full hearing for the DACA plaintiffs to prove that they are being denied equal protection under Arizona’s law. At that time, the court may order Governor Brewer to halt her policy of denying driver’s licenses to DACA recipients.
Following Governor Brewer’s lead, on August 17, 2012, Nebraska Governor Heineman declared that his state would not issue driver’s licenses or other public benefits to DACA grantees. Two lawsuits have been filed against the Nebraska Department of Motor Vehicles (DMV) which interpreted the Governor’s announcement as a directive to deny licenses to DACA grantees. Like in Arizona, the DMV refuses to accept the work authorization permits of DACA recipients as proof of eligibility for driver’s licenses but continues to issue licenses to noncitizens with deferred action work permits through other programs. The lawsuit filed by the Mexican American Legal Defense and Educational Fund (MALDEF) alleges violations of the Supremacy and Equal Protection clauses of the U.S. Constitution. The case brought by the ACLU of Nebraska alleges that the DMV implemented this policy in violation of the Due Process clause of the state Constitution and circumvented the state’s Administrative Procedures Act, which requires published notice and a public hearing before changing such a policy.
This document was prepared in June 2013 by CLINIC’s State & Local Advocacy Attorney Jen Riddle and Advocacy Intern Casey Lee. This document is provided for informational purposes only and is not intended as legal advice. For questions, please contact Jen at firstname.lastname@example.org or (202) 635-7410.
More than eight months after hearing testimony in the civil trial, a U.S. District Judge has found that Arizona Sheriff Joe Arpaio and the Maricopa County Sheriff’s Office (MCSO) engaged in racial profiling against Hispanic drivers and passengers. According to the decision , the MCSO, led by Sheriff Arpaio, 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 statistical analysis of the MCSO’s traffic stops showed higher stop rates and longer stop times for Latinos, which highlighted a pattern of racial discrimination. 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. A hearing will be held on June 14, 2013 to determine the specific steps the MCSO needs to take to ensure compliance with the court’s order. An attorney for Sheriff Arpaio’s office has indicated that the MCSO will abide by the court’s ruling but plans to appeal the decision.
This is not the only legal challenge to Arpaio’s enforcement policies. On May 10, 2012, the Department of Justice filed a separate lawsuit against Sheriff Arpaio and Maricopa County for allegedly engaging in a pattern or practice of unlawful discrimination against Latinos. This case remains pending. Hopefully, these court actions 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.
On April 25, the U.S. Supreme Court heard oral arguments in Arizona v. United States, a case involving the legal challenge to Arizona's restrictive state immigration enforcement law "SB 1070." The U.S. Conference of Catholic Bishops submitted a "friend of the court" brief in the case, supporting the United States in challenging the law. What did the Bishops say in their brief? What are the interests of the Catholic Church when states choose to enforce federal immigration law on their own terms? What is wrong with a policy of "attrition through enforcement"?
This webinar - held just two days after oral arguments - discusses all of these issues and more. How did the Justices react to arguments by both sides? What is really at stake? The webinar places the legal arguments over SB 1070 in the context of new ways that states and localities are proposing to get more active on immigration.
On December 15th, the U.S. Department of Justice (DOJ) published its extensive factual findings of racism and discriminatory policing at the highest levels of the Maricopa County Sheriff’s Office (MCSO). DOJ observed that not only had racism against Latinos infiltrated almost every aspect of criminal justice in this locality, but MCSO’s bigotry had likely undermined its ability to protect public safety. DOJ articulated serious concerns that “MCSO’s prioritization of immigration enforcement may have compromised its ability to secure the safety and security of Maricopa County residents.” Since shifting its focus to immigration enforcement, DOJ reports, “violent crime rates have increased significantly as compared to similarly situated jurisdictions.” DOJ announced that it will continue to investigate whether MCSO implemented its immigration enforcement “with deliberate indifference to the way in which the program compromises MCSO’s ability to provide effective policing services to Maricopa County’s residents.”
The manner of its enforcement has “poisoned” the relationship between Latinos and MCSO, the Police Executive Research Forum concluded. By MCSO’s own admission, DOJ reported, fully 432 cases of sexual assault and child molestation were improperly investigated over three years.
For those of us who have seen first-hand the devastating fear felt by crime victims (especially by victims of domestic and sexual violence) in jurisdictions where police have gotten into the business of immigration enforcement, the serious attention that DOJ gives to this matter is welcome. DOJ’s findings in Maricopa County should be a wake-up call to the entire nation that we need to think critically about what we mean by security. What actually makes us more secure? Police play a critical public safety function in our communities, but their enforcement of our criminal laws is not all that makes us safe. Stable and vibrant social institutions – like our families, churches and schools – also ensure our security. These institutions serve as bulwarks against criminal behavior and juvenile delinquency. But state-level immigration enforcement undermines these critical institutions. It breaks up families. It makes children afraid to go to school. It empties out Hispanic church congregations. Does this make us more secure?
The majority of “offenders” caught up in federal/state enforcement partnerships like Secure Communities are minor traffic offenders or those who have never been convicted of any crime at all. So public safety is not even being served. We should be very concerned by the trend in states like Alabama to criminalize the everyday lives of immigrants – actions like asking for work, registering a car, or driving to the hospital. The more behaviors the state considers “criminal,” the more our institutions are shattered by Secure Communities.
We should be very careful to avoid assuring ourselves that Maricopa County is a solitary case. DOJ has already found such racism against Latinos to have wormed its way into the policing practices of the New Orleans Police Department, for example. A recent study by the Warren Institute at UC Berkeley provides evidence to suggest that Secure Communities operates nationally with a racial bias.
Racial discrimination against Latinos is real. And it undergirds more laws than we know. Just ask DOJ.
This week, the Department of Homeland Security (DHS) chose to sever its 287(g) immigration enforcement partnership with the Maricopa County Sheriff’s Office (MCSO) based on extensive findings by the Department of Justice (DOJ) that MCSO had engaged in a pattern and practice of civil rights violations. The Department of Justice found overwhelming evidence of discrimination against Latinos in this jurisdiction. Sadly, these findings demonstrate the potential of these federal/state partnerships to serve as a conduit for racially-biased policing that devastates families and communities. “Tying federal civil immigration enforcement to local criminal law enforcement is misguided. It makes our communities less secure, endangers parental rights and family unity, and undermines the federal government’s ability to focus enforcement on truly dangerous criminals,” said Maria M. Odom, CLINIC’s Executive Director. This is particularly true in states like Alabama, which have sought to criminalize the everyday lives and activities of immigrants. Programs like 287(g) and Secure Communities can operate as a force-multiplier for these state efforts.
The DOJ "observed that MCSO has implemented its immigration enforcement program in a way that has created a 'wall of distrust' betweeen MCSO officers and Maricopa County's Latino residents -- a wall of distrust that has significantly compromised MCSO's ability to provide police protection to Maricopa County's Latino residents." [emphasis added] CLINIC welcomes the many steps DHS has announced it will take to ensure that ICE's immigration enforcement programs "are not inadvertently a part of constitutional abuses" as ICE Director John Morton stated in his letter to Maricopa County officials. CLINIC reiterates its call for substantial reforms of the Secure Communities program throughout the United States and calls upon DHS to freeze Secure Communities until these reforms are undertaken.