FAIR Legislative Update October 17, 2011
On Friday, the 11th Circuit Court of Appeals ruled that Alabama may continue to enforce most of its anti-illegal immigration law, H.B. 56. (See 11th Circuit Court of Appeals Order, Oct. 14, 2011) The Department of Justice (DOJ) had asked the 11th Circuit to enjoin much of H.B. 56 while it appeals the September 28 district court decision that allowed the law to take effect September 29 as planned. (See FAIR's Legislative Update, Oct. 3, 2011, for more information on the district court ruling.)
Of the provisions in H.B. 56 challenged by the DOJ, the 11th Circuit let the following stand:
- Section 12, which requires local law enforcement to make a reasonable attempt to check immigration status during a lawful stop, "when practicable", when there is reasonable suspicion the individual is an illegal alien.
- Section 18, which requires local law enforcement to make a reasonable effort to verify the immigration status of a person who is arrested for driving without a license.
- Section 27, which bars the enforcement of contracts entered into when one party knows the other is an illegal alien.
- Section 30, which provides that it is a felony for illegal aliens to enter into a "business transaction" with the state or political subdivisions.
However, the 11th Circuit Court of Appeals also enjoined the following two provisions:
- Section 10, which provides that an illegal alien who fails to comply with the federal alien registration requirements found in 8 U.S.C. § 1304(e) and/or 8 U.S.C. § 1306(a) is guilty of a misdemeanor under state law.
- Section 28, which requires public schools to gather immigration status information from students upon enrollment, based on birth certificates, and compile and submit non-identifiable data related thereto to the state.
Interestingly, the 11th Circuit's order contains no discussion as to why it upheld or enjoined any of these provisions. As the legal standard for issuing an injunction largely rests on the likelihood the challenger will prevail on the merits, the decision implies that the 11th Circuit felt the DOJ would likely succeed in striking down Sections 10 and 28 on the merits, but that it would likely fail to strike down the remainder. The Court is not required to issue a supplemental document explaining its decision more fully. The Court of Appeals did note that its enjoinder of Sections 10 and 28 does not bind the court with respect to consideration of the merits.
The next step in litigation over H.B. 56 will likely be a ruling from the District Court on the merits of the Department's challenge to the law. Briefs in that case are due at the end of November, with a decision to come sometime thereafter.
On October 12, 2011, the ACLU, representing a slew of groups and individuals, filed a lawsuit against the State of South Carolina seeking to enjoin South Carolina Senate Bill 20 ("SB 20"). Like lawsuits brought by the ACLU in Arizona, Utah, Georgia, Alabama and Indiana, this lawsuit seeks to prevent the State from enforcing its immigration law.
SB 20 is based on Arizona's SB 1070 and Alabama's HB 56 and contains similar provisions. These provisions include:
- a ban on sanctuary policies,
- a state criminal provision for failing to comply with federal alien registration laws,
- a state harboring and transporting criminal provision based off of a similar federal harboring and transporting statute, 8 U.S.C. § 1324(a),
- a requirement that state and local officers verify an individual's immigration status during a lawful stop for a criminal offense if the officer has a reasonable suspicion that the person is unlawfully present, and
- a requirement that jailers verify the immigration status of inmates with the federal government.
SB 20 also requires public and private employers to use E-Verify and penalizes employers who knowingly hire unauthorized aliens by suspending their business licenses.
The claims brought by the ACLU are similar to the ones brought against the other states. The ACLU alleges that that federal law preempts SB 20 and that SB 20 violates the Fourth Amendment's protections against unreasonable search and seizure. The ALCU also alleges that SB 20 violates the Fourteenth Amendment's Equal Protection and Due Process Clauses. The ACLU has not challenged South Carolina's authority to require employers to use E-Verify and its ability to suspend the business licenses of employers that knowingly employ unauthorized aliens, likely in light of the Supreme Court's decision in Chamber of Commerce v. Whiting.
In response to the lawsuit, South Carolina Attorney General Alan Wilson expressed confidence in the law. "We have a strong opinion this law is constitutional and we're prepared to defend it to the U.S. Supreme Court if we have to." (UPI, Oct. 13, 2011) Governor Nikki Haley likewise showed confidence in the law and questioned the motives of the plaintiffs in the case. A spokesman for Haley stated, "As the daughter of immigrants who came to this country legally, Gov. Haley understands that no American value is more sacred than the rule of law. That's what this is about. Nothing more, nothing less. And if the ACLU was really about what they claim to be, they'd stay out of our business and let us enforce our laws." (ABC News 4, Oct. 16, 2011)
At this point, neither party has filed briefs nor has the Court issued an order indicating when briefs are due. However, SB 20 is scheduled to take effect on January 1, 2012, it is likely that the ACLU will request a temporary injunction.
Immigration and Customs Enforcement (ICE) Director John Morton faced serious questioning about the Obama Administration's backdoor amnesty as he testified before the House Immigration Policy and Enforcement Subcommittee last Wednesday. Similar to last week's hearing before the House Border and Maritime Subcommittee, at issue were a string of policy memos issued by Director Morton, as well as the Administration's recent announcement it would review and release those in deportation proceedings that do not meet the agency's "priorities." (See FAIR Legislative Update, Oct. 11, 2011)
Committee Members wasted no time in asserting that the Obama Administration ‘s actions are an attempt to Congress and its inherent authority to set immigration law. "Since comprehensive immigration reform has failed to pass in the legislative branch, the Obama Administration has now decided to implement various programs that will benefit potentially millions of illegal immigrants," asserted Subcommittee Chairman Elton Gallegly (R-CA) in his opening statement. "It is Congress' job to create immigration policy and it is the President's job to enforce it … This is a clear abuse of discretion," he concluded.
Director Morton, however, denied that the Administration had abused its discretion. "We are simply exercising our discretion on a case by case basis and very low priority cases, so that we can do more to remove criminals, secure the border, and sanction those who [game] the system," Morton testified. "This discretion does not confer permanent status on anyone nor does it prevent the arrest, detention, or removal of anyone where needed," he claimed.
Judiciary Committee Chairman Rep. Lamar Smith (R-TX) pointed out that even if the discretion exercised by ICE does not confer permanent legal status on illegal aliens, it nonetheless permits them to remain in the country and makes them eligible for work authorization. "Under your memos, as I understand it thousands and perhaps hundreds of thousands of illegal immigrants might be eligible for deferred action," he stated. "To the extent that they are granted deferred action, aren't they then eligible to get work authorization as well?" Morton did not disagree, but rather argued that ICE is not the agency tasked with granting work authorization and that he felt only a small number of illegal aliens would benefit.
Members also questioned Morton on President Obama's level of involvement in drafting the memos. "Did anyone in the White House direct you to issue these?" asked Rep. Ted Poe (R-TX). Morton admitted that not only did the White House review the memos prior to his issuance of them, but that White House Director of Intergovernmental Affairs and former National Council of La Raza employee, Cecilia Muñoz, was involved in preparing them.
Over 40 suspected illegal aliens arrested on felony charges have been released from Cook County jails since the implementation last month of a county ordinance directing local law enforcement officials to ignore U.S. Immigration and Customs Enforcement (ICE) detainers. (Forbes, Oct. 4, 2011; Huffington Post, Sept. 10, 2011) The detainers, sent to local jails, request officials detain illegal aliens for an additional 48-hour statutory period after local jurisdiction ceases so that an ICE officer may place the alien into federal custody.
The Commission passed the ordinance less than a month after the Chicago-based open borders group, National Immigrant Justice Center (NIJC), filed a suit against the Department of Homeland Security challenging the constitutionality of ICE detainers. (NIJC Website, Aug. 12, 2011) The lawsuit undoubtedly influenced the Cook County Commissioners who voted in favor of the ordinance. "What we are doing is righting a wrong against people who are on the soil of Cook County under the protection of the U.S. Constitution," said Commissioner Larry Suffredin, a Democrat who supported the measure. (Forbes, Oct. 4, 2011)
Following Cook County's lead, New York City Council Speaker Christine Quinn has introduced similar legislation. The bill, Int. No. 656, provides that the New York City Department of Corrections shall not use Department resources to honor ICE detainers by either: (1) holding an individual beyond the time when such individual would otherwise be released from the department's custody or (2) notifying federal immigration authorities of such individual's release, provided that such individual meets certain criteria. (Int. No. 656 at § 2) Illegal aliens that would be shielded under this law include those who have: never been convicted of a crime (misdemeanor or felony), are not defendants in a pending criminal case, have no outstanding warrants, are not subject to final orders of removal, and are not identified as a confirmed match in the terrorist screening database. (Id.)
New York City Mayor Bloomberg has thrown his support behind the bill. "Our goal is always to protect public safety and maintain national security, while ensuring New York remains the most immigrant-friendly city in the nation," said John Feinblatt, the mayor's chief policy adviser. (New York Times, Sept. 30, 2011) "This strikes the right balance." (Id.)
The Department of Justice announced early last week that it had arrested an Iranian-American man attempting to bribe a Mexican drug cartel to murder the Saudi Arabian ambassador to the U.S. (The New York Times, Oct. 11, 2011) Federal officials charged that the defendant, Mansour J. Arbabsiar, offered to pay a Drug Enforcement Administration (DEA) informant, who he thought was a member of the Los Zetas drug cartel, $1.5 million to carry out the assassination by bombing at a Washington, D.C. area restaurant. The meetings between the suspect and the undercover DEA informant reportedly took place just south of the Rio Grande Valley in Reynosa. (Valley Central, Oct. 14, 2011)
The plot is particularly disturbing to national security experts, in part because the Los Zetas drug cartel already poses a very real threat to the U.S. Raul Benitez, a Mexican scholar, reported that the Los Zetas have “clearly become the biggest, most serious threat to the nation's security,” and noted that the DEA considers the cartel to be the “most technologically advanced, sophisticated and violent of these paramilitary enforcement groups” in Mexico. (International Business News, Oct. 13, 2011) They have also proven themselves to be one of the most difficult gangs to stop. (Id.)
Secretary of State Hillary Rodham Clinton expressed outrage at the brazen nature of this latest terror plot. “The idea that [terrorists] would attempt to go to a Mexican drug cartel to solicit murder-for-hire to kill the Saudi ambassador, nobody could made that up, right?” she asked. (The New York Times, Oct. 11, 2011) Although Mr. Arbabsiar has been arrested and charged by the Department of Justice, the incident proves the importance of the vulnerability of the U.S. Southern border in protecting against attacks from all adversaries of the U.S.
Members of the House Judiciary Committee will be reviewing “Fairness for High-Skilled Immigrants Act” (H.R. 3012) during a mark-up session scheduled for next week. The bill, which was introduced by Rep. Jason Chaffetz (R-UT) in September, would not increase the over-all number of green cards issued, but rather reduce restrictions on per-country quotas in an attempt to reduce the backlog of applications from certain countries.
Under current law, no more than seven percent of employment-based green cards or family-based green cards may come from one country in any year. 8 U.S.C. § 1152 H.R. 3012 would eliminate the per-country cap on employment-based green cards and would also increase the per-country cap on family-based green cards from 7 percent to 15 percent. The former change would likely increase the number of employment-based green cards issued to applicants from India and China, as their nationals apply for such green cards at the highest rate. The latter change would help individuals who have applied for family-based visas from certain countries where there is particularly high demand, such as Mexico and the Philippines. (See also 8 U.S.C. § 1153(b)) However, as the percentage of the population becomes increasingly dominated by the employment-based applicants from India and China, the family-based visas would increase in corresponding nations as well. The bill gradually phases in these changes over a three-year period in order to protect businesses and organizations who have made arrangements based on the current capped system.
In his press release announcing the introduction of his bill, Representative Chaffetz stated that he is committed to helping fix legal immigration. “Per country limits, he said “make no sense in the context of employment-based visas. Companies view all highly skilled immigrants as the same regardless of where they are from — be it India or Brazil. By removing per country limits, American companies will be able to access the best talent.”
The bill will be reviewed by House Judiciary Committee members next Wednesday.