FAIR Legislative Update August 27, 2012

August 27, 2012

ICE Agents Sue Homeland Security Over Obama Amnesty

A group of U.S. Immigration and Customs Enforcement (ICE) agents filed a complaint Thursday against Department of Homeland Security (DHS) Secretary Janet Napolitano and ICE Director John Morton alleging they violated federal law by using prosecutorial discretion to grant administrative amnesty to broad classes of illegal aliens. (Washington Examiner, Aug. 23, 2012)

On June 15, 2012, Secretary Napolitano issued a directive granting deferred action and work authorization to illegal aliens 30 and younger who meet criteria similar to that of the failed DREAM Act. (FAIR Legislative Update, June 19, 2012) The previous year, on June 17, 2011, Director Morton issued a policy memo instructing ICE agents to ignore the vast majority of illegal aliens not convicted of a crime. (See Morton Memos Webpage)

The complaint is the first to challenge the Administration’s use of prosecutorial discretion. The complaint makes six allegations:

Secretary Napolitano’s directive violates federal law by requiring ICE agents to decline to place certain illegal aliens into removal proceedings, despite federal law requiring removal proceedings be initiated. (Cmplt. at ¶ 55-58)
Secretary Napolitano’s directive violates federal law because deferred action is a benefit which is not authorized in statute. Neither is its blanket conferral upon a subset of the illegal alien population authorized by regulation. (Id. at ¶ 62-65)
Work authorization is a benefit under federal law that cannot be granted by prosecutorial discretion. (Id. at ¶ 74)
Secretary Napolitano’s directive is a legislative act that the Administration granted through executive action, thus violating the U.S. Constitution’s sole grant of legislative power to Congress. (Id. at ¶ 88-89)
By granting deferred action and ignoring a large class of illegal aliens, the executive branch is violating its obligation to faithfully execute the law. (Id. at ¶ 93-94)
Granting the benefits of deferred action and work authorization to a class of illegal aliens while bypassing the formal rulemaking process violates the Administrative Procedure Act. (Id. at ¶ 98-101)

The ICE agents state they have suffered several harms causing them to file the complaint. Not only do they believe that by following the Administration’s directive they will be violating their oath of office, but they also believe they will be violating U.S. immigration law. Most alarmingly, they fear “they will be disciplined or suffer other adverse employment consequences” if they fail to go along with the amnesty, the complaint citing specific instances of such retaliation already. (Id. at ¶ 43-44, 47)

True immigration reformers in Congress issued statements in support of the ICE agents. Sen. Jeff Sessions (R-AL) said, “It is a sad day when our nation’s law enforcement officers are left with no recourse but to file suit against the Administration and its political appointees…The men and women who swore an oath to uphold the law and protect the public safety are now forced to ignore the law if they are to remain secure in their jobs.” (Sen. Sessions Press Release, Aug. 23, 2012) House Judiciary Chairman Lamar Smith (R-TX) asserted, “The Obama administration’s amnesty program not only rewards lawbreakers, it also forces ICE agents to violate federal law. ICE agents should enforce our immigration laws and apprehend illegal immigrants. But the Obama administration makes it impossible for ICE agents to do their jobs.” (Judiciary Committee Press Release, Aug. 23, 2012)

Stay tuned to FAIR as the lawsuit unfolds…

Appeals Court Enjoins Alabama Schools from Collecting Immigration Data

Last week, the Federal Court of Appeals for the 11^th Circuit issued a ruling that blocked Alabama’s K-12 schools from collecting immigration data from all students who enroll. (HICA v. Gov. of AL, No. 11-14535, (11th Cir. 2012)) The ruling was the result of three different lawsuits brought by numerous plaintiffs – including the U.S. Department of Justice – in an attempt to strike down the laws. For efficiency, however, the court consolidated the cases, heard them at the same time, and then issued all three opinions last Wednesday.

Section 28, one of HB 56’s best-known provisions, requires K-12 schools in the state to collect the immigration status (citizens or otherwise) from all students who enroll. Importantly, however, Section 28 does not deny enrollment to any child based on immigration status. Nevertheless, the 11^th Circuit still held that Section 28 violates the Equal Protection Clause of the Constitution, based on a misapplied interpretation of the landmark case, Plyler v. Doe, 457 U.S. 202 (1982).

In Plyler, the Supreme Court struck down Texas legislation that charged illegal aliens tuition to attend K-12 schools. While clarifying that “[p]ublic education is not a ‘right’ granted individuals by the Constitution” (Id. at 221), the Plyler Court found that Texas had neither demonstrated that its law met an articulated policy of Congress (Id. at 221, 225-226) nor had not met its burden of demonstrating that the imposition of tuition on illegal alien students met a “substantial” goal of the state. (Id. at 223-224, 230) The Court found that there was “no evidence in the record that illegal entrants impose any significant burden on the State’s economy” and that the state had not shown that illegal aliens imposed a special burden on the state’s ability to provide high-quality education. (Id. at 229-230)

The 11^th Circuit, however, misapplied this reasoning to Alabama’s HB 56, finding it made no difference that Section 28 does not deny enrollment to any child based on immigration status. The Court argued that Section 28 of HB 56 “imposes similar obstacles to the ability of a child to obtain an education” as the Texas law in Plyler because illegal alien parents will not enroll their children if divulging immigration status – expressly protected by the state’s privacy laws – is part of the process. Moreover, the 11^th Circuit outright ignored the language in Plyler that clearly states there is no constitutionally guaranteed right to education and held that the mere interest of the people of Alabama in wanting to know what they are spending on the education of illegal aliens was not “substantial enough to justify the significant interference with the children’s right to education under Plyler.” (HICA at p. 20, 25)

The 11^th Circuit also upheld the district court’s injunction on numerous other provisions of Alabama’s immigration enforcement law, HB 56. These include:

Section 10, which provides criminal penalties for aliens for failing to register as required by federal law.
Section 11, which provides criminal penalties for illegal aliens who solicit work.
Section 13, which provides criminal penalties for concealing, harboring or transporting illegal aliens.
Section 16, which prohibits employers from deducting from their state taxes wages paid to illegal workers.
Section 17, which authorizes private individuals to sue employers for not hiring a legal worker while employing an illegal worker.
Section 27, which generally prohibits state courts from enforcing contracts knowingly entered into with illegal aliens (with certain exceptions).
Section 28, which requires K-12 schools to collect data on the immigration status of all children enrolled.

At the same time, the 11^th Circuit upheld three core provisions of HB 56:

Section 12(a), which requires state and local law enforcement officers, during a lawful stop, detention, or arrest, to check the immigration status of an individual they reasonably believe is unlawfully in the United States.
Section 18, which, as amended by HB 658, requires all driver’s to display their driver’s license to a proper state official upon request and, if not, requires the official to make a reasonable effort within 48 hours to determine the individual’s immigration status.
Section 30, which, as amended by HB 658, prohibits illegal aliens from entering into certain “public records transactions” with the state, generally defined as obtaining licenses, such as driver’s licenses, business licenses, and professional licenses.

Alabama Governor Robert Bentley responded positively to the court’s decision. “The essence of Alabama’s immigration law has been upheld by today’s ruling. The Court is recognizing the state’s authority to inquire on immigration status in certain circumstances. The Court is also allowing the public records transaction provision to continue to be enforced. (Gov. Bentley press release, Aug. 21, 2012) At this point it is uncertain whether the plaintiffs –which include the U.S. Department of Justice – or the State of Alabama will appeal the 11^th Circuit’s ruling to the United States Supreme Court.

More Governors Voice Opposition to Administration’s Deferred Action Initiative

Texas Governor Rick Perry and Nebraska Governor Dave Heineman are following Arizona Governor Jan Brewer’s lead by expressing their opposition to supplying driver’s licenses and other taxpayer-funded benefits to illegal aliens who have been granted deferred action status under the Obama Administration’s latest amnesty initiative.

Through its new “Deferred Action for Childhood Arrivals” (DACA) program, the Obama Administration is now granting de facto legal status and employment authorization to nearly two million illegal aliens under the age of 30. (FAIR Legislative Update, June 19, 2012; see also DHS webpage on Deferred Action, Aug. 2012) Given that many states accept federally-issued employment authorization documents as proof of legal presence, DACA could also serve as a gateway to driver’s licenses and other public benefits.

Gov. Perry, who decried the program as “a slap in the face to the rule of law and…separated powers,” sent a letter to Texas Attorney General Greg Abbott clarifying that deferred action in no way confers legal status, and therefore should not be used to determine eligibility for public benefits. (Gov. Perry Letter to Attorney General Abbott, Aug. 16, 2012; see also FOX News Latino, Aug. 21, 2012) Under Texas law, a driver’s license applicant “who is not a citizen of the United States must present…documentation issued by the appropriate United States agency that authorizes the applicant to be in the United States….” (See Texas Transportation Code § 521.142)

Nebraska Governor Dave Heineman echoed Gov. Perry’s s sentiments. He assured Nebraska citizens in a statement that “Nebraska will continue its practice of not issuing driver’s licenses, welfare benefits or other public benefits to illegal immigrants unless specifically authorized by Nebraska statute.” (Gov. Heineman Statement, Aug. 17, 2012)

Both Govs. Perry and Heineman made their declarations on the heels of Arizona Gov. Jan Brewer’s issuance of an executive order prohibiting state agencies from granting taxpayer-funded benefits, including driver’s licenses, to illegal aliens benefitting from DACA. (See FAIR Legislative Update, Aug. 20, 2012; see also Politico, Aug. 16, 2012)

Republican Platform Proposes Guest-Worker Program, Enforcement Measures

The Republican National Convention’s platform committee met last week to create the Republican Party’s 2012 platform, a statement of the Party’s policy positions for the next four years. Alarmingly, the proposed platform ignores the over 23 million unemployed and underemployed U.S. citizens and legal residents by calling for a “legal and reliable source of foreign labor through a new guest-worker program.” (National Journal, Aug. 21, 2012) In fact, the U.S. already admits close to one million guest-workers annually. (See U.S. Dept. of State FY 2011 Annual Report)

However, while the platform proposes a new guest worker program, it also seeks greater immigration enforcement measures. Specifically, the platform calls for prohibitions on sanctuary cities and in-state tuition for illegal aliens, an end to the Justice Department’s attack on state enforcement measures, completion of the fence along the U.S.-Mexico border, and a requirement that all U.S. businesses use the E-Verify program to verify the employment eligibility of their employees. (Associated Press, Aug. 24, 2012)

The Convention’s delegates plan to vote on the platform this week. (C-Span, Aug. 22, 2012)

California Legislature Passes Anti-Detainer Bill

On Friday, the California Assembly passed AB 1081, a bill that prohibits state and local law enforcement agents from honoring U.S. Immigration and Customs Enforcement (ICE) detainers unless certain conditions are met. (See AB 1081 Bill History; see also Oakland Tribune, Aug. 25, 2012) Under federal regulation, once ICE issues a detainer for an alien in state or local custody for an independent offense, jail officials shall maintain custody for up to 48 hours (excluding weekends and holidays) to allow ICE agents to pick up the alien. (See 8 C.F.R. 287.7(d))

If signed into law, the bill would add a new section to the California Government Code limiting the circumstances under which state and local officers can hold an illegal alien for ICE. The bill grants law enforcement officials the discretion to detain an individual pursuant to an ICE detainer after the individual is eligible for release from custody only if the following conditions are satisfied:

The individual has been convicted of a serious or violent felony according to a criminal background check or documentation provided to the law enforcement official by ICE or is currently in custody for a charge of a serious or violent felony by a district attorney; AND
The continued detention of the individual on the basis of the detainer would not violate any federal, state, or local law or policy. (See AB 1081 at § 2)

The bill now goes to Gov. Jerry Brown to sign into law. As Attorney General of California, Gov. Brown opposed sanctuary cities and the San Francisco County Sheriff’s efforts to opt out of the practice of honoring ICE detainers. (See FAIR Election Report p. 136, Nov. 2010)