FAIR Legislative Update August 8, 2011
Department of Justice Sues Alabama
In a complaint filed early last week, the U.S. government filed suit against the State of Alabama to prevent the state’s recently-passed immigration law from taking effect in September. In the filings, the U.S. argued for H.B. 56 to be preliminarily and permanently enjoined from enforcement. The federal government asserts that numerous provisions of Alabama’s law are preempted by federal laws and therefore violate the Supremacy Clause of the Constitution. (U.S. Const., Art. VI, Cl. 2) The complaint also claims one of the provisions violates the Constitution’s Commerce Clause. (U.S. Const., Art. 1, Sec. 8, Cl. 3)
The U.S. government is petitioning the courts to rule that the power to regulate immigration is one of the authorities that is exclusively vested in the federal government, and therefore H.B. 56 is preempted. (U.S. Const. Art. 1, Sec. 8, Cl. 4 assigns the federal government with the power to establish an uniform Rule of Naturalization) The complaint acknowledges that while a “state may exercise its police power in a manner that has an incidental or indirect effect on aliens, it may not establish its own immigration policy or enforce state laws in a manner that interferes with the federal immigration laws.” (U.S. v. State of Alabama & Governor Bentley, p. 2)
The federal government asserts that the state has gone too far with its enactment of H.B. 56, crossing the constitutional line from being able to regulate legitimate areas of local concern into interfering with federal immigration law and corresponding policies of the federal government. By emphasizing maximum enforcement of immigration laws, the government argues, “H.B. 56 ignores the many other objectives that Congress has established for the federal immigration system.” (U.S. v. State of Alabama & Governor Bentley, p. 4) The complaint notes that “assuring effective enforcement of provisions against illegal immigration and unlawful presence is a highly important interest, but it is not the only goal of the federal immigration laws. The laws also take into account other uniquely national interests, including facilitating trade and commerce; welcoming those foreign nationals who visit or immigrate lawfully and ensuring their fair and equitable treatment wherever they may reside; responding to humanitarian concerns at the global and individual levels; and otherwise ensuring that the treatment of aliens in our nation does not harm our foreign relations with the countries from which they come or jeopardize the treatment of U.S. citizens abroad.” (Id. at 10, 11)
In particular, the federal government seeks to immediately prevent the implementation of the following provisions of H.B. 56:
- § 6: This section requires all Alabama state and local law enforcement agencies to enforce H.B. 56 to their full extent. If an enforcement agency refuses to do so, the agency may be subject to a private right of action by any lawful resident of Alabama and be forced to pay a civil penalty. The agency may also face sanctions and a loss of appropriations from the State of Alabama.
- § 10: Section 10 makes it a criminal offense in Alabama to violate federal laws which require aliens to carry their registration cards (8 U.S.C. § 1304) and register with the federal government (8 U.S.C. § 1306(a)). Under federal immigration laws, unlawful presence by itself is not a criminal offense, although it may subject an alien to the civil remedy of removal. (8 U.S.C. §§ 1182(a)(6)(A)(i), 1227(a)(1)(B)&(C)) Federal laws provide that unlawful presence may become an element of a criminal offense when an alien is unlawfully present after having previously being removed or voluntarily departing from the U.S. (8 U.S.C. § 1326) It is unlawful entry into the U.S. that the federal immigration laws have deemed to be a criminal offense. (8 U.S.C. § 1325) Additionally, the federal government asserts its control over alien registration, including some situations where the federal government may have knowledge of an alien’s presence even though the alien may not have proof of their registration. (U.S. v. State of Alabama & Governor Bentley, p. 16)
- § 11(a): This section makes it a crime for an unauthorized alien to solicit work in the state of Alabama.
- § 12: Section 12 allows Alabama law enforcement officers to verify an individual’s immigration status with the federal government if reasonable suspicion of unlawful presence arises during a lawful stop, detention or arrest.
- § 13: Section 13 makes it a crime to knowingly: conceal, harbor or shield an illegal alien from detection; inducing an illegal alien to come to reside in the state; transport an illegal alien in furtherance of the individual’s unlawful presence. It also renders it a state crime to knowingly enter into a rental agreement with an illegal alien.
- § 16: This section penalizes employers who knowingly seek a tax deduction for wages paid to illegal aliens.
- § 17: Section 17 allows lawful citizens of Alabama a private right of action to sue employers who have discharged or failed to hire a citizen employee while hiring or retaining an alien unauthorized to work in the U.S.
- § 18: This section requires motor-vehicle drivers to carry a license with them. If an individual is arrested for driving without a license and an officer cannot verify that the individual actually has a valid driver’s license, authorities must initiate an inquiry into the individual’s immigration status and may detain the person while verification is pending.
- § 27: This provision prevents Alabama state courts from enforcing the terms of a contract of which an illegal alien is a party to the contract, and the other individual had knowledge that the alien was unlawfully present at the time of the contract.
- § 28: Section 28 requires public elementary and secondary schools to determine the citizenship status of enrolling students for reporting purposes.
- § 30: This section makes it a felony for an illegal alien to enter into a business transaction with a state or local government within Alabama.
By moving for a preliminary injunction, the U.S. is asking the federal courts in the Northern District of Alabama to prevent H.B. 56 from taking effect until a full trial can be heard on the merits of the case. The motion is scheduled to be heard on August 24. (The Birmingham News, August 4, 2011)
Civil rights and religious groups have also filed suit against the state. In addition, Mexico and 15 other nations filed amicus briefs to support the U.S. government’s suit against Alabama. (The Birmingham News, August 4, 2011) The law’s original sponsor, Rep. Micky Hammon, continues to stand by H.B. 56. “The Obama administration and the federal bureaucrats have turned a blind eye toward the immigration issue and refuse to fulfill their constitutional duty to enforce laws already on the books.” Hammon said. “Now, they want to block our efforts to secure Alabama’s borders and prevent our jobs and taxpayer dollars from disappearing into the abyss that illegal immigration causes.” (Associated Press, August 2, 2011)
On Friday, the Department of Homeland Security (DHS) sent letters to governors of the 39 states participating in Secure Communities, informing them that it was rescinding their memorandums of agreement to participate in the fingerprint-sharing program. (LA Times, Aug. 6, 2011) The rescissions, however, do not signal an end to the program, but rather an acknowledgement by the government that Secure Communities is a mandatory program that does not require an agreement with the state. (Id.) “This change will have no effect on the operation of Secure Communities in your state,” clarified Immigration and Customs Enforcement (ICE) Director, John Morton, in the letters.
The open-borders lobby was outraged over the announcement. Chris Newman, Legal Director of the National Day Laborer Organizing Network (NDLON) alleged in a statement, “All the deception in the world can’t hide the fact that the S-Comm [Secure Communities] is horrible policy. By entangling local police in immigration enforcement, S-Comm is criminalizing immigrants and leading to the Arizonification of the country.” (NDLON Press Release, Aug. 5, 2011) Margaret Huang, Executive Director of the Rights Working Group, argued, “By continuing to support this program they [the U.S. government] are sanctioning racial profiling, eroding the trust local law enforcement agencies have built with communities of color and showing the international community that our immigration system does not respect the basic human rights of all persons in our country.” (Rights Working Group Press Release, Aug. 5, 2011)
The decision by federal immigration officials to rescind the separate state agreements and continue to set up the program unilaterally comes on the heels of several governors insisting the program was voluntary. Since May, the governors of New York, Illinois, and Massachusetts—states with some of the largest illegal alien populations in the U.S.—have announced the cancellation or suspension of their agreements to participate in the program. (New York Times, Aug. 6, 2011; see also FAIR Legislative Update, June 6, 2010) The federal announcement could also affect legislative efforts in California to prevent the state from participating in Secure Communities. (Fox News Latino, May 27, 2011) There, the California Assembly passed AB 1081, which would require local jurisdictions wishing to participate in Secure Communities to do so expressly by passing a local ordinance. (See AB 1081 at §2) AB 1081 would also limit the submission of fingerprints to those convicted of – rather than arrested for – a crime. (Id.)
According to DHS, Secure Communities is scheduled to take effect nationwide by 2013.
Monday, the U.S. House of Representatives passed two immigration bills: H.R. 398 and H.R. 1933. (See Roll Call Votes 684 and 685) The first bill, H.R. 398, is sponsored by Immigration Subcommittee ranking chair Rep. Zoe Lofgren (D-CA). H.R. 398 would amend the Immigration and Nationality Act to toll (stop from running) the 90-day period in which an alien and petitioning spouse must file a petition and complete an interview to remove the alien’s conditional legal permanent resident status while either the alien or petitioning spouse is a member of the U.S. military serving abroad. (H.R. 398 at § 1(a)) Under current law, when a legal resident marries a foreign national, the alien spouse is granted lawful permanent residence on a conditional basis for the first two years they are in the country. (INA § 216(a)(1)) The Attorney General removes this conditional status only after he makes a favorable determination that the marriage between the alien spouse and petitioner is legitimate. (INA § 216(c))
The second bill, H.R. 1933, is sponsored by Judiciary Chair Lamar Smith (R-TX). H.R. 1933 would reinstate an expired program that admits nonimmigrant nurses to work in “health professional shortage areas.” The expired program, which terminated in 2009, provided for 500 nonimmigrant visas each fiscal year to aliens who obtained a nursing license, passed the requisite exam, and were otherwise eligible. (See the Nursing Relief for Disadvantaged Areas Act of 1999, Public Law 106-95) Each alien was granted an admission period of three years under the prior Act. Similarly, H.R. 1933 would allow the government to issue 300 visas to eligible foreign nurses each year for the next three years. (H.R. 1933 at §§ 1(a)-(b)) At the end of this initial period, admitted nurses can extend their stay for an additional three-years. (Id. at § 1(a)) Under the bill, visa recipients may also accept new employment as a nurse upon the successful petition of a new hospital employer. (Id. at § 1(c))
Both bills have been sent over to the Senate for action. Stay tuned to FAIR for updates…