FAIR Legislative Update June 13, 2011
North Carolina House Passes Mandatory E-Verify
On June 8, 2011 the North Carolina House passed mandatory E-Verify legislation by a vote of 68 to 43. House Bill 36 requires the use of E-Verify by private employers with 25 or more employees, public contractors and subcontractors, counties, municipalities and state agencies. However, employers that hire exclusively seasonal employees for less than 90 days out of the year are exempt. H.B. 36 also allows any person with a good faith belief that an employer is not complying to report the employer to the Attorney General. The Attorney General must investigate all valid complaints, but may not investigate complaints based solely on race.
Employers that do not comply with the E-Verify requirement are subject to civil penalties of $1,000 for a second violation or $2,000 for a third violation. However, these sanctions may raise legal questions. Under federal law, states are expressly preempted from “imposing civil or criminal sanctions (other than through licensing and similar laws)” upon employers that employ illegal aliens. (INA §274A(h)(2); 8 U.S.C. §1324a(h)(2)) Though the penalty in H.B. 36 is for the failure to comply with requirements to utilize E-Verify and not the employment of unauthorized aliens, it is uncertain whether this type of sanction would be preempted by federal law.
After its passage in the North Carolina House, HB 36 was sent to the Senate where it now awaits action in the Commerce Committee.
Mexico and thirteen Latin American countries signed onto an amicus (“friend of the court”) brief filed June 2, 2011, asking a federal judge to strike down Utah’s new immigration enforcement law, HB 497. (Salt Lake Tribune, June 7, 2011) The original plaintiffs, the American Civil Liberties Union (ACLU) and National Immigration Law Center (NILC), sued the State in May, claiming HB 497 is “preempted” by federal law. They argue: (1) HB 497 impermissibly regulates immigration, (2) parts of HB 497 are inconsistent with federal law, and (3) Mexico has made a “formal complaint” about HB 497. (Plaintiff’s Complaint, filed May 3, 2011; See FAIR Legislative Update, May 16, 2011) The plaintiffs also claim that HB 497 will lead to unlawful detentions and racial profiling by Utah officers, as well as violates the federally guaranteed “right to travel.” (Id.)
HB 497 contains enforcement provisions similar to Arizona’s SB 1070, which requires law enforcement officers to verify a person’s immigration status if that person has been lawfully stopped and that person is not carrying one of a handful of documents, including a valid state driver’s license from a state that does not give licenses to illegal aliens. (See FAIR Legislative Update, May 16, 2011)
In the 21-page brief, the foreign governments—which include Argentina, Peru, Nicaragua, El Salvador, Chile, Paraguay, Uruguay, Honduras, Colombia, Costa Rica, Ecuador, Guatemala and Brazil—argue HB 497 harms international relations with the United States and should be ruled unconstitutional. (Salt Lake Tribune, June 7, 2011) The brief argues that the law “substantially and inappropriately burdens the consistent sovereign-to-sovereign relations between Mexico and the United States of America, interfering with the strategic diplomatic interests of the two countries and encouraging an imminent threat of state-sanctioned bias or discrimination.” (Id.) The brief continues, “Mexico has a right to protect the interests of its nationals within the limits of international law. Mexico seeks to ensure that its citizens present in the U.S. are accorded the human and civil rights granted under the U.S. Constitution and affirms that HB 497 threatens the human and civil rights of its nationals.” (Id.)
Utah Representative Chris Herrod, a co-sponsor of the bill, called the brief “ridiculous,” saying “I would like to ask the Mexican Government why they think their people are more important than other people trying to come here from other countries.” (Id.)
On May 10, 2011, the day the law was to go into effect, Federal District Judge Clark Waddoups issued a temporary restraining order of HB 497, preventing its implementation. (ABC News, May 11, 2011) The hearing for the case has been scheduled for July 14, 2011. (Id.) Stay tuned to FAIR for updates in this ongoing case…
In an attempt to prevent further backlash, Utah State Senator Curt Bramble (R-Provo) announced last week that he plans to introduce amendments next session to Utah’s controversial guest worker amnesty law, HB 116. (Salt Lake Tribune, June 8, 2011)
News sources report that while Sen. Bramble intends to keep the guest worker program intact – despite its direct conflict with federal law – he now says he wants to make it more difficult for illegal aliens to obtain a work permit. One amendment he is proposing would require applicants for the guest-worker permit to continuously “have an established domicile” in the state prior to May 10, 2011, rather than merely “live in” the state as currently provided for in the law. (HB 116 § 13; Salt Lake Tribune, June 8, 2011) According to Bramble, this amendment “wouldn’t necessarily preclude the agricultural worker, but it would have to be someone who is already here and intends to stay here.” (Salt Lake Tribune, June 8, 2011)
Another amendment would further alter the criteria for an illegal alien to qualify for a permit. HB 116 currently disqualifies illegal aliens who do not have health insurance or have medical debt. (HB 116 § 13) Bramble’s anticipated amendment would change this section by disqualifying those who have general debt they are “not actively working to resolve” (rather than just “medical debt”). (Salt Lake Tribune, June 8, 2011)
A third proposed amendment would require illegal aliens applying for a guest worker permit to submit to the state a list of all the tax ID numbers they have used to determine whether an applicant has ever used a stolen identification number to get a job. (Id.) If so, such information would disqualify them and would be turned over to law enforcement. (Id.) Finally, under the proposed amendments children age 16 or older belonging to a family applying for a guest-work permit must undergo the same criminal background checks as their parents. (Id.)
Sen. Bramble’s announcement that he intends to offer amendments to the guest worker amnesty law comes at a time when delegates to the June 18th Utah State Republican Party Convention threaten to devise a resolution that would repeal the law. (Salt Lake Tribune, June 8, 2011) “Our primary opposition to HB 116 is that it violates the Constitution and the Utah Republican Party platform by granting legal status to those who are here illegally,” asserted Keri Witte, sponsor of the resolution to repeal the law. (Daily Herald, June 10, 2011) She continued, “Since the so-called guest worker provision is such a key component of HB 116, it needs to be repealed and replaced. Unless and until Curt Bramble expresses willingness to address that key issue, I don’t expect he will garner much more approval.” (Id.)
The U.S. Chamber of Commerce, one of the nation’s largest business lobbies, released a report last week detailing its recommended “Steps to a 21st Century U.S.- Mexico Border.” (U.S. Chamber of Commerce Press Release, June 8, 2011) The report addresses border issues that most affect the Chamber’s members and recommends action on topics such as trade, security, travel and immigration. (See Steps to a 21st Century U.S.-Mexico Border) The Chamber asserts that the U.S. and Mexico trade more than $1 billion worth of goods every day, and as such, building a strong and stable relationship with Mexico is of paramount importance to U.S. business. (Id.)
The Chamber of Commerce report makes clear that business industries in the U.S. are affected by the escalating violence and turmoil that have come to characterize our nation’s Southern border. Drug cartel activity has made “extreme criminal behavior” a prominent threat to U.S. business trade with Mexico. (Id.) The report states that significant sums of money are being spent to secure employees and provide armored transportation. Companies conducting business with Mexico must factor in the high costs of protecting both their employees and their product, a cost which is being passed on to the consumer.
Despite these dangers, the Chamber’s report still promotes the controversial cross-border trucking provisions of NAFTA. The report states that eighty percent of U.S. trade products with Mexico are carried across the border by truck. (Steps to a 21st Century U.S.-Mexican Border, p. 5) The report, however, does not address the many concerns which have delayed implementation of the program for well over a decade, including concerns about drug-related violence. (See FAIR Legislative Update, March 7, 2011; FAIR Legislative Update, Jan. 10, 2011)
The Chamber also promotes expanding the Merida Initiative. The Merida Initiative is an agreement through which the U.S. has agreed to support the governments in Mexico, Central America, Dominican Republic, and Haiti in their respective battles against organized crime. (See U.S. Department of State) The purpose of providing funds and other resources to these countries is to promote the national security interest of the U.S.; prevent further violence from spilling over the border; and deter drug and gang-related transnational criminal organizations from coming into our country. (See Merida Initiative Fact Sheet)
Finally, the report agrees that “illegal immigration is one of the most significant problems facing our border today.” (Steps to a 21st Century U.S.-Mexican Border, p. 20) The Chamber calls for immigration reform to promote security in the U.S. and create economic growth, but argues that increasing legal immigration will actually decrease illegal immigration and the help ease the related security concerns hurting businesses.
On Monday, June 6, 2011, the United States Supreme Court reviewed Lozano v. City of Hazleton, a decision from the Third Circuit Court of Appeals that struck down Hazleton’s immigration enforcement ordinance, and sent the case back for reconsideration.
In Lozano v. City of Hazleton, apartment owners and illegal aliens living within Hazleton, Pennsylvania sued the City in an attempt to strike down its immigration enforcement ordinance. That ordinance: (1) prohibits the hiring of illegal aliens, (2) mandates the use of E-Verify for employers, (3) prohibits the knowing harboring of illegal aliens within the City, and (4) requires renters to obtain rental occupancy licenses.
The Supreme Court determined that the Third Circuit’s decision could no longer stand given the Supreme Court’s recent decision in Chamber of Commerce v. Whiting, which held that states could constitutionally mandate E-Verify and suspend or revoke business licenses of employers that knowingly employ unauthorized aliens. It sent the case back to the Third Circuit with instructions to reconsider.
FAIR’s legal affiliate, the Immigration Reform Law Institute (IRLI), assisted in drafting the Hazleton ordinance and has been representing the City of Hazleton from the beginning. IRLI will now have the opportunity to argue the case before a new panel of judges.
The Supreme Court last week let California’s law giving in-state tuition to illegal aliens stand by refusing to consider the plaintiffs’ appeal of the decision rendered by the California Supreme Court.
In Martinez v. Regents of the University of California, U.S. citizen students who were paying out-of-state tuition sued the California university, the California State university, and the California Community College systems claiming they violated federal law by giving in-state tuition to illegal aliens, but not also giving the same in-state tuition to their out-of-State students. However, the California Supreme Court upheld the statute and the United States Supreme Court declined to review the California Supreme Court’s decision. The U.S Supreme Court did not issue any decision or explanation in conjunction with its ruling.
To read more about the arguments made in the Martinez case, read FAIR’s Legislative Update (Nov. 22, 2010).
Despite Congress’s repeated rejection of the Development, Relief and Education for Alien Minors (DREAM) Act, the California Legislature is moving forward with its own version. (AB 130 Status; AB 131 Status) Both bills were introduced by Democratic Assembly Member Gil Cedillo of Los Angeles. Conrado Terrazas, spokesman for Cedillo, noted that the bills are different from federal legislation because they only allow illegal aliens who already qualify for in-state tuition to apply for scholarships and other aid money. (San Diego Union Tribune, June 3, 2011) The federal versions of similar legislation involve amnesty provisions, including a path to citizenship. (See FAIR Legislative Update, May 16, 2011)
Assembly Bill 130, which is known as the California Dream Act of 2011, would allow illegal alien students who are exempt from paying nonresident tuition access to privately-funded scholarships. It passed the California Assembly on a party-line vote of 51-22 and is now waiting action in the Senate Committee on Appropriations. Similarly, Assembly Bill 131 would allow illegal aliens access to state-funded grants and scholarships for college tuition. It is scheduled for a hearing before the Senate Committee on Education on June 22. Under AB 131, illegal alien students would be eligible for “all student financial aid programs administered by the State of California to the full extent permitted by federal law.” (Proposed change to Education Code § 69508.5 (b))