FAIR Legislative Update November 7, 2011

DOJ Demands Data from Alabama Schools

On Tuesday, the Department of Justice (DOJ) took further steps to impede immigration enforcement by sending a letter to the superintendants of school districts in Alabama, demanding data about student absenteeism since the beginning of the 2011-2012 school year.  (DOJ Letter, Nov. 1, 2011) The DOJ letter is in direct response to Alabama’s new immigration enforcement law (H.B.56), hailed as one of the toughest state laws in the country. Section 28 of H.B. 56 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. (SeeFAIR Legislative Update, Oct. 3, 2011)

In the DOJ letter,  Assistant U.S. Attorney General Thomas Perez — head of the Civil Rights Division within DOJ — states that because H.B. 56 may implicate the civil rights laws that the DOJ enforces, he is requesting states to provide a long list of information. This list includes:

• All enrolled students by school as of September 27, 2011, identifying their race, national origin, and English Language Learners (ELL).
• All students, by school, who have withdrawn from school, from the first day of the 2011-2012 school year to date.  For each student, include the date of withdrawal, the reason for withdrawal, and the student’s race, national origin, and ELL status.
• All students, by school, who have had at least one unexplained absence from the day before implementation of the law (Sept. 27, 2011) to date. For each student, include the date(s) of the unexplained absence(s) and the student’s race, national origin, and ELL status.

Mr. Perez states that the information should be sent in electronic format no later than November 14, 2011 and that certain portions of the requested information be submitted on a monthly basis, by the 15th day of each month.

The letter to Alabama school districts comes six months after the DOJ issued a letter to all school districts nationwide. (DOJ Letter, May 6, 2011) In the May letter, like the November letter, DOJ stated it had become aware of “student enrollment practices that may chill or discourage the participation, or lead to the exclusion, of students” based on their or their parents’ “actual or perceived immigration status.”  It reminded the school districts that the Department of Justice is responsible for enforcing numerous civil rights statutes that prohibit discrimination on the basis of race, color, or national origin.  It also told the districts that the Supreme Court’s decision inPlyler v. Doe, 457 U.S. 202 (1982), required that they not deny children a K-12 education based on immigration status.  It warned schools not to discriminate against students and said schools “may not request information with the purpose or result of denying access to public schools on the basis of race, color, or national origin.”

The exact motive behind the DOJ’s most recent letter, and its demand for Alabama school data, is unclear.  Some feel the DOJ’s purpose is to intimidate Alabama officials into not enforcing H.B. 56.   Others have suggested that the demand for information is part of a broader strategy, also politically motivated, in which DOJ is trying to prevent the re-litigation of Plyler v. Doe. In Plyler, the United States Supreme Court held that a Texas statute that charged tuition to illegal aliens for K-12 education violated the Equal Protection Clause of the U.S. Constitution because the statute did not further a “substantial State interest.” (See Plyler v. Doe, 457 U.S. 202 (1982))  Texas had argued that the state had a substantial interest in “preservation of the state’s limited resources for the education of its lawful residents.” (Id.)  However, the court found that there was “no evidence in the record suggesting that illegal entrants impose any significant burden on the State’s economy.” Similarly, with other “substantial interests” the state of Texas offered, the Court found there was insufficient evidence in the record to suggest that the statute furthered that interest. (Id.)

Thus, the collection of immigration data regarding K-12 students in Alabama (and indeed in other states) could provide concrete evidence needed to revise the Supreme Court’s holding in Plyler v. Doe.  Not only has the illegal alien population across the nation skyrocketed, the costs of K-12 education has also increased.  FAIR estimates that states annually spend over $50 billion dollars educating the children of illegal aliens, both legal and illegal.  (FAIR Cost Study, Feb. 2011)

Alabama Attorney General Luther Strange balked at the DOJ’s “request” for data from Alabama school districts. (Politico, Nov. 3, 2011) In a stern response sent to Assistant U.S. Attorney General Perez, Strange said he was “perplexed and troubled” to learn Perez had written Alabama’s schools demanding information related to the DOJ’s pending lawsuit against the State to enjoin the enforcement of H.B. 56.  (Id.) Strange demanded that the DOJ cite the authority under which it was demanding such information by the end of the week. If DOJ does not, he wrote, “I will assume you have none, and will proceed accordingly.” (Id.)

Obama Administration Sues South Carolina

President Obama’s Justice Department (DOJ) filed suit against the State of South Carolina Monday, alleging federal law preempts the State’s recently passed immigration enforcement legislation. South Carolina’s law, Act No. 69 (also known as Senate Bill 20), is broad in scope, containing several provisions similar to Arizona’s SB 1070 and Alabama’s HB 56. These provisions include making E-Verify mandatory for all employers, banning sanctuary city policies, and criminalizing the failure to comply with federal alien registration laws. As in its lawsuits against Arizona and Alabama, DOJ is seeking to enjoin the enforcement of the core provisions of the bill (Sections 4, 5, 6, and 15).

The first provision the DOJ is seeking to enjoin is Section 4, which makes it a felony for an individual (including an illegal alien) to transport or harbor an illegal alien in order to avoid apprehension or detection by state or federal authorities.  Lawmakers specifically carved out an exception for religious institutions and social service programs such as soup kitchens and crisis counseling centers. Here, the DOJ argues that criminalizing this conduct is a regulation of the “conditions of entry and residence of aliens” and that only the “political branches” of the federal government — not the States or Federal Judiciary — can do so. (See DOJ Compl. ¶ 41) Thus, the DOJ claims that Section 4 is preempted by federal law because it “conflicts with and otherwise stands as an obstacle” to Congress’ system of penalties for the transportation and harboring of illegal aliens. (Id. at ¶ 42) The DOJ also claims that enforcement of Section 4 will also be subject to prosecutorial discretion and statutory interpretation at the state level, which it argues will undermine federal enforcement “priorities and strategies.” (Id.)

The second provision the DOJ seeks to enjoin is Section 5, which makes it a misdemeanor for an illegal alien to fail to comply with federal registration requirements while in the State. Federal statute already requires — and has done so for decades— that all aliens register with the government and carry their alien registration certificate or receipt card. (See 8 U.S.C. § 1304) The DOJ complaint argues that because the federal government already has an alien registration scheme, any attempt by South Carolina to enter this “field” is preempted by federal law. (See DOJ Compl. ¶ 46) As with Section 4, the DOJ argues that enforcement by the State of its own registration statutes would create State priorities that would conflict with those of the federal government. (Id. at ¶ 47) The DOJ also argues the penalty schemes set out in the South Carolina law do not mirror federal law, but does not detail the alleged differences. (Id.)

The third provision the DOJ is attempting to enjoin is Section 6, which contains two relevant parts. One portion of Section 6 the DOJ opposes requires State and local law enforcement officers to make a reasonable effort to ascertain the immigration status of those the officer lawfully stops, detains, investigates, or arrests for a criminal offense if the officer has reasonable suspicion to believe the person is unlawfully present. (Act No. 69 at § 6(A)). Persons providing a valid driver’s license or picture ID issued by South Carolina or another state, a picture ID issued by the U.S., or a tribal photo identification are presumed to be lawfully present. (Id. at § 6(B)(1)) The DOJ argues that this portion of Section 6 is preempted at least three different ways.

• First, the DOJ claims that Congress has clearly expressed its intent that State and local government officers may participate in identifying and apprehending unlawfully present aliens only in cooperation with federal officials and thus cannot do so on its own because doing so would conflict with the federal government’s priorities. (See DOJ Compl. ¶ 52)
• Next, the DOJ argues that the provision would significantly increase the number of immigration verification requests submitted to the federal government, forcing DHS to shift resources away from its stated priorities. (Id. at ¶ 53)
• Lastly, the DOJ argues that the provision would frustrate Congress’ objective of protecting the personal liberties of law-abiding aliens because it would allegedly create a significant risk of harassment of lawfully present aliens and U.S. citizens.  (Id. at ¶ 54)

The DOJ makes the same arguments against the other provision in Section 6 (which criminalizes displaying or possessing a false picture ID for the purpose of proving lawful presence) as it does against Sections 5 and 15 ( which makes it a felony to make, issue, sell (or offer to) false IDs for illegal aliens). Again, here the DOJ argues these sections are preempted because: (1) the federal government has already enacted a complete scheme for regulating the registration of aliens and therefore any attempt by the State to enter this “field” is preempted by federal law; (2) enforcement by the State of its own immigration laws would conflict with the Obama Administration’s enforcement priorities; and (3) the penalties imposed differ from federal law.

The Justice Department’s lawsuit comes on the heels of an American Civil Liberties Union (ACLU) suit against South Carolina alleging the statute violates Fourth Amendment search and seizure protections, as well as the Fourteenth Amendment’s Due Process and Equal Protection clauses. (See FAIR Legislative Update, Oct. 17, 2011) “It definitely puts a spotlight on the issue and heightens our arguments,” Andre Segura, an attorney with the ACLU’s immigrants’ rights project, said Monday of the DOJ’s lawsuit. (Fox News, Nov. 1, 2011)

South Carolina Attorney General, Alan Wilson, however, has vowed to fight for his State’s immigration law. “We’re trying to help the federal government do something that they are incapable of or failing to do right now and that’s enforce immigration,” he said. (WACH FOX News, Nov. 1, 2011)Governor Nikki Haley also supports the legislation. “What we are saying is this state can no longer afford to support people that don’t come here the right way,” she said in June while signing the bill into law. “And we are now going to do something about it.” (Id.)

The law is scheduled to go into effect January 2012. South Carolina is the third state to be sued by the Obama Administration for enacting immigration enforcement legislation.

House Immigration Subcommittee Votes to Subpoena DHS

Members of the House Immigration Policy and Enforcement Subcommittee voted Wednesday to authorize House Judiciary Committee Chairman, Rep. Lamar Smith (R-TX), to issue a subpoena to the Department of Homeland Security (DHS). By subpoenaing DHS, Chairman Smith seeks to obtain a list of illegal and criminal aliens the agency has identified under the Secure Communities program, but subsequently declined to detain or place in removal proceedings. 

During the Subcommittee hearing, Judiciary Chairman Lamar Smith made it clear that the vote to authorize a subpoena comes only after over two months of stonewalling by DHS. Chairman Smith first requested the data on criminal convictions of aliens released in a letter to DHS Secretary Napolitano dated August 22, 2011. He received an initial response from Immigration and Customs Enforcement (ICE) September 1 stating that such information was available and the Federal Bureau of Investigation (who maintains the database employed in Secure Communities) was in the process of compiling it for him. ICE, however, sent a subsequent letter in late October merely discussing the Secure Communities program and failing to provide the requested information. (Read the letters here) Chairman Smith again requested the information and gave DHS a deadline for Monday, October 31 when Secretary Napolitano testified before the Judiciary Committee October 26.

Chairman Smith suggested that DHS has not cooperated with his request because it fears those it released may have gone on to commit further crimes. “Why does DHS want to hide this information?  Why won’t they provide Congress with these documents?  Are administration officials afraid that the information will show that illegal immigrants intentionally released by ICE have committed crimes that could have been prevented?” he said. (Judiciary Committee Press Release, Nov. 2, 2011)

The vote fell upon party lines, with Republican Reps. Elton Gallegly (CA), Steve King (IA), Louie Gohmert (TX), Ted Poe (TX), Trey Gowdy (SC), Dennis Ross (FL), and Dan Lungren (CA) voting in favor of the resolution and Democrat Reps. Zoe Lofgren (CA), Sheila Jackson-Lee (TX), Maxine Waters (CA), and Pedro Pierluisi (Del. Puerto Rico) voting against it.