FAIR Legislative Update September 13, 2010

Federal Court Upholds Injunction of Hazleton Immigration Ordinance

On September 9, 2010, the Third Circuit Court of Appeals upheld a lower court decision in Lozano v. Hazleton to permanently enjoin the City of Hazleton, Pennsylvania from implementing ordinances to combat illegal immigration.  In holding that the ordinances are unconstitutional, Judge McKee stated that Hazleton’s ordinances were an “obstacle to the accomplishment and execution of federal law” and thus were “pre-empted.”  Lozano v. Hazleton, pg. 106-107; 135. 

Hazleton’s immigration ordinance had two main objectives.  First, the ordinance aimed to stop the employment of illegal aliens by making it unlawful “for any business entity” to “recruit, hire for employment, or continue to employ” any individual who is an “unlawful worker” to perform work within the City.  IIRAO § 4.  Specifically, Section 4A of the IIRAO requires “[e]very business entity that applies for a business permit” to “sign an affidavit … affirming that they do not knowingly utilize the services or hire any person who is an unlawful worker.”  The ordinance also provides that if the business utilizes the federal E-Verify program to check the immigration status of a potential employee prior to hiring that individual, then the business is not subject to violation of the law.

Second, the ordinance sought to stop the harboring of illegal aliens by prohibiting the rental of housing to illegal aliens.  Section 5 provides that it is “unlawful for any person or business entity that owns a dwelling unit in the City to harbor an illegal alien in the dwelling unit … .”  IIRAO § 5.  The ordinance defines “harboring” as “to let, lease, or rent a dwelling unit” to an illegal alien.   IIRAO § 5A(1).  To operate in conjunction with these anti-harboring provisions, the City of Hazleton also passed the Rental Registration Ordinance (RO).  The RO requires prospective tenants to show proof of legal citizenship and/or residency as a prerequisite to gaining a permit to rent housing.  RO § 7b.

In assessing the constitutionality of IIRAO’s employment provisions, the Third Circuit Court of Appeals determined that the ordinance was pre-empted by federal law because it stood as an “obstacle to the objectives” of Congress.  Hazleton at 105.  The Court said that Congress went to “considerable lengths” in enacting the current law that prohibits the hiring of illegal aliens (Immigration Reform and Control Act (IRCA)) “to achieve a careful balance among its competing policy objectives of effectively deterring employment of unauthorized aliens, minimizing the resulting burden on employers, and protecting authorized aliens and citizens perceived as ‘foreign’ from discrimination.”  Id. at 107.  The Court concluded that Hazleton’s IIRAO “substantially undermines this careful balance” by “further[ing] the first of these federal objectives at the expense of the others.”  Id. 

In particular, the Court noted that foremost among Congress’s goals when it enacted IRCA and its resulting adjudicative system was tominimize the burden this system would impose on employers.  Id. at 114 (emphasis added).   Therefore, the Court said, businesses in Hazleton should not have to “worry about two separate systems of complaints, investigations, prosecutions, and adjudications,” and that “Congress’s refusal to make E-Verify mandatory is consistent with its objective of ensuring that IRCA imposes the minimum burden necessary … to be effective.”  Id. at 114, 120.   Despite arguments by the City of Hazleton that other federal courts (the Ninth Circuit Court of Appeals and the U.S. District Court for the Eastern District of Missouri) upheld similar laws requiring the use of E-Verify, the Third Circuit stated that these previous decisions “fail to afford the proper weight to the purposes underlying Congress’s decision to retain E-Verify as a voluntary program.”  Id. at 122.

The Court also determined that the housing provisions of the IIRAO are pre-empted by federal law because it found it to be an impermissible regulation of immigration.  Id. at 134-5.  In reaching this conclusion, the Third Circuit specifically cited the Supreme Court’s decision in DeCanas v. Bica, which held that a state or local government may not “regulate immigration”—meaning any attempt to determine “who should or should not be admitted into the country, and the conditions under which a legalentrant may remain.” Id. (quoting DeCanas v. Bica, 424 U.S. 351, 355 (1976)(emphasis added)).  Despite the Supreme Court’s silence on whether a state or local government could regulate illegal entrants—declaring only that they could not regulate “legal entrants”—the Third Circuit used the DeCanas decision to conclude that Hazleton’s ordinance prohibiting the renting of housing to illegal aliens (in order to prevent the harboring of those unlawfully present) was an impermissible regulation of immigration. Ignoring the distinction between legal and illegal, the Court argued that Hazleton’s rental ordinance was essentially an attempt “to remove persons from the community based on current immigration status.”  Hazleton at 138. 

The Third Circuit then argued, based on the same flawed reasoning in the Supreme Court’s decision of Plyler v. Doe, that “the structure of the immigration statutes makes it impossible for the State to determine which aliens are entitled to residence, and which eventually will be deported.”  See Plyler v. Doe, 457 U.S. 202, 236 (1982).  Applying this reasoning, the Third Circuit concluded that, even if the alien admitted to entering the country illegally, illegal aliens aren’t really illegal until the government places them into removal proceedings and a judge finally determines that no exceptions or waivers apply that would permit the alien to stay in the United States.  The Court said, “Under federal law, an unlawful immigration status does not lead instantly, or inevitably, to removal,” and that the “federal government has discretion in deciding whether and when to initiate removal proceedings.”  Hazleton at 138, 139. 

In response to the Third Circuit’s decision, Hazleton’s Mayor, Lou Barletta, declared that “[t]his ruling is a loss for Hazleton and its legal residents” and that the “decision makes the Third Circuit the most liberal court in America on immigration issues.”  Nevertheless, Barletta vowed that the “fight is not yet over” and stated that the “City of Hazleton fully intends to appeal this incorrect decision and take the case all the way to the United States Supreme Court, if necessary.”  According to Barletta, “[t]his frustration is not going away – and it will not go away until the federal government finally secures our borders and cracks down on illegal immigration.”  (Statement Issued by Mayor Lou Barletta, September 9, 2010).

Clinton: Mexican Drug Cartels Now an “Insurgency”

Speaking before a foreign-policy think tank in Washington D.C. last week, Secretary of State Hillary Clinton warned that drug cartels in Mexico and Central America are morphing into an “insurgency” and that the threat to the United States is growing. “It’s looking more and more like Colombia looked 20 years ago, where the narco-traffickers control certain parts of the country,” Clinton said.  (Council on Foreign Relations transcript, Sept. 8, 2010).

Clinton’s remarks came as a wave of violence has swept across Mexico in recent weeks:

• Last week alone, 25 people were murdered in the Mexican border city of Ciudad Juarez, making it the deadliest day in that violent city in two years.  (Associated Press, Sept. 11, 2010). 
• The same day as Clinton’s remarks, 85 prisoners, most of whom were drug cartel members, escaped from a prison in the Mexican border city of Reynosa, just across the border from McAllen, Texas.  (Id.)
• Last Wednesday, drug cartel members killed another mayor of a Mexican city, making it the third in one month. (Latin American Herald Tribune, Sept. 8, 2010).
• In August, 72 migrants traveling to the U.S. were murdered near the Texas border by suspected members of the Zetas drug cartel. (Wall Street Journal, Sept. 8, 2010).

Despite this escalating violence, Mexican President Felipe Calderon sharply rejected Secretary Clinton’s analysis.  In an interview with Univision, Calderon said: “These kind of comments like the ones made by Secretary of State Clinton … so careless, so lacking in seriousness, are very painful for Mexico, because they damage Mexico’s image terribly.”  He added, “I think the main thing we have in common with Colombia is that both of our countries suffer from U.S. drug consumption….We are both victims of the enormous American consumption of drugs, and now the sales of weapons.”   (Associated Press, Sept. 11, 2010).

On Friday, the Wall Street Journal reported that the Obama Administration has now launched a review of steps the military and intelligence community could take to help combat the so-called insurgency.  As part of the review, the Department of Homeland Security is working with the Air Force to identify the most useful military surveillance technology for monitoring land, sea and air traffic along the border, including “sensored manned aircraft and ground-based sensors” in addition to unmanned aerial drones.  Sophisticated ground-based radar used by the military is also being evaluated. One official reported that Adm. Mike Mullen, chairman of the Joint Chiefs of Staff, is “growing increasingly concerned about the security situation.”  (Wall Street Journal, Sept. 10, 2010). 

Officials estimate that over 28,000 individuals have been murdered during Mexico’s four-year war against its drug cartels, and the violence only seems to be growing. Once isolated to border regions, the drug-related violence has now spread to pockets throughout the country. (Wall Street Journal, Sept. 8, 2010).  In an address last week to the Mexican Congress, President Calderon said his war against the drug cartels was working. However, in a new poll by the Demotecnia firm, a majority of respondents said Mexico was worse off than before Calderon took office, and more than two-thirds agreed with the statement that, in general, things were slipping from his control. (Los Angeles Times, Sept. 2, 2010).                     

Immigration Officers No Longer Detaining Illegal Aliens During Traffic Stops

In August, Immigration and Customs Enforcement (ICE) began circulating a draft policy that would significantly limit the circumstances under which ICE would take custody of illegal aliens. More specifically, the memo provides that immigration officers shall issue detainers—or official notification to local law enforcement agencies that ICE intends to assume custody of the alien—only after a law enforcement agency has independently arrested the alien for a criminal violation. (ICE Draft Policy Memo). This means that if a police officer conducts a lawful stop of an illegal alien, and the officer confirms with ICE that the alien is in the country illegally, ICE will still not assume custody of the alien unless the alien has actually been arrested for a criminal offense.

This proposed detainer policy goes even further if the alien is stopped for a non-felony traffic offense. The memo states that for non-felony traffic offenses, immigration officers “should not issue detainers unless the alien is convicted” of the underlying offense.  Exceptions to this policy include aliens who have criminal convictions, who are believed to be a threat to national security, who have been already deported, or have traffic misdemeanors that involve drugs or alcohol, physical injury to person or property.  This means that for all but the most serious traffic offenses, ICE will not assume custody of an illegal alien stopped by a local law enforcement officer.  Even then, ICE will not assume custody of the alien until he or she is convicted.

ICE’s proposed policy on detainers has not gone unnoticed on Capitol Hill. On August 31, Senators John Cornyn (R-TX) and Jon Kyl (R-AZ) sent a letter to the Department of Homeland Security Secretary, Janet Napolitano, objecting to this and other recent changes she has made to U.S. immigration policy, suggesting that her changes may actually conflict with federal statutes.  (Cornyn-Kyl letter, Aug. 31, 2010).  ICE has not yet commented on these changes, except to say that the media has “grossly mischaracterize[d]” ICE’s detainer policy proposal. (FOX News, Sept. 9, 2010).