FAIR Legislative Update April 9, 2012
Right before the Easter weekend, the author of Alabama's tough immigration enforcement law proposed an 83-page bill that would make significant, substantive revisions to the State's immigration enforcement law.
The bill, H.B. 658, would weaken the State's current immigration law (H.B. 56) in several ways. Among the most important changes, H.B. 658 would significantly limit the scope of H.B. 56's immigration status check provision. Currently, H.B. 56 requires a law enforcement officer during a lawful stop, detention, or arrest to conduct an immigration status check of individuals if the officer reasonably suspects the individual is illegally in the United States. (See H.B. 658, p.37; Ala. Code § 31-13-12) H.B. 658, however, limits the requirement to conduct immigration status checks to only situations where an individual is arrested or issued a traffic ticket. It expressly allows for immigration status checks of the passengers in a car, if the driver has been arrested or issued a traffic ticket. (H.B. 658, p.37)
H.B. 658 would also weaken the existing penalties under Alabama law for private employers who knowingly hire illegal aliens. Current law – as created by H.B. 56 – has a safe harbor provision which provides that employers will not be deemed to have knowingly hired illegal aliens if they use E-Verify. But if a court finds an employer has knowingly hired illegal aliens, the employer is subject to a 10-day suspension of his business license and three years of probation. For a second violation, the employer is subject to the revocation of his business license with respect to the specific offending location. Upon a subsequent violation, the employer is subject to the revocation of his business licenses throughout the state. (See Ala. Code § 31-13-15)
H.B. 658 maintains the safe harbor for employers, but only imposes penalties for multiple violations if they occur within a five-year period. (H.B. 658, p.46-54) Thus, H.B. 658 provides that for a first violation an employer is subject to a 60-day suspension of his business license and three years of probation. For a second violation within five years of the first, an employer is subject to a 120-day suspension and five years of probation. For a third violation within five years of the second, the employer is subject to permanent suspension (although the business license can be reinstated) and seven years of probation. In addition, H.B. 658 contains broad language that allows a court not to impose penalties on employers if it decides doing so is not in the public interest.
Another important change H.B. 658 would make to H.B. 56 is to eliminate the requirement that school districts collect data on their students’ immigration status and send it to the State Board of Education for inclusion in an annual report. (H.B. 658, p. 67-70) H.B. 658 does include a requirement that the State Department of Education compile a report on the annual fiscal impact of providing free education to the children of illegal aliens. (H.B. 658 p. 66-67) That provision expressly allows the state to contract with scholars, economists, or public research institutions to complete the report, but without the data collection requirement, it is unclear whether schools will have the data needed to make an accurate analysis.
Top Alabama officials are already voicing their support for the revisions, but also seem aware that true immigration reformers will eye the bill with skepticism. Alabama Governor Robert Bentley denied that the proposal weakens Alabama's immigration law. "The essence of the bill will not change: Anyone living and working in Alabama must be here legally." (Fox News, Apr. 6, 2012) Spokesman for House Speaker Mike Hubbard similarly stated: "No part is being weakened." (Wall Street Journal, Apr. 5, 2012) The changes, he said, are aimed at clarifying aspects of the law and "making it stronger by making it more enforceable." (Id.)
Indeed, Alabama lawmakers are pushing forward with the revisions to H.B. 56 despite the fact that many of its provisions will soon be ruled on by the United States Supreme Court. The Supreme Court is scheduled to hear oral arguments on Arizona's SB 1070 — numerous provisions of which are identical to those in H.B. 56 — at the end of April. The Court is then expected to rule on SB 1070 by early summer.
Lawmakers are also pushing forward with the revisions despite the fact that many Alabamians support the State's tough immigration enforcement law and tout its benefits. A poll recently conducted by FAIR revealed 75 percent of Alabama voters support the law. (See FAIR poll, Mar. 19, 2012)
In the Obama Administration's latest move to undermine state and local immigration enforcement, the Department of Justice (DOJ) announced this week it intends to sue Maricopa County Sheriff Joe Arpaio for allegedly racially profiling Latinos in violation of federal law. (Reuters, Apr. 3, 2012)
The DOJ's announcement comes after Sheriff Arpaio refused to allow a federal court appointed "monitor" to oversee his office's activities. The DOJ had requested such a monitor to ensure that the Maricopa County Sheriff's Office is adhering to a settlement negotiated after the Administration formally accused it of unlawful policing practices. (Id.) But Sheriff Arpaio rejected this request as overreaching. "Appointment of an outside monitor essentially usurps the powers and duties of an elected sheriff and transfers them to a person or group of persons selected by the federal government," said the Sheriff's Office in a statement about the ordeal. (See Sheriff Arpaio Press Release, Apr. 3, 2012)
According to the DOJ, a draft of the settlement had already reached 128-pages at the time negotiations between the parties broke down. (Reuters, Apr. 3, 2012)
The Administration formally accused the Maricopa County Sheriff's Office of unlawfully discriminating against Latinos in December 2011. (DOJ Letter to Maricopa County Attorney, Dec. 15, 2011) At that time, U.S. Assistant Attorney General Thomas E. Perez (who is also leading the DOJ's fight to strike down state immigration laws) accused the Sheriff's office of two types of unlawful practices. (See FAIR Legislative Update, Dec. 19, 2011) First, it claimed the Sheriff's office engages in "unconstitutional policing" in violation of federal law. Specifically, the DOJ states that the Sheriff's Office racially profiles Latinos; unlawfully stops, detains, and arrests Latinos; and unlawfully retaliates against individuals who complain about its practices. (DOJ Letter, p. 1-2) Second, the DOJ accused the office of unlawfully discriminating against Latino inmates in the county jail. It states that Maricopa County Sheriff Office deputies, detention officers, and other staff "routinely punish Latino  inmates for failing to understand commands given in English and denies them critical services provided to the other inmates…." (DOJ Letter, p. 1-2)
To prove its claim of racial profiling, the DOJ must demonstrate that the policies of Sheriff's office "had a discriminatory effect and  was motivated by a discriminatory purpose." (See U.S. v. Armstrong, 517 U.S. 456, 465 (1996)) In determining whether there was a discriminatory purpose, courts look to a number of factors. These include whether the impact of the law bears more heavily on one race than another, the historical background of the policy, the sequence of events leading up to the policy, departures from normal procedure, and legislative history. (See Village of Arlington Heights v. Metro. Hous. Redev. Corp., 429 U.S. 252, 266-268 (1977))
The Administration has already begun retaliating against the Sheriff's Office despite the fact the DOJ has yet to file suit. In fact, the day the DOJ sent its letter of investigation to the Maricopa County Attorney, the Department of Homeland Security rescinded the Maricopa County Sheriff's Office 287(g) agreement with Immigration and Customs Enforcement and "restricted its use" of the Secure Communities program. (See DHS Press Release, Dec. 15, 2011)
Speaking to Iowa reporters last week, Vice President Joe Biden revealed his ignorance of U.S. immigration law. Responding to the questions "Are too many H-1B visas given out each year? Are too many highly skilled jobs going to people outside the United States?" Biden replied, "No H-1B visa can be granted to an employee to come to a company unless they can prove there is no American to fill the job." (KWQC News 6, March 28, 2012)
Vice President Biden's statement, however, is categorically false. Federal law generally does not require that an employer search for a qualified U.S. worker before he or she hires an H-1B visa holder. In fact, up to 15 percent of an employer's workforce can be H-1B workers before that employer must "attest" that it first attempted to recruit an American worker. (See USCIS Website, Apr. 6, 2012; see also INA § 101(a)(15)(H)(i)(b))
While businesses claim they use H-1B visas to sponsor "high-skilled" employees, H-1B visa recipients are typically only required to have either a Bachelor's degree or specialized knowledge in a particular field. H-1B visas are also used to bring fashion models into the country. (Id.)
Vice President Biden also falsely attributed the demand for foreign workers to "a real vacuum in the number of computer engineers and high tech personnel..." (KWQC News 6, March 28, 2012)
To the contrary, there is no proof that a shortage of high-skilled workers exists in the United States. (See FAIR Myth of Skilled Worker Shortage, Nov. 2011) To the contrary, the surplus of science and engineering (S&E) degree holders in the United States has caused many S&E graduates to seek work in other fields. (Id.) In fact, less than one-third of S&E degree holders are working in a field closely related to their degree, while 65 percent are either employed in or training for a career in another field within two years of graduating. (Id.)
Biden's faux pas continues the Obama Administration's pattern of failing to acknowledge the vast number of unemployed skilled American workers in the United States. In January, President Obama made a similar mistake while hosting an online town hall meeting. A woman named Jennifer Wedel asked the President why the government continues to grant H-1B visas to foreign workers while qualified U.S. citizens are out of work. (Politico, Jan. 30, 2012) In that interview, the President argued that specialized American labor was in high demand and short supply, despite the fact that Wedel's husband, who has over ten years of specialized engineering experience, was laid off and has been unable to find work in his field. (Id.)
An omnibus immigration enforcement bill, H.B. 488, died in Mississippi last week when the chair of the Senate committee to which the bill was assigned refused to give it a hearing. (Hattiesburg American, Apr. 3, 2012) Judiciary B Committee Chairman Hob Bryan, D-Amory, outright rejected the bill, claiming it attempted to micromanage the way law enforcement officers do their jobs. (Hattiesburg American, Apr. 3, 2012) "We would be telling local policemen how they should behave when they arrest somebody…And I just don't think that's a proper role for the Legislature," said Bryan (Id.)
In contrast, the Mississippi House passed H.B. 488 last month by a large margin, where representatives viewed the enforcement measures favorably. (See FAIR Legislative Update, Mar. 19, 2012) H.B. 488 would have: (1) required law enforcement officers to determine a person's immigration status during a lawful arrest if they had reasonable suspicion the person is an illegal alien (§2); (2) prohibited state and local sanctuary policies (§2); and (3) required that the business license of any employer who knowingly hires an illegal alien be revoked (§5).
While Mississippi Governor Phil Bryant continues to support the legislation, Lieutenant Governor Tate Reeves, who made the decision to send H.B. 488 to the committee in which it died, opposed the bill. (LA Times, Apr. 3, 2012; Hattiesburg American, Apr. 5, 2012)
The chances of immigration enforcement legislation passing in Mississippi this legislative session, which ends May 5, now appear bleak. House Judiciary B Chairman Andy Gipson had tried to revive some of H.B. 488's provisions by amending another bill, but killed the measure two days later after legislative counsel advised such would likely be ruled out of order. (Clarion Ledger, A