FAIR Legislative Update August 2, 2010
Court Blocks Key Parts of Arizona Law
Federal District Judge Susan Bolton gave the Obama administration and amnesty proponents a reason to celebrate when she granted much of the Justice Department’s request for a preliminary injunction against SB 1070 last week. (USA v. Arizona Order). But the ruling is by no means a total victory for the other side, as the judge also soundly rejected Obama’s argument that the federal government has exclusive authority over immigration enforcement and regulation. By allowing portions of S.B. 1070 to go into effect last Thursday as planned, she explicitly acknowledged that states play a crucial role in immigration matters. Meanwhile, true immigration reformers point out that injunction is only temporary and that the fight is far from over. Arizona Governor Jan Brewer has vowed to “battle all the way to the Supreme Court, if necessary, for the right to protect the citizens of Arizona.” (Brewer Press Release, July 28, 2010).
In issuing the preliminary injunction, the court did not strike down any part of the Arizona law, but only delayed implementation until there is a final determination as to the law’s constitutionality. The portions of SB 1070 that Judge Bolton blocked from taking effect include:
- The requirement that law enforcement officers verify immigration status of individuals lawfully stopped, detained, or arrested if there is a reasonable suspicion that the person is an illegal alien;
- the creation of a state misdemeanor for violating federal law that requires aliens to apply for and carry registration papers;
- the creation of a crime for an illegal alien to solicit, apply for, or perform work; and
- the authorization of a warrantless arrest of a person when there is probably cause to believe the individual has committed an offense that makes triggers removal from the U.S.
Although amnesty advocates lauded the enjoinder of these provisions, Judge Bolton’s ruling also had positive implications for true immigration reformers. The Obama administration had urged the court to enjoin SB 1070 in its entirety, arguing that “the power to regulate immigration is vested exclusively in the federal government, and that the provisions of S.B. 1070 are therefore preempted by federal law.” (USA v. Arizona Order, p. 2). But the judge rejected this argument by choosing not to enjoin all of SB 1070. Instead, she allowed the following provisions to take effect:
- The ban on sanctuary cities and policies that limit enforcement of federal immigration laws;
- the right of residents to sue any state official or agency for adopting policies that restrict the enforcement of federal immigration laws;
- the creation of a crime for stopping a motor vehicle to pick up day laborers if it blocks traffic; and
- the creation of a crime for transporting or harboring illegal aliens or inducing illegal aliens to come to or live in Arizona.
Judge Bolton explained that she issued a preliminary injunction on the four provisions because she agreed with the Justice Department’s claims that these provisions are preempted by federal law. While there is no express language in any federal statute saying Arizona (or any other state for that matter) may not adopt the provisions of SB 1070, the DOJ argued that preemption was implied, either because (1) federal statutes so occupied the field of regulation that state statutes on the subject contradict Congressional intent (U.S.A. Motion, p.26) or (2) because state law conflicts with federal law by obstructing the accomplishment and execution of the full purposes and objectives of Congress. (U.S.A. Motion, p.30).
With respect to SB 1070’s requirement that Arizona law enforcement officers check immigration status during lawful stops when there is reasonable suspicion the individual is unlawfully present, Judge Bolton found this latter reasoning applied. That is, the judge agreed with the Department of Justice that the requirement to inquire about immigration status conflicted with the objectives of Congress because: (1) it is likely to impose an “unacceptable burden” on legal aliens and (2) it will tax and divert federal resources from federal enforcement priorities as a result of the increase in status-check requests. (District Court Order, p.20).
However, Judge Bolton’s reasoning is problematic. Regarding the imposition of an “unacceptable” burden on legal aliens, Bolton cited the same precedent as did the Justice Department, Hines v. Davidowitz, 312 U.S. 52 (1941), to justify her decision. However, Hines was decided before Congress substantially amended the Alien Registration Act of 1952, suggesting the analysis behind the case is no longer valid. But even if it were valid, the Supreme Court in Hines did not say any burden on lawful aliens was impermissible, but rather addressed “the legal imposition of distinct, unusual, and extraordinary burdens and obligations upon aliens” and laws that “single out [aliens] for the imposition of discriminatory burdens.” (Id. at 66, 69)(emphasis added). Notably, Judge Bolton did not explain how SB 1070, the requirements of which apply equally across the board, imposes a burden on legal aliens that is unusual, extraordinary, or discriminatory. This is especially so when one considers Congress amended the Alien Registration Act in 1952 to generally require that all aliens register and carry their papers with them.
With regard to the burden on the federal government, Judge Bolton accepted wholesale the Justice Department’s argument that the requirement to check immigration status was preempted because it would create more work for the federal government and direct resources away from “federal enforcement priorities.” This decision is troublesome for several reasons. First, it ignores the preemption analysis that focuses on Congressional intent. In 1996, Congress passed 8 U.S.C. §1373, which mandates that the federal government respond to all requests to verify “the citizenship or immigration status of any individual” from federal, state, or law enforcement officers—clearly spelling out its intent that the federal government not passively resist in the enforcement of immigration laws. Second, Judge Bolton’s ruling essentially adopts the position that the Executive Branch can walk into court at any time, claim a state law is a “burden” based on the administration’s policies du jour, and get a court to strike it down as preempted. Here, the District Court remarkably accepted the non-enforcement of U.S. immigration laws as the Obama Administration’s “priority” and enjoined SB 1070’s requirement to check immigration status upon reasonable suspicion.
Supporters and opponents of the law across the country reacted to the ruling. Many feel the law should have been allowed to take effect before any decision was made. Peter Schuck, a professor of immigration law at Yale, said, “She rushed to judgment in a way I can only assume reflects a lot of pressure from the federal government to get this case resolved quickly.” (The New York Times, July 29, 2010). Sheriff Paul Babeu of Pinal County, Arizona was vocal in his opposition to the ruling: "Incredibly, even though there is not one person who can legitimately claim to be harmed by a law that has not even taken effect, the result of an injunction is de facto amnesty through non-enforcement of laws against illegal immigration." (The Arizona Republic, July 28, 2010). State Senator Russell Pearce, who sponsored S.B. 1070, was not disheartened by the ruling, focusing on the portions of the bill that were allowed to take effect. "As of Thursday, the handcuffs come off of law enforcement. This says clearly that we can enforce federal law and we cannot be impeded." Id.
Not surprisingly, the Justice Department was pleased with the decision, "While we understand the frustration of Arizonans with the broken immigration system, a patchwork of state and local policies would seriously disrupt federal immigration enforcement and would ultimately be counterproductive" (The Arizona Republic, July 28, 2010). The deputy press secretary of the Department of Homeland Security said the ruling, "affirms the federal government's responsibilities in enforcing our nation's immigration laws." Id.
Many lawmakers voiced disapproval of the decision. Senator John Cornyn (R-TX) said that “The Obama administration needs to make immigration reform and border security a priority. ... It’s time for the federal government to step up and do its job.” (Roll Call, July 29, 2010). Arizona Senators John McCain and Jon Kyl released a joint statement: “We are deeply disappointed in the court’s ruling today and disagree with the court’s opinion that the Arizona’s law will unduly ‘burden’ the enforcement of federal immigration law. Instead of wasting tax payer resources filing a lawsuit against Arizona and complaining that the law would be burdensome, the Obama Administration should have focused its efforts on working with Congress to provide the necessary resources to support the state in its efforts to act where the Federal government has failed to take responsibility.” (McCain/Kyl Press Release, July 28, 2010).
Back in Arizona, state Attorney General Terry Goddard, who hopes to be Governor Brewer’s Democratic opponent in the November election, was quick to announce his reaction on Twitter: “Jan Brewer played politics with immigration, and she lost.” (The New York Times, July 29, 2010). But Brewer believes she and the people of Arizona will not lose this important battle in the end, stating, “This fight is far from over. In fact, it is just the beginning, and at the end of what is certain to be a long legal struggle, Arizona will prevail in its right to protect our citizens.” (Brewer Press Release, July 28, 2010). Governor Brewer and her legal team have already filed an expedited appeal with the Ninth Circuit Court of Appeals, asking that the injunction issued by Judge Bolton be lifted. (Brewer Press Release, July 29, 2010). “America is not going to sit back and allow the ongoing federal failures to continue. We are a nation of laws and we believe they need to be enforced. If the federal government wants to be in charge of illegal immigration and they want no help from states, it then needs to do its job. Arizona would not be faced with this problem if the federal government honored its responsibilities.” Id.
Approximately 24 hours before Arizona’s new immigration enforcement law was scheduled to take effect, the House passed a supplemental spending bill which would appropriate an additional $701 million for increased border security measures along the southern border. (H.R. 5875). The bill was passed by a voice vote after being fast tracked through the House by motions to suspend normal rules of floor debate and amendments. This bill appropriates more funding for Border and Customs Protection Officers, Border Patrol agents, operation bases and fencing infrastructure, and expanded activities and operations of ICE and the Department of Justice along the southern border including:
- $208.4 million for 1,200 additional Border Patrol agents to be deployed between ports of entry along the Southwest border;
- $201 million for Justice Department programs and the temporary deployment of personnel to high-crime areas;
- $136 million to add 500 additional officers at ports of entry along the Southwest Border and deploy additional canine teams;
- $50 million for Operation Stonegarden grants to support local law enforcement activities on the border;
- $35.5 million for improved tactical communications on the Southwest border, three permanent Border Patrol forward operating bases and a surge in investigations designed to prevent corruption among CBP officers and agent;
- $32 million to procure two additional CBP unmanned aerial detection systems; and
- $30 million to hire additional Immigration and Customs Enforcement agents.
The House had previously included these border appropriations in the FY 2010 Supplemental Appropriations Act, but they were stripped out of the final version in the Senate. A spokesman for Senator John McCain clarified that he supports the funding for border security but believes it must be paid for.
H.R. 5875 now travels to the Senate, but it is unclear whether Democratic Leadership will take it up during the one week that remains before the Senate leaves for August recess. Congressman Hal Rogers, the ranking Republican on the Homeland Security Appropriations Subcommittee, is planning to offer a border security package to the FY2011 Homeland Security Appropriations Bill that is fully offset with spending cuts. (Congress Daily, July 29, 2010)
Last Tuesday night, members of the Fremont City Council voted 8-0 to delay the implementation of the city’s ordinance that was designed to combat illegal immigration. The decision of the council comes on the heels of two pending lawsuits against the town. (See Fair’s Legislative Update, July 26, 2010) Fremont’s new immigration law was set to take effect July 29, but is now being suspended until 14 days after the U.S. District Court in Omaha rules on motions filed by pro amnesty groups for an injunction prohibiting its implementation. According to City Attorney Dean Skokan, “There are both sound legal reasons in my judgment and economic reasons to suspend the ordinance at this preliminary stage.” (Fremont Tribune, July 27, 2010)
On Wednesday, the ACLU asked U.S District Judge Laurie Smith Camp to issue a preliminary injunction of the law, despite the preemptive suspension from the council members. A spokesman for the ACLU said that they still sought a court injunction in case the city council reveres its decision. However, Judge Smith Camp declined to issue a ruling on the motion, and even questioned whether she has jurisdiction over the subject matter of the lawsuits. She argued that this case should first be adjudicated in state court because both suits claim the ordinance violates Nebraska law. Judge Camp granted the attorneys two weeks to prepare briefs explaining why this case should be heard in federal court. (Nebraska Star Ledger, CBS News, July 28, 2010)
The city council also unanimously voted to hire attorney Kris Kobach, who serves Of Counsel to the Immigration Reform Law Institute, to defend the city’s ordinance in court. Many Fremont citizens spoke up at this rowdy executive session of the council in support of hiring Kobach, who offered his services free of charge. John Wiegert, one of those attending the meeting, said, “I believe if we're going to be arguing constitutionality, we need to have a Constitution attorney, and I feel that we need to have somebody that's the best in the nation.” (Fremont Tribune, July 27, 2010). Kobach advised the council members to delay the ordinance as a prudent way to save time and money on extra court proceedings so the court could move more swiftly to the merits of the case. The cost of a long drawn out legal battle has been a concern of many city officials throughout the consideration of this ordinance. Ira Mehlman, a spokesman for FAIR, charged opponents of immigration enforcement with intimidation tactics. He said, “The strategy is essentially, ‘You may want to take actions to deal with illegal immigration? It may be what the citizenry wants, but if you try, we’ll bleed you dry in the courts.’“(Christian Science Monitor, July 27, 2010)
The Democratic Governor of Colorado, Bill Ritter, is considering whether to adopt an Immigration and Customs Enforcement (ICE) program, known as Secure Communities, which is a “comprehensive strategy to improve and modernize the identification and removal of criminal aliens from the United States.” (Ice.gov/securecommunities, 7/30/2010). If the program is implemented, all individuals booked in jail for any crime would be fingerprinted and the local law enforcement would automatically run those prints against FBI criminal records and the ICE database. The results would be used to determine whether an individual is in the country illegally and the existence of a criminal record. The federal program has received much less attention than the controversial Arizona law, SB 1070, but according to many experts say “it may end up having a bigger impact because of its potential to round and deport so many more illegal aliens nationwide.” (Associated Press, July 26, 2010).
“Since 2007, 467 jurisdictions in 26 states” have joined and operate the Secure Communities program and ICE has said that it plans to have the program in every jail nationwide by 2013. Id. According to ICE data, “since October 27, 2008 through the May 31, 2010, almost 2.6 million people have been screened with the Secure Communities program. Of those, 35,000 were identified as illegal immigrants previously arrested or convicted for the most serious crimes, including murder and rape. More than 250,000 who were identified as illegal immigrants had arrest records for less serious crimes.” (Associated Press, July 27, 2010). The program has already received several endorsements from Colorado officials and the Colorado Bureau of Investigation. Denver’s new Manager of Safety, told reporters “this would give law enforcement an opportunity to get these people off the streets.”(KDVR, July 27, 2010). Governor Ritter at this point in time “is considering a few pilot programs in different areas, but has no timeline on making a formal decision.” Id.
Amnesty proponents have been pushing Ritter to reject the program, which they have long sought to dismantle. In response to the passage Arizona’s immigration law, the pro-amnesty Congressional Hispanic Caucus (CHC) recently urged Homeland Security Secretary Janet Napolitano to “immediately suspend” all Secure Communities agreements in the state. (See FAIR’s Legislative Update, June 7, 2010;The Hill, June 1, 2010; CHC Letter to Napolitano, May 28, 2010). The AFL-CIO, a federation of labor unions notorious for its support for amnesty for illegal aliens, and the Leadership Conference on Civil and Human Rights (LCCHR) both made similar overtures to Napolitano. (AFL-CIO Letter, May 10, 2010, See also FAIR’s Legislative Update, May 17, 2010). Hans Meyer of the Colorado Immigrant Rights Coalition stated, “Secure Communities is an overbroad dragnet that will end up destroying communities and families while driving victims and witnesses underground.” (The New York Times, July 29, 2010). But ICE responded, “It allows ICE and local law enforcement agencies to know as much as possible about people in local custody without any additional costs or procedural changes by local officers.” Id.
An official memo surfaced last week revealing the Administration’s intent to circumvent Congress on immigration policy and grant amnesty administratively. In the memo, entitled “Administrative Alternatives to Comprehensive Immigration Reform,” senior officials at U.S. Citizenship and Immigration Services (USCIS) offered Director Alejandro Mayorkas a variety of ways to “reduce the threat of removal for certain individuals present in the United States without authorization” and extend benefits and protections to many individuals and groups until amnesty is granted. (To read the USCIS memo in its entirety, click here)
For illegal aliens who have been apprehended, USCIS officials recommend strategically issuing Notices to Appear (NTAs). NTAs essentially mark the action by which Homeland Security initiates a deportation proceeding. Homeland Security files the NTA with the immigration court, advising the alien of the nature of the proceedings, the alleged immigration law violations, and the consequences of failing to appear at the hearing. In the memo, USCIS officials recommend issuing NTAs to illegal aliens if the illegal alien is likely to find a loophole through during the removal process through which he/she will be granted permission to stay. However, “where no relief [for an illegal alien] exists in removal,” USCIS could simply not issue an NTA.
For illegal aliens already in deportation proceedings, these USCIS officials recommend granting “deferred enforcement,” essentially a decision by Homeland Security to not enforce a deportation order. “This,” the officials write, “would permit individuals for whom relief may become available in the future to live and work in the U.S. without fear of removal.” Generally, individuals who receive deferred enforcement also receive authorization to work in the United States.
Another option set forth in the memo is expanding the use of humanitarian parole. As the memo notes, USCIS has the discretionary authority to grant humanitarian parole for admission to the U.S. on a case-by-case basis. USCIS may grant humanitarian parole to an individual outside or inside the U.S., the latter commonly called “parole in place.” By expanding the use of parole in place, the officials argue “USCIS can eliminate the need for qualified recipients to return to their home country for consular processing” and avoid the three and ten-year bars to re-entry that usually apply to illegal aliens once they have left the country.
The memo also suggests that USCIS re-examine whether illegal aliens who leave the country but have applied for legal status should in fact be subject to the three and ten-year bars to re-entry that usually apply to illegal aliens. They remarkably suggest that “reexamining past interpretations of terms such as ‘departure’” could leave to a different outcome. The memo also suggests loosening the definition of “extreme hardship,” the basis by which USCIS may grant waivers of the three and ten-year bars.
Reaction to the USCIS memo was swift and negative. Senator Grassley (R-IA) remarked, “The document provides an additional basis for our concerns that the administration will go to great lengths to circumvent Congress and unilaterally execute a back-door amnesty plan.” (Politico, July 30, 2010). Ranking Member of the House Judiciary Committee Lamar Smith said the Obama Administration was “conspiring to implement amnesty without any Congressional action.”
In an apparent effort to backpedal, USCIS spokesman Christopher Bentley told reporters that the agency would not comment on details of the memo, which he described as an internal draft that "should not be equated with official action or policy of the Department. We continue to maintain that comprehensive bipartisan legislation, coupled with smart, effective enforcement, is the only solution to our nation's immigration challenges." In an e-mail, he added: the Obama administration "will not grant deferred action or humanitarian parole to the nation's entire illegal immigrant population." (ProPublica, July 30, 2010).
In an interview with FOX News on Friday, White House Press Secretary Robert Gibbs tried to minimize the USCIS memo. "The White House doesn't support amnesty and I think people that support comprehensive immigration reform don't support amnesty either,” said Gibbs. “What we need to do again is try to figure out how we're going to secure borders, deal with those that are here, but do it in a comprehensive way and do it at a federal level, because as frustrated as Arizonans are, and we understand that we can't have a patchwork of immigration laws throughout each of the 50 states." (FoxNews.com, Aug. 1, 2010).