FAIR Legislative Update February 27, 2012
A Yale University law school clinic filed suit last week on behalf of an illegal alien against the Connecticut Department of Corrections alleging it is unconstitutional for its officers to honor U.S. Immigration and Customs Enforcement (ICE) detainers. Under federal regulation, once ICE issues a detainer for an alien in state or local custody for an independent offense, jail officials shall maintain custody for up to 48 hours (excluding weekends and holidays) to allow ICE agents to pick-up the alien. (See 8 C.F.R. 287.7(d))
Yale’s lawsuit stems from the Nov. 2011 arrest of Sergio Brizuela, an illegal alien allegedly living in the New York-Connecticut area for over ten years. Connecticut police arrested the alien for interfering with an officer, driving under a suspended license, and disturbing the peace. Brizuela was subsequently convicted and jailed for these offenses until Feb. 10, 2012. Once he completed his sentence, Connecticut Department of Corrections officers maintained custody of him for an additional 48-hours pursuant to a detainer lodged against him by ICE. Yale professors and students filed a complaint against the Connecticut Department of Corrections officers for honoring the detainer, alleging they violated the Fourth, Tenth, and Fourteenth Amendments to the U.S. Constitution.
Specifically, the complaint argues detainers violate the Fourth Amendment’s prohibition against unreasonable search and seizure for three reasons.
(1) Yale claims Brizuela was unlawfully seized because ICE lacked probable cause or reasonable suspicion to issue the detainer. Therefore, Yale contends that the correctional officers held him without any basis in law.
(2) Yale argues the authority relied upon by the officers to hold Brizuela exceeds the statutory authority Congress granted ICE to issue detainers. Yale claims that the federal regulation requiring local agencies to hold aliens subject to detainers is broader than the statute providing for immigration detainers (8 U.S.C. § 1357(d)), because the statute itself only provides that ICE may issue detainers for aliens in custody for a controlled substance offense. As such, Yale claims detaining Brizuela pursuant to the regulation is an unlawful seizure because it is broader than its authorizing statute.
(3) Yale argues that the continued detention of Brizuela beyond the completion of his sentence for his offenses under state law is the equivalent of a new arrest requiring a showing of probable cause. Because correctional officers did not bring Brizuela before a judge for a probable cause hearing, Yale claims they violated his right to be free from unreasonable seizure under the Fourth Amendment.
Next, Yale claims detainers violate the Tenth Amendment protection against federal commandeering of state personnel. According to Yale, ICE detainers violate the Tenth Amendment by purporting to require state and local officers to hold aliens in custody to enforce federal civil immigration statutes. Thus, Yale argues that because the federal government cannot under the Tenth Amendment use state personnel to implement federal programs, the detainer is unlawful. Furthermore, because Yale claims detainers are unlawful under the Tenth Amendment, it also claims that the Connecticut officers unlawfully seized Brizuela under the Fourth Amendment because the detainer is invalid.
Lastly, Yale argues the detainer violates the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution by infringing upon Brizuela’s fundamental liberty interest to be free from physical restraint. The complaint states Connecticut officers did this in two ways. First, it argues that the state did not have a narrowly tailored, compelling governmental interest in honoring the ICE detainer. Second, because correctional officers held him for ICE without the consent of a judge, Yale claims the risk is high that Brizuela was erroneously held.
In its lawsuit, Yale also seeks to invalidate all current and future ICE detainers in Connecticut by asking the court to authenticate a proposed class of similarly situated aliens held or to be held in local custody for ICE agents.
The lawsuit is the latest effort by illegal alien advocates to dismantle the nation’s immigration enforcement system. Recently, several sanctuary cities and counties have passed ordinances refusing to honor ICE detainers. These include Cook County, IL; San Francisco, CA; Santa Clara County, CA; Washington, DC; and New York City. (See FAIR Legislative Update, Oct. 24, 2011)
Last month, Immigration and Customs Enforcement (ICE) Director, John Morton, denounced Cook County’s refusal to honor ICE detainers as a “serious impediment” to immigration enforcement that “undermines public safety.” (Morton Letter to Preckwinkle, Jan. 4, 2012) He also warned that such ordinances may be illegal because they prohibit local officials from responding to ICE inquiries or sending immigration data to ICE, a possible violation of federal law. (See FAIR Legislative Update, Jan. 17, 2012)
A recently released 2011 reference guide for analysts working for the Department of Homeland Security’s (DHS) Media Monitoring Capability program reveals its mission includes keeping an eye on those who disagree with the Administration’s backdoor amnesty initiatives. (NY Times, Feb. 22, 2012) According to the guide, DHS is directing its analysts to identify and monitor “media reports that reflect adversely on DHS,” and track reports on the Administration’s “policy changes” in immigration and the term “illegal immigration” in particular. (Id.; see also 2011 DHS Manual, pp. 5-6)
The 2011 guide raises questions about recent claims by DHS officials who portrayed the program as limited to gathering information that would help gain operational awareness about attacks, disasters or other emerging problems. In addition to the analyst guide, DHS documents released in 2009 also indicate the Department is monitoring more than terrorist activity. Those documents reveal that DHS’ Social Networking/Media Capability program placed emphasis on gauging “public reaction to major government proposals with homeland security implications.” (See EPIC webpage; see also DHS documents acquired by EPIC)
The negative reaction to DHS’ “big brother” tactics has been overwhelmingly bipartisan. On Feb. 16, the House Subcommittee on Counterterrorism and Intelligence held a hearing on DHS’ monitoring of social networking and the media. (See Subcommittee Website, Feb. 16, 2012) Chairman of the Subcommittee, Patrick Meehan (R-PA), said DHS’ collection of intelligence on media reports adversely reflecting the government crosses the line and pointed out the “chilling effect” such monitoring could have on freedom of speech. (Rep. Meehan Opening Statement, Feb. 16, 2012) Ranking Member Jackie Speier (D-CA) described DHS’ ability to “build files on bloggers” as “outrageous” and a “violation of the Privacy Act.” She also said, “This…should not be a political operation and capturing public reactions to major government proposals is not something [the government] should be doing.” (Bloomberg Government Transcript, Feb. 16, 2012)
At the same hearing, DHS Chief Privacy Officer Mary Ellen Callahan denied allegations that DHS is capturing public reactions. “[Such behavior] would not have met the privacy standards that are in the five publicly available privacy impact assessments we've done.” (Bloomberg Government Transcript, Feb. 16, 2012)
The DHS analyst guide continues a pattern of efforts by President Obama to suppress views contrary to his Administration’s, such as the White House’s “flag” program during the healthcare debate and his campaign’s AttackWatch.com. (See Politico, Aug. 17, 2009; see also EPIC webpage)
On Friday, Arizona Republican Governor Jan Brewer declined Sen. Chuck Schumer’s (D-NY) request for her to testify before the Senate Subcommittee on Immigration this April over her state’s immigration enforcement law, SB 1070. (Roll Call, Feb. 23, 2012) Sen. Schumer, who Chairs the Subcommittee, scheduled the hearing entitled, “Examining the Constitutionality and Prudence of State and Local Governments Enforcing Immigration Law” on April 24, the day before the U.S. Supreme Court is slated to hear oral arguments on the Arizona law. (See Sen. Schumer Letter to Gov. Brewer, Feb. 23, 2012; see also FAIR Legislative Update, Feb. 6, 2012) Sen. Schumer says the hearing is to examine “whether it is both constitutional and sound public policy for states to enact broad laws, such as SB 1070 in Arizona, that are designed to deter and punish illegal immigration.” (See Sen. Schumer Letter to Gov. Brewer, Feb. 23, 2012)
Remarkably, in his call to the Governor to appear before the Subcommittee, Sen. Schumer claimed that Congressional appropriations for border security have now made SB 1070 unnecessary. Schumer specifically pointed to a one-time increase in border security funding provided through the 2010 Department of Homeland Security supplemental appropriations bill, suggesting it had provided enough resources to make the southern border secure. “Given the new level of security at our Southern Border as result of the August 2010 law,” Schumer wrote, “it would be extremely beneficial for the Committee to hear from you with regard to: 1) why you signed SB 1070 in 2010; 2) whether you still believe SB 1070 is necessary in light of the substantially increased security situation along our southern border; and 3) whether you favor SB 1070 being made a permanent law irrespective of whether conditions further improve along the southern border.” (See Sen. Schumer Letter to Gov. Brewer, Feb. 23, 2012)
Calling the proposed hearing a “publicity stunt,” the Governor’s spokesman, Matthew Benson, said Brewer will decline the Senator’s request. (The Hill, Feb. 24, 2012) “It doesn’t look like the most productive use of the governor’s time to attend the Senator’s hearing,” Benson said. (Id.) “Congress has had time to deal with this issue and hasn’t dealt with [it].” (Id.) Gov. Brewer is scheduled to appear as a witness in favor of SB 1070 at the Supreme Court’s hearing the next day. (Id.)
Sen. Schumer was not pleased over the Governor’s decision not to appear before the Subcommittee. “Governor Brewer has long said border security is one of the nation’s most pressing issues, so it is odd that she is unwilling to even come to Congress to defend her views.” (Politico, Feb. 24, 2012) “It makes you wonder whether there is genuine interest in finding real solutions to our broken immigration system. We hope the Governor will reconsider,” he said. (Id.)
The Federal District Court for Nebraska last Monday partly upheld and partly rejected the city of Fremont’s immigration enforcement ordinance. (See Keller v. Freemont and Martinez v. Fremont, Case No. 4:10CV3140, Feb. 20, 2012) The citizens of Fremont passed the ordinance as a ballot initiative in June 2010, after the City Council defeated a similar measure by one vote.
The Fremont ordinance has two major components. First, it seeks to end the employment of illegal aliens by requiring that employers in Fremont use E-Verify. (Ordinance, Part 5) Second, it seeks to stop the harboring of illegal aliens by requiring the city to check the immigration status of tenants. Specifically, the ordinance requires that renters first obtain an occupancy license from Fremont Police before signing a lease. (Ordinance, Part 3) The Fremont Police must then verify with the federal government the immigration status of individuals who have not declared themselves to be citizens or nationals. (Ordinance, Part 4) If the federal government reports that the individual is an illegal alien, the Police shall revoke the occupancy license. The revocation is subject to judicial review. (Id.)
One month after Fremont citizens adopted the ordinance, two federal lawsuits were filed against the City of Fremont: one by plaintiffs represented by the MALDEF and the other by plaintiffs represented by the ACLU. Together, these plaintiffs brought a litany of claims, including that the ordinance:
- Violates the Equal Protection Clause of the Constitution, because the housing provisions unlawfully discriminates against similarly situated renters;
- Violates the Due Process Clause of the Constitution, because it is impermissibly vague;
- Violates the civil rights provisions found in federal law (42 U.S.C. § 1981) because the housing provisions deny Latinos the right to make and enforce contracts on the same basis as white persons;
- Is preempted by federal law; and
- Violates the Fair Housing Act because it has a “disproportionate negative impact on Latinos.”
In its decision issued last week, the Court largely upheld the Freemont ordinance. The Court held that the ordinance:
- Does not violate the Equal Protection Clause because illegal aliens are not, by law, “similarly situated” as citizens and thus treating them different for housing purposes is not unlawful (Opinion at 21);
- Does not violate the Due Process Clause, finding that the plaintiffs’ claims were no more than allegations of “general confusion,” which by law are insufficient to make a claim of vagueness (Opinion at 23-25);
- Does not violate the civil rights provisions in 42 U.S.C. § 1981 because the plaintiffs essentially had claimed the ordinance has a disparate impact on Latinos, whereas the statute requires a showing of intentional discrimination to make a claim (Opinion at 32-35); and
- Is not preempted by federal law with respect to the E-Verify requirement, citing the U.S. Supreme Court’s recent decision in Chamber of Commerce v. Whiting (Opinion at 12-16).
Regarding the housing provisions, however, the Court’s ruling was mixed. (See generally Opinion at 16-19)The Court ruled that the portion of the ordinance that requires tenants to obtain occupancy licenses and police to check the immigration status of tenants is not preempted by federal law. However, the Court found that the federal law does preempt the revocation of occupancy licenses of illegal aliens because doing so would not be in harmony with federal objectives. The Court stated that forcing illegal aliens from one jurisdiction to another, “where their identity and whereabouts may be obscured,” will impair the scheme Congress has created for the identification and removal of illegal aliens. (Opinion at 18) The Court adopted this reasoning from a Third Circuit decision (Lozano v. City of Hazleton, 620 F.3d 170 (3rd Cir. 2010)), which the Supreme Court has already vacated and remanded for another review.
The Court also found that the housing provision in the Fremont ordinance violated the Fair Housing Act because it has a disparate impact on Latinos, reasoning that the majority of illegal aliens in Fremont were likely Latinos. To spare the entire ordinance from being struck down, the court held that Fremont Police could not revoke an occupancy license, even after learning the occupant is an illegal alien. (Opinion at 25-30)
Illegal alien advocates immediately claimed victory after the Court issued its opinion. Shirley Mora James, an attorney with MALDEF, said the ruling was good news for people who feared they could be forced onto the streets because of the housing law. (Omaha World Herald, Feb. 21, 2012) Amy Miller, the ACLU’s legal director in Nebraska, declared, “This victory should be a signal to other communities that ‘show me your papers' is a phrase that belongs in our history books, not our law.” (Id.)
However, Kris Kobach, of counsel for IRLI who helped draft the ordinance, said the ruling left three-fourths of the ordinance intact. (Id.) “The city still can require all (rental housing) occupants to get an occupancy license, it can require them to disclose whether they're U.S. citizens, and the city can take the names of all aliens and confirm whether they're in the country lawfully or unlawfully,” Kobach said. (Id.)