Immigration Issues and Enforcement. Andrew Brasher

Transcription

1 Immigration Issues and Enforcement Andrew Brasher

2 Who am I? Why am I here? A lawyer that worked on immigration-related litigation Last person to say no when asked Not an expert; there are no real experts on this subject

3 Disclaimer This presentation is for entertainment purposes only. This presentation is not legal advice. This presentation does not represent the official position of the State or the Attorney General s Office.

4 Terms Unlawfully present person, undocumented person, unauthorized worker = illegal immigrant

5 Things to talk about 1. Background on Beason-Hammon Act 2. Litigation History 3. Interpretation and Enforcement of Certain Provisions 4. Conclusion/Questions

6 Things to talk about THE MAIN POINT: The state law is written to be enforced consistently with federal law and in ways not to conflict with federal law that is how is must be enforced.

7 BACKGROUND ON THE ACT

8 Background Original Bill (HB 56) (codified in of Alabama Code) Employment provisions Law Enforcement provisions Data gathering provisions New crimes Amended Bill (HB 658) Modifications to fix problems in original bill

9 Background: Compared with Arizona ARIZONA (1) Crime to fail to carry fedreg papers (2) Crime for unauth. worker to seek employment (3) Arrest protocols state officers w/ reas. suspicion call feds (4)Crime to harbor/transport (5) Arrest for illegal presence ALABAMA YES (section 10) YES (section 11) YES (sections 12 &18) YES (section 13) NO

10 Background: Some provisions not in Arizona Section 16: no tax deduction for wages to illegal alien Section 17: civil liability for employing illegal alien Section 27: State Courts cannot enforce contracts with illegal aliens Section 28: birth certificates for school enrollees Section 30: public records transaction Section 5 & 6: affirmative duty to enforce and cause of action for failure to enforce (later eliminated cause of action)

11 Litigation History Lawsuits by DOJ and private groups to enjoin multiple provisions of the Act Others also sued: Arizona Georgia South Carolina Various towns and cities

12 LITIGATION OVER THE ACT

13 Preemption theories Preemption can be: 1. Constitutional: regulation of immigration 2. Field preemption 3. Conflict preemption ( obstacle preemption ) De Canas v. Bica (1976) CA law making it illegal to employ unauthorized workers NOT preempted Congress later imposed fines on employers

14 Other Theories Certain provisions violate Equal Protection Schools information-gathering provision Certain provision violates First Amendment Day laborer/stopping traffic provision

15 Litigation History Rulings by District Court Preliminary Injunction Stopped Enforcement of 11, 13, 16, 17.

16 Litigation History Rulings by Supreme Court in Arizona case States cannot impose penalties on employees because Congress has imposed penalties on employers States cannot criminalize unlawful presence States can work with federal authorities to enforce federal law

17 Litigation History Rulings by Court of Appeals Applied Arizona decision Enjoined additional statutes

18 Litigation History Where are we now? The Court of Appeals decision is the operative decision at this time. In the District Court, parties are trying to work out how to proceed.

19 Litigation History Several things could happen in the DOJ lawsuit that would affect implementation Everyone may agree how the lawsuit must be resolved now that SCOTUS has weighed in. Everyone might disagree about everything and continue litigating. There might be certain areas of disagreement that are litigated. SCOTUS might weigh in again in some other state s lawsuit and change everything.

20 Currently Unenforceable Sections USA v. Alabama: 10 (crime of unlawfully present), 11(a) (work), 13 (harboring), 16 (tax deduction), 17 (civil action against employer), 27 (enforceability of contracts) HICA v. Alabama: 11(f) and (g), (day laborer), 28 (schools) Other: Ala. Code (birth certificate for voter registration) (Arizona v. Intertribal Council)

21 ENFORCEMENT OF SOME OTHER SECTIONS OF THE ACT

22 Enforcement Issues: E-Verify Federal law requires companies to employ only individuals who may legally work in the United States E-Verify is a free Internet system that allows businesses to determine the eligibility of their employees to work in the United States.

23 Enforcement Issues: Government Contracting All contractors with State must enroll in E-Verify and/or certify that they do not knowingly employ unlawfully present persons (Ala. Code (b)) For contractors who are too small for federal E-Verify, the Alabama Homeland Security has created a state-level site. Participation provides immunity for businesses

24 Enforcement issues Crime for public records transactions ( ) Denial of public benefits ( ) These provisions are meant to work together

25 Enforcement Issues: public records transactions public records transactions Must have lawful status for: license plates, driver s license, professional license. Section 30 (Ala. Code ). Do not need lawful status for: marriage, housing, real property, payment of taxes. Section 30 (Ala. Code ).

26 Enforcement Issues: deny state and local benefits (b): An alien who is not lawfully present in the United States... shall not receive any state or local public benefits..

27 Enforcement Issues: deny state and local benefits Cannot deny ( ): Schooling through high school Emergency health care Emergency disaster relief Immunizations Certain federal programs Short-term noncash assistance (e.g. shelters) prenatal care. Child protection and domestic violence

28 Enforcement Issues: public records transactions and local benefits Why isn t this preempted and enjoined? REAL ID Act encourage states to require evidence of lawful status before issuing driver s license or ID Welfare Reform Act deemed some illegal aliens ineligible for welfare benefits As long as state law is applied consistently with these federal laws, then there is no problem. Magee lawsuit

29 SAVE program Sections 30(c) and ( f ): State and local officials can determine an alien s immigration status only through verification with the federal government through either the Systematic Alien Verification for Entitlements ( SAVE ) program or some other verification with the U.S. Department of Homeland Security pursuant to 8 U.S.C. 1373(c). Must establish protocol with the federal government for the SAVE program.

30 SAVE program Apply with federal government for permission Agency must be authorized by law to verify immigration status. Cost is approximately 50 cents a search

31 SAVE program During the USA v. Ala. litigation, the US stopped processing SAVE applications from Alabama. The US has apparently started to process them again, although this could be a red herring.

32 SAVE program: Public Benefits Aliens should be asked to sign declarations (i): The verification that an alien seeking state or local public benefits is an alien lawfully present in the United States shall be made through the Systematic Alien Verification for Entitlements (SAVE) program, operated by the United States Department of Homeland Security. If for any reason the verification of an alien's lawful presence through the SAVE program is delayed or inconclusive, the alien shall be eligible for state or local public benefits in the interim period if the alien signs a declaration that he or she is an alien lawfully present in the United States.

33 SAVE program: Public Records Trans. Call the Feds (f): In the enforcement of this section, an alien's immigration status shall be determined by verification of the alien's immigration status with the federal government pursuant to 8 U.S.C An official of this state or political subdivision of this state shall not attempt to independently make a final determination of whether an alien is lawfully present in the United States

34 Enforcement Issues: Law Enforcement Tool vs. License: this law is a tool to use to help enforce federal immigration laws, not a license to enforce. Cannot stop or arrest purely for immigration-related suspicion Cannot detain for longer than otherwise authorized Should check immigration status of stopped person or arrestees with federal authorities

35 Enforcement Issues: Law Enforcement Upon any lawful stop, detention, or arrest: a) The inquiry regarding immigration status begins after a person is lawfully seized for a crime unrelated to their immigration status. b) Federal & Alabama law prohibit racial profiling i) race, color or national origin cannot be used in enforcement of this section c) The Constitutional rights of all people must be protected.

36 Enforcement Issues: Law Enforcement State, County and Municipal Law Enforcement still can t enforce federal immigration law: Our role is to assist the federal government in its role of enforcing the federal immigration laws (f): No official of this state or political subdivision of this state shall attempt to independently make a final determination of whether an alien is lawfully present in the United States. An alien's lawful presence in the United States shall be verified by the federal government pursuant to 8 U.S.C. 1373(c).

37 Conclusion/Going Forward State law should be applied consistent with federal laws Must rely on federal government to determine status

38 Conclusion/Going Forward When in doubt call the Feds. The Immigration and Naturalization Service shall respond to an inquiry by a Federal, State, or local government agency, seeking to verify or ascertain the citizenship or immigration status of any individual within the jurisdiction of the agency for any purpose authorized by law, by providing the requested verification or status information. 8 U.S.C. 1373

39 Conclusion/Going Forward ICE Offices in Alabama Birmingham Mobile X-SECTOR

40 Questions

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42 Enforcement Issues: E-Verify Section 15: [n]o business entity, employer, or public employer shall knowingly employ, hire for employment, or continue to employ an unauthorized alien to perform work within the State of Alabama. Ala. Code (a). Section 15: every business entity or employer in this state shall enroll in E-Verify, and thereafter, according to the federal statutes and regulations governing E-Verify, shall verify the employment eligibility of the employee through E-Verify. Ala. Code ). This section does not apply to the relationship between a party and the employees of an independent contractor performing work for the party and does not apply to casual domestic labor performed within a household. Ala. Code (l)