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Justice Department Sues Alabama over Nation's Most Severe State-Level Immigration Law
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Justice Department Sues Alabama over Nation's Most Severe State-Level Immigration Law

August 16, 2011
Policy Beat
By Claire Bergeron, Muzaffar Chishti

The U.S. Department of Justice (DOJ) filed a highly anticipated lawsuit this month to block the state of Alabama from implementing its controversial new immigration enforcement law, HB 56. The suit alleges that the Alabama law, which was set to go into effect in September, is preempted by federal immigration law and is in violation of the Constitution.

The lawsuit marks the second time in just over a year that the Obama administration has stepped in to challenge a state's immigration enforcement measure. In July of last year, it brought a similar suit against Arizona's SB 1070 – a similarly contentious immigration law – beginning a legal battle that was taken up to the U.S. Supreme Court last week.

The DOJ lawsuit is not the first filed against the Alabama law: a federal-level suit was filed by immigrant advocacy organizations shortly after the law's passage in June, and a state lawsuit alleges that the bill conflicts with the Alabama Constitution. The federal government's decision to file suit against Alabama won accolades from immigrant advocates and drew sharp criticism from proponents of tougher immigration enforcement. It also adds fuel to the fire with respect to current debates over the economic ramifications of state immigration bills like HB 56 during a time of slow recovery for the national economy.

Strictest of Them All? Alabama's Law Compared to Other State-Level Immigration Laws

Alabama's HB 56, signed into law by Governor Robert Bentley, is one of five recently enacted state immigration enforcement measures generally modeled after Arizona's SB 1070. Like the Arizona law, HB 56 and the four other laws – Georgia's HB 87, Utah's HB 497, Indiana's SB 590, and South Carolina's SB 20 – all face multiple constitutional and legal challenges in state and federal district courts. To date, however, the Alabama and Arizona laws are the only ones to prompt intervention by DOJ.

With regards to why the federal government has chosen to challenge HB 56 (and SB 1070) but not the other state-level enforcement measures, Attorney General Eric Holder has indicated that DOJ is evaluating each state law individually to determine if they interfere with federal immigration enforcement, and will bring suit accordingly. The fact that the Alabama measure is considered the most severe and has a deeper impact on federal interests than any other state-level enforcement law to date may have triggered federal intervention.

Like most of the other SB 1070-type laws (excluding Indiana's), the new Alabama law states that law enforcement officers shall verify the immigration status of anyone stopped or arrested if an officer has a "reasonable suspicion" that the person is an unauthorized immigrant. As with each of the other bills, it also makes it a state crime for a noncitizen to fail to carry proof of his or her lawful status. The bill also includes a mandatory E-Verify provision for all employers in the state, intended to curb the employment of unauthorized immigrants.

But HB 56 goes much farther than the other state laws – and even further than SB 1070 – to restrict the activities of unauthorized immigrants. The law criminalizes the act of providing housing or transportation to the unauthorized, and makes it illegal for unauthorized immigrants to drive, work, or rent an apartment in the state. It prohibits unauthorized immigrant students from enrolling in any state-funded postsecondary school, and requires public elementary and secondary schools to inquire into the legal status of their pupils and to report on the number of unauthorized students enrolled. The law also creates an "affirmative duty" on the part of state and local officials to report violations of HB 56.

In its suit to block the Alabama law, the Justice Department has argued that HB 56 undermines the federal government's ability to set a national immigration policy and balance immigration enforcement priorities with international obligations and foreign policy concerns. The government also asserts that the law will divert federal resources away from high-priority criminal aliens and will lead to the "detention and harassment" of authorized visitors, immigrants, and citizens who fail to carry the identification documents specified in the statute.

So far, state-level immigration measures like SB170 and HB 56 have not fared well in the federal courts. Over the summer, federal district courts in Indiana, Utah, and Georgia preliminarily enjoined large portions of those states' immigration enforcement bills, finding that such measures were likely preempted by federal law. And in April, the 9th U.S. Circuit Court of Appeals upheld a lower court's preliminary injunction of the most controversial parts of SB 1070 – a decision that has been appealed to the U.S. Supreme Court by Arizona Governor Jan Brewer.

Tensions Flare among Relevant Stakeholders

Like Arizona's SB 1070, Alabama's new law has sparked intense protests and criticism. Church groups and immigrant service providers have expressed fears that the new provisions against harboring and transporting unauthorized immigrants will criminalize the actions of volunteers who provide spiritual guidance, charitable assistance, and legal services to immigrant communities. The Alabama Department of Education has also scrambled to reassure anxious parents that the new law does not prohibit unauthorized immigrant children from attending school – a widespread concern rooted in HB 56's requirement that schools inquire into the immigration status of their pupils.

An even more vociferous criticism of the Alabama law and similar measures in other states has come from the business community and prominent agricultural groups. The American Farm Bureau Federation, the Georgia Fruit and Vegetable Growers Association, and the Alabama Farmers Federation have argued that laws like HB 56 already have or will have a profoundly negative impact on state economies and could potentially dry up immigrant labor supply. Other business, restaurants, and construction companies have similar concerns about meeting local labor demands. Additionally, studies in Georgia say the passage of HB 87 has left thousands of jobs unfilled and could lead to $250 million in economic losses this year alone.

The passage of HB 56 has also prompted a strong reaction from foreign countries. In fact, 16 South American and Central American countries filed briefs in federal court opposing HB 56, alleging that the new law threatens the rights of their citizens and raises "substantial challenges" to those countries' relationships with the United States.

Supporters of HB 56 in the Alabama legislature have generally maintained that the new bill is necessary to respond to the lack of federal action on immigration enforcement. Alabama House Majority Leader Micky Hammon, the primary sponsor of HB 56, told reporters that federal officials have "turned a blind eye toward the immigration issue and refuse to fulfill their constitutional duty to enforce laws already on the books." Other supporters of the law have argued that, with a current unemployment rate in Alabama of close to 10 percent, HB 56 is necessary to help free up jobs now filled by unauthorized immigrants for lawful Arizona residents.

Policy Beat in Brief: Other Major U.S. Policy News

ICE Terminates Secure Communities MOAs with States and Localities. In a major policy shift for the Secure Communities program, Homeland Security Assistant Secretary John Morton announced that Immigration and Customs Enforcement (ICE) would no longer require states to enter into Memoranda of Agreement (MOAs) in order for the immigration enforcement program to be implemented in their jurisdictions.

Because the previous Secure Communities policy required some degree of state cooperation, governors had been able to block participation in the program by not entering into (or rescinding) an MOA with ICE. Under the new policy, ICE will cancel all existing MOAs and deploy Secure Communities regardless of whether or not state officials would prefer to participate in the program. In his letter to governors announcing the new change in policy, Assistant Secretary Morton emphasized that ICE would be issuing new guidance to ensure that Secure Communities focused its resources on high-level criminals.

Secure Communities is a controversial program that screens the fingerprints of all individuals arrested in designated jurisdictions against federal immigration databases. While the government has credited the program with helping it deport record numbers of criminal aliens, critics allege that most of the noncitizens removed as a result of Secure Communities do not have criminal records.

  • Read Assistant Secretary Morton's letter to governors on the termination of Secure Communities MOAs.
  • Find out more about Secure Communities in the March 2011 Policy Beat.

Study Finds Fewer Mexican Migrants Returning Home. A new study published by the RAND Corporation has generated significant interest in policy circles due to its finding that fewer Mexican immigrants returned to Mexico between 2008 and 2009 than did during the two years prior to the onset of the global economic recession (2006 and 2007). The study supplements a growing body of evidence indicating that, while the current recession has led to lower level of migration inflows to the United States, it has not caused large numbers of immigrants to leave the country.

Court of Appeals Finds Deported Noncitizen May File Motion to Reconsider from Outside the Country. In a decision that has significant consequences for noncitizens deported from the United States, the 3rd U.S. Circuit Court of Appeals held that noncitizens who are removed from the United States may still file motions to reopen or motions to reconsider their immigration cases while they are living abroad. The appeals court based its ruling on the text of the 1996 Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), which specifically grants noncitizens the right to file one motion to reconsider and one motion to reopen a decision by the Board of Immigration Appeals (BIA). The new ruling conforms to similar holdings from the 4th, 6th, and 9th Circuits.

  • Read the new decision from the 3rd U.S. Circuit Court of Appeals.

USCIS Launches New Initiative for Immigrant Entrepreneurs. U.S. Citizenship and Immigration Services (USCIS) announced the implementation of a new series of measures aimed at attracting foreign-born entrepreneurs. Among other changes, USCIS will now allow applicants for EB-5 immigrant investor visas to interview before a USCIS panel in order to resolve problems found in their applications. The agency has also updated its public memoranda to clarify that immigrant entrepreneurs are eligible to self-petition for H1-B visas and green cards in the EB-2 category. USCIS rolled out the new initiative on the six-month anniversary of the creation of "Startup America," a White House program aimed at promoting entrepreneurship.

  • Find out more about the changes to promote entrepreneurship in USCIS's new press release on the initiative.
  • Learn more about the EB-5 investor visa program in the December 2009 Policy Beat.

Illegal Re-entry Tops All Federal Criminal Charges During First Half of 2011. Illegal re-entry of a noncitizen following a prior removal was the top federal criminal charge brought by prosecutors during the first six months of fiscal year (FY) 2011, according to a new report issued by the Transactional Records Access Clearinghouse (TRAC).

The report notes that federal prosecutors filed 18,552 new prosecutions for illegal re-entry between October 2010 and April 2011, a figure that is roughly 5 percent greater than the total number of prosecutions brought for illegal re-entry in all of FY 2007 (17,679) and 2.3 times greater than the total number of such prosecutions brought in all of FY 2000 (7,919). Prosecutions for illegal re-entry constituted roughly 23 percent of all federal criminal prosecutions, including prosecutions for drug and gun trafficking and financial crimes.

  • Find out more about prosecutions for illegal re-entry in the Source's April 2010 Feature Story, Arrested on Entry: Operation Streamline and the Prosecution of Immigration Crimes.
  • Check out the new TRAC report.

Diversity Visa Lottery Conducted...Again. The U.S. Department of State (DOS) reran its annual diversity visa lottery in July, two months after the department discovered a flaw in the original lottery process and voided the results.

The diversity visa program grants up to 55,000 permanent visas each fiscal year to individuals from countries whose nationals do not otherwise make up a sizeable percentage of the immigrants to the United States. Because DOS receives far more applications than the number of visas available each year, diversity visa recipients are selected at random by a computer-generated lottery process. During the FY 2012 application cycle, which culminated in the July rerun of the lottery drawing process, 14.8 million people submitted applications.

DOS Takes Steps to Limit Visas for Iranian Officials. In a coordinated effort with the foreign affairs ministries of Great Britain and Canada, DOS announced that it would deny visas to roughly 50 Iranian officials and diplomats who have engaged in human-rights abuses. The decision is based on a Immigration and Nationality Act (INA) provision that states that the United States may deem inadmissible any noncitizen whose admission would have potentially serious adverse foreign policy consequences for the United States. The United States has previously utilized this provision of the INA to deny visas to diplomats and government officials from Libya, Belarus, and Cote d'Ivoire.

State and Local Policy Developments

Governor Signs Illinois DREAM Act. Illinois Governor Pat Quinn signed into law the Illinois DREAM Act, which increases the number of scholarship opportunities and college savings programs available to students who are the children of immigrants. The bill expands enrollment in the state's College Savings Pool to allow parents to participate in the pool regardless of whether their children have valid social security numbers or legal immigrant status. It also authorizes the creation of a nine-member "DREAM fund commission" that will establish a nonprofit tasked with raising funds and providing scholarships for children of immigrants.

...While CA Governor Signs Similarly Titled Bill. California Governor Jerry Brown signed into law AB 130, one of two bills jointly referred to as the California DREAM Act. The new law piggybacks on a previously enacted California law that allows certain unauthorized immigrant students to pay in-state tuition at state colleges and universities if they attended at least three years of high school in California and graduated or obtained a GED. Under AB 130, unauthorized students who are already eligible to pay in-state tuition will also be eligible to receive privately funded financial aid. A companion bill, AB 131, which would allow such students to qualify for publicly funded financial aid, is currently pending in the state senate.

Lawsuit in MD Seeks Implementation of Maryland DREAM Act. An immigrant advocacy group and a coalition of students and parents have filed a lawsuit seeking to invalidate more than 50,000 of the signatures on a petition that halted implementation of Maryland's SB 167, known as the Maryland DREAM Act, and placed the bill on the ballot for the November 2012 elections.

The act, which state legislators passed in April, allows certain unauthorized immigrant students to qualify for in-state tuition at Maryland state colleges and universities. The act had been set to take effect July 1, 2011.

  • Read the text of SB 167, the Maryland DREAM Act.
  • Read the recent complaint seeking immediate implementation of the Maryland DREAM Act.

New Arizona Law Prohibits Use of Consular Identification Cards as Valid Form of Identification. A new Arizona law that took effect on July 20, 2011 bars state agencies from accepting consular identification cards issued by foreign governments as valid forms of identification. Proponents of the law have emphasized that consular identification cards are primarily used by unauthorized immigrants, who may not be eligible for valid state-issued identification documents, and that the cards are vulnerable to fraud and forgery. A similar provision in Indiana was recently enjoined by a federal judge.

VA County Files Lawsuit Over Immigration Records. Officials in Prince William County, VA, filed a lawsuit against the Department of Homeland Security (DHS) demanding access to information on the immigration status of more than 4,000 immigrants who were originally arrested by county police and later handed over to DHS. The suit comes after the federal government failed to respond to two Freedom of Information Act (FOIA) requests seeking said information.

Since 2007, Prince William County has had a policy whereby the police inquire into the immigration status of each individual booked into custody, and contact DHS whenever a detained individual is suspected to be unlawfully present in the United States.

MD County to Pay $4.2 Million in Back Pay to Settle H-1B Lawsuit. Prince George's County in MD reached a settlement with the U.S. Department of Labor (DOL) through which the county will pay nearly $4.2 million in back wages to foreign-born teachers who entered the United States on temporary H-1B visas. The settlement will end an investigation by DOL that alleged that the county had willfully violated federal employment law by requiring the foreign-born teachers to pay their own visa and recruitment fees.

H-1B visas are granted to highly skilled foreign born who hold at least a bachelor's degree, and are valid for up to six years.

Two New Laws on Immigrant Employment Signed in LA. Louisiana Governor Bobby Jindal signed into law two new bills governing E-Verify and the employment of noncitizens. The first, HB 646, takes effect August 15, 2011 and makes it a state crime to employ, hire, recruit, or refer for employment any noncitizen who is not authorized to work. The bill also provides that no employer shall be subject to a penalty under the law if he or she either enrolls in the federal government's E-Verify program, or maintains a copy of each employee's picture identification and document proving legal immigration status and authorization to work (U.S. citizen birth certificate, naturalization certificate, certificate of citizenship, alien registration card, or I-94 form). The second bill, HB 342, which will take effect January 1, 2012, provides that all employers seeking public contracts from the state must enroll in and use the E-Verify program to vet potential employees.

 

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