Immigration Issues and Enforcement

Andrew Brasher

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

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.

Terms

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

Things to talk about

1. Background on Beason-Hammon Act

2. Litigation History

3. Interpretation and Enforcement of Certain Provisions

4. Conclusion/Questions

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.

BACKGROUND ON THE ACT

Background   Original Bill (HB 56) (codified in 31-13 of Alabama Code)

  Employment provisions   Law Enforcement provisions   Data gathering provisions   New crimes

  Amended Bill (HB 658)   Modifications to fix problems in original bill

Background: Compared with Arizona

ARIZONA (1) Crime to fail to carry fed-

reg 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

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)

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

LITIGATION OVER THE ACT

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

Other Theories

  Certain provisions violate Equal Protection   Schools information-gathering provision

  Certain provision violates First Amendment   Day laborer/stopping traffic provision

Litigation History

  Rulings by District Court

  Preliminary Injunction

  Stopped Enforcement of 11, 13, 16, 17.

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

Litigation History

  Rulings by Court of Appeals

  Applied Arizona decision

  Enjoined additional statutes

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.

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.

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 § 31-13-28 (birth certificate for voter registration) (Arizona v. Intertribal Council)

ENFORCEMENT OF SOME OTHER SECTIONS

OF THE ACT

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.

  http://www.uscis.gov/portal/site/uscis

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 31-13-25(b))

  For contractors who are too small for federal E-Verify, the Alabama Homeland Security has created a state-level site. https://verify.alabama.gov/

  Participation provides immunity for businesses

Enforcement issues   Crime for “public records transactions” (31-13-29)

  Denial of public benefits (31-13-15)

  These provisions are meant to work together

Enforcement Issues: public records transactions

  “public records transactions”

  Must have lawful status for: license plates, driver’s license, professional license. Section 30 (Ala. Code 31-13-29).

  Do not need lawful status for: marriage, housing, real property, payment of taxes. Section 30 (Ala. Code 31-13-29).

Enforcement Issues: deny state and local benefits

  31-13-15(b): An alien who is not lawfully present in the United States . . . shall not receive any state or local public benefits.

  .

Enforcement Issues: deny state and local benefits

  Cannot deny (31-13-15):   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

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

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.

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

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.

SAVE program: Public Benefits Aliens should be asked to sign declarations

31-13-7(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.

SAVE program: Public Records Trans. Call the Feds

31-13-29(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. 1373. 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

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

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.

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.

  31-13-7(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).

Conclusion/Going Forward

State law should be applied consistent with federal laws

Must rely on federal government to determine status

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  

Conclusion/Going Forward

  ICE Offices in Alabama   Birmingham 205-290-7150   Mobile 251-441-6146

1-800-X-SECTOR 1-800-973-2867

Questions

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 § 31-13-15(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 § 31-13-15(l)