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State Immigration Laws: Where Are They Now?

Tuesday, December 27, 2011

Yamuna Bhaskaran | Bloomberg Law There has been a recent movement in several state legislatures to enact laws directly targeting undocumented aliens. Not surprisingly, those laws have been challenged on civil rights grounds, as well as on constitutional grounds, because of their perceived encroachment on the federal government's authority to regulate immigration. Recently, the U.S. Supreme Court granted certiorari1 to review the constitutionality of Arizona's immigration law, and several lawsuits currently in the lower courts involving other states' regulations may be stayed pending the outcome of that appeal. This article will identify those laws, the cases challenging them, and their status.

Arizona

Perhaps the most well-known example of a state enacting its own immigration regulations is Arizona's SB 10702 formally known as the "Support Our Law Enforcement and Safe Neighborhoods Act." Enacted on April 23, 2010, S.B. 1070 was comprehensive in scope and, among other things, permitted police to determine a person's immigration status at a lawful stop, detention, or arrest, criminalized the hiring of undocumented immigrants, criminalized the failure to carry alien registration papers, and authorized the warrantless arrest of undocumented aliens under certain circumstances. Shortly after the law was enacted, the U.S. government filed suit against Arizona on the grounds that the law violated the Supremacy Clause of the U.S. Constitution3 and that it was preempted by the federal government's existing regulatory scheme for immigration. The U.S. District Court for the District of Arizona enjoined the enforcement of certain sections of the law but upheld others,4 and a divided panel of the U.S. Court of Appeals for the Ninth Circuit affirmed.5 The U.S. Supreme Court recently granted certiorari on the question of "[w]hether the federal immigration laws preclude Arizona's efforts at cooperative law enforcement and impliedly preempt [the] provisions of . . . S.B. 1070 on their face," and is expected to hear the case in the spring of 2012 (the ArizonaAppeal).6 Justice Elena Kagan's recusal, presumably due to her involvement in the underlying proceedings during her tenure as U.S. Solicitor General, raises the possibility that the vote will end in a tie that would leave the Ninth Circuit's decision intact. The case is being closely watched because it will likely set the boundaries for other states to independently regulate immigration.7

Utah

Utah's Illegal Immigration Enforcement Act8 requires police officers to inquire about a person's legal status upon detention or arrest. It also requires that state and local agencies verify legal status prior to issuing government benefits, among other things. The law was scheduled to take effect on May 10, 2011, but the U.S. District Court for the District of Utah granted a temporary restraining order on May 11, 2011, prohibiting its enforcement.9 The case is still pending, and a hearing on plaintiffs' motion for a preliminary injunction is scheduled for February 17, 2012.10

South Carolina

South Carolina's immigration law, commonly referred to as Act 69,11 is an expansive statute that not only contains restrictions on harboring or employing illegal immigrants, but also empowers state residents to take action against local governments that violate state or federal immigration laws. Aliens are required to carry their registration papers, and police officers are required to establish a person's legal status at a stop or arrest if they have a "reasonable suspicion to believe that the person is unlawfully present in the United States." SB 20 also empowers a state "Illegal Immigration Enforcement Unit" to "enforce immigration laws as authorized pursuant to federal laws and the laws of [the] State." South Carolina's law is being challenged in two separate lawsuits in the U.S. District Court for the District of South Carolina.12 Despite the state's motion to stay the proceedings and allow the law to go into effect in light of the Arizona Appeal and because of another anticipated Supreme Court opinion,13 the court nevertheless enjoined the enforcement of certain provisions of the law on December 22, 2011.14

Alabama

The Beason-Hammon Alabama Taxpayer and Citizen Protection Act, commonly referred to as HB 56,15 contains provisions considered even more restrictive than the Arizona law it was modeled after.16 For instance, under the Alabama law, it is a felony punishable by a prison term of up to ten years for undocumented aliens to enter into, or attempt to enter into, "a business transaction with the state or a political subdivision of the state." Another section requires public schools to determine their students' immigration status, and to report certain statistics to the states. The U.S. District Court for the Northern District of Alabama enjoined the enforcement of certain provisions of the law.17 The government then appealed to the Eleventh Circuit asking the court to enjoin pending appeal the provisions that the lower court had refused to enjoin. The Eleventh Circuit granted it partial relief, enjoining pending appeal some of the provisions that the lower court had refused to enjoin.18 The state of Alabama recently filed a motion to stay further proceedings in the Eleventh Circuit because of the Arizona Appeal. The motion has been opposed by the United States on the grounds that the sections of the law that have not been enjoined are still being enforced by the state and causing harm,19 and because the Arizona Appeal may not be dispositive since the Alabama law is more expansive than the Arizona one.20

Georgia

Georgia's Illegal Immigration Reform and Enforcement Act of 2011,21 referred to as HB 87, was enacted on May 13, 2011. As with other state immigration laws, the Act permits police to inquire about legal status, prohibits harboring aliens, and limits the types of documents that state officials may use to verify immigration status. Before the Act was supposed to go into effect on July 1, 2011, a lawsuit22 was filed, and the U.S. District Court for the Northern District of Georgia enjoined its enforcement.23 An appeal is now pending before the Eleventh Circuit,24 but on December 15, 2011, the state of Georgia filed an unopposed motion seeking to stay the proceedings on the grounds that the Arizona Appeal "will substantially impact and could be dispositive of" the case. 25

Indiana

Indiana enacted its immigration reform law, SEA 590,26 on May 10, 2011. Fifteen days later, a lawsuit was filed challenging the law.27 The U.S. District Court for the Southern District of Indiana granted an injunction on June 24, 2011, prohibiting the enforcement of two of SEA 590's provisions.28 One section permitted warrantless arrests of persons subject to removal orders issued by federal immigration officials, while the other criminalized the acceptance of consular identification as a valid form of identification for any purpose. Plaintiffs recently moved for summary judgment, and the parties continue to brief their respective positions.29

Oklahoma

The Oklahoma Taxpayer and Citizen Protection Act of 2007 was enacted on May 8, 2007.30 The U.S. District Court for the Northern District of Oklahoma dismissed a constitutional challenge to the statute, holding that the plaintiffs did not have standing.31 This past summer, the Supreme Court of Oklahoma held that parts of the Act violated the state constitution.32 For example, the section that created a rebuttable presumption that illegal immigrants were flight risks for the purpose of establishing bonds in criminal cases violated the state constitution's prohibitions against passing special laws that modified rules of evidence.33DisclaimerThis document and any discussions set forth herein are for informational purposes only, and should not be construed as legal advice, which has to be addressed to particular facts and circumstances involved in any given situation. Review or use of the document and any discussions does not create an attorney-client relationship with the author or publisher. To the extent that this document may contain suggested provisions, they will require modification to suit a particular transaction, jurisdiction or situation. Please consult with an attorney with the appropriate level of experience if you have any questions. Any tax information contained in the document or discussions is not intended to be used, and cannot be used, for purposes of avoiding penalties imposed under the United States Internal Revenue Code. Any opinions expressed are those of the author. The Bureau of National Affairs, Inc. and its affiliated entities do not take responsibility for the content in this document or discussions and do not make any representation or warranty as to their completeness or accuracy.©2014 The Bureau of National Affairs, Inc. All rights reserved. Bloomberg Law Reports ® is a registered trademark and service mark of The Bureau of National Affairs, Inc.

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