An important chapter of heightened activism by states in immigration enforcement has drawn to a near close with the decision by the state of Alabama to settle a lawsuit that blocks key provisions of HB 56, the state's highly contested omnibus immigration enforcement law.
The Alabama settlement last month, which ends a lawsuit that has been moving through the courts since enactment of HB 56 in 2011, can be seen, at least for now, as the final blow to a breed of multi-pronged state laws aimed at cracking down on illegal immigration. The critical blow clearly came in June 2012 when the Supreme Court, in Arizona v. United States, struck down most provisions of Arizona's SB 1070, a precursor to HB 56 and similar legislation by several other states.
While states have historically sought and had a role in policies affecting noncitizens, their engagement in enforcement of federal immigration laws began in earnest in the mid-1990s and gained speed over the past three years as state legislators moved to enact omnibus laws designed to encourage unauthorized immigrants to leave or discourage them from settling. Arizona led the charge in 2010 by enacting SB 1070, which served as the blueprint for this forceful new activism toward unauthorized immigrants, rooted in the idea of "attrition through enforcement." Five states — Alabama, Georgia, Indiana, South Carolina, and Utah — quickly followed Arizona's example in 2011, with the Alabama law considered the most far-reaching and stringent of these measures.
Most provisions of HB 56 never went into effect because they were blocked by federal courts. The law was almost entirely enjoined by the U.S. Court of Appeals for the 11th Circuit in August 2012 in light of the Supreme Court's decision in Arizona v. United States. In April 2013, the Supreme Court declined to hear the state's appeal, effectively leaving intact the lower court's decision.
Alabama on October 29 settled the lawsuit brought by immigrant and civil-rights advocates, as it became clear that the Supreme Court and the 11th Circuit rulings would prevent most of the law's components from ever being enforced.
Under the settlement, Alabama state officials agreed to block components of HB 56 that would have:
In addition to agreeing to block these provisions, the state will pay organizations that brought the lawsuit — including the Southern Poverty Law Center, American Civil Liberties Union, National Immigration Law Center, and Mexican American Legal and Education Defense Fund — $350,000 for attorney fees and expenses incurred in the litigation.
Immigrant and civil-rights groups are lauding the settlement as a major victory that upholds constitutional rights and demonstrates that draconian immigration laws are not viable. They have called on Alabama state lawmakers to repeal what's left of HB 56. Alabama officials, on the other hand, have defended HB 56, arguing that "the meat of [it] is still intact." Alabama's Attorney General did acknowledge, however, that the courts have made it clear that some of the Alabama provisions are invalid and that the state intends to fulfill its duty to follow the law.
The Remains of HB 56
While most of HB 56 has been effectively gutted by the settlement, several parts remain intact, but still open to further legal challenge. These provisions mirror others that have either been upheld or not specifically enjoined by recent Supreme Court rulings.
Thus, the law's employment verification provision, which requires all employers in Alabama to check the immigration status of new hires using the federal E-Verify system, remains intact. A variety of employment verification mandates, upheld by the Supreme Court in its 2011 decision Whiting v. Chamber of Commerce are law in approximately 20 states. Additionally, an Alabama provision that prevents unauthorized immigrants from obtaining business licenses or enrolling at state colleges and universities remains untouched.
Another important part of the law — the so-called "show me your papers" provision — also stands. It requires state and local law enforcement to check the immigration status of anyone they stop, arrest, or detain for a state offense and then also suspect to be unauthorized. A similar provision was the sole component of Arizona's SB 1070 that was not struck down in Arizona v. Unites States. In its ruling, the Supreme Court left open the possibility of future challenge to that provision.
Since then several legal developments, including the Alabama settlement, have further clarified how far states can go in implementing "show me your papers" measures.
Under the settlement, Alabama law enforcement officers retain the right to check the immigration status of those they stop for a state crime. But officers may not stop, detain, arrest, or prolong the detention of any person for the sole purpose of determining his or her immigration status or because they suspect the person is unauthorized. The agreement follows an August 2013 ruling in a Fourth Circuit Court of Appeals case which held that the Fredrick County Sheriff's Office in Maryland, the defendant in the case, does not have the authority to arrest and detain an individual solely based on known or suspected civil immigration violations. In Arizona, many have predicted that once the "show me your papers" provision is fully implemented, the results will invite challenges based on due process and equal protection grounds.
The Status of Other State Laws
In the months leading up to the Alabama settlement, federal courts have been inhospitable to state omnibus immigration enforcement laws. In August 2012, following Arizona v. United States, a U.S. district court in Atlanta permanently enjoined a key provision of Georgia's Illegal Immigration Reform and Enforcement Act of 2011, HB 87. In March 2013, a U.S. district court in Indiana also permanently enjoined parts of SB 590, the state's immigration enforcement law and state officials said they would not appeal the decision to the appellate court. And in July 2013, the U.S. Court of Appeals for the Fourth Circuit found that several South Carolina measures enacted in 2011 were preempted by federal law. A challenge to Utah's law is still pending.
Given the success of the legal challenges to these measures brought both by the Obama administration and immigrant-rights groups, immigration enforcement legislation that had become a defining trend in state capitals in recent years has largely dropped off.
Some states and localities, however, continue to press their case, particularly the state of Arizona and the city of Farmers Branch, TX. In Arizona, despite the Supreme Court's rejection of most of SB 1070, the state has remained undeterred in its implementation of the "show me your papers" provision. Furthermore, the same day that President Obama's Deferred Action for Childhood Arrivals (DACA) initiative went into effect, Arizona's governor announced that beneficiaries of the program would be barred from receiving state driver's licenses. A federal judge on May 17 declined to temporarily block the directive, ruling that Arizona is within its authority to deny licenses to DACA beneficiaries. State officials have since announced that the driver's license ban would be expanded to everyone with deferred action status, not just DACA beneficiaries.
In Farmers Branch, a suburb of Dallas, proponents of a set of ordinances dating back to 2006 that would make it more difficult for unauthorized immigrants to rent housing haven't wavered either. The city, whose efforts have been repeatedly blocked or rejected by various federal courts — most recently by the Fifth Circuit Court of Appeals — has appealed to the U.S. Supreme Court.
As state activism on immigration enforcement has reached a near halt, momentum in 2013 has swung in the other direction — to laws expanding benefits to unauthorized immigrants and to noncitizens more generally.
California in October 2013 passed a string of eight immigrant-friendly laws, including measures that would grant driver's licenses to eligible individuals regardless of immigration status and limit state and local cooperation with the federal government regarding the removal of unauthorized immigrants in jail. In 2013 alone, the number of states that have extended eligibility for driver's licenses to unauthorized immigrants has quadrupled to 12, with the District of Columbia the most recent to approve such a measure, on November 5. And laws making unauthorized immigrants eligible for in-state tuition rates to attend state colleges and universities are winning new acceptance. Four more were added in 2013, bringing to 15 the states in which in-state tuition measures have been adopted.
State activism on immigration — whether in the form of strict enforcement laws or immigrant-friendly measures — is the result of frustration over the federal government's inability to address the presence of unauthorized immigrants. Those on both sides of the Alabama settlement, for example, are calling on Washington to do more. HB 56 critics are urging Alabama's congressional delegation to support immigration reform, while Alabama state officials are calling on the federal government to fulfill its responsibility to enforce the country's immigration laws. When, if, and what kind of immigration reform legislation Congress passes in the years ahead is likely to determine the future direction of immigration activism in the states.
Policy Beat in Brief
U.S. Government Reaches $34 Million Settlement with Infosys. On October 29, the India-based IT firm Infosys reached a $34 million civil settlement with the U.S. Attorney for the Eastern District of Texas, the largest amount ever in an immigration case. The government had accused Infosys of committing visa fraud and abuse by employing foreign nationals, in the United States on B-1 business visitor visas, to perform skilled labor that can only be done by H-1B visa holders. Prosecutors alleged recordkeeping violations and that Infosys had submitted misleading information to consular officials to ensure that the visas would be approved. Infosys settled with no admission of wrongdoing and stated that the company's use of B-1 visas was for legitimate business purposes and was in no way intended to circumvent the H-1B program. The settlement originates from a whistleblower lawsuit filed in 2011 by a U.S.-born Infosys employee who claimed he was retaliated against by company executives for reporting widespread visa fraud. As part of the settlement, no criminal charges will be filed against the company.
Refugee Admissions Ceiling Set at 70,000. The refugee admissions cap for fiscal year (FY) 2014, set annually by the president in consultation with Congress, has been set at 70,000. The ceiling was also set at 70,000 in FY 2013.
The following regional allocations were also set for FY 2014: 33,000 refugee admissions for Near East/South Asia; 15,000 for Africa; 14,000 for East Asia; 5,000 for Latin America/Caribbean; 2,000 for an unallocated reserve; and 1,000 for Europe and Central Asia.
USCIS Releases Provisional Waiver Numbers. U.S. Citizenship and Immigration Services (USCIS) has released the first set of numbers for its newly implemented rule change for I-601A provisional unlawful presence waivers. As of September 14, 2013, 23,949 applications were submitted to USCIS, 17,996 of which have been accepted for adjudication. Of applications that had been issued a decision, 59 percent (3,497) had been approved while 39 percent (2,292) were denied and 2 percent (103) administratively closed. The rule change allows certain immediate relatives of U.S. citizens to stay in the United States and apply without leaving the country. Normally, such applications can be submitted only from abroad. The rule change is intended to reduce family separation and provide applicants predictability about their prospects of gaining lawful immigration status in the United States. Such waivers are commonly required when an individual seeking an immigrant visa abroad has resided in the United States unlawfully for more than six months and is thus inadmissible. The waivers are granted when applicants can demonstrate that their U.S. citizen spouse or parent will suffer extreme hardship if he or she is not permitted to immigrate to the United States.
ICE Issues Clarification on ACA Coverage Application Information. On October 25, U.S. Immigration and Customs Enforcement (ICE) issued a Clarification of Existing Practices Related to Certain Health Care Information. The memo states that immigration status information provided by individuals applying for health-care programs under the Affordable Care Act (ACA) will not be used for immigration enforcement purposes. Under the ACA and the Social Security Act, those signing up for coverage in health insurance exchanges or affordability programs such as premium tax credits, cost sharing reductions, Medicaid, Children's Health Insurance Program, or Basic Health Program are required to provide their immigration status and certain information about their household members. While the clarification does not reflect a policy change, it is especially relevant to "mixed-status" households in which some members may be unauthorized immigrants and others U.S. citizens. Unauthorized immigrants are barred from benefits under the ACA whereas U.S. citizens and certain lawful permanent residents may be eligible.
Jeh Johnson Nominated to be Homeland Security Secretary. On October 18, President Obama nominated Jeh Johnson to be the next Secretary of the Department of Homeland Security (DHS). From 2009 to 2012, Johnson served as the Pentagon's general counsel, and has held posts on President Obama's transition team and in the United States Attorney's Office and the Air Force. His time at the Defense Department points to national security expertise, but some observers have raised questions about his experience in other arenas under the purview of DHS, such as law enforcement and immigration. The hearings on this nomination began before the Senate Homeland Security and Governmental Affairs Committee on November 13. If confirmed, Johnson would take over from current Acting Secretary Rand Beers and would succeed former Homeland Security Secretary Janet Napolitano, who left DHS in September.
TRAC Report Shows Growth in Immigration Court Backlogs. According to a new report by the Transactional Records Access Clearinghouse (TRAC), the number of cases pending in Executive Office for Immigration Review (EOIR) immigration courts climbed to 344,230 by the end of FY 2013, representing a 5.9 percent increase from FY 2012. Immigration courts in California led the way, with 77,246 pending cases. New York was second with 50,818 cases and Texas third with 48,626. The report also indicates that the average amount of time these cases have been pending is 562 days, up from 531 in FY 2012. Nebraska courts have the longest wait time, with 761 days, while California is second at 686 days, and Ohio third with 664 days.
TPS for Somalia Extended. The Department of Homeland Security announced on November 6 the extension of Temporary Protected Status (TPS), through September 17, 2015, for certain Somali nationals residing in the United States. Since 1990, the United States has granted TPS to noncitizens from designated countries that are determined to be unsafe for their return due to armed conflict or natural disaster. Somalia was initially designated for TPS in 1991. TPS beneficiaries receive work authorization and protection against deportation, as well as permission to travel outside the country and return. Currently, eight countries are designated for TPS: El Salvador, Nicaragua, Honduras, Haiti, Sudan, South Sudan, Syria, and Somalia.
State and Local
DC to Offer Driver's Licenses to Unauthorized Immigrants. On November 5, the DC City Council voted to approve a bill that will allow unauthorized immigrants to apply for driver's licenses specially marked with the words "not valid for official federal purposes." Supporters of the measure say it will improve public safety and allow unauthorized immigrants better access to the places they need to go, but have expressed concerns that the label on the license marks them as unauthorized and could lead to discrimination. Authors of the legislation, however, maintain that the special label is required under the terms of the Real ID Act of 2005. The law will go into effect in May 2014.
Louisiana Supreme Court Invalidates State Immigration Law. On October 15, the Louisiana Supreme Court ruled in State v. Sarrabea that a state law that makes it a crime for foreign students and nonresidents to operate a motor vehicle in the state without documents demonstrating lawful presence in the United States is preempted by federal law. The ruling relies on the U.S. Supreme Court decision in Arizona v. United States that upheld federal primacy in regulating and enforcing immigration laws. The Louisiana measure was a provision in a series of state laws called the "Prevention of Terrorism on the Highways" acts passed in 2002.