In a decision that received little notice, the United States Supreme Court in mid-March declined to review two federal appellate decisions that struck down controversial local immigration enforcement ordinances in Hazleton, Pennsylvania, and Farmers Branch, Texas. With its refusal to take up the cases, the Supreme Court brought to a close a contentious chapter in immigration litigation that lasted more than seven years, and thus established more clarity in the role states and cities can play in the enforcement of immigration laws.
Both the Hazleton and Farmers Branch ordinances made it illegal for unauthorized immigrants to rent housing and for landlords to rent to individuals they knew to be unauthorized. With the passage of its Illegal Immigration Relief Ordinance in July 2006, Hazleton catapulted itself onto the national political stage and became something of a cause celebre for proponents of state and local activisim in immigration enforcement. Over the course of eight months in 2006 and 2007, Hazleton enacted—and amended—a series of ordinances designed to make it more difficult for unauthorized immigrants to live and work in the city. The ordinances required anyone renting housing to obtain an occupancy permit for which only those lawfully present in the United States were eligible. The ordinances also prohibited landlords from renting to unauthorized immigrants and city businesses from hiring them.
Even as the ordinances quickly drew challenges, several other towns, including the Dallas suburb of Farmers Branch, adopted Hazleton-type measures, setting in motion a protracted debate over the proper role for local jurisdictions to intervene in an arena that historically was almost uniquely the province of the federal government.
Many forces were seen as providing an impetus for Hazleton’s actions. Between 2000 and 2007, the city’s population grew more than 30 percent, fueled largely by the arrival of Hispanic immigrants. The immigrant share of Hazleton’s population grew from 3.7 percent in 2000 to 14 percent in 2007. Though no credible estimates were available on how many of the new immigrants were unauthorized, city leaders and other ordinance supporters said they believed that illegal immigration to the city had grown exponentially. They also expressed concern that the newcomers stressed the city’s schools and health-care system, and were responsible for increased crime.
Hazleton’s actions occurred against the backdrop of heated, ultimately fruitless, congressional debates in 2006 and 2007 over immigration reform. Washington’s inability to address the status of the country’s estimated 12 million unauthorized immigrants led some local lawmakers to believe that state and local action was necessary in light of federal inaction. And marches in cities across the United States in early 2006 that drew hundreds of thousands of supporters demanding comprehensive immigration reform sparked a significant backlash, particularly in communities experiencing rapid immigration gains, even as they galvanized significant momentum for action.
Hazleton was not the first city seeking to crack down on unauthorized immigrants by limiting their access to housing; the town of San Bernardino, California, had considered and failed to adopt a similar measure in May 2006. Hazleton successfully adopted the San Bernardino blueprint, bringing national attention to localities asserting a role in immigration enforcement. The campaign fueled the political rise of Hazleton’s mayor, Lou Barletta, who won a seat in Congress in 2010. The ordinances provided a rallying point for lawmakers elsewhere who perceived that unauthorized immigrants were taxing local schools and social services, and undermining employment opportunities for Americans. Hazleton also brought new currency to the notion that states and localities could and should serve as force multipliers in federal immigration enforcement.
The constitutionality of the Hazleton ordinances was immediately challenged, and a closely watched federal trial ensued in 2007. As the debate over Hazleton raged, the momentum to follow its example grew. By September 2006, six other towns had adopted Hazleton-type ordinances, including Valley Park, Missouri, and Riverside, New Jersey. Farmers Branch, Texas, followed suit in November 2006. Though there is no comprehensive database of all local-level immigration enforcement laws considered post-Hazleton, estimates suggest that between July 2006 and July 2007, U.S. towns and counties actively considered 118 immigration enforcement proposals. And between 2000 and 2010, 107 U.S. towns, cities, and counties had approved local immigration enforcement ordinances.
Though virtually all of these ordinances became lightning rods for criticism, many also drew significant—and passionate—support. In Farmers Branch, a town of fewer than 30,000 people, the city enacted three ordinances between November 2006 and January 2008 aimed at preventing unauthorized immigrants from renting housing. And even as it suffered legal setbacks at every level, with federal courts finding its 2008 ordinance unconstitutional, the city persisted, spending more than $6 million to defend the measure between 2008 and this year, when the Supreme Court definitively put the matter to rest.
States meanwhile also began stepping into the immigration enforcement arena. Arizona was first, enacting a 2007 law requiring all businesses to use the federal E-Verify system to ascertain that new employees were authorized to work. The law provides that businesses face the loss of their business licenses if found to have knowingly hired unauthorized immigrants.
Three years later, Arizona enacted SB 1070, a sweeping immigration enforcement measure designed to drive unauthorized immigrants out of the state. The law required state and local police officers to inquire about immigration status if they had reasonable suspicion that the person they stopped was an unauthorized immigrant. SB 1070 made it a state crime for immigrants not to carry proof of immigration status or for them to work, and it allowed state officers to arrest without a warrant anyone believed to be deportable based on past criminal offenses. Following SB 1070’s enactment, five states—Utah, South Carolina, Indiana, Georgia, and Alabama—enacted legislation patterned on SB 1070.
The debate reached the Supreme Court in 2011 and again in 2012. In considering the constitutionality of Arizona’s E-Verify law and of SB 1070, the court provided guidance on what states and localities could—and could not do—in the immigration enforcement arena. In its 2011 decision in Chamber of Commerce v. Whiting, the high court upheld Arizona’s E-Verify mandate for all employers and permitted the state to use its licensing authority to penalize businesses that knowingly hire unauthorized immigrants.
But the court also, in its 2012 decision ruling on SB 1070 in Arizona v. United States, decisively affirmed the principle that immigration enforcement is principally a federal, rather than state or local, responsibility. It struck down the portions of SB 1070 that created additional state offenses for working without authorization or not carrying immigration papers—areas already extensively regulated by federal law. Similarly, the court deemed unconstitutional Arizona’s warrantless arrest requirement, reasoning that federal law allows state officers to participate in immigration enforcement only under limited circumstances. Stating that federal law calls for one, uniform, immigration system, the court’s majority held that allowing states and localities to craft their own immigration policies would “diminish the Federal Government’s control over enforcement.” The justices let stand some provisions of the Arizona law, particularly the requirement that police officers question certain individuals about their immigration status; the court did note that the provision might be open to future legal challenge.
By the time the Supreme Court issued its decisions in Whiting and in Arizona, the U.S. Court of Appeals for the Third Circuit had already ruled that the Hazleton housing and employment provisions were unconstitutional. However, because Whiting upheld a state law that resembled the Hazleton employment provisions, the Third Circuit was ordered to reconsider its ruling in light of the Supreme Court decision. In the Farmers Branch case, although a three-member panel of the U.S. Court of Appeals for the Fifth Circuit had struck down the ordinance in March 2012, the entire Fifth Circuit did not review the case until after the issuance of the Whiting and Arizona decisions. Consequently, both appellate courts began considering in 2012 whether the rental ordinances were constitutional in light of the recent Supreme Court precedents.
The decision by both circuits to strike down the rental ordinances as unconstitutional—and the Supreme Court’s recent decision not to review these cases—will make it hard for future similar housing ordinances to pass judicial scrutiny. The justices’ recent decisions may also further dissuade other states and localities from passing immigration enforcement laws or ordinances.
Nevertheless, there are at least two reasons to believe that the federal courts’ engagement in state and local immigration lawmaking has not ended.
First, the Supreme Court has yet to decide whether it will accept for review a case where the U.S. Court of Appeals for the Eighth Circuit recently held that a Fremont, Nebraska rental ordinance similar to the Hazleton and Farmers Branch ordinances is constitutional. Should the Supreme Court decline to review, it will leave in place a circuit split on the issue, meaning that unauthorized immigrant housing ordinances will fare differently in the courts depending on where they are enacted. On the other hand, a decision by the high court to take up the Fremont case will result in a fresh look at the constitutionality of state and local immigration enforcement measures.
Moreover, while state and local appetite for enacting immigration enforcement ordinances appears to have largely receded, new areas of division have emerged. Two states, Nebraska and Arizona, have implemented state policies that prohibit driver’s licenses for unauthorized immigrant youth who have gained a two-year reprieve from deportation under the Deferred Action for Childhood Arrivals (DACA) program; the remaining 48 states permit DACA beneficiaries to receive licenses. And while Florida’s highest court recently held that unauthorized immigrants are ineligible for admission to the state bar, California has enacted legislation providing for the opposite outcome.
If these recent developments are any indication, the trend of state and local immigration policymaking has not come to a close, but merely shifted direction.
Policy Beat in Brief
President Announces Review of Deportation Policies. After facing increasingly vocal criticism from immigrant advocates over the administration’s deportation policies, President Obama met earlier this month with representatives of the major immigrant-rights groups and pledged that Homeland Security Secretary Jeh Johnson would review the policies with an eye toward making them more humane. Though it is unclear what reforms may be proposed, and advocates are seeking a halt to virtually all deportations, some observers suggest the administration might consider expanding the use of prosecutorial discretion or not deporting individuals who would likely qualify for immigration relief in the future. Others have proposed changing U.S. Customs and Border Protection policies to reduce the number of people who are removed on an expedited basis with only a cursory review of individual circumstances and without the opportunity to go before an immigration judge.
Chile Becomes 38th Visa Waiver Country. Homeland Security Secretary Jeh Johnson announced that beginning May 1, 2014, Chilean nationals will be able to travel visa-free to the United States for up to 90 days for business or tourism. Chile will become the 38th country participating in the Visa Waiver Program and the only currently designated country in North or South America. Argentina and Uruguay were previously designated for visa waiver; their designations ended in 2002 and 2003. Canada participates in a separate program with the United States that allows for reciprocal visa-free travel.
Growth in Federal Sentences Driven by Illegal Re-entry. A new Pew Research Center report found that the dramatic growth between 1992 and 2012 in the number of offenders sentenced in federal courts has been driven primarily by sentences for illegal re-entry. Illegal re-entry is a federal felony offense that applies to individuals who have attempted to illegally enter the United States more than once or have attempted to re-enter after previously being ordered removed. The number of illegal re-entry convictions increased 28-fold, from 690 convictions in 1992 to 19,463 convictions in 2012. Nearly all of those sentenced for illegal re-entry received prison time, and the average sentence was two years.
ICE Detainers Not Mandatory, Third Circuit Holds. In a ruling with significant consequences for individuals who are arrested for criminal offenses and who ICE wants detained for an immigration violation, the U.S. Court of Appeals for the Third Circuit held that U.S. Immigration and Customs Enforcement (ICE) “detainers” do not constitute mandatory orders to state or local police. Detainers are requests from ICE to state and local police that the police continue to detain a person who would otherwise be released from custody, generally because ICE seeks to interview or take custody of the individual. The recent case before the Third Circuit involved a U.S. citizen, Ernesto Galarza, who was held by Allentown, Pennsylvania police on a detainer for three days because ICE incorrectly believed that he was deportable. The ruling clears the way for Galarza to sue the city for damages.
Legalization of Unauthorized Immigrants Begins . . . in American Samoa. As the debate over legalization for unauthorized immigrants continues in the United States, the U.S. island territory of American Samoa launched its own legalization program. The program permits unauthorized immigrants resident in the territory since June 30, 2013 to register with authorities and apply for legal residency. In announcing the program, territorial Governor Lolo Matalasi Moliga stated that the legalization program was intended to provide American Samoa with a more accurate count of its population, which census data indicated had dropped 3.1 percent between 2000 and 2010. Under longstanding agreement, the U.S. Immigration and Nationality Act (INA) does not apply in American Samoa, and the territory sets its own immigration and customs policies.
State and Local Policy Beat in Brief
NY State Senate Rejects Financial Aid Bill . . . A bill that would have allowed some unauthorized immigrant youth in New York to receive state-funded student loans and financial aid died in the state Senate, where it fell two votes short. Opponents cited cost concerns and argued that the bill would divert state resources from U.S. citizens and legal immigrants. Supporters contended that the measure would open educational opportunities to young adults who have been in the United States since an early age; they plan to push for the bill’s reconsideration.
. . . While Washington State Approves a Similar Measure. Washington Governor Jay Inslee signed into a law a bill to allow beneficiaries of the Obama administration’s Deferred Action for Childhood Arrivals (DACA) program to access state-funded grants for higher education. To be eligible, students must show that they completed high school in Washington, earned a diploma or a high school equivalency certificate, lived in Washington for three years before obtaining the diploma or certificate, have continued to live in Washington since obtaining the diploma or certificate, and have been granted DACA benefits. The law will add $5 million to the state’s grant fund.
Arizona Driver’s License Law Causing Confusion for Citizens, Lawful Residents. U.S. citizens and legal residents moving to Arizona from other states are finding it difficult to obtain Arizona driver’s licenses—an unanticipated consequence of a state policy barring DACA beneficiaries from receiving licenses. Prior to the issuance of the policy, Arizona accepted other states’ licenses as proof of identification for an individual applying for an Arizona license. But to ensure that no driver’s licenses are issued to DACA beneficiaries, Arizona now no longer accepts for identification purposes a license from the 48 states that grant licenses to those with DACA relief. Nebraska is the only other state to deny driver’s licenses to DACA beneficiaries. Lawsuits have been brought in both states challenging the policies.
South Carolina, Advocates, Reach Settlement on Tough Immigration Law. Immigrant advocates and state officials in South Carolina reached a settlement ending a legal battle over the state’s tough immigration enforcement law, SB 20. Among other provisions, the South Carolina law required state and local police officers to inquire into a person’s immigration status when they had reasonable suspicion to believe that an individual stopped by the police was an unauthorized immigrant. Under the terms of the settlement, the state will not permit state or local officers to detain someone solely to ask about immigration status after the original reason for a police stop has ended. Police will also not be permitted to detain an individual in jail solely to determine the person’s immigration status.