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Immigration Policy Update: State Immigration Laws Suffer More Legal Blows

August 28, 2012 - Posted by Maurice Belanger

Appeals Court Rules on Alabama, Georgia Laws

On August 20, the U.S. Court of Appeals for the 11th Circuit issued rulings in challenges to the anti-immigrant laws passed in Alabama and Georgia. Briefly, here is how the court ruled in three separate cases challenging various provisions of the Georgia and Alabama’s laws.

The Alabama Law
The Federal Government brought suit against Alabama’s HB 56, arguing that federal law preempted several of the Alabama law’s provisions. For the most part, the Court agreed with the Federal Government. A separate challenge was brought by the Hispanic Interest Coalition of Alabama and other organizations and individuals. Some of the issues overlapped those of the federal government’s case, but this lawsuit also challenged the part of the law which required school districts to obtain immigration status information of children enrolled in public school.

Enjoined

  • Section 10, which made it a state crime to fail to carry alien registration documents. In light of the Supreme Court’s decision in the case against Arizona’s SB 1070, the Court concluded that this section is preempted by federal law.

  • Section 11(a), making it a crime for undocumented immigrants to seek or perform work. The Court noted again that the Supreme Court struck down a nearly identical provision of the Arizona law, so this section is preempted by federal law.

  • Section 13, creating state criminal offenses for “concealing, harboring or shielding” an undocumented immigrant; encouraging an undocumented immigrant to come to or reside in Alabama; transporting undocumented immigrants and conspiracy (of an undocumented immigrant) to be transported; and “harboring” an undocumented immigrant by renting an apartment or house to the immigrant. The Court concluded that this section “mandates enforcement of ‘additional or auxiliary regulations’ that the [immigration law] does not contemplate,” and therefore are preempted by federal law.

  • Section 16, which prohibits employers from deducting as a business expense on their state tax filings any compensation paid to unauthorized aliens. The Court found that this provision is preempted by the federal Immigration Reform and Control Act (IRCA), which imposes sanctions against employers who hire unauthorized workers
  • .
  • Section 17, which declares that it is a “discriminatory practice” for an employer to fire or fail to hire an authorized worker while employing an unauthorized worker. The section provides for the possibility of civil suits against the employer. The Court found that this provision also provides a sanction against employers not contemplated by IRCA, and is preempted.

  • Section 27, which prohibits Alabama courts from enforcing or recognizing contracts between a party and an unlawfully present alien. In arguing that this provision is preempted by federal law, the Court attacked the very core of the concept of “attrition through enforcement.” Here, it’s worth quoting from the Court’s decision to illustrate its rebuke of the attrition through enforcement concept.

    • “Certain contracts are permissible, though, and those exceptions help illustrate Alabama’s end goal in enacting section 27: forcing undocumented individuals out of Alabama. … Essentially, the ability to maintain even a minimal existence is no longer an option for unlawfully present aliens in Alabama. … [A] state’s decision to impose ‘distinct, unusual and extraordinary burdens and obligations upon aliens’ may constitute an impermissible intrusion into the federal domain. … We believe that the blanket prohibition of the right to enforce nearly any contract easily qualifies as an extraordinary burden. … [W]e are convinced that Alabama has crafted a calculated policy of expulsion, seeking to make the lives of unlawfully present aliens so difficult as to force them to retreat from the state. … Because this power is retained only by the federal government, section 27 is preempted by the inherent power of the federal government to regulate immigration.”

  • On the day that public schools in Alabama began classes for the fall term, the Court enjoined Section 28, which required school officials to determine whether a child enrolled in school was foreign-born and, if so, to determine the child’s immigration status. The Court ruled that the process set up by the state to collect information on a child’s immigration status will make undocumented students more vulnerable to deportation, and thus the law “significantly deters undocumented children from enrolling in and attending school, in contravention of their rights under Plyler.” The Court reversed the District Court decision regarding this provision, and ordered Section 28 enjoined for violating the Constitution’s Equal Protection Clause.

Allowed to Stand (for now)
  • Section 12(a), the “show me your papers” provision, requiring an officer to investigate the immigration status of anyone lawfully stopped, detained, or arrested, if the officer has “reasonable suspicion” the person is in the country unlawfully. The Supreme Court did not find the corresponding provision of Arizona’s law to be preempted by federal law, and the 11th Circuit concluded that the federal government was not likely to succeed on its preenforcement challenge to this provision of Alabama’s law. (The story might be different with a challenge brought after the law goes into effect.)

  • Section 18, which requires an officer to investigate the immigration status of persons who fail to present a driver’s license when stopped.

  • Section 30, which (as amended by subsequent legislation) makes it a state crime for an undocumented immigrant to enter into a “public records transaction” with the state, defined as applying for (or renewing) a driver’s license (or non-driver ID), a business license, a commercial license, a professional license, or a motor vehicle license plate. The Court concluded that the federal REAL ID Act and the 1996 Welfare Reform Act gave states the authority to deny these types of benefits from undocumented immigrants, and so this provision is not preempted by federal law.

The Georgia Law
The Court also ruled on a challenge to Georgia’s HB 87 in a suit brought by the Georgia Latino Alliance for Human Rights, Service Employees International Union and other organizations. The U.S. District Court for the Northern District of Georgia had enjoined two provisions of Georgia’s HB 87. The Court of Appeals upheld one injunction and overturned one.

Enjoined
  • Section 7, creating three crimes having to do with harboring or transporting an undocumented immigrant or inducing the undocumented immigrant to enter Georgia. The Court ruled that Congress has legislated extensively on these matters, and there is no room for states to create their own penalties for harboring or transporting undocumented immigrants. Based on the breadth of federal regulation, the Court concluded, Section 7 is preempted.

Allowed to Stand
  • Section 8, which authorizes local and state police to investigate the immigration status of individuals who cannot prove citizenship in cases where there is probable cause to suspect the individual has committed a crime. In light of the Supreme Court decision in the challenge to Arizona’s law, the Court of Appeals did not support the District Court’s injunction against this provision and sent the case back to that court to lift the injunction.

Judge Hears More Challenges to Arizona’s SB 1070

Meanwhile, back in Arizona, on August 21 U.S. District Judge Susan Bolton heard arguments from advocates seeking an injunction against the enforcement of the “show me your papers” section (2B) of Arizona’s SB 1070. An injunction against section 2B is still in place, although the Supreme Court and the 9th Circuit Court of Appeals have ordered that it be lifted. Judge Bolton waited until arguments in the second challenge to the law before deciding whether the injunction should be kept in place based on the new grounds. Advocates based their challenge on discrimination that will likely result from enforcement of the “show me your papers” provision. (The case decided in the Supreme Court was based on federal preemption arguments.)

The advocates’ lawsuit against SB 1070 also included a challenge to a provision against “harboring” of undocumented immigrants. As noted above, the 11th Circuit Court of Appeals struck down an “anti-harboring” provision in Alabama’s anti-immigrant law, saying the provision was preempted by federal law.

A decision on the Section 2B injunction is expected soon.

For more information on the Supreme Court’s decision in the federal government’s case against SB 1070 and about other challenges to the law, see our resource page on SB 1070.)

GOP Platform Favors Hard-Line Approach to Immigration

Leading up to the party convention in Tampa this week, delegates to the Republican Convention have been drafting a platform of policy positions that will eventually be approved at the convention. Party platforms don’t carry a lot of weight beyond party conventions, but instead give a sense of where party activists stand on the issues. (Platforms may serve more as a tool to help opposing candidates mobilize their base.) The Republican Party positions on immigration have been shaped by Kris Kobach, Kansas Secretary of State and architect of Arizona’s SB 1070 and Alabama’s HB 56. According to Politico, the platform committee adopted his planks on completion of the border fence, ending in-state tuition for undocumented students, punishing “sanctuary cities,” and making the E-Verify worker verification program mandatory. (As of this writing, the draft platform had not yet been released.)

Given that the platform will likely favor a very hard line on immigrants and immigration, and that the Romney campaign is trying to attract Latino voters, it’s unlikely that the platform’s immigration planks will get much mention by the Romney campaign.

In this open letter to the candidates, the Forum’s Director, Ali Noorani, urges the candidates to look beyond the party fringes and offer Americans a compelling vision for common-sense immigration solutions.

New DHS Policy to Provide Relief for Refugees, Others

On August 17, DHS published a “Notice of Determination” in the Federal Register that will ultimately allow thousands of persons to proceed with their applications to adjust to permanent resident status. There are approximately 4,500 persons granted refugee or asylum status who have been unable to adjust to permanent residence due to terrorist-related inadmissibility grounds. According to Human Rights First, the new policy will allow
    “persons previously granted asylum or refugee status in the United States, and their spouses and children, to have their cases adjudicated on a case-by-case basis if their cases are ‘on hold’ based on non-violent associations with groups described as ‘terrorist organizations’ under the Immigration & Nationality Act (INA) solely by virtue of the fact that they engaged in the use of armed force as non-state actors.”

An example of the type of person who has been unable to gain permanent residence due to questions about support for “terrorist” groups is an Iraqi who rose up against Saddam Hussein. Many of these persons have been in limbo for years. Thanks to the new policy, the great majority—approximately 4,000 of the 4,500 cases now on hold—should benefit.

For more information on this complicated subject, see this Fact Sheet from Human Rights First.

Senate Passes Bill Extending Visa Programs

On August 2, just before leaving for its August break, the Senate passed by unanimous consent S. 3245, a bill to extend for three years three visa programs:
  • The EB-5 Regional Center Program, in which immigrants with a certain amount of investment capital may obtain a visa by investing in entities designated by USCIS as “Regional Centers,” focused on the economic development of a particular region in the U.S.

  • The Special Immigrant Nonminister Religious Worker program.

  • The Conrad State 30 J-1 Visa Waiver program, meant to encourage foreign doctors trained in the United States to practice medicine in medically underserved rural areas.

The bill also extends the E-Verify program for three years. The House has not yet acted on these programs, all due to expire on September 30.

USCIS Seeking Public Comment on DACA Form

On August 16, USCIS published a notice in the Federal Register seeking comment on Form I-821D, “Consideration of Deferred Action for Childhood Arrivals.” (In general, a period of public comment on forms the government requires the public to fill out is required by the Paperwork Reduction Act.) The agency is looking for input to, among other things, “evaluate the accuracy of the agency's estimate of the burden of the collection of information; enhance the quality, utility, and clarity of the information to be collected; and minimize the burden of the collection of information on those who are to respond.”

Anyone interested in commenting can do so on this page of regulations.gov.

Tennessee Sheriff Ditches 287(g) Program

On August 21, Nashville, Tennessee, Sheriff Daron Hall announced that he would discontinue Davidson County’s 287(g) program—one of the first in the country. The current 287(g) agreement will end in October. The program became controversial when it was used to deport immigrants with no serious criminal infractions. According to the Tennessee Immigrant and Refugee Rights Coalition, the program was responsible for ensnaring 10,000 community members over the course of five years—most charged only with low-level infractions.

The program is currently the subject of a lawsuit pending before the Tennessee Supreme Court claiming that the sheriff’s office is exceeding the authority given to it by Metropolitan Nashville’s charter.

ICE Agents Sue over Deferred Action

On August 23rd, a group of 10 ICE agents, led by Chris Crane, head of the ICE union, filed suit to try to stop the Obama Administration’s Deferred Action for Childhood Arrivals. The agents are being represented by anti-immigrant crusader Kris Kobach and the effort is being funded by the anti-immigrant group Numbers USA.

The lawsuit is not likely to go beyond the initial flurry of press releases. As the Immigration Policy Center noted in this blog post, the federal courts lack jurisdiction over internal disputes within the other branches of government. As the Policy Center humorously noted,
    “ICE agents hauling the head of the Department of Homeland Security (DHS) into court is like … Kobach’s own subordinates in Kansas seeking an injunction requiring him to perform his actual job as Kansas Secretary of State.”

AFL-CIO President Richard Trumka released a statement critical of the lawsuit, noting that the agents “are working with some of the most anti-immigrant forces in the country, forces that have long sowed division and destruction.” The statement concludes by saying that,
    “[t]he labor movement is united in calling on Congress to take action and create a common-sense immigration process – one that reflects our values, keeps families together, supports a secure border and creates a roadmap to citizenship.”

The ICE union is under the umbrella of the AFGE and AFL-CIO.

Immigration Policy Update: Deferred Action for Childhood Arrivals

August 16, 2012 - Posted by Maurice Belanger

On August 15, U.S. Citizenship and Immigration Services (USCIS) began accepting requests for deferred action from certain young undocumented immigrants who were brought to the U.S. as children. On August 14, USCIS posted the latest guidance and forms related to the program, known as Deferred Action for Childhood Arrivals. Included in the updated information was further refinement of the educational requirements. All of the latest information is posted on the USCIS Web site at http://www.uscis.gov/childhoodarrivals. The relevant forms, three in total, are also available on the USCIS Web site, and they are:


Form I-821D is accompanied by nine pages of instructions, which among other things describes the type of documentation needed to prove eligibility. The instruction form addresses the issue of confidentiality, stating that,

    Information provided in this request is protected from disclosure to ICE and U.S. Customs and Border Protection (CBP) for the purposes of immigration enforcement proceedings unless the requestor meets the criteria for issuance of a Notice to Appear or a referral to ICE under the criteria set forth in USCIS’s Notice to Appear guidance (www.uscis.gov/NTA). The information may be shared with national security and law enforcement agencies, including ICE and CBP, for purposes other than removal….

The confidentiality provision also covers family members and guardians.

Form I-765 and Form I-765 Worksheet for employment authorization must accompany form I-821D, and the total fee is $465, including the cost of biometrics.

Information about the forms and links to the forms can be found on this page of the USCIS Web site.

Once forms and fee are received by USCIS, the agency will send a receipt notice and will send notice for a biometrics appointment at a USCIS Application Support Center. Processing will take several months, depending on how many individuals request deferred action.

Overwhelming Interest on Day OnePhoto: New York Times
Early indications are that there is very high interest in the program. Around the country, several DREAM Relief Day group processing and information workshops attracted hundreds to thousands of young immigrants on the first day USCIS started accepting requests. In Chicago, the number of people who showed up for assistance, estimated at 13,000, was far more than could be accommodated in an event organized by the Illinois Coalition for Immigrant and Refugee Rights, Representative Luis Gutierrez (D-IL) and long-time DREAM Act champion, Senator Richard Durbin (D-IL). More than 1,000 young people packed into a church in New York, to attend a free legal clinic organized by the New York Immigration Coalition. Hundreds also showed up for events in Los Angeles, San Francisco, and other cities.

On the Hill, the Same Old Gripes
While there was a celebratory mood across the country with so many young people being given the prospect of relief from deportation, on Capitol Hill it was politics as usual. Two immigration hardliners in Congress, Rep. Lamar Smith (R-Texas) and Sen. Charles Grassley (R-Iowa), sent a letter to DHS Secretary Janet Napolitano expressing their concern about the potential for fraud in the program. In their letter, they wrote that “the administration plans to press the replay button for the large-scale fraud from the 1986 amnesty,” comparing this program to the Special Agricultural Workers program that was part of the Immigration Reform and Control Act (IRCA).

It shouldn’t be news to these gentlemen, considering they are the highest-ranking Republicans on the Committees with oversight over the immigration agency, that a lot has changed since 1986. When IRCA was implemented, the immigration agency was largely paper-based. It was long before the era of instantaneous checks with multiple federal criminal and national security databases. The Immigration and Naturalization Service did not have an entire anti-fraud directorate, as does USCIS. Perhaps Mr. Smith and Mr. Grassley should take a tour?

How you can get involved.

Volunteer. Over the course of the next few months, hundreds of thousands of immigrant youth will be requesting consideration for deferred action. Informational and application workshops are being organized around the country to help potential beneficiaries determine their eligibility and to assist them in filling out forms and organizing their documentation. Community organizations hosting these events will need volunteers. You can find a list of events taking place around the country on a Web site dedicated to deferred action, “Own the Dream.”

Donate. The total filing fee is $465, and USCIS has said it will waive that fee only in very limited circumstances. The agency will try to recover its costs for doing the background checks and other work that are part of this benefit via the filing fee, and critics of the program will use any cost to the taxpayer as another line of attack against the program. The Public Interest Fund, a public charity, has set up the Fund for DREAMers, a national fundraising effort to support young people who are applying for deferred action. Individuals are encouraged to donate, and you can make a donation online here. You can find out more about the Fund for DREAMers here.

Learn More. The National Immigration Forum has collected links to government and colleague organization resources pertaining to deferred action for childhood arrivals. From that page you can learn more about the program, the requirements, who are the potential beneficiaries and where they reside, and why the program will benefit the country as a whole. CLICK HERE to go to our resource page.

Interior Enforcement Immigrant Students Smart Enforcement Priorities

Policy Update: New Information on Deferred Action

August 08, 2012 - Posted by Josh Breisblatt

On Friday, August 3, the Department of Homeland Security (DHS) provided some important details about the highly anticipated and much discussed deferred action initiative originally announced by the Obama Administration on June 15.

The new information explains how the deferred action process (a form of administrative relief from deportation) will work for those who qualify, namely certain young people who were brought to the U.S. as children. This initiative has been given the acronym DACA, which stands for deferred action for childhood arrivals.

Some newly released highlights include answers to the following questions:

  • When? Beginning August 15, 2012, and not before then, individuals requesting deferred action will submit their request to U.S. Citizenship and Integration Services (USCIS). Forms to request consideration will not be available until that date. Requests made before August 15 will be rejected.
  • How? Forms will be publicly available at no charge from USCIS. After August 15, deferred action request forms should be submitted along with an employment authorization application. All requestors eventually will be required to provide biometrics and undergo background checks.
  • To whom? All requests should be sent to USCIS. The only exception is for individuals currently detained by Immigration and Customs Enforcement (ICE). Individuals in ICE detention must request deferred action directly from ICE by contacting the ICE Office of the Public Advocate through the Office’s hotline at 1-888-351-4024 (staffed 9 a.m. – 5 p.m., Monday–Friday) or by e-mail at .(JavaScript must be enabled to view this email address).
  • Cost? The total fee for deferred action will be $465. This is a universal fee that includes the application for employment authorization. In very few instances, fee exemptions may be available, such as if the applicant is homeless, in foster care, or suffers from a disability and cannot care for himself or herself. Requests for fee exemptions must be submitted prior to a request for deferred action.
  • What if the request is denied? There is no opportunity to appeal a denial of deferred action. If USCIS declines to grant deferred action, cases involving a criminal offense, fraud, or a threat to national security or public safety will be referred to ICE for enforcement purposes.
  • Who is eligible? Additional guidelines explain who would not qualify for deferred action. Information is also now available about evidence required to meet the criteria for deferred action. New guidelines include:
  • 1) Eligible individuals must not have been convicted of a felony, “significant misdemeanor,” three or more other misdemeanors, and must not otherwise pose a threat to national security or public safety.
  • 2) Affidavits by themselves generally will not be sufficient evidence of eligibility.


  • More Information — Deferred Action Resources

    Government Resources
  • Memorandum: Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children, Janet Napolitano, Secretary, Department of Homeland Security, June 15, 2012.
  • On August 3, USCIS posted multiple resources to help individuals navigate the process:
  • 1) A detailed USCIS flowchart on who is eligible for deferred action.
  • 2) A helpful flier from USCIS that includes details on eligibility for deferred action and the process for applying.
  • 3) USCIS website spells out the deferred action process.
  • 4) USCIS also has a resource for avoiding scams when applying for deferred action.


  • Advocacy Resources

  • Administrative Action: Deferred Action for Certain Young People, the National Immigration Forum’s resource page for deferred action.
  • FAQ: Deferred Action for Certain Immigrant Youth, the National Immigration Law Center’s frequently asked questions page for deferred action, has detailed information describing deferred action, the necessary requirements, and how to apply.
  • Stop Notario Fraud, from the American Immigration Lawyers Association. This website has extensive information describing immigration fraud, where to get help, and where to find legitimate immigration legal services.
  • Consumer Advisory on Deferred Action, the American Immigration Lawyers Association's detailed consumer advisory on how to avoid scams when it comes to deferred action.
  • Immigration Reform

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