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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.


  • 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.

  • 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

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.

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