Nina Fantl 2012-12-26 02:15:22
In 2012, the Obama administration temporarily halted efforts to deport hundreds of thousands of young immigrants. Moreover, the U.S. Supreme Court and federal appellate courts rendered decisions on state laws dealing with the presence of undocumented aliens living in Arizona and Alabama. These state laws sought to fill gaps in federal enforcement and forced the federal courts to clarify the demarcation between state and federal authority. Arizona’s S.B. 1070 In Arizona, a key part of the law known as Arizona Senate Bill 1070 — the “show me your papers” law — was upheld in June 2012.1 The broadest anti-illegal immigration measure in recent U.S. history, S.B. 1070 drew criticism for condoning racial profiling. In June 2012, in Arizona v. United States, the U.S. Supreme Court upheld the provision requiring immigration status checks during law enforcement stops, but struck down three other provisions as violations of the Supremacy Clause of the U.S. Constitution.2 Currently, federal law requires all foreign nationals residing in the United States (including U.S. permanent residents and most non-immigrants) to register with the U.S. government3 and to carry at all times proof of their status; violation of this requirement is a federal misdemeanor. The Arizona act additionally punished undocumented persons who were caught without immigration documents and required that state law enforcement officers attempt to determine an individual’s immigration status during a “lawful stop, detention or arrest” or during any “lawful contact” not specific to any enforcement activity. By contrast, Texas state lawmakers did not push for a bill similar to Arizona’s S.B.1070. Deferred Action for Childhood Arrivals At the national level, 2012 did not see the passage of the “DREAM Act” into law.4 The DREAM bill would allow certain high school graduates to begin the process of becoming U.S. citizens. However, on Aug. 15, 2012, President Obama began a program under executive order, “Deferred Action for Childhood Arrivals,” which offers an estimated 800,000 young immigrants living in the United States illegally the opportunity to apply for a twoyear reprieve from deportation. During those two years, beneficiaries are permitted to work and apply for social security numbers. Applicants must have (1) entered the United States before the age of 16; (2) resided in the United States since June 2012; and (3) been 30 or younger when the program was announced. In Texas, such immigrants may also obtain driver licenses.5 Since the president’s DACA program is based only on a presidential action and does not provide any path to legal immigration status, some view it as a kind of “limbo” for these young people. Post-election, many young immigrants remain concerned about coming forward to the authorities because this could potentially allow the government to use their information against them at a later date. Like Arizona, Alabama made headlines when the state legislature passed a law requiring school children to present documents showing their place of birth.6 In August 2012, the U.S. Court of Appeals for the 11th Circuit threw out Section 28 of H.B. 56 and forbade Alabama schools from collecting data on the immigration status of students who enroll in school. In October 2012, the court followed up by denying a request by the state of Alabama for a new hearing. The court also temporarily blocked two sections of the law, Section 10 and Section 27. Known as the “papers please” law, Section 10 penalized immigrants who failed to carry an alien registration document; Section 27 forbade citizens from entering into contracts with illegal immigrants. Under H.B. 56, students in Alabama’s schools who could not present an original birth certificate were assumed to be “unlawfully present.” The bill’s passage created what one school principal called an intense climate of fear, and prompted many students — some, but not all, undocumented — to stop attending classes.7 In federal court, Alabama argued that the law imposed no consequences on any student or parent for failing to comply with it. The 11th Circuit rejected this defense, ruling emphatically that the Supreme Court’s decision in Plyler v. Doe forbids states from impeding a child’s access to a basic education regardless of that child’s immigration status. Alabama has the option of appealing to the U.S. Supreme Court. Texas News On the Texas front, in March 2012, the 5th U.S. Circuit Court of Appeals upheld a lower court ruling that invalidated a Dallas suburb’s ban on renting to undocumented immigrants.8 The court ruled that the suburb of Farmers Branch had overstepped its authority when it passed a law calling on the city’s building inspector to check the immigration status of anyone wanting to rent an apartment who was not a U.S. citizen. Under the ordinance, undocumented immigrants would have been barred from rental housing, and landlords who knowingly allowed them to stay could have their rental licenses revoked. The court said the city was seeking to exclude undocumented immigrants, particularly Latinos, under the guise of policing housing: “Because the sole purpose and effect of this ordinance is to target the presence of illegal aliens within the City of Farmers Branch and to cause their removal, it contravenes the federal government’s exclusive authority over the regulation of immigration and the conditions of residence in this country.” The court awarded attorneys’ fees to the apartment owners and tenants who had filed suit. The ruling affirmed the decision that Farmers Branch must pay the plaintiffs’ attorney fees, which before the appeal were nearly $2 million. The court called that portion of the decision “a strong deterrent” against other cities seeking to pass similar ordinances. State challenges to the federal government’s exclusive authority over the regulation of immigration and the conditions of residence in this country will no doubt continue into the coming year. Notes 1. Support Our Law Enforcement and Safe Neighborhoods Act, Senate Bill 1070. 2. Section 3, which made failure to comply with a federal alien registration requirement a state misdemeanor, was not allowed to stand because Congress left no room for states to regulate in a field that Congress already occupied. Next, Section 5(c), which made it a misdemeanor for an undocumented person to seek or engage in work, was struck down because Congress had already decided it would be inappropriate to impose criminal penalties on unauthorized employees. Finally, Section 6 authorized police officers to arrest without a warrant a person who was believed to have committed an offense that makes the person removable from the country. Section 6 was deemed to create an obstacle to the federal law and struck. The court stated that, as a general rule, it is not a crime for a removable alien to remain in the United States. The federal scheme instructs when it is appropriate to arrest an alien during removal process. Therefore, Section 6 gave state officers greater arrest authority than federal officers have which is not the system that Congress intended. 3. 8 U.S.C. 1304 4. The DREAM Act (acronym for Development, Relief, and Education for Alien Minors) is a legislative proposal first introduced in the Senate on Aug. 1, 2001, by Dick Durbin and Orrin Hatch. 5. On Aug. 15, 2012, the same day that U.S. Citizenship and Immigration Services began accepting applications under the Obama administration’s new Deferred Action for Childhood Arrivals program, Arizona Gov. Jan Brewer issued an executive order preventing the state of Arizona from issuing driver’s licenses and public benefits to young undocumented immigrants who receive deferred status and work authorization under the new program. In addition to driving privileges, Brewer’s order bars undocumented immigrants who qualify for deferred action from receiving state-subsidized childcare, health insurance, unemployment benefits, business and professional licenses, and government contracts. 6. Alabama H.B. 56, titled the Hammon-Beason Alabama Taxpayer and Citizen Protection Act, is an anti-illegal immigration bill, signed into law in Alabama in June 2011. As of 2011, it was regarded as the nation’s strictest anti-illegal immigration law, tougher than Arizona S.B. 1070. 7. Walsh, M. (2012, June 12). Supreme Court Immigration Ruling Resonates 30 Years Later. School Law Blog. Education Week. 8. Villas at Parkside Partners v. City of Farmers Branch, No. 10-10571, 675 F.3d 802 (5th Cir. 2012). NINA FANTL is an Austin-based immigration lawyer with 20 years of experience representing foreign workers, including scientists, entrepreneurs and university faculty members, from many different countries before the U.S. Citizenship and Immigration Services, Department of State and Department of Justice. She is certified in immigration and nationality law by the Texas Board of Legal Specialization.
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