STATE AND LOCAL LAWS IMPACTING IMMIGRATION. Moderator: BENJAMIN JOHNSON, Washington, DC American Immigration Lawyers Association

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1 STATE AND LOCAL LAWS IMPACTING IMMIGRATION Moderator: BENJAMIN JOHNSON, Washington, DC American Immigration Lawyers Association Panelists: CHARLES C. FOSTER, Houston Foster, LLP NINA PERALES, San Antonio MALDEF Written by: CHARLES C. FOSTER State Bar of Texas 16 TH ANNUAL ADVANCED IMMIGRATION LAW COURSE February 15-16, 2018 Houston CHAPTER 4

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3 Benjamin Johnson Biography Benjamin Johnson is the Executive Director of the American Immigration Lawyers Association (AILA) in Washington, DC. AILA is the national association of more than 15,000 immigration lawyers established to promote justice, advocate for fair and reasonable immigration law and policy, advance the quality of immigration and nationality law and practice, and enhance the professional development of its members. Mr. Johnson has studied and worked in the immigration field for more than 20 years. A former immigration attorney, Mr. Johnson joined the American Immigration Council (The Council) in Washington, DC in 2003, eventually serving as its Executive Director. The Council is one of the nation's leading non-profit, educational organizations in the field of immigration dedicated to increasing public understanding of immigration law and policy and the role of immigration in American society. Prior to that, Mr. Johnson served as the Associate Director of Advocacy for AILA in Washington, DC from 1999 to 2003, working directly with members of Congress and the Administration on legislation to reform immigration laws. He has written extensively on immigration law and policy and has been invited to present testimony on immigration issues before the U.S. Senate and House of Representatives. He is a frequent guest commentator on television and radio, with appearances on programs including CNN, MSNBC, ABC News, Fox News, BBC World News, National Public Radio, and C-SPAN. He has been quoted by print outlets such as The New York Times, USA Today, The Washington Post, and Bloomberg. A native of Arizona, Mr. Johnson was the co-founder and legal Director of the Immigration Outreach Center in Phoenix. Prior to becoming involved in immigration issues he was a public defender and civil litigation attorney in San Diego, CA. He earned a J.D. from the University of San Diego School of Law and studied International and Comparative Law at Kings College in London.

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5 CHARLES C. FOSTER Foster LLP 600 Travis, Ste Houston, TX Fax: Biographical Information EDUCATION: University of Texas, B.A Speakers Committee University of Texas School of Law, J.D President, International Law Society organized Texas-Guanajuato Law School Annual Exchange Program Universidad de Concepcion, Chile - Rotary International Fellowship for the study of International Law, 1964 PROFESSIONAL ACTIVITIES: American Immigration Lawyers Association: National President ; Chairman, Texas Chapter, ; Board of Directors, present American Bar Association: Chairman, Immigration and Nationality Committee, International Law Section, ; Chairman, Coordinating Committee on Immigration Law, State Bar of Texas: Founding Chairman, Immigration and Nationality Law Section, ; Chairman, Committee on Laws Relating to Immigration and Nationality, ; Chairman, Advisory Commission on Immigration Law to Board of Legal Specialization, ; Council Member, International Law Section, ; Life Fellow, Texas Bar Foundation Houston Bar Foundation: Director ; Vice Chairman 2005 Houston Bar Association: Chairman, Immigration Law Committee, ; Council Member, present, International Law Section; Vice Chairman, Houston Bar Foundation, Texas Young Lawyers Association: Chairman of the Board, Houston Young Lawyers Association: Director, HONORS AND AWARDS: American Immigration Lawyers Association's Pro Bono Award for establishing the South Texas Pro Bono Asylum Representation Project - June 8, 1990 Houston Bar Association's 1989 Outstanding Article Award for Article Published in The Houston Lawyer: "Immigration Law and Employer Sanctions," presented on January 19, 1990 Houston Bar Association President's Award for Outstanding Service to the Houston Bar Association's Immigration-Amnesty Task Force Board Certified in Immigration and Nationality Law, Chairman, Immigration Task Force, Greater Houston Partnership 2006-Present

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7 Nina Perales Vice President of Litigation Nina Perales is Vice President of Litigation for MALDEF, the Mexican American Legal Defense and Educational Fund. In that role, Perales supervises the legal staff and litigation docket in MALDEF's offices throughout the United States. Perales is best known for her work in voting rights, including redistricting and vote dilution cases. Her litigation has included successful statewide redistricting cases in Texas and Arizona as well as LULAC v. Perry, the Latino challenge to Texas 2003 congressional redistricting, which she led through trial and argued successfully in the U.S. Supreme Court. She also specializes in immigrants' rights litigation, including leading cases striking down antiimmigrant laws in Farmers Branch, Texas and recovering civil damages from violent vigilantes. Perales received a Bachelor's degree from Brown University and earned her J.D. from Columbia University School of Law.

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9 State and Local Laws Impacting Immigration Chapter 4 TABLE OF CONTENTS I. INTRODUCTION... 1 II. ACTION BY THE LEGISLATURE OF THE STATE OF TEXAS... 1 A. Overview B. Earlier State Action C. State Anti-Sanctuary City Legislation - Senate Bill D. Major Provisions of SB Anti-Sanctuary City Provisions Show Me Your Papers Provisions Other State Action Trump Administration Reaction Arizona Action Senate Bill City Ordinances Farmers Branch, Texas City Ordinance - Fremont, Nebraska III. STATE ACTION IMPACTING ENFORCEMENT OF U.S. IMMIGRATION LAWS OR IMPEDING THE EXECUTION OF EXECUTIVE ORDERS... 3 IV. CONCLUSION... 4 i

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11 State and Local Laws Impacting Immigration Chapter 4 STATE AND LOCAL LAWS IMPACTING IMMIGRATION I. INTRODUCTION Immigration has been overwhelmingly deemed in multiple Supreme Court decisions to be an exclusive function of the federal government. Those decisions have limited the ability of any individual state in enacting laws that preempted or contradicted federal immigration laws set forth in the Immigration and Nationality Act of 1952, as amended. State and local government entities nevertheless have periodically attempted to carve our exceptions, particularly in the last several decades as immigration has again become a hot button issue, in fact often referred to as the 3 rd rail of American politics. It is hard to find a political campaign for a national or even state office today where U.S. immigration policies do not become a focal point of the campaign. To the extent state and local action has had an impact it is broadly in two areas; both state legislation and local ordinances that fit within exceptions carved out by the U.S. Supreme Court that permit such state and local action. However, there is another area of state action that has grown exponentially, particularly the State of Texas; where states have been able to successfully argue that they have standing to bring lawsuits challenging federal immigration laws, in particular executive actions taken in the field of immigration by the administration of President Barack Obama. That state action has been primarily initiated by the State of Texas with great success at both the U.S. District Court level as well as at the U.S. 5 th Circuit Court of Appeals. This article will deal briefly with past and recent action in both areas. II. ACTION BY THE LEGISLATURE OF THE STATE OF TEXAS A. Overview. Given Texas long 1,254 mile border with the Republic of Mexico and our mutual history and the fact that the State of Texas has always had a large Mexican-American population, the State of Texas in comparison to states like Arizona and even California had been viewed as simpatico regarding large inbound immigration from Latin America, overwhelmingly from Mexico but increasingly from Central America, both legal as well as undocumented. Major businesses from the Galleria shopping malls to restaurants in Houston and elsewhere in the state were often said to be dependent upon Mexican tourism. But we have come a long way since Governor George W. Bush in his second inaugural address could refer to undocumenteds as being part of Texas mythology and then warn the 1996 Presidential candidate Pat Buchanan that he was welcome to Texas, but not to 1 bash immigrants. Even his Republican successor, Governor Rick Perry would sign the so-called Texas Dream Act passed overwhelmingly by a Republicancontrolled legislature in June, 2001, which provided that residents of the State of Texas, irrespective of their immigration status, were entitled to in-state tuition. By 2006, President Bush recognizing that feelings on immigration ran deep in the country in the only Oval Office speech in history on immigration warned prophetically, We cannot build a unified country by inciting people to anger or playing on anyone s fear or exploiting the issue for political gain. However, much of that spirit has changed in recent years and even earlier. B. Earlier State Action. In 1975, the Texas State Legislature revised the state education laws to withhold state funds for educating children who had not been legally admitted to the United States and authorized local school districts to deny enrollment to such children. In a landmark case, Plyer v Doe, the Supreme Court by a 5 to 4 majority found that this policy was in violation of the 14 th Amendment saying that an unauthorized immigrant child is a person in any ordinary sense of the term and therefore had protection from discrimination unless a substantial state interest could be shown to justify it. The court majority found that the Texas law was directed against children and impose[d] its discriminatory burden on the basis of a legal characteristic over which children can have little control namely the fact that their having been brought illegally into the United States by their parents. The majority also stated that denying the children in question a proper education would likely contribute to the creation in perpetuity of a subclass of illiterates within out boundaries, surely adding to the problems and costs of unemployment, welfare, and crime. The majority found that there was no substantial state interest that would be served by discrimination on this basis and struck down the Texas law. C. State Anti-Sanctuary City Legislation - Senate Bill 4. With the passage of time, anti-immigrant sentiment rose in the State of Texas resulting in numerous discussions about the possibility of repealing the so-called 2001 Texas Dream Act as well as enacting anti-sanctuary city legislation. After a number of legislative sessions where it was discussed, the Texas State Legislature enacted Senate Bill 4 (SB 4) which was scheduled to go into effect on September 1, 2017 barring court action. But on December 9, 2017, U.S. District Judge Sam Sparks of Austin denied Attorney General Ken Paxton s lawsuit to preemptively declare SB 4 to be constitutional which opened the door for all legal challenges to be

12 State and Local Laws Impacting Immigration Chapter 4 consolidated into one case to be resolved by U.S. District Judge Orlando Garcia in San Antonio. On August 30, 2017, Judge Garcia enjoined a number of major provisions of SB 4 and the State of Texas appealed the decision to the U.S, Circuit Court for the 5 th Circuit. D. Major Provisions of SB 4. SB 4 was promoted as an anti-sanctuary city bill, but in fact it covered two broad areas: 1. Anti-Sanctuary City Provisions. SB 4 was sold by Governor Greg Abbott and other state elected officials as necessary to end sanctuary cities and to prevent the release of dangerous criminals in our state. Such language often confused the public, with no apparent recognition that any such individuals would have been required to complete their prison sentences and that convicted noncitizens upon completion of their sentence are automatically placed in deportation/removal proceedings in U.S. Immigration Courts regularly conducted in prisons. Specifically SB provided that it is a Class A Misdemeanor for a police chief or sheriff to knowingly fail to comply with an immigration detainer request issued by U.S. Immigration and Customs Enforcement (ICE) even though in fact there is no federal or legal requirement to do so. The only existing federal relevant mandate is set forth at USC 1373 which provides in pertinent part that a state or local government entity or official may not prohibit any governmental entity or officer from sending to, or receiving from the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual. In spite of all the rhetoric, U.S. Attorney General Jeff Sessions quietly conceded on May 20, 2017 that the Department of Justice s (DOJ) official definition of sanctuary cities was limited to jurisdictions that bar officials from communicating with federal authorities on immigration. SB 4 was eventually enacted even though in Texas local law enforcement cooperation ranged from full cooperation to a few municipalities that may not recognize ICE detainer requests on a case by case basis for minor offenses and that most police chiefs in urban areas opposed SB 4 for a variety of reasons. 2. Show Me Your Papers Provisions. While SB 4 was primarily known for the antisanctuary city provisions, the greatest impact of SB 4 would be the so-called show me your papers provision provides that a local entity or campus policy department may not adopt or enforce a policy which prohibits or materially limits the enforcement of immigration laws or prohibit its employees from inquiring into the status of a person 2 under a lawful detention or under arrest or from sending information regarding a person s place of birth or relating to the immigration status, lawful or unlawful, of any person under lawful detention or under arrest to ICE or from permitting a federal immigration officer to conduct activities at a jail to enforce federal immigration laws. Any local entity or campus police department which impeded such enforcement would be subject to a civil fine of up to $1,500 per violation as well as criminal prosecution as a Class A Misdemeanor. Worse, the legislation went so far as to subject the appointed or elected official to removal from office for any violations. The most controversial portion of SB 4 is that its provisions permit any individual law enforcement officer without any effective supervision to make inquiry as to the immigration status of any detained person even if that person is not subject to arrest. Even though SB provides that the law enforcement authorities may not consider race, color, language or national origin while enforcing immigration laws, the concern, particularly in the Hispanic American community, is that such a broad grant of authority will be abused and result in racial profiling affecting both Hispanic and Asian Americans as well as lawful immigrants to the United States, any of whom may have to satisfy a law enforcement officer on the spot that they are lawfully in the U.S. Experience has shown that such individuals will now be far more likely to be subject to arrest for a minor offense rather than just receiving a ticket and upon arrest, they will automatically become subject to an ICE detainer. 3. Other State Action. As a reaction to the Trump Administration s move to withhold DOJ grant funds to discourage so-called sanctuary city policy, California on September 15, 2017, passed a so-called sanctuary state bill to protect immigrants without legal residency in the U.S. which would limit state and local law enforcement communications with federal authorities and prevent others from questioning and holding people simply on immigration violations. However, the bill still allowed federal immigration authorities to keep working state correctional officials in city and county jails to question immigrants. The legislation would also permit police and sheriffs to share information and transfer people to immigration authorities if they have been convicted of one or more of the 800 listed crimes. The constitutionality of such legislation has been questioned but advocates argued that the states have the power over the health and safety of their residents and allocation of state resources. 4. Trump Administration Reaction. On December 12, 2017, new U.S. Homeland Security Secretary Kirstjen Nielsen in a speech in

13 State and Local Laws Impacting Immigration Chapter 4 Austin urged the rest of the nation to emulate Texas State laws banning so-called sanctuary cities and praising Texas for taking a firm stand against dangerous and destructive sanctuary cities. She then said, I hope other states follow this lead, calling for an elimination of a shadow society outside the rule of law. 5. Arizona Action Senate Bill To a great extent, the Arizona anti-immigrant law passed in 2010 was the inspiration and guidepost for the future enactment of Senate Bill 4 by the Texas Legislature. In 2010, the Arizona State legislature passed the Support Our Law Enforcement and Safe Neighborhoods Act otherwise known as Arizona Senate Bill 1070, which upon its enactment was clearly the broadest and strictest anti-illegal immigrant measure. The act was signed into law by Governor Jan Brewer on April 23, 2010, but before it could go into effect its constitutionality was challenged by lawsuits, including one by the United States Department of Justice that also asked for an injunction against enforcement. The day before the law went into effect a federal judge issued a preliminary injunction that blocked most of the controversial provision. In June, 2012, in Arizona v United States, the U.S. Supreme Court upheld the key provision requiring immigration status checks during enforcement stops. The Supreme Court, however, warned in its decision of the potential constitutional problems with prolonged or extending a police stop, a clause which formed the crux of Brnovich s opinion. But the Court also struck down 3 other provisions as violations of the Supremacy Clause of the United States Constitution which make it a crime to fail to carry valid immigration papers and to apply for or hold a job in Arizona unless you had proper valid immigration papers as well as the provision which allowed police officers to arrest someone without a warrant if the policy officer had probable cause to believe that the individual had done something that would justify his deportation from the United States. Following the enactment of SB 1070, a dozen copycat bills were introduced in state legislatures and 5 passed in Alabama, Georgia, Indiana, South Carolina and Utah. Fearing that such laws would invite rampant racial profiling against Latinos and Asian Americans and other persons thought to be foreign based upon how they looked or sounded, numerous lawsuits challenged the constitutionality of same. As a result of a settlement with the National Immigration Law Center, the State of Arizona announced an end to its practice of requiring police officers to demand the papers of those suspected of being in the county illegally; thus, effectively neutralizing all of the provisions of what was once viewed as the nation s most stringent immigration law. Under the agreement, the Attorney General Mark Brnovich instructed law 3 enforcement as follows: Officers shall not prolong a stop, detention or arrest solely for the purpose of verifying immigration status. Officers shall not contact, stop, detain or arrest an individual based on race, color or national origin except when it is part of a suspect s description; however if an officer suspected that a person was in the country illegally, they could contact ICE unless doing so would prolong the stop or detention. 6. City Ordinances Farmers Branch, Texas. On November 13, 2006, Farmers Branch, a suburb of Dallas, Texas, enacted an ordinance that would require all prospective tenants within their city boundaries to prove that they were in the U.S. lawfully in order to obtain a $5 residential occupancy license. Furthermore, tenants and landlords who violated the ordinance would face Class C Misdemeanor charges. The Farmers Branch s and similar ordinances were immediately met with litigation instituted by a variety of parties including the Mexican-American Legal Defense and Educational Fund (MALDEF). The U.S. District Court repeatedly sided with the plaintiffs and issued a final judgment that stopped enforcement. On March 21, 2012, a 3 judge panel of the U. S. Court for the Fifth Circuit largely affirmed the lower court s decision against the ordinance and on March 3, 2014, the U.S. Supreme Court decided not to hear the appeal from Farmers Branch, thus allowing the lower court ruling to stand. Much of the court decision was based upon preemption. 7. City Ordinance - Fremont, Nebraska. In a conflicting decision the U.S. Supreme Court declined to hear a challenge to Fremont, Nebraska ban on renting apartments to undocumented immigrants. The high court s decision not to hear the plaintiff s appeal preserved the June, 2013, ruling of the 8 th U.S. Circuit Court of Appeals, which concluded there was no conflict with federal law. The Fremont, Nebraska ordinance originally passed in 2010 required renters to obtain a $5 Occupancy Permit and swear that they have permission to live in the United States. But unlike similar ordinances in Farmers Branch, Texas and Hazelton, Pennsylvania, such ordinance did not impose any penalties on immigrants. III. STATE ACTION IMPACTING ENFORCEMENT OF U.S. IMMIGRATION LAWS OR IMPEDING THE EXECUTION OF EXECUTIVE ORDERS In the response to President Obama s November 20, 2014 memorandum establishing an expanded Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parental Accountability (DAPA), the State of Texas filed a lawsuit to enjoin the implementation of such Executive Action in the

14 State and Local Laws Impacting Immigration Chapter 4 Southern District Court and a number of other states joined in such litigation. In Texas, et al vs. the United States, et al No.1:14-CV (S.D. Tex.) the State of Texas successfully argued that the State has standing to enjoin the Executive Action on the grounds that the State of Texas could incur additional costs as beneficiaries of the aforesaid Executive Action would become eligible for the issuance of state driver s license and that the filing fees paid by applicants for a driver s license did not cover the State s entire cost. U.S. District Judge Andrew Hanen ruled in favor of the State of Texas enjoining the principal provisions of the Executive Action including the provision that would provide an expansion of the original DACA program as well as establishing a new DAPA program for parents of U.S. citizens. The U.S. District Court decision was appealed to the Fifth Circuit which upheld the lower court decision in Texas v United States, 809 F 3 rd 134, 179 (2015). The Obama Administration appealed the temporary injunction to the U.S. Supreme Court, which affirmed the lower court s decision in a split vote. Texas v United States 136 S.Ct. 2271(2016) (per curiam). All of this changed upon the election of President Donald Trump, whose administration rescinded the November 20, 2014 Obama Executive Action by Memorandum dated June 15, 2017, making any further appeals moot. Nevertheless, the Trump Memorandum left in place the June 15, 2012 Memorandum creating the original DACA program. When the Trump Administration s June 15, 2017 Memorandum only rescinded the November 20, 2014 Memorandum of the Obama Administration s Expanded DAPA Memorandum, the Texas Attorney General Paxton by letter dated June 29, 2017 stated that the State of Texas and other plaintiffs in the lawsuit that successfully challenged DAPA and expanded DACA would voluntarily dismiss their lawsuit currently pending in the Southern District of Texas, but directly threatened that the complaint in that case would be amended to challenge the original 2012 DACA program if not rescinded by September 5, As a result, on September 5, 2017, the Trump Administration did rescind the original 2012 DACA program, broadly urging Congress to find a legislative solution for Dreamers by March 5, IV. CONCLUSION As long as elected officials can either gain office or lose office based upon their or their opponent s argument that they are either hard on illegal immigration or soft on same, candidates for office in state and local elections will continue their efforts upon election to call for and support further legislative restrictions on aliens who are living in the state in undocumented status. 4