State Immigration Enforcement Legal Analysis of Amended MS HB 488 (March 2012)

State Immigration Enforcement Legal Analysis of Amended MS HB 488 (March 2012) This memo will discuss the constitutionality of certain sections of Mississippi s HB 488 after House amendments. A. INTRODUCTION There is a significant risk that HB 488 still will face successful constitutional challenges. All state omnibus immigration enforcement bills like this one have been temporarily blocked by federal courts in whole or in part. 1 Even as amended, several individual pieces of laws that are similar to HB 488 already have been blocked by one or more federal courts in other states: Requiring officers to investigate immigration status when an officer has a reasonable suspicion that the person is unlawfully present (Section 2(2)); Requiring officers to investigate the immigration status of all arrested individuals before they are released from custody (Section 2(2)); Making it a felony for an unlawfully present person to engage or attempt to engage in a business transaction with the state (Section 3); Making it a felony to engage or attempt to engage in a business transaction with the state on behalf of an unlawfully present person (Section 3). Just last week, the Fifth Circuit Court of Appeals (with jurisdiction over Mississippi) held that a Texas immigration-related ordinance was preempted by federal immigration law. The court focused closely on the legislative history and intent of the measure and held: Because the sole purpose of the Ordinance is to target illegal aliens and effect their removal from the City, we also 1 United States v. Arizona, 703 F. Supp. 2d 980 (D. Ariz. 2010); affirmed United States v. Arizona, 641 F.3d 339 (9th Cir. 2011); Buquer v. Indianapolis, 797 F. Supp.2d 905 (S.D. Ind. 2011); Georgia Latino Alliance for Human Rights v. Deal, 793 F. Supp.2d 1317 (2011); United States v. South Carolina, Civil Action No. 2:11-cv-2958, 2:11-cv-2779, 2011 U.S. Dist. LEXIS 151549 (D. S.C. December 22, 2011); Hispanic Interest Coalition of Alabama, et al. v. Bentley, Civil Action No. 5:11-CV-2484-SLB, 2011 U.S. Dist. LEXIS 137846 (N.D. Ala. September 28, 2011); United States v. Alabama, Civil Action No. 2:11-CV-2746-SLB, 2011 U.S. Dist. LEXIS 112362 (N.D. Ala. September 28, 2011); United States v. Alabama, No. 11-14532-CC, 2011 U.S. App. LEXIS 20942 (11 th Cir. October 14, 2011); Utah Coalition of La Raza v. Shurtleff, Civil Action No. 2:11-CV-401 CW (D. Utah May 11, 2011). 1 P a g e

conclude that the Ordinance is an impermissible regulation of immigration posing an obstacle to federal control of immigration policy. 2 Since the explicitly stated intent of HB 488 is attrition through enforcement (Section 1), this case precedent will be highly significant for any constitutional challenge to HB 488. 3 It appears from this decision that the Fifth Circuit takes a dim view of state and local laws designed to discourage the residence of unlawfully present persons. 4 B. GENERAL CONSTITUTIONAL PRINCIPLES The Supremacy Clause: The Supremacy Clause of the U.S. Constitution states that federal law is the supreme Law of the Land and that states are bound to uphold it. Generally, states are prevented (or preempted ) from legislating (1) in a way that defies express Congressional proscription; (2) in an area of law where Congress intends to occupy the field ; or (3) in a way that conflicts with Congressional intent. Regulation of Immigration: The [p]ower to regulate immigration is unquestionably exclusively a federal power, the U.S. Supreme Court has held. 5 The determination of (1) who should be admitted into the country and (2) the conditions under which a legal entrant may remain are both direct regulations of immigration and consequently are exclusively reserved for the federal government. 6 Fourth Amendment: The Fourth Amendment to the U.S. Constitution protects individuals from unreasonable searches or seizures (that is, from criminal investigations or detentions that lack probable cause). 2 Villas at Parkside Partners v. Farmers Branch, 2012 U.S. App. LEXIS 6043, *23 (5th Cir. March 21, 2012). The court also stated: The conclusion that the Ordinance determines which aliens may reside in Farmer s Branch, necessarily compels our conclusion about preemption of the ordinance as a regulation of immigration contrary to federal authority. Ibid. 3 In fact, the Fifth Circuit went so far as to say: Given the breadth of the Constitution s understanding of immigration as a domain of the federal government, state and local laws that attempt to affect aliens will, with limited exceptions, be preempted by the national interest. Ibid. at *12-13. 4 In the Texas case, the ordinance had the intended and practical effect of making it impossible for unlawfully present persons to live in the city. Given the vagueness of the term business transaction in HB 488 and the private right it creates to sue state agencies for failure to enforce federal immigration law to the fullest extent permitted, the practical effect of HB 488 may similarly make it extremely difficult or impossible for unlawfully present persons to live in Mississippi. See Part D, infra. 5 DeCanas v. Bica, 424 U.S. 351, 354 (1976) (emphasis added). 6 Ibid. at 355. On the other hand, state laws addressing legitimate local interests that only indirectly touch on immigration matters are not preempted. Buquer v. Indianapolis, 797 F. Supp.2d at 920 (citing DeCanas, 424 U.S. at 355-57). 2 P a g e

C. SECTION 2(2): LAW ENFORCEMENT OFFICERS MUST INVESTIGATE IMMIGRATION STATUS IN CERTAIN CIRCUMSTANCES Section 2(2) systematically lays out where and when Mississippi s criminal law enforcement officers must get involved in investigating people s lawful presence: when there is reasonable suspicion of unlawful presence upon arrest; and before any arrestee is released from custody, no matter how long the individual s detention is prolonged by the attempt to verify his or her immigration status. This section further lists the documents that will provide a presumption of lawful presence and identifies acceptable methods of inquiry. But similar state laws have not had a good track record in federal court. Four out of five systematic state plans for police verification of immigration status already have been temporarily blocked (Georgia, Arizona, South Carolina and Utah). 7 The majority view is that such provisions are likely to be preempted and should be enjoined, the federal District Court of South Carolina held in December 2011. 8 This is particularly true with respect to reasonable suspicion provisions. South Carolina, Arizona and Alabama each have reasonable suspicion provisions that mirror almost exactly that in Section 2(2); only Alabama s remains in force. 9 Arizona s provision mandating verification of 7 Georgia s HB 87 Section 8 authorizes police to verify an individual s immigration status when they have probable cause to believe that the individual has committed a criminal violation; the Northern District of Georgia temporarily blocked enforcement of Section 8 because it likely violates the Supremacy Clause of the U.S. Constitution. The federal district court reviewing HB 87 held that Section 8 attempts an end-run around federal statutes defining the role of the state and local officers in immigration enforcement. GLAHR v. Deal, 793 F. Supp.2d at 1332. See also U.S. v. South Carolina, 2011 U.S. Dist. LEXIS 151549, at *53-68; Utah Coalition of La Raza v. Shurtleff, Civil Action No. 2:11-CV-401 CW (D. Utah, May 11, 2011). Arizona s SB 1070 Section 2(B) requires officers to investigate immigration status upon any lawful stop or arrest when an officer has a reasonable suspicion that the person is unlawfully present and to check the immigration status of all arrested individuals before they are released from custody; the District Court of Arizona temporarily blocked enforcement of Section 2(B) because it likely violates the Supremacy Clause, and the Ninth Circuit Court of Appeals agreed. United States v. Arizona, 703 F. Supp. 2d 980 (D. Ariz. 2010); upheld United States v. Arizona, 641 F.3d 339 (9th Cir. 2011). Alabama s HB 56 Sections 12(a) and 12(b) require exactly the same thing. The Northern District of Alabama did not block Section 12 because plaintiffs did not sufficiently make a case that it was likely to violate the Supremacy Clause; the Eleventh Circuit Court of Appeals has not yet ruled on the appeal but declined to block Section 12 on an emergency basis pending the appeal. Hispanic Interest Coalition of Alabama, et al. v. Bentley, Civil Action No. 5:11-CV-2484- SLB, 2011 U.S. Dist. LEXIS 137846 (N.D. Ala. September 28, 2011); United States v. Alabama, Civil Action No. 2:11-CV-2746-SLB, 2011 U.S. Dist. LEXIS 112362 (N.D. Ala. September 28, 2011); United States v. Alabama, No. 11-14532-CC, 2011 U.S. App. LEXIS 20942 (11 th Cir. October 14, 2011). 8 U.S. v. South Carolina, 2011 U.S. Dist. LEXIS 151549, at *62. 9 These sections differ in that under HB 488, investigations of status based on reasonable suspicion can only take place upon arrest, not upon any lawful stop. 3 P a g e

all arrested individuals before release (which is identical to that in HB 488) was also blocked. 10 Alabama federal Judge Sharon Blackburn s opinion on the constitutionality of a section almost identical to Section 2(2) is an outlier in this otherwise strong judicial trend. This summer, the U.S. Supreme Court will rule on the constitutionality of both the reasonable suspicion provision and the mandatory status check before release provision of Arizona s law. 11 Thus, we cannot fully gauge the constitutionality of HB 488 Section 2(2) until after the Supreme Court rules. Why might it be unconstitutional for a state to require its police officers to investigate immigration status upon reasonable suspicion of unlawful presence or for all arrestees? Preemption Federal judges who have reviewed state immigration enforcement laws almost universally concur that state attempts to substitute their own policy judgments on immigration enforcement for those of the federal government are constitutionally preempted. 12 Regardless of the exact scope of the authority that the Immigration and Nationality Act (INA) grants to states to assist in the enforcement of federal immigration law, 13 it is certainly true that this statute places primary enforcement authority in the federal Executive Branch. States may not 10 South Carolina s SB 20 also has a very similar provision, but the court did not address the merits of the plaintiffs preemption claim because it decided the plaintiffs lacked standing to challenge that section of the law. 11 Lyle Denniston, Another landmark ruling in the offing, SCOTUSblog (December 11, 2011) http://www.scotusblog.com/?p=133889 Earlier this month, the Eleventh Circuit said that it would not rule on the appeal until after the U.S. Supreme Court rules on Arizona s law. Brian Lawson, 11th Circuit won't rule on Alabama/Georgia immigration laws until after Supreme Court rules on Arizona, The Huntsville Times (Mar. 1, 2012) http://blog.al.com/breaking/2012/03/alabama_immigration_law_in_11t.html 12 In ruling on South Carolina s immigration enforcement law (including its reasonable suspicion provision), Judge Gergel chose particularly strong words on this issue: It is apparent to the Court from a review of the legislative debate surrounding the adoption of [SB 20] and the language of the Act itself that supporters of [SB 20] do not approve of the federal government s strategy or actions regarding immigration enforcement. These members of the General Assembly, of course, have every right to hold that opinion, but that opinion does not entitle the State of South Carolina to adopt its own immigration policy to supplant the policy of the national government. Far from seeking to cooperate with the federal enforcement strategy, they seek by [SB 20] to control immigration policy and alter it. [citations omitted] 13 Compare U.S. v. Arizona, 641 F.3d at 21-22 (quoted in GLAHR v. Deal, 2011 U.S. Dist. LEXIS 6960) ( Congress intended for state officers to systematically aid in immigration enforcement only under the close supervision of the Attorney General to whom Congress granted discretion in determining the precise conditions and direction of each state officer s assistance. ) with U.S. v. Alabama, 2011 U.S. Dist. LEXIS 112362, at *101 (quoting Judge Bea s dissent from the Ninth Circuit majority in U.S. v. Arizona, 641 F. 3d at 369-80) ( As I see it, Congress has clearly expressed its intention that state officials should assist federal officials in checking the immigration status of aliens and in the identification, apprehension, or removal of aliens not lawfully present in the United States ). 4 P a g e

attempt to wrest ultimate federal immigration enforcement discretion away from the Executive Branch by mandating enforcement in a whole host of circumstances. In fact, just as Arizona s SB 1070 does, HB 488 punishes state actors for cooperating with the federal government in a way that is more consistent with Executive Branch priorities than with state priorities. HB 488 punishes agencies with civil fines for adopting policies that do anything less than enforce federal immigration law to the fullest extent permitted by law. 14 State assistance in the enforcement of federal immigration law must be rendered in the way Congress intended, not in a manner dictated by state law to further a state s own immigration policy. 15 Fourth Amendment Implementation of Section 2(2) will significantly burden lawfully present immigrants as well as U.S. citizens, who, if arrested, could end up being detained solely for the purposes of conducting an immigration status inquiry with the federal government, which can take up to two days to complete. 16 The federal district court in Arizona highlighted this fact when it temporarily blocked SB 1070 Section 2(B). The court took note of (but did not rule on) the potential Fourth Amendment constitutional problem with the inevitable increase in the length of detention while immigration status is determined. 17 14 HB 488 Section 2(8): A person who is a legal resident of this state may bring an action in circuit court to challenge any agency of this state or a political subdivision of this state that affirmatively adopts or implements a written policy, or ordinance duly spread upon its minutes that limits or restricts the enforcement of federal immigration laws, including, but not limited to, 8 USCS Sections 1373 and 1644, to less than the full extent permitted by federal law. 15 We agree that 1373(c) [of the INA] demonstrates that Congress contemplated state assistance in the identification of undocumented immigrants. We add, however, that Congress contemplated this assistance within the boundaries established in 1357(g), not in a manner dictated by a state law that furthers a state immigration policy. By imposing mandatory obligations on state and local officers, Arizona interferes with the federal government s authority to implement its priorities and strategies in law enforcement, turning Arizona officers into state-directed DHS agents. As a result, Section 2(B) interferes with Congress delegation of discretion to the Executive branch in enforcing the INA. Arizona, 641 F. 3d at 350-51, 351-52 [emphasis added]. 16 Complaint for Declaratory and Injunctive Relief, HICA v. Alabama, Civil Action No. 5:11-cv-02484, 200 (July 8, 2011) http://www.nilc.org/hb56hvb.html 17 U.S. v. Arizona, 703 F. Supp.2d at 994-95. But see U.S. v. Alabama, 2011 U.S. Dist. LEXIS 137846, at *124 (refusing to invalidate reasonable suspicion provision because there would be some circumstances under which an immigration status investigation would not extend an arrestee s detention yet leaving the door open to as-applied, postenforcement challenges). It should also be noted that the rather confusing language of HB 488 Section 2(11) (which attempts to shield individual law enforcement officers in certain circumstances from civil liability for arrests made pursuant to Section 2(2)) might be construed to contemplate that local officers have been given permission by Section 2(2) to make arrests solely based on probable cause that an individual is unlawfully present, in which case strong constitutional arguments could be made against both of these subsections of HB 488 as well. 5 P a g e

D. SECTION 3: PROHIBITION ON BUSINESS TRANSACTIONS WITH THE STATE This section prevents unlawfully present individuals and anyone acting on behalf of unlawfully present individuals from engaging or attempting to engage in any business transaction with the state or a political subdivision of the state (like a city or county). In fact, this section makes it a felony to do so. Though the word business modifies the type of transaction prohibited by this section, the bill defines a business transaction as any transaction and explicitly includes interactions that have no business relation at all, like applying for non-driver identification cards. It also explicitly includes loans, grants, or credits, which expands the scope of prohibited transactions considerably. This section exempts applications for marriage licenses as well as any transaction conducted by a business executive of an international corporation authorized to transact business in the state. This section is probably unconstitutional. Three federal courts have already ruled on Alabama s similar business transactions provision; only one of the three decisions was favorable. 18 Earlier this month, the Eleventh Circuit Court of Appeals temporarily blocked Alabama s business transactions provision (Section 30 of HB 56). While the court did not provide its reasoning for blocking Section 30, the burden one must meet in order to obtain an injunction pending appeal is high: among other things, plaintiffs must establish a substantial likelihood that they will succeed on the merits of their constitutional claim. 19 In temporarily blocking Section 30, the Eleventh Circuit contradicted the lower court s ruling that this section is a constitutionally permissible exercise of state legislative authority. 20 Why is it probably unconstitutional for a state to criminalize interactions between unlawfully present persons and state entities? Regulation of Immigration and Preemption Plaintiffs in the Alabama case argued on appeal that Section 30 is a direct regulation of immigration because its express function is to control the conditions under which immigrants can remain in Alabama by prohibiting and criminalizing immigrants efforts to engage in a wide range of transactions necessary for daily life 21 They also argued that Section 30 conflicts with 18 Central Ala. Fair Housing Center v. Magee, Civil Action No. 2:11cv982-MHT (WO), 2011 U.S. Dist. LEXIS 138056 (M.D. Ala. December 1, 2011); United States v. Alabama, Cases No. 11-14535-CC and 11-14532-CC, order expanding the Oct. 14, 2011, order and enjoining the State of Alabama's enforcement of Sections 27 and 30 filed Mar. 8, 2012 http://www.nilc.org/hb56hvb.html 19 U.S. v. Alabama, 2011 U.S. App. LEXIS 20942, **19 (11 th Cir. October 14, 2011). 20 U.S. v. Alabama, 2011 U.S. Dist. LEXIS 112362, *172-80. 21 Motion for Preliminary Injunction Pending Appeal and for Expedited Appeal, U.S. v. Alabama, Case No. 11-14535 (filed Oct. 7, 2011). 6 P a g e

Congressional intent because it would criminalize basic services and interactions with state agencies by individuals whom Congress has expressly permitted to remain in the United States while they are out of status but in the process of applying for humanitarian relief (such as with the U-visa provided under the Trafficking Victims Protection Act). HB 488 s business transaction provision is arguably broader than Alabama s law does not prohibit transactions related to grants, loans or credits. These grants could directly affect nonprofits, for example, that receive funding from the state to serve vulnerable populations. If HB 488 did not contemplate interactions with political subdivisions of the state like counties and cities as business transactions, many essential services provided to unlawfully present persons by local utilities, for example, would be protected. Unfortunately, the relevant House amendment does not actually exempt political subdivisions because it only removes this language from one place in the section while leaving it in other places. Even if this drafting problem is fixed, however, interactions with state entities like hospitals and courts, even notaries public who might be considered state officers, could all be prohibited. Thus, HB 488 could be interpreted to include such a wide range of interactions that the lives of unlawfully present persons would be substantially affected, which would materially impact the conditions under which such individuals can reside in Mississippi. Furthermore, section 1 of HB 488 makes clear that this is the intent. Plaintiffs arguments against Alabama s business transactions provision already seem to have won the day with the Eleventh Circuit and would likely do the same with the Fifth Circuit as well, as they appear to be fully consistent with that court s recent ruling on the Texas ordinance. E. CONCLUSION Though several of the most controversial and constitutionally questionable provisions (like those related to alien registration and public schools) have been removed, HB 488 as a package is still in legal jeopardy because it: Mandates that local officers enforce federal immigration law in a way that ignores federally-issued guidelines for discretion and will have the effect of detaining even lawfully-present immigrants and U.S. citizens for the time it takes to conduct an investigation into an individual s status (which can take up to two days); Punishes state agencies with civil fines if they adopt policies that require discretion that is more in line with federal than state priorities; Retains the business transaction provision, which may in practical effect, make it difficult or impossible for unlawfully present persons to reside in Mississippi, when the Supreme Court has said that the federal government has exclusive authority to determine the conditions under which aliens may reside in this country; and 7 P a g e

Announces its intention to supplant federal immigration enforcement policies with a policy of its own: attrition through enforcement. This document was prepared in April 2012 by CLINIC s State & Local Advocacy Attorney Karen Siciliano Lucas. This document provided for informational purposes only and is not intended as legal advice. For questions, please contact Karen at klucas@cliniclegal.org or (202) 635-7410. 8 P a g e