During the recent session of the Indiana General Assembly, state lawmakers approved and Gov. Mitch Daniels signed into law Senate Enrolled Act 590, which contains a number of provisions aimed at bolstering enforcement of federal immigration laws. The American Civil Liberties Union of Indiana brought suit on behalf of several aliens who claimed they would suffer harm if state and local law enforcement officers were allowed to enforce two provision of the new law.
The most controversial provision of SEA 590 authorized state and local law enforcement officers to make a warrantless arrest of a person if an immigration court has issued a removal order against the person, a detainer or notice of action has been issued by the Department of Homeland Security concerning the person, or the officer has probable cause to believe the person has been indicted for or convicted of one or more aggravated felonies. The ACLU's lawsuit contended this provision violated an affected person's Fourth Amendment rights and was pre-empted by the federal government's exclusive right to adopt and enforce immigration laws under the U.S. Constitution.
As the federal district court explained in temporarily granting an injunction against enforcement of this provision, a person may be in removal proceedings but still be permitted to remain in the country after being released on bond or conditional parole. A person ordered removed may seek administrative and judicial review of an order of removal and be released on bond until a final decision is rendered. Even after a final order of removal has been entered against a person, there may still be opportunity to have the case reopened and have a stay of a final removal order. In yet other cases, there may be an opportunity for a person to elect voluntary departure.
In other cases, federal immigration enforcement officers may place a detainer on persons arrested by state and local law enforcement officers, which is commonly referred to as a "ICE Hold." The person may be held for up to 48 hours, excluding weekends and holidays, in order to provide federal agents the opportunity to assume custody of an alien for questioning of the alien's immigration status. The 48-hour detention is suppose to expire automatically and the person released if federal agents fail to assume custody of the alien within the 48-hour period.
The provision of the law allowing for warrantless arrests of aliens who are the subject of a notice of action caused particular concern for the federal district court. A notice of action may be issued for any number of reasons that may or may not have anything to do with an alien's right to remain in the country lawfully. As such, it is not a reliable indicator of an alien's current immigration status or whether the alien has engaged in any illegal activity. Similarly, it cannot always be readily determined whether an "aggravated felony" for which the person has been indicted or convicted is an offense that would lead to an alien's removal or exclusion from the country.
Because the court determined that the law on its face allowed for aliens to be arrested for conduct that both parties agreed was not a crime, the court granted a preliminary injunction against enforcement of this provision of the law on Fourth Amendment grounds. The court also concluded that the plaintiffs were likely to prevail on its claim that federal law pre-empted the state from enacting an immigration enforcement law of this nature.
The second provision of the law blocked by the court from being enforced bars the use of consular identification cards issued by a foreign consulate as a form of identification. The use of this form of photo of identification by aliens while present in a foreign country is part of the Vienna Convention on Consular Relations and Optional Protocol to which the United States is a signatory. As with the warrantless arrest provision of the law, the court similarly concluded this provision was pre-empted by federal law, which specifically permits the use of consular identification cards issued by foreign governments as an acceptable form of identification for aliens to use while present in the United States.