Monday, June 25, 2012

Arizona Gov. Jan Brewer declared victory today because the Supreme Court upheld one aspect of her state's law to crack down on illegal immigration. A closer look at the Court's opinion in the case, however, clearly shows that it reasserts and affirms the federal government's supremacy under the U.S. Constitution to make and enforce a uniform, national immigration law. States will not be permitted to pass laws that poke and prod the federal government into enforcing aspects of federal immigration laws it chooses to ignore or to only selectively enforce. Instead, the Court recognizes "broad discretion" whether and how to enforce immigration laws. That "broad discretion" was underscored when word leaked out soon after today's ruling that the Department of Homeland Security will no longer honor its current agreement with the state of Arizona to check the immigration status of persons lawfully detained by law enforcement officers for other purposes, the "so-called 287(g) agreements." That discretionary decision undermines the one victory the state of Arizona obtained under today's ruling.

The Arizona law contained an immigration status check provision that required local law enforcement to check with ICE to determine a person's status where reasonable suspicion exists that the person is an alien and is unlawfully present in the United States after a person has been the subject of "a lawful stop, detention or arrest." This was the only provision of the Arizona law that the Court upheld today, noting that Arizona's law provided that law enforcement officers were prohibited from considering the person's race or national origin in enforcing it. Under existing agreements with state and local governments, ICE officials already agree to check a person's immigration status after they are taken into the legal custody of state or local law enforcement officials. If ICE determines that further action is warranted, it will request the state or local law enforcement agency to place a hold on the individual's release in order for custody of such detained persons to be transferred to ICE officials for further processing in accordance with federal law, a process that is supposed to occur within 48 hours. No sooner had today's decision been handed down than the Department of Homeland Security signaled that it would no longer honor its 287(g) agreement with Arizona officials, a move that could render that provision of the law meaningless.

Federal preemption in the area of immigration enforcement resulted in the Court striking down three major provisions of Arizona's law as unconstitutional, including:
  • A provision making it a crime not to carry valid immigration documents establishing a person's lawful presence in the country.
  • A provision making it a crime to apply for a job in Arizona unless a person has valid documents establishing their right to accept employment in the United States.
  • A provision allowing warrantless arrests of persons who state and local law enforcement officials have probable cause to believe has committed an offense that would cause the person to be removable from the country.
This third provision concerning warrantless arrests is very similar to a provision included in an immigration enforcement law enacted by Indiana last year. A federal district court has already enjoined enforcement of this provision, and it will likely meet a similar fate in the federal courts as Arizona's law in light of today's decision. The same federal district court has also enjoined enforcement of a separate provision of Indiana's law that prohibits the use of consular IDs for identification purposes. Today's decision did not address that issue, but it is unlikely to pass muster either.

Last year, the Supreme Court upheld a separate Arizona law that requires employers within the state to participate in E-Verify, a program that allows the federal government to confirm that a person applying to accept employment is legally authorized to do so. That state law penalizes non-complying businesses with the loss of business licenses. Indiana's immigration enforcement law subjects Indiana employers to tax penalties if they employ aliens lacking employment authorization unless the employers utilize E-Verify to determine the employee's status. Indiana's law also requires all state and local government agencies to utilize E-Verify, as well as businesses that contract with state or local agencies. Indiana's law also created new crimes for false identity statements and for persons engaged in trafficking of illegal aliens. The fate of these provisions of Indiana's immigration enforcement law is less clear after today's sweeping ruling recognizing federal preemption in immigration enforcement

Friday, June 15, 2012

Important Benefit For Young Persons Unlawfully Present In The US

Today, Secretary of Homeland Security Janet Napolitano announced a new benefit of great importance to persons who are not older than 30 years of age and who were brought to the U.S. unlawfully before they reached the age of 16. Those who satisfy the criteria set out in this new policy will be afforded deferred action for a period of two years, subject to renewal, on efforts to remove them from the country or entering into removal proceedings. More importantly, the Department of Homeland Security will provide work authorization to individuals who qualify for this benefit. Under the new directive announced today, individuals who demonstrate that they meet the following criteria will be eligible for an exercise of deferred action on a case by case basis:

  • Entered the U.S. before the age of 16
  • Have continuously resided in the U.S. for at least 5 years and are present as of today's announcement
  • Are currently in school, have graduated from high school, have obtained a GED or are honorably discharged veterans of the armed forces
  • Have not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses or otherwise pose a threat to national security or pubic safety
  • Are not above the age of 30
While this policy takes effect immediately, implementation of the application process for eligible beneficiaries is not expected to be completed for another sixty days. Please contact an immigration attorney to learn more about this policy. You can reach me at gwelsh@welshatlaw.com or call my office at 317/684-0099. If you believe you may be eligible for this benefit, you would be wise to meet with a qualified attorney to begin documenting your eligibility so you are prepared to apply when the policy is implemented in the next two months. While this proposal is not as comprehensive as the Dream Act proposed by Congress, it still provides an important benefit to young people who were brought to the U.S. unlawfully through no choice of their own. It is also important to understand that this benefit does not grant a person permanent resident status or a path to citizenship. Legislation, such as the Dream Act, will still need to be passed by Congress to provide a permanent solution for affected individuals.