The following is a brief overview of state immigration omnibus measures that have been subject to legal challenges and the current enforcement status of those sections challenged. ALABAMA House Bill 56 (HB 56), called the “Beason-Hammon Alabama Taxpayer and Citizen Protection Act,” was signed into law on June 2, 2011. HB 56 prohibits sanctuary policies (Sections 5 & 6); provides for the 287(g) program (Section 4); prohibits public benefits for illegal aliens (Section 7); prohibits post secondary education benefits for illegal aliens (Section 8), requires the use of E-Verify for public contractors (Section 9); prohibits the willful failure to register or carry alien registration documents (Section 10); prohibits unauthorized aliens from applying for, soliciting, or performing work (Section 11); requires law enforcement officers to verify immigration status of a person who has been lawfully stopped, detained or arrested if the officer has reasonable suspicion that the person is unlawfully present in the U.S. (Section 12); prohibits concealing, harboring, shielding, encouraging, inducing, transporting and harboring illegal aliens (Section 13); prohibits dealing in false identification documents and vital record identify fraud (Section 14); prohibits the employment and hiring of unauthorized aliens and requires the use of E-Verify by all employers (Section 15); prohibits tax deductions for wages paid to unauthorized aliens (Section 16); prohibits employers from failing to hire or terminating a U.S. citizen or legal alien while employing or hiring an unauthorized alien (Section 17); amends current Alabama Code to require verification of citizenship status of an alien without identification (Section 18); requires person unlawfully present to be considered a flight risk for bail purposes (Section 19); requires law enforcement officials notify U.S. Immigrations and Customs Enforcement (ICE) and the Alabama Department of Homeland Security (AL DHS) 30 days before the release of a criminal alien held in custody (Section 20); authorizes AL DHS to hire and maintain certified state police officers and coordinate assistance with the implementation and enforcement of the act (Sections 22 and 23); requires AL DHS to report act progress to the Legislature (Section 24); requires equal penalty for solicitation, attempt or conspiracy to violate the act (Section 25); requires AL DHS to establish and maintain EVerify employer agent service to facilitate use of E-Verify (Section 26); prohibits the enforcement of contracts by unlawfully present aliens (Section 27); requires school districts to report citizenship status of public elementary and secondary school students (Section 28); requires proof of U.S. citizenship for voter registration (Section 29); and prohibits business transactions by unlawfully present aliens (Section 30). It also includes a severability clause which states that if parts of the law are held to be illegal or otherwise unenforceable, the remainder of the law should still apply (Section 33). House Bill 658 (HB 658) was signed into law on May 18 2012 and made significant amendments to HB 56 (2011), which include eliminating the private right of action as a method of enforcing the state’s anti-sanctuary law (HB 56 Section 5 & 6); eliminating the requirement that public post secondary students possess lawful permanent residence or appropriate nonimmigrant visa (HB 56 Section 8); changing the penalties for public contractors that hire illegal aliens or fail to use E-Verify (HB 56 Section 9); amending the Alabama anti-harboring law to mirror federal law (HB 56 Section 13); removing the notification requirement following the payment 1

of a fine (HB 56 Section 20); adding protections from prosecution for victims and witnesses (HB 56 Section 21); decreasing the frequency of state reports to the legislature (HB 56 Section 24); amending the term “business transaction” to mean “records transaction” (HB 56 Section 30); and removing the requirement that law enforcement take custody of individuals without a driver’s license (HB 56 Section 18). HB 658 also added several new sections that include requiring the Alabama Attorney General to defend law enforcement officers against the U.S. Department of Justice (HB 658 Section 4); requiring the courts to publish reports of all illegal aliens detained and appearing in court (HB 658 Section 5); granting agencies express authority to enforce the law (HB 658 Section 7); and requiring the state to review tax returns for possible identity theft (HB 658 Section 8). HB 658 also includes a severability clause permitting any provision of the act to be removed from the rest if the provision is found to be unconstitutional (HB 658 Section 9). Trial courts: U.S. v. Alabama, 813 F. Supp. 2d 1282 (N.D. Ala. 2011) Hispanic Interest Coalition of Ala. v. Bentley, 2011 U.S. Dist. LEXIS 137846 (N.D. Ala. Sept. 28, 2011) Appellate courts: Hispanic Interest Coalition v. Governor of Ala., 691 F.3d 1236 (11th Cir. 2012) U.S. v. Alabama, 691 F.3d 1269 (11th Cir. 2012) Alabama v. U.S., petition for certiorari filed Jan. 15, 2013 (No.12-884) Section of HB 56 Challenged Section 8

Summary

Status

Reasoning

Prohibits illegal aliens from Enjoined by the The district court found that attending public postsecondary district court, but unconstitutionally classified aliens. educational institutions vacated as moot on appeal Amended by HB 2

this

section

Section 10

Section 11

Section 12(a)

Section 13

658 (2012), causing challenge to be mooted Prohibits willful failure to Enjoined as field Following Arizona v. U.S., the court reasoned that complete or carry alien preempted Congress manifestly “foreclose[d] any state regulation registration documents in the area [of alien registration], even if it is parallel to federal standards.” Prohibits illegal alien from Enjoined as conflict The court found this section conflicts with IRCA, Pub. applying for, soliciting or preempted L. No. 99-603, 100 Stat. 3359. The court looked to performing work as employee or IRCA’s regulatory scheme, along with its legislative independent contractor within history, in light of Arizona v. U.S. and concluded that Alabama Congress made a deliberate choice not to impose criminal penalties on aliens who seek or engage in unauthorized employment. Requires law enforcement Upheld The court found the provision survives challenge officers to determine a lawfully because the statute merely requires state officers to seized individual’s immigration conduct an immigration inquiry during an authorized, status when the officer has lawful detention or after a detainee has been released. reasonable suspicion that the The Supreme Court, in Arizona v. U.S., clarified the seized individual is unlawfully principle that consultation between federal and state present in the U.S. officials is an important feature of the U.S. immigration system. Criminalizes the concealment, Enjoined as conflict The court found that absent a savings clause permitting harboring, or shielding from preempted state regulation in the field, the state’s role is limited to detection of any alien. arrest for violations of federal law. The court reasoned Criminalizes the act of that Congress chose to allow state officials to arrest for encouraging or inducing an alien 8 U.S.C. § 1324 crimes, subject to federal prosecution in to come to or reside in Alabama. federal court, rather than authorizing states to prosecute Criminalizes transporting, for the crimes of harboring, transporting, or inducing attempting to transport, or aliens (8 U.S.C. §§ 1324(c) and 1329). conspiring to transport an alien in furtherance of the alien’s unlawful presence in the U.S. 3

Section 16

Prohibits an employer’s state tax Enjoined as deduction for wages and expressly compensation paid to an alien preempted unauthorized to work in the U.S.

Section 17

Defines a discriminatory practice Enjoined as as hiring a U.S. citizen or an alien expressly authorized to work while the preempted employer simultaneously employs an illegal alien

Section 18

Amends state driver’s license laws to require law enforcement officers to verify immigration status of a person that does not produce a driver’s license when requested Prohibits state courts from enforcing a contract to which an unlawfully present alien is a party, provided that the other party had direct or constructive knowledge of the alien’s unlawful presence and that performance of the contract would require the alien to remain in the state for more than 24 hours after its formation, excepting a contract for overnight lodging, purchase of

Section 27

The court found the provision expressly preempted by 8 U.S.C. § 1324a(h)(2), which prohibits state or local laws that “sanction” employers for hiring unauthorized aliens. The court found the measure to be a “sanction” as the “obvious goal” was to prevent the future activity of an employer – the hiring of unauthorized workers. The court found the provision expressly preempted by 8 U.S.C. § 1324a(h)(2), which prohibits state or local laws that “sanction” employers for hiring unauthorized aliens. The court found that the core of the provision is clearly intended to punish the employment of unauthorized aliens, and adding a conjunctive condition that targets specific circumstances under which this behavior will be punished does not change its essence as a “sanction.” The court found Congress has made clear that no formal agreement or special training need to be in place for state officers to communicate with the federal government regarding the immigration status of any individual.

Upheld

Enjoined as preempted as a regulation of immigration

4

The court found the provision a calculated policy of expulsion, seeking to make the lives of unlawfully present aliens so difficult as to force them to retreat from the state. The court found that Alabama has taken upon itself to unilaterally determine that any alien unlawfully present in the U.S. cannot live within the state’s territory, regardless of whether the Executive Branch would exercise its discretion to permit the alien’s presence.

Section 28

Section 30

food, medical services or transportation to facilitate the alien’s return to his country of origin Provides a process for schools to Enjoined as collect data regarding the violating Equal immigration status of students Protection who enroll in public schools Prohibits illegal aliens from Upheld entering, or attempting to enter, into a public records transaction with the state or political subdivision

The court found this provision violated Equal Protection under Plyler v. Doe, as it operates in a way that significantly interferes with the exercise of the right of an elementary public education and no substantial state interest justifies the interference. The court found Congress encouraged states to require evidence of lawful status as a prerequisite to issuing a driver’s license or ID card though the REAL ID Act of 2005. REAL ID does not foreclose Alabama’s decision to make it a crime for an unlawfully present alien to attempt to get a driver’s license or ID card once it has decided that such aliens are ineligible for these documents. Also, in Title IV of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Congress deemed some unlawfully present aliens ineligible for certain state and local public benefits unless the state explicitly provides otherwise, including professional or commercial licenses provided by an agency of a state or locality or by appropriated funds.

ARIZONA The state omnibus measure with the highest level of national recognition is Senate Bill 1070 (SB 1070), as amended by House Bill 2162, called the “Support our Law Enforcement and Safe Neighborhoods Act,” which was signed into law on April 23, 2010. SB 1070 includes provisions requiring law enforcement officers to verify immigration status (Section 2); prohibiting sanctuary policies (Section 2); prohibiting willful failure to complete or carry alien registration documents (Section 3); prohibiting unauthorized aliens 5

from applying, soliciting, or performing work (Section 5); and prohibiting transporting, moving, concealing, harboring, or shielding unlawful aliens (Section 5). SB 1070 also authorizes warrantless arrests (Section 6); creates the defense of entrapment in employing an unauthorized alien (Section 7 & 8); requires employers to keep records of employment verification for the duration of an employee’s employment or at least three years (Section 9); requires vehicle impoundment in certain situations (Section 10); and creates the gang immigration intelligence team enforcement mission fund (Section 11). The statute also includes non-discrimination, implementation, and severability legislative intent provisions (Section 12). Trial courts: U.S. v. Arizona, 703 F. Supp. 2d 980 (D. Ariz. 2010) Friendly House v. Whiting, 846 F. Supp. 2d 1053 (D. Ariz. 2012) Appellate courts: U.S. v. Arizona, 641 F.3d 339 (9th Cir. 2011) Valle Del Sol Inc. v. Whiting, 2013 U.S. App. LEXIS 4425 (9th Cir. Ariz. Mar. 4, 2013) Arizona v. U.S., 132 S. Ct. 2492 (2012) Section Challenged Section 2(B)

Section 3

Summary

Status

Requires law enforcement Upheld officers to verify immigration status of lawfully stopped, detained, or arrested persons when the officer has reasonable suspicion that the person is an alien unlawfully present in the U.S. Provides that it is a violation of Enjoined as field state law for an illegal alien to preempted 6

Reasoning The court found Congress had done nothing to suggest it is inappropriate for state officials to communicate with ICE. Indeed, Congress has encouraged the sharing of information about possible immigration violations.

The court found Congress reserved to itself the field of alien registration in its entirety and thus states cannot

Section 5 (A)

be in violation of the federal alien registration statutes Creates offense prohibiting an Enjoined as occupant of a motor vehicle violating First from soliciting or hiring a day Amendment laborer if the motor vehicle blocks or impedes traffic

Section 5(B)

Creates offense prohibiting a Enjoined as day laborer from entering a violating First motor vehicle to work at a Amendment different location if the motor vehicle blocks or impedes traffic

Section 5(C)

Creates an offense prohibiting illegal aliens from applying for work, soliciting work in public places, or performing work in Arizona Authorizes state and local police officers to conduct a warrantless arrest of an individual if the officer has probable cause to believe the person has committed a removable offense

Section 6

Enjoined as conflict preempted

Enjoined as conflict preempted

7

enact alien registration laws, even if they exactly mirror federal law. The court found that this section was a content-based restriction on commercial speech. The court found that Arizona singled out day labor solicitation for a harsh penalty while leaving other types of solicitation speech that blocks traffic unburdened. The court also reasoned that the legislative intent of attrition through enforcement was evidence that this provision was more restrictive than necessary with relation to traffic safety. The court found that this section was a content-based restriction on commercial speech and reasoned that, while Arizona has a substantial interest in traffic safety, it has failed to justify a need to serve that interest through targeting and penalizing day labor solicitation that blocks traffic, rather than directly targeting those who create traffic hazards without reference to their speech. The court used Congressional intent to reason that Congress made a conscious decision to only penalize employers for hiring illegal aliens and decided not to punish illegal workers for engaging in unlawful employment. The court reasoned that authorizing state officers to decide whether an alien should be detained for being removable violates the principle that the removal process is entrusted to the discretion of the federal government. Allowing the exercise of state authority to arrest without any input from the federal government would allow states to achieve its own immigration policy.

GEORGIA House Bill 87 (HB 87), called the “Illegal Immigration Reform and Enforcement Act of 2011,” includes provisions requiring public contractors and subcontractors to participate in the E-Verify program (Section 3); creating the offense of aggravated identity fraud to secure employment (Sections 4 and 5); prohibiting transporting, moving, and harboring illegal aliens (Section 7); requiring verification of a criminal suspect’s immigration status by a peace officer during a criminal investigation and requiring cooperation with federal authorities (Section 8); prohibiting sanctuary policies and granting authority to arrest illegal aliens (Section 9); providing incentive program for law enforcement to comply with federal Secure Communities Program (Section 11); requiring all private employers to use E-Verify (Section 12); requiring counties to be reimbursed for housing certain inmates and providing increase in reimbursement for 287(g) compliance (Section 14); prohibiting use of a matricula consular card as identification and prohibiting state agencies from accepting any form of ID that is not a “secure and verifiable document” (Section 19); and creating the Immigration Enforcement Review Board (Section 20). The statute also includes non-discrimination, implementation, and severability legislative intent provisions (Section 21). Trial court: Ga. Latino Alliance for Human Rights v. Deal, 793 F. Supp. 2d 1317 (N.D. Ga. 2011) Appellate court: Ga. Latino Alliance for Human Rights v. Governor of Ga., 691 F.3d 1250 (11th Cir. 2012) Section Challenged Section 7

Section 8

Summary

Status

Prohibits transporting or Enjoined as conflict moving an illegal alien, preempted concealing or harboring an illegal alien, and inducing an illegal alien to enter the state of Georgia Authorizes police officers to Upheld investigate the immigration status of individuals who cannot 8

Reasoning In light of Arizona v. U.S., the court found that rather than authorizing states to prosecute for 8 U.S.C. § 1324 crimes, Congress chose to only allow states officers to arrest for § 1324 crimes, subject to federal prosecution in federal court. The court found the section similar to the provision upheld by the U.S. Supreme Court in Arizona v. U.S., and, in fact, less problematic because the section permits

produce adequate identification to prove citizenship, provided probable cause exists that the individual has committed a crime

but does not require state officers to conduct an inquiry into immigration status whenever a detained individual cannot produce satisfactory ID.

INDIANA Senate Bill 590 (SB 590), enacted in 2011, includes provisions prohibiting sanctuary policies (Section 2); providing discretion for law enforcement officers to verify immigration status of a witness or victim of a crime (Section 3); creating tax exclusion for businesses enrolled in and participating in E-Verify and prohibiting tax deductions for payments, wages or reimbursements for monies paid to an unauthorized alien (Sections 4-7); requiring verification of citizenship or immigration status of all committed criminal offenders (Section 8); requiring verification of qualified alien status for public benefits including in-state tuition (Section 13); requiring use of SAVE for verification of qualified alien status to obtain public benefits (Section 14); requiring unemployment insurance reimbursement by employers who knowingly employ unauthorized aliens (Section 15); requiring use of E-Verify by public contractors (Section 16); prohibiting day labor services unless the laborer completes the attestation of employment authorization required under 8 U.S.C. 1324a(b)(2) (Section 17); prohibiting the use or acceptance of consular identification (Section 18); authorizing warrantless arrests of illegal aliens (Section 20); providing bail requirements (Section 22); prohibiting intentionally misleading public officials (Section 23); and prohibiting transporting, concealing, harboring, shielding or moving illegal aliens (Section 24). Trial court: Buquer v. City of Indianapolis, 797 F. Supp. 2d 905 (S.D. Ind. 2011) Union Benefica Mexicana v. Indiana, 2012 U.S. Dist. LEXIS 78487 (N.D. Ind. June 6, 2012) Sections Challenged Section 15

Summary

Status

Authorizes the Department of Remains in effect Workforce development to file 9

Reasoning Plaintiffs claim the section is preempted by federal law. The court granted the defendant’s

Section 17

Section 18

Section 20

civil actions against employers to obtain reimbursement of amounts paid as unemployment compensation to any of the employer’s employees if it is discovered that the employer knowingly employed unauthorized aliens Prohibits individuals from commencing day labor without completing an attestation of employment and provides that a law enforcement officer may submit a complaint to U.S. Citizenship and Immigration Services (USCIS) concerning violations if they have probable cause to believe an individual has violated the section Prohibits knowingly or intentionally offering or accepting a consular ID card as a valid form of ID for any purpose, excepting police officers

motion to stay the proceedings pending the Supreme Court decision in U.S. v. Arizona, 641 F.3d 339 (9th Cir. 2011).

Remains in effect

Plaintiffs claim the section is preempted by federal law. The court granted the defendant’s motion to stay the proceedings pending the Supreme Court decision in U.S. v. Arizona, 641 F.3d 339 (9th Cir. 2011).

Enjoined as violating Due Process and Equal Protection

The court found the section essentially makes the issuance of CIDs meaningless which “directly interferes with rights bestowed on foreign nations by treaty.” Enactment of a statute that makes it a civil infraction for anyone to use CIDs as valid ID for any purpose is incompatible with federal government supremacy as well as its deliberately measured approach. The court found the section contains no reference to Fourth Amendment protections nor does it include a requirement that the arrest powers granted to law enforcement officers be used only in circumstances in which the officer has a separate lawful reason for the arrest. It

Authorizes state and local law Enjoined as violating the enforcement officers to make a Fourth Amendment warrantless arrest of an person when the officer has (1) a removal order issued for the person by an immigration court; (2) a detainer 10

notice of action issued by U.S. Department of Homeland Security (DHS); or (3) probable cause to believe the person has been indicted or convicted of one more aggravated felonies

authorizes the warrantless arrest of persons for matters and conduct that are not crimes which contravenes the Fourth Amendment.

OKLAHOMA House Bill 1804 (HB 1804), called the “Citizens and Taxpayers Protection Act of 2007,” and signed into law on May 8, 2007, includes provisions prohibiting knowingly transporting, concealing, harboring, or sheltering an illegal alien (Section 3); restricting the issuance of federal, state and local IDs, including educational IDs, to U.S. citizens, nationals and legal permanent residents or holders of valid unexpired visas (Section 4); requiring law enforcement officers to determine the immigration status of any person charged with a felony or DUI and requiring officers to report unlawfully present aliens to DHS (Section 5); requiring all public employers to use E-Verify and prohibiting state and local public contractors from commencing work on tax-payer funded contracts before they register with the E-Verify program (Section 7); requiring all public agencies to verify the lawful presence of aliens aged 14 years or older who apply for state or local public benefits by using the SAVE system (Section 8); requiring employers to withhold state income tax for independent contractors who failed to provide a Social Security number (Section 9); directing the Oklahoma Attorney General to negotiate a 287(g) cooperative agreement between the State of Oklahoma and DHS to increase state and local police joint enforcement of federal immigration law (Section 10); requiring lawful presence for in-state tuition benefits (Section 11); establishing the Fraudulent Documents Identification Unit to investigate and apprehend persons that engage in the sale or distribution of false identification documents (Section 12). Trial court: Chamber of Commerce of the United States v. Brad Henry, 2008 U.S. Dist. LEXIS 44168 (W.D. Okla. June 4, 2008) Appellate court: Chamber of Commerce of the United States v. Edmondson, 594 F.3d 742 (10th Cir. 2010)

11

Section Challenged Section 7(B)

Section 7(C)

Section 9

Summary

Status

Requires all public employers Upheld to use E-Verify and prohibits state and local public contractors from commencing work on taxpayer funded contracts before they register with E-Verify

Defines “discriminatory practice” to include discharging an employee who is a U.S. citizen or legal alien while retaining an employee who the employer knows or reasonably should have known is an unauthorized alien Requires employers to withhold state income tax for independent contractors who fail to provide a Social Security number

Enjoined as expressly preempted

Enjoined as conflict preempted

12

Reasoning The court found this section is violated only when an employer fails to utilize the Basic Pilot Program. The actual employment of an unauthorized alien is irrelevant in determining whether an employer has violated this section. Accordingly, Section 7(B) does not “impos[e] civil or criminal sanctions . . . upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens” in violation of 8 U.S.C. § 1324a(h)(2)’s express preemption clause. The court found this section subjects employers to cease and desist orders, reinstatement, back pay, costs and attorney’s fees, which are considered restrictive measures imposed upon employers that hire unauthorized aliens, and are, thus, expressly preempted as “sanctions” under 8 U.S.C. § 1324(a)(h)(2).

The court found this provision would require contracting entities, on pain of burdensome withholding requirements or penalties, to verify the work authorization status of independent contractors. Congress, by contrast, intentionally excluded independent contractors from verification obligations. See 8 U.S.C. § 1324a(a)(1)(A); 8 C.F.R. § 274a.1(f), (g); H.R. Rep. No. 99-682(I), at 57. By requiring verification of independent contractors, Oklahoma risks exposing contracting entities to liability under federal law. See 8 U.S.C. § 1324b(a)(6)(b).

SOUTH CAROLINA Senate Bill 20 (SB20), signed into law on June 27, 2011, includes provisions providing a private right of action to enjoin sanctuary policies or ordinances (Section 1); redefining “private employer” to include persons or entities transacting business in South Carolina that are required to have licenses and employ one or more employees (Section 2); amending current code regarding public employers and contractors (Section 3); prohibiting illegal aliens from allowing themselves to be transported or moved, or solicit or conspire to be transported or moved, within South Carolina with intent to further their unlawful entry into the U.S. or avoiding apprehension or detection of their unlawful immigration status, and also prohibiting illegal aliens from concealing, harboring, or sheltering themselves from detection with the intent to further their unlawful entry into the U.S. or avoid apprehension or detection of their unlawful immigration status (Section 4); prohibiting a person 18 years or older who has been issued alien registration documents under federal law from failing to carry those documents while in the state of South Carolina (Section 5); requiring an officer to “determine” whether a person is lawfully present in the U.S. during a lawful stop, detention, investigation, or arrest when the officer has reasonable suspicion to believe that the person is unlawfully present, and also prohibiting sanctuary policies (Section 6); authorizes the “keeper of the jail” to transport unlawfully alien inmates to federal custody (Section 7); adding a definition of “unauthorized alien” to current state law regarding employment of unauthorized aliens (Section 8); removing the 100 or more employee requirement from the private employer E-Verify requirement (Section 9); amending current code to provide that private employers violate the employer’s license by knowingly or intentionally employing an unauthorized alien (Section 10); providing a safe harbor for employers that use E-Verify (Section 11); strengthening prior penalty provisions regarding suspension of business licenses (Section 12); creating the criminal offense of making or selling false identification that is for use by an illegal alien (Section 15); and creating an Illegal Immigration Enforcement Unit within the Department of Public Safety which takes effect upon the execution of a 287(g) agreement (Section 17). SB 20 also includes savings and severability clauses (Sections 18 and 19). Trial court: United States v. South Carolina, 840 F. Supp. 2d 898 (D.S.C. 2011) United States v. S.C., 2012 U.S. Dist. LEXIS 170752 (D.S.C. Nov. 15, 2012) Appellate court: Appeal filed December 7, 2012 13

Section Challenged Section 4(A) & (C)

Section 4(B) & (D)

Section 5

Section 6

Summary Prohibits illegal alien from allowing himself to be transported or moved within the state or to be harbored or sheltered to avoid apprehension or detection Prohibits transporting, moving, concealing, harboring, or sheltering a person with intent to further that person’s unlawful entry into the U.S. or assisting illegal alien avoid apprehension or detection by state or federal authorities Prohibits any person 18 years or older from failing to carry a certificate of alien registration pursuant to 8 U.S.C. § 1304

Status Enjoined as field and conflict preempted

Enjoined as field and conflict preempted

Enjoined as field and conflict preempted

Requires state and local law Enjoined as field enforcement officers who have and conflict stopped, detained, investigated or preempted arrested any person for whom they have a “reasonable suspicion” to believe may be unlawfully present in the U.S. to “when practicable … 14

Reasoning The court found the section to be the legal and practical equivalent of criminalizing unlawful presence, which Congress chose to treat as only a civil offense. State and local officers are limited by 8 U.S.C. § 1252c to only arresting unlawfully present aliens. The court found that through 8 U.S.C. §§ 1323, 1324 and 1328, Congress adopted a scheme of federal regulation regarding harboring and transportation of illegal aliens so pervasive that it left no room for states to supplement it. 8 U.S.C. § 1324 only grants states power to arrest for such offenses. Also, the safe harbor provisions of this section are inconsistent with federal law and conflict preempted as well. The court found that the federal government has adopted a pervasive and comprehensive scheme that leaves no place for state regulation in the area of alien registration. And the state enforcement of Section 5 creates the risk that lawfully present persons in the U.S. not in possession of federal alien registration materials would be subject to arrest, prosecution, and incarceration, creating a conflict with federal law and an obstacle to the full implementation of the objectives of Congress. Federal regulation of immigration enforcement is so pervasive and comprehensive that it has not left any room for the state to supplement it. The section also burdens the finite and limited federal immigration enforcement resources and acts as “an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.”

Section 6(B)(2)

Section 15

determine whether the person is lawfully present in the United States” Prohibits possessing or using a Enjoined as field counterfeit ID as proof of lawful preempted presence

Prohibits making or selling Enjoined as field counterfeit IDs to a person preempted unlawfully present in the U.S.

The court found this section would allow states to initiate arrests and prosecutions and judicially interpret state law regarding alien registration, all areas previously under the exclusive control of the federal government. State arrests and prosecution of persons with false ID could generate tensions with foreign nations and retaliation against American nationals abroad, which support the U.S. government’s argument that matters need to be under its exclusive discretion and control. The court used the same reasoning as it did for Section 6(B)(2) in finding that Section 15 is also field preempted.

UTAH House Bill 497 (HB 497), called the “Illegal Immigration Enforcement Act,” includes provisions requiring an officer to verify the immigration status of anyone arrested for a felony or a Class A misdemeanor and anyone booked for Class B or C misdemeanors (Section 1); permitting law enforcement officers to question and verify immigration status of passengers in a vehicle where the operator has been detained (Section 3); providing a list of acceptable documents for the presumption of lawful presence in the U.S. (Section 4); authorizing a state or local law enforcement agency to transport an alien who is in the agency’s custody and whom the agency has verified is unlawfully present in the U.S. to a federal detention facility in this state or, with the concurrence of the receiving federal agency, to a federal facility or other point of transport to federal custody that is outside the state (Section 5); prohibiting sanctuary policies or practices (Sections 6 and 7); requiring verification of immigration status for public services or benefits provided by a state or local government agency, except as exempted by federal law (Section 8); amending Utah law which prohibits transporting, harboring or concealing an illegal alien to also include encouraging or inducing an illegal alien to come to, enter or reside in Utah (Section 10); and granting law enforcement officials the power to make warrantless arrests based on a reasonable suspicion that a person is subject to an immigration removal order (Section 11). HB 497 also includes an implementation clause and legislative intent that HB 497 supersede certain sections of Senate Bill 288 (2011) (Sections 9 and 12).

15

Trial court: Utah Coalition of La Raza v. Herbert, Case No. 2:11-CV-401 (D. Utah May 11, 2011) Utah Coalition of La Raza v. Herbert, Case No. 2:11-CV-401 (D. Utah February 15, 2013) Section Challenged All

Summary All sections of HB 497 were challenged.

Status

Reasoning

Temporary restraining order granted and extended until ruling on motion for preliminary injunction

The court found the plaintiffs presented sufficient evidence to create a substantial question about the constitutionality of H.B. 497.

16