Posted on April 18, 2012

State Omnibus Immigration Legislation and Legal Challenges

The federal and state roles in immigration continue to be tested in the courts.  Since Arizona’s immigration enforcement laws were enacted early in 2010 (and subsequently enjoined after a federal challenge), five additional states enacted similar laws in 2011:  Alabama, Georgia, Indiana, South Carolina and Utah.  Legal challenges were filed in each state and the laws have been partially or wholly enjoined.  The federal government has also filed complaints against laws in Alabama, South Carolina, and Utah.

In March, 2012, two additional provisions in Alabama’s HB56 were enjoined by the U.S. Court of Appeals for the 11th Circuit.   The provisions relate to barring courts from enforcing contracts with illegal immigrants and criminalizing “business transactions” between state and local government and illegal immigrants.  More information on Alabama’s law and court decisions can be found below.

The U.S. Supreme Court will hear oral arguments on Arizona’s SB1070 (Arizona v. US, #11-182) on April 25, 2012, with a decision expected in June or July. 

In 2012, five states introduced omnibus enforcement bills containing provisions such as requiring law enforcement to verify immigration status during a lawful stop, making it a state crime for failure to carry a federal immigration registration document, and creating penalties for transporting or harboring illegal immigrants: Kansas (H2576), Mississippi (H488 and S2090), Missouri (S590), Rhode Island (H7313) and West Virginia (S64).  Bills in Mississippi and West Virginia have failed. Alabama continues to consider amendments to last year’s H56 (H226, H658, and S140).  Two bills (H106 and S41) would repeal HB56.  Utah considered and rejected repeals (H300 and S157) of the guest worker program, part of last year’s package of four immigration bills addressing legal and illegal immigration.  A Washington bill (S6436) would make it unlawful to transport or harbor illegal immigrants; deny a driver’s license unless citizen or lawful permanent resident; require verification of status for a felony or DUI arrest; and mandate a work verification system for public employers.
Background

In 2010, Arizona enacted SB1070 and HB2162, enjoined since July 2010 following a federal challenge, and currently under appeal to the U.S. Supreme Court.  On July 28, 2010, the U.S. District Court in Arizona granted in part and denied in part the motion for preliminary injunction.  The sections that were barred from taking effect (pending appeal) were:  Section 2B, requiring law enforcement officers to determine immigration status during any lawful stop; Section 3, creating state crimes and penalties for failure to carry federally-issued alien registration documents; Section 5, making it unlawful for an unauthorized alien to knowingly apply for or perform work in Arizona; and Section 6, permitting an officer to make a warrantless arrest if the officer has probable cause to believe the person has committed any public offense that makes the person removable from the United States. Judge Bolton’s ruling can be found here.  The Governor of Arizona appealed to the U.S. Supreme Court for expedited review in the 2011-2012 term.   Governor Brewer’s appeal, filed on August 26, 2010, can be found here. NCSL’s summary of the Arizona law and similar actions in 2010 is available here.  Oral arguments will be heard by the U.S. Supreme Court on April 25, 2012.

Five states – Alabama, Georgia, Indiana, South Carolina and Utah – crafted omnibus laws in 2011 following the example of Arizona. The laws typically include provisions that require law enforcement to attempt to determine the immigration status of a person involved in a lawful stop; allow state residents to sue state and local agencies for noncompliance with immigration enforcement; require E-Verify; and make it a state violation for failure to carry an alien registration document.  Alabama’s HB.56 also required schools to verify students’ immigration status.  Legal challenges based on preemption and civil rights were brought in each state and the laws have been wholly or partially barred from taking effect.

This brief includes summaries of the enacted laws and legal challenges.  Links to the omnibus laws and the lawsuits can be found at the end of this issue brief.

Alabama

Alabama’s HB56, signed June 9, 2011, addresses a range of topics including law enforcement, employment, education, public benefits, harbor/transport/rental housing, voting and REAL ID.

Law Enforcement:   The Attorney General is required to negotiate a memorandum of agreement with DHS.   It prohibits state and local law enforcement from restricting enforcement of federal immigration laws.  It requires state and local law enforcement to reasonably attempt to determine the immigration status of a person involved in a lawful stop, detention or arrest in the enforcement of any other local or state law or ordinance where reasonable suspicion exists that the person is an alien and is unlawfully present, except if it may hinder or obstruct an investigation.   Citizenship or immigration status of aliens arrested and booked into custody must be verified with the federal government. The police officer may not consider race, color, or national origin when implementing the law. The law specifies a presumption of lawful presence with these IDs:  Alabama driver license or ID; tribal enrollment card or ID; valid federal or state government issued identification, if the issuing entity requires proof of legal presence before issuance; foreign passport with unexpired visa or passport issued by a visa waiver country with entry stamp.  It allows citizens and legal residents to sue state or localities that restrict enforcement of federal law.   The law creates a state violation for willful failure to complete or carry an alien registration document comparable to federal law in 8 USC 1304(e) or 1306(a) and creates state penalties of up to 30 days in jail and $100 for a first offense.  Immigration status must be verified with the federal government.

Employment.   It is unlawful for a person who is an unauthorized alien to knowingly apply for work, solicit work in a public or private place, or perform work as an employee or independent contractor in this state.  Effective April 1, 2012, public contractors and subcontractors are required to use E-Verify.  Public contractors may not knowingly employ unauthorized aliens.  The Attorney General may bring action to suspend the business license for up to  60 days for a first violation and permanent revocation for a second violation.  It is a class C misdemeanor subject to a fine of up to $500 for an occupant of a motor vehicle to hire on a street, roadway or highway if the vehicle blocks or impedes the normal movement of traffic; or to enter a vehicle to be hired and transported.

Education:  Public schools (K-12) are required to determine a student’s immigration status and submit annual reports to the state education board. The law bans illegal immigrants from attending college or receiving any state scholarships, grants, or financial aid.

Public Benefits:  An alien unlawfully present in the United States is prohibited from receiving any state or local public benefits. Exemptions provided for primary or secondary school education, emergency health care, disaster and emergency assistance, prenatal care, child and adult protective services.  An alien’s lawful presence in the U.S. shall be verified by the federal government.  Verification for public benefits shall be made through the SAVE system.

Harbor/Transport/Rental Housing:  It is unlawful for a person to transport an alien; conceal, harbor or shield an alien; or harbor an alien unlawfully present by entering into a rental agreement if the person knows or recklessly disregards the fact the alien is unlawfully present.  It provides exemptions for law enforcement and first responder or protective services providers.

Voting:  This law requires a person to present proof of citizenship and residency before voting.

REAL ID:  Nothing in this act is in any way meant to implement, authorize, or establish the Real ID Act of 2005.

Effective date: September 1, 2011.

Legal challenge:   The U.S. Department of Homeland Security, U.S. Department of Justice, U.S. Department of State and U.S. Department of Education filed a complaint to enjoin provisions of Alabama’s HB56 on the basis of preemption and violation of the Supremacy Clause of the U.S. Constitution.  On September 28, 2011, the Alabama district court granted an injunction on four provisions and declined to enjoin six provisions of the immigration law pending the outcome of the lawsuit.

The 4 sections enjoined on September 28, 2011:

• Section 11(a):  creating a misdemeanor for an unauthorized immigrant to apply for or perform work;
• Section 13: making it unlawful to conceal, harbor, or transport unauthorized immigrants;
• Section 16: prohibiting business from taking tax deductions for wages to unauthorized immigrants; and
• Section 17:  creating a civil cause of action for U.S. citizens and legal immigrants against employers if they lose a job to an unauthorized immigrant.

The 6 sections that were allowed to go forward pending trial:

• Section 10:  creating a state misdemeanor for not carrying an alien registration document (enjoined on October 14, 2011);
• Section 12(a):   requiring a law enforcement officer to make a reasonable attempt to determine the citizenship and immigration status of a person stopped, detained or arrested when reasonable suspicion exists that the person is unlawfully present;
• Section 18:  requiring law enforcement to transport a person arrested for driving without a license to a magistrate and if found to be unlawfully present the person shall be detained until prosecution or until handed over to immigration authorities;
• Section 27:  barring courts from enforcing contracts with unlawfully present aliens;
• Section 28:  requiring every public school to determine whether a student was born outside of the United States or to parents unlawfully present at the time of enrollment and report to the state board of education (enjoined on October 14, 2011); and,
• Section 30:  makes it a felony for an alien not lawfully present to enter into “business transactions” with state or local government (e.g., driver’s licenses, business licenses, but not marriage licenses).

On March 8, 2012, the U.S. Court of Appeals for the 11th circuit enjoined section 27 and section 30.  Sections 12(a) and 18 remain in effect.

The case is United States v. State of Alabama and Governor Robert J. Bentley.

Georgia

Georgia’s omnibus immigration bill (HB87) was signed on May 13, 2011.  The bill includes provisions on employment, law  enforcement and public benefits.

Law Enforcement

If an officer has probable cause to believe the suspect has committed a crime, including any traffic offense, the officer shall be authorized to verify the suspect’s immigration status  if the suspect cannot provide identification.  Criminal offense is defined as a felony violation of state or federal criminal law.  The peace officer may not consider race, color, or national origin in implementing the law. The bill exempts people who are acting as a witness to a crime, reporting criminal activity, or seeking assistance as a victim of a crime. All foreign nationals confined for any period of time in a county or municipal jail will be questioned regarding their lawful presence in the state.

Persons knowingly and intentionally transporting an illegal alien while committing another crime may be charged with a misdemeanor, punishable by up to one year in prison and fines up to $1,000, if it is the first offense and the person in transporting seven or fewer illegal aliens. If it is the person’s second offense, if the person is transporting more than seven aliens, or if the person is transporting aliens for profit, he may be charged with a felony, punishable by one to five years in prison and fines between $5,000 and $20,000. The law provides some exceptions for public employees transporting illegal aliens. The same penalties exist for a person convicted of knowingly concealing, harboring, or shielding an illegal alien from detection; and for a person inducing an illegal alien to enter the state.

State and local agencies shall be authorized to enter into agreements with the U.S. Department of Justice, Homeland Security, or other federal agency to enforce federal immigration and customs laws and the detention, removal and investigations of illegal aliens in the state.

Employment. Public employers must require all contractors to include in their bid for a publicly funded project an affidavit attesting that the contractor and any subcontractor uses E-Verify. Subject to funding, the state will conduct compliance audits on public employers with administrative penalties for non-compliance.  Two instances of non-compliance in five years will result in a 10% cut in appropriations to the offending agency.    Employers cannot claim deductible business expenses for wages paid to an employee in excess of $600 unless the employee has been approved to work in the U.S. using E-Verify.  Identity fraud for the purpose of obtaining employment is aggravated identity fraud.

Public Benefits.  Agencies providing public benefits shall require applicants to provide at least one secure and verifiable document in addition to an affidavit of lawful presence (for those 18 years of age or older).  Foreign consular identification is not considered a “secure and verifiable document.”

All  provisions become effective July 1, 2011 except public benefits provisions, which become effective July 1, 2012.

Legal challenge:  On June 27, 2011 U.S. District Judge Thomas Thrash, Jr. granted a preliminary injunction on sections 7 and 8, sections of HB87 that would have gone into effect on July 1, 2011. Section 7 prohibits transporting, harboring or concealing an illegal immigrant.  Section 8 allows law enforcement to check immigration status if the officer has probable cause the individual has committed another offense. The case is Georgia Latino Alliance for Human Rights et al. v. Nathan Deal, Governor of Georgia et al. in the U.S. District Court for the Northern District of Georgia, Atlanta Division.

Indiana

Indiana’s SB590, signed May 10, 2011,  addresses a range of topics including law enforcement, E-Verify, public benefits,  a cost study of illegal immigrants and further study of immigration topics.

Law Enforcement:   A law enforcement officer can arrest a person if the officer has a removal order, detainer, notice of action or if the officer has probable cause to believe the person has been indicted or convicted of one or more aggravated felonies.  Law enforcement officers can also impound motor vehicles for violations of crimes related to moving, transporting, concealing, harboring, or shielding illegal aliens.  The Department of Corrections must verify citizenship or immigration status of criminal offenders.   Status as a foreign national must be considered in setting bail or bond requirements.  The law establishes state crimes for false ID, identity fraud, transport, and harboring.

E-Verify:  State agencies, political subdivisions and contractors with public contracts for services with the state or a political subdivision are required to use E-Verify.  Certain state income tax credits and deductions are banned for individuals who are prohibited from being hired as employees, unless the employer participated in the E-Verify program.

Public Benefits.  State agencies and localities must verify eligibility for federal, state and local benefits and unemployment compensation.

Studies/reimbursement of costs. The office of management and budget must calculate costs of illegal immigrants to Indiana and request Congressional reimbursement.  The law urges the legislative council to assign immigration topics for further study and consult with the lieutenant governor.

Provisions become effective July 1, 2011.

Legal challenge:  On June 24, 2011 Judge Sarah Evans Barker issued a preliminary injunction in Ingrid Buquer, et al. v. City of Indianapolis, et al., The judge preliminarily enjoined the defendants from enforcing sections 18 and 19 of the new law until further order of the court.

South Carolina

South Carolina’s  S20 was signed by the Governor on  June 27, 2011. This bill includes provisions on law enforcement, employment, public benefits, harbor/transport/rental housing, and identification.

Law enforcement:  If a law enforcement officer has a reasonable suspicion that a person who is stopped, detained, or arrested is an alien unlawfully in the United States, the officer or his agency is required to verify the immigration status of that person. A law enforcement officer would then contact U.S. Immigration and Customs Enforcement to determine if that person should be arrested for immigration violations.  An officer may not consider race, color, or national origin while implementing this law.

Employment.   It is unlawful for a person who is an unauthorized alien to knowingly apply for work, solicit work in a public or private place, or perform work as an employee or independent contractor in this state.  All public contractors and subcontractors are required to use E-Verify.  After being hired, an employer has three days to check an employee’s verification in E-verify.  Public contractors may not knowingly employ unauthorized aliens.  When a private employer’s licenses are suspended, the private employer may not seek reinstatement of the licenses for a period of five years. After five years, the director may grant reinstatement of licenses if the private employer goes on probation for three years, terminated the unauthorized alien, and pays a reinstatement fee equal to the cost of investigating and adjudicating the matter.

Harbor/Transport/Rental Housing:  It is unlawful for a person to transport an alien; conceal, harbor or shield an alien; or harbor an alien unlawfully present by entering into a rental agreement if the person knows or recklessly disregards the fact the alien is unlawfully present.  It provides exemptions for law enforcement and first responder or protective services providers.

Public Benefits: An alien unlawfully present in the United States is prohibited from receiving any state or local public benefits. Exemptions are provided for emergency health care, disaster and emergency assistance, prenatal care, child and adult protective services.  An alien’s lawful presence in the United States shall be verified by the federal government.

Identification: This act does not implement, authorize, or establish, and shall not be construed to implement, authorize, or establish the federal Real ID Act of 2005. It is unlawful for a person to make, issue, or sell, a false, fictitious, fraudulent, or counterfeit picture identification that is for use by an alien who is unlawfully present in the United States. A person who violates this section is guilty of a felony, and, upon conviction, must be fined $25,000 or be imprisoned for not more than five years, or both. It is unlawful for a person eighteen years of age or older to fail to carry any certificate of alien registration. A person who violates this section is guilty of a misdemeanor and, upon conviction, must be fined not more than $100 or imprisoned for not more than thirty days.

This law is scheduled to go into effect January 1, 2012.

Legal challenge:  On October 31, 2011 the U.S. Department of Justice filed a motion to enjoin South Carolina’s law in the U.S. District Court for the District of South Carolina, Charleston division.  The motion argued South Carolina’s immigration provisions are preempted by federal law and therefore violate the Supremacy Clause of the United States Constitution.  The lawsuit, brought by DHS, DOJ and the Department of State, is United States of America v. State of South Carolina and Nikki R. Haley in her official capacity as the Governor of South Carolina. On December 22, 2011, the U.S. District Court enjoined three provisions of South Carolina Act 69 related to making it a state crime for transporting or harboring illegal immigrants; making it a state crime for failure to carry a federal immigration registration document; and requiring law enforcement to determine immigration status if there is a reasonable suspicion the person is in the country illegally.

Utah’s “Compact” and Utah Laws

Utah’s immigration reform discussion was framed by the “Utah Compact,” a set of five principles crafted in the summer and fall of 2010 based on federal solutions, law enforcement, families, economy and free society. The compact received support from a broad range of sectors, including state and local officials, the Salt Lake Chamber, the Sutherland Institute, law enforcement, advocacy and religious organizations.

Utah was the first state this year to address immigration reform in a comprehensive package.  Enacted on March 15, 2011, Utah’s package of laws (H116, H466, H469 and H497) includes immigration enforcement, immigrant integration, and a pilot temporary worker visa program.  H116, an omnibus law, addresses employment, identification and verification, human trafficking and law enforcement. H466 creates the Utah Commission on Immigration and Migration Act, addresses integration of immigrants in the state, and provides for the creation of the Migrant Worker Visa Pilot Program. It also commissions a study of the impact of illegal immigration on Utah.  H469 creates a pilot sponsor resident immigrant program.  The omnibus H497 addresses law enforcement, REAL ID and public benefits.

H116

• It establishes a temporary guest worker program and seeks federal waivers to implement the program by July 1, 2013, or within 120 days of receiving a federal waiver, whichever is sooner. The law requires implementation of the law to be consistent with federal immigration law, civil rights, and privileges and immunities of U.S. citizens.
• To be eligible for a guest worker permit, individuals must be older than 18 or have parent or guardian permission; have worked or lived in Utah before May 10, 2011; provide regularly updated contact information; provide proof of work within 30 days of permit issuance; agree to a criminal background check, and not have been convicted of or pled guilty to a serious felony; provide evidence that the individual would not be inadmissible based on public health grounds; have health insurance; and hold a driving privilege card.
• Application for the two-year permit requires paying a fine of $1,000 if the undocumented individual entered legally but is not currently in compliance with the Immigration and Nationality Act or $2,500 if the undocumented individual entered illegally.
• Permit holders must make good faith efforts to become proficient in English.
• Private employers are prohibited from knowingly hiring an undocumented individual without a permit.
• The department created to administer the guestworker permit must establish a verification requirement substantially similar to E-Verify. Employers with more than 15 employees must verify employment eligibility through E-Verify, an equivalent federal electronic verification system, the Social Security Administration or an independent third-party system with equal reliability.
• The Attorney General may administer a multi-agency strike force to combat crimes associated with illegal immigration and human trafficking.
• Law enforcement officers shall request verification of immigration status while enforcing a state law or local ordinance that is a class A misdemeanor or felony and the individual is unable to provide one of several specified documents, including Utah identification cards. Law enforcement may request verification for a class B or C misdemeanor.

H466 creates an advisory Utah Commission on Immigration and Migration composed of 27 members of the legislature and executive agencies and members of the public appointed by the Speaker, Senate President, and Governor. The Commission shall:  review the economic, legal, cultural and educational impact of illegal immigration; review federal and Utah laws related to immigration. The Commission shall also develop a state plan on immigration and integration and make recommendations to the governor and the legislature, with an initial report in six months followed by annual reports. The law establishes a migrant worker visa pilot project and authorizes Utah to work with the State of Nuevo Leon, Mexico to fill jobs in Utah.

H469 provides for the Pilot Sponsored Resident Immigrant Program Act, under which a resident immigrant may reside, work, and study in the State. It provides that a resident of the State and a U.S. citizen may sponsor a foreign national as a resident immigrant and permits employment of resident immigrants.

The omnibus H497 addresses law enforcement, REAL ID and public benefits. The law requires that an officer verify the immigration status of a person arrested for a felony or a class A misdemeanor and a person booked for class B or C misdemeanors. It clarifies when passengers in a vehicle where the operator has been detained may also be questioned and their immigration status verified. It requires verification of immigration status regarding application for public services or benefits provided by a state or local governmental agency or subcontractor, except as exempted by federal law. This bill does not implement or authorize the federal REAL ID Act to any extent not currently provided by state law.

Legal challenge:  On May 10, U.S. District Court Judge Clark Waddoups in Utah granted a temporary restraining order that prevented HB 497 from taking effect.  The case is Utah Coalition of La Raza et al. v. Gary Herbert and Mark Shurtleff.  On November 22, 2011, the U.S. Department of Justice filed a complaint against HB 497.

Other Omnibus Legislation

As of June, 2011, 30 states considered 53 omnibus bills.  Six omnibus bills have been enacted; 21 are pending or carryover bills; and 26 have failed.  Some of these bills are in the model of Arizona’s SB1070 in 2010, seeking to expand state actions in enforcing immigration law.  These omnibus bills include multiple topics in one bill such as immigration law enforcement, employment verification, and verification of lawful status for public benefits.

Many omnibus immigration bills introduced in 2011 contain law enforcement provisions similar to Arizona’s SB1070, such as requiring officers to verify immigration status during a lawful stop, requiring immigrants to carry alien registration documents, and adding state penalties for harboring, transporting, and/or smuggling of illegal immigrants. Other omnibus bills follow the example of previous years, addressing verification of legal status for public benefits and driver’s licenses, use of E-Verify by public or private employers, and immigration law enforcement provisions such as authorizing agreements with the U.S. Department of Homeland Security.
This chart lists the 53 omnibus bills, bill status as ofJune 30, bill title, and brief summary.  Click here for printer friendly version of chart  (PDF)

Note: In the first half of 2011, state legislators in the 50 states and Puerto Rico considered 1,592 bills and resolutions relating to immigrants and refugees. State legislators enacted 257 laws and resolutions. The 2011 report is online here.   Previous reports can be found here.

Resources

Laws

Alabama H56

Georgia HB87

Indiana SB590

South Carolina S20

Utah HB116 “Guest Worker Program Act”

Utah HB497 “Illegal Immigration Enforcement Act”

Utah HB466 “Migrant Workers and Related Commission Amendments”

Utah HB469 “Pilot Sponsored Resident Immigrant Program”

The Utah Compact: http://www.theutahcompact.com/
Legal Challenges and Court Orders

Alabama lawsuit

Alabama Injunction September 28, 2011

Alabama 11th Circuit Court of Appeals Injunction October 14, 2011

Alabama Injunction March 2012

Georgia lawsuit

Georgia Injunction

Indiana lawsuit

Indiana Injunction

South Carolina lawsuit

South Carolina (U.S. Department of Justice Complaint)

South Carolina Injunction

Utah

Utah Injunction

Related NCSL publications

Arizona SB1070 summary: http://www.ncsl.org/default.aspx?tabid=20263

NCSL’s immigration reports: http://www.ncsl.org/default.aspx?tabid=19897.

Prepared by:
Ann Morse, Program Director, Immigrant Policy Project, NCSL
April Carter, Spring Fellow, Immigrant Policy Project, NCSL
Marie Lawrence, Emerson National Hunger Fellow, NCSL
Joy Segreto, Summer Fellow, Immigrant Policy Project, NCSL
www.ncsl.org/programs/immig