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It’s our right as a sovereign nation to choose immigrants that we think are the likeliest to thrive and flourish and love us.
—President Donald J. Trump, September 1, 2017
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Today it is slightly more than a year since the inauguration of a new administration in Washington—and the announcement of a travel ban barely a week later. It took the Trump administration three iterations on this ban and six months before the Supreme Court allowed even partial implementation. Full implementation didn’t come until December 2017. The initial travel ban faced considerable criticism essentially for being an attempt to keep Muslims out of the United States. On the third try, two non-Muslim nations were added: North Korea and Venezuela. The lineup for the latest targeted nations are Chad, Iran, Libya, North Korea, Syria, Venezuela, Somalia, and Yemen. Sudan had been included in the previous ban, but it was removed and replaced with Chad. Of course, North Korea has been in the diplomatic deep freeze from the beginning of the new administration, with inflammatory rhetoric between President Trump and “Dear Leader” Kim Jong-un flying higher than the North Korean dictator’s ICBMs. The restrictions on Venezuelan nationals are aimed mainly at individuals in government and their families. Even with these additions, the ban is considered basically a religiously inspired one, and it remains in litigation.
As to the other campaign promises on immigration, the border wall is still in the prototype stages, and the price has risen to some $25 billion. The money for this strong southern border has become politically entangled with the fate of the young people in the DACA program, which was officially rescinded. So far, the situation has managed to generate one government shutdown, with a resolution supposed to be generated by Congress in the coming months. As with so much when it comes to immigration, we’ll have to see how any legislation fares.
The administration has been quick to remove temporary protected status for some 60,000 Haitians living and working in the United States after a devastating 2010 earthquake. The same step was taken against 262,500 Salvadorans who came to this country on humanitarian grounds after two earthquakes rocked their homeland in 2001. The number of deportations has risen, not merely for Mexicans and Central American migrants (the major targets) but 24 percent for the rest of the world.
Since his reasoned statements on studying a number of issues during his confirmation hearings, Attorney General Jeff Sessions has taken a hard line in office. In addition to promoting the Trump agenda on immigration and opioids, Sessions has essentially declared a war against marijuana, even as many states have legalized various aspects of use for the drug.
What has that got to do with immigration? In April 2017 then-head of Homeland Security John Kelly enunciated a policy of actively enforcing the statutes against marijuana—and using those arrests to deport immigrants, legal and illegal, found with even small amounts of the drug. (Shades of John Lennon!) Though the Supreme Court has ruled that possession of small amounts for “social sharing” should not be considered an aggravated felony, encouraging prosecutorial discretion, the DHS juggernaut has proceeded to deport thousands on nonviolent pot charges, which the Obama administration had left alone. Looking to the future, we can expect contentious and difficult legal debate still to come.
I expect that an important element in the ongoing debate will be the legal principle of preemption—that is, a federal law enacted through Congress overruling any conflicting laws of a lower authority. This has already begun to affect the enforcement of our immigration law—or rather, who’s going to do the job. State and local governments have tried to supplement the shortcomings in federal immigration law for some time. One such measure has been ICE ACCESS agreements under section 287(g) of the Immigration and Naturalization Act (INA). ACCESS is an acronym for “Agreements of Cooperation in Communities to Enhance Safety and Security,” and ICE is the acronym for Immigration and Customs Enforcement. In this series of agreements, thirteen combined programs are authorized to use local criminal justice systems—courts, jails, and police forces—to apprehend and confine people considered to be “criminal aliens.” With these agreements, state and local law enforcement agencies can carry out immigration law functions that they would otherwise not be allowed to perform. I believe this will lead to more legal problems, with state and local governments wrestling with new and unfamiliar responsibilities or being persuaded that they need to impose more stringent immigration laws. Inevitably, this will mean conflict—and raise the specter of preemption.
It has long been established that the federal government is the supreme authority with respect to immigration, so state and local laws must clear two forms of preemption: Express Preemption and Implied Preemption. When a statute explicitly states that it preempts state or local laws, that’s Express Preemption. This also occurs when there’s a constitutional provision expressly delegating legislative functions with respect to a given arena to the feds—also known as Constitutional Preemption.
Examples of Implied Preemption include Conflict Preemption, when there’s a direct conflict between a federal and state or local law so that enforcement of the state or local law would stand as an obstacle to the complete fulfillment of Congress’s objectives. There’s also Field Preemption, wherein Congress intended a complete ouster of state or local power to legislate a particular subject. Thus, even in the absence of a direct conflict between a federal and state or local law, the state or local law may be preempted.
In the case of DeCanas v. Bica the Supreme Court back in 1976 developed a three-step analysis for determining a California labor law:
The Court stated, a “regulation of immigration” is a statute determining who should or should not be admitted into the United States, and the conditions under which a legal entrant may remain.” These are preempted.
In contrast, regulations merely having an impact on or affecting immigration—but not regulating it—are not preempted. The court upheld the validity of the California statute restricting employers from knowingly employing an alien not entitled to lawful residence in the United States. Significantly, the California statute adopted federal standards in imposing sanctions against employers who employed aliens lacking a federal right to employment. Thus, it did not frustrate federal objectives.
In 1982 the case of Plyler v. Doe involved a Texas law to bar the enrollment of children in public schools if they were not legally in the United States. The Supreme Court struck down the law, but the decision stated, “States do have some authority to act with respect to illegal aliens, at least where such action mirrors federal objectives and furthers a legitimate state goal” (emphasis added). Moreover, the Immigration Reform and Control Act (IRCA) provides, “The provisions of this section preempt any State or local law imposing civil or criminal sanctions (other than through licensing or similar laws) upon those who employ . . . unauthorized aliens.” The underlined portion is commonly referred to as the “Savings Clause.”
The march of technology has simply made the matter even more contentious. E-Verify is an Internet-based system employers can use to verify an employee’s work authorization. It allows an employer to submit a verification request and receive either a confirmation or a tentative nonconfirmation (TNC). If a TNC is issued, an employer must notify the employee, and the employee has eight days to challenge the initial finding. If an employee opts to challenge, a secondary verification process must be completed within ten business days. Should the employee fail to challenge the TNC or is unsuccessful in bringing a challenge, the employer must fire that employee or notify the Department of Homeland Security (DHS) that it will continue to employ the person. Failure to notify DHS will subject the employer to civil penalty and a presumption of having knowingly employed an unauthorized alien.
I hope readers will forgive what seems like a digression into the legal weeds. But I feel a thorough review of case law is required here to understand how the preemption doctrine has been applied—to predict how it may be implemented in the future.
In 2007, Arizona passed a law requiring all employers within the state to enroll in E-Verify. Under federal law, the program was voluntary. Arizona made E-Verify mandatory, and violations for noncompliance could result in permanent revocation of the employer’s business license if committed during a specified probationary period. In the case of CPLC v. Napolitano, the Ninth Circuit Court upheld the validity of the law because it embodied federal standards and did not attempt to define who is eligible or ineligible to work under federal immigration laws.
On the other hand, in the United States v. Illinois the federal government challenged an Illinois law prohibiting employers from enrolling in E-Verify until determinations on 99 percent of TNC notices are issued to employers within three days. The reviewing district court held that the underlying federal interest in promoting E-Verify justified a finding of preemption insofar as the Illinois law frustrated federal objectives. (Thus fulfilling the third part of the DeCanas v. Bica test.)
Arizona’s state legislature took action to promote the federal government’s E-Verify program. This state action was upheld. Illinois’s state legislature sought to restrict employers from utilizing E-Verify until the system met specified standards for accuracy and speed. This state action was preempted. The differing outcomes are suggestive of federal immigration laws/policies as a sort of immigration “low-water mark” or minimum.
In Nebraska the governor signed Legislative Bill 403, requiring public entities and contractors seeking public projects, and businesses qualifying for state tax incentive programs, to enroll in E-Verify. The bill also outlined the process by which state agencies could verify the eligibility of those applying for public benefits through the Systematic Alien Verification Entitlement (SAVE) program.
SAVE is a DHS program constituting a nationally accessible database of immigration status information on over sixty million records. SAVE is designed to examine an applicant’s immigration status to ensure that only entitled applicants receive federal, state, or local public benefits. Assessing Nebraska LB 403 under DeCanas v. Bica, it is apparent that this is an instance of state action not preempted by federal immigration laws. Nebraska’s implementation of E-Verify does not stand as an obstacle to the full accomplishment of Congress’s objectives (CPLC v. Napolitano). SAVE is a program developed specifically for these circumstances.
The question of education and immigration continues with the case of Equal Access Education v. Merton. Virginia enacted a law prohibiting postsecondary education institutions from admitting people believed to have “illegal,” “undocumented,” or “unlawful” status within the meaning of federal law. The reviewing district court upheld the statute upon finding no conflict with federal immigration laws insofar as Virginia’s statute incorporated federal standards in defining who would be ineligible for admission to state institutions. Outside the context of E-Verify, this holding supports the notion of federal standards serving as a low-water mark for immigration restrictions.
On the local law front, the city of Hazleton, Pennsylvania, enacted ordinances that sought to prohibit the harboring and employment of undocumented aliens by imposing penalties on landlords and employers. A harboring provision required occupancy permits that could only be obtained by U.S. citizens or lawful residents. The employment provision revoked employers’ business licenses for hiring undocumented aliens and provided a private cause of action for lawful employees discharged while the employer maintained unlawfully present workers. Hazleton asserted that its ordinance constituted a licensing law valid under IRCA’s Savings Clause.
The result was the case of Lozano v. Hazleton in 2005, in which the reviewing district court held that allowing Hazleton to revoke employers’ business licenses, but not to impose civil or criminal sanctions, would only allow states to impose more severe forms of punishment. Thus, Hazleton’s position was inconsistent with the purposes underlying IRCA. The court found that the “licensing” contemplated within IRCA referred only to revocation of licenses for IRCA violations, and not for violations of local laws. Thus, IRCA’s Savings Clause was held entirely inapplicable to local ordinances.
The Hazleton ordinance defined “illegal alien” as “an alien who is not lawfully present in the United States according to the terms of United States Code Title 8, Section 1101.” But Title 8, Section 1101 (commonly referred to as the Immigration Nationality Act) provides no definitions for the terms “illegal alien” or “lawfully present.” The city sought to avoid preemption issues by “adopting federal standards” but failed to incorporate any actual federal standards. Hazleton’s mayor and city council president explained the motivation behind Hazleton’s ordinance as the result of the federal government’s failure to address immigration problems, including the sudden appearance of muster zones, areas where day laborers collect in the morning to seek jobs. The visible presence of undocumented aliens often elicits strong and contentious debate among localities, resulting in pressure upon state and local officials to address immigration issues.
This brings us back to ICE ACCESS, which at least gives the impression of something being done about the immigrant problem. INA Section 287(g) envisions a cooperative framework under which federal and state or local authorities coordinate efforts to enforce federal immigration laws. But here’s the problem: state and local governments have been forced to bear the increased costs of enforcing those laws—and these governments come to interpret their increased participation in enforcement of immigration laws as a cue to legislate immigration at a state or local level.
This can lead to a fracturing effect on law enforcement, as shown in Louisiana v. Neri Lopez. This case involved a Louisiana statute making it illegal for those unlawfully present to operate a motor vehicle. Louisiana’s Fourth Appellate Department held the state statute preempted by the federal REAL ID Act. Subsequently, however, Louisiana’s First Appellate Department found no conflict between the statute and federal law. Thus, no preemption. The result is a jurisdictional split between Louisiana state courts and whether an individual is charged with illegally operating a motor vehicle while unlawfully present will depend upon fortuitous circumstances such as where one is apprehended by authorities.
As states and localities seek to take on a more active role in immigration, significant disparities between state and local immigration laws among and within states can be expected. Various levels of government will adopt ad hoc solutions to meet their individual needs, immigration law will lose its uniformity, and complicated nuances will eventually demand federal intervention. Rather than allowing complications to arise at the state and local level, the federal government ought to act to ensure comprehensive and uniform immigration reform. And it’s got to be done soon. Several states and localities have made conscious efforts to avoid or disguise preemption issues. We can look forward to a lot of jousting over whether a state or local law frustrates federal immigration objectives.
Whatever the congressional objectives may be, the federal government does not have the resources to be omnipresent and ensure full enforcement. Although local government depicts itself as the first line of defense, in plain truth—it lacks jurisdiction to act.
In the case of Muehler v. Mena, the Supreme Court gave police officers full authority to request information pertaining to a person’s immigration status. The Court explicitly equated that inquiry to the typical standard of questions asked to determine a person’s name, address, and date of birth. By framing the inquiry that way, the question about a person’s immigration status is brought outside of the scope of the Fourth Amendment. A law enforcement agent can delve into immigration status without fear of violating constitutionally protected rights. Questions regarding immigration status do not require a separate and distinct cause, which raises a reasonable suspicion. They are deemed appropriate even when a person cannot be legally searched or arrested.
However, not all states and cities are eager to hit the ground running. Some local and state governments have laws prohibiting their employees and law enforcement agents from disclosing information about an individual’s illegal immigration status. Communities pass these laws because it leads to greater health and safety for the entire community. For example, when immigration status is not questioned, illegal immigrants are more likely to report crimes or to bring a sick family member to the emergency room.
We now see a number of large cities around the country, including New York City, prohibiting local law enforcement from making inquiries into an individual’s immigration status at the initial stages of arrest. They borrowed the “don’t ask, don’t tell” policy from the military and applied it to law enforcement. It presented a simple solution: the state/city cannot notify the feds of that of which it is not aware. They cannot report someone’s immigration status because they simply do not know it. However, even in New York City, an illegal immigrant, once convicted of a crime, is reported to immigration for possible deportation.
By creating a “safe haven” for undocumented aliens, cities that employ such practices came to be known as “sanctuary cities.” The governments of these localities present myriad legitimate reasons for their practices. Some believe that aggressive measures against illegal immigrants would bluntly challenge the political structure of the federation, shaped for our country many years ago by its founding fathers. Others do not wish to create an adverse environment for illegal immigrant workers, whose diligent and often inexpensive labor is an indispensable part of their economy. Public policy is strongly in favor of sanctuary cities as well. Throughout our history, U.S. citizens have showed special sensitivity in matters regarding children. The laws passed to protect, educate, or help kids never discriminated against them based on the immigration status of their parents. Americans do not believe that children should suffer for the mistakes or immoralities of adults.
Sanctuary cities ensure that parents who entered the country illegally will send young children to elementary schools, and further education, without fear of deportation. They eliminate the moment of hesitation before calling a doctor for a sick child or taking an injured one to a hospital. That moment could be detrimental and, in many instances, life-threatening. Finally, a sanctuary city helps to control and detect criminal activity, which affects our youth and adults alike. In such an environment, individuals are not deterred from calling the police when witnessing criminal or suspicious activity.
New Jersey State Attorney General Anne Milgram issued Law-Enforcement Directive No. 2007-3 on August 22, 2007. This directive requires state, county, and local law enforcement agencies to alert federal authorities after arresting an undocumented immigrant for a serious offense. Specifically, all individuals arrested for indictable offenses under New Jersey State criminal law or for driving under the influence of alcohol will be questioned regarding their immigration status. This directive also indicates that victims, as well as witnesses and other persons requesting police assistance, should not be discouraged from approaching police officers out of fear of inquiry into their immigration status. The directive prohibits immigration status inquiries of victims and witnesses. This directive also prohibits local, county, and state law enforcement officials from performing functions of a federal immigration officer under Section 287(g) of the INA—or rather, it keeps them from exercising their federal immigration authority on anyone other than individuals arrested for serious indictable offenses and DUI. Officers working on immigration tasks forces under direct federal authority are exempt from this provision.
Many police chiefs in communities with significant immigrant and illegal immigrant populations do not wish to be deputized into enforcing federal immigration laws. Engaging in such enforcement erodes community policing efforts, uses limited police resources, and opens police departments to potential liability for unlawful arrests of documented immigrants and United States citizens. The United States Supreme Court allows local law enforcement to inquire into an individual’s immigration status virtually at any given time. Most cities choose to prohibit such practices for public policy reasons: they do not wish to ask, and they don’t wish to know.
Attorney General Sessions continues to warn about punitive moves against sanctuary cities, bringing the situation to a new boil recently when the Department of Justice sent out a letter threatening subpoenas against twenty-three jurisdictions with policies of not assisting federal immigration authorities. The letter demands information as to how these localities had instructed those in law enforcement with regard to how they should “communicate with the Department of Justice, the Department of Homeland Security, and/or Immigration and Customs Enforcement.” The idea is to examine these instructions to make sure they agree with federal law. If they don’t, federal funding will be cut for those jurisdictions. There’s even some talk of trying to claw back funds from previous years. “We have seen too many examples of the threat to public safety represented by jurisdictions that actively thwart the federal government’s immigration enforcement,” the attorney general said when the wording in the letter was announced. “Enough is enough.” This threatening letter was released on the same day that members of the U.S. Conference of Mayors were supposed to meet with the president to discuss rebuilding infrastructure. Several of the invited were mayors of sanctuary cities, and they declined to participate. On March 7, 2018, Sessions followed through, instituting a lawsuit against the entire state of California. For all his tough talk, however, the attorney general has not been able to implement his threats. A federal judge in Chicago ruled against Sessions in September 2017, and a San Francisco judge also blocked an executive order denying federal funding to sanctuary cities. This appears to be only the beginning of a long, drawn-out legal battle.
Across the country, there seems to be an interesting shift of opinion. A recent nationwide telephone and online survey found that 42 percent of likely U.S. voters think the U.S. Justice Department should take legal action against cities or states that provide sanctuary for illegal immigrants. That’s down from 50 percent the year before, and 62 percent in 2015. An equal number (45 percent) felt the Justice Department shouldn’t take legal action against these communities, up from 38 percent. Twelve percent weren’t sure.
The kindest thing that can be said is that a vacuum has been created by congressional inaction. Once again, until Congress addresses this matter, immigrants will “vote with their feet,” deciding where they choose to reside.
When the Supreme Court struck down the anti–gay marriage provision in the Defense of Marriage Act (DOMA) in 2013, it opened a lot of doors for the lesbian, gay, bisexual, transgender, queer (LGBTQ) community. As Janet Napolitano, then head of the Department of Homeland Security put it, “President Obama directed federal departments to ensure the decision and its implications for federal benefits for same-sex legally married couples are implemented swiftly and smoothly. To that end, effective immediately, I have directed USCIS to review immigration visa petitions filed on behalf of a same-sex spouse in the same manner as those filed on behalf of an opposite-sex spouse.”
Throughout the years, same-sex marriage has been a much-debated topic, and we can expect the debates to continue in various new forms. Many of those who support a liberal, democratic ideology believe all Americans should be entitled to full and equal benefits under the law as promised in the Fourteenth Amendment to the U.S. Constitution. The disparate treatment that has historically plagued the LGBTQ community has spurred outrage and blunt questions into the justifications for being treated as second-class citizens. Of course, this demand for equality has led to a more open dialogue on the question of citizenship in terms of immigration reform.
Overturning DOMA was an enormous victory for the LBGTQ community. With regard to immigration, the impact of this decision is that same-sex couples may file a green card application for the foreign national spouse. In addition, same-sex couples who petitioned for a green card years ago received a new opportunity for review of their cases. The policy went so far as to direct immigration officers that they may not require additional documents or information for applications filed by same-sex couples.
Society has been accustomed to seeing a mother, father, and their children as the standard American family. Yet shouldn’t a family unit revolve around two loving and caring parents regardless of their sexes? The United States Census Bureau estimates that there were about 131,729 same-sex married couples in 2010, the last national census. Moreover, there were 515,735 same-sex unmarried couples. Clearly the idea of the nuclear family is evolving.
To turn from the theoretical to practical concerns, when filing an application for a same-sex couple, it must be shown that the marriage was entered into in good faith. This standard is universal and is applied to all couples. To ensure a smooth application process with the United States Citizenship and Immigration Service, couples should:
The improved marriage situation does not mean, unfortunately, that the process will be completely painless. The government has a tough job to do, reviewing the many applications and marriage records they receive each year. Experts will finely comb each petition they receive to determine whether the couple married for “love” or as a convenient way to help someone obtain immigration benefits. In addition, one must bear in mind that the existing state of affairs was affected by an executive order. With a new administration, changes may occur. Thus, although we keep the hope of change for the better, the prudent course is to seek the advice of immigration counsel regarding the latest developments in the field.