Immigration and the Judiciary, the Executive, and the Legislature – PART I
Immigration and the Courts
Supreme Court Enters Arizona Fray: On Dec. 12, the U.S. Supreme Court agreed to decide whether Arizona may impose its tough anti-immigration law, S.B. 1070, including a requirement that state-law enforcement officials determine the immigration status of anyone they stop or arrest if the officials have reason to believe that the individual might be an undocumented immigrant. The Ninth Circuit blocked the provision and others in this draconian, controversial law, which was enacted in 2010 and spawned copycat legislation in a number of other states. By taking on the case, the court has thrust itself into the center of American political life and will weigh in on what has been called one of the most combustible issues in American politics. The Supreme Court’s ultimate decision in the case, however, may not have precedential value. Justice Elena Kagan will not take part in the decision of the high court – she worked on the issue previously while solicitor general – which raises the prospect of a 4 to 4 vote. If that were to happen, the court’s decision would carry no precedential significance for the other state laws being challenged. The court is expected to hear the case in April.
Federal Court Challenges to Utah and South Carolina State Immigration Laws: In the wake of Congressional inaction on immigration, state legislatures continue to attempt to reform the law and the federal government continues to wrestle with the states to maintain its control or preemptive rights over the issue. As these battles persist and are played out in the federal courts, the Department of Justice (DOJ) has been center stage. In addition to suits in Arizona and Alabama, DOJ recently filed a lawsuit in federal district court against a South Carolina law, Act No. 69, parts of which go into effect, on Jan. 1. Filed on behalf of the Departments of State, Justice and Homeland Security, the lawsuit argues that certain provisions of the South Carolina law are unconstitutional and interfere with the federal government’s authority to set and enforce immigration policy. Then, on Nov. 23, DOJ filed another suit, this time against Utah, to block implementation of HB 497, which mandates that local police enforce immigration laws. These laws are similar to those in Arizona (SB 1070) and Alabama. (The same day the Supreme Court accepted review of Arizona’s SB 1070, a federal court blocked a provision of Alabama’s immigration law that would have forced undocumented immigrants to leave their mobile homes. The ruling means that people paying for their annual mobile home registration tags required for residence will not have to prove their legal residency for now.) DOJ is also reviewing laws in Georgia and Indiana that already have been challenged by private groups and individuals.
In its press releases announcing these lawsuits, DOJ cited the irreparable harm caused by the laws, including “the harassment and detention of foreign visitors and legal immigrants, as well as U.S. citizens, who cannot readily prove their lawful status.” The reality of this concern was borne out recently when a German Mercedes Benz executive was arrested under Alabama’s anti-immigrant law while in town visiting the automaker’s facilities, followed by the arrest of a Japanese Honda employee also in Alabama.
Clearly, DOJ’s efforts in these cases reflect a commitment to protecting constitutional principles and individual rights, which we applaud.
Immigration and the Executive
While President Obama’s Justice Department efforts to protect individual rights and to preserve the right of the federal government to enforce immigration law have been laudatory, a number of other significant policies of the current administration have angered pro-immigration supporters, not the least of which has been the record number of deportations that have transpired in the last three years. About 1.2 million undocumented foreign nationals have been deported since President Obama took up office, compared to almost 1.6 million deported during the eight-year Presidency of George Bush. In FY2011 alone, an unprecedented 400,000 people were deported. However, just last month, the administration took real action to provide relief for the undocumented who pose no threat to the country and who commit no crime.
Prosecutorial Discretion. A new DHS-ICE policy encouraging the exercise of prosecutorial discretion in appropriate cases was launched in mid-November – complete with fairly comprehensive guidelines and procedures – and is being piloted in Baltimore and Denver, Dec. 4 through Jan. 13, 2012. DHS (the Department of Homeland Security) had announced in June its intent to eliminate low priority cases from the immigration court dockets and instead focus its enforcement priorities on the removal of those who have broken criminal laws, threats to national security, recent border crossers, repeat violators of immigration law, and immigration court fugitives. In August, DHS and ICE (Immigration and Customs Enforcement) issued a directive to ICE attorneys to review pending court cases as well as cases where a charging document had not yet been filed to determine if the agency should decide not to prosecute the case. DHS also announced the establishment of a joint DHS-DOJ working group to review the approximately 300,000 pending cases and identify cases for administrative closure. The pilot program just launched was designed to identify cases most clearly eligible and ineligible for a favorable exercise of discretion. During a six-week period, USCIS, ICE, and CBP (Customs and Border Protection) attorneys are to review cases according to the agency’s general prosecutorial discretion guidance as well as by a set of more focused criteria. Ultimately, DHS expects to implement “best practices” on an ongoing basis nationwide.
While it is still too soon to judge the results of the pilot program and the impact of the agency’s new policy, in Baltimore, at least, removal cases normally set in December and January have been scheduled well into the future. Stay tuned.
Other DHS guidance issued in November on when immigration charging documents should be issued dove-tails with its prosecutorial discretion policy.
To be continued
Dilip Patel of Shutts & Bowen LLP, a Florida Bar board certified expert on immigration law, can be reached at (813) 855-0066 or e-mail firstname.lastname@example.org