State and Local Legislation Bulletin
Sharma Hammond, Esq., Editor · Issue 16, August 2008

In this Issue:
Behind the Headlines
Bills to Watch Encouraging Illegal Immigration
Local Legislation
IRLI Tip of the Month

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Behind the Headlines

Arizona SIHA Initiative
The Stop Illegal Hiring Act ("SIHA") ballot initiative has been certified by the Arizona Secretary of State (see article). Drafters allege that the SIHA initiative, as its name suggests, would enhance the current Arizona Employer Sanctions Law. However, the title is misleading. The initiative, rather than enhancing, effectively guts the pioneering enforcement mechanisms in Arizona's current law.

The current Arizona law mandates that covered business entities register with the federal E-Verify program. E-Verify allows the employer to quickly and reliably confirm the work authorization status of a new hire online, and makes clear to employers that they are not to hire unauthorized aliens. For non-citizens, it also provides a photo which the business can compare to the identification document presented by the newly hired worker. This feature provides important additional protection against rapidly spreading identity theft crimes.

By making E-Verify use optional, SIHA would strip the Employer Sanctions law of any practical incentive to comply with employer sanctions laws. Prevention of illegal employment is the most effective means of deterring illegal immigration. The SIHA initiative will, if successful, remove the requirement for enrollment in the E-verify program; permit an employer's compliance with the I-9 paperwork process to serve as a non-rebuttable presumption that they have not violated the law; and, thus, limit the statute's effectiveness to employers and employees located in Arizona.

Allowing compliance with the I-9 process to serve as a "non-rebuttable presumption of innocence" will make it much harder to sanction a covered Arizona business owner from employing unauthorized aliens. The I-9 process requires an employer to receive two forms of identification "verifying" that a person has a lawful status, and to maintain a copy of the I-9 form in his file. However, this process is not enforced by the federal government. Therefore, an employer could — if not required to enroll in the E-verify program — accept two falsified forms of documentation from an illegal alien. Granting a "non-rebuttable presumption of innocence" to employers who merely accept false documents and fill out a non-enforceable I-9 form only encourages those employers to continue employing unauthorized aliens in violation of federal law.

Understandably, Arizona voters could easily be tricked into approving this initiative on the false premise that it provides harsher penalties for companies employing illegal aliens. Once enacted through the initiative process, it will be very difficult for the state legislature to amend or improve the law in the future. Activists and elected officials in Arizona need to protect the electorate and the public of the disinformation behind the SIHA initiative.

New York, New York
New York's highest court ruled that an illegal alien could not continue to collect worker's compensation benefits (see article). The illegal alien applied for continued benefits two years after his claim was closed. The court concurred with the employer, holding that the individual lost his earning capacity not solely because of his injury, but also because of his unauthorized status.

Portland, Oregon
A taxpayer is suing the city over its Day Labor Center. The plaintiff claims the city's funding of the center is a misuse of taxpayer money (see article).

Note the IRLI Tip of the Month below about the risks of "protest" lawsuits. Despite good intentions, the results of this case could prove profoundly devastating if the Court simply dismisses the claim or finds against the plaintiff. Either scenario will make success in future cases that much more unlikely. Also see IRLI's July Bulletin outlining the legal flaws in the day labor center concept.

Ramos and Compean's Appeal Denied
The appeal of Officers Ramos and Compean was denied by the 5th Circuit Court of Appeals (see article). Ignoring public outcry, sentences of 12 and 11 years, respectively, were dolled out and upheld against the two officers for having shot an illegal immigrant in the buttocks after he ran from the officers while smuggling marijuana across the U.S. border. Overturning these convictions will require an appeal to the U.S. Supreme Court.

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Bills to Watch Encouraging Illegal Immigration

California AB 2076
In late June, AB 2076 passed the Senate Labor Relations Committee after being approved by the Assembly. AB 2076 would prohibit any California state agency from utilizing the E-verify program (required by federal law) due to alleged "rampant discrepancies" in the associated DHS databases.

IRLI believes this law essentially prohibits California agencies from complying with the Immigration Reform and Control Act (specifically 8 U.S.C. §1324a) by preventing confirmation of the lawful status of any new employees, as permitted under this federal statute.

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Local Legislation

Escondido, California
The Escondido Planning Commission proposed an ordinance that would change the policy of overnight parking restrictions. The parking restrictions are to deter side-yard parking and thus also deter overcrowding from illegal immigration.

Freemont, Nebraska
City Councilman Bob Warner sponsored an initiative to address illegal immigration. The proposed ordinance would have required all employers receiving a license or permit from the City to enroll in the E-verify program. Landlords would also face a fine for renting to illegal immigrants. The initiative failed.

Mesa, Arizona
The Mesa City Council endorsed a new policing immigration policy. The police will undergo a four-month training period. The police view immigration enforcement as a federal matter and not a state matter.

New Jersey
Two towns in New Jersey are reportedly considering illegal immigration ordinances. Councilman Lefkowitz of Bound Brook seeks to penalize landlords for renting to illegal aliens, also demanding that local law enforcement officials turn over illegal aliens who are taken into custody. Middletown is also reported to be considering a similar ordinance. However, Bound Brook is currently operating under a civil rights settlement agreement with the U.S. Department of Justice based on a bungled attempt to control illegal alien harboring through "neutral" code enforcement measures. The settlement agreement will make it difficult for Bound Brook to be proactive in protecting its rental housing against dilapidation and overcrowding.

San Bernardino County, California
The San Bernardino County Board of Supervisors unanimously passed a resolution requiring San Francisco to stop sending juvenile illegal immigrants to the county (see article). The Board also sought reimbursement for expenses relating to the illegal immigrants and will sue if necessary.

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IRLI Tip of the Month:

Activist Lawsuits Harming the Cause

It is imperative that lawsuits attacking day labor centers and/or sanctuary cities are carefully planned and contain valid legal bases on which to bring an action prior to filing the suits.

Proactive, well-meaning lawsuits have been filed by activists and immigration organizations all over the United States. This is a good sign that concerned citizens are actively taking action to solve the immigration crisis in their localities. However, frequent adverse judgments in these lawsuits — the legal bases of which too often are casually argued — can have long lasting negative impacts on the anti-illegal immigration cause, and result in more harm than good.

Although it seems obvious that sanctuary cities and those funding day labor centers are violating federal law by encouraging the employment of unauthorized aliens, winning in court requires more than common-sense arguments, as there are critical factual and legal requirements that must be met.

If you are contemplating filing a lawsuit against your sanctuary city or a local day labor center, first consult IRLI to ensure your case will do more good than harm.