State and Local Legislation Bulletin
Sharma Hammond, Esq., Editor · Issue 9, December 2007

In this Issue:
Lawsuits/Legislation of 2007
Behind the Headlines
New Bills
Local Legislation
IRLI Tip of the Month

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Lawsuits/Legislation of 2007

The National Conference of State Legislators reports that, as of mid-November 2007, 1,563 immigration-related state bills had been introduced. Of this total, 244 were enacted in 46 states, which was double the rate in 2006. "Immigration-related legislation covers almost every policy arena," the NSLC noted. Only Alaska, New Jersey, New Hampshire, Hawaii reported no new enactments this year.

The revival of state and local cooperative immigration law enforcement, following pioneering legislation prepared by the FAIR legal department beginning in 2002, has also provoked court challenges from ideological opponents of effective enforcement (primarily on preemption and equal protection grounds). IRLI litigators have participated in key cases defending the state and local approach. During 2007, federal courts have begun to show an increased skepticism about claims of field preemption, where plaintiffs argue that any and all state immigration-related measures are preempted.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Behind the Headlines

Arizona Lawsuit Dismissed/Re-filed
On December 7, 2007, Judge Neil Wake dismissed the lawsuit against AZ HB 2779, stating that the Plaintiffs failed to show a definitive harm that this law would cause them. The Court also stated that the plaintiffs had not brought the lawsuit against the proper defendants. The first lawsuit targeted Governor Napolitano and the Attorney General, Terry Goddard. The Court concluded that the Arizona county attorneys were the proper defendants because they would enforce the law (read the article). The ACLU, on behalf of these plaintiffs, then re-filed the lawsuit on December 13, 2007.

Phoenix Reversal of Sanctuary City Status
Mayor Gordon announced in early December that he would no longer back a policy barring police officers from asking immigration status (read the article). Phoenix Police Operations Order 1.4, which was enacted in 1997, prevented police officers from contacting the Immigration and Customs Enforcement (ICE) when they ticketed or arrested an illegal alien (read the Order). IRLI believes this action puts Phoenix in line with federal law because it is unlawful to prevent a government official from contacting federal immigration authorities pursuant to 8 U.S.C. 1373.

Illinois HB 1744 Lawsuit Update
The Illinois legislature passed HB 1744 which was to take effect in January of 2008. HB 1744 essentially bars Illinois employers from registering with the E-verify program (a.k.a. Basic Pilot Program) until the U.S. Department of Homeland Security (DHS) can establish that the system operates at a 99% reliability level. IRLI believes this Illinois law is preempted by federal immigration law (see September Legislation Bulletin for further details).

The Department of Homeland Security (DHS) filed suit to prevent the implementation of HB 1744. Illinois agreed to suspend the law pending negotiations (read the article). In the meantime, Illinois employers will be permitted to utilize the E-Verify program (formerly known as the Basic Pilot Program) to verify the lawful status of employees.

Oklahoma HB 1804 Lawsuit Dismissed
U.S. District Judge James Payne dismissed the lawsuit challenging HB 1804 (see May Legislation for further details on this bill). The National Coalition of Latino Clergy had filed a federal lawsuit seeking to overturn House Bill 1804. Using exceptionally tough language, Judge Payne ruled that anonymous illegal alien plaintiffs did not have standing (or the right to sue) to prevent the implementation of this law (see the Order): "[T]hese Plaintiffs seemingly concede the validity of the federal immigration laws, and file this suit in order to remove any barriers the state of Oklahoma has erected to their continued violation of those federal laws. These illegal alien Plaintiffs seek nothing more than to use this Court as a vehicle for their continued unlawful presence in this country. To allow these Plaintiffs to do so would make this Court an 'abetter of iniquity' and this Court finds that simply unpalatable." The media continues to report anecdotal evidence of state measures in pressuring illegal aliens to move out of states with cooperative enforcement programs, a key component of the "removal by attrition" approach to enforcement.

Prince William County Lawsuit Dismissed
On November 30th, a federal law judge dismissed a lawsuit brought to challenge the Prince William County ordinance (see October Legislation Bulletin for further details). The Judge concluded that the illegal alien plaintiffs did not have standing or couldn't prove a sufficient, concrete harm they would suffer as a result of this Ordinance (further details here).

San Francisco Municipal ID Card Ordinance
The San Francisco Board of Supervisors gave its final approval on November 20, 2007, to an ordinance which would permit illegal immigrants to receive city identification cards (see November Legislation Bulletin for further information on this ordinance). Mayor Newsom signed this ordinance into law on November 28, 2007 and city officials will begin to distribute this card in August of 2008 (further details here).

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
New Bills

Arizona HB 2012
HB 2012 prohibits Arizona officials from accepting as primary identification any out of state driver's license that does not require proof of citizenship.

Michigan HB 5516
HB 5516 mandates that a legal worker shall not be dismissed without cause if the employer is also employing an unauthorized alien. As targeted in this bill, discriminating against legal workers in favor of unauthorized aliens is unlawful pursuant to 8 U.S.C. §1324b (see September Legislation Bulletin for further information).

Michigan HB 5570
HB 5570 was introduced on December 13, 2007. HB 5570 is a more powerful version of OK HB 1804 Section 7. HB 5570 prohibits the award of public contracts for personal services to employers who do not participate in the E-Verify program. The measure also makes an employer who discharges any authorized worker while continuing to employ an unauthorized alien bill an unlawful employment discrimination practice.

Missouri SB 750
SB 750 was pre-filed in the beginning of December. SB 750 would prevent a person who cannot demonstrate their lawful presence in the U.S. from obtaining a driver's license. SB 570 would also prevent Missouri from honoring a driver's license from another state issued to an illegal alien.

Missouri HB 1318
HB 1318 would prohibit the employment of an unauthorized alien. Pursuant to 8 U.S.C. § 1324a the employment of unauthorized aliens is unlawful. IRLI believes that attrition through enforcement of federal immigration laws will lessen the number of illegal aliens in Missouri.

Missouri HB 1346
HB 1346 was also pre-filed in the beginning of December. HB 1346 classifies the crime of transporting or sheltering an illegal alien as a state felony. This bill also provides that a person's lawful status will be checked by police when they are either charged with a felony or driving under the influence. Employers are required to enroll in the E-Verify program in order to enter into contracts for services with public employers. These provisions are similar to the new Oklahoma statutes designed by IRLI .

New Hampshire HB 1137
HB 1137 provides that contracts with illegal aliens shall be unenforceable. IRLI believes that contracts with illegal aliens are unenforceable since illegal aliens don't have the legal capacity to enter into an enforceable contract. "[C]ourts have uniformly held that contracts tending to encourage violation of laws are void as contrary to public policy." Brooklyn Sav.Bank v. O'Neil, 324 U.S. 697 (1945).

New Hampshire SB 353
SB 353 was pre-filed on December 21, 2007. SB 353 stipulates that New Hampshire and its political subdivisions shall not be a sanctuary state and shall enforce federal immigration laws.

New York SB 6543
SB 6543 was introduced on December 5, 2007. SB 6543 requires an individual provide proof of citizenship to register to vote.

Oklahoma SB 1161
SB 1161 provides that every employer shall register with the E-Verify program (formerly the Basic Pilot Program). This bill also stipulates that if an employer engages in employment discrimination, this action shall be unlawful against a legally worker (see September Legislation Bulletin for further information).

South Carolina SB 869
SB 869 enacts the Taxpayer and Citizens' Protection Act. SB 869 mandates that public employers enroll in the E-Verify program (formerly the Basic Pilot Program).

South Carolina HB 4385
HB 4385 was pre-filed on December 12, 2007. HB 4385 duplicates the language of IRLI-designed Oklahoma HB 1804 Section 5, which requires jail operators to verify the immigration or citizenship status of persons confined on a felony or DUI charge. This concept was pioneered in Georgia's SB 529, on which IRLI was a primary legal consultant. Like HB 1804, HB 4385 also creates a rebuttable presumption that an illegal alien is a flight risk for bail purposes.

New Jersey SB 2986
The Oklahoma HB 1804 bail bond provision has apparently provoked at least one radical counter-attempt to expand the release of illegal alien criminals back into the streets. SB 2986 would create a legal presumption of full cash bail for illegal aliens!

South Carolina HB 4387
HB 4387 was pre-filed on December 12, 2007. HB 4387 duplicates federal statute 8 U.S.C. 1623 which prohibits illegal aliens from receiving post-secondary education benefits on the basis of "residence." States that defy federal policy to provide in-state tuition to illegal aliens have done so under the pretext that the illegal alien is eligible on the basis of graduation or attendance from a high school in state, and that "residence" is irrelevant. IRLI is litigating two cases that challenge this pretext as violating the privileges and immunities and equal protection clauses of the Constitution.

Utah HB 95
HB 95 prohibits providing fraudulent documentation demonstrating false legal status. An individual found to be violating this bill would pay a fine up to $75,000.

Virginia HB 45
HB 45 would classify assisting illegal aliens in fraudulently obtaining benefits as a misdemeanor. The measure would expand the scope of parties liable for providing public benefits to unauthorized aliens, a cooperative principle introduced into Virginia law in 2004 by Delegate David Albo, who drafted the statute with technical assistance from the FAIR legal department.

Virginia HB 51
HB 51 mandates that agencies authorized to enforce federal immigration laws shall be immune from civil liability.

Virginia HB 103
HB 103 was pre-filed on December 17, 2007. HB 103 requires officials in correctional facilities to inquire into a person's lawful status and report to ICE any illegal aliens.

Washington HB 2439
HB 2439 mandates that officials shall check the immigration status of sex offenders serving prison sentences for felony convictions. HB 2439 requires that illegal alien offenders be released to federal custody upon release from prison. HB 2439 includes the curious requirement that if the federal government does not take custody, the illegal alien is to be released at a location "adjacent to" the nearest federal immigration detention center.

Washington HB 2441
HB 2441 provides that law enforcement officials enter into a cooperative agreement with federal officials to enforce federal immigration laws when it pertains to sex offenders. IRLI believes that Washington is attempting to piecemeal a 287(g) agreement with ICE (see July Legislation Bulletin for details on 287(g) agreements). However, a 287(g) agreement would cover all offenders, not just sex offenders.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Back to top
Local Legislation

Mesa, Arizona
As a result of a study session, the seven city council members will be signing a 287(g) agreement with the Secretary of the Department of Homeland Security (DHS) (see July Legislation Bulletin for more information on this).

Taneytown, Maryland
The Taneytown City Council revealed this month that they will be introducing a resolution in January preventing the City from imposing restrictions on contacting federal immigration officials. The resolution additionally stipulates that Taneytown will not be a sanctuary city for illegal aliens.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Back to top
IRLI Tip of the Month:

Sanctuary Cities

Large numbers of cities nationwide have chosen to defy federal authority and refuse to enforce federal immigration law. These cities are termed "sanctuary cities" (See list of sanctuary cities). The more radical jurisdictions even prohibit their government officials from inquiring into a person's immigration status or contacting ICE.

The Illegal Immigrant Reform and Immigrant Responsibility Act makes it unlawful to subject any government official to restrictions on contacting the federal government to verify any person's immigration status. (See 8 U.S.C. §§1373 and 1644). State law that conflicts with federal law is preempted by the federal law.

IRLI helped design a state-level anti-sanctuary law in Oklahoma which models the federal prohibition, but also enables citizens of Oklahoma to file a writ of mandamus to compel defiant local or state government entities to abandon illegal alien sanctuary laws and similar unconstitutional practices. See HB 1804, Sections 10.C-F.

Essentially, a sanctuary city's policy is preempted by federal law and can be legally challenged in court. IRLI has advised clients on causes of action to fight such blatant defiance of federal law in the courts. If you know of anyone that has been harmed by an unlawful sanctuary city policy, please contact IRLI for a confidential consultation.