State and Local Legislation Bulletin
Sharma Hammond, Esq., Editor · Issue 4, July 2007

In this Issue:
Behind the Headlines
Latest Advances in State Reform Legislation
New or Existing Local Legislation
New Bills
IRLI Tip of the Month

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Behind the Headlines

District Court Decision in Lozano v. City of Hazleton
The July 26, 2007 decision by federal District Judge Munley to strike down the Hazleton business licensing and anti-harboring ordinances has attracted wide attention. As universally expected, the case is being appealed to the Third Circuit Federal Court of Appeals. Although the decision is binding only on central Pennsylvania, IRLI expects the more sweeping and radical claims — that citizens today have few protected rights under federal immigration doctrine — to have a temporary chilling effect on local initiatives in the short term.

But it is also important to note that the decision contains many specific rulings favorable to local action. For example, the judge did not attack local law enforcement or anti-sanctuary laws, such as those recently enacted by Prince William County, VA. The court order did not find any violation of equal protection rights by the City. Judge Munley agreed that the ordinances were not impermissible "regulations of immigration," because they do not regulate who may enter this country, nor the conditions under which aliens may remain. The state-wide provisions enacted in Georgia, Colorado, and Oklahoma, and other states seen to be unaffected by Judge Munley's order as well.

By ruling that citizens have an implied right of action to directly challenge local laws that violate the federal Supremacy Clause, Munley has — perhaps unintentionally — strengthened the ability of IRLI to directly attack sanctuary-type local laws that include prohibitions on cooperation with federal immigration authorities and other "passive resistance" measures. Note: IRLI is co-counsel to the City of Hazleton in this case.

IRLI will keep Bulletin readers informed as the parties file their appellate briefs in this widely watched test case.

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Latest Advances in State Reform Legislation

Arizona HB 2779
Governor Napolitano signed this bill into law on July 2, 2007. HB 2779 suspends the business license of employers who hire and employ unauthorized aliens. For a second intentional violation, state and local agencies must permanently revoke all business-related licenses.

On receipt of a complaint that an employer intentionally employs an unauthorized alien, the Attorney General (AG) or county attorney must investigate whether the employer is employing unauthorized aliens. The AG verifies the work authorization of alleged unauthorized aliens with the federal government, pursuant to 8 U.S.C. 1373(c). It is however a misdemeanor to file a false and frivolous complaint. If an employer is determined to have violated this section, the U.S. Immigration and Customs Enforcement (ICE) shall be notified, as well as the local law enforcement, and an action in Superior Court is brought against the scofflaw employer.

Tough new administrative sanctions have been enacted. For a first knowing violation, an employer is subject to a three year probationary period, when the employer must submit quarterly reports to the county attorney of each new employee hired. The employer's business-related state or local licenses are suspended until the employer signs an affidavit that all unauthorized alien workers have been terminated. For a second violation, an employer's license shall be permanently revoked.

Arizona SB 1265
SB 1265 was also signed into law by Governor Napolitano on July 2, 2007. This bill provides that law enforcement shall check a person's lawful status to determine whether the person shall be given bail.

Tennessee HB 729
HB 729 was signed by Governor Bredesen into law in late June. This bill creates criminal offenses for those employing illegal aliens. IRLI believes that criminal offenses are preempted by federal law. 8 U.S.C. §1324a(h)(2). However, states may enact legislation through licensing or other similar laws to punish these employers that violate federal law.

Delaware SB 132
SB 132 passed the Senate on July 1, 2007. Delaware will require contractors who receive public funds to comply with the Immigration Reform and Control Act §1324a. This provision prohibits employment of illegal aliens.

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New or Existing Local Legislation

Waukegan, Illinois
In the face of loud demonstrations by radical open borders groups, on July 16, 2007 the Waukegan City Council approved the negotiation of a 287g cooperative agreement by the City with DHS. 8 USC § 1357g authorizes cities to negotiate a 287g agreement to designate city police officers as federal immigration enforcement officers for specified enforcement actions. Federal immigration officials provide the necessary training for local personnel. Local officers can investigate immigration law violations with greater assurance that US ICE will promptly transfer the detained alien into federal custody for removal proceedings.

Prince William County, Virginia
The Board of County Supervisors unanimously passed a resolution on July 10th to combat illegal immigration. This Resolution, based on a model available on the IRLI website, forbids County officials from restricting the authority law enforcement and other personnel to investigate and report information about civil and criminal immigration law violations, including verification of public benefits and claims of local domicile. Negotiation of a 287g agreement is also mandated. The Resolution also establishes a policy that immigration status is to be verified for all persons lawfully detained by police for a violation of state or county law.

Loudoun County, Virginia
Following the lead of neighboring Prince William County, the Loudon County Board of Supervisors approved a similar resolution on July 17, 2007.

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New Bills

Pennsylvania SB 979
SB 979 was introduced in end of June. The Fair Employment Act would prohibit the employment of illegal aliens. An employer would be required to participate in the Basic Pilot Program as a condition for contracting with the state.

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IRLI Tip of the Month:

Writing Good Legislation

State and local governments can apply for 287g agreement to enforce federal immigration laws. The Illegal Immigration Reform and Responsibility Act (8 USC § 1357g) provides that a partnership can be formed between local law enforcement and the federal immigration enforcement agency (Department of Homeland Security (DHS)). A Memorandum of Agreement (MOA) can be entered into by DHS and a local/state government which would provide that law enforcement officers receive appropriate training and function under the supervision of sworn Immigration and Customs Enforcement (ICE) officers to carry out these duties. While §1357(g)(10) expressly states that a 287g agreement is not a requirement for enforcement by local police agencies, it does provide two significant advantages: (1) Authorized local officers receive qualified federal immunity when performing federal immigration enforcement tasks, and (2) the jurisdiction gains practical priority in the transfer of detained aliens into federal custody. For more information visit the ICE web site and request a 287g packet detailing this information.