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Indiana's immigration law reeling

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The U.S. Supreme Court’s June 25 ruling in Arizona v. United States wounded Indiana’s immigration law, particularly controversial provisions similar to those the court struck down in the Arizona case.

“My reading of the Supreme Court case is it further supports our argument that the law is unconstitutional and pre-empted” by federal law, said Ken Falk, legal director for the American Civil Liberties Union of Indiana, which filed one of two federal lawsuits challenging portions of the Indiana law.

Indiana Attorney General Greg Zoeller said in a June 29 interview that he was left with a choice between continuing to defend some portions of the law or allowing a temporary injunction in the ACLU case to be made permanent, the effect of which could be striking down the entire law.
 

zoeller-greg.jpg Zoeller

Zoeller said he planned to talk with lawmakers, and that state and plaintiffs’ attorneys in the lawsuits challenging Indiana’s law had begun discussions about how to proceed.

The question, Zoeller said, is “whether we’re willing to put up with all the facial or as-applied challenges, or whether it’s better for the Legislature to go back and try again.”

The high court struck down most of Arizona’s immigration law. The court affirmed for now the so-called “show your papers” clause requiring police to question someone’s immigration status if reasonable suspicion exists, but justices left open the possibility of future challenges.

“As much as people would disagree with me, I think it keeps the status quo,” attorney Alonzo Rivas said of the Supreme Court ruling, noting the court affirmed unambiguously that immigration policy and enforcement were matters reserved for the federal government. “It wasn’t until recently that states and local governments decided to start dabbling into that area.”

An attorney for the Mexican American Legal Defense and Education Fund, Rivas filed Union Benefica Mexicana v. State of Indiana, et al., 2:11-CV-482, challenging portions of Indiana’s immigration law, Indiana Code 22-4-39.5, enacted when Gov. Mitch Daniels signed Senate Enrolled Act 590 in 2011. Rivas filed the lawsuit in the U.S. District Court for the Northern District of Indiana on behalf of a nonprofit cultural, educational and health membership organization based in East Chicago.

The action Rivas filed challenged the law’s restrictions on employees and employers. The suit claims the law violates the Fourth and 14th amendments, the Supremacy Clause and the Contracts Clause. It specifically cites two sections of the law: one that allows the Department of Workforce Development to file civil actions against employers for reimbursement of unemployment insurance if they knowingly employed illegal immigrants; and a second that prohibits someone from performing day labor without filing an attestation of employment authorization.

In the Southern District of Indiana, the ACLU of Indiana filed Buquer v. Indianapolis, et al., 1:11-CV-78. That lawsuit attacked the Indiana law that it claims steps into federal jurisdiction on detention and identification and violates the Fourth and 14th amendments. It challenged portions of the law allowing state and local law enforcement officers to make warrantless arrests when an officer has a removal order issued for the person by an immigration court, a detainer, or notice of action issued for the person by the U.S. Department of Homeland Security, or has probable cause to believe the person has been indicted for or convicted of one or more aggravated felonies. The suit also challenges a provision that would criminalize use or acceptance of a consular identification card.

Both cases were on hold pending the Supreme Court’s Arizona ruling. Judge Sarah Evans Barker granted a temporary injunction against portions of Indiana’s immigration law in Buquer. The ACLU has asked for summary judgment to make the injunction permanent, and a ruling could come at any time.

In Union Benefica Mexicana, the state won a request to stay those proceedings until the high court ruled. The plaintiffs in that case seek a preliminary injunction on enforcing the challenged provisions.

“The U.S. Supreme Court’s decision provides valuable guidance to Indiana and other states in the proper role we serve in cooperation with the federal government in enforcing immigration laws,” Zoeller said in a statement issued the day of the SCOTUS ruling.

“The failure of Congress to reform our immigration statutes has put states in the difficult position of seeking this guidance from the judicial branch.”

Senate Bill 590 author Mike Delph, R-Carmel, could not be reached for comment after the high court ruling, but he issued a statement.

“The Federal government continues to ignore its duty to enforce the law. … Presidents from both parties have pandered for political reasons and now the court is once again suggesting the federal government enforce the law. As long as the law remains unenforced, states like Indiana will bear real taxpayer expense. This is an unfunded mandate.

“Although we are still reviewing (the) United States Supreme Court decision, I remain encouraged and confident that much if not most of our law is legally permissible under this decision.”

Delph said that would include a provision requiring the governor to account for costs borne by Hoosier taxpayers related to illegal immigration and submit a bill to Congress.

Rivas said Indiana is enforcing or developing enforcement regulations for provisions of the law that have not been challenged in court.


ken falk Falk

But immigration attorneys said key parts of Indiana’s law are unlikely to withstand court scrutiny.

Angela Adams, an immigration attorney with Lewis & Kappes P.C., said Indiana’s law gives police the power to detain suspected illegal immigrants who were not suspected of committing a criminal offense.

Such a law isn’t likely to stand, she said, because justices signaled that “if a police officer was to hold someone too long solely for their immigration status, that would raise constitutional concerns.”

In the wake of the SCOTUS ruling, the Obama administration suspended a program that deputized local law enforcement to work in conjunction with federal immigration enforcement. The administration also signaled it would limit detentions of suspected illegal immigrants referred from local law enforcement unless the person detained is a suspected felon.

“That snatches from Arizona the one victory it could claim” from the ruling, said Gary Welsh, a private practice immigration attorney who writes the Indiana Immigration Law Blog.

Zoeller said Indiana’s law also presents practical issues.

“My other clients in law enforcement have been concerned about some of the realities of the enforcement of some of these statutes,” he said. That included concerns about possible escalation that could arise when authorities attempt to detain people under that law.

Welsh said people should take away from the court’s decision that the justices put a check on states, ruling that “the federal government is free to pick and choose which immigration laws it wants to vigorously enforce without any prodding from the states. The federal government’s authority in this area is supreme.”

The ACLU challenged the detentions and ID provisions of Indiana’s law that Falk said exceeded the scope of Arizona’s statute.

Falk envisioned a scenario such as someone buying beer at a grocery store and displaying a consular ID. Under the Indiana immigration law, he said, “That became an infraction for both the person showing and the person accepting it.”

Rivas cited as particularly onerous Indiana’s provision allowing the state to sue business owners found to have employed undocumented workers and recoup unemployment insurance the company paid to workers, regardless of the immigration status of the recipient. “That’s actually a stiff sanction, and we argue it’s a sanction that is pre-empted by federal law,” he said.

Indiana was among five states that passed tough immigration laws after Arizona. Since the Supreme Court announced it would review Arizona’s law, no state has passed new immigration legislation.•

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  • Dabble indeed
    The whole conversation is necessary because the federal government has utterly failed and abdicated its role in defending the borders against migrant invasion such that we have oh who knows, 15, 25, 30 million illegal immigrants here? No wonder the states have tried to "dabble." Dabble! What a word. Chosen by the apologists of crime. Who is that? Loook at all those lined up against the states, that s who. What crime? The crime of unlawful entry. From Obama on down they act like the law isnt even law. Pathetic. You expect anyone to respect the law when the president doesnt? Si se puede! Dabbling is what they have been doing at enforcement, for years. Dubya was just as bad as Obama. Dabbling indeed! One more thing. This policy is at the expense of the the poorest and most unskilled American native-borns who have to compete with all the new unskilled migrants for low paying jobs. A policy of nonenforcement of law that hurts minorities and union workers and young people-- but which panders to the Hispanic lobby. You can see why both democracts and republicans are in favor of non-enofrcement of our borders! Rich republicans get cheap labor and rich democrats get more votes! Oy, whats not to like!??

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  1. Call it unauthorized law if you must, a regulatory wrong, but it was fraud and theft well beyond that, a seeming crime! "In three specific cases, the hearing officer found that Westerfield did little to no work for her clients but only issued a partial refund or no refund at all." That is theft by deception, folks. "In its decision to suspend Westerfield, the Supreme Court noted that she already had a long disciplinary history dating back to 1996 and had previously been suspended in 2004 and indefinitely suspended in 2005. She was reinstated in 2009 after finally giving the commission a response to the grievance for which she was suspended in 2004." WOW -- was the Indiana Supreme Court complicit in her fraud? Talk about being on notice of a real bad actor .... "Further, the justices noted that during her testimony, Westerfield was “disingenuous and evasive” about her relationship with Tope and attempted to distance herself from him. They also wrote that other aggravating factors existed in Westerfield’s case, such as her lack of remorse." WOW, and yet she only got 18 months on the bench, and if she shows up and cries for them in a year and a half, and pays money to JLAP for group therapy ... back in to ride roughshod over hapless clients (or are they "marks") once again! Aint Hoosier lawyering a great money making adventure!!! Just live for the bucks, even if filthy lucre, and come out a-ok. ME on the other hand??? Lifetime banishment for blowing the whistle on unconstitutional governance. Yes, had I ripped off clients or had ANY disciplinary history for doing that I would have fared better, most likely, as that it would have revealed me motivated by Mammon and not Faith. Check it out if you doubt my reading of this, compare and contrast the above 18 months with my lifetime banishment from court, see appendix for Bar Examiners report which the ISC adopted without substantive review: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS

  2. Wow, over a quarter million dollars? That is a a lot of commissary money! Over what time frame? Years I would guess. Anyone ever try to blow the whistle? Probably not, since most Hoosiers who take notice of such things realize that Hoosier whistleblowers are almost always pilloried. If someone did blow the whistle, they were likely fired. The persecution of whistleblowers is a sure sign of far too much government corruption. Details of my own personal experience at the top of Hoosier governance available upon request ... maybe a "fake news" media outlet will have the courage to tell the stories of Hoosier whistleblowers that the "real" Hoosier media (cough) will not deign to touch. (They are part of the problem.)

  3. So if I am reading it right, only if and when African American college students agree to receive checks labeling them as "Negroes" do they receive aid from the UNCF or the Quaker's Educational Fund? In other words, to borrow from the Indiana Appellate Court, "the [nonprofit] supposed to be [their] advocate, refers to [students] in a racially offensive manner. While there is no evidence that [the nonprofits] intended harm to [African American students], the harm was nonetheless inflicted. [Black students are] presented to [academia and future employers] in a racially offensive manner. For these reasons, [such] performance [is] deficient and also prejudice[ial]." Maybe even DEPLORABLE???

  4. I'm the poor soul who spent over 10 years in prison with many many other prisoners trying to kill me for being charged with a sex offense THAT I DID NOT COMMIT i was in jail for a battery charge for helping a friend leave a boyfriend who beat her I've been saying for over 28 years that i did not and would never hurt a child like that mine or anybody's child but NOBODY wants to believe that i might not be guilty of this horrible crime or think that when i say that ALL the paperwork concerning my conviction has strangely DISAPPEARED or even when the long beach judge re-sentenced me over 14 months on a already filed plea bargain out of another districts court then had it filed under a fake name so i could not find while trying to fight my conviction on appeal in a nut shell people are ALWAYS quick to believe the worst about some one well I DID NOT HURT ANY CHILD EVER IN MY LIFE AND HAVE SAID THIS FOR ALMOST 30 YEARS please if anybody can me get some kind of justice it would be greatly appreciated respectfully written wrongly accused Brian Valenti

  5. A high ranking Indiana supreme Court operative caught red handed leading a group using the uber offensive N word! She must denounce or be denounced! (Or not since she is an insider ... rules do not apply to them). Evidence here: http://m.indianacompanies.us/friends-educational-fund-for-negroes.364110.company.v2#top_info

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