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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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  4. Mr. Levin says that the BMV engaged in misconduct--that the BMV (or, rather, someone in the BMV) knew Indiana motorists were being overcharged fees but did nothing to correct the situation. Such misconduct, whether engaged in by one individual or by a group, is called theft (defined as knowingly or intentionally exerting unauthorized control over the property of another person with the intent to deprive the other person of the property's value or use). Theft is a crime in Indiana (as it still is in most of the civilized world). One wonders, then, why there have been no criminal prosecutions of BMV officials for this theft? Government misconduct doesn't occur in a vacuum. An individual who works for or oversees a government agency is responsible for the misconduct. In this instance, somebody (or somebodies) with the BMV, at some time, knew Indiana motorists were being overcharged. What's more, this person (or these people), even after having the error of their ways pointed out to them, did nothing to fix the problem. Instead, the overcharges continued. Thus, the taxpayers of Indiana are also on the hook for the millions of dollars in attorneys fees (for both sides; the BMV didn't see fit to avail itself of the services of a lawyer employed by the state government) that had to be spent in order to finally convince the BMV that stealing money from Indiana motorists was a bad thing. Given that the BMV official(s) responsible for this crime continued their misconduct, covered it up, and never did anything until the agency reached an agreeable settlement, it seems the statute of limitations for prosecuting these folks has not yet run. I hope our Attorney General is paying attention to this fiasco and is seriously considering prosecution. Indiana, the state that works . . . for thieves.

  5. I'm glad that attorney Carl Hayes, who represented the BMV in this case, is able to say that his client "is pleased to have resolved the issue". Everyone makes mistakes, even bureaucratic behemoths like Indiana's BMV. So to some extent we need to be forgiving of such mistakes. But when those mistakes are going to cost Indiana taxpayers millions of dollars to rectify (because neither plaintiff's counsel nor Mr. Hayes gave freely of their services, and the BMV, being a state-funded agency, relies on taxpayer dollars to pay these attorneys their fees), the agency doesn't have a right to feel "pleased to have resolved the issue". One is left wondering why the BMV feels so pleased with this resolution? The magnitude of the agency's overcharges might suggest to some that, perhaps, these errors were more than mere oversight. Could this be why the agency is so "pleased" with this resolution? Will Indiana motorists ever be assured that the culture of incompetence (if not worse) that the BMV seems to have fostered is no longer the status quo? Or will even more "overcharges" and lawsuits result? It's fairly obvious who is really "pleased to have resolved the issue", and it's not Indiana's taxpayers who are on the hook for the legal fees generated in these cases.

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