ILNews

Indiana's immigration law reeling

Back to TopCommentsE-mailPrintBookmark and Share

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.•

ADVERTISEMENT

  • 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!??

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Im very happy for you, getting ready to go down that dirt road myself, and im praying for the same outcome, because it IS sometimes in the childs best interest to have visitation with grandparents. Thanks for sharing, needed to hear some positive posts for once.

  2. Been there 4 months with 1 paycheck what can i do

  3. our hoa has not communicated any thing that takes place in their "executive meetings" not executive session. They make decisions in these meetings, do not have an agenda, do not notify association memebers and do not keep general meetings minutes. They do not communicate info of any kind to the member, except annual meeting, nobody attends or votes because they think the board is self serving. They keep a deposit fee from club house rental for inspection after someone uses it, there is no inspection I know becausee I rented it, they did not disclose to members that board memebers would be keeping this money, I know it is only 10 dollars but still it is not their money, they hire from within the board for paid positions, no advertising and no request for bids from anyone else, I atteended last annual meeting, went into executive session to elect officers in that session the president brought up the motion to give the secretary a raise of course they all agreed they hired her in, then the minutes stated that a diffeerent board member motioned to give this raise. This board is very clickish and has done things anyway they pleased for over 5 years, what recourse to members have to make changes in the boards conduct

  4. Where may I find an attorney working Pro Bono? Many issues with divorce, my Disability, distribution of IRA's, property, money's and pressured into agreement by my attorney. Leaving me far less than 5% of all after 15 years of marriage. No money to appeal, disabled living on disability income. Attorney's decision brought forward to judge, no evidence ever to finalize divorce. Just 2 weeks ago. Please help.

  5. For the record no one could answer the equal protection / substantive due process challenge I issued in the first post below. The lawless and accountable only to power bureaucrats never did either. All who interface with the Indiana law examiners or JLAP be warned.

ADVERTISEMENT