Lawyers: Indiana immigration law in jeopardy after Arizona decision
Posted: 06/28/2012 at 1:15 am
By: Tim Vandenack
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Brianna Budathoki, from the Kingdom of Bhutan, a landlocked state in South Asia, gestures during a rally for immigrants and refugees at the State House in Concord, N.H. in response to the U.S. Supreme Court's ruling on Arizona's immigration law on Monday, June 25, 2012. The court struck down key provisions of the law but said the portion requiring police to check the status of someone they suspect is not in the United States legally could go forward. Still, the justices said the provision could be subject to additional legal challenges. (AP Photo/Jim Cole)
Now, in light of Monday’s U.S. Supreme Court decision striking down part of Arizona’s controversial immigration law, chances are the preliminary injunctions will become permanent. That’s what a pair of Elkhart County immigration attorneys think, anyway, citing legal provisions putting authority over immigration matters largely in the hands of the federal government.
“The Supremes are saying you’re interfering in our territory,” said Rosy Meza, an Elkhart immigration lawyer. “Immigration is the exclusive province of federal law, not state law.”
Cooperating with the federal government in immigration matters isn’t prohibted by law, echoed Felipe Merino, another immigration attorney with offices in Goshen and South Bend. “It’s trying to do the federal government’s job that’s prohibited.”
The Supreme Court justices turned back three provisions in Arizona’s 2010 immigration law, House Bill 1070. Notably, they struck a section that would have given state and local law enforcement officials authority to make warrantless arrests if they think a suspect has committed a crime that makes him or her deportable.
Upheld was a provision that requires law enforcement officials to ascertain the migratory status of detained suspects they think may be undocumented immigrants.
But even there, the signals from the high court were mixed, according to Merino. The decision leaves open the possibility of another legal challenge if detainees can show they were initially targeted due to racial profiling.
“The courts very clearly left it open,” said Merino.
Karen Tumlin, managing attorney for the Los Angeles-based National Immigration Law Center, said the questions at issue in the Arizona matter are hardly carbon copies of the matters at the heart of the Indiana dispute. NILC and Indiana American Civil Liberties Union lawyers are heading up the legal challenge of the 2011 law here, Senate Enrolled Act 590, in U.S. District Court in Indianapolis.
Even so, the Arizona case affirms that states have limited authority in immigration matters, bolstering the legal challenge here, Tumlin said. The U.S. Supreme Court decision is “absolutely helpful” in the Indiana matter.
‘FAILURE OF CONGRESS’
On the other side, Indiana Attorney General Greg Zoeller, who’s arguing on behalf of SEA 590 in U.S. District Court, said the Arizona decision offers “valuable guidance.” At the same time, he took a swipe at the federal government, suggesting inaction on the immigration issue by the feds has led to initiatives like HB 1070 in Arizona and SEA 590 here.
“The failure of Congress to reform our immigration statutes has put states in the difficult position of seeking this guidance from the judicial branch,” Zoeller said in a statement this week. After reviewing this week’s legal decision, he’ll “advise Indiana’s legislature of any necessary changes to our current statutes.”
Indiana Sen. Mike Delph, R-Carmel, also took a jab at the feds. Delph pushed several years for immigration legislation in the lead up to passage last year of SEA 590, which he authored.
“Presidents from both parties have pandered for political reasons and now the court is once again suggesting the federal government enforce the law,” Delph said in his own statement this week.
AT ISSUE IN INDIANA
At issue in the Indiana case is a provision of SEA 590 that allows law enforcement authorities here to arrest immigrants with federal deportation orders and even notices of action issued for them.
The provision goes too far, the NILC and Indiana ACLU say. Immigrants with deportation orders can be lawfully released as they appeal removal from the country, the critics noted, while notices of action can be issued for immigrants legally here as they go through the citizenship application process.
Also disputed is a provision that prohibits use of identification cards issued by consuls of foreign countries, like the matricula consular issued by the Mexican government. The state provision, say the NILC and ACLU, runs afoul of federal regulations.
At any rate, two disputed sections are hardly the only elements of SEA 590 and several other provisions of the law are in effect, not subject to any legal challenge.
Among other things, SEA 590 also:
• Mandates use of E-Verify in the hiring of employees by state offices, schools and public libraries and contractors hired by those entities. E-Verify is a federal system meant to help identify undocumented immigrants.
• Calls for the loss of tax credits and tax breaks applicable to undocumented workers by companies that don’t use E-Verify.
• Calls for a comprehensive study by state experts, due in July, of the costs of illegal immigration to Indiana.
Originally, SEA 590 contained a provision, later removed, requiring that local law enforcement authorities conduct background checks into the immigration status of detainees suspected of being illegal immigrants. It also had initially called for use of only English in most state government and school operations.