CLINIC LAUNCHES STATE AND LOCAL IMMIGRATION POLICY MAP By: Wendy Rhein Washington, DC (February 10, 2012)

- [En Espaol] - The Catholic Legal Immigration Network, Inc. (CLINIC) today launches a new, interactive web feature highlighting state and local immigration initiatives across the country. This feature is publically available for free, thanks to a grant from the Ford Foundation. In 2007, CLINIC created a project to support advocates working to address the growing number of restrictionist immigration measures proposed and enacted at the state and local levels. After the collapse of comprehensive immigration reform in 2007, approximately 500 immigration-related bills were introduced by state legislators. By 2008, the number of proposed immigration-related bills had tripled to 1,562. In 2011, legislatures in all 50 states considered at least one measure related to immigrants, the most notably being the legislation enacted in Arizona. CLINICS cutting-edge online resource provides practitioners, advocates, and the general public with legal and policy analyses, technical assistance, and advocacy tools such as statements from U.S. Catholic bishops, Q&As, talking points, and issue briefs. For almost 25 years, CLINIC has provided critical support to the countrys largest network of charitable legal immigration service providers, said Maria M. Odom, CLINICs executive director. Today, we face an environment in which legislators are proposing competing enforcement-only measures. Our interactive map will easily guide users to CLINICs state-specific resources on a wide variety of topics and will allow users to compare states, issues, and bills affecting the lives of immigrants and their families. The webpage features a clickable map and allows users to search based on topics found in bills including employment, public benefits, education, and criminal law enforcement. CLINIC will add new materials to the page as legislative sessions across the country continue. Many of the resources will also be available in Spanish. -###-

For questions, please contact CLINICs State and Local Advocacy Attorney, Karen Siciliano Lucas, at (202) 635-7410 or klucas@cliniclegal.org.

State Immigration Enforcement

The 11th Circuit Rules on Pre-Enforcement Challenges to Alabamas HB 56 & Georgias HB 87 (August 28, 2012)
On August 20th, a three-judge panel of the 11th Circuit Court of Appeals applied the U.S. Supreme Courts decision on Arizonas SB 1070 to the legal challenges to Alabamas toughest-in-the-nation immigration enforcement law (HB 56) and Georgias similar enforcement law (HB 87). The 11th Circuits ruling was issued in three separate opinions in three separate legal cases (two on Alabamas law and one on Georgias law). All three of these legal challenges sought to block HB 56 and HB 87 at a very early stage, before the laws had the chance to go into effect or be enforced, which is why they are called pre-enforcement challenges. They are also referred to as facial challenges. The U.S. government, as well as the faith leaders and civil rights organizations challenging these laws, argued that, on their face and regardless of how they are enforced in practice, the laws violate the U.S. Constitution. In its August 20th ruling, the 11th Circuit considered whether the lower courts had been correct to block certain parts (but not others) of these state laws. The legal tool that a court uses to block a law before it can be enforced is called an injunction. A preliminary injunction temporarily blocks a law based on the courts early assessment that the challengers are likely to succeed on their legal claims.1 If a court decides not to preliminarily enjoin a law, the challengers can appeal that decision. They can then ask the appeals court to block the law in the meantime, while the appeals process progresses. This is called an injunction pending appeal. Going into August 20th, all of the challenged sections of HB 56 and HB 87 (except two) had been blocked by a combination of these legal tools. The two remaining sections Sections 12 and 18 of HB 56 went into effect and remained in effect while the cases made their way up to the 11th Circuit. Because both of the lower district courts as well as the 11th Circuit have blocked different parts of these laws at different times over the last year, the August 20th ruling can be confusing. The following charts will contrast the situation prior to the August 20th ruling with where we are now.

When the court has a chance to fully consider the merits of the case, the court could then convert the preliminary injunction into a permanent injunction.

The following are sections of Alabamas law that: Will Stay Blocked 13(a) (harboring/transporting) Will Stay in Effect 12 (mandating immigration status checks at stops/arrests upon reasonable suspicion of unlawful presence) 18 (mandating immigration status determinations for persons driving without a valid license) Will No Longer Be Blocked 8 (barring individuals who are not lawfully present from enrolling in public colleges) 30 (making it a crime for an undocumented person to engage in a public records transaction with the state)

27 (voiding contracts entered into with undocumented persons)

28 (counting undocumented children in public K-12 schools) 10 (making it a state crime to fail to carry federal registration papers) 11(a) (making it a state crime to accept or ask for unauthorized work) 16 (disallowing state tax deduction for wages paid to unauthorized worker) 17 (making it a discriminatory practice to fire an authorized worker while employing an unauthorized worker)

The following are sections of Georgias law that: Will Stay Blocked 7 (harboring/transporting) Will Stay in Effect Will No Longer Be Blocked 8 (permitting status checks when police have probable cause to believe that a person has committed a crime; permitting detention or transport to a federal facility when a criminal suspect is unlawfully present)

What about show me your papers? As the charts above show, the 11th Circuit felt that three provisions regarding the authority of police to make immigration status inquiries could not be blocked at this time. The three provisions are: Alabamas Section 12 (show me your papers mandated in certain circumstances); Alabamas Section 18 (status checks for drivers license violations mandated); and Georgias Section 8 (show me your papers permitted in certain circumstances, plus detention or transfer of unlawfully present criminal suspects permitted).

However, as the Supreme Court did in Arizona v. U.S. with a similar policing provision, the 11th Circuit left the door open to future constitutional challenges once it becomes clear how these sections will be enforced and, specifically, what length of detention they will permit or require. These post-enforcement challenges are called as-applied challenges. Thus, it is important to note that the ultimate constitutionality of these sections has not yet been determined. Whats next for these laws? All of the sections listed in the left-hand column of both charts were already blocked (in different ways) before the August 20th ruling. The next step is for the district courts in Georgia and Alabama to create the appropriate injunctions for all of these sections if they have not already done so. The right-hand column is a bit more complicated. There is still some uncertainty about when exactly each of these three sections will go into effect. Neither Alabamas nor Georgias Section 8 can go into effect until the lower district courts remove the blocks that previously had been placed on them. This will not happen immediately but could happen soon. On the other hand, it appears that Alabamas Section 30 is no longer blocked at this time but probably cannot be enforced until the state takes some further steps.2 CLINIC continues to monitor the legal situation with respect to all of these sections. Separate legal challenges on new grounds could be brought against any of the three sections in the right-hand column at any time. Additionally, either party could now ask that the case be reconsidered by the entire body of judges on the 11th Circuit (not just the three-judge panel that ruled on August 20th). This might temporarily keep the three sections in the right-hand column blocked, at least until that appeal is resolved.

This document was prepared in August 2012 by CLINICs State & Local Advocacy Attorney Karen Siciliano Lucas. This document is provided for informational purposes only and is not intended as legal advice. For questions, please contact Karen at klucas@cliniclegal.org or (202) 635-7410.

Specifically, Alabama may not be able to enforce Section 30 until it adopts and uses the federal Systematic Alien Verification for Entitlements (SAVE) system to properly verify the immigration status of individuals whose actions may be deemed criminal under this section.

The Supreme Courts Decision in Arizona v. U.S.

What Advocates Need to Know (June 25, 2012)
Today, the U.S. Supreme Court (the Court), which is the highest court in the country, ruled that, under our Constitution, the federal governments broad authority over immigration policy blocks the state of Arizona from enforcing three of the four challenged sections of its own controversial immigration law, SB 1070. Can Arizona make it a state crime to ask for or accept unauthorized work? No! The Courts decision means that Arizona cannot turn someone into a criminal just because s/he asks for work. Congress deliberately chose not to make it a crime for a worker to seek or engage in unauthorized employment. The decision both affirms Congress intent and protects the dignity of work.

Can Arizona make it a state crime to fail to complete or carry federal noncitizen registration papers? No! The Court held that Congress has created a complete, federal system of noncitizen registration laws (which already regulates these violations), leaving states no room to pass any of their own laws in this field.

Can Arizona police arrest you without a warrant if they believe that you are deportable? No! The Court saw that this section of SB 1070 would have given state police officers wider enforcement authority than even trained federal immigration agents have. It would allow the State to achieve its own immigration policy, the Court said.

What about SB 1070s reasonable suspicion provision? One part of SB 1070 (Section 2B) requires police to ask about a persons immigration status if they have a reasonable suspicion that the person is undocumented and the person was lawfully stopped on some other charge. Section 2B also requires officers to determine every arrested persons immigration status before s/he is released. The Court did not block Section 2B. But the Court was clear: if Arizona enforces Section 2B in a way that violates any part of the Constitution, advocates may bring new legal challenges.

Will SB 1070s reasonable suspicion provision go into effect tomorrow? No! The Courts decision hasnt changed the law in Arizona yet. There are still more steps in the legal process. Be sure to stay informed. Racial profiling is still and is always unlawful. Remember: whatever your immigration

status, you have rights when police officers stop, question, search or arrest you. See these helpful pamphlets from the ACLU, in English and in Spanish.

Will there be more legal challenges to SB 1070s reasonable suspicion provision? Yes! The Courts decision will not be the last word on reasonable suspicion. The Court made clear that other legal challenges to Section 2B would be perfectly appropriate if, after going into effect, this Section is enforced in an unconstitutional manner. And another lawsuit has already been filed in Arizona to try to block Section 2B from ever going into effect. That lawsuit makes arguments that the Court did not and could not consider in this case, such as whether Section 2B would always violate a persons Constitutional right to be free from unlawful detention or racially discriminatory policing.

What will happen to SB 1070 copycats in other states? So far, five other states Utah, Indiana, South Carolina, Georgia and Alabama have passed their own state immigration enforcement laws that are modeled on Arizonas SB 1070 and are therefore called copycats. All five of these state laws have been challenged in court; all five of the cases were placed on hold pending todays decision. Because the U.S. Supreme Court is the highest court in the country, the courts in these states must now interpret the copycats in light of what the Court has held. Where the sections are similar enough to those blocked by the Court today, they will probably be blocked as well. And where copycat reasonable suspicion provisions differ importantly from SB 1070s, they may also be blocked, if the Courts reasoning compels that outcome. Finally, remember that there are many more sections of SB 1070 and other state enforcement laws that were not even considered by the Court today; judges will have to apply the Courts reasoning to these other sections. In the coming weeks, CLINIC will provide specific analyses of the likely impact of the Courts ruling in these five states. But overall, the Courts opinion describes a strictly limited role for states in immigration enforcement.

What kind of advocacy can we do now? Todays decision presents state and local advocates for immigrant justice with both challenges and opportunities. We must work to ensure that police implement Section 2B in a constitutional manner. To this end, representatives should record in detail every one of their clients encounters with state and local police. What can advocates do with this information? We can: make formal complaints to the states attorney general or to the U.S. Department of Homeland Security; share our stories with our parishes, our local law enforcement partners, and the media; and assist the many civil rights organizations that will continue to file lawsuits to challenge Section 2B. Second, we must explain the importance of todays decision and its very limited vision for state involvement in immigration enforcement. Many states are waiting in the wings to try to pass copycat legislation dont let your state become one of them! But its not only about what a state CAN do. Its about what a state SHOULD do. See these talking points from CLINIC about how Alabama, Arizona and Georgia have been harmed by the anti-immigrant laws they have passed. CLINIC stands ready to help its over 200 affiliates in 47 states and it many other partners across the country with this work.
This document was prepared on June 25, 2012 by CLINICs State & Local Advocacy Attorney Karen Siciliano Lucas. This document provided for informational purposes only and is not intended as legal advice. For questions, please contact Karen at klucas@cliniclegal.org or (202) 635-7410.

State & Local Immigration Enforcement

Arizonas Governor Brewer Aims to Prevent DACA Recipients from Obtaining Drivers Licenses (August 22, 2012)
On August 15, Arizonas Governor Jan Brewer issued an Executive Order instructing state agencies to deny public benefits and state-issued IDs (including driver's licenses) to young people who obtain work authorization and a temporary reprieve from deportation through the Obama Administrations new Deferred Action for Childhood Arrivals (DACA) policy. Specifically, the Executive Order instructs all state agencies, the extent not prohibited by state or to federal law, t initiate operational, policy, rule and statutory changes necessary to prevent Deferred o Action recipients from obtaining eligibility for any taxpayer-funded public benefits and state identification, including a drivers license What is Deferred Action? Deferred Action is a form of discretionary relief that has long been exercised by the Executive Branch, through both the Department of Homeland Security (DHS) and the Immigration and Naturalization Service (INS) before it. Deferred Action means that, for a limited period of time, DHS agrees not to remove a deportable noncitizen. These noncitizens continue to lack a lawful immigration status while their removal is deferred. But this does not mean that their temporary residence within the U.S. is unauthorized by the federal government. What is DACA? DACA offers is a temporary 2-year reprieve from deportation that can be renewed. Recipients of a Deferred Action grant through DACA can also apply for federal work authorization, which comes in the form of an Employment Authorization Document (EAD), also valid for 2 years at a time. As with other examples of Deferred Action, DACA does not change a recipients immigration status. DACA recipients will continue to lack lawful immigration status and will remain of status. out Are DACA recipients the only individuals who can receive Deferred Action? No. Victims of crime who successfully demonstrate that they are eligible to apply for the U nonimmigrant visa can receive Deferred Action while their applications are being adjudicated.1 Domestic violence victims with approved petitions for relief under the Violence Against Women Act (VAWA) can receive Deferred Action and EADs. 2 Past U.S. Presidents have identified groups of individuals as candidates for Deferred Action for humanitarian reasons. For example, President George H.W. Bush

William R. Yates, Associate Director for Operations, U.S. Citizenship and Immigration Services, Memoranda re: Assessment of Deferred Action in Requests for Interim Relief from U Nonimmigrant Status Eligible Aliens in Removal Proceedings, HQOPRD 70/6.2 (May 6, 2004) http://www.uscis.gov/USCIS/Laws/Memoranda/Static_Files_Memoranda/Archives%2019982008/2004/uprcd050604.pdf 2 http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=b85c3e4d77d73210VgnVC M100000082ca60aRCRD&vgnextchannel=b85c3e4d77d73210VgnVCM100000082ca60aRCRD

granted Deferred Action to some Salvadorans who fled that countrys civil war, and President George W. Bush granted Deferred Action to certain foreign students who were affected by Hurricane Katrina.3 Which noncitizens are eligible to apply for an Arizona drivers license? Arizona Revised Statutes 28-3153(D) requires that every applicant for a state drivers license prove that t applicant's presence in the United States is authorized under federal law. [emphasis added] he Notably, it does not condition a drivers license on lawful immigration status, but merely on authorized presence in the United States. Would DACA recipients meet the eligibility criteria? Yes. Under federal immigration law and policy, Deferred Action is a period of stay that has been authorized by the federal government. Autho rized presence (as used in the Arizona drivers license statute) is not a category in the Immigration and Nationality Act (INA) but can be inferred as the inverse of un lawful presence, which is defined in the INA as a reason why someone might be inadmissible to the U.S.: Construction of unlawful presence.For purposes of this paragraph, an alien is deemed to be unlawfully present in the United States if the alien is present in the United States after the expiration of the period of stay authorized by the Attorney General or is present in the United States without being admitted or paroled.4 It is important to differentiate unlawful status from unlawful presence. There are situations in which a noncitizen who has no lawful status nevertheless does not accrue unlawful presence while he or she is in the U.S.5 One such situation is when s/he resides in the U.S. during a pe of stay authorized by the riod Attorney General. Note that the stay need not be authorized by Congress, but rather by an agency within the Executive Branch. U.S. Citizenship and Immigration Services (USCIS), which is part of DHS and will be implementing the DACA policy, has said clearly that Deferred Action is one such period of stay authorized by the federal government: Periods of time in deferred action qualify as periods of stay authorized by the Secretary for purposes of [the relevant section of] the Immigration and Nationality Act. 6 Pre-2001 INS

3 4

http://www.uscis.gov/files/pressrelease/F1Student_11_25_05_PR.pdf INA 212(a)(9)(B)(ii). 5 U.S. Citizenship and Immigration Services, Adjudicators Field Manual 40.9.2 http://www.uscis.gov/portal/site/uscis/menuitem.f6da51a2342135be7e9d7a10e0dc91a0/?CH=afm&vgnextchannel=fa7e539dc4b ed010VgnVCM1000000ecd190aRCRD&vgnextoid=fa7e539dc4bed010VgnVCM1000000ecd190aRCRD 6 U.S. Citizenship and Immigration Services, Q&A: USCIS Provides Interim Deferred Action Relief For Surviving Spouses: Relief for Spouses of Deceased U.S. Citizens Married Less Than Two Years (August 31, 2009)http://www.uscis.gov/USCIS/Office%20of%20Communications/Press%20Releases/FY%2009/August%202009/surviving_ spouses_faq_0831.pdf

memoranda confirm that this has been longstanding policy.7 Additionally, USCIS has stated that those who are granted Deferred Action through DACA will not accrue unlawful presence under the INA.8 There is also persuasive evidence that federal statutes other than the INA consider recipients of Deferred Action to be l awfully present. For example, a person with Deferred Action is considered by Congress to be an alien who is lawfully present in the United States for the purposes of receiving a Social Security card. 9 Additionally, the federal REAL ID Act explicitly considers individuals with Deferred Action to be lawfully present for the purposes of state issuance of federally acceptable drivers licenses: (B) Evidence of lawful status.-- A State shall require, before issuing a driver's license or identification card to a person, valid documentary evidence that the person (viii) has approved deferred action status.10 Legally (and logically) speaking, it seems appropriate to extrapolate that those who have been temporarily permitted to stay and work in the United States by DHS are authorized to be present in the U.S., as the Arizona drivers license statute requires. Furthermore, ACLU of Arizona has said that those who have obtained Deferred Action in the past have routinely obtained drivers licenses in Arizona.11 DACA recipients would also be able to present sufficient documentation to establish their identity under the Arizona Department of Transportations Motor Vehicle Divisions (MVD) current policy. The MVD lists the documents necessary to establish identity in applying for a drivers license. An EAD is a pr imary document, which could be supported by two s econdary documents: for example, a Social Security card (which a person can get once s/he has an EAD) and a W2 form. Congress didnt pass DACA. Does that mean that the presence of DACA recipients in the U.S. is unauthorized? No. These young peoples immigration status cannot be changed by Administration policy in the absence of Congressional action. But through the INA, Congress explicitly gave the Administration the authority to exercise discretion to pursue and conduct removal proceedings. The discretion to choose not to deport certain removable noncitizens was affirmed by the U.S. Supreme Court in Arizona v. United States: A principal feature of the removal system is the broad discretion exercised by immigration officials. Federal officials, as an initial matter, must decide whether it makes sense to pursue
Johnny N. Williams, Executive Associate Commissioner, Office of Field Operations, Immigration and Naturalization Service (INS), Memorandum for Regional Directors, Re: Unlawful Presence HQADN 70/21.1.24-P ( purposes of section For 212(a)(9)(B)(ii) of [the INA], and for no other purpose or benefit under the Act, the INS has designated the following as periods of stay authorized by the Attorney General: Current grants of deferred action in effect on or after April 1, 1997) http://www.asistahelp.org/documents/resources/CIS_DA_is_not_UP_EFC360AC129DB.pdf 8 U.S Citizenship and Immigration Services, Q&A: Deferred Action for Childhood Arrivals http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=f2ef2f19470f7310VgnVCM 100000082ca60aRCRD&vgnextchannel=f2ef2f19470f7310VgnVCM100000082ca60aRCRD#about 9 8. U.S.C. 1611(b)(2) ( alien who is lawfully present in the United States as determined by the Attorney General is eligible an for benefits payable under title II of the Social Security Act); 8 Code of Federal Regulations (C.F.R.) 1.3(a): the purposes For of 8 U.S.C. 1611(b)(2) only, an alien who is lawfully present in the United States means: (4) An alien who belongs to one of the following classes of aliens permitted to remain in the United States (vi) Aliens currently in deferred action status. 10 Pub.L. 109-13, Div. B, Title II, 201 to 207, May 11, 2005, 119 Stat. 311. 11 http://tucsoncitizen.com/arizona-news/2012/08/16/migrant-lawyers-say-brewer-edict-contradicts-law/
7

removal at all. Unauthorized workers trying to support their families, for example, likely pose less danger then alien smugglers or aliens who commit a serious crime.12 There is a legal difference between an authorized stay in the U.S. (which is determined by DHS) and lawful immigration status (which is granted in accordance with laws passed by Congress). States can differ as to whether they condition drivers licenses upon lawful immigration status on the one hand or federally authorized presence on the other. Governor Brewer seems to have conflated the two legal concepts and, consequently, to have misunderstood what Arizonas drivers license statute says. It is likely, therefore, that Governor Brewers Executive Order violates existing state statutory law. What have other states said about drivers licenses for DACA recipients? So far, California, Virginia and Texas have officially stated that they will be issuing drivers licenses to DACA recipients. By statute, Texas has a lawful presence requirement and Virginia has a l egal 13 th presence requirement for drivers license applications. On August 7 , the Virginia Department of Motor Vehicles publicly confirmed that an official letter from USCIS indicating the grant of Deferred Action status will be accepted as a DACA recipients proof of legal presence.14 On August 21st, the Texas Department of Public Safety publicly confirmed that someone who has been granted Deferred Action and presents an EAD m eets the Departments current lawful presence and identification 15 policy. The Governor of Nebraska, on the other hand, announced his public opposition to the DACA policy, reiterated that DACA does not provide lawful immigration status, and confirmed that the states policies with respect to drivers licenses and public benefits will not change.16 He did not, however, issue an Executive Order regarding DACA as Governor Brewer did. How will Arizona state agencies implement this Executive Order? It is still unclear how the Arizona agencies will implement this Executive Order. At a press conference, the Governor seemed to say that the Executive Order was not intended to actually change anything that state agencies would otherwise do to determine eligibility for benefits and state identification. 17 But that statement does not address the probability, discussed above, that Arizonas drivers license statute and existing policy support DACA recipients eligibility for drivers licenses in the state. Another possibility is that Arizona MVD could closely scrutinize individuals EADs, which display the category under which the individual applied for that EAD. USCIS has created a new EAD eligibility category for DACA requestors: Category (c)(33). All EADs granted to DACA beneficiaries will display this unique category.

12 13

Arizona v. United States, 567 U.S. ______ (2012), Slip op. at 4. Virginia Code 46.2-328.1. 14 Letter from Richard D. Holcomb, Commissioner, Virginia Department of Motor Vehicles, to Claire Guthrie Castanaga, Executive Director, American Civil Liberties Union, dated August 7, 2012 [ August 7, 2012 Virginia DMV Letter]https://acluva.org/wp-content/uploads/2012/08/20120808DMVDeferred-Action-Status-Response.pdf 15 http://thescoopblog.dallasnews.com/2012/08/texas-drivers-licenses-will-be-available-to-immigrants-qualifying-for-workpermits.html/ 16 http://nebraskaradionetwork.com/2012/08/20/nebraska-to-defy-obama-administration-deferred-action-program-audio/ 17 http://tpmmuckraker.talkingpointsmemo.com/2012/08/brewer_immigration_obama.php

Furthermore, if state agencies interpret the Executive Order to require that they deny benefits and stateissued IDs to all recipients of Deferred Action regardless of why or how it was granted by USCIS this may have implications beyond DACA recipients as well as beyond the issuance of drivers licenses. For example, individuals with approved VAWA petitions (who may receive Deferred Action) are explicitly considered qulified aliens for the purposes of both federal and state/local public benefits and are a therefore entitled to receive them.18
This document was prepared in August 2012 by CLINICs State & Local Advocacy Attorney Karen Siciliano Lucas. This document is provided for informational purposes only and is not intended as legal advice. For questions, please contact Karen at klucas@cliniclegal.org or (202) 635-7410.

18

8 U.S.C. 1641(c)(1)(B).