US Immigration Law

US Immigration Law Introduction

On April 25, 2012, the US Supreme Court heard oral arguments in the case of Arizona v. United States. On June 25, 2012, the Court decided the legal fate of Arizona's highly controversial immigration laws, more commonly referred to as SB 1070. The Court ruled that three sections of the law intruded upon the authority of the federal government, while the most controversial provision was upheld [PDF]. The Arizona law caused nationwide controversy that implicated areas of international relations and public policy and underscored tensions between state and federal governments. While the decision will have an immediate effect on only the Arizona legislation, it will serve as a flashpoint for the modern debate over immigration regulation in the US. A lack of comprehensive federal reform prompted many states, including Arizona, to pass legislation that purports to enforce federal immigration law. Such laws sought to grant state law enforcement officials expanded powers to identify potential undocumented immigrants, have made it a crime to fail to provide documentation of immigration status, and have attempted to make it more difficult for employers to hire resident and undocumented immigrants. Proponents argue that these measures are required to fully address the growing problem of undocumented immigrants, while opponents have argued that these legislative measures lend legitimacy to open ethnic discrimination.

US Immigration and State Laws

Arizona & SB 1070

On April 23, 2010, Arizona Governor Jan Brewer signed the Support Our Law Enforcement and Safe Neighborhoods Act into law, following the bill's quick approval in both the Arizona House and Senate. More commonly referred to as SB 1070, proponents argued that the legislation was aimed at combating illegal immigration in the state by requiring all resident aliens in Arizona to register their presence in the US with the government within 30 days of entering the country. It also requires law enforcement officials to inquire into the immigration status of anyone that they make "lawful contact with" if they have a "reasonable suspicion" that the person may be in the country illegally. To this end, SB 1070 criminalized the failure to provide documentation proving lawful immigration status, and granted state law enforcement expanded powers of investigation, detention and transportation. The law also criminalized attempts to employ or transport undocumented immigrants within the state, targeting traditional "day laborer" arrangements.

The bill's passage was met with harsh criticism from both domestic and international sources. US President Barack Obama criticized the bill the day before its passage, saying its enforcement would "threaten to undermine basic notions of fairness that we cherish as Americans, as well as the trust between police and their communities that is so crucial to keeping us safe." Nationwide rallies protesting SB 1070 were held in May 2010 and the US Conference of Mayors passed two resolutions opposing the law and supporting alternative federal immigration reform. The UN suggested that Arizona's enforcement scheme might violate binding international human rights standards. Four days after Brewer signed the bill into law, JURIST Guest Columnist Marjorie Cohn wrote that SB 1070 effectively "criminalizes 'walking while brown' in Arizona" and ignores the many social contributions made by undocumented immigrants: "Instead of expressing gratitude for the back-breaking work migrant laborers contribute to our society, [this] is an increasingly virulent strain of racism that targets non-citizens."

The Arizona legislature responded to this outcry by quickly passing an amendment to SB 1070, which was signed by Brewer on May 1, 2010. The amendment strengthened restrictions against using race or ethnicity as the basis for questioning immigration status and specified that law enforcement can only question the immigration status of suspects stopped pursuant to the enforcement of another law. JURIST Guest Columnist William G. Ross stressed in May 2010 that Arizona must be scrupulously careful to avoid even the appearance of any kind of discrimination against Latinos, arguing that the amendment is a step in the right direction:

Although some opponents of the status have alleged that it would permit random detention of any person suspected of being an illegal alien and therefore could subject legal aliens or U.S. citizens of Hispanic heritage to harassment and abuse or could discourage them from reporting crimes to law enforcement officials, the "lawful contact" language indicates that the statute requires a predicate for any inquiry into one's citizenship status.
Despite this legislative change, numerous legal challenges have been filed to prevent the enforcement of SB 1070 or invalidate it outright. Two intial lawsuits were filed by the National Coalition of Latino Clergy and Christian Leaders and Arizona police officer Martin Escobar challenging the constitutionality of SB 1070. Escobar's suit was dismissed for lack of standing by the US District Court for the District of Arizona in September 2010, which was subsequently upheld in a decision from the US Court of Appeals for the Ninth Circuit. However, the state of Arizona's motion to dismiss the second class action lawsuit was denied in October 2010. Federal Judge Susan Bolton heard arguments in that case in August 2012 and upheld the provision that requires law enforcement officials to check the immigration status of persons they stop or arrest if they reasonably suspect those persons of being undocumented immigrants. Following the Supreme Court's decision in Arizona v. United States, Judge Bolton declined to issue an injunction against the law, a decision which was upheld by the Court of Appeals for the Ninth Circuit following appeal.

The US Department of Justice (DOJ) filed its challenge to the law in July 2010, alleging that SB 1070 is preempted by federal immigration law under the Supremacy Clause of the US Constitution. In response, the US District Court for the District of Arizona issued a preliminary injunction against enforcement of several provisions in the law before it went into effect. Despite this initial success, many legal minds remained unconvinced of the legal soundness of the DOJ argument. JURIST Guest Columnist Jon Feere argued in November 2011 that preemption was "not an issue" in the case:

Like many states, Arizona is experiencing the fallout of the federal government's failure to sufficiently enforce immigration laws. At least 25 states may follow Arizona's lead. This is in addition to the many other states that have already passed legislation to make their jurisdictions less welcoming to those who violate immigration laws, both illegal aliens and their employers. It will be up to the Supreme Court to clarify the scope of preemption in immigration matters, but Arizona has a greater likelihood of success than most media outlets are predicting.
Arizona appealed the preliminary injunction and sought expedited review from the US Court of Appeals for the Ninth Circuit, which was denied. In response, Brewer filed a countersuit against the US government in February 2011, alleging violations of the Secure Fence Act of 2006 and other pieces of federal immigration law. However, Arizona's counterclaim was dismissed by the district court on the grounds of claim preclusion.

The Ninth Circuit issued its opinion in Arizona's appeal in April 2011, upholding the preliminary injunction issued by the district court. Arizona appealed the Ninth Circuit's decision to the US Supreme Court in August 2011. The Supreme Court granted certiorari in December 2011, despite urging from the DOJ to deny the application. Oral arguments in the case of Arizona v. United States took place on April 25, 2012. On June 25, 2012, the Court struck down several portions of the law while upholding the controversial provision allowing police to arrest anyone they suspect of being an undocumented immigrant. Following the decision, Brewer expressed confidence that the enforcement of SB 1070 will not violate the Constitution and a realization that domestic and international eyes will be on Arizona as the law goes into effect within the state.

In an unrelated lawsuit challenging SB 1070, the US District Court for the District of Arizona has ruled that Arizona residents have standing to challenge the law's constitutionality. The court in that case also considered arguments as to whether the citizens challenging the immigration law should be certified as a class.

'Copycat' Legislation

Arizona's SB 1070 was not the first state-sanctioned piece of legislation seeking to curb the issue of illegal immigration in recent years. The Oklahoma Taxpayer and Citizen Protection Act of 2007 was struck down by the US Court of Appeals for the Tenth Circuit in February 2010, and is just one example of many state attempts to legislate the issue of undocumented immigrants. However, the aftermath of SB 1070 has inspired a number of state legislatures to enact individual solutions to immigration problems. In the months following the adoption of Arizona's controversial immigration policies, the state legislatures of South Carolina, Oklahoma, Utah, Indiana, Georgia, Mississippi and Alabama approved legislation similar to SB 1070. In some cases, the laws were even directly modeled on the language of Arizona's legislation.

Following the adoption of these so-called "copycat" bills, various legal challenges were filed to prevent their enforcement in both state and federal courts. Alabama has been at the center of particular legal controversy since its restrictions on undocumented immigrants were decried as the most severe in the country. The Beason-Hammon Alabama Taxpayer and Citizen Protection Act, commonly referred to as HB 56, has been the subject of three different lawsuits with plaintiffs including the American Civil Liberties Union (ACLU), the Southern Poverty Law Center (SPLC), the National Immigration Law Center (NILC), the DOJ, and various religious organizations. The consolidated lawsuits have drawn supporting briefs from 16 foreign countries. Alabama Governor Robert Bentley later signed revisions to HB 56 that clarify the types of documents that can be used for identification, ease measures against subcontractors that hire undocumented immigrants and contain exceptions for religious purposes.

The US Court of Appeals for the Eleventh Circuit issued an injunction preventing the enforcement of HB 56 in October 2011. However, a controversial element of HB 56 requiring public schools to check the immigration status of their students has continued to provoke conflict between state and federal officials. JURIST Guest Columnist Kevin Johnson argues that this back-and-forth between state and federal officials over the legitimacy of HB 56 underscores the need for federal immigration reform, and invokes the era of civil rights:

Oddly out of touch with US civil rights history, Alabama Attorney General Luther Strange has questioned Perez's authority to ask for basic enrollment information from the school districts. Such objections highlight for the nation the civil rights implications of the Alabama immigration law and remind people of the parallels between HB 56 and Alabama's strident -- at times, violent -- stand against African Americans seeking to desegregate the public school system in the 1950s and 1960s. Unfortunately, until Congress enacts some kind of comprehensive immigration reform or the Supreme Court makes clear what role the states have, if any, in immigration enforcement, the nation can expect state legislatures to continue to pass immigration enforcement laws like Alabama's.
Following the injunction from the Eleventh Circuit, the DOJ has filed a new action to strike down HB 56 in its entirety. This has prompted efforts within the state to revise the law. On April 20, 2012, the Alabama House of Representatives adopted amendments to HB 56, which distinguished some of the more controversial elements of the bill in anticipation of the state's legal defense of the law.

In August 2012, the US Court of Appeals for the Eleventh Circuit struck down provisions of HB 56 as well as Georgia's "copycat" immigration law, HB 87. Following the opinion [PDF], Alabama state officials requested a rehearing; the Eleventh Circuit court twice denied these requests. Alabama Attorney General Strange then appealed the ruling to the Supreme Court in January 2013; the appeal was denied in April 2013. Following the Eleventh Circuit striking down provisions of Georgia's HB 87, the US District Court for the Northern District of Georgia lifted a preliminary injunction on the upheld provisions of the Georgia law and subsequently permanently banned enforcement of its provision prohibiting knowingly transporting or harboring an illegal immigrant during the course of a crime. The Georgia General Assembly reacted to these rulings by passing an expanded version of the bill requiring stricter enforcement.

In February 2013, the ACLU filed another lawsuit specifically challenging a portion of Alabama's law that requires law enforcement to publish a list of immigrants who may be undocumented, which the organization decried as an immigrant "black list."

The US District Court for the Southern District of Indiana issued an opinion [PDF] in March 2013 striking down provisions of Indiana's strict immigration law that allowed police to arrest non-citizens without a warrant and prohibited the use of consular IDs as forms of identification.

Driver's Licenses

In the past decade, one prevalent issue surrounding immigration laws has been the issuance of driver's licenses to illegal immigrants. States such as Connecticut, Illinois, New Mexico, Utah and Washington allow illegal immigrants driving privileges through driver's licenses. Some of the arguments in favor of the licenses include: promotion of road safety, allowance of immigrants to drive to work to support their families and reduction of unlicensed drivers on the road. Those opposed to the licenses being issued are concerned with fraud, national security and the encouragement of employment of illegal immigrants over US citizens. States such as Ohio, Georgia, and Arizona allowed driver's licenses for illegal immigrants before revoking them, citing reasons such as identity fraud, drawing illegal immigrants from other states, taking jobs away from US citizens and political pressure.

In Illinois, Governor Pat Quinn signed a bill in January 2013 that permitted immigrants to obtain temporary driver's licenses if they could provide proof of one-year state residence. These licenses could not be used for voting, purchasing firearms or boarding airplanes. In California, Governor Jerry Brown signed a bill that would allow certain illegal immigrants who came to the US as children, including those who do not have social security numbers, to obtain state driver's licenses. The bill also contained provisions that would allow those who entered the US as children under the age of 16 and are currently under the age of 30 to obtain work permits. On March 25, 2013, the Maryland Senate approved a bill that would increase the availability of driver's licenses for illegal immigrants as long as they could show proof that they have filed Maryland state income taxes. These licenses would not be able to be used as federally accepted identification.

Legal Arguments

Prior to the passage of SB 1070, Arizona was the subject of an entirely different legal challenge involving illegal immigration, namely the legitimacy of the Legal Arizona Workers Act (LAWA). The law took effect in January 2008 and imposed sanctions on employers that utilized undocumented immigrants as part of their workforce. The novelty of the controversy is that the case, Chamber of Commerce v. Whiting, implicated similar issues of preemption doctrine when it was argued before the US Supreme Court in April 2011. Although LAWA was ultimately upheld as excluded from federal preemption because it was a licensing statute pursuant to the Immigration Control and Reform Act of 1986, the result in the current controversy is much more complex and uncertain.

The Supremacy Clause

The legal debate over SB 1070 concerned the ability of Arizona to create strict immigration reforms, despite the federal government traditionally holding sole constitutional power to set immigration law. The key constitutional language at issue was the Supremacy Clause, Article VI, Clause 2, which states that in all cases where there is a contradiction between federal and state law, the courts must enforce the federal law:

This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.
SB 1070 contains several provisions which implicate the potential application of this preemption doctrine. The key provisions contested gave state law enforcement permission to determine the immigration status of any individual who arouses "reasonable suspicion," criminalized the hiring of undocumented immigrants for day labor, and allowed citizens to sue local governments if they believed the policy was not being enforced properly. The federal government argued that these provisions were unenforceable because federal law preempts them, whereas proponents of SB 1070 and Arizona officials countered that the provisions amounted to concurrent enforcement of federal laws already in place.

This argument of concurrent enforcement has been touted by Brewer as the primary motivation behind the law's adoption. On February 6, 2012, Brewer filed a brief with the US Supreme Court asking that the Ninth Circuit's injunction be lifted as soon as possible, arguing that there is an urgent need for such state law enforcement capacities:

The result [of lax federal enforcement] has been the funneling of an increasing tide of illegal border crossings into Arizona. Indeed, over the past decade, over a third of the nation's illegal border crossings occurred in Arizona. ... This flood of unlawful cross-border traffic, and the accompanying influx of illegal drugs, dangerous criminals and highly vulnerable persons, have resulted in massive problems for Arizona's citizens and government, leaving them to bear a seriously disproportionate share of the burden of an already urgent national problem.
Some have claimed that Supreme Court precedent under De Canas v. Bica support this interpretation. However, legal challenges to SB 1070 maintained that the issue of preemption should have led the Supreme Court to strike the entire law down as unconstitutional — a view clearly stated by the DOJ lawsuit filed in July 2010: "The Constitution and the federal immigration laws do not permit the development of a patchwork of state and local immigration policies throughout the country."

Legal scholars have also spoken out against the bill due to its potential for inflicting unnecessary costs on municipalities. JURIST Guest Columnist Marjorie Cohn argues that, in addition to running afoul of preemption doctrine, the costs of enforcing SB 1070 will quickly eclipse its potential benefits:

By establishing a separate state crime for anyone who violates federal immigration law, the new Arizona law contravenes the Supremacy Clause of the Constitution, which grants the federal government exclusive power to regulate U.S. borders ... SB 1070 creates a cause of action for any person to sue a city, town or county if he or she feels the police are not stopping enough undocumented immigrants. Even if a municipality is innocent, it will still be forced to rack up exorbitant legal fees to defend itself against frivolous lawsuits.

The First Amendment

SB 1070 has also implicated the First Amendment through legal challenges specifically seeking to strike down portions of SB 1070 that target day laborers and employers. Filed in January 2011, the petition alleged that the provisions of SB 1070 which prevent employers from soliciting day laborers should be struck down for infringing on constitutional protections for commercial speech. Following the law's passage, Brewer contended that the portions of the legislation related to day laborers was a "necessary traffic safety measure" meant to address the compelling government interest of traffic safety. However, the plaintiffs of the lawsuit claimed that the law's effect was directed at limiting speech, not promoting safety on the roads:

The First Amendment guarantees all members of society the right to free expression. Solicitation speech is expression entitled to full protection under the First Amendment. Sections 13-2928 (A) and (B) of the Arizona Revised Statutes are content-based speech restrictions because they impose statewide criminal liability on motorists and individuals based on individuals' employment solicitation speech.
In March 2012, the US District Court for the District of Arizona issued a preliminary injunction preventing the enforcement of the provisions of SB 1070 dealing with day laborers, citing a potential violation of the First Amendment:
The Court finds that [Arizona has] not shown that [the] content-based restrictions of speech are drawn to achieve the substantial governmental interest in traffic safety. As an initial matter, because the regulation is content-based and applies only to solicitation of employment, not other types of solicitation, it appears to be structured to target particular speech rather than a broader traffic problem. The adoption of a content-based ban on speech indicates that the legislature did not draft these provisions after careful evaluation of the burden on free speech.

The US Court of Appeals for the Ninth Circuit issued an opinion [PDF] affirming the preliminary injunction preventing enforcement of the day laborer provision in March 2013.

Racial Discrimination

Corollary to these arguments is the prevalent concern that SB 1070 will lead to racial discrimination by law enforcement. A brief filed by the Mexican American Legal Defense and Education Fund (MALDEF) and the National Coalition of Latino Christian Clergy contends that the bill opens up the possibility of racial discrimination by creating a set of immigration laws separate from the federal government:

One significant measure of SB 1070's patent illegality is that it seeks to implement Arizona's own scheme of immigration regulation — separate and in conflict with federal government policy — when our Constitution envisions a unified nation under one federal set of immigration regulations to be adopted by Congress and implemented by the President. By rejecting that constitutional plan, Arizona's enactment of SB 1070 is tantamount to a declaration of secession. In response, the federal government must act to preserve our united nation by clearly stating that it will not cooperate in any way with the implementation of SB 1070 — that it will not adjust or alter its immigration enforcement priorities to the detriment of other states simply to accommodate Arizona's most recent exercise in racial demagoguery.
However, scholars have expressed the fear that SB 1070's discriminatory effect has already been felt. JURIST Forum Guest Columnist David Harris has argued that SB 1070 operates as a thinly veiled attempt to legislate racial discrimination:
The Supreme Court will answer whether the federal law on immigration "preempts" a state from regulating immigration. But in reality, the case is about something else: whether state law in the US can be used to force police to act on the basis of racial or ethnic appearance. ... We should begin with a clear understanding of the goal of the Arizona law, which is not to assure compliance with the federal immigration law. Rather, it is to intimidate and cause fear among Latino people. The idea is to use this fear to terrify and to disturb the Latino population enough that they leave Arizona. This is what the leading Republican candidate for president this year euphemistically called "self-deportation." The drafters of the law were much more blunt. What they wanted was stated in the law itself: "attrition through enforcement." In other words, by enforcing, or threatening to enforce, the provision of the Arizona law, they hoped to push out people they do not want.

Federal Legislation

The US government has made relatively few amendments to federal legislation dealing with undocumented immigration in the past few decades, despite the introduction of numerous pieces of legislation during the last 10 years. This has led individual states to begin formulating their own ways of dealing with the many pressing issues of illegal immigration, which has resulted in the creation of inconsistent policies across the country. In order to understand the current position of the federal government, it is necessary to understand the history of immigration laws leading up to this point. Current statutes regarding immigration are codified under Title 8 of the US Code (USC).

Prior to 1882, there were few restrictions placed on the ability of immigrants to enter the US. This began to change with the Chinese Exclusion Act, which suspended immigration to the US by people of Chinese descent. Another significant change occurred in the 1920s with the advent of national quotas which dictated the number of immigrants that could enter the US from each country around the world. This national origins formula would endure in some form until the 1960s. However, the beginning of the modern immigration regime truly begins with the Nationality Act of 1940, which was created to make a more complete nationality code. The act clarified the status of individuals residing in US territories, and identified those groups that were ineligible for citizenship. Some qualifications that were listed in the act that could be considered for eligibility of nationalization were: race/ethnicity, basic verbal English proficiency and residency. The only factors listed as being ineligible for consideration were gender and marital status.

Immigration and Nationality Act of 1952

The next development in federal immigration law came in 1952 with the passage of the Immigration and Nationality Act of 1952 [PDF], also known as the McCarran-Walter Act. This act further prohibited race from being used as a factor when considering an individual's eligibility for nationalization. The act also created three immigrant classifications: (1) those with special skills or relatives in the US, (2) average immigrants whose country of origin had not exceeded its "quota" for the year, and (3) refugees. The act also allowed for the denial of entry to immigrants who were seen as potentially dangerous or associated with the Communist Party. This was thought necessary to ensure that the US only allowed entry to immigrants of good moral character who would abide by the principles of the US Constitution.

Immigration and Nationality Services Act of 1965

The Immigration and Nationality Services Act of 1965 is most significantly known for abolishing the national origins formula that had been in place in the US since 1924. This was the most radical change in immigration policy to date at the time. The act increased the number of immigrants coming into the country especially from Latin America and Asia in hopes of taking advantage of the opportunities that the US had to offer. The focus for approving immigrants entrance to the US was shifted to evaluate an immigrant's employment skills and family relationships with people already in the country.

Immigration Reform and Control Act of 1986

There was little change in federal immigration policy until the passage of the Immigration Reform and Control Act of 1986, which was aimed at curbing widespread illegal immigration. The main points of the act included requiring employers to verify their employees' immigration status and making it a crime to knowingly hire or recruit any unauthorized immigrants. The act also gave legal status to certain undocumented immigrants doing seasonal agriculture and to undocumented immigrants who entered the US before January 1, 1982, and had lived in the country continuously. The parts dealing with employers instituted the I-9 form, which requires documents of legal eligibility to accept employment.

Illegal Immigration Reform and Immigrant Responsibility Act of 1996

Ten years later, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) was passed. This legislation was seen as a more comprehensive act, and it instituted many new regulations regarding the inadmissibility of aliens for reasons including missing previous removal proceedings, violating other sections of the act, violating the terms and conditions of visas given, and those who were already "unlawfully present" in the US. Other pertinent regulations stated that aliens convicted of felonies were permanently ineligible for entrance, and dictated that removal proceedings would now cover all violations dealing with the IIRIRA. The act also addressed many of the issues that are currently being legislated and litigated today such as border patrols and interior enforcement.

REAL ID Act of 2005

One of the more recently passed pieces of federal legislation dealing with immigration was the REAL ID Act of 2005. This act had the purpose of creating a more uniform system of identification by creating more stringent minimum standards for state issued driver's licenses and identification cards. The states were given a five-year period to adjust their standards originally, but this time frame was expanded in 2011 to extend until January 15, 2013. Some of the minimum requirements were: a photograph, a person's date of birth, the person's driver's license number/identification number, the person's address, the person's signature, and a scanning barcode that holds the information. The act has been the object of criticism and resistance at both the state and federal levels due to its controversial nature, although proponents have argued that it is justified as a necessary element of national security in the aftermath of September 11, 2001.

Secure Fence Act of 2006

The Bush administration passed the most recent federal legislation dealing explicitly with immigration — the Secure Fence Act of 2006. The stated goal of this act was to help secure US borders in order to decrease illegal entry, drug trafficking and other security threats by building physical barriers along the US-Mexico border. The hope was that cutting off vehicle routes available to undocumented immigrants wishing to enter the country would decrease illegal immigration. However, the creation of the fence was decried as both an "embarrassment" to US international relations and "inhumane." By April 2009, the US Department of Homeland Security had already constructed 613 miles of fencing and vehicle barriers along the border of the US and Mexico from California to Texas. Proponents of the legislation stated that while it may not be an infallible obstacle in the way of undocumented immigrants wishing to cross the border, the hope is that it would increase apprehension in attempting to cross the southern border and interfere greatly in the operations of drug traffickers.

Comprehensive Immigration Reform Act

The Comprehensive Immigration Reform Act was first proposed in 2007, although it was also reintroduced in October 2010. The legislation would have provided citizenship to approximately 12 to 20 million undocumented immigrants residing in the US. The bill also included increases in border enforcement and a revision of the criteria used in granting visas to focus more strongly on allowing highly skilled workers entrance. However, despite support in the US House of Representatives, the bill has repeatedly failed to pass the US Senate.

The DREAM Act

Although not directly addressed in the imminent controversy of Arizona v. United States, issues of education and illegal immigration have confronted the US government for decades. The Development, Relief and Education for Alien Minors Act was first introduced in 2001 by Senator Orrin Hatch and Congressman Chris Cannon. The basic goals of the DREAM Act have remained consistent since 2001, which, when introduced, was to "allow children who have been brought to the United States through no volition of their own the opportunity to fulfill their dreams, to secure a college degree and legal status." As of 2012, the DREAM Act has yet to pass both the House and the Senate.

Background

The DREAM Act came as a response to the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). The IIRIRA restricted post-secondary education to undocumented immigrants by providing that schools could only offer in-state tuition to undocumented state residents if it provided the same in-state tuition to all students, regardless of their state residence. In almost every session of Congress since then, both the House and the Senate have introduced legislation to repeal the IIRIRA provision regarding tuition for undocumented students. Although education is not a fundamental right guaranteed by the US Constitution, the US Supreme Court ruled in Plyler v. Doe that undocumented immigrants have the right to public education because a denial of access would be a violation of the Fourteenth Amendment.

In 2005, the DREAM Act failed again as both a stand-alone bill and as part of a comprehensive immigration bill. In September 2007, Senator Dick Durbin proposed passing the DREAM Act as an amendment to the Department of Defense Authorization Bill of 2008. Although the bill received support from the military, the amended version ultimately failed to pass.

President Obama endorsed the legislation in July 2010. As a senator, President Obama had been a strong supporter of comprehensive immigration reform and stressed the need for bipartisanship:

I'm ready to move forward; the majority of Democrats are ready to move forward; and I believe the majority of Americans are ready to move forward. But the fact is, without bipartisan support, as we had just a few years ago, we cannot solve this problem. Reform that brings accountability to our immigration system cannot pass without Republican votes. That is the political and mathematical reality. The only way to reduce the risk that this effort will again falter because of politics is if members of both parties are willing to take responsibility for solving this problem once and for all.
In January 2012, President Obama urged lawmakers in his State of the Union Address to approve the DREAM Act, which passed the House of Representatives in December 2010 but failed in the Senate by a 55-41 vote. The 2010 version of the DREAM Act is the most current legislative draft.

Overview of the 2010 DREAM Act

On September 29, 2010 Senators Robert Menendez and Patrick Leahy introduced the Comprehensive Immigration Reform Act of 2010. The bill incorporated previously proposed immigration legislation, including the DREAM Act.

The 2010 DREAM Act provides a path to citizenship for select undocumented immigrant students in three phases, resulting in naturalization after a minimum of 13 years. The first phase is a grant of conditional non-immigrant status for a period of 10 years, subject to termination if a number of conditions are violated, including criminal conduct and other disqualifiers under the Immigrant and Nationality Act (INA). The second phase provides for an adjustment of status to "alien lawfully admitted for permanent residence" after nine years of conditional non-immigrant status, if the immigrant has completed two years at an institution of higher education or two years of military service in good standing. An immigrant may complete naturalization upon fulfillment with all relevant provisions of the INA, and after three years of residence in the US as a legal permanent resident.

The bill limits its retroactive application by requiring that any potential applicant must be under the age of 30 at the time of the bill's enactment in order to benefit from the legislation. The act also contains many other limitations, including the requirement that the applicant be of "good moral character," although many of these requirements are left undefined by the text of the act. However, critics have argued that this lack of definition gives the legislation the potential to have too broad of an effect. The legislation's "waiver" provision is also seen as one of multiple legislative "loopholes" within the act.

In addition to meeting these standards, the act also imposes a number of procedural standards, including a charge of $525 per application and any other necessary fees. Applicants also must submit data to be used in conducting background checks and medical examinations. Thus, supporters of the bill argue, the stringent standards will eliminate any possibility of admitting those who may be a threat to national security.

The DREAM Act's provision of public education funding for undocumented immigrants has been one of the more controversial aspects of the bill. An alien who is granted conditional non-immigrant status, or lawful permanent resident status, would become eligible for certain limited federal education assistance, including student loan programs and work-study programs.

State Reactions

States have begun implementing their own immigrations laws, in light of the failure to pass federal legislation. In 2001, Texas enacted the first law in response to federal restrictions on undocumented student access to in-state tuition, enabling certain immigrant students to obtain "residency" for the purpose of obtaining eligibility for in-state tuition in the state's public universities. By 2010, 10 states allowed undocumented students to qualify for in-state tuition. The Supreme Court has rejected challenges to the validity of statutes granting undocumented students residency for the purpose of in-state tuition rates. The Supreme Court of California upheld the state's version of the legislation finding that because it was not based on formal legal residency it did not violate any federal provision. The US Supreme Court denied certiorari in the case, Martinez v. Regents of the University of California. Maryland and New York also introduced legislation that would permit undocumented immigrants to pay in-state tuition.

Other states, like South Carolina, have passed legislation banning undocumented students from attending its public universities. Similar legislation has been passed in Mississippi, Georgia and Arizona.

JURIST Guest Columnist Victor Romero of Pennsylvania State University Dickinson School of Law argues that these state laws cannot possibly capture the nuances of the federal system:

[W]hile these state laws purport to rely on existing federal immigration laws, they cannot possibly capture the nuance and complexity of such laws, especially as applied to individual cases. A state trespass law based on one's federal undocumented status may well end up complicating matters rather than simplifying them, given state officers' unfamiliarity with immigration law. And if every state passes a slightly different trespass law, with different state law enforcement officers struggling to enforce it fairly, we may find ourselves in an even more complicated situation than we have currently.
Although federal law may be necessary to resolve the issue, comprehensive immigration reform has yet to reach the federal level.

Enforcement Policies

Under President George W. Bush, significant structural changes were made to US immigration enforcement and deportation procedures. In March 2003, the US Department of Homeland Security (DHS) assumed responsibility for the enforcement of US immigration laws from Immigration and Natural Services (INS) through the creation of Immigration and Customs Enforcement (ICE).

Although initial investigations of alleged immigration violations are under the purview of DHS, the Department of Justice (DOJ) Executive Office for Immigration Review (EOIR) is responsible for adjudicating all such cases. The EOIR is responsible for determining if defendants should be removed from the US or permitted to remain. The immigration courts handling these cases are composed of over 2,400 judges in 59 Immigration Courts across the country. Removal proceedings begin when DHS serves an individual with a charging document, requiring them to appear before an EOIR immigration court. After a hearing is scheduled, a DHS attorney argues on behalf of the government and defendants are provided the opportunity to present representation at their own expense.

Immigration courts also hear a variety of other proceedings, including asylum hearings, claimed status reviews and credible fear hearings. Any initial immigration ruling is subject to appeal before the Board of Immigration Appeals (BIA). BIA rulings may also be appealed before the appropriate federal court of appeals. However, if any court determines that an individual should be removed from the US, the DHS is responsible for effecting removal.

Bush Administration Policy

As a former Texas governor, President George W. Bush made immigration reform a major issue during his election campaign in 2000 and, once in office, focused federal policies on border security, temporary worker programs and citizenship application reform. During his presidency, deportations averaged 200,000 annually. In August 2004, the Bush administration announced new deportation policies that expanded the scope of "expedited removal" proceedings and circumvented portions of the hearing procedures. A statement issued by DHS explained the rationale behind the "expedited removal" policy:

When a person is apprehended and placed in expedited removal proceedings by a Border Patrol agent, he or she generally will be detained and removed to his or her country of origin as soon as circumstances allow. They will not be released into the U.S. in most cases, and is not provided a hearing before an Immigration Judge unless he or she is determined to have a credible fear of return to his or her country.

Any person who expresses an intention to apply for asylum, or a fear of persecution or torture, or a fear of return to his or her home country will be referred to a U.S. Citizenship and Immigration Services (CIS) asylum officer for a "credible fear" interview. If the person is found to have a credible fear, he or she will be removed from the expedited removal process and may seek protection in a removal hearing before an Immigration Judge.

Previously the policy was only available in the cases of individuals caught illegally trying to enter the country at airports and border checkpoints. The policy change altered the policy to include undocumented immigrants caught anywhere within 100 miles of the border who have been in the US for 14 days or less.

During his second term of office, Bush requested over $410 million to bolster DHS deportation efforts. DHS Inspector General Richard Skinner claimed that the DHS needed additional funding in order to better implement the "catch and return" policy for dangerous undocumented immigrants. Following this, and other immigration policy changes, the US Commission on International Religious Freedom (CIRF) conducted an investigation and recommended changes. In February 2007 they criticized the policies of the Bush administration, particularly the expansion of "expedited removal," for "[placing] vulnerable asylum seekers at risk."

During the last year of the Bush administration, DHS attempted to implement "Operation Scheduled Departure." The program was to begin in five cities and would allow immigrants with outstanding removal orders to report to ICE to make arrangements to voluntarily leave the US. The program allowed individuals up to 90 days to make arrangements before leaving. However, the program was seen as a failure after only 8 people volunteered to participate and it was suspended indefinitely in August 2008. JURIST Guest Columnnist Michele Waslin argued in 2008 that the failure of Operation Scheduled Departure underscored the larger shortcomings of US immigration policy:

The failure of Operation Scheduled Departure serves to highlight the realities of our broken immigration system. The U.S. cannot expect to deport its way out of its current problems, and it cannot expect immigrants to simply choose to leave.

Obama Administration Policy

President Obama entered office on a platform of comprehensive immigration reform, including a path to legalization for undocumented workers. However, in the face of a divided Congress, President Obama has primarily chosen to use discretionary powers through DHS to reform deportation and immigration policy. Exercising prosecutorial discretion, the administration has focused its deportation enforcement efforts on convicted criminals. A June 2011 memo from ICE Director John Morton outlined some of the policy differences between Bush and Obama administration enforcement policies. Under President Obama, the ICE considers criminal backgrounds, the department considers many factors such as an individual health, military service, total time in the US, ties to the community and likelihood of successful deportation in evaluating individual cases. Despite focusing its enforcement efforts on undocumented immigrants with criminal backgrounds, deportations have increased annually at an average of seven percent under President Obama. Between September 2010 and September 2011, over 400,000 individuals were deported.

Beginning in 2012, the President Obama administration introduced a new test program in Colorado. They ordered an extensive docket review for the approximately 7,900 cases currently before the Colorado immigration courts. At least 1,300 were identified as posing no risk and will be allowed to remain in the US. If similar proceedings occurred nationwide, an estimated 39,000 immigration cases could be closed.

On June 15, 2012, the Obama administration announced that the Department of Homeland Security would stop deporting young undocumented immigrants that came to the US as young children. Shortly after the announcement, Iowa Congressman Steve King issued a statement that he plans to sue the Obama administration in order to delay the implementation of this policy. Mississippi Governor Phil Bryant joined this lawsuit challenging the policy directive. On June 20, 2012, Congressman Ben Quayle introduced a bill designed to block enforcement of the policy.

In the wake of DOJ criticism of immigration courts' inefficiency as well as President Obama's reelection, eight US Senators from both parties revealed a plan for comprehensive immigration reform in January 2013. The plan [PDF] rests on four "pillars": creating a path to citizenship for undocumented immigrants, reforming the existing immigration system in order to ease the way for immigrants who would bolster the US economy or are joining families in the US, creating a new employment verification system in order to check immigration status, and allowing immigrants to legally imigrate to the US for low-skilled labor if it is available and American workers have refused the work.

In April 2013, a bipartisan Senate group announced that they had settled disputes between labor and business and agreed upon a plan for immigration reform. The plan was unveiled in the form of an immigration reform bill introduced in the Senate that would remove the threat of deportation for millions of immigrants living in the US and create a path to citizenship for undocumented immigrants. The Senate passed an immigration reform bill in June 2013.


Timeline

6/28/2013: Federal appeals court affirmed city law denying housing to undocumented immigrants

6/27/2013: US Senate approved immigration reform bill

6/18/2013: Ninth Circuit upheld Arizona law denying bail for undocumented immigrants

6/10/2013: ACLU challenged Nebraska order denying driver's licenses to certain immigrants

6/6/2013: Arizona judge refused to reconsider order denying driver's licenses to immigrants

5/30/2013: ACLU challenged US deportation practices

5/30/2013: Connecticut senate approved driver's licenses for undocumented immigrants

 ...[more]

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