JURIST Guest Columnist Azadeh Shahshahani National Security/Immigrant Rights’ Project Director of the American Civil Liberties Union of Georgia says that the unchecked power of the Immigration Enforcement Review Board set up by House Bill 87 is cause for great concern …

Last week, the American Civil Liberties Union Foundation of Georgia (ACLUGA) was joined by more than a dozen organizations in issuing a letter [PDF] to Immigration Enforcement Review Board (the Board) Chairman Benjamin J. Vinson, laying out concerns with how the Board may apply the powers granted to it in the case of Michael Dale Smith v. City of Vidalia.

The Board was set up by the Illegal Immigration Reform and Enforcement Act, commonly known as House Bill 87 (HB 87), to investigate complaints against public agencies or employees pertaining to violations of or failure to “properly enforce” provisions of HB 87 among other Georgia laws and to impose penalties, including $1,000-$5,000 fines and loss of state funding.

There are serious concerns about the extent of the powers granted to the Board. For one thing, there is no clear and objective standard for the issuance of subpoenas within the Board’s rules, or any clear processes for appealing the issuance of a subpoena or obtaining a remedy for an inappropriately issued subpoena. The ability of the Board — a non-judicial, non-elected body — to compel attendance and testimony based solely on the request of a private citizen under the unclear standard of “good cause shown” allows for personal agendas to result in subpoenas.

The Board’s rules [PDF] also set it apart from the time-tested system of governmental checks and balances. There is no mechanism for reviewing the Board’s final determinations to strip funding from public entities or levy fines against individuals and employers. This potential application of the Board’s unchecked power is particularly concerning in the instant case.

On June 29, 2012, the Board conducted a meeting in part to discuss a complaint Smith reportedly filed with the Board on March 5, 2012, alleging that Vidalia was a “sanctuary city.” Smith requested that the Board review and enforce the anti-sanctuary law enacted in 2009 against Vidalia’s alleged “catch-and-release” immigration policies. Smith has alleged that businesses in Vidalia are acting in conjunction with the city to provide sanctuary to the undocumented immigrant workforce. He has alleged that catch-and-release incidents have occurred from 2006 until the present and he specifically mentioned the private company Lark Industries as an alleged offender. Counsel for the city of Vidalia has reportedly responded to a letter from the Board denying it is a sanctuary city and stating that it has never adopted or enforced any sanctuary policies.

Despite concerns expressed by members of the Board, it unanimously voted to create the Vidalia review panel to complete a preliminary investigation.

As the ACLUGA emphasized in our letter, despite Smith’s allegations concerning Lark Industries and other businesses within the city of Vidalia, any investigation this review panel conducts must be restricted to public entities. The ACLUGA also requested an explanation as to what authority the review panel possesses to investigate alleged violations of Georgia immigration laws that are said to have occurred before the creation of the Board. Additionally, we have also sought clarification regarding what authority the Board possesses to potentially issue sanctions for violations that are found to have occurred prior to the Board’s creation.

The ACLUGA also questioned why a review panel was created to investigate Smith’s accusations against Vidalia in the first place when Board members have described his complaint as “vague” and lacking in important specific details such as names, dates and locations. We asked for clarification as to how Smith’s complaint actually met the prima facie standard that the Board’s rules require before a complaint may be considered by the Board.

Following Vidalia’s denial as to the existence of city sanctuary policies, Vinson again contacted Smith and asked him to produce any other documentation of a sanctuary policy. Smith’s reply, in Vinson’s words, was to “essentially [ask] us to investigate and find it.” Smith is in effect requesting that the Board procure the evidence that would prove his accusations correct.

If Smith’s nameless, dateless and location-free complaint is considered by the Board to have constituted the “sufficient facts” necessary to establish a prima facie threshold, then the said standard of consideration leaves the Board’s complaint process ripe for abuse and misuse by any persons who desire to accuse public agencies and employees as they please without fulfilling any burden of proof. To attain the attention and public-funded resources of a body such as the Board, a complainant must do more than merely accuse without greater specificity.

It is of great concern that, following the Smith decision, the Board has authorized its complaint process to amount to what is essentially a fishing expedition. It must immediately stop spending public resources on this unnecessary and wasteful venture. The governor and the legislature must also establish checks and balances for this body — otherwise we are likely to see abuses of power committed at public’s expense.

Azadeh Shahshahani focuses her work on Georgia’s compliance with international human rights and constitutional standards. Recently, she was elected President of the National Lawyers Guild and is one of the Founders of Human Rights Atlanta.

Suggested citation: Azadeh Shahshahani, Unchecked Power Granted by House Bill 87, JURIST – Hotline, Aug. 10, 2012, http://jurist.org/hotline/2012/08/azadeh-shahshahani-hb87-immigration.php.