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 Post subject: Legislation in other states: IRLI's January Bulletin
PostPosted: Wed Feb 06, 2008 10:54 pm 
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Immigration Reform Law Institute
Sharma Hammond, Esq.
Editor
Issue No. 10, January 2008

In This Issue
• Behind the Headlines
• New Bills
• Local Legislation
• IRLI Tip of the Month

 Behind the Headlines

Maryland's Two-tiered License Contortions
On January 12, Governor O'Malley proposed a plan for a two-tiered driver's license system. Maryland is
one of seven states that issues driver's licenses to illegal aliens, by allowing them to waive the social
security number requirement imposed on citizens and legal residents. The Governor's plan would have
included a non-REAL ID driver's certificate for illegal aliens (see 1/12/08 Washington Post article). New
York Governor Eliot Spitzer abandoned a similar two-tier plan in 2007 after vociferous public
opposition erupted (see October Bulletin for details on New York's plan and the legality of this type of
proposal).
However, days later, Secretary Chertoff issued the final REAL ID Act regulations. On January 18, Gov.
O'Malley suddenly directed Maryland transportation officials to comply with federal law by devising a
secure, federally recognizable license that would be accepted as identification to board planes or enter
government buildings. "We should not allow Maryland to become an island virtually alone on the East
Coast" by not requiring proof of legal residence for licenses, O'Malley said. Internal feuding among
Maryland's governing Democrats illustrates the dilemma that an official attempt at passive resistance to
immigration law creates. The Governor's two-tier plan was first attacked by prominent illegal alien
lobbyist Delegate Ana Sol Gutierrez (D) as "a scarlet letter" that authorized local police to "call federal
immigration authorities." After the plan was rescinded, Del. Gutierrez accused the Governor of
"betrayal" and promised to sabotage the state's deficit reduction plan in retaliation.

Michigan Driver's License Opinion Excludes Aliens as State Residents
Attorney General Mike Cox issued an important Opinion on December 27, 2007, concluding that illegal
aliens cannot be considered legal residents of Michigan for purposes of driver's license eligibility
because of their unlawful presence under federal immigration law. "Michigan law must be interpreted
against that background of federal law when considering questions involving aliens. It would be
inconsistent with that body of law to find that a person in this country illegally, who has not secured
permanent alien status from the federal government, can be regarded as a permanent resident in
Michigan." Opinion No. 7210
.
IRLI Legislation Bulletin • Page 2 • January 2008

IRLI has advised legislators and immigration group leaders for a number of years that this federal
doctrine, best stated in the 1982 Supreme Court case Toll v. Moreno ( 458 U.S. 1), preempts any state or
local law which deems illegal aliens to be permanent state residents for any legal purpose.
Michigan was one of the seven states without a legal presence requirement, although their statute clearly
stated "non-residents" were not eligible for licenses. The opinion noted that Michigan had not previously
excluded illegal aliens from license eligibility out of concern for a possible equal protection dispute.
However, Attorney General Cox has now provided public officials a model analysis of how changing
imperatives of national security and evolving state and federal laws means that Michigan can no longer
ignore the federal bar to illegal alien claims of permanent state residence.

Oklahoma HB 1804/New Lawsuit Filed
HB 1804 has received national attention as a model omnibus state approach to targeting illegal
immigration problems (see discussion in May Bulletin). IRLI assisted in drafting this successful
legislation, with particular attention to legal challenges from the immigration bar. Pre-implementation
challenges in federal court by anonymous illegal aliens, their religious leaders, and their employers were
dismissed because of lack of standing. Federal district judge James Payne noted that illegal aliens could
not bring a facial constitutional challenge to a state statute when they openly refused to comply with
federal immigration law.

A second taxpayer lawsuit was filed early January, claiming that the state law unlawfully expends public
funds to regulate immigration (see 1/3/08 Tulsa World ). IRLI believes the plaintiffs, like many
Americans, misunderstand the fundamental legal difference between determining the terms under which
an alien is admitted to the United States, and cooperating at the state level to ensure that laws essential to
national sovereignty are not sabotaged by corruption or "neo-confederate" open resistance at the state
and local level.

Virginia Legislature Introducing Record Number of Bills
IRLI is pleased to focus the January Bulletin on a special overview of this remarkable surge of
cooperative enforcement legislation of in Virginia.
Virginia legislators intend to introduce over 100 bills targeting illegal immigration (see 1/11/08
Washington Times article). Illegal immigration has moved to center stage in the state legislature in part
due to the intense public response to the recent enactment of an anti-sanctuary and public benefits
verification ordinance in suburban Prince William County. (see October Bulletin). This activity, while
fanned by election-year politics, is strong evidence that principled action even at the local level will not
only bring local relief, but is an powerful tool to motivate more comprehensive action at the state, and
ultimately the national level.
However, the representative measures featured in this Bulletin also illustrate how failure to submit state
legislation to careful preemption review can leave language that is both unnecessary and unconstitutional
in the proposed measure.

IRLI Legislation Bulletin • Page 3 • January 2008

 New Bills

VA HB 440
HB 440 would enact the IRLI concept of a rebuttable presumption against permitting bail to an illegal
alien who would be subject to deportation. Similar bills introduced in Virginia also prohibit illegal aliens
from receiving bail; however they fail to treat the denial of bail as a rebuttable presumption.
IRLI believes that state and federal habeas corpus protections make an absolute denial of bail improper.
However, it is both constitutional and practical for state officials imperative to deem this presumption
rebuttable to protect those with lawful status. The rebuttable presumption concept was included in
Oklahoma HB 1804 and is being implemented in that state.

Cooperative Local-Federal Enforcement Agreements
VA SB 433

SB 433 requires the Governor to enter into a memorandum of agreement with the Department of
Homeland Security to implement a cooperative agreement between the local officers and federal
immigration officers. States who voluntarily execute these agreements obtain important federal legal
protections for their officers authorized by 8 U.S.C. §1357(g) (see July Bulletin for details).

Correctional Facilities
VA HB 103

HB 103 mandates that every correctional facility shall inquire into a person's lawful status and verify this
status with the Immigration and Customs Enforcement (ICE). This information shall be reported to the
state Central Criminal Records Exchange. State Delegate David Albo, the measure's sponsor, has been a
pioneer in enacting carefully written state enforcement laws that have become models nationwide,
beginning with the 2002 lawful presence test for driver's licenses.

Driver's Licenses
VA HB 186

HB 186, authored by Delegate R.G. Marshall, would further narrow Delegate Albo's requirement of
submission of proof of citizenship prior to issuance of a driver's license. IRLI believes it is crucial to
enact similar measures. The Real ID Act requires verification of immigration status when obtaining an
identification card (see October Bulletin for further information).

Education
VA SB 434

SB 434 duplicates the federal statute that provides that illegal aliens are not eligible for any post
secondary education benefits (including in-state tuition and financial aid) unless the same benefits are
provided to all citizens or nationals regardless of their residency (see 8 U.S.C. §1623). South Carolina
(SB 4387) and Ohio (HB 308) have introduced similar bills.

IRLI Legislation Bulletin • Page 4 • January 2008

Employment Discrimination
VA HB 1249

HB 1249, sponsored by Delegate Hugo, would enact the anti-citizenship discrimination legislation
drafted by IRLI (for Oklahoma) into Virginia law. HB 1249 makes in an unfair employment practice to
replace an authorized worker with an unauthorized alien. The bill creates a private right of action for the
aggrieved legal worker, and creates a safe harbor for employers who use the E-Verify (Basic Pilot)
online system. (see September and November Bulletins for details on employment discrimination and
unfair employment practices).

Employers
VA HB 1047

HB 1047 sanctions employers and labor organizations who continue to employ or refer for employment
an alien without eligibility documents, and expands the unlawful act to include false representation that
the alien has employment authorization documents. The penalty provision, which imposes a $100 civil
penalty per each day of violation, as well as criminal liability for a Class 1 misdemeanor, includes a
common flaw which would invalidate the measure if enacted. Federal law prohibits the imposition of
state criminal or civil sanctions on employers, except through "licensing and similar laws." 8 U.S.C.
1324(a)(h)(2). Federal law would not cause a conflict if the sanctions were imposed on the illegal alien.

VA SB 90
SB 90 would amend the same statute as HB 1047, but through language that is more consistent with
federal law and far more sweeping in scope. SB 90 would require all employers and labor organizations
statewide to verify work authorization through the E-Verify program for all employees, after the
acceptance of an employment offer, but before the new hire or referral begins work. Violation of the
statute would remain a class 1 misdemeanor.

VA HB 227
HB 227 provides that a contractor shall submit a statement that the contractor: (1) will not knowingly
employ an undocumented worker and (2) will continue to verify the lawful status of all employees using
the E-Verify program.

Fraudulent Documents
VA HB 45

HB 45 provides that an individual who "fraudulently assists" an illegal immigrant "in acquiring or
attempting to acquire a benefit, service, status, or privilege to which the illegal alien is not lawfully
entitled" can be charged with a Class 1 misdemeanor. Florida just introduced a similar bill (SB 1364)
which would classify such an offense as a felony.

Public Benefits
VA HB 1026

HB 1026 would penalize local governments that fail to comply with Virginia law. Virginia law mandates
use of the Systematic Alien Verification for Entitlements (SAVE) system which would verify legal
presence of an individual applying for state or locally administered public benefits. The penalty would
be heavy, a denial of all funding allocated to the local jurisdiction under the general appropriations bill.

IRLI Legislation Bulletin • Page 5 • January 2008

Sanctuary Policies
VA HB 367

HB 367, sponsored by Delegate Carrico, prohibits a local governing body from adopting a policy that
attempts to protect illegal immigrants from detection and removal by federal authorities. The entire bill
reads:
"No governing body shall adopt a policy, and no locality shall follow a policy, whether explicitly or
implicitly, that serves to protect undocumented immigrants from deportation. Furthermore, no locality
shall prohibit its employees from asking a person about his immigration status."
While the intent of the bill is apparent to the general reader, several common flaws appear to the
specialist: the text synopsizes express federal anti-sanctuary language in 8 U.S.C. §§1373 and 1644,
instead of carefully reproducing the controlling federal language, as did the Prince William County
ordinance in its Ordinance. For example, "to protect undocumented immigrants from deportation" is
undefined, and the bill uses the casual and non-federal term "undocumented immigrants." Furthermore,
the bill refers to "deportation" instead or "removal." Since 1996, deportation only applies to legal aliens
who have violated the terms of their visas, not aliens who entered the U.S. without inspection. Also,
there is no mention of any enforcement procedure or remedy, an omission which will ensure wasteful
litigation, should the bill become law.

Transporting/Concealing
VA HB 1248

HB 1248 adds a new code section 18.2-201.1, making transporting an alien as part of a commercial
enterprise or harboring an illegal alien a Class 6 felony. The provision is a narrower version of
Oklahoma HB 1804. Missouri has introduced a similar provision to penalize transporting illegal aliens as
a felony (HB 1346).

Local Legislation
Danbury, Connecticut

The council voted to implement a 287(g) agreement between the local law enforcement and federal
immigration officials (see 1/15/08 The Advocate article).

Evanston, Illinois
Evanston proposed introducing an ordinance that would prohibit city officials from inquiring into
immigration status. Essentially, this resolution provides that this city shall become a "sanctuary city"
(see December Bulletin analysis of sanctuary ordinances).

Farmers Branch, Texas
The city council of Farmers Branch passed an ordinance requiring the verification of a tenant's lawful
status. Prospective tenants would be required to obtain a license. The city building inspector would then
verify the applicant's lawful status (see 1/24/08 Associate Press article). This new approach follows
IRLI's model adapted from the Hazelton, Penn. ordinance.

IRLI Legislation Bulletin • Page 6 • January 2008

Mount Rainier, Maryland
Mount Rainier is likely to adopt an ordinance making this city a sanctuary city. The city council will
vote on this ordinance on February 12th (see 1/20/08 Washington Post article). The ordinance would
prohibit officers from inquiring into lawful status and would prevent communication with federal
immigration officials. IRLI believes this is a clear violation of 8 U.S.C. §§1373 and 1644, which provide
that no government officials shall be prevented from contacting or communicating with federal
immigration officials regarding a person's lawful status.

IRLI Tip of the Month
Communication with Federal Immigration Authorities

It is unlawful for states or localities to prevent communication with federal immigration authorities.
Pursuant to 8 U.S.C. §§1373 and 1644, no state or local government may be prohibited, or in any way
restricted, from sending to or receiving from the Immigration and Naturalization Service (now the
Immigration and Customs Enforcement) information regarding the lawful or unlawful status of an alien
in the United States.
The United States Court of Appeals for the Second Circuit upheld the validity of these two sections. The
City of New York v. The United States of America 179 F.3d 29 (1999). In this case, the New York
Mayor enacted an Executive Order that prohibited an officer or employee from transmitting information
regarding an individual's lawful status to the federal immigration authorities. Id. at 31-32. The appellate
court affirmed the lower court's upholding of the facial constitutionality of these two federal statutes.
The court concluded that Congress has plenary power to legislate on the subject of aliens. Furthermore,
regulation of aliens is so intimately intertwined with responsibilities of the national government that
federal policy in this area always takes precedence over state policy. Id. at 34.
Although these statutes have been upheld, state and local governments continue to enact ordinances or
legislation to prevent state/local officials from contacting federal immigration authorities regarding an
immigrant's lawful status. IRLI believes litigation against one of these violating cities could be feasible
since an individual might be harmed by this prohibition. Please contact IRLI if you think have been
harmed by one of these policies.

IRLI is a public interest law firm that provides technical legislative and legal defense services to
assist state and local jurisdictions draft and defend laws that are worded appropriately, protect
principles of federalism and the liberties of citizens, and respect the constitutional rights of all. Until
the federal government effectively enforces our immigration laws, it is in citizens' best interest that
states and cities play an active and cooperative role. IRLI is a nonpartisan 501(c)(3) educational
charity. Donations to support IRLI's legal advocacy work are tax-deductible as permitted by law.


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