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Tuesday, October 5, 2010

State Efforts to Deter Unauthorized Aliens: Legal Analysis of Arizona’s S.B. 1070

Kate M. Manuel
Legislative Attorney

Michael John Garcia
Legislative Attorney

Larry M. Eig
Specialist in American Public Law

On April 23, 2010, Arizona enacted S.B. 1070, which is designed to discourage and deter the entry or presence of aliens who lack lawful status under federal immigration law. Potentially sweeping in effect, the measure requires state and local law enforcement officials to facilitate the detection of unauthorized aliens in their daily enforcement activities. The measure also establishes criminal penalties under state law, in addition to those already imposed under federal law, for alien smuggling offenses and failure to carry or complete alien registration documents. Further, it makes it a crime under Arizona law for an unauthorized alien to apply for or perform work in the state, either as an employee or an independent contractor.

The enactment of S.B. 1070 has sparked significant legal and policy debate. Supporters argue that federal enforcement of immigration law has not adequately deterred the migration of unauthorized aliens into Arizona, and that state action is both necessary and appropriate to combat the negative effects of unauthorized immigration. Opponents argue, among other things, that S.B. 1070 will be expensive and disruptive, will be susceptible to uneven application, and can undermine community policing by discouraging cooperation with state and local law enforcement. In part to respond to these concerns, the Arizona State Legislature modified S.B. 1070 on April 30, 2010, through the approval of H.B. 2162.

Whenever states enact laws or adopt policies to affect the entry or stay of noncitizens, including aliens present in the United States without legal authorization, questions can arise whether Congress has preempted their implementation. For instance, Congress may pass a law to preempt state law expressly. Further, especially in areas of strong federal interest, as evidenced by broad congressional regulation and direct federal enforcement, state law may be found to be preempted implicitly. Analyzing implicit preemption issues can often be difficult in the abstract. Prior to actual implementation, it might be hard to assess whether state law impermissibly frustrates federal regulation. Nevertheless, authority under S.B. 1070, as originally adopted, for law enforcement personnel to investigate the immigration status of any individual with whom they have “lawful contact,” upon reasonable suspicion of unlawful presence, could plausibly have been interpreted to call for an unprecedented level of state immigration enforcement as part of routine policing. H.B. 2162, however, has limited this investigative authority.

Provisions in S.B. 1070 criminalizing certain immigration-related conduct also may be subject to preemption challenges. The legal vulnerability of these provisions may depend on their relationship to traditional state police powers and potential frustration of uniform national immigration policies, among other factors. In addition to preemption issues, S.B. 1070 arguably might raise other constitutional considerations, including issues associated with racial profiling. Assessing these potential legal issues may be difficult before there is evidence of how S.B. 1070, as modified, is implemented and applied in practice.

S.B. 1070, as amended, was scheduled to go into effect on July 29, 2010. However, the U.S. Department of Justice filed suit seeking to preliminarily enjoin the enforcement of certain sections of S.B. 1070 on the grounds that they are preempted. On July 28, 2010, a federal district court enjoined Arizona from enforcing those provisions of S.B. 1070 pertaining to immigration status determinations during lawful stops, detentions, or arrests; failure to apply for or carry alien registration papers; the solicitation or performance of work by unauthorized aliens; and warrantless arrests for certain public offenses. Enforcement of other provisions of S.B. 1070 was not enjoined. Arizona has appealed the district court’s decision. 

Date of Report: September 14, 2010
Number of Pages: 34
Order Number: R41221
Price: $29.95

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Monday, October 4, 2010

Unauthorized Alien Students: Issues and “DREAM Act” Legislation

Andorra Bruno
Specialist in Immigration Policy

Supporters of comprehensive immigration reform have urged the President and Congress to pursue reform legislation. While legislative action on comprehensive reform does not appear likely during the remainder of the 111th Congress, there may be an effort to enact a measure, commonly referred to as the “DREAM Act,” to enable certain unauthorized alien students to legalize their status.

Unauthorized aliens in the United States are able to receive free public education through high school. They may experience difficulty obtaining higher education, however, for several reasons. Among these reasons is a provision enacted in 1996 that prohibits states from granting unauthorized aliens certain postsecondary educational benefits on the basis of state residence, unless equal benefits are made available to all U.S. citizens. This prohibition is commonly understood to apply to the granting of “in-state” residency status for tuition purposes. Unauthorized alien students also are not eligible for federal student financial aid. More broadly, as unauthorized aliens, they are not legally allowed to work and are subject to being removed from the country.

Multiple bills have been introduced in recent Congresses to address the unauthorized student population. Most have proposed a two-prong approach of repealing the 1996 provision and enabling some unauthorized alien students to become U.S. legal permanent residents (LPRs) through an immigration procedure known as cancellation of removal. Bills proposing this type of relief for unauthorized students are commonly referred to as the DREAM Act. While there are other options for dealing with this population, this report deals exclusively with the DREAM Act approach in light of the widespread congressional interest in it.

Two similar stand-alone DREAM Act bills have been introduced in the 111
th Congress (S. 729 and H.R. 1751). Like most DREAM Act bills introduced in prior Congresses, these measures would repeal the 1996 provision and enable eligible unauthorized students to adjust to LPR status through a two-stage process. Aliens granted cancellation of removal under the bills would be adjusted initially to conditional permanent resident status. To have the condition removed and become full-fledged LPRs, the aliens would need to meet additional requirements.

Date of Report: September 22, 2010
Number of Pages: 16
Order Number: RL33863
Price: $29.95

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