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In the United States, most immigration decisions impacting noncitizens are made by immigration officials in informal proceedings far from a courtroom. While the right to an attorney (at the noncitizens’ own expense) in immigration court proceedings is widely recognized, the right to counsel in administrative settings outside of a courtroom is often overlooked or explicitly not recognized. As a result, many noncitizens are forced to navigate the immigration process alone. For those noncitizens that are represented, the Department of Homeland Security (DHS) often restricts their access to their lawyers.

Without the assistance of an attorney well-versed in immigration law, noncitizens often lack the specialized knowledge needed to obtain a just outcome. And, given the serious consequences that can flow from DHS proceedings, the importance of meaningful access to counsel cannot be overstated. For example, a CBP official can quickly remove an individual from the United States without a hearing through “expedited removal,” based solely on information gathered during an inspection at the border. Questioning by ICE can lead to arrest, detention, initiation of removal proceedings, or removal. USCIS officers have the power to decide whether an applicant is entitled to lawful permanent residence, asylum, or naturalization based on statements made in an interview.

Over the past year, the American Immigration Council, along with the American Immigration Lawyers Association (AILA), has documented instances where the DHS immigration agencies—Customs and Border Protection (CBP), Immigration and Customs Enforcement (ICE), and U.S. Citizenship and Immigration Services (USCIS)—have deprived noncitizens of access to counsel. For example, ICE also has taken the position that there is no right to consult with a lawyer during an interrogation. Likewise, many CBP offices outright deny access to all lawyers.

The restrictions USCIS imposes generally have been less severe, but have included limitations on communication during interviews, such as restricting where a lawyer may sit during an interview, preventing lawyers from submitting documents relevant to their client’s case during an interview, and conducting interviews without an attorney present. And we have heard about situations before all three agencies, where officials actively discourage noncitizens from hiring lawyers or appearing with their lawyers in immigration proceedings.

In response to calls from the American Immigration Council, AILA and other advocates last week, USCIS issued immediate changes to its policies to help ensure a meaningful role for lawyers in the immigration process. There is, however, still much to be done.

The new guidance responds to some access concerns. For example, it provides that a lawyer generally may sit next to his or her client during an interview, may be permitted to submit relevant documents to the USCIS officer, and may raise objections to inappropriate lines of questioning. However, USCIS did not adopt all of the Council and AILA’s recommendations related to counsel, and limitations on communication remain.

While it remains to be seen how USCIS will implement its new guidance, USCIS’ adoption of certain recommendations by stakeholders and recognition of the importance of counsel in immigration proceedings is an important first step. ICE and CBP should take note of USCIS willingness to revisit its guidance regarding counsel and engage in similar dialogue with advocates and stakeholders.

Now is the time to offer comments to USCIS’ guidance with more detailed recommendations for improvements in noncitizens’ access to counsel.

Photo by Lane V. Erickson.

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As if people needed more proof that Alabama’s extreme anti-immigrant law, HB 56, is bad for the state, a federal judge temporarily blocked enforcement of yet another provision of the law this week. U.S. District Court Judge Myron Thompson temporarily enjoined enforcement of Section 30 that, as applied, requires mobile home owners to provide proof of lawful status before renewing their registration. Judge Thompson’s ruling, in which he calls Alabama’s law “discriminatorily based,” is the latest in a series of blows to the harsh law—a law that even Alabama’s own attorney general and governor find problematic.

Judge Thompson ruled Monday that enforcement of Section 30—as applied to the requirement that individuals must prove legal status in order to renew mobile home registration—violates the Fair Housing Act. The case involved two unauthorized immigrants who sued Alabama because they could neither register their mobile homes in the state nor drive their unlicensed homes out of the state. According to Judge Thompson, Section 30 left these men—and their U.S. citizen children—“between a rock and a hard place.”

“They face civil and crimi­nal liability for not paying their manufactured home tax, while simultaneously facing civil and criminal lia­bility if they attempt to re­move their homes from the state,” he wrote. “They can neither stay, nor can they go.”

In his ruling, Judge Thompson also commented that HB 56 is “discriminatorily based” given the difference in treatment of children in mixed-status homes and children in general. According to Judge Thompson, HB 56’s departs “from an established tradition in Ala­bama of assisting children regardless of their parents’ actions”—a difference he said is likely “driven by animus against Latinos.” Civil rights groups agree. The Southern Poverty Law Center, ACLU, and others lauded the judge’s ruling, which they say calls the law for what it is, “a race-based attack on Latinos and their ability to stay in their homes.”

In fact, a new report released by Human Rights Watch documents the widespread abuse or discrimination reported under the law. Alabama’s new law effectively “denies unauthorized immigrants and their families, including US citizen children, their basic rights, threatening their access to everyday necessities and equal protection of the law,” the report says.

Meanwhile, state leaders have been under fire from Alabama’s business community following the arrest of a visiting Mercedes executive and Honda employee under HB 56. In an about-face, Alabama Attorney General Luther Strange recently sent a letter to state lawmakers recommending they repeal problematic sections of HB 56. And just last week, Alabama Governor Robert Bentley announced that he would revise the law following a complaint by the Birmingham Business Alliance (BBA), the state’s largest business organization.

Yet, despite overwhelming concern that HB 56 is hurting state—complaints from farmers, business groups, and the American Federation of Teachers, court rulings, and acknowledgements from conservative lawmakers that this law needs to be changed—there are still those, like state Sen. Scott Beason, the bill’s sponsor, who believe Alabama is “moving in (the) right direction.”

Clearly, the voices of those being hurt by Alabama’s immigration law may need to get even louder before people like state Sen. Beason wake up and notice the large enforcement elephant sitting in Alabama’s living room.

Photo by zimmytws.

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Earlier today, the Supreme Court announced what many supporters and opponents of Arizona SB 1070 long expected: that the Justices will themselves have the final word on the validity of the injunctions entered shortly after the law was enacted last year. Technically, the question before the Justices is simply whether four of the law’s provisions should be temporarily blocked pending resolution of a larger legal challenge. In addition, the Court will not consider claims raised in a separate lawsuit by numerous immigrants’ and civil rights groups. But in the decision it ultimately issues, the Supreme Court may well provide broad guidance about what role, if any, local police may play in enforcing federal immigration law—which could in turn affect legal challenges to copycat laws in other states, such as Alabama.

How did the case get to the Supreme Court?

Soon after Arizona Gov. Jan Brewer signed SB 1070 into law, the federal government filed suit alleging its provisions conflicted with, and were thus “preempted” by, federal immigration law. A district judge in Phoenix entered a temporary injunction against four of the law’s provisions while permitting others to go into effect. A federal appeals court in San Francisco then upheld the injunction, causing Arizona to file a petition with the Supreme Court.

Which provisions of SB 1070 will the Supreme Court consider?

The Justices will evaluate the temporary injunctions against the following four provisions of SB 1070:

• Section 2(B), which requires local police officers to investigate the immigration status of any person they stop or detain whom they possess “reasonable suspicion” to believe is unlawfully present in the United States;
• Section 3, which makes it a crime under Arizona law for foreign nationals to fail to carry or apply for registration papers provided by the federal government;
• Section 5, which makes it a crime under Arizona law for immigrants to solicit, apply for, or perform work without federal employment authorization; and
• Section 6, which authorizes local police officers to arrest foreign nationals whom they have “probable cause” to believe have committed an offense making them deportable from the United States.

The Justices could vote to uphold or overturn the injunction against all, none, or some of the provisions.

When will the case be argued and decided?

The Supreme Court did not set a date for oral argument, though it will likely occur in March or April 2012. Regardless of when the case is argued, the decision, as always, is likely to come by the end of June 2012.

Why did Justice Kagan recuse herself from the case?

The order announcing the Supreme Court’s acceptance of the case also stated that Justice Kagan recused herself from the matter. While no specific reason was given, it is fair to assume she took part in internal discussions about the suit—which was filed shortly after her nomination to the Supreme Court—during her previous stint as Solicitor General. To prevail, the United States will likely need votes not only from Justice Kennedy, who is often a “swing” vote in controversial cases, but from one of the other four Republican nominees (Chief Justice Roberts, or Justices Scalia, Thomas, or Alito).

What happens if there is a 4-4 tie?

If the Justices split 4-4, the ruling of the Ninth Circuit would automatically be upheld—but would not create “precedent” or otherwise be binding on lower courts. As a result, the status quo would stay in place unless and until the Justices considered a separate challenge. However, if Justice Kennedy and the Court’s remaining Democratic nominees were to rule against Arizona, it would strongly suggest the federal government would win a case argued before all nine Justices.

If Arizona wins, will states have a “green light” to enact copycat laws?

Certainly not. At present, the Supreme Court is only considering whether the four provisions of SB 1070 should be temporarily blocked while the underlying legal challenge is resolved. In addition, the suit brought by the federal government involves a much narrower set of issues than a companion case brought by a coalition of immigrants’ rights groups. Finally, even if the Supreme Court finds the injunctions were not required against the law as written, it would not prevent future suits from challenging how the law is actually implemented.

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Thousands gathered outside the historic 16^th Street Baptist Church in Birmingham, Alabama yesterday to demand the repeal of the state’s harsh anti-immigration law, HB 56. Religious, community and civil rights leaders, as well as a special Congressional delegation, urged state legislators to bring an end to Alabama’s immigration law—a law which continues to slow state businesses, separate families and drive immigrants from the state. The Congressional delegation also held an ad hoc hearing at Birmingham City Hall to hear how the controversial law is effecting state residents, especially the Latino and immigrant communities where, according to Rep. Luis Gutierrez, “the feeling of danger and despair is palpable.” One Congressional member, Rep. Al Green of Texas, commented that the law “deserves to be placed on the trash heap of history.”

During yesterday’s hearing, Birmingham Mayor William Bell told 11 Congressional members that Alabama’s law “smacks of apartheid and Jim Crow laws,” places financial burdens on cities and could force police officers to employ racial profiling. Echoing the mayor’s economic concerns, Rep. Raul Grijalva of Arizona forewarned that much like Arizona’s SB1070, Alabama’s immigration law “is going to hurt the economy and the social fabric of the state.”

Many are concerned that the law is already jeopardizing foreign investments in the state. Just this week, Alabama police arrested a Mercedes-Benz executive for failure to produce proper documentation. Normally he would have just been issued a ticket, but since the passage of HB 56, police are now required to pursue those suspected of being in the country unlawfully. According to a Mercedes spokeswoman, the Mercedes-Benz executive was visiting from Germany to propose new business plans in Alabama. The German car manufacturer—which has a plant near Tuscaloosa—is Alabama’s largest international trading partner, generating more than 40,000 jobs for the state and $6.8 billion in economic output.

David Bronner, chief executive of the Retirement Systems of Alabama, worries that the law will prevent potential foreign businesses from investing in the state. Currently, there are more than 400 foreign-based businesses in Alabama, hailing from 30 countries. “Sometimes we forget in Alabama that when we label a group as a problem and when we paint the brush so broadly, we’ve included most of the world,” Bronner said.

Aside from the economic impact on state businesses, HB 56 is also effecting the lives of Alabama residents, both legal and unauthorized. During yesterday’s Congressional hearing, the Southern Poverty Law Center (SPLC) gave examples of how Alabama’s extreme anti-immigrant law has impacted folks in the state. Taken from a telephone hotline set up after the law’s passage, SPLC reported that:

• A victim of domestic violence went to court to obtain a protective order. The clerk told her that she’d be reported to ICE if she proceeded.
• Latino workers on a construction jobsite were threatened by a group of men with guns, who told them to go back to Mexico and threatened to kill them if they were there the following day. They declined to report the crime to law enforcement because of fears of what would happen to them if they did.
• In Madison County and in Decatur, the public utilities have announced that they will not provide water, gas, or sewage service to people who could not prove their status.

And those are only a few examples. HB 56 has also been widely criticized for its impact on Alabama schools, which reported a large absence of Latino students since the law’s passage.

This week, the National Education Association—along with the Alabama Education Association and National School Boards Association—filed a joint amicus brief this week challenging the law, which requires administrators to ask enrolling children about their legal status and that of their parents. The brief argued that Alabama’s law “will cause undocumented parents not to send their children to school and deprive them of their right to an education.” While that specific provision of HB 56 has been temporarily enjoined, the law runs counter to a Supreme Court ruling (Plyler v. Doe) which requires states to provide an education to all students regardless of immigration status. The U.S. Court of Appeals for the 11th Circuit will hear arguments on HB 56 in 2012.

Although Governor Robert Bentley has admitted the law “needs to be simplified,” Alabama legislators need to go a step further and consider the broader impact HB 56 is having on the state residents, businesses and communities. As critics made clear yesterday, the far-reaching impact of this anti-immigrant law is overwhelming.

Photo by OneFamilyOneAlabama.

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BY KAREN TUMLIN, MANAGING ATTORNEY, NATIONAL IMMIGRATION LAW CENTER

Yesterday, the U.S. Department of Justice (DOJ) filed suit against South Carolina, challenging the state’s extreme anti-immigration law (SB 20). With this action, the Department of Justice charges that South Carolina, like Arizona and Alabama, have passed unconstitutional immigration laws. Civil rights groups (including the National Immigration Law Center) agree. Coalitions have filed suit in five states—Utah, Indiana, Georgia, Alabama, and South Carolina—that passed their own Arizona-inspired laws in 2011. Fortunately, most of these states have seen their new, misguided laws lose much of their bite through civil rights coalition-led legal challenges. Here’s a round-up of the status of these legal cases.

South Carolina

Yesterday, the DOJ filed a legal challenge to SB 20, South Carolina’s draconian anti-immigrant law. South Carolina’s law is the latest state anti-immigrant measure to be challenged in court. A civil rights coalition, including my organization, filed its legal challenge in mid-October to stop the South Carolina law from bringing untold damage to South Carolinian individuals, families, and businesses. A hearing to determine whether the law should be blocked during the legal battle has been set for December 19, 2011. This will allow the court to issue a ruling on the requests to halt the law before the law’s scheduled effective date of January 1, 2012.

Alabama

Alabama has recently earned dubious distinction as home to the most anti-immigrant law in the country. Reports out of the state include the widespread harassment of Latinos; utility companies threatening to shut off water and sewage services for clients who couldn’t prove their immigration status; Latino children asked for their immigration papers at school; and members of the immigrant community reporting that they are afraid to contact the police—even as victims of crime.

Although the district court blocked some portions of Alabama’s law (HB 56), it allowed other provisions to take effect, including provisions blocked by other courts across the country. However, in the Alabama case, the 11th Circuit Court of Appeals took the unusual step of halting additional portions of the law pending appeal based on the harms that Alabamians were suffering from the short time the school verification and “papers, please” provisions were in effect. The U.S. Court of Appeals for the 11th Circuit will hear arguments in the case in 2012.

Georgia

Georgia’s anti-immigrant law (HB 87), which generated protests from business owners, communities of color, and faith and civil rights leaders, also was challenged by a civil rights coalition. Key provisions of this law, including provisions that would have criminalized transporting undocumented individuals, including family members, and allowed police to check immigration status of all individuals lawfully stopped, were blocked from going into effect. The state has appealed to the 11th Circuit Court of Appeals and argument is expected in 2012.

Indiana

Civil rights organizations quickly filed a legal challenge to stop key pieces of Indiana’s anti-immigrant law (SB 590) from going into effect. After a hearing, the court agreed with the civil rights coalition and blocked provisions of Indiana’s SB 1070 copycat legislation that outlawed use of consular-issued ID cards and allowed police officers to make warrantless arrests—two provisions that would undoubtedly have led to significant civil rights violations in the state. The defendants have decided not to appeal the court’s decision on the preliminary injunction, and the case is proceeding to consideration of a permanent injunction. Indianans can breathe a sigh of relief as these dangerous provisions will remain enjoined as the case moves forward to a final judgment.

Utah

With the passage of HB 497, Utah became the second state to pass an Arizona-inspired piece of legislation that targeted Utahans of color for discrimination. The law, which was signed on March 15, 2011, contains many of the same “show me your papers” provisions contained within the currently blocked Arizona law.

On May 3, the National Immigration Law Center, the American Civil Liberties Union, and the American Civil Liberties Union of Utah filed a class-action legal challenge to HB 497. Following a prompt hearing, the entire law was temporarily blocked, pending a hearing on the preliminary injunction request. That hearing to determine whether the law will remain blocked until the courts make a final determination of the law’s constitutionality has been set for December 2.

Arizona

The fight to permanently defeat Arizona’s SB 1070 is far from over. The state of Arizona has attempted to get the U.S. Supreme Court to hear a challenge to the preliminarily injunction blocking key portions of SB 1070 from taking effect. We are likely to find out in December 2011 whether the High Court will agree to hear the case. In the meantime, the civil rights coalition that challenged SB 1070 is moving forward to stop other portions of the law that were allowed to take effect. Just last week, the coalition filed a motion to preliminary enjoin the provisions in the law banning the hiring or solicitation of day labor in the state—provisions that violate basic First Amendment rights.

The Fight in 2012

Emboldened by Alabama’s current legal success, anti-immigrant legislators have vowed to use this draconian, racist law as a model in their own state houses as soon as state legislatures reconvene in 2012. What is happening today in Alabama could, sadly, be coming to a state near you. This is the time to let lawmakers know that these misguided attempts to terrify children, marginalize communities, and trample on sacrosanct constitutional rights will not be tolerated. While most courts faced with the legal questions surrounding these laws have resoundingly agreed that these laws fails constitutional muster, the ultimate battle will not be won in the court house. It will be won only by a steady and rising chorus of voices rejecting the politics of hate and division promoted by these laws.