By Muzaffar Chishti, Claire Bergeron, and Faye Hipsman
Migration Policy Institute
Arizona Governor Jan Brewer urged the Supreme Court to hear the SB 1070 case. She has said she is confident the court will rule in favor of the law.
December 15, 2011
The US Supreme Court announced on December 12 that it would review an appellate court's decision that halted implementation of several key provisions of the controversial Arizona immigration enforcement law, SB 1070. The high court's final ruling on the case will have profound impact in defining the boundaries of states' engagement in immigration enforcement.
The decision to accept the case for review comes just weeks after the US Department of Justice (DOJ), one of the parties in the case, filed a petition requesting that the court not accept it. It also comes less than two years after the enactment of SB 1070 — a period of time that is unusually brief for the Supreme Court to review a state law. In accepting the case for review, the court has made it clear that it is not shying away from taking on contentious public policy issues with significant political ramifications in an election year.
The court's newest member, Justice Elena Kagan, did not participate in the decision over whether to grant review of the SB 1070 case. This suggests that Justice Kagan will also recuse herself from deciding the outcome of the case, most likely because of her involvement in it during her prior job as the United States Solicitor General. Given that Justice Kagan is viewed as one of the court's more liberal members, supporters of the law hope her recusal will make it more likely that its constitutionality will be upheld. Her recusal also makes a tie vote at least theoretically possible, with four justices voting to uphold the lower court's decision and block implementation of SB 1070, and four justices voting to allow the law's implementation. Should this occur, the lower court's ruling would stand.
The Arizona law is best known for its controversial provision requiring state and local police officers to inquire into the immigration status of anyone stopped or arrested if an officer has "reasonable suspicion" that the individual is an unauthorized immigrant.
It has also led several other states to move toward passing similar legislation. Utah, Indiana, Georgia, Alabama, and South Carolina have enacted SB 1070-inspired immigration enforcement laws. Other states may be awaiting the outcome of the Arizona litigation before proceeding with similar legislation.
The Arizona legislature passed SB 1070 in April 2010. The goal of the law, as outlined in its first section, was to create a policy of "attrition through enforcement" for unauthorized immigrants in Arizona. To that end, the law contains a series of immigration enforcement measures designed to encourage unauthorized immigrants to leave the state. In addition to the provision on the questioning of immigration status by police officers, the law makes it a state crime for noncitizens to fail to comply with federal immigration registration requirements and for unauthorized immigrants to work. In addition, it allows Arizona residents to sue state and local agencies that prohibit their employees from participating in immigration enforcement.
In July 2010, Arizona District Court Judge Susan Bolton preliminarily blocked implementation of most of SB 1070's controversial provisions, emphasizing the law's potential to lead to the arrest and detention of lawful immigrants. The US Court of Appeals for the Ninth Circuit upheld Judge Bolton's decision in April 2011, reasoning that the law's provisions were likely preempted by federal laws.
Arizona then appealed to the Supreme Court, arguing that it was important for the court to resolve any uncertainty surrounding the constitutionality of state immigration enforcement measures since five other states have passed laws modeled after SB 1070. In further underscoring the importance of the case, a brief filed by Arizona highlighted that the Obama administration has brought lawsuits challenging the new immigration laws in all but two of the states that have enacted them.
For its part, DOJ argued that the Supreme Court's review of the Arizona case at this time would be premature because the case was only in its preliminary stage, and urged the court to rule on the case only after a final decision is issued following a full trial. The department also emphasized that, while a handful of states have passed immigration enforcement measures in the wake of SB 1070, the substance of those measures varies widely. As a result, DOJ argued, a decision by the court would not resolve the constitutionality of all of the states' immigration enforcement measures — just Arizona's.
Indeed, the potential effect of any SB 1070 ruling by the Supreme Court on other state-specific immigration enforcement measures remains largely unknown. While the Utah, Indiana, Georgia, Alabama, and South Carolina laws do bear a fair amount of resemblance to the Arizona law (and several of the laws mimic the "reasonable suspicion" language), there are also significant differences among them.
Unlike the other five state laws, for example, the Alabama law would require public schools to collect information on the immigration status of enrolled students (Alabama Attorney General Luther Strange has recommended to the governor that the Alabama law be changed to drop that provision, among other fixes. See State and Local Policy Beat in Brief, below). The Utah law would require the police to ask about immigration status, but only in cases where an individual was stopped or arrested for the commission of a Class A misdemeanor or a felony. In addition, a companion Utah immigration law, which is also the subject of lawsuits, would allow the state to implement its own guest worker program and issue temporary work authorization permits.
It also remains to be seen whether other states will continue to pursue SB 1070-type laws, regardless of the Supreme Court's ruling in this case. While momentum behind the enactment of such laws grew following SB 1070's enactment, in recent months there have been signs that enthusiasm is waning in state legislatures.
In Alabama, many former supporters of the law enacted last summer — widely considered one of the most severe SB 1070-type laws on record — have called for its retooling, pointing to the law's detrimental effects on the agricultural industry and its potential to scare off foreign investors. Meanwhile in Arizona, the chief architect of SB 1070, former State Senate President Russell Pearce, lost his seat in a recall vote last fall in a move that many saw as being directly linked to discontent with his tough stance on immigration.
Coincidentally, the Supreme Court's most recent decision related to the authority of states to legislate immigration enforcement matters also involved an Arizona law. In May, the Supreme Court upheld the constitutionality of the Legal Arizona Workers Act (LAWA), a law that requires all state employers to enroll in the federal E-Verify system and allowed the state to penalize employers who hire unauthorized immigrants by revoking their business licenses. It seems unlikely, however, that the LAWA ruling will have any direct bearing on the SB 1070 case, as LAWA dealt primarily with the interpretation of specific federal statutory provisions and did not raise the broader issues of preemption that SB 1070 presents.
- For more information on the details on the provisions of SB 1070 and the controversy surrounding the law, read the May 2010, August 2010, and April 2011 Policy Beats.)
- Read the new Supreme Court decision agreeing to review the Arizona case.
- Read the Justice Department's petition asking the court not to hear the case.
- Read the state of Arizona's response to DOJ's petition.
Policy Beat in Brief
In a Strong Bipartisan Vote, House Approves Bill to Ease Visa Backlogs. In a rare showing of bipartisan unity on immigration, members of the US House of Representatives voted 389 to 15 on November 29 in favor of a bill that would eliminate annual per-country quotas on employer-sponsored lawful permanent residents. The bill, introduced by Representative Jason Chaffetz (R-UT), would also increase (but not eliminate) the current country cap for family-sponsored visas.
Currently, the law provides that for both employer-sponsored and family-sponsored categories of immigrants, no single country's nationals may make up any more than 7 percent of the total number of immigrants admitted. As a result, nationals from countries that send large numbers of immigrants to the United States in these categories face significant backlogs.
The Chaffetz bill, formally known as the "Fairness for High-Skilled Immigrants Act of 2011" (HR 3012) will not change the total number of immigrant visas that are available for family-sponsored and employer-sponsored immigrants. However, it will lead to the admission of significantly more immigrants from countries like India and China, whose nationals dominate the employer-sponsored visa application pool. The bill's increase in country caps for family-sponsored immigrants is expected to primarily benefit Mexican and Filipino nationals, who generally make up large shares of the total number of family-sponsored visa applicants.
Despite the strong bipartisan vote for the bill in the House and considerable support for it in the Senate, it remains to be seen whether HR 3012 will become law. Already, Senator Charles Grassley (R-IA) has put a hold on the bill, a move which will certainly delay it from being put to a vote. He cited concerns that HR 3012 lacks protections for US workers. Supporters of the measure, however, have emphasized that, regardless of the outcome in the Senate, progress on this bill may serve as a model for future bipartisan efforts on immigration measures.
DOJ files lawsuits against Utah and South Carolina. After months of speculation, the US Department of Justice (DOJ) filed lawsuits against both South Carolina and Utah on the grounds that the two states' recently passed state-level immigration laws are preempted by federal law.
Among other provisions, the new Utah law (HB 497) requires the police to verify immigration status when individuals are arrested for class A misdemeanors or felonies; enables the police to arrest suspected unauthorized immigrants without a warrant; and criminalizes the harboring and transporting of unauthorized immigrants. In South Carolina, the new immigration law (SB 20) requires police officers to inquire into the immigration status of stopped individuals if they have reasonable suspicion that a person is unauthorized. The law also makes it a state criminal offense for noncitizens to fail to carry proof of their legal status.
The lawsuits against South Carolina and Utah mark the third and fourth lawsuits that DOJ has filed challenging state laws that are modeled after Arizona's controversial 2010 law, SB 1070.
H-1B Cap Reached for FY 2012. On November 23, US Citizenship and Immigration Services (USCIS) announced that it had reached the annual statutory cap of 65,000 H-1B visa petitions for employment starting in FY 2012. For last year's program, the H-1B cap was not reached until January 26, 2011. Prior to 2009, however, the cap was typically met within one week of April 1, when USCIS begins accepting petitions for the following fiscal year. The H-1B visa program enables US employers to sponsor highly skilled foreign nationals such as scientists, computer programmers, and engineers to work temporarily for up to six years.
FY 2011 U Visa Cap Also Met. USCIS announced that in fiscal year 2011 and for the second year in a row, it approved the 10,000 annually allotted nonimmigrant visas for victims of crimes such as domestic violence, sexual assault, torture, and kidnapping. To qualify for a U visa, law enforcement agencies must certify that victims have assisted in criminal investigations or prosecutions. Since USCIS began adjudicating U visas in 2008, over 45,000 crime victims and their family members have benefitted from this form of relief. Individuals who are granted a U visa receive immediate employment authorization and protection from deportation. They are also eligible to apply for permanent residence after three years in U visa status.
Big Dip in Diversity Visa Applicants. The number of entries for the 2013 Diversity Visa Lottery dropped to 8 million from a record 15 million last year, according to press stories citing US Department of State (DOS) figures. Each year, the congressionally mandated Diversity Immigrant Visa Program awards up to 55,000 diversity visas, drawn at random, to immigrant-visa-seeking applicants from countries that have sent fewer than 50,000 immigrants to the United States during the last five years. For 2013, citizens of Bangladesh, Brazil, Canada, China, Colombia, Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti, India, Jamaica, Mexico, Pakistan, Peru, Philippines, South Korea, United Kingdom, and Vietnam are ineligible to enter the visa lottery. The Wall Street Journal reports that DOS attributes the dip in applications to the first-time ineligibility of nationals from Bangladesh.
TPS extended for Honduras and Nicaragua. USCIS has extended Temporary Protective Status (TPS) an additional 18 months — to July 5, 2013 — for eligible nationals of Honduras and Nicaragua. Under the Immigration Act of 1990, the United States may grant TPS, which includes work authorization and protection against deportation, to qualified foreign nationals residing in the United States who the US government determines are temporarily unable to return to their home countries because of war or a natural disaster. Both Honduras and Nicaragua are designated for TPS because of devastation caused by Hurricane Mitch in 1998.
New Data Continues to Show Drop in Unauthorized Residents in the United States. Apprehensions along the US Southwest border have reached their lowest level in decades, reflecting a decreased number of unauthorized border crossings. According to Customs and Border Protection (CBP) FY2011 statistics, the US Border Patrol apprehended 340,252 individuals this year, compared to 1.6 million in 2000. Meanwhile, a new Pew Hispanic Center study on the duration of residence of unauthorized immigrants indicates that almost two-thirds of the current unauthorized population has resided in the United States for over ten years, whereas in 2000 and 2005 the majority had been living in the US for fewer than ten years.
The decline in border apprehensions coupled with new data on length of residency seems to indicate a drop in the number of unauthorized immigrants coming to the United States, a trend that experts attribute both to the economic recession and increased border security and immigration enforcement measures.
State and Local Policy Beat in Brief
NYC Ordinance Limits City Cooperation with ICE. The New York City Council passed, and Mayor Michael Bloomberg signed into law, a new ordinance (Intro. 656) that limits cooperation between the city's Department of Correction and US Immigration and Customs Enforcement (ICE).
Under the ordinance, New York City corrections officers will no longer comply with ICE requests to turn over noncitizens in New York City jails to ICE unless the requested individual has been convicted of a crime; is a defendant in a pending criminal case; has an outstanding criminal warrant; is identified in a terrorist screening database; or is identified as a known gang member in the database of the National Crime Information Center or any other similar or successor database. City jails, however, will continue to honor ICE requests to turn over individuals who have outstanding orders of removal.
In a press release issued following the law's enactment, New York City Council Speaker Christine C. Quinn and other cosponsors of the bill stated that the new ordinance was intended to "send a strong message that this city will no longer allow innocent immigrants who pose no threat to be unfairly detained and deported due to an antiquated system."
- Read the New York City Council press release on the signing of Intro 656 into law.
- See the details of Intro 656.
Alabama Attorney General Recommends Amending/Repealing HB 56 Provisions. Adding to the evidence of growing concern among state officials over Alabama's new immigration law, HB 56, Alabama Attorney General Luther Strange has issued a memorandum to state legislators recommending that the legislature amend ten sections of the state law and repeal four. The four provisions recommended for repeal are the provision requiring public schools to collect data on the immigration status of students; the provision making it a state crime for noncitizens to fail to comply with federal immigration registration requirements; and two provisions authorizing private lawsuits to be filed against state and local agencies that fail to enforce immigration law.
The memo follows a decision by the state revenue commissioner to stop requiring residents to present proof of legal status when applying for mobile home permits or car tags, practices that were required by the new law.