| Last updated September 30, 2009 | |
An increasing number of states and local communities are passing laws targeting non-citizens. Below are legal challenge to some of the state and local laws. Developments By State | Additional Resources Arizona | California | Georgia | Illinois | Indiana | Kentucky | LouisianaMassachusetts | Michigan | Missouri | New Jersey New York | Oklahoma | Pennsylvania | Tennessee | Texas
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Developments By State
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Arizona
Court Denies Motion to Dismiss Suit Challenging Racial Profiling in Traffic Stops A district court in Arizona on February 10, 2009, denied a motion to dismiss a lawsuit that challenges the county sheriff's office racial and ethnic profiling in traffic stops to probe car occupants about their immigration status. A group of U.S. citizens, documented immigrants and a non-profit organization filed the lawsuit on December 12, 2007, against the Maricopa County Sheriff's Office for engaging in racially and ethnically discriminatory conduct as a means of enforcing federal immigration laws. The amended complaint, filed on September 5, 2008, states claims under the Fourth and Fourteenth Amendments, Title VI of the Civil Rights Act and the Arizona Constitution. According to the complaint, defendants are violating the terms of their limited agreement with ICE pursuant to the 287(g) program to help enforce federal immigration law by using discriminatory practices that are expressly prohibited by the program. Plaintiffs allege that defendants are conducting pretextual stops of drivers and passengers who appear to be Latino based on the mere fact of their race, color and/or ethnicity. Furthermore, plaintiffs allege that defendants are detaining, questioning and searching the occupants' vehicles without the requisite level of suspicion. Plaintiffs are seeking to certify a class of Latinos in Maricopa County who have been or stand to be targeted in their moving or parked cars as a result of their race and/or ethnicity. Court Enjoins Cave Creek Anti-Solicitation Ordinance Day laborers in Cave Creek, Arizona, successfully challenged an anti-solicitation city ordinance. The ordinance, allegedly aimed at day laborers, barred individuals standing on or next to a street or highway from soliciting employment, business or contributions from passing drivers and even individuals in parked cars. The plaintiffs alleged that the ordinance violated the First Amendment because it constitutes a content-based regulation of free speech by prohibiting specific methods of soliciting employment. The plaintiffs also asserted that the ordinance was aimed at illegal immigrants based on public statements made by town officials. The suit sought injunctive and declaratory relief. On June 2, 2008, the district court found the anti-solicitation ordinance unconstitutional and issued a preliminary injunction. The court reasoned that solicitation is a form of speech, and because the measure is content-based in that it bars only certain types of speech, it is unconstitutional. In the alternative, the court found that the ordinance is unconstitutional because it is not narrowly tailored to fit the local government's purported interest in promoting traffic safety. In addition, the court found that plaintiffs demonstrated a probability of irreparable harm. On August 8, 2008, the court issued a final order and approved the parties' stipulation for a permanent injunction. The court stated that plaintiffs are the prevailing party for purposes of attorney's fees. Ninth Circuit Upholds State Law Barring Employment of Undocumented Immigrants On September 17, 2008, the Ninth Circuit upheld an Arizona statute that prohibits employers from knowingly or intentionally employing an unauthorized immigrant. The Legal Arizona Workers Act requires employers to verify the employment eligibility of each employee through a federal verification program known as "E-Verify." Under this law, employers may have their business licenses suspended after a first violation, and permanently revoked after a second violation. On appeal, the issue was whether federal law preempted the Arizona Act. The court of appeals agreed with the district court that the Legal Arizona Workers Act was not preempted by federal law. The federal law provision at issue, 8 U.S.C. § 1324a(h)(2), preempts state sanctions for hiring unauthorized immigrants "other than through licensing and similar laws." The court reasoned that because the Act was a "licensing" law within the meaning of 8 U.S.C. § 1324a(h)(2), it was not expressly preempted. The court held further that the provision of the law requiring employers to use E-Verify is not expressly or impliedly preempted by federal policy. The Ninth Circuit also found that the Act does not violate employers' due process rights. The court reasoned that employers have an opportunity to present evidence at a hearing in Arizona Superior Court in order to rebut the presumption of an employee's unauthorized status. The court noted that the statute has not yet been enforced, and that when the factual background is developed, other challenges to the Act may arise. On October 1, 2008, plaintiffs filed for a petition for rehearing and rehearing en banc, and on March 9, 2009, the court denied the petitions. Plaintiffs subsequently file a petition for certiorari with the Supreme Court. Arizona Employers for Immigration Reform (AEIR) have posted decisions, pleading, briefs, and other court documents in these cases at http://azeir.org/index2.asp. The ACLU also has posted a press release and court documents. California
Permanent Injunction Stops City of Escondido from Enforcing Ordinances After a lawsuit was filed by landlords, tenants, and a human rights group, the City of Escondido agreed not to enforce an ordinance that targets landlords who rent to undocumented immigrants. Both parties asked the court to enter a final judgment and permanent injunction to prevent the defendant, City of Escondido, from enforcing the ordinance. The court permanently enjoined the city from enforcing the ordinance on November 3, 2006. Georgia
Georgia Court Issues TRO Enjoining Enforcement of Local Ordinance and Stays Proceedings Pending Decisions in Hazleton and City of Valley Park, Mo. A group of Cherokee County residents challenged a local ordinance that created penalties for "harboring" undocumented immigrants. The ordinance defines "harboring" as renting or leasing to an undocumented immigrant knowingly or with reckless disregard of a person's immigration status. Plaintiffs have alleged that the ordinance violates the U.S. Constitution as well as federal and state law. On January 4, 2007, the court issued a temporary restraining order and a preliminary injunction enjoining Cherokee County from enforcing the ordinance. The court stayed proceedings until a final judgment has been issued and appeals have been pursued in Lozano v. City of Hazleton (Pennsylvania) and Reynolds v. City of Valley Park, Mo. (Missouri). On August 28, 2007, the court administratively closed the case. The court's order granting a preliminary injunction is available on the ACLU's website. Illinois
Court Holds Illinois Law Preempted by Federal E-Verify Program A district court in Illinois held that a state law is preempted by the federal E-Verify program. The court struck down an amendment to the Illinois Right to Privacy Act that barred employers from enrolling in the E-Verify program until the program met certain standards set by the state. On a motion for summary judgment, the court held that the Illinois law violated the Supremacy Clause, reasoning that it frustrates Congress's intent of making the E-Verify program available to all employers in all states. The court stated that the state of Illinois cannot require the federal government to meet its more stringent standards. Indiana
Immigrants Prevail Against Driver's License Ordinance The Indiana Court of Appeals held that a class of undocumented immigrants had standing to challenge a state law that would bar plaintiffs from obtaining driver's licenses, permits or identification. The state law required individuals seeking a license or other documents from the Bureau of Motor Vehicles to present proof of identification that would confirm their lawful resident status. Plaintiffs challenged the law as unconstitutional and as violating the state Administrative Rules and Procedures Act (ARPA). The trial court granted summary judgment to defendants, holding that plaintiffs lacked standing to challenge the statute, and the appeals court reversed. The appeals court further found that the law is void because it was not adopted in accordance with the ARPA. Kentucky
Lawful Permanent Resident Successfully Challenges Kentucky Law Requiring U.S. Citizenship to Obtain Weapon License A lawful permanent resident of Kentucky successfully challenged a state statute that barred resident immigrants from obtaining licenses to carry a concealed deadly weapon. The statute required all applicants for a license to carry a concealed weapon to be U.S. citizens. The complaint alleged that this citizenship requirement violates the Equal Protection Clause. On March 13, 2008, the court granted plaintiff's motion for a preliminary injunction, finding that he was likely to succeed on the merits. On April 15, 2008, the defendant filed a motion to dismiss the action as moot because the state legislature had removed the citizenship requirement from the Kentucky statute. On June 25, 2008, the court converted the previously preliminary injunction into a permanent injunction. The court also denied defendant's motion to dismiss as moot and awarded attorney's fees.
Louisiana
Louisiana Court Finds Statute Targeting Drivers Unconstitutional, Quashes Charges Against Arrestee A Louisiana state court granted defendant's motion to quash in a criminal case involving a law barring certain noncitizens from driving. Barrientos was charged with violating a state statute that prohibits any "alien student" or "nonresident alien" from driving without proof that he or she is "lawfully present in the United States." The law called for the arresting officer to cancel the driver's license and to notify federal immigration officials of the name and the location of the person. In a January 31, 2007, order, the court held that the statute unconstitutionally preempts federal law. Specifically, the court noted that the terms employed by the statute, "alien student" and "nonresident alien," are incompatible with federal law. Furthermore, the statute's identification requirements place an unlawful burden on noncitizens. Massachusetts
Challenge to Wrongful Denial of Driver's Licenses A group of immigrants, who are lawful residents and legally authorized to work, brought a class action against the Massachusetts Registry of Motor Vehicles. The complaint alleges that the Registry wrongfully denied licenses, learner's permits and identification cards to immigrants who are legally entitled to these documents. Currently, the case is in discovery. Michigan
After Suit Filed, MI Enacts New Legislation on Driver's Licenses Two days after six Michigan residents filed suit challenging the state's new policy of denying driver's licenses to any person who is not a U.S. citizen or lawful permanent resident, Michigan's governor amended the law. The complaint alleged that Michigan's policy barred thousands of legal residents from obtaining licenses. The law was amended to ensure that all legal residents are able to obtain driver's licenses. Missouri
Court Grants Summary Judgment to City in Suit Challenging City Ordinance; Appeal Pending Following Reynolds v. City of Valley Park (see case description below), the city of Valley Park amended and reenacted ordinances requiring employers to investigate and determine the immigration status of its employees and punish employers suspected of hiring undocumented workers. The plaintiffs, a business and a business owner, brought suit to challenge one such ordinance. The complaint alleges that the ordinance conflicts with, violates, and is preempted by IRCA; violates the due process and equal protection clauses of the Fourteenth Amendment; is precluded by Reynolds; and violates Missouri state law. On January 31, 2008, the court granted summary judgment in favor of the defendants, and the plaintiffs appealed the decision to the Eighth Circuit. The court heard oral argument on December 10, 2008. Missouri Court Enjoins Enforcement of Ordinances Targeting Landlords and Business Owners A group of landlords and the Metropolitan St. Louis Equal Housing Opportunity Council brought suit in Missouri state court challenging a Valley Park city ordinance that bars businesses from "aid[ing] and abet[ting] illegal aliens or illegal immigration," as well as renting to undocumented immigrants. Businesses that violated the ordinance would be subject to fines and denied business permits and city contracts for five years. Plaintiffs argued that the ordinance was unconstitutional and violated federal and state law. The court issued a temporary restraining order (TRO) to block enforcement of the ordinance. Hours later, the city council passed a second version of the ordinance, and the court issued a second TRO to stop enforcement of the second ordinance. On March 12, 2007, the court granted the plaintiff's motion for judgment on the pleadings, declared the ordinances void and permanently enjoined their enforcement. The court's order granting the permanent injunction and other pleadings in this case are available on the ACLU's website. New Jersey
Township Repeals Ordinance After Complaint Filing Landlords, immigrants and residents of Riverside Township, New Jersey are challenging an ordinance that prohibits property owners from renting, leasing, or allowing their property to be used by "illegal immigrants." Plaintiffs argue the ordinance is ultra vires to state law and violates property owners' substantive due process rights as well as other provisions of New Jersey law. On September 17, 2007, Riverside Township repealed the ordinance. New York
District Court Declares New York Law Unconstitutional A district court struck down a New York state regulation that restricted veterinarian licenses to U.S. citizens and LPRs. The plaintiff, a Canadian citizen, had been granted a temporary visa under NAFTA specifically to practice veterinary medicine. Under the state law, plaintiff does not qualify for a permanent veterinarian license, but the state granted him a waiver of the citizenship/LPR requirement so that he was able to work under a limited license until July 2008. In his complaint, plaintiff alleged that New York's restriction violated the Equal Protection Clause and the Supremacy Clause. The court granted plaintiff's motion for summary judgment. It held that non-immigrants are a suspect class for purposes of the Equal Protection Clause and that the New York law fails to pass strict scrutiny. However, even under the less stringent rational basis test, the law still violates the Equal Protection Clause. The court also concluded that the law conflicts with NAFTA and therefore is invalid under the Supremacy Clause. On July 24, 2008, the state filed a notice of appeal to the Second Circuit. In addition, the state asked the court to stay its decision pending resolution of the appeal and to authorize the plaintiff to continue working under a limited license. Oklahoma
On November 1, 2007, Oklahoma implemented a law that created sweeping regulations in the area of immigration. Among its provisions, the statute (HB 1804) seeks to control employer verification of immigration status; criminalizes the transport, concealment, harboring or sheltering of any person who is in the state unlawfully; and authorizes some state entities to require proof of citizenship before extending their services to individuals. After the law went into effect, several Oklahoma residents filed lawsuits challenging the validity of the statute on various grounds. Below are the summaries of the challenges. Court Enjoins Oklahoma Immigration Law The U.S. and Oklahoma chambers of the commerce and two business associations successfully challenged the provision of the Oklahoma immigration law that governs employer verification of immigration status. The law creates, inter alia, requirements related to work authorization of independent contractors and employment authorization restrictions related to contracting with the state. The complaint alleges that provisions in the law could lead to debarment from state contracts, obligatory withholding of taxes from contractors or tax penalties, and liability for having unknowingly employed an unauthorized worker. Plaintiffs argue that the law is preempted by federal law and sought declaratory and injunctive relief. On June 6, 2008, the court issued an order granting plaintiffs' motion for preliminary injunction, finding that plaintiffs had standing because they had demonstrated a risk of harm if the statute were enforced. The court also found that plaintiffs stated claims which, if proven, would entitle them to relief. The defendants appealed the court’s decision to the Tenth Circuit. The circuit court heard oral arguments on May 4, 2009. Taxpayer Challenges Law Targeting Immigrants A resident taxpayer of Tulsa County brought a constitutional challenge to the Oklahoma state immigration law. The complaint alleges that the law violates the Oklahoma Constitution because it creates a "Bureau of Immigration." Plaintiff also alleges that the statute unlawfully delegates legislative authority to executive agencies and state entities without providing the necessary and adequate standards. According to the complaint, because the law is unconstitutional, any expenditure of public funds for its implementation is unlawful. Plaintiff seeks declaratory and injunctive relief. On April 11, 2008, the court heard arguments on plaintiff's motion for summary judgment. The court then directed the parties to submit proposed findings of fact and conclusions of law. Challenge to Oklahoma Law Dismissed for Lack of Standing A district court dismissed a challenge to the Oklahoma immigration law brought by a religious association, churches, restaurants and unnamed plaintiffs. The plaintiffs alleged that the state law violates the Supremacy Clause, due process clause and Equal Protection clause of the U.S. Constitution, as well as provisions of the Oklahoma Constitution. The court stated that plaintiffs did not have standing to challenge the law and therefore dismissed the case. It reasoned that the national Coalition and its Oklahoma branch lacked standing to sue because neither they nor any of their members suffered or were threatened with an injury. The court ruled that other plaintiffs lacked standing because there was no causal link between the alleged injury and the challenged law, and others did not have standing because the alleged injuries were too speculative. National Coalition for Latino Clergy v. Henry, 07-613 (N.D. Okla. Dec. 12, 2007) A district court dismissed a second suit challenging the Oklahoma immigration law for lack of standing. This challenge was brought by some of the same plaintiffs as the case above, No. 07-0594. The court ruled that the restaurants and the churches did not have standing to sue because their claims were too speculative and lacked imminence. The religious organization did not have standing because there was not an individual member who was harmed by the law. As to the individual plaintiffs, the court dismissed their case because these plaintiffs lacked prudential standing. The court focused on the fact that the plaintiffs are "illegal aliens" and opined that "the proper remedy for the injuries alleged by the remaining plaintiffs - all of whom are in willing violation of federal immigration law - is not judicial intervention, rather, it is simple compliance with federal immigration law." Pennsylvania
Court Grants Permanent Injunction to Halt Ordinances Targeting Landlords, Businesses; Appeal Pending A district court in Pennsylvania permanently enjoined the City of Hazleton from enforcing two ordinances that require tenants to prove U.S. citizenship or legal residency and target businesses that employ undocumented immigrants. The complaint, filed by local tenants and landlords, alleges that the ordinances violate the plaintiffs' due process and equal protection rights and infringe upon the federal government's authority in immigration matters. In addition, plaintiffs allege that the laws violate the Fair Housing Act, their contractual rights, and other state and federal laws. In permanently enjoining the ordinances, the court held that the employment and housing provisions were preempted by and conflicted with federal law. The court also reasoned that the local laws violated plaintiffs' constitutional rights to due process and to contract. The City of Hazleton appealed the district court's order to the Third Circuit Court of Appeals, and the court heard arguments on October 30, 2008. Court Strikes Down Policy Requiring Proof of Lawful Presence for Marriage License A U.S. citizen and a citizen of Mexico filed suit against a Pennsylvania official for denying their application for a marriage license based on a policy that requires persons seeking to obtain a marriage license to prove their lawful presence in the United States. Plaintiffs allege that this policy is unconstitutional because it violates their right to marry, the Equal Protection Clause, and the Supremacy Clause. The plaintiffs moved for a TRO and/or preliminary injunction, and the court held a hearing on the motion on April 26, 2007. On May 1, 2007, the court granted the plaintiffs' TRO. It enjoined defendants from requiring the non-U.S. citizen plaintiff to produce a visa or other proof of his lawful presence in the United States as a condition of obtaining a marriage license. The court reasoned that both plaintiffs had a fundamental right to marry and that defendants' policy was not narrowly tailored to a sufficiently important state interest. Therefore, the court reasoned, the policy would likely be found unconstitutional. In January 2008, the parties reached agreement on a consent order, which the court issued on February 11, 2008. According to the terms of the consent order, the defendant: no longer will require applicants for a marriage license to produce proof of lawful residence in the United States; will publicize this new policy; and will pay plaintiff $10,000 in damages. The court also ordered the defendant to pay attorney's fees. Tennessee
Lawsuit Challenging Tennessee Department of Safety's Confiscation of Immigration Documents Voluntarily Dismissed Two lawful permanent residents filed a class action in district court in Tennessee after the state Department of Safety confiscated their green cards and held the documents for several months while they were obtaining or renewing their drivers' licenses. The complaint alleges that defendants took plaintiffs' immigration documents without reasonable suspicion that they were counterfeit and kept them beyond a reasonable time to check their validity. Plaintiffs assert that the confiscations are part of a continuing trend at the Tennessee Department of Safety and the conduct is motivated by discrimination based on national origin and race. The complaint also alleges that defendants failed to follow proper procedures for confiscating their documents. Defendants' conduct, plaintiffs allege, has caused them to suffer emotional distress; hindered their freedom of movement; and has caused them to incur legal fees. Plaintiffs have brought claims under the U.S. Constitution; Title VI of the Civil Rights Act of 1964; and the Tennessee state constitution. They seek declaratory, injunctive and monetary relief. Defendants filed an answer and plaintiffs subsequently moved to amend the complaint. On March 26, 2009, the court dismissed and administratively closed the case after plaintiffs stipulated to a voluntary dismissal. Neither the court order nor the plaintiffs' stipulation explained why the parties decided to voluntarily dismiss their claims.
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