Editorial – SB 590: An Arizona-style invitation for litigation

By Angela D. Adams

Adams

The past weeks have brought heated debate about immigration policy to our state. The Indiana General Assembly is currently considering various anti-immigrant bills. Among them is Senate Bill 590, modeled after Arizona’s immigration law. Currently being challenged in Federal District Court on constitutional grounds, Arizona’s law has invited much criticism and proved costly to the state’s economy. Indiana should not be next in line.

Pursuant to Article 1, Section 8 of the U.S. Constitution, regulation of immigration is a power exclusively granted to the federal government. Allowing states to set their own immigration policies violates the Supremacy Clause of the Constitution.

Immigration laws and ordinances passed by states and municipalities have led to costly litigation battles. Most have been enjoined or invalidated, or they are currently pending in court. Arizona’s 2007 employer sanctions law, which was upheld by the 9th Circuit Court of Appeals, is currently pending before the U.S. Supreme Court. Ordinances penalizing renting to or employing undocumented immigrants were struck down as unconstitutional in Hazelton, Pa., repealed in Riverside, N.J., and suspended in Fremont, Neb. A housing ordinance ruled unconstitutional in Farmers Branch, Texas, is currently under appeal. In Valley Park, Mo., a housing ordinance was blocked and an employment ordinance was upheld, but the forthcoming decision in Arizona 2007 calls this ordinance into question. Taxpayers bear the burden of these exorbitant litigation costs.

States are frustrated because the federal government has failed to fix our broken immigration system. Often overlooked are the reasons why the immigration system is broken. Why can’t undocumented immigrants just get legal?

Most undocumented immigrants would prefer to have lawful status. However, for the vast majority of those who have come to the U.S. without inspection or overstayed their visas, this is not an option. Backlogs for family-based permanent immigration preference categories can be anywhere from five to 20 years. Employment-based permanent immigration categories often take five to seven years. These backlogs are the result of a quota system that is outdated and does not reflect the current demand for labor.

Those who entered without inspection or overstayed their visas are ineligible for adjustment of status in the U.S. and must apply at the consulate abroad. Upon departure from the U.S., they face additional obstacles depending on how long they have been in the U.S. unlawfully. Accumulation of 180 days of unlawful presence in the U.S. triggers a three-year bar; one year of unlawful presence triggers a 10-year bar. The three- or 10-year bar can only be waived by demonstrating that a U.S. citizen or lawful permanent resident spouse or parent would suffer “extreme hardship” if the applicant could not return to the U.S. Those without a qualifying family relative are ineligible for the waiver of the three- and 10-year bars, and thus are effectively foreclosed from obtaining any lawful immigration status abroad. In plain terms, they can’t stay and they can’t go.

Others may be in administrative removal (deportation) proceedings awaiting a hearing for many months or even years. Only an immigration judge can decide whether someone is removable, and in many cases the respondent may be eligible for certain types of relief which can only be sought in removal proceedings. Even if local police arrest every undocumented person in the state, it is still ultimately up to the federal government to charge them, put them in proceedings, and, if necessary, deport them.

The decision to stay or go is often a personal and difficult one. Many immigrants are part of mixed-status families where some members have lawful status and others do not. For children brought to the U.S. at a young age through no fault of their own, Indiana may be the only home they have ever known. Our current immigration laws often lead to family separation and do not allow for families to be reunified in a timely manner.

State anti-immigrant proposals like Indiana’s SB 590 will not solve the problems of our federal immigration system. However, there is a way that we can contribute positively to the immigration debate. Many government officials, attorneys, businesses, social service providers, faith-based leaders, and other concerned Hoosiers have signed on to the Indiana Compact, a statement of five principles to guide rational debate on immigration policy in Indiana. The Indiana Compact declares that immigration is a federal issue; that law enforcement should focus on crimes; that strong families are the foundation of successful communities; that Indiana should be a welcoming state; and that the way we treat immigrants says more about us than it does about them. See www.indianacompact.com.

As attorneys, we have a duty to challenge the status quo, urge our government officials to lead efforts to strengthen and reform federal laws, and uphold the U.S. Constitution. I invite you to join in the discussion.•

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Angela D. Adams is an attorney with the law firm of Lewis & Kappes concentrating on immigration matters. She is board president of the Immigrant Welcome Center, chapter secretary for the American Immigration Lawyers Association, and on the steering committee for the Alliance for Immigration Reform in Indiana. The opinions expressed in this column are the author’s.