Just the Beginning: ACLU of Indiana First to File Lawsuit Challenging Indiana's New Immigration Law
On the heels of the lawsuit challenging Arizona's immigration law, the American Civil Liberties Union (ACLU) of Indiana filed a lawsuit on May 25, 2011, on behalf of three plaintiffs and two classes of similarly situated individuals challenging portions of the recently passed Indiana immigration reform bill (Senate Bill 590). The lawsuit was filed on behalf of three individual plaintiffs who would be subject to arrest without a warrant under the law. The ACLU of Indiana filed the lawsuit against the Marion County Prosecutor (in his official capacity), the Johnson County Sheriff (in his official capacity), and the Johnson County Prosecutor (in his official capacity), based on the counties where the plaintiffs reside, against the City of Indianapolis as the entity with supervisory authority over the Indianapolis Metropolitan Police Department, and against the City of Franklin as the entity with supervisory authority over the Franklin Police Department.
The lawsuit focuses on two specific aspects of Indiana's immigration reform law:
- Section 18 – Prohibition on the Use of Consular Identification Cards: This section makes the use of identification cards issued by consulates of foreign countries illegal, imposing monetary penalties ranging from $500.00 to $10,000.00 on persons (including employers) who knowingly or intentionally offer, accept, or record a consular identification card as a valid form of identification for any purpose (including I-9 employment verification).
- Section 19 - Additional Causes for Arrest: This section gives law enforcement officers discretion to arrest a person when there has been (a) a removal order issued for the person by an immigration court; (b) a detainer or notice of action for the person issued by the United States Department of Homeland Security; or (c) probable cause to believe that the person has been indicted for or convicted of one or more aggravated felonies.
The ACLU of Indiana is using the lawsuit to defend against immigration enforcement at the state and local levels. The basis of the ACLU of Indiana's argument is that immigration is an area of the law where each state does not have the right to create its own immigration policy. Instead, immigration enforcement belongs to the federal government. Accordingly, the parties argue that the provisions in the new Indiana immigration law that give local law enforcement officers the power to arrest individuals and the state the power to penalize individuals and employers for accepting consular identification cards for any purpose are unconstitutional.
The Supreme Court Upholds Portions of Arizona's Immigration Reform Law
Notably, one day after the ACLU of Indiana filed its lawsuit, the Supreme Court of the United States approved a portion of Arizona's new immigration reform law. Specifically, the Supreme Court ruled that Arizona did not violate federal immigration policy when it passed a state law giving the state the power to mandate the use of the E-Verify federal database and the power to suspend or revoke a company's business license if it knowingly or intentionally hires unauthorized workers.
As seen recently by the passing of Indiana's immigration reform law, the list of states advocating for and passing legislation inspired by Arizona's immigration reform law is clearly expanding. As confirmed by the Supreme Court's decision to uphold part of Arizona's immigration reform law, the future of immigration enforcement appears to be trending toward a patchwork of individual state statutes and policies. This presents real consistency issues, particularly for employers doing business in multiple jurisdictions.
As immigration reform continues to develop at the state and federal levels, we will keep you abreast of the evolving law and policy. Please also watch for our next article on E-Verify, mandatory and voluntary enrollment. If you have any questions regarding I-9 compliance, employer sanctions, or any other immigration matters, please contact Jenifer M. Brown at jenifer.brown@icemiller.com or (317) 236-2242, Lindsay C. Ramsey at lindsay.ramsey@icemiller.com or (317) 236-2301, or Christl P. Glier at christl.glier@icemiller.com or (317) 236-2314.
This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader must consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.
June 8, 2011