Continued from last week
The repeated references in HB 56 to verification of “unlawful presence” by the federal government point to two other serious problems with various aspects of HB 56: the statutorily unjustified power that HB 56 seeks to place in the hands of DHS, and the apparent misconception on the part of Alabama’s legislature about what the term “unlawful presence” actually means under current U.S. immigration law. Although the two problems overlap, it is useful for purposes of clarity to address them separately.
The Department of Homeland Security, which conducts verification of immigration status pursuant to 8 U.S.C. § 1373(c), does not ordinarily have the power to unilaterally order someone removed (except in unusual cases related to certain “arriving aliens” covered by INA § 235, certain felons covered by INA § 238, certain crewmen covered by INA § 252, and the Visa Waiver Program authorized by INA § 217).
Rather, as explained in section 240 of the INA, it is generally an immigration judge who “shall conduct proceedings for deciding the inadmissibility or deportability of an alien”. In those proceedings before an immigration judge, the alien sought to be removed by DHS may be eligible to apply for various forms of relief from removal, including asylum under INA § 208, adjustment of status to that of a lawful permanent resident under INA § 245, cancellation of removal for nonpermanent residents under INA § 240A (b), and many others.
The alien may also be able to successfully dispute DHS’s view that he or she is even removable. To say that the federal government has determined someone to be unlawfully present in the absence of removal proceedings, therefore, is ordinarily only to say that DHS has accused them of being unlawfully present-which as a matter of federal law is generally the preliminary step in the process rather than the final step.
Thus, when Alabama seeks in section 13(a)(4) of HB 56 to prevent “an alien unlawfully present in the United States” from residing in Alabama by making it illegal for anyone to provide such an alien rental accommodations with knowledge or reckless disregard of the fact that they are unlawfully present, and says in section 13(g) that for these purposes “an alien’s immigration status shall be determined by verification of the alien’s immigration status with the federal government pursuant to 8 U.S.C. § 1373(c),” this is far more problematic than it might appear at first glance. The same is true of the 13(a) (3) prohibition on transporting aliens in furtherance of their unlawful presence, which includes “conspiracy to be so transported” within the state as an offense and thus seems to prohibit the unlawfully present from accepting rides.
In cases where no removal proceedings under INA § 240 have yet been conducted, Alabama is apparently seeking to banish people from the state based on the Department of Homeland Security’s mere accusation that their immigration status is an unlawful one, if such accusation is known to or suspected by their landlord.
It is rather as though an accused criminal were exiled from the state because the prosecutor’s computer system said they were guilty, without benefit of trial. This could have particularly bizarre consequences with regard to someone who had in fact been placed in removal proceedings, as set out in INA § 240: if this becomes publicly known, how are they to attend the proceedings, as they have been ordered to do by the federal government, if everyone in the state is forbidden to rent them a room while the proceedings are ongoing?
This sentence first, trial afterward approach would be bad enough if “unlawfully present” meant what the Alabama legislature seems to think it means, namely, someone who (if the determination that they are unlawfully present is correct) has no legitimate reason to be in the United States.
In fact, however, unlawful presence has a specific meaning in immigration law, relating to inadmissibility under INA § 212(a) (9) (B)-(C), which was recently explicated in detail in a USCIS guidance memorandum available at http://www.uscis.gov/USCIS/Laws/Memoranda/Static_Files_Memoranda/2009/revision_redesign_AFM.PDF .
A substantial number of people whom Congress has contemplated may apply for various immigration benefits, and subsequently regain lawful authorization to remain in the United States, are nonetheless deemed unlawfully present in the interim while their applications are being processed.
Those who apply for adjustment of status under INA § 245 “defensively” in removal proceedings as opposed to “affirmatively” before proceedings begin, for example, are considered unlawfully present while their applications are pending, although they may be given employment authorization under 8 C.F.R. § 274a.12(c)(9).
The same is true of applicants for non-LPR cancellation of removal under 8 C.F.R. § 274a.12(c) (10). Those who enter into a bona fide marriage with a U.S. citizen following a lawful entry are eligible to apply for adjustment of status under INA § 245(a) even if they have overstayed their admission and become unlawfully present, due to specific exceptions for such “immediate relatives” in INA § 245(c), and it is highly unlikely that a DHS agent who encountered such a married couple shortly after the wedding but while they were still preparing to file the relevant papers would bother placing them in removal proceedings so that the application could be filed in those proceedings-but they, too, would apparently be barred from renting housing or being transported within Alabama under HB 56.
One whose application for extension of stay or change of status is denied by USCIS, as well, may become unlawfully present but be permitted nonetheless under the regulations to move USCIS to reopen or reconsider its decision; Alabama would apparently make it a crime to knowingly rent a room or give a ride to someone with such a pending motion.
The problem of applying HB 56 to “unlawfully present” aliens who may apply for relief and subsequently become lawfully present exists also in the asylum context with which this article began. An application for asylum, according to INA § 208, may be filed within one year of the applicant’s last entry (or later if certain exceptions apply), even if the applicant was given permission to stay for less than a year at the time of that entry.
Congress understood that just because a traumatized victim of persecution is only admitted for, say, three months on a tourist visa, does not mean they should necessarily be expected to have completed and filed their asylum application within those three months.
If placed in removal proceedings, such persons would almost inevitably be given the opportunity to apply for asylum, and the delays inherent in removal proceedings would likely allow them to file their completed application relatively shortly before the expiration of the one-year deadline if they could not complete it sooner.
Alabama, on the other hand, apparently wishes to alter the one-year deadline for asylum applications, by making it illegal to rent a room or give a ride to an unlawfully present victim of persecution who has overstayed their initial authorized admission and is preparing to file a timely application for asylum within one year of their arrival.
Even with respect to some people who have been ordered removed following removal proceedings and are unlawfully present as that term is used in U.S. immigration law, Alabama’s attempt to force exile by denial of housing or transport is problematic. As I explained in a recent blog piece (http://cyrusmehta.blogspot.com/2011/06/if-even-chief-justice-can-misunderstand.html), an order of removal is not incompatible with employment authorization.
People who have been ordered removed by an Immigration Judge and who would qualify as unlawfully present may be authorized to accept employment under 8 C.F.R. § 274a.12(c)(9) and 8 C.F.R. § 274a.12(c)(10), and may as a practical matter be allowed by DHS to remain in the United States, if they are seeking judicial review under 8 U.S.C. § 1252(a)(2)(D) of a denial of a defensive application for adjustment of status under INA § 245 or an application for cancellation of removal under INA § 240A(b) due to an asserted error of law.
Or, those who have been ordered removed and are unlawfully present may remain in the United States with the knowledge and acquiescence of DHS because no other country will accept them for removal; the Supreme Court ruled in Zadvydas v. Davis, 533 U.S. 678 (2001), that the law does not generally allow that problem to be solved by simply detaining people indefinitely without hope of removal or release.
Unless the Alabama legislature is of the view that it can overrule the Supreme Court’s decision in Zadvydas, the implication seems to be that such impossible-to-remove unlawfully-present people should either sleep on the street or leave Alabama.
If all 50 states were to enact laws mirroring HB 56, the problem would become more obvious, but Alabama’s law is no less unconstitutional or disturbing simply because of its relative uniqueness.
All of these problems with HB 56 may in large part rest on the same underpinning: the highly oversimplified model of U.S. immigration law that seems to have existed in the minds of Alabama state legislators and others lobbying for similar laws.
In this simplistic view of the world, there are only three possibilities: any noncitizen either has a valid nonimmigrant visa, is a lawful permanent resident with a green card, or is “illegal” and thus entitled only to be swiftly removed from the country with no hope of review.
This is simply not an accurate representation of the Immigration and Nationality Act and implementing regulations, which contain many more ways of obtaining and retaining some form of lawful authorization to remain in the United States than such an oversimplified model suggests.
It is partly because immigration law is actually so complicated that any state attempts to meddle in it are more likely to lead to disaster or farce than to any positive consequence.
Alabama has no power to abolish asylee and refugee status as inconvenient anomalies, forbid out-of-status aliens from remaining in the United States so as to seek asylum within the one-year deadline for doing so, require that a nonimmigrant maintain a valid unexpired visa in order to maintain valid status, or require potential applicants for adjustment of status under INA § 245 or cancellation of removal under INA § 240A(b) to depart on pain of homelessness before their applications have been adjudicated by an Immigration Judge or reviewed on appeal by the Board of Immigration Appeals or a federal court.
Such highly inadvisable modifications of our immigration law could only be made by Congress, and likely never will be. Alabama’s attempts to modify the basic structure of immigration law on its own are pre-empted and unconstitutional.
David A. Isaacson
