Comment: Third Circuit Splits With Ninth On IRCA - A major decision on the country’s ongoing conflict over immigration sets the stage for Supreme Court consideration of the extent of state and local power over immigrants. The 3rd circuit today decided Lozano v. City of Hazelton (No. 07-3531, 3rd Circuit, Sep 9, 2010) in a 188 page opinion authored by the Chief Judge (see below).
The court said “we agree that the provisions of the ordinances which we have jurisdiction to review are pre-empted by federal immigration law and unconstitutional under the Supremacy Clause” (opinion at p. 66). The court found conflict pre-emption for Hazelton’s employment ordinance: “we agree that the [Hazelton’s ordinance’s] employment provisions stand as an obstacle to the accomplishment and execution of federal law, and thus are pre-empted … Congress went to considerable lengths in enacting IRCA to achieve a careful balance among its competing policy objectives … The [Hazelton ordinance] substantially undermines this careful balance” (opinion at p. 106-107), offering as authority “[t]he Supreme Court has consistently found state and local laws which alter the careful balancing of objectives accomplished by a federal law to be pre-empted, and so have we. See, e.g., Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141, 144 (1989) (opinion at p. 111)”. Disagreeing with the Ninth Circuit, the court said “In Chicanos Por La Causa … the Court of Appeals for the Ninth Circuit concluded that an Arizona law that made use of E-Verify mandatory was not conflict pre-empted … [this] decision[], however, fail[s] to afford proper weight to the purposes underlying Congress’s decision to retain E-Verify as a voluntary program” (opinion at p. 121-122). The Supreme Court will have to decide this circuit split on IRCA pre-emption of state/local authority to regulate employment of unauthorized aliens.
The court returned again and again to the holistic approach of Congress in enacting IRCA, wherein Congress sought to balance conflicting aims and priorities. The court implied that the Hazelton’s non-holistic procedure was pre-empted. The court explained “If Hazleton’s ordinance is permissible, then each and every state and locality would be free to implement similar schemes for investigating, prosecuting, and adjudicating whether an employer has employed unauthorized aliens … A patchwork of state and local systems each independently monitoring, investigating, and ultimately deciding – all concurrently with the federal government – whether employers have hired unauthorized aliens could not possibly be in greater conflict with Congress’s intent for its carefully crafted prosecution and adjudication system to minimize the burden imposed on employers” (opinion at p. 115). The court further explained “Simply put, Hazleton has enacted a regulatory scheme that is designed to further the single objective of federal law that it deems important – ensuring unauthorized aliens do not work in the United States. It has chosen to disregard Congress’s other objectives – protecting lawful immigrants and others from employment discrimination, and minimizing the burden imposed on employers. Regulatory “cherry picking” is not concurrent enforcement, and it is not constitutionally permitted” (opinion at p. 130).
In finding express pre-emption against Hazelton’s housing ordinance, the court said “To be meaningful, the federal government’s exclusive control over residence in this country must extend to any political subdivision” (opinion at p. 136-137). The court found Hazelton’s housing ordinance conflicting with/pre-empted by the INA, saying “[t]hrough its housing provisions, Hazleton attempts to remove persons from the community based on current immigration status. However, as Justice Blackmun explained in Plyler: “the structure of the immigration statutes makes it impossible for the State to determine which aliens are entitled to residence, and which eventually will be deported.” 457 U.S. at 236 … Stitched into the fabric of Hazleton’s housing provisions, then, is either a lack of understanding or a refusal to recognize the complexities of federal immigration law” (opinion at p. 138, 140); saying further “The federal prohibition against harboring has never been interpreted to apply so broadly as to encompass the typical landlord/tenant relationship” (opinion at p. 142).
The matter is now ready for review before the Supreme Court, given (i) the conflict between the 3rd and 9th circuits on this matter (ii) the large number of similar state and local statutes/ordinances already enacted and underway, with several in litigation before the federal judiciary and (iii) the inherent importance of immigration to the nation at this time in our history. The opinion said “The Supreme Court will undoubtedly speak to this tension soon, given the number of states and localities attempting to chip away piece-meal at the federal power to regulate immigration” (opinion at p. 104, footnote 31). This is not the last chapter in America’s immigrant saga. We will hear from the Supremes next. Stay tuned.
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News: Lozano v. Hazelton (No. 07-3531, Sep 9, 2010)
Focus: The Consular Posts Book
The Table of Contents for "The Consular Posts Book" is as follows:
PART I. MAJOR CONSULAR POSTS
A chapter each on - Argentina - Buenos Aires; Armenia - Yerevan; Australia - Sydney; Brazil - Sao Paulo; Canada -Toronto; China - Beijing, Guangzhou, and Shanghai; Colombia - Bogota; France - Paris; Germany - Frankfurt, and Munich; Haiti - Port au Prince; India - Chennai, Kolkata, Mumbai, and New Delhi; Jamaica - Kingston; Nigeria - Lagos; Philippines - Manila; Taiwan - Taipei; Trinidad and Tobago - Port of Spain; United Kingdom - London; Vietnam - Ho Chi Minh City.
PART II. THEORY AND PRACTICE
Chapter 1: Introduction
Chapter 2: New Attorney Vulnerabilities in International Practice
Chapter 3: Trade and Immigration Tightening? NAFTA, WTO, GATS Soup to Nuts
Chapter 4: Tips for Avoiding B-1/B-2 Visa Denials and Correcting other Refusal Issues with the Consul
Chapter 5: The Visa Waiver Program (VWP): Not As Simple and Easy As It Looks
Chapter 6: Non-Immigrant Classes and Their U.S. Tax Obligations
Chapter 7: E-1/E-2 Treaty Traders and Treaty Investors
Chapter 8: The Consular Role in L-1 Blanket Petitions
Chapter 9: H-1B "Dependent Employees": From Labeling to Lawbreaking
Chapter 10: Temporary Assignment of H-1B Employees to Client Work Sites
Chapter 11: State Department Name-Checks and Security Advisory Opinions (SAOs)
Chapter 12: ICE Data-Mining and Federal Benefits Fraud Task Forces - Send In the Marines: Best Practices to Survive Audits and Task Forces
Chapter 13: What to do if Your Client's Visa is Denied: Visa Office Advisory Opinions
Chapter 14: A Template for Attorney Risk-Assessment
PART III. THE CONSULAR POSTS RESOURCES ON CD-ROM
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