Atlanta's John Marshall Law Journal Volume V Issue II

JOHN MARSHALL LAW JOURNAL Volume V, Number 2

Spring 2012

ARTICLES

& ESSAY

U Non-Immigrant Status: Encouraging Cooperation Between Immigrant Communities and Law Enforcement Agencies Tracie L. Klinke & Alpa Amin

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433

Human Rights Enforcement in U.S. Immigration Law: A Missed Opportunity for Engagement with International Law? Glenna MacGregor & Jessica C. Morris ...................

467

Build a Better Mousetrap and the World Will Beat a Path to Your Door: Can the Employment-Based Immigration Process Be Improved?

Anton F. Mertens...

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513

Assessing the Moral Status of State Immigration Actions David T. Ritchie ...

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549

COMMENTS

Stopping the Rotting: A Proposal for a Georgia-Specific Guestworker Program Thomas J. Lyman

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571

Misguided Interpretation is Not "Immutable": A Critique of the Board of Immigration Appeals' Interpretation of "Membership in a Particular Social Group" Under United States Asylum Law - A Proposed Standard Matthew Shelton Nestrud

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597

Implied Consent and Non-English Speakers Ashton Sappington.......

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625

LEGISLATIVE SUMMARIES 151st Georgia General Assembly 2011 Legislative Session: House Bill 59: Lawful Presence Verification; Postsecondary Educations; Reserve Benefits Viridiana G. Carreon & Dave Williamson ................

657

House Bill 72: Drivers' Licenses; Examinations Only in English Language Renatto Garcia & Jenna L. Melton .....................

677

House Bill 87: Illegal Immigration Reform and Enforcement Act of 2011 Penelope Hansen, Tiffany E. Norris, Michelle Thompson, Kristen A. Turner & Ethan Williams .......................

695

House Bill 87: Illegal Immigration Reform and Enforcement Act of 2011 (E-Verify), Jennifer K. Walker & Elizabeth J. Young .................

723

Senate Bill 27: Georgia Public Works and Contractor Protection Act Ginger Fowler, Joy Smith & Shaheem Williams ............

741

Senate Bill 104: State Government; Prohibit Policies by Local Governments that Limit/Restrict the Enforcement of Immigration Laws Logan Millians, Tyler S. Sims & Benjamin C. Stidham ......

757

Senate Bill 133: Peace Officers; Persons Given Permanent Resident Status; Eligible to be Certified and Employed as Peace Officers in this State Audrey D. Holliday & Kamau Hull .....................

781

Senate Bill 162: Rules of the Road; Provide Driving Under Influence of Alcohol/Drugs by Illegal Alien Is a Felony Kandice M. Allen & Christine Saad .....................

Cite as John Marshall L.J.

789

ARTICLES

U NON-IMMIGRANT

STATUS: ENCOURAGING COOPERATION BETWEEN IMMIGRANT COMMUNITIES AND LAW ENFORCEMENT AGENCIES

TRACE

L. KLINKE* & ALPA AMIN**

ABSTRACT

When a foreign national is the victim of a violent crime, the last thing on her mind should be the threat of deportation or detention by those individuals from whom she has sought help.

Law enforcement officers pledge to "serve and protect" all, not just those who are legally present in the United States. From the other point of view, how can law enforcement officers gain the trust of the undocumented community and effectively combat crime when there is fear of those in uniforms abound?

To help address and solve both these problems, Congress created U status. But misunderstandings and misconceptions persist regarding its application and a bridge between the undocumented community and law enforcement agencies has yet to be fully developed.

TABLE OF CONTENTS I.

INTRODUCTION

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434

* Attorney, Law Offices of Socehat Chea, P.C.; Bd. of Dir., Georgia Asylum & Immigration Network. ** Equal Justice Works Fellow, Georgia Asylum & Immigration Network.

II.

THE NEED FOR AND CREATION OF U STATUS .........................

A.

B. III.

V.

......... 449

INA ยง 287(g) .......................... .......... 449 Backlash of the ยง 287(g) program as applied............... 452 State Legislation ofImmigration .............. ...... 454 Growing Concerns Over HB 87........... .................... 456 Impact ofLocalized Enforcement ofImmigration ......... 457 Laws on Undocumented Victims of Crime ......

U VISA CERTIFICATION AS A BRIDGE TO COOPERATIVE ............................

COMMUNITY POLICING

A. B.

436

Eligibilityfor U Status.............................

439 1. Qualifying Crimes ..................... ..... . 440 2. Who is a Victim? ................................. 441 3. SubstantialPhysical or Mental Harm.... .......... 444 4. Helpfulness ......................... ....... 444 5. CriminalActivity that Violated the Laws of the United States or Occurred in the United States ................ 446 6. Admissibility to the United States ........... ........... 447 Certification ..................................

447

THE LOCALIZATION OF FEDERAL IMMIGRATION LAWS AND THE DIVIDE BETWEEN LAW ENFORCEMENT AGENCIES AND IMMIGRANT VICTIMS OF CRIME .......

A. B. C. D. E.

IV.

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460

Common MisconceptionsAbout U Visa Certification............. 460 Benefits of Certifying ................................. 463 ...............................................

CONCLUSION..

I.

464

INTRODUCTION

Rose was just twelve-years-old when her father brought her to the United States.' She was now seventeen and pregnant with her father's child. She cannot remember how many times he 1. The stories in Part I of this Article are not per se factual. The facts have been gathered from actual cases handled by the Authors.

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had raped her, but Rose knew she could no longer live like this.

Rose began to realize she had to get out of the house in order to protect her unborn baby. Her other friends from Honduras told her that the police could not be trusted-they would just arrest and deport her from the United States. Rose then remembered the nice police officer she often saw while walking to school.

She decided to talk to him about what was going on at home.

Maria and Juan had been together for over fifteen years.

Three years ago, they sneaked across the border from Mexico together. When Juan drank, he would get angry at Maria and kick, punch, and pull her hair. Recently, Juan was drinking every night. One night, Maria was holding their infant daughter when Juan went to punch her. Instead of hitting Maria, Juan hit the baby with full force. Terrified and concerned for her daughter, Maria fled to the hospital where she told the nurse what happened. The nurse advised her to call the police and have Juan arrested. Maria looked at her bruised and bloodied child and knew what she had to do.

Marvin worked the overnight shift at the local twenty-four hour diner. He was mopping the floor at four o'clock in the morning when three masked men with guns stormed the restaurant and demanded that he open the safe. But Marvin could not remember the combination with a gun pointed at his head. He thought he was going to die. Frustrated, the masked man shot Marvin in the lower chest. The next thing Marvin remembered is waking up at the hospital with a bandage wrapped around his stomach. To make matters worse, a police officer was standing outside his door. Marvin thought the officer was there to arrest him because, five years earlier, Marvin had been deported from the United States, but returned without permission. As the fear of deportation began to overcome him, Marvin's blood pressure raced and medical alarms sounded. The officer, however, came in and explained to Marvin that he just wanted to ask a few questions about what happened. Sensing Marvin was tense, the officer told him that he did not need to worry about his immigration status and that he would see if he could help Marvin find a way to stay in the United States.

All of these stories help illustrate the importance of U status to victims and the need of proper understanding of U status by law enforcement officials. Part II of this Article provides an overview of the history behind the creation of U status, and why

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it is needed. Part III reviews the division that has occurred between local law enforcement officials and the immigrant communities by analyzing the effects INA ยง 287g has created.

Part IV concludes and advances that the correct and proper way to implement U status is to increase the understanding and awareness surrounding U certifications for all individuals involved in the process. By increasing awareness within the immigrant communities and furthering law enforcement understanding of the process, all of the individual victims of crimes, and the communities as a whole-legal and illegalwill benefit.

II. THE NEED FOR AND CREATION OF U STATUS

In October 2000, Congress created a new non-immigration classification with the U status.2 Created under the "Victims of Trafficking and Violence Protection Act", this new form of nonimmigrant status was designed to encourage immigrant victims of certain enumerated crimes to report and cooperate with law enforcement agencies ("LEAs").3 Historically, undocumented immigrants have been reluctant to report and assist LEAs because they feared removal or deportation from the United As a result, immigrant communities were left States.4 vulnerable and susceptible to criminal activity, and LEAs faced major challenges in the investigation and prosecution of crimes.

By creating U status, Congress hoped to facilitate criminal investigations and provide humanitarian assistance to victims who were helpful in the investigation and/or prosecution of 2. Victims of Trafficking and Violence Protection Act ("VTVPA") of 2000, Pub. L. No. 106-386, 114 Stat. 1464 (2000) (codified as amended in scattered sections 8, 18, and 22 U.S.C). "U status" and "U visa" are often used interchangeably. An "immigrant visa" is an entry document that allows individuals to enter the United States. 8 U.S.C. ยง 1101(a)(16) (West 2012).

Visas are only granted overseas by the Department of State. Id. Status denotes the types of benefits and rules for a certain type of classification.

See id. Status is conferred by the Department of Homeland Security, either at the border or by United States Citizenship and Immigration Services ("USCIS"). Id. ยง (b)(1)(G)(i)(IV).

3. See 22 U.C.A. ยง 7101(b)(1)-(12) (findings).

4. Sejal Zota, Law Enforcement's Role in U Visa Certification, IMMIGRATION

LAW

BULLETIN

1

(2009),

http://sogpubs.unc.edu/electronicversions/pdfs/ilb02.pdf.

available

at

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certain criminal activities.5 Concurrently, LEAs can utilize the U status to create trust between them and the immigrant communities, encourage individuals to report and cooperate with LEAs, and help individuals recover from victimization. 6 The Congressional intent behind U status is clear and bipartisan.7 This dual-purpose status was created to assist law enforcement agencies in the investigation and prosecution of certain crimes and to provide protection for victims of the enumerated crimes. The Victims of Trafficking and Violence Protection Act of 2000 passed the House of Representatives by a vote of 371 to 1.9 The only person to vote against this Act was Representative Marshall Sanford of South Carolina. 10 Section 1513, "Protection for Certain Crime Victims Including Victims of Crimes Against Womeny," sets forth the Congressional findings and purpose of the Act. (1) FINDINGS.-Congress makes the following findings: (A) Immigrant women and children are often targeted to be victims of crimes committed against them in the United States, including rape, torture, kidnaping, 5. See VTVPA ยง 1513(a)(2)(A) (codified as amended at 8 U.S.C. (2006)).

ยง 1101

6. See QUESTIONS & ANSWERS: VICTIMS OF CRIMINAL ACTIVITY, U NONIMMIGRANT STATUS, U.S. CITIZENSHIP & IMMIGRATION SERVICES,

http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f61417 6543f6dla/?vgnextoid=1bl5306f3l534210VgnVCMl00000082ca60aRCRD &vgnextchannel=eele3e4d77d7321OVgnVCM10000082ca6OaRCRD (last visited May 15, 2012) [hereinafter U STATUS QUESTIONS & ANSWERS].

7. 182 Democrats and 186 Republicans voted in favor of the passage of the VTVPA. House Vote on Conference Report: H.R. 3266 (106th): Victims of Trafficking and Violence Protection Act of 2000, http://www.govtrack.us/congress/vote.xpd?vote=h2000-518 [hereinafter House Vote: H.R. 3266] (providing breakdown of voting details).

8. 22 U.S.C. ยง 7101(a)-(b) (West 2012); E.g., Bo Cooper, A New Approach to Protection and Law Enforcement Under the Victims of Trafficking and Violence Protection Act, 51 EMORY L.J. 1041 (2002) (proposing "the use of immigration remedies, as opposed to penalties, as a tool for achieving broader criminal law enforcement goals").

9. House Vote: H.R. 3266, supra note 7.

10. Id. 11. Victims of Trafficking and Violence Protection Act of 2000, Pub. L. No. 106-386, ยง 1513, 114 Stat. 1464, 1533 (2000) (codified as 8 U.S.C. ยง 1101).

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trafficking, incest, domestic violence, sexual assault, forced prostitution, female genital mutilation, involuntary servitude, being held hostage or being criminally restrained.

(B) All women and children who are victims of these crimes committed against them in the United States must be able to report these crimes to law enforcement and fully participate in the investigation of the crimes committed against them and the prosecution of the perpetrators of such crimes.

(2) PURPOSE.(A) The purpose of this section is to create a new nonimmigrant visa classification that will strengthen the ability of law enforcement agencies to detect, investigate, and prosecute cases of domestic violence, sexual assault, trafficking of aliens, and other crimes described in section 101(a)(15)(U)(iii) of the Immigration and Nationality Act committed against aliens, while offering protection to victims of such offenses in keeping with the humanitarian interests of the United States. This visa will encourage law enforcement officials to better serve immigrant crime victims and to prosecute crimes committed against aliens.

(B) Creating a new nonimmigrant visa classification will facilitate the reporting of crimes to law enforcement officials by trafficked, exploited, victimized, and abused aliens who are not in lawful immigration status. It also gives law enforcement officials a means to regularize individuals during the status of cooperating temporary Providing investigations or prosecutions. victimized severely been have who to aliens status legal by criminal activity also comports with the humanitarian interests of the United States.

(C) Finally, this section gives the Attorney General discretion to convert the status of such non-immigrants to that of permanent residents when doing so is justified on humanitarian grounds, for family unity, or is

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otherwise in the public interest. 12 U status is temporary; it is a non-immigrant status, much like that for a student or a tourist,13 and if granted, U status is generally valid for four years.' 4 During this time, the U status holder is allowed to remain in the United States and obtain employment authorization.15 At the end of three years of continuous presence in the United States, the U status holder may apply for lawful permanent status. 16 Certain famil members are also eligible to apply for U derivative status.

And while there is an annual limit of 10 000 U visas or U status grants per year for principal applicants,' derivative applications for family members do not count against the annual cap.' 9 A. Eligibilityfor U Status In order to be eligible for U status, the victim must meet six basic requirements: (1) the applicant "has suffered substantial physical or mental abuse as a result of having been a victim of criminal activity. . ."; (2) the applicant "possesses information concerning criminal activity. . ."; (3) the applicant "has been

helpful, is being helpful, or is likely to be helpful. . ." in the investigation or prosecution of the qualifying criminal activity; (4) the applicant has received certification from a federal, state, or local law enforcement authority confirming the applicant's 12. Id. 13. INA § 214(p)(2), 8 U.S.C. § 1184(p)(2) (West 2012).

14. 8 C.F.R. § 214.14(g)(1) (West 2012) ("Alien victims of certain qualifying criminal activity").

15. Id. § 214.14(f)(7).

16. INA § 245(m), 8 U.S.C. § 1255(m)(1) (as created by the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, Pub. L. No. 110-457, 122 Stat. 5044 (2008)).

17. Id. 18. INA § 214(p)(2)(A), 8 U.S.C. § 1184 (p)(2). In fiscal year 2009, USCIS reached the cap for U status grants for the first time. Seminar, U Nonimmigrant Status from Eligibility to Adjustment, CATHOLIc LEGAL IMMIGRATION NETWORK, INC., Concord, NH (Aug. 3-4, 2011). The cap was again reached in fiscal year 2010. Id. Once the cap has been reached, USCIS places approvable cases on a wait list. Id. During the interim, these cases will be placed on Deferred Action and be granted an Employment Authorization Document. Id. 19. See INA § 101(a)(15)(U)(ii), 8 U.S.C. § 1101(a)(15)(U)(ii) (West 2012).

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helpfulness in the investigation or prosecution of the criminal activity; (5) the criminal activity must have violated the laws of the United States or occurred in the United States; and (6) the applicant must be admissible to the United States, or demonstrate eligibility for a public interest waiver of any inadmissibility factors.o This Article will focus on the fourth criteria, the certification by a law enforcement agency. In order to provide a foundation for better understanding U status, a brief overview of the other five elements is necessary for understanding U status.

1. Qualifing Crimes First, what crimes will qualify an immigrant to apply for U status? Section 101(a)(15)(U) of the Immigration and Nationality Act ("INA") lists the following: Rape; torture; trafficking; incest; domestic violence; sexual assault; abusive sexual contact; prostitution; sexual exploitation; female genital mutilation; being held hostage; peonage; involuntary servitude; slave trade; kidnapping; abduction; unlawful criminal restraint; false imprisonment: blackmail; extortion; manslaughter; murder; felonious assault; witness tampering; obstruction of justice; perjury; or attempt, conspiracy, or solicitation to commit any of these crimes. The term 'any similar activity' refers to criminal offenses in which the nature and elements of the offenses are to the statutorily enumerated list of similar substantially . . .21 criminal activities.

The Vermont Service Center,22 the United States Citizenship 20. INA ยง 101(a)(15)(U), 8 U.S.C. ยง 1 101(a)(15)(U)(i)((I)-(IV).

21. 8 C.F.R. ยง 214.14(a)(9).

22. The Vermont Service Center ("VSC") is one of four service centers established by USCIS. See U.S. CITIZENSHIP & IMMIGRATION SERVICES, USCIS

SERVICE

AND

OFFICE

LOCATOR,

https://egov.uscis.gov/crisgwi/go?action--offices.type&OfficeLocator.office type=SC (last visited May 15, 2012). The other service centers are the Nebraska Service Center, the Texas Service Center, and the California Service Center. Id. Each service center has its specialty for adjudicating forms and the VSC has exclusive jurisdiction over U status applications.

E.g., Policy Memorandum from U.S Dep't of Homeland Security for USCIS at available 2011), 22, (Apr. Centers Service http://www.uscis.gov/USCIS/Laws/Memoranda/20 11 /April/supp-guidanceadam-walsh-actpdf.pdf.

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and Immigration Service ("USCIS") office tasked with adjudicating all U status applications has received applications based on each of the categories listed. 3 Advocates, however, are not limited by the legal nomenclature of the underlying, qualifying U status crime, as criminal statutes can vary from state to state. Therefore, when determining if U status is an available option, one should look at the acts or attempted acts when deciding whether or not a criminal event may be a "qualifying crime" for the purpose of U status.24 Georgia, for example, does not have a stand-alone domestic violence statue and is instead defined under the battery statute codified in O.C.G.A. ยง 16-5-23.1.25 Stalking and violations of restraining orders have also been defined as qualifying crimes similar to domestic violence and U status applications for victims of these crimes have also been successful. 26 Finally, there is no requirement that a charge be defined as a felony except for "felonious assault." Thus, victims of misdemeanors may apply for U status protection as well.

2. Who is a Victim?

Under U status, there are two kinds of victims: direct and indirect.2 7 A direct victim is generally easy to identify. In the

23. Presentation by VSC officials at the Latin American Association in Atlanta, Georgia (Oct. 28, 2011) [hereinafter VSC Presentation] (presentation powerpoint available at http://www.uscis.gov/USCIS/Resources/Resources%20for%2OCongress/Con gressional%20Reports/2011%2ONational%20Immigration%20&%2OConsul ar/o20Conference%20Presentations/Immigration Relief forVulnerablePo pulations.pdf).

24. See 8 C.F.R. ยง 214.14(a)(9). "The term 'any similar activity' refers to criminal offenses in which the nature and elements of the offenses are substantially similar to the statutorily enumerated list of criminal activities."

Id. 25. O.C.G.A. ยง 16-5-23.1 (West 2012).

26. VSC Presentation, supra note 23.

27. See 8 C.F.R. ยง 214.14 (defining direct victims expressly, while implicating carving out application for indirect victims); see also Chay Sengkhounmany, A Victim by Any Other Name, in IMMIGRATION LAW SECTION, TENN. BAR Ass'N 3-4 (Nov. 2010), http://www.tba.org/sites/default/files/immigration1110.pdf.

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three examples given in Part I of the Article, 28 Rose, Maria, and Marvin are all direct victims because each suffered direct harm as a result of the criminal activity. Rose qualifies as a direct victim of rape and incest, and could possibly qualify under domestic violence, sexual assault, and abusive sexual contact. 29 Maria is a victim of domestic violence and Marvin appears to be victim of a being held hostage, unlawful criminal restraint, and felonious assault. 30 In addition, a bystander may qualify as a direct victim, even if the individual is not the direct target of the crime.31 To qualify as a bystander, the individual must have suffered an "unusually direct injury as a result of a qualifying crime."32 Thus, if Marvin's pregnant girlfriend was visiting him at the diner, saw Marvin get shot by the masked man, and as a result of the emotional trauma she suffered a miscarriage, Marvin's 3irlfriend could qualify on her own as a U status applicant.

Indirect victims, or statutorily referred to as "derivate U nonimmigrant status applicants," are particular family members of direct victims who are deceased, incompetent, or incapacitated.3 4 The clearest example occurs with murder; a qualifying crime for U status, but the direct victim is no longer alive and cannot apply posthumously.3 5 Family members who qualify as indirect victims include: spouses, unmarried children under twenty-one, and, if the direct victim was under twentyone, siblings under eighteen or parents of the victim. 36 To determine qualification, the age of the direct victim is calculated 28. See supra Part I. 29. 8 C.F.R. ยง 214.14(a)(14).

30. Id. 31. Sengkhounmany, supra note 27, at 3.

32. Id. (quoting Preamble at Federal Register, Vol. 72, No. 179, p. 5301653017 (Sept. 17, 2007)).

33. Id. 34. 8 C.F.R. ยง 214.14(a)(14)(i); see also DEP'T OF HOMELAND SEC., NEW CLASSIFICATION FOR VICTIMS OF CRIMINAL ACTIVITY; ELIGIBILITY FOR "U" NONIMMIGRANT STATUS, 72 FR 53014 (Sept. 17, 2007), available at http://www.uscis.gov/ilink/docView/FR/HTML/FR/0-0-0-1/0-0-0-123038/00-0-133528/0-0-0-137708.html (last visited May 15, 2012) [hereinafter NEW CLASSIFICATION FOR VICTIMS].

35. 8 C.F.R. ยง 214.14(a)(14); see also Sengkhounmany, supra note 27, at

3.

36. 8 C.F.R.

ยง 214.14(a)(14)(i).

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"at the time the qualifyin criminal activity occurred[,]"not at Similar to direct victims, indirect the time of application. victims must demonstrate that they were helpful in the investigation and that they suffered substantial physical or

mental harm. 38 Parents of a United States citizen may also qualify as indirect victims.3 9 In this scenario, the child has been the victim of a The United States Citizenship and qualifying crime. 40 Immigration Services ("USCIS") deems the less than twentyone year old victim as incapacitated. 4 1 The most common example is where the United States citizen child is the victim of sexual abuse and the parents are foreign nationals. 42 The child, however, is ineligible to file a U status application because nonimmigrant status is not necessary when the victim is already a United States citizen.4 3 But her parents may apply as indirect victims, provided that they obtain certification regarding their helpfulness and can demonstrate that they were substantially harmed."

Victims come in a variety of forms and may include non37. Id. 38. See id. ยง 214.14(b)(3); see also Sengkhounmany, supra note 27, at 3.

39. See 8 C.F.R. ยง 214.14(a)(10) ("Qualifying family member means,. . . in the case of an alien victim under the age of 21 who is eligible for U nonimmigrant status . . . the spouse, child(ren), parents, or unmarried

siblings under the age of 18 of such an alien.").

40. Id. 41. See ยง 214.14(14)(i) ("The alien spouse, children under 21 years of age and, if the direct victim is under 21 years of age, parents and unmarried siblings under 18 years of age, will be considered victims of qualifying criminal activity where the direct victim is deceased due to murder or manslaughter, or is incompetent or incapacitated, and therefore unable to provide information concerning the criminal activity or be helpful in the investigation or prosecution of the criminal activity.").

42. E.g., U.S. Dep't of Homeland Sec., U.S. Citizenship and Immigration Servs., VSC Stakeholders Meeting Questions 8 (Aug. 30, 2009), availableat http://www.globallawcenters.com/pdfs/29954.pdf [hereinafter VSC Stakeholders Meeting Questions] (defining "indirect victims" as "[p]arents of sexually abused children . . . even if the child is a [United States Citizen].

It falls under the incompetent/incapacitated victim").

43. See id at 7-8.

44. See NEW CLASSIFICATION FOR VICTIMS, supra note 34 (providing overview of "eligibility requirements for derivative U nonimmigrant status[]" applicants, or indirect victims).

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traditional "victims" such as parents or bystanders.4 5 Although a foreign national may not be deemed a victim by law enforcement, that person may still qualify as a victim for U status, as the definition is broader. 4 6 3. SubstantialPhysicalor Mental Harm One task of USCIS is to determine whether or not a victim has suffered substantial physical or mental harm. 47 In reaching a conclusion, the adjudicator may look to: The nature of the injury inflicted or suffered; the severity of the perpetrator's conduct; the severity of the harm suffered; the duration of the infliction of the harm; and the extent to which there is permanent or serious harm to the appearance, health, or physical or mental soundness of the victim, including aggravation of pre-existing conditions.48 Physical harm is not always necessary, as mental or emotional abuse may be enough to reach the "substantial" threshold.4 9 USCIS will also look at the totality of the circumstances and take into account past incidents, most commonly in the context of domestic violence.50 Conversely, substantial harm can also be caused by a*single incident.5 4. Helpfulness In order for the VSC to determine whether an applicant was helpful, each application for U status must be accompanied by "Form I-918B Supplement B, 'U Nonimmigrant Status Certification,' which confirms that the petitioner has been helpful, is being helpful, or is likely to be helpful in the investigation or prosecution of the qualifying criminal activity 45. See id.

46. See id.

47. 8 C.F.R. ยง 214.14(b)(1); see also VSC Stakeholders Meeting Questions, supra note 42, at 8.

48. 8 C.F.R. ยง 214.14(b)(1).

49. Id. ยง 214.14(a)(8) ("Physical or mental abuse means injury or harm to the victim's physical person, or harm to or impairment of the emotional or psychological soundness of the victim.").

50. See id. ยง 214.14(b)(1).

51. Cf id. ยง 214.14(b)(1) ("A series of acts taken together may be considered to constitute substantial physical or mental abuse even where no single act alone rises to that level.").

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of which he or she is a victim." 52 The variety of tenses is deliberate, as it allows for open and closed cases to qualify for certification. 53 In addition, the statute does not require a successful prosecution or even an arrest. 54 The detection of a crime, such as calling 911, meets the helpfulness requirement for USCIS. 55 Congress did not provide a definition of "helpfulness" in the statute, leaving it to the individual LEAs to draft their own 56 Helpfulness can range from reporting the qualifying policies. criminal activity to testifying at trial,57 but by no means should the requirement be viewed as a coercive tool for LEAs to get the victim to do things that might be uncomfortable or dangerous such as wearing a wire or giving in person testimony against a violent perpetrator.5 8 There is however an extra requirement that the victim continue to be helpful if there is an ongoing need. 5 9 As a result, the victim cannot "refuse . . . to provide 52. Id. ยง 214.14(a)(12).

53. VSC Presentation, supra note 23.

54. See generally Sameera Hafiz et al., Tool Kitfor Law Enforcement Use of the U-Visa, NAT'L IMMIGRANT VICTIMS' ACCESS TO JUSTICE at available 2011), (Aug. PARTNERSHIP http://iwp.legalmomentum.org/reference/additional-materials/immigration/uvisa/tools/police-prosecutors/U-visatoolkitAugust_2011 .pdf (discussing whether "U-Visa status require[s] the initiation of a law enforcement investigation or a successful prosecution") (text altered from original).

"Congress explicitly crafted the U-visa immigration protections for victims so as not to interfere with the discretion that investigators and prosecutors have to investigate and choose whether to prosecute criminal activity in any particular case." Id. at 8.

55. See id.

56. It appears the definition of "helpfulness" was deliberately left vague, most likely because Congress did not wish to limit the definition; thereby encompassing a wide assortment of activities. But in practice, the lack of a definition has proved difficult. For many LEAs, a person is only deemed "helpful" if the prosecution was successful. U status, however, was not created to ensure a criminal conviction, but rather to encourage cooperation.

57. See Gail Pendleton, Winning the U Visas: Getting the Law Enforcement Certification, LEXISNEXIS EXPERT COMMENTARIES 8 (Feb. at available 2008), http://www.asistahelp.org/documents/resources/ExpCommPendletonO 2 08_4 D9DF9844BDF9.pdf [hereinafter Pendleton, Winning the U Visas].

58. See id at 8-9.

59. New Classification for Victims of Criminal Activity; Eligibility for

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reasonably requested information and assistance[]" even after an investigation or prosecution is closed. 60 There is one exception to the helpfulness requirement however. 6 1 If the victim is under sixteen, or is incapacitated and is unable or unwilling to cooperate in the investigation or prosecution, a parent or guardian may provide assistance and information regarding the qualifying crime.62 Under this exception, the principal applicant is still the young or incapacitated victim, not the parent or guardian who is cooperating.

5. CriminalActivity that Violated the Laws of the United States or Occurredin the United States The qualifying crime must have occurred in the United States, including Native American territories,63 "Military Installations,"64 or "Territories' and Possession of the United States." 65 Crimes that occurred outside of the United States are not considered qualifying crimes for U status purposes unless there is a federal statute "that provides for extraterritorial jurisdiction to prosecute the offense in a U.S. federal court." 66 For example, the USCIS has approved U status applications for victims of child trafficking and exploitation by a United States citizen in another country because the Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today ("PROTECT") Act 67 allows for sexual offenses against minors abroad by United States citizens to be punishable in United "U" Nonimmigrant Status, 72 Fed. Reg. 53014-01 (U.S. Citizenship and Immigration Servs. Sept. 17, 2007).

60. Id. (citing 8 C.F.R. § 2141.14(b)(3)).

61. INA § 1101(a)(15)(U)(i)(III), 8 U.S.C. § 1101(a)(15)(U); see also 8 C.F.R. § 214.14(a)(7) ("Next friend means a person who appears in a lawsuit to act for the benefit of an alien under the age of 16 or incapacitated or incompetent, who has suffered substantial physical or mental abuse as a result of being a victim of qualifying criminal activity. The next friend is not a party to the legal proceeding and is not appointed as a guardian.").

62. Id. 63. 8 C.F.R. § 214.14(a)(4).

64. Id. § 214.14(a)(6).

65. Id. § 214.14(a) (11).

66. Id. § 214.14(b)(4).

67. Prosecutorial Remedies and Tools Against the Exploitation of Children Today Act of 2003, Pub. L. No. 108-21, 117 Stat 650 (2003).

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States courts.6 8 6. Admissibility to the United States The requirement of admissibility pertains to whether a person is legally allowed to either enter the United States or adjust status to lawful permanent residency. 69 Any grounds of inadmissibility for a U status applicant must be waived by USCIS prior to the approval of the application.70 Waivers for U status applicants are generous, allowing any ground of inadmissibility except Nazi participation, genocide, acts of torture, or extrajudicial killings to be waived in the public or national interest.71 Even violent or dangerous crimes can be waived by USCIS under extraordinary circumstances.72 Therefore, a U status applicant's prior immigration violations or criminal history does not preclude the application's approval and should not dissuade certification or filing.

B. Certification LEAs play a vital role in the U status application process.

Without a signature on the Form 1-918 B, an application for U status will be automatically denied, regardless of the compelling nature of the underlying case. 73 , The certification must be completed by a federal, state, or local law enforcement agency, prosecutor, or criminal court that investigated, is investigatin 4 prosecuted or is prosecuting the qualifying criminal activity.

Certifying agencies include: police departments; judges; Child and Family Protective Services; the Department of Labor; "or 68. Id.; see also VSC Presentation, supra note 23.

69. INA § 101(a)(13), 8 U.S.C. § 1101(a)(13).

70. INA § 212(d)(3)(B)(i), 8 U.S.C. § 1182(d)(3)(B)(i) (West 2012).

71. INA § 212(d)(14), 8 U.S.C. § 1182(d)(14) (West 2012).

72. 8 C.F.R. § 212.17(b)(2) (West 2012).

73. See generally U.S. Citizenship and Immigration Servs., Information for Law Enforcement Officials, Immigration Relief for Victims of Human Trafficking and Other Crimes, available at http://www.uscis.gov/USCIS/Resources/Humanitarian%2OBased%2OBenefit s%20and%2OResources/TUQAforLawEnforcement.pdf [hereinafter USCIS LEOs FAQ] (providing information to assist law enforcement officials in the application of the U visa process).

74. INA § 101(a)(15)(U)(i)(III), 8 U.S.C. § 1101(a)(15)(U); 8 C.F.R. § 214.14(a)(2).

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other authority, that has responsibility for the investigation or prosecution of a qualifying crime or criminal activity."75 In order to be a qualifying signature, the form must be executed by the head of the certifying agency or a designated certifying official. 76 In addition, the signature can be no more than sixAlthough months old when the application is filed.7 7 certification is required in order to file a U status application, LEAs cannot be compelled to provide a signature.78 Certifying a U status application, however, is not a form of amnesty for undocumented immigrants.7 9 When Congress created U status, it was to enhance public safety.80 Certification does not guarantee that the applicant will be granted U status8 1 because certification only pertains to the helpfulness of the victim.82 As a result, the certification neither requires LEAs to make a decision regarding the harm done to the victim, nor does 83 it condone any previous criminal or immigration violations.

Ultimately, the victim is required to meet other requirements such as suffering substantial harm and qualifying for a waiver. 84 But this information goes directly to USCIS, and in the end, has no bearing on the certification.8 5 In the end, and most importantly, U status was created to

75. 8 C.F.R. § 214.14(a)(2).

76. Id. § 214.14(a)(3)(i)-(ii).

77. Id. § 214.14(c)(2)(i).

78. USCIS LEOs FAQ, supra note 73.

79. See 8 C.F.R. § 214.14(i).

80. See 22 U.S.C. § 7101(a).

81. In August 2011, representatives from VSC stated that they deny between 25% and 30% of U status applications. VSC Presentation, supra note 23.

82. Interview with Gail Pendleton, Co-Dir., Advanced Special Immigrant Survivors Technical Assistance ("ASISTA"), in Atlanta, Ga. (Sept. 27, 2011) [hereinafter Pendleton Interview].

83. Seminar, Building Collaborations to Help Immigrant Survivors of Domestic Violence, Sexual Assault & Trafficking, Gail Pendleton, ASISTA, & Maria Alvarenga-Watkins, Retired, Capt., Washington, D.C. Police Dep't (on file with the John Marshall Law Journal) [hereinafter Pendleton & Alvarenga-Watkins Seminar].

84. 8 C.F.R. § 214.14(b)(1)-(4).

85. Id. § 214.14(C) ("Application procedures for U nonimmigrant

status").

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serve a dual purpose.86 By encouraging undocumented foreign nationals to come out of the shadows and report crimes, the desired outcome was to create safer communities. Conversely, U status was created with the hope that the undocumented population would become comfortable with local law enforcement agents, viewing them as protectors instead of deportation officers.

III. THE LOCALIZATION OF FEDERAL IMMIGRATION LAWS AND THE DIVIDE BETWEEN LAW ENFORCEMENT AGENCIES AND IMMIGRANT VICTIMS OF CRIME

A. INA ยง 287(g) Enforcement of immigration law has traditionally been a In 1996, however, function of the federal government.

Congress enacted ยง 287(g) of the Illegal Immigration Reform and Immigrant Responsibility Act, 88 authorizing the Secretary of the Department of Homeland Security ("DHS") to enter into written agreements enabling state and local officials to "perform [the] function of an immigration officer in relation to the investigation, a~pprehension, or detention of aliens in the United This written agreement, also known as a States. . .

Memorandum of Agreement ("MOA"), 90 permits "state and status); see also U nonimmigrant visa] was intended to strengthen the ability of law enforcement agencies to investigate and prosecute cases of domestic violence, sexual assault, trafficking of aliens and other crimes while, at the same time, offer protection to victims of such crimes. The legislation also helps law enforcement agencies to better serve victims of crimes.").

87. E.g., Toll v. Moreno, 458 U.S. 1, 10 (1982) (holding "[f]ederal authority to regulate the status of aliens derives from various sources, including the Federal Government's power 'to establish 'a' uniform Rule of Naturalization,' its power 'to regulate Commerce with foreign Nations,' and its broad authority over foreign affairs") (internal citations omitted).

88. Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009-546 (1996) 89. INA ยง 287(g) (West 2012), 8 U.S.C. ยง 1357(g)(1) (West 2012).

86. See supra Part II (discussing the purpose of U STATUS QUESTIONS & ANSwERS, supra note 6 ("The [U

90. E.g., RANDY CAPPS ET AL., MIGRATION POLICY INST., DELEGATION AND DIVERGENCE: A STUDY OF 287(G) STATE AND LOCAL IMMIGRATION

ENFORCEMENT

61

(2011),

available

at

http://www.migrationpolicy.org/pubs/287g-divergence.pdf (last visited May 15, 2012).

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local officials to detain potentially removable immigrants who are arrested for non-immigration offenses and to begin the process of transfer to Immigration and Customs Enforcement ("ICE") custodr and [institute their] formal removal from the United States." 1 As of September 2, 2011, sixty-nine MOAs have been signed in a total of twenty-four states,92 deputizing over 1500 state and local officers to enforce federal immigration laws.9 3 Currently there are six such agreements in place in Georgia: Georgia Department of Public Safety; Cobb County Sherriff's Office; Gwinnett County Sheriffs Office; Hall County Sheriffs Office; and Whitfield County Sheriffs Office.9 4 In 2007, the Cobb County Sherriff's office signed the first MOA in Georgia. 95 From the beginning, the parameters of the ยง 287(g) program were obscure. While the program was intended to target and remove undocumented immigrants convicted of "violent crimes, human smuggling, gang/organized crime activity, sexual-related offenses, narcotics smuggling and money laundering," 96 the program also targeted "absconders-persons for whom a final order of removal has been issued, but who have not left the country." 97 The task of defining the scope and limitations of the program was left to local law enforcement agencies and meant to be delineated in their individual MOAs. 98 Due to a lack of 91. Id. at 12 (alterations in original).

92.

U.S. IMMIGRATION & CUSTOMS ENFORCEMENT, FACT SHEET: DELEGATION OF IMMIGRATION AUTHORITY SECTION 287(G) IMMIGRATION AND NATIONALITY ACT, [hereinafter ยง 287(G) FACT SHEET],

http://www.ice.gov/news/library/factsheets/287g.htm (last visited May 15, 2012). The participating states include: Alabama; Arizona; Arkansas; California; Colorado; Connecticut; Delaware; Florida; Georgia; Maryland; Minnesota; Missouri; Nevada; New Jersey; New Mexico; North Carolina; Ohio; Oklahoma; South Carolina; Tennessee; Texas; Utah; and Virginia. Id. 93. See id. (naming individual local law enforcement agencies in each respective state).

94. Id.

95. Id. (follow "link" hyperlink).

96. CAPPS ET AL., supra note 90, at 10; accord ยง 287(G) FACT SHEET, supranote 92.

97. Ajmel Quereshi, 287(g) and Women: The Family Values of Local Enforcement of Federal Immigration Law, 2010 Wisc. J.L. GENDER & SoC'Y 261, 263.

98. See 28 C.F.R. ยง 65.84 (West 2012); see also Quereshi, supra note 97,

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guidance from the federal government, state and local officials were encouraged to structure their MOAs to best suit the needs of their individual communities. 99 In 2009, the United States Government Accountability Office ("GAO") released a report criticizing the then existing ยง 287(g) programs for a lack of, among other things, "documented program objectives, an articulation of how local officials were to use their authority, clear and consistent mechanisms of supervision, and protocols identifying the types of data local officials must collect and report to ICE."' Soon thereafter, DHS Secretary Janet Napolitano announced a set of guidelines designed to streamline the program to focus primarily "on the detention and removal of 'dangerous' criminals." 01 In an ICE agency-wide memorandum following the announcement, the Director of U.S. Immigration and Customs Enforcement, John Morton, prioritized the apprehension, detention, and removal of undocumented persons via the following categories: Level 1 Offenders; Level 2 Offenders; and Level 3 Offenders.1 02 First, Level 1 offenders include persons "convicted of 'aggravated felonies' as defined in ยง 101(a)(43) of the Immigration and Nationality Act, or two or more" felonies that do not qualify as aggravated felonies. 103 Second, Level 2 offenders include persons convicted of felonies or three or more misdemeanors. 10 Lastly, Level 3 offenders include persons "convicted of crimes punishable by less than one year., 10 5 The memo did not, however, discourage the detention and removal of other aliens unlawfully in the United States. 106 As a result, the directive created an open-ended invitation for enforcement actions against less serious criminals; resulting in the arrest, and eventual deportation for persons charged with at 277.

99. Quereshi, supra note 97, at 277.

100. CAPPS ET AL., supra note 90, at 11.

101. Id. 102. Memorandum from John Morton, Dir. U.S. Immigration & Customs Enforcement, to All ICE Employees (Mar. 2, 2011), available at http://www.ice.gov/doclib/news/releases/2011/110302washingtondc.pdf.

103. Id. (internal citation omitted).

104. Id. 105. Id. (citation omitted).

106. Cf id.

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such minor infractions as driving without a license.1 07 B. Backlash of the ยง 287(g) program as applied From the outset, the ยง 287(g) program received widespread criticism. 108 Opponents of the program argued that giving complete discretion to LEAs opened the door to racial profiling, leading to a dramatic increase in the number of minorities stopped and arrested by participating officers. 109 Unfettered discretion in the hands of state and local officials resulted in enforcement actions varying from jurisdiction to jurisdiction.' 10 In addition, the program guidelines set forth by DHS were often disregarded."11 The Migration Policy Institute, a nonpartisan think tank in Washington D.C., reported in 2009 that "about half of program activity [nationwide] (defined by the number of immigration detainers issued), involve[d] people who had committed felonies and other crimes that ICE deems to be serious (Priority Level 1 and 2 in ICE's terminology)."11 2 Other localities-including Cobb County, Georgia-placed the majority of their detainers on persons who committed misdemeanors (Level 3) or traffic offenses. 13 107. MICHELE WASLIN, ICE's ENFORCEMENT PRIORITIES AND THE FACTORS THAT UNDERMINE THEM, IMMIGRATION POLICY CTR., AM. IMMIGRATION COUNCIL 8-9 (2010) (on file with the John Marshall Law

Journal).

108. E.g., Deborah M Weissman et al., The Policies and Politics of Local Immigration Enforcement Laws: 287(g) Program in North Carolina, AM. CIVIL LIBERTIES UNION & IMMIGRATION AND HUMAN

RIGHTS POLICY

available

at

CLINIC

(2009),

www.law.unc.edu/documents/clinicalprograms/287gpolicyreview.pdf [hereinafter ACLU, Policies & Politics]; Aarti Shahani & Judith Greene, Local Democracy on ICE: Why State and Local Governments Have No Business in Federal Immigration Law Enforcement, 18-19 JUSTICE STRATEGIES

REPORT

(2009),

available

at

www.justicestrategies.org/sites/default/files/JS-Democracy-On-Ice.pdf; Police Chiefs Guide to Immigration Issues, INT'L Ass'N OF CHIEFS OF at available (2007), POLICE

www.theiacp.org/Portals/0/pdfs/Publications/PoliceChiefsGuidetolmmigrati on.pdf.

109. E.g., ACLU, Policies & Politics,supra note 108, at 8.

110. Quereshi, supra note 97, at 277-78.

111. Id. 112. CAPPS ET AL., supranote 90, at 2.

113. Id.

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Participating state and local officials had criticisms of their own, including: a lack of systemized training and support for deputized officers;11 4 concerns over "already strained state and local resources[;]" and fears that participation in the ยง 287(g) program would divert enforcement's attention away from "its core mission of protecting communities and promoting public safety."' '5 In fact, jurisdictions that have implemented the program found that "response times to 911 calls have increased, arrest rates have dropled, and thousands of felony warrants have not been served."

Moreover, requiring LEAs to report many of the same people whom they are meant to protect "creates conflicting responsibilities for deputized officials.""' As a result, LEAs are left torn between a desire to cooperate with federal immigration authorities and a concern that participating in immigration enforcement efforts will undo the gains achieved through community oriented policing practices-which are aimed at gaining the trust and cooperation of immigrant communities.1 1 8

114. E.g., U.S. GOVERNMENT ACCOUNTABILITY OFFICE, REPORT TO CONGRESSIONAL REQUESTERS, IMMIGRATION ENFORCEMENT: BETTER CONTROLS NEEDED OVER PROGRAM AUTHORIZING STATE AND LOCAL ENFORCEMENT OF FEDERAL IMMIGRATION LAWS 12 (2009), available at

http://www.gao.gov/new.items/d091O9.pdf (reporting the implementation of ยง 287(g)); see also Shahani & Greene, supra note 108, at 4.

115. Anita Khashu, The Role ofLocal Police: Striking a Balance Between Immigration Enforcement and Civil Liberties, POLICE FOUND. (2009), available at http://policefoundation.org/indexStriking.html (follow "Full Report" hyperlink); see also Huyen Pham, The Inherent Flaws in the Inherent Authority Position: Why Inviting Local Enforcement oflmmigration Laws Violates the Constitution, 31 FLA. ST. U. L. REV. 965, 981 (2004) (arguing "[t]he main problem with [allowing local enforcement to trump federal authority] is that it fails to adequately explain the supposed basis for local authority or to explain the appropriate dividing line, if any, between local and federal enforcement of immigration laws").

116. LOCAL ENFORCEMENT OF IMMIGRATION LAWS THROUGH THE 287(G) PROGRAM, IMMIGRATION POLICY CTR. (Apr. 2, 2010), http://www.immigrationpolicy.org/just-facts/local-enforcement-immigrationlaws-through-287g-program.

I17. Quereshi, supra note 97, at 282.

118. Khashu, supra note 115, at 2-3.

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C. State Legislation ofImmigration Congress' failure to enact comprehensive immigration reform, coupled with a rising concern over the number of undocumented immigrants in the United States, led several states to enact laws that have created a further divide between law enforcement officials and the immigrant communities they serve. 119 In 2010, Arizona Governor Jan Brewer signed into law Senate Bill 1070 ("SB 1070"),120 one of the toughest U.S. illegal immigration measures to date. 12 1 The law requires "aliens" in the State of Arizona to carry proper immigration documents at all times and makes it a misdemeanor to be in the state without such documentation.122 Moreover, SB 1070 "requires police officers, 'when practicable,' to detain people they reasonably suspect are in the country without authorization and to verify their status with federal officials, unless doing so would hinder an investigation or emergency medical treatment." 23 While some of the more controversial provisions of the bill were blocked by a federal judge, 124 sixteen other 119. E.g., H.B. 56, 2011 Reg. Sess. (Ala.), available at http://www.accaonline.org/legis-news/20 11_bills/HB56-enr.pdf (Hammon-Beason Alabama Taxpayer and Citizen Protection Act); S.B. 1070, 49th Leg., 2d. Reg. Sess. at available 2010), (Ariz. http://azgovemor.gov/dms/upload/SB_1070_Signed.pdf (Support Our Law Enforcement and Safe Neighborhoods Act); H.B. 87, 151st Gen. Assemb., at available 2011), (Ga. Sess.

Reg. 2d (Illegal http://www.legis.ga.gov/Legislation/20112012/116631 .pdf Immigration Reform and Enforcement Act of 2011); H.B. 497, 2011 Gen. at available (Utah), Sess.

Illegal (Utah http://www.ncsl.org/documents/statefed/hb0497.pdf Immigration Enforcement Act).

120. S.B. 1070, 49th Leg., 2d. Reg. Sess. (Ariz. 2010), available at http://azgovemor.gov/dms/upload/SB_1070_Signed.pdf (Support Our Law Enforcement and Safe Neighborhoods Act).

121. Randal C. Archibold, Arizona Enacts Stringent Law on Immigration, at available Al, at 2010, 24, April TIMES, N.Y. (last http://www.nytimes.com/2010/04/24/us/politics/24immig.html?refus visited May 15, 2012).

122. Ariz. S.B. 1070, ยง 3.

123. Archibold, supra note 121.

124. United States v. Arizona, 703 F.Supp.2d 980 (D. Ariz. 2010); Howard Fischer, Judge Blocks SB1070, ARIz. DAILY SUN, available at http://azdailysun.com/news/local/articlef596d0e6-5806-5d60-9e56-

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states have followed Arizona's lead and have enacted similar

legislation.12 5 In Georgia, House Bill 87 ("HB 87"), the Illegal Immigration Reform and Enforcement Act of 2011, became the law on April 14, 2011.126 Among other things, HB 87 provides for "one of the nation's toughest immigration enforcement measures . . .

50l27

Section 3 of HB 87 provides that every public employer (i.e. every department, agency, or instrumentality of the state or a political subdivision of the state with more than one employee), must register and participate in E-verify, a federal work authorization program, to verify the employment eligibility of all newly hired employees.1 28 Section 4, 5, 6 mandate that the use of counterfeit or fictitious identification documents to gain employment will be deemed aggravated identity fraud; punishable by a fine of up to $250,000 or up to 15 years in prison.129 Section 7 provides that any "person who, while committing another criminal offense, knowingly and intentionally transports or moves an illegal alien in a motor vehicle for the purpose of furthering the illegal presence of the alien in the United States shall be guilty of the offense of transporting or moving an illegal alien."1 30 Section 8 authorizes law enforcement officers are authorized to investigate the immigration status of criminal suspects where the officer has probable cause to believe the suspect committed another 359ea54b51f8.html (last visited May 15, 2012).

125. Seth Freed Wessler, Bills Modeled After Arizona's SB 1070 Spread AM, 10:33 2, 2011, Mar. Through States, COLORLINES, (last http://colorlines.com/archives/2011/03/sb_1070_copycat-bills.html visited May 15, 2012). States following Arizona's lead include: California; Florida; Georgia; Illinois; Indiana; Kentucky; Maine; Michigan; Mississippi; Nebraska; North Carolina; Oklahoma; South Carolina; Tennessee; Texas; and Utah. Id. 126. H.B. 87, 151st Gen. Assemb., 1st Reg. Sess. (Ga. 2011), availableat http://www.legis.ga.gov/Legislation/20112012/116631.pdf.b 127. Jeremy Redmon, GovernorSigns Arizona-Style Immigration Bill Into PM, 6:26 2011, 13, May J.-CONST., ATLANTA Law, http://www.ajc.com/news/georgia-politics-elections/govemor-signs-arizonastyle-944703.html.

128. Ga. H.B. 87, ยง 3.

129. Id. ยง 4-6.

130. Id. ยง 7 (creating O.C.G.A. ยง 16-11-200).

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criminal offense.13 1 If a valid form of identification is not presented, and it is determined the suspect is in the United States illegally, such officer may detain the suspect, transport him/her to a detention facility, or notify the Department of Homeland Security.1 32 After the passage of HB 87, Civil Rights oups immediately challenged the constitutionality of the Bill, arguing it violated traditional notions of federalism and, as enacted, would result in a myriad of unlawful arrests.' 34 After hearing arguments from both sides, U.S. District Judge Thomas W. Thrash, Jr. issued an injunction against several provisions of the Bill 35 reasoning "[s]uch discretion poses a serious risk that HB87 will result in inconsistent civil immigration policies not only between federal and state governments, but among law enforcement jurisdictions

within Georgia."1 36 D. Growing Concerns Over HB 87 While the civil suit ruling blocked some of the more controversial portions of HB 87, the remaining provisions went into effect on July 1, 2011.137 By the summer of 2011 however, news of Georgia's immigration law had already compelled many undocumented individuals and entire families to quit their jobs and relocate due to a fear of the law's potential reach.i1s 131. Id. ยง 8 (creating O.C.G.A. ยง 17-5-100).

132. Id. 133. Ga. Latino Alliance for Human Rights v. Deal, 793 F.Supp.2d 1317 (N.D. Ga. 2011).

134. Id. at 1322-23.

135. Id. at 1322. The Preliminary Injunction applied to Section 8, which "authorizes Georgia law enforcement officers to investigate the immigration status of criminal suspects where the officer has probable cause to believe the suspect committed another criminal offense[,]" and Section 7, which penalizes anyone "'transporting or moving an illegal alien,' 'concealing or harboring illegal aliens,' or 'inducing an illegal alien to enter into [Georgia]' while committing another criminal offense." Id. (internal citations omitted).

136. Id. at 1332 (footnote omitted); accord Jeremy Redmon, Judge Halts Parts of Anti-Illegal ImmigrationLaw, ATLANTA J.-CONST., June 27, 2011, http://www.ajc.com/news/georgia-politics-elections/judge-halts-parts-of989631 .html.

2011), (July 1, 87, H.B. Assemb., Gen. Ga. 137. http://www.legis.ga.gov/legislation/en-US/display/32190.

138. E.g., Tom Baxter, How Georgia's Anti-Immigration Law Could Hurt

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As a result, the shift in migrant labor posed specific challenges for many rural communities where undocumented workers make up a majority of the agricultural work force; "bring[ing] in 12 percent roughly $67 billion) of the state's gross domestic product[.]"' 9 Law enforcement officials in these immigrant communities also worried about the impact HB 87 would have on the communities as a whole, acknowledging the likelihood of increased racial profiling and expressed great concern with the effect the Bill would have on public safety. 140 Mainly, officials feared that the actual implementation of the program-the transporting of arrestees and the verification of their immigration status-would allow them less time to patrol and prevent crime in their own towns;141 thereby jeopardizing the safety of the communities in which they live.

While the full extent of HB 87's impact has yet to be determined, it has nonetheless placed law enforcement officials and immigrant communities on opposite ends of a growing political debate.

E. Impact ofLocalized Enforcement oflmmigration Laws on Undocumented Victims of Crime Partnerships with local law enforcement and state antiimmigration legislation have had a profound effect on victims of crimes who lack legal status to be in the United Statesspecifically women victims of domestic abuse. Cultural and linguistic barriers prevent this demographic from reporting crimes committed against them, while fear and intimidation too often compel them to return to their abuser.142 the State's (and the Nation's) Economy, CTR. FOR AMERICAN PROGRESS 6 (Oct. 2011), available at 11/1 0/pdf/georgia-immigration.p http://www.americanprogress.org/issues/20 df.

139. Id. at 1 (footnote omitted).

140. Plaintiffs Brief in Support of Motion for Preliminary Injunction at 52-53, Ga. Latino Alliance for Human Rights v. Deal, 793 F. Supp. 2d 1317 (N.D. Ga. June 27, 2011) (Civil Action No. 1:11-CV-1804-TWT), 2011 WL 2438945..

141. Id. at 53.

142. See Catherine F. Klein et al., Border Crossing: Understanding the Civil, Criminal,and Immigration Implicationsfor Battered Women Feeling Across State Lines with Their Children, 39 FAM. L.Q. 109, 110 (2005).

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Battered women generally in the United States tend to have low rates of crime reporting, averaging somewhere between 53% and 58%.143 If the woman is undocumented however, that number decreases drastically.144 Therefore, a brief look at some of the obstacles and concerns facing foreign-born women can help shed light on the disparity in these numbers.

Often having come to the United States with just the clothes on their back, many foreign-born women are emotionally and financially dependent on their spouses for support. 4 5 Adding children into the equation makes it increasingly difficult for a woman to be self-sufficient and raises the added concern of family unity. 14 6 Concurrently, a lack of awareness to the various legal and social services available to domestic violence victims compels women to try and work things out with their abuser, rather than seeking the assistance they are legally entitled to.14 7 In fact, "[a]ccording to a 2006 study, 60.9% of 143. Cf Martha L. Coulter et al., Police-Reporting Behavior and VictimPolice Interactions as Described by Women in a Domestic Violence Shelter, 14 J. INTERPERSONAL VIOLENCE 1290, 1293 (1999); Callie Marie Rennison & Sarah Welchans, Intimate Partner Violence, U.S. DEP'T OF JUSTICE, BUREAU OF JUSTICE STATISTICS SPECIAL REPORT 7 (May 2000), available at

http://bjs.ojp.usdoj.gov/content/pub/pdf/ipv.pdf.

144. CHRIS HOGELAND & KAREN ROSEN, DREAMS LOST, DREAMS FOUND: UNDOCUMENTED WOMEN IN THE LAND OF OPPORTUNITY 12-13 (1991)

(reporting a 48% report rise in family violence following immigration); Giselle Aguilar Hass et al., Battered Immigrants and U.S. Citizen Spouses, LEGAL

MOMENTUM

3

(Apr.

24,

2006),

available

at

(indicating http://legalm.convio.net/site/DocServer/dvusc.pdfdoclD=314 "31% of battered women reported an increased in the incidence of abusive incidents after their immigration to the United States"); see also Linda Kelly, Stories from the Front: Seeking Refuge for Battered Immigrants in the Violence Against Women Act, 92 Nw. U. L. REv. 665, 678 (1998) ("In one study of refugee and immigrant women, only 6 of the 304--a troubling two percent of--battered women interviewed reported calling the police for help[J").

145. Note, Michelle J. Anderson, A License to Abuse: The Impact of ConditionalStatus on Female Immigrants, 102 YALE L.J. 1401, 1403 (1993).

146. Id. at 1402-04.

147. Federal law further guarantees that all persons, without regard to immigration status, have access to programs and services necessary to protect life and safety, including shelter, emergency medical services, victims assistance, soup kitchens, and disaster relief. See 8 U.S.C. ยง1357(g) (2006) (added as ยง287(g) of the Immigration and Nationality Act by ยง133 of the Illegal Immigration Reform and Immigrant Responsibility Act)

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battered immigrant victims had no prior knowledge of protection orders before seeking help from a law enforcement or social services agency. 1 48 Even if the victim is able to muster the courage to come forward, language barriers further prevent her from being able to convey her side of the story, and at times, enable the abuser to manipulate the situation and use the legal system against her. 149 These barriers to receiving cooperation from undocumented victims of crime are compounded by the fear of deportation in jurisdictions that have given state and local officials the authority to enforce immigration laws.150 The following scenario, a hypothetical taken from an actual (authorizing the federal government to enter into agreements with state and local law enforcement agencies to permit those agencies to enforce federal immigration law); Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub L. No. 104-193, 110 Stat. 2105 ("PRWORA") (codified as 8 U.S.C. §§ 161 l(b)(1)(D), 1621(b)(4)). See also Final Specification of Community Programs Necessary for Protection of Life or Safety Under Welfare Reform Legislation, 66 Fed. Reg. 3613-02 (Dep't of Justice, Jan. 16, 2001).

148. Quereshi, supra note 97, at 283-84 (citing MARY ANN DUTTON ET AL., USE AND OUTCOMES OF PROTECTION ORDERS BY BATTERED IMMIGRANT WOMEN iv (2006), available at

https://www.ncjrs.gov/pdffilesl/nij/grants/218255.pdf).

149. E.g., Holly Maguigan, Wading into Professor Schneider's "Murky Middle Ground" Between Acceptance and Rejection of Criminal Justice Responses to Domestic Violence, 11 AM. U.J. GENDER SOC. POL'Y & L. 427, 441 (2003) (arguing "language and cultural barriers create problems that many court systems are unequipped to handle because of the lack of bilingual court personnel"); Jamie Rene Abrams, Legal Protectionsfor an Invisible Population: An Eligibility and Impact Analysis of U Visa Protectionsfor Immigrant Victims of Domestic Violence, 4 THE MODERN AM. 26, 33 (2008), available at http://www.wcl.american.edu/modemamerican/documents/JamieAbrams.pdf ?rd=1 ("It is critical to ensure that the target population is both aware of the relief and able to utilize it. Many may be reluctant to seek relief because of the uncertainty of the waitlist, and many are also non-English speakers without legal assistance."). In addition, victims have reported that their interactions with law enforcement can be difficult due to "law enforcement's limited knowledge of women and domestic violence generally, the lack of available translators, insufficient sensitivity to issues of culture and gender, and a lack of understanding as to why immigrants might be reluctant to talk to police or provide details of the crime." Id. at 32.

150. See Abrams, supra note 149, at 31.

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case, highlights the significance of these obstacles.

Silvia came to the United States from Honduras with her then boyfriend/father of her son. After a physical altercation one night, Silvia's five year old son called the police because his father was beating his mother. When the police arrived, the boyfriend convinced the officer it was Silvia who assaulted him.

Due to her inability to speak English, Silvia was unable to convey her side of the story to the officer, nor was she able to understand why the officer was putting the handcuffs on her when she was in fact the victim. The police arrested Silvia, issued an ICE detainer on her, and transported her to a detention facility in Alabama-leaving her son under the care of his abusive father.

An undocumented woman, who is a victim of a crime, is often forced to make the difficult decision of staying in an abusive relationship because gaining independence from an abuser would require the woman to be able to work and drive her kids to and from school. In Georgia, for example, either of these actions could lead to the victim's detention and eventual deportation.15 1 If deported, the women victim runs the risk of being separated from her family, and equally as frightening, being re-victimized in her home country where the abuser or his family and friends can easily find her.

IV. U VISA CERTIFICATION AS ABRIDGE TO COOPERATIVE COMMUNITY POLICING A. Common MisconceptionsAbout U Visa Certification Despite the fact that Congress created the U Nonimmigrant status to bolster cooperation between law enforcement agencies and immigrant communities, common misconceptions about the scope and intent of the U visa have prevented LEAs from taking full advantage of the opportunity to regain the trust of immigration communities.

In their presentation, Pendleton and Alvaregan-Watkins advance three questions that LEAs should answer when asked to sign a certification.152 First, has the person requesting certification been a victim, direct or indirect, of a qualifying 151. Cf O.C.G.A. ยง 40-5-20 (West 2012) (providing requirements for the lawful operation of a motor vehicle within the state).

152. Pendleton & Alvarenga-Watkins Seminar, supra note 83.

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crime?l 5 3 Second, does the. victim have information that would assist in the investigation or prosecution of the crime? 54 The third question is whether that victim has been, is being, or is likely to be helpful in the investigation or prosecution of the qualifying crime?1 55 By asking these three simple questions at the outset, LEAs will not only gather the relevant information necessary for issuing the U visa, the LEAs themselves will begin to understanding the requirements associated with the U visa.

LEAs may be hesitant to certify U status applications because they look beyond these three basic questions. Some LEAs in Georgia have blanket policies where no Form 1-918 Supplement B is ever signed.' 5 6 Other LEAs only certify if there was a successful prosecution, 57 while others will only certify in open cases.

As a result, others still must be convinced of the substantial harm done to the victim before certifying a U status application.159 By creating these special policies, the LEAs are 153. Id. 154. Id. 155. Id. 156. Specifically, the Solicitor General's Office in Cherokee County, Georgia follows such a policy. Email from Sara M. Grainger, Senior Assistant Solicitor Gen., Cherokee Cnty, Ga., to Tracie L. Klinke (June 20, 2011, 12:46 PM) (on file with the John Marshall Law Journal). Such blanket policies are seemingly based on political pressures. But U status applications are provided great confidentiality protection and are not public record. 8 USC §§ 1367(a)(2), (c) (West 2012); see also Memorandum from John B. Torres, Dir., Office of Detention and Removal Operations, & Marcy M. Forman, Dir., Office of Investigations, for Field Office Directors and Special Agents in Charge (Jan. 22, 2007), available at http://iwp.legalmomentum.org/vawa-confidentiality/govemmentmemoranda-andfactsheets/VAWA%20CONF Torres%201CE%20VAWA%20Confidentialit y%20MemoI .22.07.pdf.

157. For example, the District Attorney's Office of Forsyth County, Georgia will not certify unless the prosecution was successful. Email from Beth Savage, Super. Ct. Victim Advocate, Forsyth Cnty., Ga., Dist.

Attorney's Office, to Tracie L. Klinke (Sept. 6, 2011, 3:09 PM) (on file with the John Marshall Law Journal) (stating that because "the defendant had fled ... [the office] would not sign a U-Visa").

158. Based on the experience of the Authors, the Cobb County Police Department has such a policy.

159. Email from Sir G. Streeter, Supervisory Special Agent, Immigration

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contravening Federal law and Congressional intent regarding U status.160 In particular, by only certifying in cases where there is an active prosecution occurring, the LEAs have completely negated the second prong of U status - that it was designed to encourage all victims to come forward. This may not be intentional however, since certifying U status applications is an unfunded mandate and limited training is provided to LEAs.161 Thus, increased funding and training may help resolve the confusion surrounding U status application certification.

LEAs are often looking for the "perfect victim"-someone with no criminal history and who warrants extreme sympathy.162 LEAs in Gwinnett County, Georgia, for example, will not certify in a case where the victim participated in illegal activity leading to a criminal charge.' 63 However, it is up to USCIS to look at such a negative factor and determine whether or not a waiver will be granted, based on the "totality of the circumstances."l 64 Under U status, it is not the responsibility of the LEAs to make a determination on a victim's background.

The LEA should simply look at whether or not the foreign national was helpful in the investigation or prosecution of the * 165 cnme.

Another area of misunderstanding is that the LEAs fear that by signing Form 1-918 Supplement B, they are endorsing or and Customs Enforcement, Homeland Security Investigations, to Tracie L. Klinke (Dec. 3, 2010, 8:07 AM) (on file with the John Marshall Law Journal).

160. Pendleton Interview, supra note 82 (stating "Republicans wanted to create U status to enable community policing").

161. Id. 162. Id. 163. Letter from Stan L. Hall, Dir., Victim Witness Program, Gwinnett Jud. Cir., to Loren Locke, Assoc. Attorney, Law Office of Cherie E. Cookorinis, P.C. (June 8, 2011) (on file with the John Marshall Law Journal).

164. See FORM 1-918 SUPPLEMENT B INSTRUCTIONS 3 (Nov. 23, 2010), availableat http://www.uscis.gov/files/form/i-918instr.pdf; see also Abrams, supra note 149, at 30 ("Congress gave USCIS the authority to issue waivers of inadmissibility to petitioners who are otherwise inadmissible to the United States if it determines that a waiver is 'in the public or national interest."') (quoting 72 Fed. Reg. 53,021 (2007)).

165. Interview with Frank Rotondo, Exec. Dir., Ga. Ass'n of Chiefs of Police, in Duluth, Ga. (Sept. 28, 2011) [hereinafter Rotondo Interview].

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sponsoring an undocumented immigrant and her family to become lawful permanent residents of the United States.166 Signing a certification does not mean that the LEAs are "soft" on immigration matters.167 U status is a creation of Congress and is a valid, legitimate avenue for immigrants to gain status in the United States. As Solicitor General Tasha Mosley of Clayton County observes: It is not about liking or not liking folks. This is a right that they have. It is an avenue they have to try and become documented. You help me solve a crime, thank you, and I am happy to sign to say you were helpful and helped get another bad nerson off the street. Documented or not does not matter.163 Currently, some LEAs have questions on when to certify a case. In an ongoing case, it may be better to certify in the beginning so that the victim can feel comfortable with the LEAs as quickly as possible. An earlier certification may also undermine any future claims by the defense that the victim is exaggerating her testimony in order to gain the certification.169 For a case that has been closed, there is even less of an appearance of ulterior motives or fraud.170 B. Benefits of Certifying When Congress created the U visa, it was not necessarily about the individual victims, but rather how LEAs could gain the trust of undocumented immigrant communities.1 7 1 Police departments take an oath to serve and protect their entire communities-they do not et to choose which parts of those communities they protect.

LEAs need information about criminal activity from people who are in the country legally and illegally. 173 U status allows undocumented victims to seek assistance from LEAs without fearing deportation. This is 166. Pendleton & Alvarenga-Watkins Seminar, supranote 83.

167. See id.

168. Telephone Interview with Tasha Mosley, Solicitor Gen., Clayton Cnty, Ga. (Sept. 27, 2011) [hereinafter Mosley Interview].

169. Pendleton, Winning the U Visas, supra note 57.

170. Mosley Interview, supra note 168.

171. Pendleton Interview, supra note 82.

172. Rotondo Interview, supra note 165.

173. Id.

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particularly true in Georgia, where HB 87 has created an even greater atmosphere of fear and distrust among the undocumented community. 174 Moreover, gaining information from undocumented immigrants leads to safer communities. For LEAs who are open to U certifications, the undocumented population is more likely to report crimes, and as a direct result, the crime rate against immigrants should go down.175 Often perpetrators are involved in other criminal activity, enabling the U status applicant to help put repeat offenders in jail. For example, men who abuse their wives or girlfriends may have connections to gun or drug trafficking. By prosecuting the offense of domestic violence, a dangerous felon is taken off the streets and potentially out of the country.176 V. CONCLUSION

LEAs may be conflicted by the mandates of HB 87 and ยง 287(g) when confronted with an undocumented immigrant victim of crime who seeks a certification for a U status application. But U status was created to alleviate any tension between the LEAs desire to enforce laws and the unlawful presence of undocumented foreign nationals. By certifying a U status application; LEAs do not endorse of the applicant's immigration history. The LEAs simply certify that the applicant was a victim of a certain crime who was helpful in the prosecution. In the end, the onus remains with USCIS to determine whether or not the applicant will be granted lawful non-immigrant status.

More education throughout the local LEAs communities has the potential of having a positive impact in individual communities. The next question is who is the educator? It is important that unbiased, informed information be available to LEAs. Currently, it appears as though LEAs are training being misinformation leading to themselves, - often Conversely, the worst time for a legal disseminated.1 77 174. Id. 175. Mosley Interview, supra note 168.

176. Id. 177. Id. (stating that she received her training from the Gwinnett County court system). The Gwinnett County District Attorney's Office, however,

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advocate to educate LEAs on U status is when asking for the certification; where suspicion may be aroused.17 8 Ideally, education should occur in a neutral setting where LEAs can ask questions and receive information directly from USCIS officials and attorneys; thereby enabling these individuals to share practice pointers across the spectrum.

USCIS makes such trainings available, but the LEAs must be internally motivated to attend, as there are no incentives such as continuing education credit available for the LEAs. Thus, if the Georgia Legislature were to encourage the signing of U certifications by making a simple statement regarding its value to law enforcement and local communities, the legislature could provide the visibility and push needed to bring this program out of the shadows.

Ultimately, the issues should not be viewed as simply an immigration issue, but rather a safety issue. Victims of crime would become more likely to report crimes and LEAs would have better access to victims who might have otherwise absconded out of fear of deportation if the U certification tool were more frequently utilized.

requires that the applicant demonstrate substantial harm, which as discussed above is only the purview of USCIS. Id. 178. Pendleton Interview, supra note 82.

HUMAN RIGHTS ENFORCEMENT IN U.S. IMMIGRATION LAW: A MISSED OPPORTUNITY FOR ENGAGEMENT WITH INTERNATIONAL LAW?

GLENNA MACGREGOR* & JESSICA C. MORRIS"

ABSTRACT

Within U.S. immigration law, a body of jurisprudence has developed interpreting certain human rights provisions within the U.S. Immigration and Nationality Act ("INA") whose function is to exclude or deny immigration benefits to human rights offenders. These provisions include the "persecutor bar," serving to deny aliens various forms of immigration relief, and inadmissibility and removability grounds related to participation in human rights offenses such as genocide, torture, extrajudicial killing, and recruitment of child soldiers.

Immigration Judges have the primary responsibility for interpreting these components of the INA and must analyze what type of conduct rises to the level of persecution or torture, the burden of proof in establishing that an applicant participated in persecution, and the credibility of witnesses and documents addressing persecution.

Often, these decisions explicitly analyze criminal international law principles derived from international tribunals and international human rights instruments. U.S. Immigration Courts are procedurally distinct from either the U.S. federal civil or criminal law systems. For example, the Federal Rules of Evidence do not apply, there is

* Senior Trial Attorney, Human Rights and Special Prosecutions section of the Criminal Division of the United States Department of Justice. ** Senior Trial Attorney, Human Rights and Special Prosecutions section of the Criminal Division of the United States Department of Justice. The views expressed in the Article are exclusively those of the Authors and do not necessarily represent the views of the Department of Justice. The authors wish to thank Scott Titshaw, Associate Professor of Law at Mercer Law School, for his insights during the development of this Article.

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no right to court-appointed counsel, and neither party has discovery obligations. Although procedurally different, U.S. Immigration Courts still generate a recognized and robust body of law. Because immigration decisions are not published at the initial stage, our analysis will rely on the appellate jurisprudence as reflected in the Board of Immigration Appeals caselaw as well as the U.S. Circuit Courts of Appeal.

This Article focuses on the treatment of international law concepts relating to human rights as they have been developed in U.S. immigration law. Specifically, the Article examines the extent to which U.S. immigration law relies upon international human rights law as the framework for both factual and legal analysis.

Then, the Article determines whether there is uniformity in the interpretation of the INA as it relates to human rights concepts across the U.S. Circuit Courts of Appeal.

Finally, the Article explores whether this body of jurisprudence has been acknowledged by and/or relied upon in either international dialogue or actual caselaw interpreting human rights concepts.

TABLE OF CONTENTS 1.

INTRODUCTION

II.

OVERVIEW OF HUMAN RIGHTS-RELATED PROVISIONS

.................................

OF U.S. IMMIGRATION LAW

.......

................

.......... 469

...................

A. B.

PersecutorBar ........................... ......

Inadmissibility/Removabilitygrounds .................

1. Nazi Persecution ....................... ......

2. Genocide ..................................

3. Torture and Extrajudicialkilling .................

4. Recruitment of Child Soldiers ....................

C Other Immigration Charges..................................

D. CriminalImmigration Charges Against Human Rights Abusers......... ............

III.

473

474 478 478 479 480 482 484 484

RELIANCE ON INTERNATIONAL HUMAN RIGHTS AND CRIMINAL LAW IN THE UNITED STATES IMMIGRATION CONTEXT

..............................

.......

487

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IV.

ImmigrationPractitioner'sLandscape: reliance on ................. 488 internationallaw sources ..........

The U.S. Supreme Court's Receptiveness to the 489 UNHCR Handbook. .............................

Examples ofReliance on InternationalLaw ..... 491 Principlesin the ProtectionContext .............

PERSECUTOR BAR JURISPRUDENCE, ARTICLE IF(A), AND THE IMPORT OF STATUTORY LANGUAGE .

A. B.

V.

469

..................

495

496 .............................

Negusie Case Study The Elephant in the Room: The Disconnect Between the PersecutorBar andArticle IF(a) ....................... 500

INTERNATIONAL CRIMINAL LAW AS A BUILDING BLOCK IN U.S. IMMIGRATION JURISPRUDENCE REGARDING EXCLUSION OF HUMAN RIGHTS VIOLATORS

A. B.

VI.

.....................

Matter ofD-R-: Building a FactualRecordBased on Documents From the ICTY...........................

Incitement to Genocide - "Persecution" by ..... ............................

Another Name

CONCLUSION

...............................................

I.

504

505 506 510

INTRODUCTION

Within U.S. immigration law, certain provisions in the U.S. Immigration and Nationality Act ("INA") function to exclude or deny immigration benefits to human rights offenders seeking to visit or immigrate to the United States.' These provisions include the modem "persecutor bar," denying aliens various forms of immigration relief,2 as well as inadmissibility and removability grounds relating to participation in human rights

1. Immigration and Nationality Act of 1952, Pub. L. No. 82-414, 66 Stat.

163 (1952) (codified as amended in scattered sections of 8, 18, and 22 U.S.C.).

2. See 8 U.S.C. ยง 1158 (West 2012).

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offenses such as genocide, torture, extrajudicial killing, and recruitment of child soldiers. 3 These bars to relief and exclusionary grounds have strong ties to international criminal law insofar as the conduct that the bars identify, is also proscribed by customary international law and various international criminal law instruments such as the Rome Statute.4 In light of this clear linkage, this Article examines the extent to which U.S. immigration jurisprudence, including both administrative and federal caselaw, relies on, cites to, or engages with international criminal law targeted at international human rights enforcement. This exercise necessarily will also reflect the extent to which U.S. immigration jurisprudence ignores the exegesis of international human rights law principles developed in international criminal tribunal caselaw and scholarly work.

Part II of this Article provides a description of the various provisions in the INA that function to exclude or deny admission to human rights violators. Part II.A. briefly discusses the pedigree of these provisions, especially insofar as they are linked to, or cross reference, criminal law or treaty-based norms.

In addition to cataloguing these tools, this Part examines the extent that each provision has actually been utilized. Part II concludes with a discussion of alternative charges, from both an immigration and criminal law perspective that may be levied by attorneys with U.S. Immigration and Customs Enforcement ("ICE") or federal prosecutors to exclude human rights offenders as the more specific human rights provisions.

Part III begins by exploring the extent to which international human rights and criminal law principles are relied upon by immigration law practitioners in applying the human rights exclusion grounds in the INA. Part III then discusses the U.S. Supreme Court's receptiveness to the United Nations High 3. Id. ยง 1182(a)(3)(E)(i)-(iii) (defining "Inadmissible aliens" as "[p]articipants in Nazi persecution, genocide, or the commission of any act of torture or extrajudicial killing"); Id. ยง 11 82(a)(3)(G) ("Recruitment or use of child soldiers"); Id. ยง 1227(a)(4)(D) (West 2012) (defining grounds of "Deportable aliens" as participation "in Nazi persecution, genocide, or the commission of any act of torture or extrajudicial killing").

4. ROME STATUTES OF INTERNATIONAL CRIMINAL COURT, July 17, 1998, 2187 U.N.T.S. 90.

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Commissioner for Refugees ("UNHCR") Handbook on Criteria and Procedures for Determining Refugee Status ("UNHCR Handbook") 5 to highlight the mixed messages sent by the Court regarding the need to interpret treaty-based statutes consistently with international norms. With the exception of persecutor bar jurisprudence, which is addressed in Part IV, the body of caselaw addressing human rights exclusion grounds is fairly undeveloped. We therefore look to the relatively robust body of caselaw examining protection from removal in the form of asylum, and withholding of removal briefly at the end of Part III for examples of influences of international human rights and criminal law principles in interpreting the INA. The INA's persecutor bar provisions embody the exclusion grounds set forth in Article 1F(a) of the 1951 Convention Relating to the Status of Refugees and the Protocol ("Refugee Convention"),6 which specifically incorporates international criminal law. In light of this apparent connection, Part IV examines the Supreme Court's recent treatment of the persecutor bar in Negusie v. Holder with a focus on the Court's reliance on international criminal law. While other foreign jurisdictions have adopted the exact exclusionary language of Article 1F(a), the language of the INA's persecutor bar varies considerably. As a result, this Article suggests that persecutor bar jurisprudence is less likely to be a conduit for international criminal law norms.

Finally, Part V identifies several ways in which international criminal law principles have surfaced in litigation involving the INA's human rights exclusion grounds. While American courts may be slow to recognize the relevance of jurisprudence from international criminal law bodies, Part V discusses a recent case in which the Board of Immigration Appeals ("BIA") relied on the factual findings and evidence from an.international tribunal 5. OFFICE OF THE UNITED NATIONS HIGH COMM'R FOR REFUGEES, HANDBOOK ON PROCEDURES AND CRITERIA FOR DETERMINING REFUGEE STATUS UNDER THE 1951 CONVENTION AND THE 1967 PROTOCOL RELATING TO THE STATUS OF REFUGEES (1992), http://www.unhcr.org/3d58el3b4.html [hereinafter REFUGEE STATUS HANDBOOK].

6. Office of United Nations High Comm'r for Refugees, Convention and Protocol Relating to the Status of Refugees 16, http://www.unhcr.org/3b66c2aal0.html [hereinafter 1951 Convention].

7. Negusie v. Holder, 555 U.S. 511 (2009).

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in affirming the Immigration Judge's holding in a human rights violator case.8 Ultimately, this Article recognizes that, in limited instances, U.S. courts have acknowledged that the work of international tribunals can provide useful guidance in interpreting concepts such as persecution and genocide, despite their differing legal authorities.

Throughout the Article, the ability to undertake a comprehensive analysis of U.S. immigration law is limited by a number of factors inherent to U.S. immigration practice and procedure, especially in the area of asylum law. Although Immigration Judges handle an enormous volume of cases annually, about eight percent of which are asylum, their decisions are neither published nor precedential. 9 Indeed, only those decisions which are appealed by either party are submitted for review to the BIA.' 0 Moreover, due to strict regulatory requirements of confidentiality surrounding asylum applications, even anecdotal reporting about the decisionmaking process on the administrative level is very limited." A very small number of decisions issued by the BIA are published, or are even articulated beyond a summary affirmance.12 In addition, changes to the procedures of the BIA implemented in 2002 have resulted in even fewer published decisions. 13 8. See infra Part.V.

9. For example, in 2010, Immigration Judges received a total of 392,888 cases, 32,961 of which were applications for asylum. U.S. DEP'T OF JUSTICE, EXEC. OFFICE OF IMMIGRATION REVIEW, FY 2010 STATISTICAL YEAR BOOK Al, II (Jan. 2011), http://www.justice.gov/eoir/statspub/fylOsyb.pdf.

10. See 8 C.F.R. ยง 1003.1(b) (West 2012).

11. See 8 C.F.R. ยง 208.6 (West 2012).

12. E.g., Stephen H. Legomsky, RestructuringImmigration Adjudication, 59 DUKE L.J. 1635, 1657-58 (2010) (discussing "the so-called 'affirmances without opinion' . . . cases in which the BIA is prohibited from giving

reasons for its decisions") (citation omitted).

13. 8 C.F.R. ยง 1003.1(e)(4). E.g., John S. Kane, Deference as Death Sentence-The Importance of Vigilant Judicial Review of Refugee-Claim Denials, 47 U. LOUISVILLE L. REv. 279, 290-91 (2008) (providing review of the BIA structure and process for producing published decisions); Legomsky supra, note 12, at 1657-65 (analyzing and criticizing the "procedural Shortcuts at the BIA"); Eliot Walker, Asylees in Wonderland: A New ProceduralPerspective on America's Asylum System, 2 Nw. J. L. & Soc.

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Although there is a robust body of immigration law at the appellate level, the caselaw relating to human rights offenses in the context of immigration law is narrowed only to those issues that remain at play throughout this appellate process. As a consequence, the published caselaw likely only reflects a small portion of what could be occurring in this area at the administrative level. Despite a dearth of publically available caselaw, it is clear that the exclusion of human rights offenders is a focus of the U.S. government, evidenced by the existence of the Human Rights Violators and War Crimes Unit ("HRVWCU") of ICE. 14 The purpose of the HRVWCU is to conduct investigations and initiate removal proceedings against human rights violators' present or seeking entry to the United States.' 5 Therefore, there may be much more unpublished relevant jurisprudence at the administrative level, which traditional legal research is unable to access. To help illustrate this issue, the media recently reported that an Immigration judge in Orlando, Florida found former El Salvadoran defense minister General Carlos Eugenio Vides Casanova deportable on the basis that "he assisted in acts of torture and murder committed by soldiers under his command during the civil war there, including several notorious killings of Americans." 1 6 Neither the administrative charges nor the Immigration Judge's order are available to the public for review however.

II. OVERVIEW OF HUMAN RIGHTS-RELATED PROVISIONS OF

U.S. IMMIGRATION LAW Various components of the INA limit aliens' access to the United States on the basis of participation in human rights

POL'Y 1, 32 (2007) (reviewing "BIA streamlining, a procedure whereby a single BIA member must affirm an immigration judge's decision without opinion").

14. U.S. IMMIGRATION & CUSTOMS ENFORCEMENT, THE HUMAN RIGHTS & WAR CRIMES UNIT, http://www.ice.gov/human-rights-

VIOLATORS

violators/ (last visited May 15, 2012).

15. Id. 16. Julia Preston, Salvadoran May Face Deportationfor Murders, N.Y. TIMES, Feb. 24, 2012, at A17, available at http://www.nytimes.com/2012/02/24/us/salvadoran-may-be-deported-fromus-for-80-murders-of-americans.html?_r-1 (last visited May 15, 2012).

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offenses. This Part will briefly describe those provisions, highlighting especially those with an explicit reference or link to international legal instruments.

A. PersecutorBar The so-called "persecutor bar" serves as a barrier to several forms of immigration relief. Although the bar affects relief in different forms, analysis of the bar is overwhelmingly developed in jurisprudence related to applications for asylum or withholding of removal, also known as protection law."7 The INA provides that an alien who "ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion[]" is not eligible for asylum.1 8 The same bar applies to aliens applying for withholding of removal.19 These provisions were enacted as part of the Refugee Act of 1980.20 The Refugee Act was promulgated in an attempt to bring the United States into compliance with international law regarding the treatment of refugees, The analogous specifically the Refugee Convention. 21

17. The persecutor bar also applies to: applications for cancellation of removal for permanent and nonpermanent residents, 8 U.S.C. § 1229b(c)(5) (West 2012); "Adjustment of status for certain entrants before January 1, 1982," Id. § 1255a(a)(4)(C) (West 2012); "Temporary protected status[,]" Id. § 1254a(c)(2)(B)(ii) (West 2012); adjustment for a relative of an asylee, 8 C.F.R. § 208.2 1(a) (West 2012); and the Nicaraguan Adjustment and Central American Relief Act, Pub. L. No. 105-100, 111 Stat. 2160 (1997) (as applied to Salvadorans and Guatemalans under "Eligibility for special rule cancellation of removal." 8 C.F.R. § 1240.66(a) (West 2012)).

18. INA § 208(b)(2)(A)(i), 8 U.S.C. § 1158(b)(2)(A)(i).

19. INA § 241(b)(3)(B), 8 U.S.C. § 1231(b)(3)(B) (West 2012).

20. Refugee Act of 1980, Pub. L. No. 96-212, 94 Stat. 102 (1980) (codified as amended in scattered sections of 8 U.S.C.). The Refugee Act enacted uniform procedures to determine admission for those persons defined as refugees and created a quota system for the admission of these individuals. Id. 21. E.g., Immigration and Naturalization Serv. v. Cardoza-Fonseca, 480 U.S. 421, 436-37 (1987) ("If one thing is clear from the legislative history of the new definition of 'refugee,' and indeed the entire 1980 Act, it is that one of Congress' primary purposes was to bring United States refugee law into conformance with the 1967 United Nations Protocol Relating to the Status of Refugees, to which the United States acceded in 1968. Indeed, the definition

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exclusionary ground in the Convention is found in Article 1F(a), which states that the Convention's protections "shall not apply to any person with respect to whom there are serious reasons for considering that: (a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes[.]" 22 By excluding persecutors from its umbrella of protection, the Refugee Act certainly captures the spirit of the Article IF(a) exclusion.2 3 However, the significant difference between the language of the two provisions-especially the fact that the persecutor bar does not explicitly reference international criminal law-has created a gulf between persecutor bar jurisprudence and the development of parallel concepts of exclusion under the Convention.24 Because the INA does not track the language of the Article IF(a) exclusion grounds in the Convention, reference to international law in U.S. jurisprudence is not as likely as it is in those jurisdictions in which the legal framework specifically incorporates the exclusion language of Article IF(a).2 6 The INA does not explicitly define persecution either in the context of the bar or as an element of an asylum claim. In of 'refugee' that Congress adopted, is virtually identical to the one prescribed

by Article 1(2) of the Convention. . . .") (internal citations omitted); Negusie v. Holder, 555 U.S. 511, 520 (2009) ("As Congress has twice recognized, 'one of Congress' primary purposes' in passing the Refugee Act was to implement the principles agreed to in the 1967 United Nations Protocol Relating to the Status of Refugees,' as well as the 'United Nations Convention Relating to the Status of Refugees[J") (internal citations omitted).

22. 1951 Convention, supra note 6, at 16.

23. See discussion infra Part IV. 24. See Joseph Rikhof, War Criminals Not Welcome; How Common Law Countries Approach the Phenomenon of International Crimes in the Immigration and Refugee Context, 21 INT'L J. REFUGEE L. 453, 502 (2009) (noting that U.S. refugee law does not reference Article 1F(a) and highlighting as a possible cause the fact that "the [U.S.] legislative provisions dealing with war criminals bear[s] little resemblance to the ones of other countries, especially in the refugee area").

25. Compare Refugee Act of 1980; with 1951 Convention, supra note 6, at 16. See also Rikhof, supra note 24, 502.

26. See discussion infra Part IV.

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addition, persecution is not defined in the Convention or any other international instrument; though several reference it.

Instead, the INA definition has developed through caselaw.

Modern courts continue to rely upon cases analyzing the Displaced Persons Act of 1948 ("DPA")28 to interpret persecutor law. 29 Congress intended for the DPA to guide the interpretation of exclusions in the INA. 30 Although this Article

27. E.g., ROME STATUTE art. 7.1(h) (referring to persecution in the context of the definition of "crime[s] against humanity"). See also GUY S. GOODWIN-GILL & JANE McADAMS, THE REFUGEE IN INTERNATIONAL LAW 90-100 (3d ed. 2007).

28. Displaced Person Act of 1948, Pub. L. No. 80-774, 62 Stat. 1009 (1948).

29. E.g., Fedorenko v. United States, 449 U.S. 490, 513-15 (1981) (determining "petitioner was, as a matter of law, ineligible for a visas under the DPA due "false statements about his wartime activities"); United States v. Koreh, 59 F.3d 431 (3d Cir. 1995) (affirming denaturalization of defendant based on visa ineligibility under the DPA); United States v.

Sokolov, 814 F.2d 864, 874 (2d Cir. 1987) (affirming in part denaturalization due to the applicant being "ineligible for a visa under DPA ยง 13"); United States v. Sprogis, 763 F.2d 115 (2d Cir. 1985) (affirming dismissal of naturalization cancel due to defendant's actions not falling within the scope of prohibited conduct under the DPA).

30. See H.R. REP. No. 95-1452, at 2-3 (1978), reprinted in 1978 U.S.C.C.A.N. 4700, 4701-02. ("Although our permanent immigration law has never expressly excluded from admission into the United States aliens who have participated in persecution, similar provisions have appeared in special legislative enactments providing for the admission of refugees and certain other displaced persons after World War II. For example, Section 13 of the Displaced Persons Act of 1948 prohibited the admission of aliens under that act who advocated or assisted in the persecution of any person because of race, religion, or national origin.") (internal citation omitted). See also Schellong v. Immigration and Naturalization Serv., 805 F.2d 655 (7th Cir. 1986) (noting that the purposes of the Holtzman amendment and DPA were the same); Maikovskis v. Immigration and Naturalization Serv., 773 F.2d 435 (2d Cir. 1985) (applying DPA principles to deny petition based on alien's misrepresentations); Laipenieks v. Immigration and Naturalization Serv., 750 F.2d 1427, 1432 (9th Cir. 1985) (applying DPA provisions to determine "active personal involvement in persecutorial acts needs to be demonstrated before deportability may be established"); but see Kalejs, v.

Immigration and Naturalization Serv., 10 F.3d 441, 454 (7th Cir. 1993) ("Although the Holtzman Amendment was designed to fill a loophole in the permanent immigration law and its language is similar to that found in the DPA, the legislative history indicates an intention, at least in part, to

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will not explore courts' interpretations of persecution in depth, most circuits agree that persecution is "a threat to the life or freedom of, or the infliction of suffering or harm upon those who differ in a way regarded as offensive." 31 In defining "persecution" in the context of the persecutor bar, U.S. courts have looked to various factors, including: the extent of the conduct of the individual alien as opposed to the conduct of the group he belongs to; 32 the need for nexus to a protected and awareness that the conduct results in ground; persecution. 34 In addition, courts have borrowed from the protection realm to develop interpretations of persecution. 35 accomplish a different purpose. The DPA was designed to provide relief to the multitude of displaced persons and refugees in Europe after the end of World War II."); accord Petkiewytsch v. Immigration and Naturalization Serv., 945 F.2d 871, 879 (6th Cir. 1991) (same).

31. Matter of Acosta, 19 I. & N. Dec. 211, 222 (B.I.A. 1985) (emphasis added), overruled in part by, Matter of Mogharrabi, 19 I. & N. Dec. 439 (B.I.A. 1987). See also Fisher v. Immigration and Naturalization Serv., 79 F.3d 955, 961 (9th Cir. 1996) (quoting the second part of the definition, that persecution is the "infliction of suffering or harm upon those who differ (in race, religion or political opinion) in a way regarded as offensive[]") (citation omitted); Dandan v. Ashcroft, 339 F.3d 567, 573 (7th Cir. 2003) (defining "persecution as 'punishment or the infliction of harm for political, religious, or other reasons that this country does not recognize as legitimate') (citation omitted).

32. Gao v. U.S. Att'y Gen., 500 F.3d 93, 98-99 (2d Cir. 2007) (determining mere association with bureau that arrests and imprisons booksellers is insufficient to trigger the bar where conduct was tangential to persecution). Cf Higuit v. Gonzales, 433 F.3d 417, 421 (4th Cir. 2006) (applying bar where alien's "information-gathering and infiltration led to torture, imprisonment, and death of . . . political opponents, as well as

individuals merely suspected of affiliation"); Xie v. Immigration and Naturalization Serv., 434 F.3d 136, 143 (2d Cir. 2006) (determining the actions of driving captive women to clinics to receive forced abortions is assistance in persecution for purposes of the bar).

33. Matter of Rodriguez-Majano, 19 I. & N. Dec. 811, 815 (B.I.A. 1988) (determining certain acts of violence are not persecution if they are not "directed at someone on account of one of the five" protected grounds), abrogatedby Negusie V. Holder, 555 U.S. 511 (2009).

34. Singh v. Gonzales, 417 F.3d 736, 740 (7th Cir. 2005) (detaining and bringing innocent Sikhs to the police station, where [the alien] knew they would be subjected to unjustified physical abuse[]" qualifies as assistance or participation in persecution).

35. E.g., Gao, 500 F.3d at 98 (looking at asylum cases defining

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Overwhelmingly, these decisions draw on caselaw from their own and other circuits, rather than sources of international law.

Indeed, nearly every case primarily draws on Fedorenko v.

United States,3 6 the seminal persecutor bar case decided by the U.S. Supreme Court in 1981.

B. Inadmissibility/Removabilitygrounds Human rights offenders may also be inadmissible or removable under the INA. These provisions not only affect the ability to lawfully enter the United States, but also eligibility for various forms of immigration relief.

1. Nazi Persecution Any alien who participated in Nazi persecution is inadmissible and removable under the Act. These provisions originated in the Holtzman amendment, passed in 1978, which aimed to give teeth to the exclusion grounds of the DPA.39 While the DPA facilitated immigration to the United States for thousands of people who had fled or been forcibly displaced during World War II, the DPA also reiterated the exclusions from protection established in the Constitution of the International Refugee Organization ("IRO"). 0 Under Annex 1 of the IRO Constitution, the definition of "refugee or displaced person status" excluded "war criminals, quislings, and traitors[,]" as well as "any other persons who can be shown: (a) to have assisted the enemy in persecuting civil populations ... ; or (b) to have voluntarily assisted the enemy forces since the outbreak of the second world war in their operations against the United Nations."4 1 Despite its origins in an international legal instrument, the

persecution not in the context of the persecution bar but in analyzing the conduct feared by the applicant).

36. Fedorenko v. United States, 449 U.S. 490 (1981).

37. Id. 38. 8 U.S.C. ยง 1182(a)(3)(E)(i) (West 2012); 8 U.S.C. ยง 1227(a)(4)(D) (West 2012).

39. Holtzman Amendment, Pub. L. No. 95-549, 92 Stat. 2065 (1978) (codified at 8 U.S.C. 1182(a)(3)(E)).

40. Fedorenko, 449 U.S. at 495 n.3.

41. Id. at n.4 (quoting IRO CONST. Annex I, Part II, 62 Stat. 3051-52).

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Nazi exclusion and denaturalization cases rely heavily on U.S. jurisprudence, rather than international law. Indeed, like cases analyzing the persecutor bar, cases related to42Nazi involvement routinely anchor their analysis in Fedorenko.

2. Genocide A person who "ordered, incited, assisted or otherwise participated in genocide, as defined in section 1091(a) of Title 18, is inadmissible" and/or removable on that basis.43 The genocide exclusion ground was first added to the INA in 1990.44 By citing to the federal criminal statute prohibiting genocide,4 5 the INA incorTorates the definition of genocide used in U.S. which closely parallels the definition of criminal law, genocide outlined in the International Convention on the Prevention and Punishment of Genocide ("Genocide Indeed, guidance issued by the former Convention"). 7 Immigration and Naturalization Service ("INS") to the field in 1999 directs Service Officers to consult the Genocide Convention when determining inadmissibility for participation in genocide. 48 To date, there have not been any prosecutions under the genocide statute and there are no published U.S. immigration cases analyzing genocide in the context of a ground of removability or inadmissibility. 49 42. E.g., United States v. Dailide, 227 F.3d 385, 390-91 (6th Cir. 2000); Petkiewytsch v. Immigration and Naturalization Serv., 945 F.2d 871, 877-79 (6th Cir. 1991); United States v. Szehinskyj, 104 F. Supp. 2d 480, 493 (E.D. Pa. 2000); United States v. Tittjung, 753 F. Supp. 251, 256-57 (E.D. Wis. 1990).

43. 8 U.S.C. ยง 1182(a)(3)(E)(ii); accord id.ยง 1227(a)(4)(D).

44. Comment, Paul John Chrisopoulos, Giving Meaning to the Term "Genocide" as it Applies to US. Immigration Policy, 17 LOY. L.A. INT'L & COMP. L. REV. 925, 936-37 (1995) (explaining origins of genocide bar in INA).

45. 8 U.S.C. ยง 182(a)(3)(E)(ii).

46. 18 U.S.C. ยง 109 1(a) (West 2012).

47. Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 9, 1948, 102 Stat. 3045, 78 U.N.T.S. 277.

48. Memorandum from Michael A. Pearson, U.S. Dep't of Justice, Immigration and Nationality Service to Regional Directors and Service at 1999), available Directors (July 19, Center http://www.vkblaw.com/news/twohundred.htm (last visited May 15, 2012).

49. See generally Ron Sylvester, Case Dismissed Against Wichita Man

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3. Torture and Extrajudicialkilling "Commission of torture [and] extrajudicial killings" were added as grounds of removability and inadmissibility in 2004.50 The prohibition applies to: Any alien who, outside of the United States, has committed, ordered, incited, assisted or otherwise participated in the commission of . .. any act of torture as defined in section 2340 of title 18 [the criminal torture statute]; or . . . under

color of law of any foreign nation, any extrajudicial killing, as defined in section 3(a) of the Torture Victim Protection Act of 1991, is inadmissible.s' The Torture Victim Protection Act ("TVPA") 52 defines extrajudicial killing as a deliberated killing not authorized by a previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples. Such term, however, does not include any such killing that, under international law, is lawfully carried out under the authority of a foreign nation.13 The United States enacted the "so-called" Torture Act 54 to

Accused of Rwandan Crimes, THE WICHITA EAGLE, Aug. 25, 2011, 5:01 PM, http://www.kansas.com/2011/08/25/1988025/prosecuto'rs-dismiss-caseagainst.html. Federal prosecutors brought visa charges against a Rwandan located in the United States for lying on his immigration forms about the commission of genocide. Id. The case, however, was ultimately dismissed.

Id. 50. Intelligence Reform and Terrorism Protection Act of 2004, Pub. L. No. 108-458, 118 Stat 3638, 3766 (2004) (codified at 8 U.S.C. §§ 1182(a)(3)(E)(iii), 1227(a)(4)(D)).

51. 8 U.S.C. § 1182(a)(3)(E)(iii) (internal citation omitted); accord id. § 1227(a)(4)(D) (applying the "commission of any act of torture or extrajudicial killing" definition to determine deportability).

52. Torture Victim Protection Act of 1991 ("TVPA"), Pub. L. No. 102256, 106 Stat. 73 (1992).

53. TVPA § 3(a).

54. 18 U.S.C. § 2340 (West 2012) (defining "torture" as "an act committed by a person acting under the color of law sepcifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidential to lawful sanctions) upon another person within his custody or physical control[.]"); accord id. § 2340A (West 2012) (setting forth penalites for individuals comitting torture).

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effect compliance with the Convention Against Torture and Other Forms of Cruel Inhuman or Degrading Treatment or Punishment ("CAT").53 There has only been one successful conviction under the Torture Act however. 56 In Matter of D-R-, the only published case examining the removal grounds related to either torture or extra-judicial killing (indeed, the only published case examining a removal ground specifically based on any human rights violation), the BIA relies mostly on U.S. immigration caselaw and legislative history to analyze whether the charged alien engaged in extrajudicial killing.57 Interestingly, the BIA found compelling the Immigration Judge's reliance on factual findings in decisions of the International Criminal Tribunal for the former Yugoslavia ("ICTY"), which were admitted into evidence at the hearing stage.ss In addition, the BIA reiterated facts put into the record via a transcribed witness statement from an ICTY proceeding and upheld the use of ICTY documents as evidence by the Immigration Judge.5 9 While most immigration litigation does not result in publically available charging documents or caselaw, the Human Rights Violators and War Crimes Unit of ICE does issue press statements regarding its successes in this arena.60 In July 2010, ICE charged a Guatemalan national with being deportable based on his alleged participation in extrajudicial killings during a 55. See generally Bassina Farbenblum, Executive Deference in U.S. Refugee Law: InternationalistPaths Through and Beyond Chevron, 60 DuKE L.J. 1059, 1068 n.35 (2011) (providing discussion of the legislation and regulations governing relief from removal based on the Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment (CAT), which reflect similar congressional intent to conform U.S. law with the nation's international obligations under that convention").

56. United States v. Belfast, 611 F.3d 783 (11th Cir. 2010) (affirming conviction and ninety-seven year sentence of "Chuckie Taylor," son of former Liberian president Charles Taylor, for acts of torture committed in Liberia).

57. Matter of D-R-, 25 1. & N. Dec. 445, 451-53 (B.I.A. 2011).

58. Id. at 454.

59. Id. at 456, 459.

60. See The Human Rights Violators & War Crimes Unit, Immigration and Customs Enforcement, U.S. Dep't of Homeland Security, http://www.ice.gov/human-rights-violators/ (follow "Recent News" hyperlink).

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December 1982 massacre in Guatemala. 6 ' An Immigration Judge subsequently found the man to be deportable on the basis of his participation in extrajudicial killings, and in July 2011, he was removed to Guatemala. 62 According to an additional press release, a former top Salvadoran military official residing in Florida was placed in removal proceedings by ICE for participating in torture while commanding the Salvadoran army during El Salvador's civil war.63 He was ultimately ordered removed. 64 In another case, ICE charged a Liberian in the Buffalo, New York area with commission of extrajudicial killing and recruitment of child soldiers in Liberia during the 1990s.65 The Immigration Judge found him removable for those and other charges, and ordered him removed.6 6 The final outcome of these cases-and whether they result in published opinions from the BIA or higher-may lead to further development of jurisprudence in this area.

4. Recruitment of ChildSoldiers The INA also renders inadmissible and removable those aliens who have engaged in the "[r]ecruitment or use of child

61. News Release, U.S. Immigration and Customs Enforcement, ICE Removes Former Member of Guatemalan Army Linked to 1980s Massacre: Deportation Represent Victory for ICE's Human Rights Violators and War Crimes Center (July 12, 2011), http://www.ice.gov/news/releases/1 107/110712losangeles.htm.

62. Id. 63. Julia Preston, Salvadoran in Florida Faces Deportationfor Torture, N.Y. TIMES, Apr. 18, 2011, at A12, available at http://www.nytimes.com/2011/04/18/us/18deport.html (last visited May 15, 2012).

64. Julia Preston, Salvadoran May Face Deportationfor Murders, N.Y. TIMES, Feb. 24, 2012, at A17, available at http://www.nytimes.com/2012/02/24/us/salvadoran-may-be-deported-fromus-for-80-murders-of-americans.html?r- 1 (last visited May 15, 2012).

65. Dan Herbeck, U.S. Ties Brockport-Area Man to Killings in Liberia, BUFFALO NEWS (Aug. 21, 2010, 9:37 AM), http://www.buffalonews.com/city/article35496.ece.

66. News Release, U.S. Immigration and Customs Enforcement, Immigration Judge Orders Liberian Human Rights Violator Removed Based on His Use of Child Soldiers (Feb. 6, 2012), http://www.ice.gov/news/releases/1202/120206washingtondc.htm.

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soldiers." 6 7 This provision cross-references 18 U.S.C. ยง 2442,

which prohibits recruiting, enlisting, or conscripting a person under fifteen years of age into "any army, militia, or other military organization." 68 As with the genocide and torture statutes, there have been no prosecutions under this statute. 69 Likewise, there is no published caselaw examining this ground of removability/inadmissibility. 70 According to guidance from the U.S. Department of State, this ground of inadmissibility is triggered if there is a "reason to believe" an alien has engaged in recruitment." The guidance also describes the conduct encompassed in the bar as "broad." 72 Article 4 of the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict (the "Protocol") obligates parties to adopt legal measures criminalizing the recruitment or use of child soldiers in armed conflicts. 73 The Protocol, which came into force in 2002, was ratified by the United States that same year.74

ยง 212(a)(3)(G); 8 U.S.C. ยง 1182(a)(3)(G).

68. 18 U.S.C. ยง 2442(a)-(d) (West 2012).

69. But see Liberia Ex-Warlod George Boley to be Deportedfrom US, BBC (Feb. 7, 2012, 7:45 AM), http://www.bbc.co.uk/news/world-africa16924744.

70. As discussed briefly above however, an Immigration Judge in New York recently ordered an alien removed based in part on recruitment of child soldiers. See Herbeck,supra note 65.

71. U.S. DEP'T OF STATE FOREIGN AFFAIRS MANUAL, 9 FAM 40.38, 67. INA

Nl(a)-(b), available http://www.state.gov/documents/organization/123514.pdf.

at

72. Id. at N2(a) ("[INA] Section 212(a)(3)(G) as amended, provides for a broad interpretation of a child's active participation in armed hostilities.").

73. U.N. OFFICE OF HIGH COMM'R ON HUMAN RIGHTS, OPTIONAL PROTOCOL TO THE CONVENTION ON THE RIGHTS OF THE CHILD ON THE INVOLVEMENT OF CHILDREN IN ARMED CONFLICT, available at http://www2.ohchr.org/english/law/crc-conflict.htm (last visited May 15,

2012).

74. See generally Jisha S. Vachachira, Report 2002: Implementation of the Optional Protocol to the Convention on the Rights of the Child on the Involvment of Chilrden in Armed Conflict, 18 N.Y.L. SCH. J. HUM. RTS. 543 (2002) (providing review of the Optional Protocol to the Convention on the

Rights of the Child on the Involvement of Children in Armed Conflict).

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C. OtherImmigration Charges Other provisions under the INA have potential links to human rights exclusions and bars in the Act. For example, an alien charged administratively with material misrepresentation7 or barred due to a criminal conviction for "a crime involving moral turpitude" 76 may have concealed human rights offenses during his application for immigration benefits. Alternatively, ICE may assert that an alien's human rights offenses are disqualifying as particularly serious crimes or serious nonpolitical crimes.

Lastly, commission of human rights violations can always be argued as a discretionary bar relevant to most forms of relief.

D. CriminalImmigration ChargesAgainst Human Rights Abusers As discussed

above,

there

is

essentially

no

caselaw

developing the grounds of removability and inadmissibility that specifically reference the human rights offenses of genocide torture, extrajudicial killing, and recruitment of child soldiers. 7 Although statistics on charging decisions by ICE are not available, a reasonable explanation is that in the face of multiple charging strategies, ICE may choose to lodge charges that are easier to prove such as entry without- inspection, 79- visa overstay, or even misrepresentation.8 In the initial charging 75. INA § 212(a)(6)(C), 8 U.S.C. § 1182(a)(6)(C)(i).

76. INA § 212(a)(2)(A), 8 U.S.C. § 1182(a)(2)(A)(i)(I); accord INA §212(a)(2), 8 U.S.C. § 1227(a)(2)(A)(i).

77. INA § 208(b)(2)(A), 8 U.S.C. § 1158(b)(2)(A)(ii)-(iii); INA § 241(b)(3)(B), 8 U.S.C. § 1231(b)(3)(B)(ii)-(iii).

78. See discussion supra Part.II.B.1-4.

79. 8 U.S.C. § 1325(a) (West 2012).

80. 8 U.S.C. § 1227(a)(1)(C)(i).

81. 8 U.S.C. § 1182(a)(6)(C)(i).

For example, in 2010, ICE removed

Argentine citizen Juan Miguel Mendez to Argentina, where he was wanted for his alleged involvement in torture and extrajudicial killings during the socalled "Dirty War" in that country. News Release, ICE Removes Former Argentine Police Officer Wanted for Alleged Involvement in Torture and Disappearances at "Dirty War" Clandestine Detention Centers (Dec. 17, 2010), http://www.ice.gov/news/releases/1012/101217buenosaires.htm.

Because Mr. Mendez had over-stayed his visa, it was likely unnecessary for ICE to lodge more complicated immigration charges based on the alleged

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stage of a removal proceeding, the burden of proof on the government is higher than in the subsequent hearing on petitions for relief. Even in a case where ICE has evidence that an alien committed human rights offenses, ICE may prefer to leverage that evidence in support of a persecutor bar to relief, or even as a discretionary or other disqualifying factor; contexts where the burden on the government is lower.

Alternatively, the government may choose to pursue criminal immigration charges against suspected human rights violators.

Prosecutions for fraud and misuse of visas,8 3 passport fraud,8 4 fraud in naturalization applications,8 5 and even false statements86 can be tools for targeting aliens who concealed participation in human rights violations to come to or remain in the United States. The Human Rights and Special Prosecutions ("HRSP") section of the Criminal Division of the U.S. Department of Justice ("DOJ") is charged with leveraging these statutes against human rights violators present in the United States.8 For example, DOJ, through HRSP and the U.S. Attorney's Offices, has successfully prosecuted a former member of the Guatemalan Special Forces,8 8 former members human rights offenses.

82. The government must establish deportability by "clear and convincing evidence." 8 U.S.C. § 1229a(c)(3)(A) (West 2012); 8 C.F.R. § 1240.8(a) (West 2012); see also Woodby v. Immigration and Naturalization Serv., 385 U.S. 276, 286 (1966) (holding "no deportation order may be entered unless it is found by clear, unequivocal, and convicning evidence that the facts In cases charging alleged as grounds for deportation are true"). inadmissibility, the burden is on the alien to show admissibility or lawful presence. 8 C.F.R. § 1240.8(b)-(c). The alien bears the burden of proof to establish eligiblity for any requested benefit, and, if the evidence indicates a mandatory bar applies, the applicant must show the ground does not apply "by a preponderance of the evidence." Id. § 1240.8(d).

83. 18 U.S.C. § 1546 (West 2012).

84. Id. §§ 1542 (false statement in the application and use of a passport); 1543 (forgery or false use of a passport) (West 2012).

85. Id. § 1425 (West 2012).

86. Id. § 1015 (West 2012).

87. See Human Rights Enforcement Act of 2009, Pub. L. No. 111-122, 123 Stat. 3480 (2009) (as proposed by S.1472, 111th Cong. (1999)).

88. Justice News, Former Guatemalan Special Forces Solider Sentenced to 10 Years in Prison for Making False Statements on Naturalization Forms Regarding 1982 Massacre of Guatemalan Villagers (Sept. 16, 2010),

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of the Bosnian military police,8 9 and a Rwandan genocidaire.90 Although these cases were brought under immigration fraud statutes, they present evidentiary and legal issues relevant to the development of U.S. criminal law in the substantive areas of torture, war crimes, extrajudicial killing, and genocide. These developments may influence how the same concepts are addressed in the immigration law context.

In addition, once an alleged human rights perpetrator has become a U.S. citizen, administrative proceedings may no longer be applicable, and a prosecution for fraudulent procurement of citizenship and/or denaturalization may become the only option. As already discussed, with regard to Nazi persecutors in the United States, the government has sought revocation of such individuals' fraudulently procured citizenship pursuant to Title 8, United States Code Section 1451(a) on the grounds that their persecutory conduct rendered them ineligible for visas under the Displaced Persons Act.9 ' More recently, federal prosecutors in New Hampshire initiated a prosecution against a Rwandan-American individual on the grounds that she fraudulently procured her U.S. citizenship by making a series of misrepresentations regarding her participation in the 1994 Rwandan genocide leading up to, and

Gilberto http://www.justice.gov/opa/pr/2010/September/10-crm-1042.html.

Jordan was convicted of unlawful procurement of U.S. citizenship in September 2010. Id. 89. Zeljko Boskovic was convicted of visa fraud in August 2010. News Release, Bosnian Human Rights Violator Convicted of Immigration Fraud (Aug. 13, 2010), http://www.ice.gov/news/releases/1008/100811 portland.htm.

90. News Release, ICE Deports Rwandan Wanted For Committing War Crimes During 1994 Genocide: Subject Turned Over to Rwandan Arrest Warrant (Jan. 29, 2011), Authorities on International Jean-Marie http://www.ice.gov/news/releases/1101/110129chicago.htm.

Vianney Mudahinyuka was convicted of immigration fraud in April 2005.

Id. 91. E.g., United States v. Szehinskyj, 104 F. Supp. 2d 480, 492 (E.D. Penn. 2000) (asserting "there must be 'strict compliance' with the Congressionally imposed requirements for naturalization, and failure to comply with any such requirement renders the naturalization illegally procured and subject to revocation under Section 1451(a) of the Immigration and Nationality Act") (citations omitted); see also supra Part II.B. 1.

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during her naturalization proceedings,. 92 The case however resulted in a mistrial in March 2012 after "the jury was unable to reach a verdict[.]" 93 While the caselaw in this arena is embryonic, these cases are a priority for ICE and DOJ. 94 Increased litigation in this area will bring opportunities for advocates and courts to make new and creative uses of analogous concepts in international criminal law. The following sections will discuss the challenges and opportunities for further cross-pollination between these areas.

III. RELIANCE ON INTERNATIONAL HUMAN RIGHTS AND CRIMINAL LAW INTHE UNITED STATES IMMIGRATION CONTEXT As a result of the closely hewn connection between protection law provisions in the INA and international law, refugee law scholar Joan Fitzpatrick has noted that "in the realm of U.S. refugee law, one expects a high level of consciousness of international obligation and a close congruence between domestic law and international law." 95 Indeed, in other major 92. United States v. Munyenyezi, No. 1:10-CR-00085, 2010 WL 6845942 (D. N.H. June 23, 2010) (indictment).

93. Tina Susman, Jury Deadlocks in Case ofRwandan Immigrant Accused of Genocide, L.A. TIMES, Mar. 16, 2012, http://articles.latimes.com/2012/mar/1 6/nation/la-na-nn-genocide-trial20120316. ("With the jury unable to reach a verdict, a judge has declared a mistrial in the case of a Rwandan-born woman who was charged with covering up her role in that country's 1994 genocide in order to obtain U.S. citizenship.").

94. E.g., No Safe Haven: Law Enforcement Operations Against Human Rights Violators in the U.S.: Hearing Before the U.S. House of Rep., Comm. on Foreign Affairs, Tom Lantos Human Rights Comm'n (2011) (statement of John P. Woods, Deputy Assistant Dir. Nat'l Sec. Investigations, U.S. Immigration and Customs Enforcement), available at http://www.ice.gov/doclib/news/library/speeches/1 11013woods.pdf; Department of Homeland Security and Department of Justice Law Enforcement Operations Against Human Rights Violators in the U.S.: HearingBefore the Tom Lantos Human Rights Comm'n (2011) (statement of Eli M. Rosenbaum, Dir. Of Human Rights Enforcement Strategy and Policy, Human Rights and Special Prosecutions Section Criminal Division DOJ), available at http://www.justice.gov/criminal/hrsp/pr/testimony/2011/10-1311 human-rts.pdf.

95. Joan Fitzpatrick, The International Dimension of U.S. Refugee Law,

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immigrant-receiving countries with refugee and immigrationbased remedies aimed at excluding human rights violators, there is a high-degree of reliance on international law sources.96 A. ImmigrationPractitioner'sLandscape: relianceon internationallaw sources In some ways, Fitzpatrick's expectation holds true with regard to the immigration practitioner's landscape.

For example, the virtual Immigration Judge Bench Book published online by the DOJ Executive Office for Immigration Review ("EOIR") includes links in its "Legal Resources" section to UNHCR Guidelines regarding legal issues that arise under the Refugee Convention, including Guidelines regarding the Article IF Exclusion Clauses. 97 In addition, attorneys and investigators in ICE's Human Rights Violators and War Crimes Unit regularly receive cooperation and assistance from international criminal law tribunals and prosecuting authorities. 98 Training materials for U.S. Asylum Officers also refer to international legal instruments.9 9 Notably, the training materials list the UNHCR Handbookloo as a source of authority, but state the Handbook does not have "the force of law" and is "not binding on asylum adjudicators in the United States." 10 ' 15 BERKELEY J. INT'L L. 1, 1 (1997); see also Farbenblum, supra note 55, at 1063 (discussing Fitzpatrick's observations).

96. See Rikhof, supra note 24, at 502 ("Australia, Canada, New Zealand and the UK have all relied, in general, for sources of international law on the statutes of the IMT, ICTY, ICTR and ICC.").

97.

U.S.

IMMIGRATION

DOJ EXECUTIVE JUDGE

OFFICE

BENCH

FOR

BOOK,

IMMIGRATION LEGAL

REVIEW,

RESOURCES,

http://www.justice.gov/eoir/vll/benchbook/resources.htm.

98. Fact Sheet: Human Rights Violators Investigations, Human Rights Violators & War Crimes Unit, U.S. Dep't of Homeland Security, Aug. 1, 2011, http://www.ice.gov/news/library/factsheets/hrv.htm (last visited May 15, 2012).

99. See Farbenblum, supra note 55, at 1077 n.86 (citing U.S. CITIZENSHIP & IMMIGRATION SERVS., ASYLUM OFFICER BASIC TRAINING COURSE, SOURCES OF AUTHORITY (Oct. 31, 2007), available at

http://www.uscis.gov/USCIS/Humanitarian/Refugees%20&%2OAsylum/Asy lum/AOBTC%20Lesson%20Plans%20and%20Training%20Programs/Sourc es-of-Authority-31auglO.pdf at 11 (last visited May 15, 2012).

100. REFUGEE STATUS HANDBOOK, supra note 5.

101. U.S. CITIZENSHIP & IMMIGRATION SERVS., ASYLUM OFFICER BASIC

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Asylum Officers are advised to follow U.S. law when there is Although an inconsistency with Handbook guidelines. 102 Asylum Officers are also provided with training on the UNHCR and "Concepts of International Protection," they are advised that the content of that lesson is not supported by any "critical tasks identified by the Asylum Officer Validation of Basic Training Final Report. . ." and therefore, training on that topic

will be minimal and not tested. 103 B. The U.S. Supreme Court'sReceptiveness to the UNHCR Handbook The U.S. Supreme Court has acknowledged the relevance of policies and guidelines promulgated by the UNHCR in interpreting United States obligations under the Refugee Convention and Protocol. In its 1987 opinion CardozaFonseca,104 the Court noted that the UNHCR "Handbook provides significant guidance in construing the Protocol, to which Congress sought to conform[] . . . [and] [i]t has been

widely considered useful in giving context to the obligations that the Protocol establishes."' 05 Even in Cardoza-Fonseca however, the Court qualifies the persuasive authority of the UNHCR Handbook by stating, "[w]e do not suggest, of course, that the explanation in the [UNHCR] Handbook has the force of law or in any way binds the INS with reference to the asylum

provisions of ยง 208(a)." 1 06

TRAINING COURSE, SOURCES OF AUTHORITY (Oct. 31, 2007), available at

http://www.uscis.gov/USCIS/Humanitarian/Refugees%20&%2OAsylum/Asy lum/AOBTC%2OLesson%20Plans%20and%2OTraining%2OPrograms/Sour es-of-Authority-31augl0.pdf at 10 (last visited May 15, 2012).

102. Id. 103. U.S. CITIZENSHIP AND IMMIGRATION SERVICES, RAIO, Asylum ASYLUM OFFICER BASIC TRAINING COURSE, PARTICIPANT WORKBOOK, Mar. 1, 2005, available at

Division,

http://www.uscis.gov/USCIS/Humanitarian/Refugees%20&%2OAsylum/Asy lum/AOBTC%20Lesson%20Plans/UNHCR-Concepts-%20Intl%20Protection%20-3laugl0.pdf; see also Farbenblum, supra note 55, at 1076 n.86 (noting that the Handbook is referenced in asylum officer training materials and discussing lack of emphasis).

104. Immigration and Naturalization Serv. v. Cardoza-Fonseca, 480 U.S. 421 (1987).

105. Id. at 439 n.22.

106. Id. Cf Farbenblum, supra note 55, at 1089-92 (providing a

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The example of the UNHCR Handbook illustrates the ambiguity U.S. courts and practitioners confront in determining how much authority international law should, and does, have in U.S. immigration law. Over a decade after Cardoza-Fonseca, the Supreme Court was critical of the Ninth Circuit Court of Appeals' over-reliance on the UNHCR Handbook in AguirreAguirre, a case involving an exclusion ground based on the commission of a serious non-political crime. 107 Like the persecutor bar, the serious non-political crime exclusion ground The Ninth Circuit is based on the Refugee Convention. 0 8 relied on language from the UNHCR Handbook in determining that the BIA should have balanced respondent's criminal acts against the risk of persecution he would face if returned to his native country.' 0 9 The Supreme Court disagreed and found that the imposition of a balancing requirement was inconsistent with previous Agency decisions regarding interpretation of the serious nonpolitical crime provisions. 10 The Court acknowledged its earlier pronouncement regarding the usefulness of the UNHCR Handbook, but noted that "it is not binding on the Attorney General, the BIA, or the United States courts.""' In somewhat of an ironic twist, the Court proceeded to cite an opinion from the British House of Lords as persuasive authority for its

discussion of Chevron deference as articulated in Immigration and NaturalizationServ. v. Aguirre-Aguirre,526 U.S. 415 (1999)).

107. Immigration and Naturalization Serv. v. Aguirre-Aguirre, 526 U.S. 415, 426-28 (1999).

108. The Convention states that its protections "shall not apply to any person with respect to whom there are serious reasons for considering that . . . he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee." Id. at 427 (quoting Convention art. I(F)(b)).

109. Id. at 425-26.

110. Id. Cf Farbenblum, supra note 55, at 1089-92 (providing a discussion of Chevron deference as articulated in Aguirre-Aguirre).

111. Aguirre-Aguirre, 526 U.S. at 427. "Indeed, the Handbook itself disclaims such force, explaining that 'the determination of refugee status under the 1951 Convention and the 1967 Protocol . . . is incumbent upon the Contracting State in whose territory the refugee finds himself."' Id. at 42728 (quoting Immigration and Naturalization Serv. v. Cardoza-Fonseca, 480 U.S. 421, 439 n.22) (alternation in original).

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interpretation of the exclusion ground at issue. 112 There is no doubt that the back and forth sway of the Court on the use of the Handbook, and reliance on international law generally, is confusing to practitioners.

As Farbenblum observes, the holdings of Aguirre-Aguirre and CardozaFonsecaare "used by advocates both for and against reliance on the [Refugee] Convention."" 3 Nonetheless, courts continue to periodically refer to the UNHCR Handbook in asylum cases."14 Indeed, references to U.N. instruments are made by U.S. courts without systematic consensus of their authoritative value." 5 References to U.N. instruments by courts and by other practitioners (including Immigration Judges, Asylum Officers, and even private immigration attorneys) may undermine the argument that U.S. immigration caselaw ignores international protection and human rights law. Though U.S. courts' reliance on international law is far less explicit than judicial bodies in other countries,116 the continued reference to such instruments as the Convention and the Handbook suggests their influence over U.S. law.

C. Examples ofReliance on InternationalLaw Principles in the Protection Context Because the body of immigration law dealing with human rights-based exclusions is limited, immigration jurisprudence related to protection in the form of asylum and withholding of removal provides a useful point of reference regarding the openness of U.S. courts to international human rights principles in the immigration realm. In an older BIA case looking at whether the respondent established the nexus between his 112. Id. at 428 (citing T. v. Sec'y of State for the Home Dep't, 2 All E.R. 865, 882 (H.L.1996) (Lord Mustill)).

113. Farbenblum, supra note 55, at 1091.

114. See Giuseppe Fina, The Misuse of Deference and International Standards in Narrowing Withholding of Deportation in Light of INS v.

Aguirre-Aguirre, 1 CHI.-KENT J. INT'L & COMP. L. 53, nn.136-144 (2001) (collecting BIA cases involving references to UNHCR Handbook); see also Farbenblum, supra note 55, at 1076 n.85 (listing BIA cases citing the Handbook).

115. See Farbenblurn supra note 55, at 1077-78.

116. See generally Rikhof, supra note 24, at 458 (providing review of Canadian courts reliance on international law).

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persecution and a protected ground, the BIA relied upon the UNHCR Handbook in part in In re S-P- to strengthen its conclusion that the respondent demonstrated a protected ground had been attributed to him.' 17 In coming to the conclusion that the respondent demonstrated the requisite nexus, the BIA also referred to the Geneva Convention, commenting that "the severity of the violations of the Geneva Convention may support an inference that the abuse is grounded in one of the protected grounds under the asylum law."" 8 In addition, the BIA referred to the Refugee Convention as a vehicle for recognizing the "fundamental humanitarian concerns of asylum law," and for affording a "generous standard for protection in cases of doubt."" 9 Another area where references to developments in international human rights issues have been relied on by are cases involving claims of female genital mutilation ("FGM").

In evaluating whether there is sufficient nexus between FGM and a protected ground, the BIA has referenced that the practice has been condemned by the United Nations and the World Health Organization.1 20 Indeed, in a FGM case analyzing gender as the basis for a particular social group claim, the Ninth Circuit referred to UNHCR Guidelines on International Protection in Mohammed v. Gonzales.121 It is significant to 117. In re S-P-, 211. & N. Dec. 486, 489 (B.I.A. 1996) (seeking guidance from the UNHCR Handbook to define "refugee"). The issue presented in the case was whether the applicant in this case has demonstrated that the physical and mental torture he endured was inflicted because of political views imputed to him after he had been detained as a suspected Tamil Tiger and, therefore, was 'persecution .

.

. on account of political opinion under the definition of

'refugee' in section 101(a)(42)(A) of the Act. Id. (alternation in original).

118. Id. at 494 n.3.

119. Id. at 492.

120. See In re Kasinga, 21 1. & N. Dec. 357, 366 (B.I.A. 1996). Groups condemning the practice of FGM include "the United Nations, the International Federation of Gynecology and Obstetrics, the Council of Scientific Affairs, the World Health Organization, the International Medical Association, and the American Medical Association." Id. 121. Mohammed v. Gonzales, 400 F.3d 785, 798 (9th Cir. 2005) (asserting the UNHCR Handbook's "analysis provides significant guidance for issues of refugee law) (citing Immigration and Naturalization Serv. v.

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observe however, that given the strong United States-based condemnation of the practice, the voice of the international community in this arena may be superfluous and not a demonstration of any meaningful reliance on findings in the international community. 122 There are additional examples of the various Circuit Courts of Appeals relying on international legal instruments to understand and, in many cases, expand protections under U.S. immigration law. For example, in Perkovic v. Immigration and Naturalization Services,123 the Sixth Circuit observed the intention of U.S. asylum law to protect individuals engaging in activity protected under the Universal Declaration of Human Rights ("UDHR") and overturned the Immigration Judge's decision denying relief.124 In addition, one district court referenced the UDHR for the principle that torture is never In McMullen v. Immigration and Naturalization lawful.12 Services,126 a case that could be construed as strengthening human rights protections by recognizing exclusions in the Refugee Convention, the Ninth Circuit relied on the Convention and refugee law scholar Guy Goodwin-Gill to find respondent ineligible for withholding of removal.127 Of course, there are cases where references to international instruments will not result in protection but in denial of relief.

In determining whether a national security bar to withholding of removal applied, the Third Circuit in Yusupov v. Attorney

Cardoza-Fonseca, 480 U.S. 421, 439-40 (1987).

122. See Kasinga, 21 I. & N. at 361 (noting the existence of an INS publication in the course of defining and describing FMG) (citing INS Resource Information Center, Alert Series: Women-Female Genital Mutilation, Ref. No. AL/NHA/94.001 (July 1994)).

123. Perkovic v. Immigration and Naturalization Serv., 33 F.3d 615 (6th Cir. 1994).

124. Id. at 622.

125. See Singh v. Ilchert, 801 F. Supp. 313, 319 n.3 (N.D. Cal. 1992) ("In any event, the beatings, torture, and gunshots suffered by the petitioner cannot constitute lawful government action.").

126. McMullen v. Immigration and Naturalization Serv., 788 F.2d 591 (9th Cir. 1986) overruled on other grounds by Barapind v. Enomoto, 400 F.3d 744 (9th Cir. 2005).

127. Id. at 595-99.

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General of the United States,128 referenced the Refugee Convention, foreign courts, and the work of international law scholars, but ultimately found the bar applied.129 In a case addressing whether prosecution qualified as persecution, the BIA and the Ninth Circuit relied on the UNHCR Handbook to find the respondent had not established persecution. 130 i addition, the Tenth Circuit concluded in Al-Salehi v.

Immigration and NaturalizationServices,'3 1 that the provisions of the Refugee Convention were ambiguous and therefore did not provide helpful guidance to understanding criminal bars to withholding of removal under the INA.13 2 Finally, in a seminal case looking at alien interdiction' 33 on the high seas, in Sale v.

Haitian Centers Council, Inc.134 the U.S. Supreme Court concluded, after a lengthy analysis of the Refugee Convention, that the United States obligations under the Convention did not prohibit the interdiction program.135 Actual reliance on analogous international criminal law principles in the persecutor bar and other human rights-related cases is infrequent however. In Perkovic v. Immigration and Naturalization Services,136 a case examining the BIA's conclusion that an alien was barred from relief because his antigovernment conduct did not entitle him to protection, the Sixth Circuit referred to the origins of the exclusion grounds in the

128. Yusupov v. Att'y Gen., 518 F.3d 185 (3d Cir. 2008).

129. Id. at 203-04. The court observed: "It is worth noting that the Supreme Court has cited [international law scholars] Grahl-Madsen and Lauterpacht as authoritative." Id. at 204 n.30.

130. Chanco v. Immigration and Naturalization Serv., 82 F.3d 298, 300-01 (9th Cir. 1996).

131. Al-Salehi v. Immigration and Naturalization Serv., 47 F.3d 390 (10th Cir. 1995).

132. See id. at 395.

133. Interdiction is "[t]he act of forbidding or restraining." BLACK'S LAW DICTIONARY 884 (9th ed. 2009). See generally Gary W. Palmer, Guarding the Coast: Alien Migrant Interdiction Operations at Sea, 29 CONN. L. REv. 1565 (1997) (providing overview of the U.S. Coast Guard's role of alien interdiction on the high seas).

134. Sale v. Haitian Centers Council, Inc., 509 U.S. 155 (1993).

135. See id at 179-87.

136. Perkovic v. Immigration and Naturalization Serv., 33 F.3d 615 (6th Cir. 1996).

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INA, specifically Article 1(F) of the Convention.' 7 Although the court found that the exclusionary grounds under the Article did not apply,' 38 it is notable that it examined the case using the Convention, rather than U.S. caselaw.139 In addition, in the same decision, the Sixth Circuit refers to international lawUniversal Declaration of Human Rights and the Protocol-to analyze the alien's conduct under the framework of international human rights protections.140 However, this case demonstrates an exception rather than the rule.

IV. PERSECUTOR BAR JURISPRUDENCE, ARTICLE IF(A), AND THE IMPORT OF STATUTORY LANGUAGE

The persecutor bar is based on exclusion grounds listed in Article 1F(a) of the Convention, which explicitly links the definitions of the various ground for exclusion, namely "a crime against peace, a war crime, or a crime against humanity" to "the international instruments drawn up to make provision[s] in respect of such crimes[.]" 4 1 The United Nations has issued specific guidance regarding sources of international criminal

law that courts are expected to look to in order to ascertain the elements of these crimes. 142 On account of the persecutor bar's 137. Id. at 621-22.

138. Id. at 622.

139. Id. at 621-22.

140. Id. at 622.

141. Convention Relating to the Status of Refugees, July 28, 1951, 19 U.S.T. 6269, 189 U.N.T.S. 150 (entered into force Apr. 22, 1954).

142. E.g., UN High Comm'r for Refugees, Background Note on the Application of the Exclusion Clauses: Article IF of the 1951 Convention relatingto the Status of Refugees Relating to the Status of Refugees, 4 (Sept.

4, 2003), available at http://www.unhcr.org/refworld/docid/3f5857d24.html (last visited May 15, 2012); see also Susan Harris Rimmer, The Role of the United Nations High Commissionerfor Refugees, in THE CHALLENGE OF CONFLICT: INTERNATIONAL LAw RESPONDS 517, 526 (Ustinia Dolgopol &

Judith Gardam eds., 2006) ("Amongst the various international instruments which offer guidance on the scope of these international crimes are the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, the four 1949 Geneva Conventions for the Protection of Victims of War and the two 1977 Additional Protocols, the Statutes of the International Criminal Tribunals for the former Yugoslavia and Rwanda, the 1945 Charter of the International Military Tribunal (the London Charter), and most recently the

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pedigree, it would be natural to assume that persecutor bar jurisprudence under the INA would organically incorporate principles of international criminal law.

A. Negusie Case Study The Supreme Court's most recent case involving the Refugee Act, Negusie v. Holder,143 highlights the unsettled nature of the linkage between the INA's "persecutor bar," the Article IF(a) exclusion ground, and the body of international criminal law that is so clearly incorporated into Article 1F(a). In Negusie, the Court addressed whether Fedorenko (a case involving interpretation of the DPA's exclusion grounds) controlled interpretation of the persecutor bar under the Refugee Act.144 At issue in Negusie was the so-called "duress exception" to the persecutor bar.

The petitioner in Negusie was a dual Ethiopian-Eritrean national who was forcibly conscripted into the Eritrean army and forced to serve as a prison guard, during which time he engaged in persecution of prisoners under his watch.14 6 The BIA applied Fedorenko'sholding that an individual who served as an armed guard in a concentration camp was ineligible for a visa, irrespective of whether his service was voluntary or involuntary.14 7 Focusing on the differences between the DPA and the Refugee Act and the import of statutory construction to Fedorenko's holding, the Court held that the BIA had mistakenly determined that Fedorenko controlled the analysis of the persecutor bar provision under the Refugee Act.148 Having 1998 Statute of the International Criminal Court which entered into force on 1 July 2002.").

143. Negusie v. Holder, 555 U.S. 511 (2009).

144. Id. at 514.

145. Id. 146. Id. at 514-15.

147. Id. at 520.

148. Id. at. 522-23.

Our reading of these decisions confirms that the BIA has not exercised its interpretive authority but, instead, has determined that Fedorenko controls. This mistaken assumption stems from a failure to recognize the inapplicability of the principle of statutory construction invoked in Fedorenko, as well as a failure to appreciate the differences in statutory purpose. The BIA is not bound to apply

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so ruled, the Court reversed and remanded without ruling on whether a duress exception existed under the modem persecutor bar. 149 Scholarship and debate surrounding Negusie has focused on the Court's application of Chevron deference and the wider implications of the decision for refugee protection. 5 0 Here, the instant analysis focuses instead on the extent to which international criminal law principles played a part in the Court's decision in Neguise.

In the majority opinion, the Court in Negusie acknowledged that the persecutor bar was enacted as part of the Refugee Act and reiterated its earlier statements that the Refugee Act was intended to implement the Refugee Convention and Protocol.s1 5 Guided by the principles of Chevron deference, however, the Court focused entirely on matters of statutory construction within the four-corners of U.S. law.152 The Court made no further reference to how its conclusion may or may not be in accord with treaty obligations under the Convention and Protocol.

Justice Scalia's opinion, concurring in part, agreed with the majority that the INA contains an ambiguity such that it is proper for the BIA to properly address the issue in the first instance. 153 Interestingly though, Justice Scalia relied on international criminal law in rejecting the Petitioner's argument the Fedorenko rule that motive and intent are irrelevant to the persecutor bar at issue in this case. Whether the statute permits such an interpretation based on a different course of reasoning must be determined in the first instance by the agency.

Id. 149. Id. at 524-25.

150. See, e.g., Farbenblum, supra note 55, at 1092-96 (dissecting the Court's holding in Negusie); Michael P. Healey, Reconciling Chevron, Mead, and the Review of Agency Discretion: Source of Law and the Standards of Judicial Review, 19 GEO. MASON L. REv. 1, 27 (2011) ("In sum, recent Supreme Court decisions have reflected uncertainty regarding the order and content of the analysis determining the applicability of Chevron deference."); Deborah N. Pearlstein, After Deference: Formalizing the JudicialPowerfor Foreign Relations, 159 U. PA. L. REv. 783, 815-17 (2011) (comparing the Court's application of Chervon deference in Negusie).

151. Negusie, 555 U.S. at 520.

152. See id. at 519-24.

153. Id. at 525 (Scalia, J., concurring).

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that failure to recognize a broad duress exception "would punish purely 'non-culpable' conduct."l 54 Justice Scalia cited various sources of criminal law to illustrate that "there is no historical support for the duress defense when a solider follows a military order he knows to be unlawful."15 5 Although Justice Scalia utilized international criminal law to counter the Petitioner's argument, Justice Scalia ultimately rejected criminal law as an appropriate point of reference in light of his view that: "Asylum is a benefit accorded by grace, not by entitlement, and withholding that benefit from all who have intentionally harmed others-whether under coercion or not-is not

unreasonable."l 56 Justice Stevens' opinion embraced international law to the largest degree, while still deferring under Chevron in order to permit the BIA to define the parameters of any duress exception.1 57 Justice Stevens returned to the Convention language of Article 1F(a) in interpreting the meaning of the INA's persecutor bar, noting that [t]he Convention excludes from the nonrefoulement obligation of Article 33 persons who have "committed a crime against peace, a war crime, or a crime against humanity." It is this exception that the persecutor bar reflects. The language of the Convention's exception is 154. Id. at

526.

155. Id. (citing Axtell's Case, Kel. J. 13, 84 Eng. Rep. 1060 (1660); Prosecutor v. Erdemovid, [1997] 2 ICTY Jud. Rep. 1610, 1635 (Int'l Crim.

Trib. For Former Yugoslavia); 2 WAYNE R. LAFAVE, SUBSTANTIVE CRIMINAL LAW ยง 9.7(g)).

See also Luis E. Chiesa, Duress, Demanding Heroism, and Proportionality, 41 VAND. J. TRANSNAT'L L. 741, 742-43 (2008) (reviewing Prosecutorv. Erdemovi6). In Erdemovid, a former soldier from the Bosnian Serb army was charged with crimes against humanity in connection with killing nearly seventy civilians, including children. Id. at 742-43. The defendant alleged that he originally refused to carry out the killings and only did so when "his superiors threatened to kill him if did not comply." Id. at 743. "[T]he question before the ICTY Appeals Chamber was whether a duress defense was available when the offense charged is a crime against humanity." Id. The majority of the court determined "that, according to customary international law, duress is not a defense to murder."

Id. 156. Negusie, 555 U.S. at 526.

157. See id at 528-38 (Stevens, J., concurring in part & dissenting in part).

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critical: We do no not normally convict individuals of crimes when their actions are coerced or otherwise involuntary.15 8 Justice Stevens further cited the UN Handbook in support of the view that that the relevant question is whether a refugee's "acts are of a 'criminal in nature' as contemplated by Article 1(F)."15 9 Citing to cases from Canada, the United Kingdom, Australia, and New Zealand, Justice Stevens noted that other state parties to the Convention have recognized some sort of duress exception when interpreting the Article IF(a) exclusion ground.16 0 To a large degree, Justice Stevens echoed the arguments made in amici briefs filed b refugee law scholars, UNHCR, and human rights advocates.' 6 In his dissenting opinion, Justice Thomas concluded, based on his analysis of the language of the DPA and the modern persecutor bar, that the Court of Appeals properly applied Fedorenko, and therefore, the persecutor bar does not have a voluntariness requirement.162 Reference to international law is relegated to a footnote in which Justice Thomas stated disagreement with Justice Stevens' importation of criminal law principles into the realm of asylum and also characterized the UNHCR Handbook's guidance on the issue as a "conclusory pronouncement."' 6 3 Despite the well-settled principle that the Refugee Act-and therefore the persecutor bar-is based on the Convention and Protocol, the Court, as evidenced by the Neguise opinion, is deeply fractured regarding the role that international sources should play in interpreting the persecutor bar.

158. Id. at 536 (internal citations omitted).

159. Id. at 536-37.

160. Id. at 537 n.7.

161. E.g., Brief for Scholars of International Refugee Law as Amici Curiae in Support of Petitioner, Negusie v. Mukasey, 555 U.S. 511 (2009) (No. 07-499), 2008 WL 2550611; Brief Amicus Curiae of the Office of the United Nations High Commissioner for Refugees in Support of Petitioner, Negusie v. Mukasey, 555 U.S. 511 (2009) (No. 07-499), 2008 WL 2550609; Brief Amicus Curiae of the Advocates for Human Rights in Support of Petitioner, Negusie v. Mukasey, 555 U.S. 511 (2009) (No. 07-499), 2008 WL 2550608.

162. Negusie, 555 U.S. at 538-39 (Thomas, J. dissenting).

163. Id. at 549-50 n.3.

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B. The Elephant in the Room: The Disconnect Between the PersecutorBar andArticle IF(a) It is certainly the case, as Justice Stevens observed,164 that other state parties to the Refugee Conventions have interpreted Article IF exclusion grounds to embody some sort of a duress exception in reference to international criminal law principles.

What neither Justice Stevens, nor the refugee scholars emphasized in their amici brief, however, is that Canada, the United Kingdom, Australia and New Zealand have all adopted the precise language of the Article IF exclusion grounds.' 65 The U.S. persecutor bar, in contrast, is merely based on the exclusion ground in Article 1F(a). Based on this disconnect, the elephant in the room is apparent-U.S. persecutor bar application is inconsistent with the precise language of the exclusionary grounds set forth under Article 1F. The discussion by the Federal Court of Australia ("FCA") in SRYYY,1 66 one of the foreign cases cited by Judge Stevens regarding the import of international criminal law in interpreting Article IF(a),' 6 vividly illustrates the importance of this statutory difference. In SRYYY, the Appellant, a former soldier in the Sri Lankan army, sought asylum in Australia.' 6 8 However, the Appellant admitted to having used violent methods and death threats when interrogating individuals (including children) refarding connections to the Liberation Tigers of Tamil Elan.' 6 On this basis, the lower court found Petitioner was excluded from receiving asylum by virtue of Article 1F(a) because "there were serious reasons for considering that the appellant was 'complicit in the crimes against humanity and the war crimes of the Sri Lankan 164. Id. at 534-38 (Stevens, J. concurring in part & dissenting in part).

165. See Rikhof supra note 24, at 455, 467, 475-76, 484 (noting, respectively, that Canada, Australia, New Zealand, and the United Kingdom have each adopted the precise language of Article 1F).

166. SRYYY v Minister for Immigration & Multicultural & Indigenous Affairs [20051 147 FCR I (Austl. Fed. Ct.), available at http://www.unhcr.org/refworld/docid/42dl211a4.html (last visited May 15, 2012).

167. Negusie, 555 U.S. at 537 n.7 (Stevens, J. concurring in part & dissenting in part).

168. SRYYY, 147 FCR at 1-2.

169. Id.

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70

.l Army 5n*

In SRYYY, the Appellate Court addressed the issue of whether the lower court had properly applied principles of the Rome Statute of the International Criminal Court, including the definitions of crimes against humanity and war crimes, as well as the proper application of a "superior orders" defense.' 7' The court explained at great lengths the development of international criminal law, from the Nuremberg International Military Tribunal through the Rome Statute, as it related to the court's task in identifying the elements of the crimes and defenses at issue in Article lF(a).172 The court also tackled the difficult situation that arises when international instruments falling within the scope of Article IF(a) provide inconsistent definitions of the relevant crimes.173 In the Canadian case Asghedom,174 also referred to by Justice Stevens, 7 5 the appellate court addressed whether an Eritrean refugee was roperly determined not to be excludable under Article IF(a).

The Petitioner was forcibly conscripted into the Ethiopian army. 1 While in the army, Petitioner's duties as a soldier included guarding civilian homes during raids and burying dead bodies at a military camp where he knew civilians to have been tortured and killed. 7" Like the Petitioner in Negusie, the Respondent in Asghedom argued he should not be excluded from refu ee protection because he took part in these acts under duress. 1 To counter this position, the Canadian government argued that the Respondent was excludable under Article 1F(a) for complicity in war crimes and/or crimes against 170. Id. T 3.

17 1. Id. T 17.

172. See id.

18-58.

173. See id. T 68-77.

174. Canada (Minister of Citizenship and Immigration) v. Asghedom, [2001] F.C. 972 (Can. Ont.), available at http://www.unhcr.org/refworld/docid/403dce354.html (last visited May 15, 2012).

175. Negusie v. Holder, 555 U.S. 511, 537 n.7 (2009) (Stevens, J. concurring in part & dissenting in part).

176. Asghedom, 2011 F.C. para. 1-2.

177. Id. para. 4.

178. Id. para. 7.

179. Compare id. para. 22; with Neguise, 555 U.S. at 517-18.

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humanity, and that a duress defense should not apply.Iso The court affirmed the Immigration and Refugee Board's determination that Asghedom was a Convention refuge relying on Canadian caselaw interpreting Article IF(a), which in turn, was based on an analysis of the duress defense under the London Charter of the International Military Tribunal. 18 ' The fact that these various courts were interpreting the exact text of Article 1F(a), and not merely a domestic statute inspired by or intended to give effect to the Convention's meaning, cannot be underestimated. Refugee and human rights scholars who are critical of U.S. courts for failing to engage more actively with international criminal and human rights law minimize this significant divergence in statutory language. 182 The starting point for statutory analysis is, after all, the wording of the statute.'8 3 While the incongruence between the persecutor bar language and Article 1F(a) was not addressed in plain terms in Negusie, the Southern District of New York confronted the issue in a habeas litigation wherein the petitioner challenged the BIA's application of the persecutor bar to his request for asylum and withholding of removal.184 In Ofosu, Petitioner argued that the court should apply the language from Article IF(a) instead of the language in the INA.18 5 The court noted that while the first sentence of Section 1101 (a)(42)(A), in using the language "persecution on account of race, religion, nationality, membership in a particular social group, or political opinion . . ." is identical to the Convention,

Congress did not adopt the language of the Convention in 180. Asghedom, 2011 F.C. para. 12-13, 28-30.

181. Id. para. 15.

182. See, e.g., Farbenblum, supra note 55, at 1093 (noting that "[a]lthough the exact language of the persecutor bar does not appear in the Convention, the statute's legislative history indicates that Congress intended it to comport with principles underlying Article IF(a) of the Convention").

183. E.g., Consumer Product Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 108 (1980) ("We begin with the familiar canon of statutory construction that the starting point for interpreting a statute is the language of the statute itself. Absent a clearly expressed legislative intention to the contrary, that language must ordinarily be regarded as conclusive.").

184. Ofosu v. McElroy, 933 F. Supp. 237 (S.D.N.Y. 1995).

185. Id. at 244-45.

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definingwho should be excludedfrom refugee status.18 6 The court's observations capture the potential significance of Congress' decision to independently craft a statute based on international obligations, rather than to adopt the exact language of international instruments.

In contrast, courts confronted with civil claims pursuant to the Alien Torts Statute ("ATS") by necessity must look to international law because the statutory language requires the court to determine whether the alleged violation was "committed in violation of the law of nations or a treaty of the United States."' 87 Determining the contours of the universe of claims that can be brought under the ATS is a complicated issue, but one issue that Supreme Court has acknowledged must In be approached in reference to international law. 8 determining the applicable mens rea requirement for "aiding and abetting liability" under the ATS, for example, courts have weighed the standards embodied in the Rome Statute and the slightly differing approach taken by the ICTY and International Criminal Tribunal for Rwanda ("ICTR").18 9 The Fourth Circuit recently determined that the Rome Statue provided the most relevant standard as a "primary source of the law of nations[]" for determining the appropriate mens rea, notwithstanding the fact that the United States had not ratified the treaty.190 Indeed, it is likely the Supreme Court will again examine the scope of the "law of nations" under ATS when it hears arguments in Kiobel v. Royal Dutch Petroleum Co.

186. Id. at 245 (emphasis added).

187. 28 U.S.C. ยง 1350 (West 2012) (emphasis added).

188. Sosa v. Alvarez-Machain, 542 U.S. 692, 731-38 (2004) (discussing standards by which alleged violation of international law norm should be evaluated).

189. E.g., id.; Aziz v. Alcolac, 658 F.3d 388, 396-401 (4th Cir. 2011) (reviewing application of "the precise question of accessorial liability under the ATS").

190. Aziz, 658 F.3d at 399-401.

191. Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111 (2nd Cir. 2010), cert. granted 132 S.Ct. 472 (2011) (10-1491). The case, being argued in tandem with Mohamad v. Rajoub, 634 F.3d 604 (D.C. 2011), cert. granted 132 S.Ct. 454 (2011) (No. 11-88), was originally argued on February 28, 2012, and later restored to the Court's calendar for re-argument on March 5, 2012. Docket for Kiobel v. Royal Dutch Petroleum Co., 132 S.Ct. 472

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The in-depth treatment of international law by U.S. courts in the ATS context is comparable to the Australian and Canadian courts' engagement with international law in interpreting Article 1F(a?'s exclusion grounds in SRYYY and Asghedom, respectively. 92 In each case, the statutory language in question directly references international law.1 93 Persecutor bar jurisprudence, on the other hand, lacking the statutory mooring of Article 1F(a), which directs courts to "the international instruments" defining the relevant crimes, rarely draws upon international law sources.

V. INTERNATIONAL CRIMINAL LAW AS A BUILDING BLOCK IN U.S. IMMIGRATION JURISPRUDENCE REGARDING EXCLUSION OF HUMAN RIGHTS VIOLATORS Although the absence of clear guidance on the use of international legal principles and instruments has been criticized, 194 aspects of international human rights and criminal law have emerged in immigration jurisprudence in a number of ways, like building blocks for a factual record and through recognition of analogous legal principles. In each of these instances, the idiosyncrasies of U.S. jurisprudence and statutory construction have not been barriers to reliance on the findings and legal conclusions of international criminal law tribunals.

(2011)

(10-1491),

http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/101491.htm (last visited May 15, 2012). The precise question presented by the Court for supplemental briefing and re-argument is: "Whether and under what circumstances the Alien Tort Statute, 28 U.S.C. ยง 1350, allows courts to recognize a cause of action for violations of the law of nations occurring within the territory of a sovereign other than the United States." Id. 192. See discussion supranotes 169 to 185.

193. See id.

194. E.g., Farbenblum, supra note 55, at 1063-64 (exploring the "related and often-ignored reason that U.S. internation obligations toward refugees have been diluted: excessive judicial deference to the [BIA] under Chevron . . . [deference]).

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A. Matter ofD-R-: Building a FactualRecord Based on Documents From the ICTY In Matter of D-R-,19 5 the only published case to date where the BIA has examined a removability charge based on commission of human rights offenses overseas, the government charged the respondent as removable for participating in extrajudicial killing in Bosnia.196 To meet its burden to demonstrate removability, the government introduced documents and witnesses from proceedings under the ICTY. 197 Specifically, the government relied on findings of fact in ICTY decisions, evidence "from field officers during the war that were seized by the ICTY after the war[,]" video and photographic exhibits used by ICTY prosecutors, and expert testimony by a government employee who formerly worked as an analyst for the ICTY.' 98 In addition, the government introduced "an International Warrant for the respondent's arrest issued by the Court of Bosnia and Herzegovina."l 99 The Immigration Judge based factual conclusions in large part on the factual record developed through the evidence originating from the ICTY.20 0 The BIA found that the Immigration Judge properly evaluated the credibility of the Respondent's testimony compared to the evidence in the record, which mainly consisted of documents and other materials from the ICTY.2 0' Furthermore, the BIA rejected the Respondent's arguments that the documentary evidence and testimony from the ICTY proceedings were "inadmissible and unreliable." 202 In its discussion of this issue, the BIA notes: "It is well settled that the Federal Rules of Evidence are not binding in immigration proceedings and that Immigration Judges have broad discretion to admit and consider relevant and probative evidence[;]" 203 because the probative value of evidence and the fairness of.its 195. Matter of D-R-, 25 It & N. Dec. 445, 446 (B.I.A. 2011).

196. Id. at 445.

197. Id. at 447.

198. Id. 199. Id. at 454.

200. See id. at 447-49.

201. Id. at 455.

202. Id. at 457.

203. Id. at 458 (citations omitted).

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are

paramount

considerations

in

evaluating

admissibility.2 04

Ultimately, the BIA concluded that the government witness testified sufficiently to allay any concerns relating to authentication and chain of custody, regardless of the inapplicability of the Federal Rules of Evidence. 2 05 In addition, the BIA upheld the Immigration Judge's conclusion that even if the evidence was found to be hearsay, it would be admissible in Immigration Court because it was reliable and probative.206 Matter of D-R- is instructive on the potential for using documentary and testimonial evidence from international criminal tribunals in an immigration court setting. Although it may not be surprising that the Respondent's evidentiary challenges failed in light of the fact that the rules of Immigration Court strongly favor admissibility, Matter of D-R demonstrates how the government may wield such evidence to deny haven to a human rights violator, arguably strengthening human rights protections provided for under U.S. law. Nothing in the BIA's decision suggests that similar evidence could not be marshaled by the government in a persecutor bar case, or by a respondent in an application for protection. In fact, in United States v. Vidacak,2 evidence seized pursuant to an ICTY search warrant was deemed admissible in a criminal prosecution against a former Zvornik Brigade member charged with making false statements in his U.S. immigration applications.20 Matter of D-R-, along with Vidacak, are therefore examples of how the factual and legal findings of international criminal law tribunals can serve as building blocks in the development of U.S. jurisprudence, despite ambiguous guidance from both the U.S. Supreme Court and the Courts of Appeal.

B. Incitement to Genocide - "Persecution" by Another Name In Part III.C., this Article discussed instances where U.S. courts have looked to international law to define persecution for 204. Id. (citing Espinoza v. Immigration and Naturalization Serv., 45 F.3d 308, 310 (9th Cir. 1995)).

205. Id. at 459.

206. Id. at 460-61.

207. United States v. Vidacak, 553 F.3d 344 (4th Cir. 2009).

208. Id. at 346-51.

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the purposes of the persecutor bar and for determining if International law has long recognized protection is merited. that persecution does not necessarily entail violent means. The notion that the media may be used as a vehicle for inciting or promoting persecution and genocide was recognized by the International Military Tribunal in the prosecution of German newspaper editor and Nazi-propagandist Julius Streicher, one of the Nazi party's chief pro agandists and editor of anti-Semitic United States courts have been newspaper Der Stiirner. confronted with the issue of propaganda-as-persecution in the immigration and denaturalization context, yet U.S courts have been inconsistent in their recognition of, and reliance on, the findings and analysis of the International Military Tribunal ("IMT") in relation to analogous facts and legal issues.

On October 1, 1946, the IMT convicted Streicher of crimes against humanity in connection with his incitement to the mass murder of Europe's Jewish population. 2 1 1 Article 3 of the Genocide Convention of 1948 formally recogizes incitement to Pursuant to its commit genocide as a punishable act. 21 ratification of the Genocide Convention in 1988, the United States passed the Genocide Act the same year, which also recognizes the crime of incitement.2 1 3 While U.S. courts have not had the occasion to examine the crime of incitement as proscribed in the Genocide Act, similar fact patterns and considerations have arisen in the context of the "persecutor bar"

jurisprudence.

For example, in United States v. Sokolov,2 14 the Second Circuit Court of Appeals examined whether the defendant, a

209. See discussion supra Part.III.C. 210. IMT Judgment, Oct. 1, 1946, reprinted in 22 The Trial of German Major War Criminals: Proceedings of the International Military Tribunal available at Sitting at Nuremberg, Germany 501-02 (1946), IMT [hereinafter http://werle.rewi.hu-berlin.de/IMTJudgment.pdf Judgment].

211. Id. 212. Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 9, 1948, 102 Stat. 3045, 78 U.N.T.S. 277.

213. Genocide Convention Implementation Act of 1987, Pub. L. No. 100606, 102 Stat. 3045 (1988) (codified at 18 U.S.C. ยง 1091(c) (West 2012)).

214. United States v. Sokolov, 814 F.2d 864 (2nd Cir. 1987).

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recipient of a visa under the DPA 2 15 who subsequently naturalized, should be denaturalized on account of the DPA's barring of persons who "advocated or assisted in the persecution of any person because of race, religion, or national origin." 2 16 Government proof at trial was to the effect that Sokolov, a Russian living in the German-occupied Soviet Union, worked voluntarily as a writer for and later also as deputy chief editor of the Russian-language newspaper Rech ("Speech"), which was published by the German army.

Under the pseudonym "Samarin," Sokolov wrote antiSemitic articles urging the Soviet population to support antiJewish/Bolshevik actions taken by the Nazis, and articles criticizing the United States and Great Britain and seeking to aid in their military defeat. In addition, as deputy chief editor of Rech, Sokolov edited articles with these same themes.2 17 In weighing Sokolov's work as a Nazi propagandist, the court determined, in part, that Sokolov illegally procured his U.S. citizenship "because he had advocated or assisted in the persecution of Jews and had assisted enemy forces in their operations against the allies.'218 In reaching this conclusion, the court considered the evidentiary record established by the govemment before the district court, including testimony by experts in Nazi propaganda and U.S. government officials involved in processing visa applicants pursuant to the DPA.2 19 In addition, the court looked to the Webster Dictionary definition of "persecution" in order to conclude that Sokolov's work as a propagandist amounted to persecution.2 2 0 In sum, the court treated the issue of propaganda-as-persecution as one of first impression without reference to similar analysis undertaken in the Streicher prosecution.221 While the Sokolov court failed to take judicial notice of highly relevant findings from the Nuremberg prosecution of 215. Displaced Person Act of 1948, Pub. L. No. 80-774, 62 Stat. 1009 (1948).

216. Sokolov, 814 F.2d at 866.

217. Id. at 866.

218. Id. at 874.

219. Id. at 874-75.

220. Id. 221. Compare id. at 873-75; with IMT Judgment, supra note 210, at 50102.

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Nazi-propagandist Julius Streicher, eight years later the Third Circuit Court of Appeals made explicit reference to Streicher in its opinion regarding the denaturalization of a Hungarian newspaper editor, Ferenc Koreh.2 2 2 Prior to and following the German occupation of Hungary during World War II, Koreh served as an editor for newspapers that published anti-Semitic articles. 223 Koreh later immigrated to the United States as a recipient of a DPA visa and thereafter naturalized.2 2 4 The U.S. government sought to denaturalize Koreh on several grounds, including illegal procurement of the DPA visa on account that he "advocated and/or assisted in the persecution' of Jews" in his role as editor of a Hungarian newspaper. 225 The court soundly rejected Koreh's argument that his role as propagandist [d]id not "assist in the persecution" of Hungarian Jews. It runs counter to generations of history that attest to the maxim that the pen is at least as mighty, if not mightier, than the sword. That the Nazi powers, and their cohorts, placed great confidence in the power of the word is demonstrated by the emphasis they placed on propaganda. 226 According to the court, this historical fact was illustrated by the Streicher prosecution, in which the IMT held that [Streicher] continued to write and publish his propaganda of death. Streicher's incitement to murder and extermination at the time when the Jews in the East were being killed under the most horrible conditions clearly constitutes persecution on political and racial grounds in connection with war

crimes, and constitutes a Crime Against Humanity. 227 After quoting from the Streicher judgment, the court notes: "Although the underlying legal basis for the prosecution of Streicher differed from the basis for this denaturalization case against Koreh, the recognition of the nexus between propaganda

222. United States v. Koreh, 59 F.3d 431(3rd Cir. 1995).

223. Id. at 434-36.

224. Id. at 436-37.

225. Id. at 437.

226. Id. at 439.

227. Id. at 440 (quoting 5 Int'l Military Tribunals, Trial of the Major War Criminals 118 (1987)).

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and persecution is no less applicable for that reason." 228 The courts' willingness to extend a criminal law principle (developed in an international tribunal almost fifty years earlier) to the entirely different procedural and legal context of a civil denaturalization case exemplifies the potential for international criminal law concepts to influence strikingly different areas of U.S. jurisprudence.

More recently, the International Criminal Tribunal for Rwanda looked at incitement to genocide in the so-called "Media Cases," which resulted in convictions against Rwandan television, radio, and press officials whose media allegedly incited genocide against the Tutsis. 22 It will be interesting to see to what extent, if any, this jurisprudence is reflected in U.S. caselaw examining genocide, either in the criminal or immigration context.

VI. CONCLUSION

As has been observed by many commentators, U.S. courts are or foreign law over generally reluctant to rely on international 230 in the realm of Indeed, construction. precedent or statutory human rights and protection law, other countries are far more likely to cite to jurisprudence of international institutions and comparable foreign jurisdictions than the United States.

Nonetheless, while the terrain is somewhat uncertain, as discussed throughout this Article, there are many examples where immigration courts and practitioners use international 228. Id. (emphasis added).

229. See generally Note, Robert H. Snyder, "DisillusionedWords Like

Bullets Bark": Incitement to Genocide, Music, and the Trial of Simon Bikindi, 35 GA. J. INT'L & COMP. L. 645 (2007) (providing overview of the International Criminal Tribunal for Rwanda incitement cases).

230. See, e.g., David Zaring, The Use of Foreign Decisions by Federal Courts: An Empirical Analysis, 3 J. EMPIRICAL LEGAL STUD. 297, 297 (2006) ("[F]ederal courts rarely cite to foreign decisions, they do so no more now than they did in the past, and on those few occasions where they do cite to foreign decisions, it's usually not to help them interpret domestic law.").

231. See Rikhof, supra note 24, at 502 (observing "the US has taken a slightly different. course in a number of areas, which is apparent from a general tenet in its jurisprudence, which does not use the jurisprudence from either international institutions, or the other countries in this study, as interpretative guides").

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law as a tool in human rights cases. Indeed, it is impossible to know whether such resources are frequently relied on at the immigration court level due to the absence of a record for the vast majority of proceedings.

The extent to which U.S. immigration law does or does not rely on international human rights law can provide one measure of evaluating the United States' commitment to the international norms and obligations of protection. While a disconnect between domestic caselaw and international refugee and human rights jurisprudence could reflect a protection gap, it is also possible that the United States approach ultimately adheres closely to international human rights norms (albeit within the framework of United States precedent) rather than international or foreign jurisprudence.

Although beyond the scope of this Article, when examined through the prism of denying safe haven to human rights violators, rather than of providing refuge to individuals fleeing persecution, for example, the United States extends beyond the framework of the 1951 Convention. Where the Convention excludes protection for "any person . .. [who] has committed a crime against peace, a war crime, or a crime against humanity," 232 the INA bars protection to any person who has "ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion[.]" 2 3 3 While the INA's broader exclusion could be interpreted as restricting the protections envisioned in the Convention, it may instead serve to strengthen human rights protection by denying violators a haven to retreat from accountability for their actions, even the "lesser" offense of persecution, as opposed to war crimes or crimes against peace or humanity.

The dearth of references to international law discussed in this paper is a phenomenon that is not unique to the practice of United States immigration law.

As a function of U.S. jurisprudence, our courts' reluctance to rely on foreign and international law will likely change only gradually, if at all.

Therefore, for those hoping to expand human rights protection 232. 1951 Convention, supra note 6, at art. 1(F)(a).

233. INA ยง 208(b)(2)(A)(i), 8 U.S.C. ยง 1158(b)(2)(A)(i).

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and enforcement, it may more productive to look to existing U.S. statutory and caselaw framework rather than rely on international or foreign legal principles and instruments.234 Efforts such as criminal prosecutions for immigration violations against human rights perpetrators may represent new opportunities to develop a robust domestic tradition of human rights enforcement, firmly grounded in U.S. law.

234. Some critics, however, may approach this issue from a normative rather than pragmatic perspective and may urge U.S. courts to accept participation in an international legal framework that the United States is both obliged to and benefits from. This argument is captured in Justice Kennedy's decision in a Supreme Court case looking at the Federal Arbitration Act: "If the United States is to be able to gain the benefits of international accords and have a role as a trusted partner in multilateral endeavors, its courts should be most cautious before interpreting its domestic legislation in such manner as to violate international agreements." Vimar Seguros y Reaseguros, S.A. v. M/V Sky Reefer, 515 U.S. 528, 539 (1995).

Indeed, some argue that the United States is becoming an anachronism, or "legal backwater" as other countries increasingly turn to other models for legal inspiration for nation-building. E.g., Adam Liptak, 'We the People' Loses Appeal With People Around the World, N.Y. TIMES, Feb. 7, 2012, at Al, available at http://www.nytimes.com/2012/02/07/us/we-the-peopleloses-appeal-with-people-around-the-world.html?r-1 (last visited May 15, 2012).

BUILD A BETTER MOUSETRAP AND THE WORLD WILL BEAT A PATH TO YOUR DOOR*: CAN THE EMPLOYMENT-BASED IMMIGRATION PROCESS BE IMPROVED?

ANTON F.

MERTENS

TABLE OF CONTENTS

I.

INTRODUCTION

II.

HISTORICAL PERSPECTIVE

A. B. C.

III.

.................................................

514 .........................

Immigration HistoryBefore 1900.......... ................... 518 ............. 520 Immigration Historyfrom 1900 to 1952........

Act of 1952 to and Nationality The Immigration Present..................... ................. 523

OVERVIEW OF THE EMPLOYMENT-BASED IMMIGRATION PROCESS................ .......................

A.

B.

515

..... 527

Employment-Based ImmigrationPreferenceSystem............... 529 1. FirstPreference ........................ ..... 530 2. Second Preference. ...................... ..... 532 3. ThirdPreference ................... ...........

533 4. FourthPreference ............................

533 5. Fifth Preference .....................................

534 Limitations Under the Preference System ..................... 535

IV.

RECENT DEVELOPMENTS

V.

THE FUTURE OF EMPLOYMENT-BASED IMMIGRATION:

.................................

CAN A BETTER MOUSETRAP BE BUILT? .............

* Statement attributed to Ralph Waldo Emerson.

** Partner; Smith, Gambrell & Russell, LLP.

540

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CONCLUSION

...............................

I.

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......... 547

INTRODUCTION

I became a United States citizen in 1994 and have seen firsthand where the immigration system can be improved. I came to the United States from Belgium in 1979 as a high school exchange student and landed in Jacksonville, Florida.

After a great experience in the United States, I returned to the United States for college in 1981 on a student visa. Upon graduating from college, I completed law school in Georgia, and in 1988, I obtained the hallowed green card through my employer at the time.

I started practicing immigration law when I became involved in my own immigration case and have focused my career almost exclusively on business immigration matters over the years. I assist my clients and empathize with their employees as they are going through the lengthy and confusing process of becoming a permanent resident. Being an immigrant has given me a unique perspective on immigration, and as a result I know that we must work to improve the system.

Businesses have been coping with a highly inefficient immigration system where the quest for an employment-based green card can take ten years or more for citizens from some countries.' As a result of this delay, this Article examines the methods by which the current inefficient business immigration Part II provides a historical system can be corrected. perspective in an attempt to grasp an understanding of where the United States as a nation has stood with regards to immigration regulation over time. Part III then focuses the discussion on the outdated employment-based immigration process by reviewing the five different classes under the employment based preference system, and the ultimate limitations of the preference 1. See U.S. CITIZENSHIP AND IMMIGRATION ANSWERS: PENDING EMPLOYMENT-BASED

SERVS., QUESTIONS & 1-485 INVENTORY,

http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f61417 6543f6dla/?vgnextchannel=ae853adl5c67321OVgnVCMlOOOOO82ca6OaR CRD&vgnextoid=5el70e6bcb7e321OVgnVCM 1OOOOO82ca6OaRCRD (last visited May 15, 2012).

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system as a whole. Next, Part IV reviews developments in the flawed system as expressed through recent immigration legislation enacted in Georgia and the various other states.

Lastly, Part V submits that in order for the employment-based immigration system to continue, changes are necessary.

Mainly, by looking to the Canadian based point-system, the U.S. business-immigration process maybe corrected.

Ultimately, the Article concludes that the time has come for change to the current inefficient, and outdated employmentbased immigration system.

II. HISTORICAL PERSPECTIVE2 Immigration law today reflects the struggle between protecting the domestic workforce and retaining global competitiveness through the use of foreign talent. 3 Due to this struggle, the recruitment and retention of highly skilled foreign employees have become critical components of human resource and corporate legal functions. A fundamental grasp of the strategies available under business immigration law is essential to the achievement of business objectives.4 Immigration to the United States is governed by federal law (Title 8 of the United States Code) and administered by the Department of State ("DOS"), principally through its foreign consulates and embassies, the Department of Labor ("DOL"), and the U.S. Department of Homeland Security ("DHS"), in particular, the U.S. Citizenship and Immigration Services ("USCIS").s In addition, to a lesser extent, the U.S. Customs

2. Portions of the text in Part.II. have been reproduced, with alterations, from Anton F. Mertens, The Great Immigration Debate: Immigration in Your Backyard, 12 TRUST THE LEADERS 40 (2005), available at http://www.sgrlaw.com/resources/trust-the-leaders/leaders-issues/ttil2/40/ [hereinafter Mertens, ImmigrationDebate].

3. Id. (alterations from original). See also Paschal 0. Nwokocha, American Employment-Based Immigration Program in a Competitive Global Marketplace: Need for Reform, 35 WM. MITCHELL L. REv. 38, 38 (2008) (arguing "American immigration laws should adjust if the United States is to remain competitive in the global economy").

4. Text reproduced from Mertens, Immigration Debate, supra note 2 (alterations from original).

5. Id. (alterations from original).

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and Border Protection ("CBP") 6 and the U.S. Immigration and Customs Enforcement ("ICE")7 assist in the enforcement of immigration law.8 The U.S. Immigration and Naturalization Service ("INS"), now referred to as Legacy INS, ceased to exist under that name on March 1, 2003.9 On that date, most functions of the INS were transferred from the Department of Justice to three new components within the newly created Department of Homeland Security as part of a major government reorganization following the attacks on September 11th.' 0 This transformation has led to some confusion and a 6. See CBP MISSION STATEMENT AND CORE VALUES, U.S. CUSTOMS AND BORDER PROTECTION,

http://www.cbp.gov/xp/cgov/about/mission/guardians.xml (last visited May 15, 2012) (providing statement regarding the "Mission" and "Core Values" of the CBP).

7. See ICE OVERVIEW, U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, http://www.ice.gov/about/overview/ (last visited May 15, 2012).

U.S. Immigration and Customs Enforcement is the principal investigative arm of the U.S. Department of Homeland Security (DHS) and the second largest investigative agency in the federal government. Created in 2003 through a merger of the investigative and interior enforcement elements of the U.S. Customs Service and the Immigration and Naturalization Service, ICE now has more than 20,000 employees in offices in all 50 states and 47 foreign countries.

Id. 8. E.g., Ingrid V. Eagly, Prosecuting Immigration, 104 Nw. U. L. REV. 1281, 1299 (2010) ("The enforcement arm of [the Department of Homeland Security ("DHS")] now consists principally of the U.S. Customs and Border Protection (CBP), responsible for enforcement at the border and ports of entry, and U.S. Immigration and Customs Enforcement (ICE), responsible for interior enforcement.").

9. The Immigration and Naturalization Service was absorbed into the DHS on March 1, 2003. Homeland Security Act of 2002, Pub. L. No. 107296, 116 Stat. 2135 (2002). The DHS "has requested that those who must reference the Immigration and Naturalization Service, which was abolished as of March 1, 2003, refer to it as 'legacy INS.' DHS has requested specifically that individuals refrain from referring to the INS as the 'former INS."'

AM. IMMIGRATION LAWYERS Ass'N AILA PUBL'N, MANUAL OF

STYLE

20

(2010), available

at http://www.aila.org/content/default.aspx?docid=22107.

10. See generally Charles Perrow, The Disaster After 9/11: The Department of Homeland Security and the Intelligence Reorganization, 2 HOMELAND

SEC.

AFFAIRS

1

(2006),

available

at

http://www.hsaj.org/?fullarticle=2.1.3 (recounting the various options, and

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great deal of inconsistencies between the agencies. But where did it all begin?

Before the late 1800s, U.S. law imposed no restrictions on In response to the immigration to the United States." increasing number of immigrants, Congress in 1921 enacted a general quota system, that for the first time set an annual limit on the number of aliens (aliens refers to all foreign-born persons The who are not U.S. citizens) allowed to immigrate. remains 1952 of Act subsequent Immigration and Nationality the cornerstone of this country's immigration policy.' 3 On a different front, the Immigration Reform and Control Act of 1986,14 for the first time required U.S. employers to verify the identity and work authorization of all new employees, whether Subsequent the employees are U.S. citizens or aliens. 5 legislation continues to refine these laws, often reflecting an effort to adapt their application to the global workplace.' 6 The Immigration Act of 1990 is Congress's latest effort to facilitate employment-based immigration by creating a fivetiered system of preferences, while numerically limiting the Unfortunately, the amount of immigrant work visas. 7 preference system is overdue for a serious overhaul of the immigration engine. By way of background, a brief overview of some of the significant milestones in immigration history is necessary to understanding the outdated system that is supposed path chosen, for reorganization of the DHS after September 1Ith).

11. Text reproduced from Mertens, Immigration Debate, supra note 2 (alterations from original). See also Sen. Alan K. Simpson, The Immigration Reform and ControlAct: Immigration Policy & the National Interest, 17 U. MICH. J.L. REFORM 147, 147-50 (1983) (reviewing the "Historical Foundations of United States Immigration Policy").

12. Text reproduced from Mertens, Immigration Debate, supra note 2 (citing Emergency Quota Law of 1921, Pub. L. No. 67-5, 42 Stat. 5 (1921)).

See also Simpson, supra note 11, at 149-50.

13. Text reproduced from Mertens, Immigration Debate, supra note 2.

See also Simpson, supra note 11, at 151.

14. Immigration Reform and Control Act of 1986, Pub. L. No. 99-603, 100 Stat. 3359 (1986) (codified as amended in scattered sections of 8 U.S.C.).

15. Text reproduced from Mertens, Immigration Debate, supranote 2.

16. Id. 17. Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978 (1990) (codified as amended in scattered section of 8 U.S.C.).

5 18

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to attract the best and the brightest to the United States.

A. Immigration History Before 1900 In 1790, the first federal immigration act was established restricting citizenship to "any alien, being a free white person . . . may be admitted to become a citizen."

Among other things, the Act required immigrants live in the United States for two years before becoming citizens. 19 Prior to this Act the individual states mandated the length of naturalization.26 In addition, reporting requirements were not adopted until the Steerage Act of 1819 mandated the collection of data on immigrants entering the United States. 22 For example, ship captains were required to gather information on immigrants entering the United States.2 3 In 1875, Congress passed the Page Act,2 4 the first exclusionary act designed to prevent the entry of immigrants considered "undesirable." 25 Under the Page Act, the 18. Naturalization Act of 1790, ch. 3, 1 Stat. 103 (1790), repealedby Act of 1795, ch. 20, 1 Stat. 414. See also J. Allen Douglas, The "Priceless Possession" of Citizenship: Race, Nation and Naturalization in American Law, 1880-1930, 43 DUQ. L. REV. 369, 385 (2005) (providing historical overview of the naturalization process).

19. Naturalization Act of 1790, ch. 3.

20. E.g., James E. Pfander & Theresa R. Wardon, Reclaiming the Immigration Constitution of the Early Republic: Prospectivity, Uniformity, and Transparency, 96 VA. L. REv. 359, 393-94 (2010) (discussing the Naturalization Act of 1790). "Contrary to some accounts, this formulation apparently empowered both state and federal courts to entertain naturalization petitions." Id. at 394 (citations omitted).

21. Steerage Act of 1819, 3 Stat. 489 (1819).

22. Comment, Elizabeth M. Dunne, The Embarrassing Secret of Immigration Policy: Understanding Why Congress Should Enact an Enforcement Statute for Undocumented Workers, 49 EMORY L.J. 623, 651 n. 172 (2000) ("Specifically, the Steerage Act required that passenger lists or manifests of all arriving vessels be delivered to the local Collector of Customs, copies transmitted to the Secretary of State, and the information reported to Congress.").

23. Roger J. LeMaster & Barnaby Zall, Compassion Fatigue: The Expansion ofRefugee Admission to the United States, 6 B. C. INT'L & COMP. L. REv. 447, 450 n.26 (1983).

24. Page Act of 1875, ch. 141, 18 Stat. 477 (1875).

25. See, e.g., Kerry Abrams, Polygamy, Prostitution, and the Federalization of Immigration Law, 105 COLuM. L. REv. 641, 641 (2005)

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classification of "undesirable" applied to Chinese contract The federal government laborers, convicts, and prostitutes. continued to establish its authority over immigration on May 6, 1882, with the passage of the Chinese Exclusion Act. 27The Act, among other things, suspended immigration "of Chinese laborers into the United States for a period of ten years and prohibit[ed] Chinese labors present in the United States ninety days before the passage of the Act from returning unless they obtained a certificate of identification prior to departure."

The Act, however, "exempted [Chinese] teachers, students, from its restriction on and travelers merchants[,] immigration."2 9 Fortunately, the Chinese exclusion laws were repealed on December 17, 1943.30 Unfortunately, however, the 1885 Contract Labor Law31 forbade American individuals or organizations from engaging in labor contracts with individuals prior to their immigration to the United States,32 and forbid ship (arguing "that the Page Law was not a minor statute targeting a narrow class of criminals, but rather an attempt to prevent Chinese women in general from immigrating to the United States").

26. See id. at 690-98.

27. Chinese Exclusion Act of 1882, ch. 126, 22 Stat. 58 (1882), repealed

by Act 1943, ch. 344, 57 Stat. 600 (1943).

28. Matthew J. Lindsay, Immigration as Invasion: Sovereignty, Security, and the Origins of the FederalImmigration Power, 45 HARv. C.R.-C.L. L. REv. 1, 30-31 (2010).

29. Henry S. Cohn & Harvey Gee, "No, No, No, No!": Three Sons of Connecticut Who Opposed the Chinese Exclusion Acts, 3 CON. PUB. INT. L.J. 1, 48 (2003).

30. Magnuson Act of 1943, Pub. L. No. 78-199, 57 Stat. 600 (1943).

31. Contract Labor Law of 1885, ch. 164, 23 Stat. 332 (1885).

32. See, e.g., Prescott F. Hall, The FederalContractLabor Law, 11 HARV. L. REv. 525, 525 (1898) ("The acts were originally passed at the demand of labor organizations and others who felt that the right to hire workmen of any sort in a foreign country, and to bring them to the United States in any numbers, placed the workingmen of this country at an unfair disadvantage in their efforts to better their condition and secure steady employment."); Adrian Vermeule, Legislative History and the Limits of Judicial Competence: the Untold Story of Holy Trinity Church, 50 STAN. L. REV. 1833, 1835 (1998) (reviewing Holy Trinity Church v. United States, 143 U.S. 457 (1892), "consider[ation] of the Alien Contract Labor Act of 1885, which made it unlawful to assist the immigration of aliens under contract to perform 'labor or service of any kind' in the United States") (internal citations omitted).

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captains from transporting immigrants under labor contracts. 33 The Immigration Act of 189134 established, among other things, a Commissioner of Immigration in the Treasury Department. 35 The 1891 Act further barred "[a]ll idiots, insane persons, paupers or persons likely to become a public charge, persons suffering from a loathsome or a dangerous contagious diseases[]" from entering the United States.

Then in 1892, Ellis Island began to receive immigrants. 37 Research indicates that more than twelve million immigrants were received at Ellis Island between 1892 and 1954.38 B. ImmigrationHistoryfrom 1900 to 1952 With the passage of the Immigration Act of 1903,39 exclusionary laws continued to develop with professional beggars, epileptics, and anarchists being added to the list of those banned from entering the United States. 40 By 1907, 33. See Carol Chomsky, Unlocking the Mysteries of Holy Trinity: Spirit, Letter,and History in Statutory Interpretation, 100 COLUM. L. REV. 901, 930 (2000) ("There was much debate about the necessity and wisdom of making ship captains liable for importing contract labor and about the wisdom of the clause excepting importation of labor for new businesses where skilled labor cannot be obtained in the United States.").

34. Immigration Act of 1891, ch. 551, 26 Stat. 1084 (1891).

35. Id. See also Lenni B. Benson, Back to the Future: Congress Attacks the Right to Judicial Review of Immigration Proceedings, 29 CONN. L. REV. 1411, 1421-22 (1997) ("Congress expressly tried to insulate the admission decisions from judicial interference by providing that only the Secretary of Treasury could review the admission officer's decision and 'not otherwise."') (footnote and citation omitted).

36. Immigration Act of 1891, 26 Stat. 1084. See also Siegfried Hesse, The Constitutional Status of the Lawfully Admitted Permanent Resident Alien: The Pre-1917 Cases, 68 YALE L.J. 1578, 1614 (1959); Will Maslow, Recasting Our DeportationLaw: Proposalsfor Reform, 56 CoLUM. L. REV. 309, 312 (1956).

37.

Ellis Island History, http://www.ellisisland.org/genealogy/ellis-island-history.asp (last visited May 15, 2012).

38. Id. 39. The Immigration Act of 1903, ch. 1012, 32 Stat. 1213 (1903).

40. See Note, Margot K. Mendelson, ConstructingAmerica: Mythmaking in U.S. Immigration Courts, 119 YALE L.J. 1012, 1018-19 (2010). See also United States v. Williams, 194 U.S. 279 (1904) (upholding the deportation of a resident alien anarchist).

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exclusionary laws barred persons with physical or mental defects, imbeciles, the feeble-minded, and children under the age of sixteen without parents.41 Deemed the "Gentleman's agreement" between the United States and Japan, President Roosevelt agreed to desegregate California schools (which separated the Japanese students from the U.S. students) in return for the Japanese agreement to halt the emigration of its citizens to the United States. 4 2 As a result, nearly all Asian immigrants become banned.43 The Immigration Act of February 5, 1917, codified all previously enacted exclusion provisions.44 In addition, the 1917 Act excluded illiterate aliens from entry, expanded the list of aliens excluded for mental health and other reasons, and further restricted the immigration of Asian persons, creating the "barred zone." 45 The "barred zone," also known as the Asia-Pacific triangle, declared inadmissible natives of any nation located within the designated geographic area. 46 The 1917 Act also considerably broadened the classes of aliens deportable from the United States. 47 In 1921, the first nationality quota is an established and limited admission to three percent of each nationality group's representation based on the 1910 census. 48 As a result, "the first 41. The Immigration Act of 1907, ch. 1138, 34 Stat. 898, 899 (1907). See also Kevin R. Johnson, The AntiterrorismAct, The Immigration Reform Act, and Ideological Regulation in the Immigration Laws: Important Lessons for Citizens and Noncitizens, 28 ST. MARY'S L.J. 833, 844 n.53 (1997) ("The Immigration Act of February 20, 1907, for the most part carried forward the ideological exclusions of the 1903 law.").

42. See MARTIN P. SCHIPPER, A GUIDE TO THE MICROFILM EDITION OF RESEARCH COLLECTIONS IN AMERICAN IMMIGRATION: ASIAN IMMIGRATION AND EXCLUSION VI (Univ. Pub. of Am. 1993), available at

http://cisupa.proquest.com/ksc-assets/catalog/1736_RecsINSSerAPtl.pdf.

43. See id.

44. Immigration Act of 1917, ch. 29, 39 Stat. 874 (1917), repealed by Immigration and Nationality Act of 1952, ch. 477, 66 Stat. 279 (1952).

45. IMMIGRATION LAWS (ACT OF FEBRUARY 5, 1917), U.S. DEP'T LABOR, BUREAU OF IMMIGRATION (4th ed. Feb. 1920); See also Patrick Weil, Races at the Gate: A Century of Racial Distinctions in American Immigration Policy (1865-1965), 15 GEO. IMMIGR. L.J. 625, 626 (2001).

46. IMMIGRATION LAWS, supranote 45.

47. Id. 48. Quota Law of 1921, Pub. L. No. 67-5, ยง 2, 42 Stat. 5 (1921). See also Mendelson, supra note 40, at 1016 ("The quota laws based immigration

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immigration law imposing numerical limits on imigration ... created an annual immigration cap of 350,000."4 Then in 1924, the annual cap was reduced to 165,000 immigrants, with admissions being reduced to two percent of the nationality group's representation in the 1920 census.50 To help enforce the new limitations, the United States Border Patrol was formed.5 ' In conjunction with the Immigration Act of 1917, the Immigration Act of May 26, 1924, became the first permanent limitation on immigration by establishing the "national origins quota system,"52 and governed American immigration policy until 1952.53 The 1924 Act further established "[p]reference quota status . . for: unmarried children under [twenty-one]; parents; spouses of U.S. citizens age twenty-one and older;" and others. 54In addition, "[n]onquota status was accorded to: wives and unmarried children under [the age of eighteen] of U.S. citizens; quotas on racial data from past decades--explicitly aiming to maintain the racial composition of the past as it was imagined and defined by censustakers and legislators.").

49. Anne Parsons, A Fraudulent Sense of Belonging: The Case for Removing the "FalseClaim to Citizenship", 6 MOD. AM. 4, 7 n.76 (2010).

50. Immigration Act of 1924, Pub. L. No. 68-139, 43 Stat. 153 (1924).

See also Note, Roger A. LaBrucherie, Aliens in the Fields: The "Green-Card Commuter" Under the Immigration and NaturalizationLaws, 21 STAN. L. REv. 1750, 1752 (1969).

51. See U.S. CUSTOMS AND BORDER PROTECTION, U.S. DEP'T OF HOMELAND

SEC.,

TIMELINE,

http://nemo.cbp.gov/opa/TimeLine_062409.swf.

52. Immigration Act of 1924, Pub. L. No. 68-139, 43 Stat. 153 (1924).

See also Philip C. Jessup, Some Phases of the Administrative and Judicial Interpretationof the Immigration Act of 1924, 35 YALE L.J. 705, 706 (1926) ("The Immigration Act of 1924 may be said to have had two major purposes; first, to limit further the total number of aliens who should be allowed to enter, i.e., to reduce the quotas; and second, to alleviate the hardship of rejections at American ports by entrusting to consular officers in the field the preliminary duty of selection and rejection and the prevention of an overissue of visas through the medium of monthly maximums of 10% of the annual quota.").

53. U.S. Citizenship and Immigration Servs., Legislation from 1901-1940, at available 3, at http://www.ilw.com/resources/ImmigrationLegalHistoryLegislation_190 1-1940.pdf.

54. Id.

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natives of Western Hemisphere countries, with their families; non-immigrants; and certain others."55 The 1924 Act further "established the 'consular control system' of immigration by mandating that no alien may be permitted entrance to the United States without an unexpired immigation visa issued by an American consular officer abroad."

The 1924 Act further: "Imposed fines on transportation companies who landed aliens in violation of U.S. Immigration laws[,] Defined the term 'immigrant' and designated all other alien entries into the United States as 'nonimmigrant' (temporary visitor)[;] [andj Established classes of admission for nonimmigrant entries."s As a result, it became clear that the State Department and the Immigration and Naturalization Service were now sharing control of the immigration function.

C. The Immigration andNationality Act of 1952 to Present The Immigration and Nationality Act of 1952 ("INA")5 8 brought into one comprehensive statute the multiple laws which, before its enactment, governed immigration and naturalization in the United States. 9 In general, it perpetuated the immigration policies from earlier statutes with some significant modifications. 60 The INA made all races eligible for naturalization, thus eliminating race as a bar to immigration, and eliminated discrimination between sexes with respect to immigration.61 The INA also revised the national origins quota system of the Immigration Act of 1924 and introduced a system of selected immigration by giving a quota preference to skilled aliens whose services are urgently needed in the United States and to relatives of U.S. citizens and aliens. 62 In addition, the INA broadened the grounds for exclusion and 55. Id. 56. Id. at 4; see also, Jessup, supra note 52, at 706.

57. Id. at 4.

58. Immigration and Nationality Act of 1952, Pub. L. No. 82-414, 66 Stat.

163 (1952) (codified as amended in scattered sections of 8, 18, and 22 U.S.C.).

59. Text reproduced, with alterations, from Mertens, Immigration Debate, supra note 2.

60. Id. 61. Id. 62. Id.

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[Vol. V

deportation of aliens and provided procedures for the adjustment of status of nonimmigrant aliens to that of permanent resident aliens. 63 It further modified and added significantly to the then existing classes of nonimmigrant admission by affordin greater procedural safeguards to aliens Lastly, the INA introduced the alien subject to deportation. address report system whereby all aliens in the United States (including most temporary visitors) were required annually to report their current address to the INS and established a central index of all aliens in the United States for use by security and enforcement agencies.65 In 1965 the Immigration and Nationality Act Amendments abolished the national origins quota system ("INAA") eliminating national origin, race, or ancestry as a basis for immigration to the United States, and established allocation of 67 immigrant visas on a first come, first served basis.

The availability, however, became subject to a seven-category preference system for relatives of U.S. citizens and permanent resident aliens for the reunification of families, and included persons with special occupational skills, abilities, or training needed in the United States.68 The INAA further [e]stablished two categories of immigrants not subject to numerical restrictions: (1) Immediate relatives (spouses, children, parents) of U.S. citizens; and (2) Special immigrants such as certain ministers of religion, certain former employees of the U.S. government abroad, certain persons who lost citizenship (e.g., by marriage or by service in foreign armed forces), and certain foreign medical

graduates.669 63. Id. 64. Id. 65. Id. 66. Immigration and Nationality Act Amendments of 1965, Pub. L. No. 89-236, 79 Stat. 911 (1965).

67. Text reproduced, with alterations, from Mertens, ImmigrationDebate, supra note 2.

68. Id. 69. U.S. Citizenship and Immigration Servs., Legislation from 1961-1980, at 2, available at http://www.nps.gov/elis/forteachers/upload/Legislation1961-1980.pdf.

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The INAA "[m]aintained the principle of numerical restriction, expanding limits to world coverage by limiting Eastern Hemisphere immigration to 170,000, and placed a ceiling on Western Hemisphere immigration (120,000) for the first time.,, 70 But "neither the preference categories nor the 20,000 per-country limits were applied to the Western Hemisphere." 71 More importantly, the 1965 amendments [i]ntroduced a prerequisite for the issuance of a visa of an affirmative finding by the Secretary of Labor [which required] that an alien seeking to enter as a worker will [neither] replace a worker in the United States nor adversely affect the wages and working conditions of similarly employed individuals in the United States.72 The Immigration Reform and Control Act of November 6, 1986,n embodied comprehensive immigration legislation, which created sanctions prohibiting employers from knowingly hiring, recruiting, or referring for a fee aliens not authorized to work in the United States and increased enforcement at U.S. borders.7 4 The Act further created a new classification of "seasonal agricultural worker" and provisions for the legalization of certain such workers and authorizes legalization for certain other aliens.7 5 Among other provisions, the Act created a nonimmigrant Visa Waiver Pilot program allowing certain aliens to visit the United States without applying for a nonimmigrant visa. 76 The Immigration Act of 199077 "increased the limits on legal immigration to the United States, revised all grounds for exclusion and deportation, authorized temporary protected status to aliens of designated countries, revised and established new nonimmigrant admission categories, revised and extended 70. Id. 71. Id. 72. Id 73. Immigration Reform and Control Act of 1986, Pub. L. No. 99-603, 100 Stat. 3359 (1986) (codified as amended in scattered sections of 8 U.S.C.).

74. Text reproduced from Mertens, ImmigrationDebate, supra note 2.

75. Id. 76. Id. 77. Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978 (1990) (codified as amended in scattered section of 8 U.S.C.).

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the Visa Waiver Pilot Pro am, and revised naturalization authority and requirements." 7 On September 30, 1996, Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act.7 9 This much maligned act established measures to control U.S. borders, protect legal workers through worksite enforcement, and remove criminal and other deportable aliens.8 0 The 1996 Act increased border personnel, equipment, and technology, as well as enforcement personnel at land and air ports of entry.8 ' The Act further established three voluntary pilot programs to confirm the employment eligibility of workers while reducing the number and types of documents that may be presented to employers for identity and eligibility to work.8 2 Among other provisions, the 1996 Act broadly reformed exclusion and deportation procedures and instituted three-year and ten-year bars to admissibility for aliens seeking to reenter after having been unlawfully present in the United States. 83 In addition, the 1996 Act barred the re-entry of individuals who renounced their U.S. citizenship in order to avoid U.S. tax obligations, placed added restrictions on benefits for aliens, provided for a pilot program on limiting issuance of driver's licenses to illegal aliens, and declared aliens not lawfully present ineligible for Social Security benefits. 84 In recent history, the American Competitiveness in the Twenty-First Century Act of 200085 is responsible for a temporary increase in H-1B visa allotments, an allowance for 78. U.S. CITIZENSHIP AND IMMIGRATION SERVS., RESOURCES, GLOSSARY, IMMIGRATION ACT OF 1990,

http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f61417 6543f6dla/?vgnextoid=84ff95c4f635fl1OVgnVCM1OOOOOOecdl9OaRCRD &vgnextchannel=b328194d3e88d01OVgnVCM10000048f3d6alRCRD (last visited May 15, 2012).

79. Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-302, 110 Stat. 3656 (1996).

80. Text reproduced, with alterations, from Mertens, Immigration Debate,

supra note 2.

8 1. Id.

82. Id. 83. Id. 84. Id.

85. Twenty-First Century Act of 2000, Pub. L. No. 106-313, 114 Stat.

1251 (2000).

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the increased portability of the H-lB status, and provided for increased job flexibility for long delayed applicants for employment-based green cards.86

III. OVERVIEW OF THE EMPLOYMENT-BASED

IMMIGRATION

PROCESS 8 7

Aliens may come to the United States in one of two basic categories: nonimmigrant or immigrant.88 Nonimmigrants are aliens coming to the United States only for a temporary, finite period.89 Immigrants are those coming to the United States to reside permanently. 90 The category used for entry will depend upon business objectives, eligibility, and timing.91 In general, aliens must be in possession of a nonimmigrant or immigrant visa in order to come to the United States. 92 A visa is issued only at U.S. consular posts (embassies and consulates) abroad. 9 3 Nonimmigrant visas consist of a "machine-readable," laminated paper affixed to a page of the alien's passport. 94 The nonimmigrant visa should be thought of as an entry permit, specifying the temporary category for which the alien has been 86. See id

87. Portions of the text in Part.III. have been reproduced, with alterations, from Mertens, Immigration Debate, supra note 2.

88. Id.; see also 8 U.S.C. ยง 1201(a) (West 2012).

89. Text reproduced from Mertens, Immigration Debate, supra note 2.

See

also

TEMPORARY

VISAS

TO

THE

U.S.,

http://travel.state.gov/visa/temp/types/typesl1286.html

TRAVEL.STATE.Gov.,

(last visited May 15,

2012) [hereinafter TEMPORARY VISAS].

90. Text reproduced from Mertens, Immigration Debate, supra note 2.

See

also VISA

INFORMATION

FOR

IMMIGRANTS,

TRAVEL.STATE.Gov,

http://travel.state.gov/visa/immigrants/info/info_1339.html (last visited May 15, 2012).

91. Text reproduced from Mertens, Immigration Debate, supra note 2.

See also TEMPORARY VISAS, supra note 89.

92. 8 U.S.C. ยง 1181 (West 2012).

93. Text reproduced from Mertens, Immigration Debate, supra note 2.

See also CONSULAR PROCESSING, U.S. CITIZENSHIP AND IMMIGRATION SERVS.,

http://www.uscis.gov/portal/site/uscis/menuitem.ebl d4c2a3e5b9ac89243c6a 7543f6dl a/?vgnextoid=62280a56590832 1OVgnVCM I00000082ca6OaRCR D&vgnextchannel=62280a565908321OVgnVCM100000082ca6OaRCRD (last visited May 15, 2012).

94. Text reproduced from Mertens, Immigration Debate, supra note 2.

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found eligible. 95 Upon presentation of the nonimmigrant visa to a Customs and Border Patrol ("CBP") officer on arrival to the United States, the CBP officer typically will question the alien in order to reassess the alien's eligibility to enter the country and then will issue a Form 1-94 card, or "Arrival/Departure Record." 9 6 The 1-94 card should be thought of as a stay permit, which shows the nonimmigrant status in which the alien has entered, as well as the authorized duration of stay in this country. 97 But the expiration dates on the visa and 1-94 card frequently are not the same. 98 The visa need only be valid at the time the alien seeks to enter the United States, whereas the 1-94 card controls the length of authorized stay in this country. 99 In light of the penalties on aliens who "overstay," it is important that aliens and their emloyers comply with the date of stay specified on the 1-94 card. o The nonimmigrant classifications are a veritable alphabet soup and range from the A visa reserved for diplomats'o' to the V visa reserved for spouses and minor children of lawful permanent residents awaiting an immigrant visa.' 02 The most

95. Id. 96. Text reproduced, with alterations, from Mertens, Immigration Debate, supra note 2. See also FILLING OUT ARRIVAL-DEPARTURE RECORD, CBP FORM 1-94, FOR NONIMMIGRANT VISITORS WITH A VISA FOR THE U.S.,

CBP.Gov (July 7, 2010), http://www.cbp.gov/xp/cgov/travel/idvisa/i94_instructions/filling outi94.xml (last visited May 15, 2012) [hereinafter 1-94 Form].

97. Text reproduced from Mertens, Immigration Debate, supra note 2.

98. Id. See also 8 C.F.R. ยง 214.1 (West 2012).

99. Text reproduced from Mertens, Immigration Debate, supra note 2.

100. Id. 101. See VISAS FOR DIPLOMATS AND FOREIGN GOVERNMENT OFFICIALS, 63 7.html TRAVEL.STATE.Gov, http://travel.state.gov/visa/temp/types/types_2 2012).

15, May visited (last 102. See U.S. CITIZENSHIP AND IMMIGRATION SERVS., WORKING IN THE UNITED STATES, TEMPORARY WORKERS, TEMPORARY (NONIMMIGRANT) WORKERS, http://www.uscis.gov/portal/site/uscis/menuitem.ebld4c2a3e5b9ac89243c6a 7543f6dla/?vgnextoid=13ad2f8b6958321OVgnVCM100000082ca60aRCRD &vgnextchannel=13ad2f8b6958321OVgnVCM 1OOOOO82ca60aRCRD (last visited May 15, 2012) [hereinafter TEMPORARY (NONIMMIGRANT) WORKERS].

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common visa types used for business personnel includedl 0 3 : B-1 Temporary Business Visitor;1 04 E-1 Treaty trader;1 0 5 E-2 Treaty E-3 Visas issued under the Australian Free Trade investor; 0 Agreement;' 7 H-lB Temporary worker in a "specialty occupation"; 0 8 J-1 Exchange visitors; 109 L-1 "Intracompany transferees in managerial or executive positions[;]"110 0-1 "Persons with extraordinary ability in sciences, arts, education business, or athletics and motion picture or TV production[;]J"I" athletes[;]"ll 2 P-lB recognized P-lA "Internationally "Internationally recognized entertainers or members of internationally recognized entertainment groups[;]1 13 R-1 "Religious workers"; 4 and TN "North American Free Trade Agreement

. . .

temporary professionals from Mexico and

Canada."' 1 5 A. Employment-Based ImmigrationPreferenceSystem A bigger dream for some aliens is to immigrate to the United States to be able to live and work permanently. Despite this dream, there is a "preference" system for permanent, employment-based immigration.116 Based upon preferences 103. Text reproduced, with alterations, from Mertens, Immigration Debate, supra note 2. Without going into any detail, the list provided includes some of the most common visa types seen in practice.

104. Id.

105. Id. 106. Id. 107. TEMPORARY (NONIMMIGRANT) WORKERS, supra note 102.

108. Id. 109. See J-1 VISA EXCHANGE VISITOR PROGRAM, J-1 VISA BASICS,

http://jlvisa.state.gov/basics/ (last visited May 15, 2012).

110. TEMPORARY (NONIMMIGRANT) WORKERS, supra note 102.

111. Id. 112. Id. 113. Id.

114. Id 115. Id.

116. See U.S. CITIZENSHIP AND IMMIGRATION SERVS., WORKING IN THE UNITED

STATES,

PERMANENT

WORKERS,

http://www.uscis.gov/portal/site/uscis/menuitem.ebld4c2a3e5b9ac89243c6a 7543f6dla/?vgnextoid=cdfd2f8b6958321OVgnVCM10000082ca60aRCRD &vgnextchannel=cdfd2f8b6958321OVgnVCM100000082ca6OaRCRD (last visited May 15, 2012) [hereinafter PERMANENT WORKERS].

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among various categories of business personnel Congress has allocated 140,000 permanent visas annually."

In addition, there is a per country limit of 9800 employment-based visas per year," 8 representing seven percent of the total number of employment-based immigrant visas. The five employmentbased preferences are described as follows.

1. FirstPreference First Preference eligibility includes: "Extraordinary ability in the sciences, arts, education, business, or athletics . . .; (b) Outstanding professors and researchers; or (c) Multinational manager[s] and executive[s]. "l19 These First Preference "priority workers" are exempt from obtaining an approved labor certification application.' 20 But extraordinary ability aliens have attained "a level of expertise indicating that the individual is one of those few who have risen to the top of the field of endeavor." 21 In fact, the extraordinary ability needed to obtain first-preference does not even require the applicant have a job offer.122 For example, compared to applicants possessing 117. Id.; see TRAVEL. STATE.Gov,

also

EMPLOYMENT-BASED

IMMIGRANT

VISAS,

http://travel.state.gov/visa/immigrants/types/types_1323.html.

118. See RUTH ELLEN WASEM, CONG. RESEARCH SERV., R42048, NUMERICAL LIMITS ON EMPLOYMENT-BASED IMMIGRATION: ANALYSIS OF THE PER-COUNTRY CEILINGS 4, available at http://www.fas.org/sgp/crs/homesec/R42048.pdf.

119. U.S. CITIZENSHIP AND IMMIGRATION SERVS., EMPLOYMENT-BASED IMMIGRATION: FIRST PREFERENCE EB-1, http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a 7543f6dla/?vgnextoid=17b983453d4a321OVgnVCM1OOOOOb92ca6OaRCR D&vgnextchannel=17b983453d4a321OVgnVCM1OOOOOb92ca6OaRCRD [hereinafter FIRST PREFERENCE EB- 1].

120. PERMANENT WORKERS, supra note 116 (indicating that labor certification is not required for First Preference EB-1).

121. 8 C.F.R. ยง 204.5(h)(2) (West 2012) (defining "Aliens with extraordinary ability").

122. Compare 8 C.F.R. ยง 204.5(h)(5) ("No offer of employment required[]" for aliens with extraordinary ability); with id. ยง 204.5(i)(3)(iii) ("An offer of employment from a prospective United States employer[]" must be accompanied with "[a] petition for an outstanding professor or researcher"). In order to obtain First Preference Status under "Extraordinary Ability," the applicant must establish three out of the ten criteria: (i) Documentation of the alien's receipt of lesser nationally or

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extraordinary abilities, outstanding professors and researchers "must demonstrate international recognition" in their particular academic area, hold three years of actual teaching experience, and seek "to pursue a tenure or tenure-track teaching or comparable research position at a university or other institution of higher education."23 In international business, the multinational managers and executives subcategory is often the most useful.

This subcategory of First Preference employment-based immigrants applies to most aliens who have been, could have been, or are eligible to be admitted to the United States as L-1 intracompany transferee nonimmigrants to perform managerial or executive duties. 124 For this reason, the L-1 category can prove quite advantageous to aliens who might later seek permanent residency in the United States. Again, a key benefit of this and internationally recognized prizes or awards for excellence; (ii) Documentation of the alien's membership in associations in the field for which classification is sought, which require outstanding achievements of their members, as judged by recognized national or international experts in their disciplines or fields; (iii) Published material about the alien in professional or major trade publications or other major media, relating to the alien's work in the field for which classification is sought. Such evidence shall include the title, date, and author of the material, and any necessary translation; (iv) Evidence of the alien's participation, either individually or on a panel, as a judge of the work of others in the same or an allied field of specification for which classification is sought; (v) Evidence of your original scientific, scholarly, artistic, athletic, or businessrelated contributions of major significance to the field; (vi) Evidence of the alien's authorship of scholarly articles in the field, in professional or major trade publications or other major media; (vii) Evidence of the display of the alien's work in the field at artistic exhibitions or showcases; (viii) Evidence that the alien has performed in a leading or critical role for organizations or establishments that have a distinguished reputation; (ix) Evidence that the alien has commanded a high salary or other significantly high remuneration for services, in relation to others in the field; or (x) Evidence of commercial successes in the performing arts, as shown by box office receipts or record, cassette, compact disk, or video sales.

8 C.F.R. ยง 204.5(3).

123. FIRST PREFERENCE EB-1, supra note 119; see also 8 C.F.R. 204.5(i)(3)(i)-(iii).

124. See FIRST PREFERENCE

EB-1, supra note 119.

ยง

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the other subcategories of the First Preference classification is that labor certification is not required.125 2. Second Preference Second Preference status is available to members of the professions holding advanced degrees and persons of "exceptional ability in the sciences, arts, or business." 26An advanced degree means any U.S. degree or foreign equivalent degree above a bachelor's degree.127 Under second-preference, however, "a baccalaureate degree plus [five] years progressive But work in the field" is the equivalent of a master's degree. the five-year method cannot be used if the alien does not hold an actual underl1 ng U.S. bachelor's degree or foreign equivalent degree. 9 In addition, the job position must require an advanced degree or the equivalent. 0 Exceptional ability aliens have "a degree of expertise significantly above that which is ordinarily encountered in the field."l31 This category requires the labor certification process-except in rare instances-where the alien's work would be in the "national interest." 132 In such cases, the joboffer requirement similar to First Preference applicants, is Under this subcategory of Second waived as well.1 33 Preference, the "arts" include athletics.134

125. PERMANENT WORKERS, supra note 116; see also 8 C.F.R. ยง 204.5(h)(5), (i)(3)(iii).

126. U.S. CITIZENSHIP AND IMMIGRATION SERVS., EMPLOYMENT-BASED EB-2, PREFERENCE SECOND IMMIGRATION:

http://www.uscis.gov/portal/site/uscis/menuitem.ebld4c2a3e5b9ac89243c6a 7543f6dla/?vgnextoid=816a83453d4a321OVgnVCM1OOOOOb92ca6OaRCR D&vgnextchannel=816a83453d4a321OVgnVCM1OOOOOb92ca6OaRCRD (last visited May 15, 2012) [hereinafter SECOND PREFERENCE EB-2].

127. Id. 128. Id. 129. Id. 130. Id. 13 1.Id. 132. Id. 133. Id. 134. Id.

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3. Third Preference Third Preference workers included: "Professionals;" "Skilled Workers;" and "Unskilled Workers (Other Workers)."1 3 5 "Professionals" are those "whose job requires at least a U.S. baccalaureate degree or a foreign equivalent and are a member of the professions."l 36 "Skilled workers" are those with jobs requiring at least two years of "training or work experience, not a temporary or seasonal nature." 37 An H-lB worker who does not hold an actual bachelor's degree or foreign equivalent degree, and who obtained the H-1B visa based on a combination of education and experience deemed equivalent to a bachelor's degree is considered a "skilled worker" for green card purposes.1 In contrast, unskilled worker jobs require less than two years of training or experience.1 39 Regardless of the classification, all Third Preference aliens must first obtain approval of a labor certification application, and a "full-time job offer" is required.140 Unlike Second Preference, the national interest waiver is not available for Third Preference EB-3.141 4. Fourth Preference Fourth Preference eligibility is reserved for "special This classification includes: "Religious immigrants." 142 Workers;" "Broadcasters;" "Iraqi/Afghan Translators;" "Iraqis Who Have Assisted the United States;" "International 135. U.S. CITIZENSHIP AND IMMIGRATION SERVS., EMPLOYMENT-BASED IMMIGRATION: THIRD PREFERENCE EB-3,

http://www.uscis.gov/portal/site/uscis/menuitem.ebld4c2a3e5b9ac89243c6a 7543f6dl a/?vgnextoid=74da83453d4a32 1OVgnVCM1 OOOO0b92ca6OaRCR D&vgnextchannel=74da83453d4a321OVgnVCM100000b92ca6OaRCRD (last visited May 15, 2012).

136. Id. 137. Id. 138. Id. 139. Id. 140. Id. 141. Compare id.; with SECOND PREFERENCE EB-2, supra note 126.

142. U.S. CITIZENSHIP AND IMMIGRATION SERVS., EMPLOYMENT-BASED IMMIGRATION: FOURTH PREFERENCE EB-4,

http://www.uscis.gov/portal/site/uscis/menuitem.ebl d4c2a3e5b9ac89243c6a 7543f6dl a/?vgnextoid=724b83453d4a32 1OVgnVCM1 OOOOOb92ca6OaRCR D&vgnextchannel=724b83453d4a32 1OVgnVCM1 OOOOOb92ca6OaRCRD (last visited May 15, 2012).

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Organization Employees;" "Physicians;" "Armed Forces Members;" Panama Canal Zone Employees;" "Retired NATO-6 employees;" and "Spouses and Children of Deceased NATO-6 employees." 143 Unlike Third Preference applicants, labor certification is not required under Fourth Preference EB-4.144 5. Fifth Preference The Fifth Preference, or "EB-5 Immigrant Investor" encompasses employment-creation immigrants defined as aliens who invest considerable assets in the U.S.14; USCIS administers the Immigrant Investor Program, also known as "EB-5," created by Congress in 1990 to stimulate the U.S. economy through job creation and capital investment by foreign investors. Under a pilot immigration program first enacted in 1992 and regularly reauthorized since, certain EB-5 visas also are set aside for investors in Regional Centers designated by USCIS based on proposals for promoting economic growth.146 To qualify under this category, a minimum of one million dollars in a new commercial enterprise that will provide fulltime employment for at least ten U.S. workers is required.147 Of the ten thousand allotted annual visas in this Fifth Preference category, three thousand are designated for investment enterprises located in special "targeted areas" of high unemployment, with a minimum qualifying investment of only $500,000.'

While many categories are oversubscribed, this category is underused. One benefit of Fifth Preference is labor certification is not required. 149 Aliens can also invest in EB-5 regional 143. Id. 144. Id. 145. U.S. CITIZENSHIP AND IMMIGRATION SERVS., EMPLOYMENT-BASED IMMIGRATION: FIFTH PREFERENCE EB-5,

http://www.uscis.gov/portal/site/uscis/menuitem.ebld4c2a3e5b9ac89243c6a 7543f6dla/?vgnextoid=facb83453d4a321OVgnVCM1OOOOOb92ca6OaRCRD &vgnextchannel=facb83453d4a321OVgnVCMlOOOOOb92ca6OaRCRD (last visited May 15, 2012).

146. Id. 147. Id. 148. Id. 149. PERMANENT WORKERS, supra note 116.

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centers where the regional center is responsible for the job creation component with an investment of $500,000 or $1,000,000 plus an administrative or participation fee of around $50,000 depending on the particular regional center.' 5 o There are currently over two hundred regional centers aProved by USCIS, with six regional centers located in Georgia.

B. Limitations Under the PreferenceSystem If employment-based immigrants are assigned preferences, why is there currently all of this waiting for a green card? It is mainly because of the arcane and slow three-step process associated with the green card application, coupled with the limited availability of immigrant visas. Second and Third Preference workers must first obtain a labor certification, also known as Program Electronic Review Management ("PERM"), which is issued only if the U.S. Department of Labor ("DOL") can verify that there are not any available, willing, and qualified U.S. workers for the particular job.152 Moreover, only national interest waivers for the Second Preference are exempt, as are occupational therapists and nurses in the Second or Third preference under what is known as a "Schedule A" exemption. 153 To obtain a green card, most nonimmigrant workers first must obtain a labor certification,154 which is issued only if the DOL can verify that there are not any available, willing, and qualified U.S. workers for the particular job.'5 5 But the process of obtaining labor certifications often can be difficult, lengthy, and costly. 6 The conventional labor certification process 150. Id. 151. Id; see also EXCLUSIVE VISAS, EB-5 REGIONAL CENTERS IN GEORGIA, http://www.eb5exclusive.com/eb-5 -regionalcenters/directory/Georgia (last visited May 15, 2012) (providing list of Georgia's six regional centers, including the geographic scope and industries supported by each center).

152. 8 U.S.C. ยง 1182(a)(5)(i) (West 2012); see also discussion supra Part III.A.2-3.

153. 20 C.F.R. ยง 656.15 (West 2012).

154. See PERMANENT WORKERS, supra note 116.

155. 8 U.S.C. ยง 1182(a)(5)(i).

156. E.g., Enid Trucios-Haynes, Temporary Workers and Future Immigration Policy Conflicts: Protecting U.S. Workers and Satisfying the Demand for Global Human Capital, 40 BRANDEIS L.J. 967, 969 (2002)

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involves supervision by the local state DOL in order to determine an employer's mandatory recruitment. 5 7 The review process focuses on the efforts made by the attempts made by the labor certification applicant to locate a qualified U.S. worker for the position, including placing job advertisements in newspapers or trade journals and placing a job order with the state employment service.15 8 U.S. workers who respond to the advertisements or job order must be evaluated, and perhaps interviewed with all results being reported by the employer to the DOL. 15 At the end, a labor certification for the alien will be issued only if no willing and qualified U.S. workers are found during the prescribed recruitment period.160 After approval of the labor certification, the prospective employer must file an 1-140 immigrant visa petition,161 which USCIS examines to determine whether the alien is indeed eligible for the Second or Third preference employment-based classification. 162 If the 1-140 petition is approved, the worker must then wait until his or her priority date becomes "current."l 6 3 The priority date is in most cases the date that the labor certification was filed.164 Depending upon whether worldwide demand has increased or decreased for the particular preference category being sought, the DOS revises a priority ("Congress has been more willing to impose a variety of mechanisms to protect U.S. labor markets in the area of temporary worker admissions.

These mechanisms are designed to ensure that the admission of noncitizen workers for temporary periods do not adversely affect wages and working conditions of U.S. workers. None of these mechanisms are quite as extensive or time consuming as the labor certification process for permanent residence.").

157. Id. at 979-80.

158. Id. at 983-84.

159. Id at 984 n.72.

160. Id at 985-85.

161. U.S. CITIZENSHIP AND IMMIGRATION SERVS., 1-140 IMMIGRANT PETITION

FOR

ALIEN

WORKER,

http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f61417 6543f6dla/?vgnextoid=4a5a4154d7b3d01OVgnVCMI0000048f3d6alRCRD &vgnextchannel=db029c7755cb901OVgnVCM10000045f3d6alRCRD. 162. See PERMANENT WORKERS, supra note 116.

163. 8 C.F.R.ยง 204.5(d).

164. Id. ("The priority date of any petition .. . shall be the date the request for certification was accepted for processing by any office within the employment service system of the Department of Labor.").

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date waiting list each month in its Visa Bulletin.165 As a result, the waiting period can become shorter or longer based on "the operation of the immigrant number allotment and control

system."l 66 When the priority date becomes current, the employee may then move to the third and final step: a green card application at a U.S. consular post abroad or a green card application at the appropriate USCIS office in the United States. 67 This latter process is known as "adjustment of status" and is available only to aliens who are in the United States and have at all times maintained valid nonimmigrant status-individuals who have not worked without authorization or overstayed.1 68 Despite this requirement, an employment-based applicant who has violated status may still adjust status under certain circumstances.' 69 The foregoing three steps in combination, can take monthseven years-to complete.

Given lengthy green card processing times, company employees on temporary work visas struggle to maintain employment authorization while permanent residency papers are pending. Timing problems are particularly acute for H-lB employees who generally are employed by U.S.-owned companies, and do not have any prior work history with the company abroad.

These employees, ineligible for other temporary visa categories, must depart the United States for one aggregate year after six years in H-1B status before they may return in H status unless other relief is available. 17 ' The American Competitiveness in the Twenty-First Century Act of 165.

See VISA BULLETIN, TRAVEL.STATE.Gov., http://travel.state.gov/visa/bulletin/bulletin_1360.html (last visited May 15, 2012) (providing "information regarding the cut-off dates which govern visa availability in the numerically limited visa categories and other immigrant visa related information").

166. The Operation of the Immigrant Numerical Control System, TRAVEL.STATE.GOV., available at http://www.travel.state.gov/pdf/Immigrant%2OVisa%2OControl%20System operation%20of.pdf.

167. 4 CHARLES GORDON ET AL., IMMIGRATION LAW AND PROCEDURE, ยง 44.01 (Matthew Bender, Rev. Ed. 2011).

168. Id. 169. Id. 170. See id.

171. Id. ยง 20.08.

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2000 ("AC2 1")172 provides relief after year six in some cases,

but not all.173 A classic example is the German high-tech employee who has served in H-lB status for four years in Michigan and now moves to Georgia with a new H-lB employer. This worker can remain in H-lB status in Georgia for two more years, but must then depart the United States for one year before returning in HIB status for any employer.174 Under conventional immigration theory, the green card effort undertaken for the H-lB worker in Michigan must start over when the move to Georgia occurs, since labor certification is employer-specific and locationspecific. 7 5 But under the AC21, this worker does not have to start over so long as the Georgia job is in "the same or a similar occupational classification" as the Michigan job.176 Strangely enough, there is no requirement as to similarity of geographical location; however, USCIS warns employers to rely upon this at their own peril.' 7 7 Ultimately, USCIS will write the regulations interpreting this rule and those regulations will likely be restrictive. So, assuming for the sake of argument that USCIS disallows this "portability," what are the parties to do?

Currently, government processing of employment-based green cards for jobs located in Georgia ranges from as little as six months to as much as ten years from start to finish depending on the minimum requirements for the job and the nationality of the employee. The last two steps in the green 172. Twenty-First Century Act of 2000, Pub. L. No. 106-313, 114 Stat.

1251 (2000).

173. 4 GORDON ET AL., ยง 20.04.

174. See id. ยง 20.08.

175. See id.

176. U.S. CITIZENSHIP AND IMMIGRATION SERVS., QUESTIONS ABOUT SAME OR SIMILAR OCCUPATIONAL CLASSIFICATIONS UNDER THE AMERICAN COMPETITIVENESS IN THE TWENTY-FIRST CENTURY ACT OF 2000 (AC21),

http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f61417 6543f6dla/?vgnextoid=lefbac8ec3d2f21OVgnVCMlOOOOO82ca6aRCRD (last &vgnextchannel=a39e901bf987321OVgnVCMIOOOOO082ca6OaRCRD visited May 15, 2012).

177. See Interoffice Memorandum from William R. Yates, Assoc. Dir. for Operations, U.S. Citizenship and Immigration Servs., Dep't of Homeland Sec. to Regional Dir., Serv. Center Dir. 4 (May 12, 2005), available at http://www.uscis.gov/USCIS/Laws/Memoranda/StaticFilesMemoranda/Ar chives%201998-2008/2005/ac2lintrm051205.pdf.

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card process are usually filed at a USCIS Regional Service Center and the local USCIS Field Office rarely gets involved in employment-based cases. The H-1B six-year limit in this example may well be exhausted before permanent residency is attained. For example, an extension beyond year six for a German national is not permitted under AC21 unless at least 365 days have passed since a labor certification was filed.17 8 Fortunately, based on the example above, the Michigan labor certification might be used to satisfy this criterion based upon the wording of the law.1 79 If, for any reason, the H-iB status expires before the green card is complete and fewer than 365 days since a labor certification was filed, the individual is faced with the issue of whether the green card can continue to be processed even after the employee departs the United States."o Fortunately, the answer is yes.'

In this instance, employers with the ability to do so should consider transferring the H-1B employee to a foreign facility for the one-year period.182 Meanwhile, the green card papers continue to be processed, with completion of the final step either in the United States or abroad based upon all factors in play.' 83 After the one-year period, the employee may then return anew in H-lB status for an aggregate validity of six years.1 84 Alternatively, the employee could enter in L-1 status, because he or she has now worked abroad for one full year for a related company.'18 In addition, if by chance the 178. Id. at 7-8

179. See id. at 8.

180. Text reproduced, with alterations, from Dan E. White & Anton F. Mertens, The L Visa Alternative for Multinational Employers, BUSINESS IMMIGRATION HoRizoN (1999), available at http://library.findlaw.com/1999/Apr/1/130611.html (last visited May 15, 2012).

181. Id. (text as appeared in original).

182. Id.; See also HIB VISA PROGRAM, INFORMATION AND LEARNING CENTER, http://www.hlbase.com/contentIhlbvisa (last visited May 15, 2012).

183. Text reproduced, with alterations, from White & Mertens, supra note 180.

184. Id. 185. Id. (text as appeared in original); see also L1 VISA PROGRAM, INTRACOMPANY

TRANSFER

VISA,

http://www.hlbase.com/visa/work/Compare%20work%2OVisas/ref/1 132

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majority ownership of the U.S. employer is foreign, and if the employee's nationality is the same as the foreign owner's, the employee may depart after year six in H-1B status and return shortly thereafter in E status. One year abroad is not required before returning in E status. 186 For those employers who do not have foreign facilities, H-lB employees who have exhausted their six-year stay and who do not qualify for relief under the new may return to school as fullwork attendant curricular students-with time F-1 authorization.187 Alternatively, the employee may depart the United States, work abroad for an unrelated employer for one full year, and then return in H-lB status for the original U.S. Again, the green card papers continue to be employer. processed, with completion of the final step either in the United States or abroad based upon all factors involved.189 Therefore, "end game" strategies in permanent residency processing remain critical for those H-lB employees ineligible for relief under AC2L. 1 90 IV. RECENT DEVELOPMENTS Several states, including Geor ia, have recently passed These new restrictions on restrictive immigration legislation.' of the failure of Congress the result are the immigration process to act in the immigration arena. Despite an increase in state efforts to regulate immigration, the process by which immigrants arrive at their green cards is not affected. This (last visited May 15, 2012).

186. Text reproduced from White & Mertens, supra note 180.

187. Id. 188. Id.

189. Id. 190. Id. 191. H.B. 87, 151th Gen. Assemb., 1st Reg. Sess. (Ga. 2011), availableat http://www.legis.ga.gov/Legislation/20112012/116631.pdf; H.B. 56, 2011 http://www.accaat available (Ala.), Sess.

Reg. online.org/legis news/2011_bills/HB56-enr.pdf (Hammon-Beason Alabama Taxpayer and Citizen Protection Act); H.B. 497, 2011 Gen. Sess. (Utah), available at http://www.ncsl.org/documents/statefed/hb0497.pdf (Utah Illegal Immigration Enforcement Act); S.B. 1070, 49th Leg., 2d Reg. Sess. at available 2010), (Ariz. http://www.azleg.gov/legtext/491eg/2r/bills/sb1070s.pdf.

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inaction however, further complicates the landscape for U.S. employers trying to hire the best and the brightest. To keep it all in perspective, according to statistics from the Office of Immigration Statistics of the U.S. Department of Homeland Security, out of a total of 1,042,625 new legal permanent residents in Fiscal Year 2010, only 148,343 (or 14.2%) received green cards based on employment.' 92 Of those fortunate few, only 24,833 (or 2.4%) of those new legal permanent residents of the total number of new immigrants, lived in Georgia, ranking the state number ten in the United States.19 3 Surprisingly enough, despite this ranking there were fewer than 4000 employment-based new immigrants in Georgia during fiscal year 2010.194 Not surprisingly however, the majority of those About new immigrants live in the Atlanta metropolitan area.

20% of new immigrants moved to California, followed by New York, Florida, and Texas.196 In 2010, 13.3% of the new immigrants in the United States were born in Mexico.1 97 The next leading countries of birth were China, India, Philippines, and the Dominican Republic.198 Sadly though, the immigration process is still saddled with the quotas on employment-based immigrants imposed by the Immigration Act of 1990199 despite more than 300 million people living in the United States.mo There have been proposals to double the quota, 20 1 but an annual ceiling of 140,000 visas 192. Randal Monger & James Yankay, U.S. Legal PermanentResidents: 2010, U.S. DEP'T OF HOMELAND SEC., ANNUAL FLOW REPORT, 3 (Mar. 2011), available at http://www.dhs.gov/xlibrary/assets/statistics/publications/lprfr_20 10.pdf (Table 2).

193. Id. at 4 (Table 4).

194. See id.

195. See id. at 5 (Table 5).

196. Id. at 4 (Table 4).

197. Id. (Table 3).

198. Id. 199. Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978 (1990) (codified as amended in scattered section of 8 U.S.C.).

200. U.S. CENSUS BUREAU, STATE & COUNTY QUICKFACTS, USA,

http://quickfacts.census.gov/qfd/states/00000.html (last visited May 15, 2012) (estimating a U.S. population of 311,591,917 in 2011).

201. E.g., Secure America and Orderly Immigration Act of 2005, S. 2330, 109th Cong. (2005).

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remains intact which includes the immigrants, their spouses, and minor children.202 The net effect is that the actual number of workers receiving green cards every year is much lower than 140,000. Common wisdom and history dictate that immigration reform is highly unlikely in an election year as candidates are trying to stay way from the proverbial immigration political hot It seems that most candidates for president are talking potato. about more immigration enforcement and border security, while ignoring the antiquated legal immigration process.204 What has become clear is that the temporary visa system does not easily translate into a more permanent solution. The current guest worker program is inadequate and unwieldy and does not necessarily lead to the filling of less desirable jobs. But who will fill the jobs that retiring baby boomers are leaving?

The H-lB professional occupation visa is in short supply, and generally exhausted just a few months into the new fiscal year.205 Moreover, the EB-5 employment-creation green card has not attracted the expected number of foreign investors. 206it seems that the foreign investors are choosing other countries, and as a result, highly skilled prospective immigrants may be returning home when faced with the long delays in obtaining green cards. Despite this, Congress has refused to act to improve the immigration process for workers. It seems that some at the Migration Policy Institute ("MPI"), mainly Doris Meissner, the former Commissioner of the U.S. Immigration and Naturalization Service and now a Senior Fellow at MPI, 202. See Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978 (1990) (codified as amended in scattered section of 8 U.S.C.).

203. See, e.g., Allan Wernick, Immigration Reform Unlikely Until After 2011, 13, May NEWS, DAILY N.Y. Election, 2012 http://articles.nydailynews.com/2011-05-13/local/29554013_1_dream-actimmigration-reform-undocumented-immigrants (asserting that "[u]nless we see an overwhelming display of advocacy by immigrants, students, educators, religious leaders and unions, immigrants must face the bitter news: immigration reform is unlikely until at least after the 2012 elections").

204. See id.

205. This phenomenon, however, is not a recent development and has been happening for several years.

206. See Lisa Lerer, Invest $500,000, Score a U.S. Visa, CNNMONEY, July 28, 2009, 11:37 AM, http://money.cnn.com/2009/07/28/smallbusiness/eb5 visa cash without borders.fsb/index.htm.

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believe all that is needed to address the issue is Executive action on immigration in the absence of new legislation. 20 7 In March 2011, MPI advocated for the current administration to exercise its authority to field policies, programs, and procedures that are effective and fair in advancing the core goals of our 208 immigration system.

But every time there is a call to improve our immigration system, there is a demand to first come up with effective border control and enforcement.2 0 9 When President Ronald Reagan signed the Immigration Reform and Control Act 2 10 (more than twenty-five years ago), it was a result of bipartisan cooperation.21 1 The Act was intended to include the basic elements of balanced immigration reform such as legalization, enforcement, and visa reform.2 1 2 Unfortunately, any such bipartisan cooperation in the recent immigration reform debate has not occurred. It is also clear that based on the early exhaustion of H-1B visas in the 2012 fiscal year,213 the temporary visa system is not in sync and is in dire need of reform as well. Thus, changes need to go hand in 207. See "Securing the Border: Building on the ProgressMade ": Hearing Before the Comm. on Homeland Sec. and Gov't Affairs, (2011) (testimony of Doris Meissner, Dir., U.S. Immigration Policy Program, Migration Policy Institute), available at http://www.migrationpolicy.org/pubs/Meissnertestimony-March2O 11.pdf.

208. Id. 209. E.g., Safe Borders, Sane Policies: National Security Without Breaking the Bank, NAT'L IMMIGRATION FORuM (2011), available at http://www.immigrationforum.org/images/uploads/2011 /SafeBorders.pdf.

210. Immigration Reform and Control Act of 1986, Pub. L. No. 99-603, 100 Stat. 3359 (1986) (codified as amended in scattered sections of 8 U.S.C.).

211. See Note, Darcy M Pottle, Federal Employer Sanctions as Immigration Federalism, 16 MICH. J. RACE & L. 99, 137 n.212 (2010) (discussing bipartisan efforts associated with the passage of the IRCA).

212. See Marc. R. Rosenblum, Border Security: Immigration Enforcement Between Port of Entry, CONGRESSIONAL RESEARCH SERV. 7 (2012), available at http://fpc.state.gov/documents/organization/180681.pdf (providing review of the IRCA as related to border enforcement).

213. U.S. FISCAL

CITIZENSHIP AND YEAR

IMMIGRATION SERVS.,

USCIS REACHES

H-1B CAP, http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f61417 6543f6dla/?vgnextchannel=68439c7755cb901 OVgnVCM1 0000045f3d6alR CRD&vgnextoid=f0a78614e90d331OVgnVCM100000082ca6OaRCRD (last visited May 15, 2012).

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hand with changes to employment-based immigration.214

V.

THE FUTURE OF EMPLOYMENT-BASED IMMIGRATION: CAN A BETTER MOUSETRAP BE BUILT?

There has to be a better way to attract talent to American shores with a more efficient immigration system and a more customer-friendly approach. What if we adopted a point system like the United States' neighbors to the North? Citizenship and Immigration Canada evaluates prospective immigrants in the Federal Skilled Worker and Professionals category using six The selection factors include: age; selection criteria. 2 15 educational level; language ability in English and/or French; work experience; previously arranged employment in Canada; and general adaptability.2 1 6 Interested applicants can even take a self-assessment test to determine if they would earn enough points in the six selection factors to qualify as a skilled worker immigrant.217 Currently, the pass mark is sixty-seven points out of a possible one hundred.2 18 This point system is supposed to help Canada compete for highly educated workers. But it seems that the system is pretty inflexible and experiencing a backlog similar to the backlog for green cards in the United States.219 Interestingly, a similar point system was proposed in the U.S. Senate in 2007 under the Secure Borders, Economic Opportunity, and Immigration

214. This Article does not purport to address the family-based immigration system which is also hopelessly outdated. See generally Comment, Emily B. White, How We Treat Our Guests: Mobilizing Employment DiscriminationProtections in a Guest Worker Program, 28 BERKELEY J. EMP. & LAB. L. 269 (2007) (providing overview of the familybased immigration system).

215. CITIZENSHIP AND IMMIGRATION CANADA, SKILLED WORKERS AND

PROFESSIONALS,

http://www.cic.gc.ca/english/immigrate/skilled/index.asp

(last visited May 15, 2012).

216. Id. 217. Id. (follow "Come to Canada, Am I eligible?" hyperlink; then follow "Start" hyperlink to begin the self-assessment).

218. See id.

219. See ChangesAnnounced for Three CanadianImmigration Programs, CIC NEWS, June 2011, http://www.cicnews.com/2011/06/breaking-newsannounced-canadian-immigration-programs-06988.html.

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Reform Act of 2007.220 But the Bill never gained the necessary traction for serious consideration.221 As a matter of fact, many were concerned about the effects of such a point system, prompting then Senator Barrack Obama to deliver a speech on the U.S. Senate floor where he shared serious concerns about the proposal that would "radically change the way we judge who is worthy of lawful entry into American society .

.

. and

that is not who we are as a country." 2 22 Can we come up with other meaningful criteria or should we expand the lottery system to increase immigrant diversity? The main problem with a point system is that it tends to focus on education and job skills; not on family unity. The United States is a nation of immigrants, and that is precisely what made the United States great. As a result, there is a need for rebalancing our immigration system.

An interesting concept developed in 2007 by Davon M. Collins, introduces the decentralization of employment-based decision-making, thereby leaving more power to the individual states to make decisions on how to apportion the immigrant work visas. 223 If states can regulate the use of E-Verify (an electronic verification of work authorization) 224 for its private employers, the individual states should be able to set standards and come up with criteria for attracting its immigrant 220. Secure Borders, Economic Opportunity, and Immigration Reform Act of 2007, S. 1348, 110th Cong. (2007).

221. See Robert Pear & Carl Hulse, Immigrant Bill Dies in Senate; Defeat for Bush, N.Y. TIMES, June 29, 2007, at Al, available at http://www.nytimes.com/2007/06/29/world/americas/29iht29immig.6403376.html?pagewanted=all.

222. Senate Hearing on S. 1348, 110th Cong. (2007) (statements of Sen. Barack Obama).

223. Note, Davon M. Collins, Toward a More Federalist EmploymentBased Immigration System, 25 YALE L. & POL'Y. REv. 349, 350-51 (2007) (arguing "Congress should affirmatively decentralize4 to the states administrative control over employment-based immigration decisionmaking, in the model of the 1996 welfare reforms and emissions trading credits").

224. See

U.S. CITIZENSHIP AND

IMMIGRATION

SERVS.,

E-VERIFY,

http://www.uscis.gov/portal/site/uscis/menuitem.ebld4c2a3e5b9ac89243c6a 7543f6dla/?vgnextoid=75bce2e2614051 10VgnVCM1000004718190aRCR D&vgnextchannel=75bce2e26140511 OVgnVCM100000471819OaRCRD (last visited May 15, 2012).

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workforce.225 Despite this control within the states, there would still be a need for a centralized database to screen applicants and ensure the background checks are clean. In addition, an overall national cap on employment-based immigration would need to be maintained. But perhaps the states could exercise more flexibility in administering an immigration program specifically for temporary and permanent workers. Under this approach, state bureaucracy would increase and carry with it higher costs in running a piecemeal system. A major drawback under this approach is the United States is not like Canada where Quebec yields its own power when it comes to immigration to try to preserve its cultural heritage. 226 In May of 2011, the White House outlined its vision for a twenty-first century immigration policy in Building a 21st Century Immigration System. 227 In the paper, President Obama reiterated his deep commitment to fixing the broken immigration system.

Despite this assertion, based on the lack of progress in the last year, the commitment appears to have been more of an aspirational statement than a real call to action.

President Obama advances border security and enforcement as solutions for mending the broken illegal immigration system, with insincere support to the improvement of our legal immigration system.229 The proposals for change include: Encouraging foreign students to stay in the United States and contribute to our economy by stapling a green card to their diplomas in science, technology, engineering, and mathematics. . . ; Passing targeted legislation, like the

DREAM Act .. .; Creating a Start-Up Visa that would allow foreign entrepreneurs who receive financing from U.S. investors to come to the U.S. to start businesses, and remain permanently if their companies create jobs for American workers and generate revenue; Making reforms to the existing employment- and family-based immigration system 225. See Collins, supranote 223, at 360-61.

226. See id. at 373-75 (providing an overview of the Canadian immigrant system).

227. Building a 21st Century Immigration System (May 2011), available at http://www.whitehouse.gov/sites/default/files/rss viewer/immigration-bluep rint.pdf.

228. Id. at 2-3.

229. See id. at 15-17.

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. . . to ensure successful high-skilled immigrants are able to

remain in the U.S. permanently and U.S. citizens and legal permanent residents are able to reunite with their families more quickly; Making changes to the H-2A temporary agricultural worker program ... ; Strengthening the H-1B visa program to fill the need for high-skilled workers when American employees are not available, increase worker protections, and improve enforcement mechanisms, among other changes; and Establishing a new, small, and targeted

temporary worker program for lower-skilled, non-seasonal, non-agricultural workers to be hired when no American worker is available.2 30 Unfortunately, a deeply divided and polarized Congress has failed to pass legislation in connection with any of these proposals and businesses in need of employment-based immigration reform are forced back to business as usual.

VI. CONCLUSION

Immigration reform must be a priority for the next federal administration or the United States is faced with the potential of losing its status as the greatest nation on earth. It is clear that the U.S. immigration system has not kept up with the changing population in the United States. In addition, USCIS has not kept up with advances in technology to make the process easier to navigate. With the inflexible quota system being outdated, the entire employment-based system is in dire need of revamping. Perhaps the United States can learn from the Canadian point system, but remember: one size does not fit all.

The United States as a nation must attract and retain the talent needed to continue being at the forefront of innovation. For now the current system, the United States appears to be stuck with mere regulatory tweaks to an inflexible system, tweaks akin to continuing to perform tune-ups to a car engine which should have been replaced many miles ago. Action is need now to ensure the defects within the U.S. employment-based immigration system do not continue to affect the goof of a nation as a whole. The nation as a whole needs more than lip service from the administration and our elected officials. We need action now!

230. Id. at 25-26 (emphasis added).

ESSAY

ASSESSING THE MORAL STATUS OF STATE IMMIGRATION ACTIONS

DAVID

T. RITCHIE

ABSTRACT

A growing number of states in the United States, including Georgia, have stepped into the area of immigration policy.

While various rationales are given for this move, one must wonder what is really behind the drive to have states legislate in an area that has traditionally been reserved for the federal government. This Article explores the effect of racial animus and ethnic bias on these state enactments. There is good reason to suspect that these embedded reasons motivate at least some of those who plan and implement state-based immigration reform. The fact that these rationales are never explicitly All of the motivations behind articulated is troubling. politically charged legislative acts should be publicly aired; especially the pernicious ones. Given that racial and ethnic * Associate Professor of Law and Philosophy at Mercer University in Macon, Georgia; Global Ethics Fellow at the Carnegie Council for Ethics in International Affairs. I would like to thank the faculty and administration at the Mercer University School of Law for supporting my research during my sabbatical leave. Thanks also to Scott Titshaw and Mark Jones for their fellowship and advice. Finally, I would also like to thank Thomas Rainey, Executive Articles Editor of the law review, for inviting me to participate in this symposium. I apologize for my absence, but obligations of long standing prevent me from actually attending the sessions. I appreciate the opportunity to participate in this form, however.

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hatred seems to be at least partially driving the present immigration debate, we should be careful to monitor what our legislators are doing in our name. The legal questions are important, to be sure, but legislation should be subjected to ethical review as well. In this context, many of the state immigration enactments currently being debated and implemented fail to pass muster.

TABLE OF CONTENTS I.

INTRODUCTION

II.

WHY THIS? WHY Now?..................................

552

A. B. C.

555 557 560

........................................

550

The Effect of the 9/11 TerroristAttacks................

PoliticalIssue .................................

The Effects of Race.. ..............................

III.

ETHICS, RACE, AND EXCLUSION

IV.

CONCLUSION

..................

......... 562

..........................................

I.

568

INTRODUCTION

Politicians in a number of states have attempted to curb what they see to be the "problem" of illegal immigration by passing laws that enable state and local law enforcement officials to stop, question, and detain anyone suspected of being in the United States illegally.' Arizona made national headlines in 2010 by passing such a law,2 which drew attention to the immigration debate in the United States and caused controversy regarding the proper role of states in implementing immigration

1. S.B. 1070, 49th Leg., 2d Reg. Sess. (Ariz. 2010), available at http://www.azleg.gov/legtext/491eg/2r/bills/sb1070s.pdf.

2. See, e.g., Randal C. Archibold, Arizona Enacts Stringent Law on Immigration, N.Y. TIMES, Apr. 23, 2010, available at http://www.nytimes.com/2010/04/24/us/politics/24immig.html (last visited May 15, 2012).

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policy.3 Georgia is another state that is attempting this approach.4 Attempts by states to effect national immigration policy and practice have led to a raft-load of commentaries and discussions regarding the advisability, cost, and social impact of such actions. In fact, symposia and panel discussions focusing on 6 the issue have sprouted like weeds in a fallow field. The and the U.S. practicing bar has also joined the affray, 7 Supreme Court will weigh in on the immigration issue later this term.8 Surely there is much to debate about state action in immigration.

The economic, legal, political, and social questions abound. But I will leave these questions to others with appropriate authority or expertise to answer.9 The purpose 3. See CNN Wire Staff, Hundreds Protest Immigration Law in Arizona, http://articles.cnn.com/2010-04Apr. 25, 2010, CNN POLITICS, 25/politics/arizona.immigration.protestl_immigration-law-profiling-statecourts?_s=PM:POLITICS (last visited May 15, 2012).

4. H.B. 87, 15 1st Gen. Assemb., 2d Reg. Sess. (Ga. 2011), available at http://www.legis.ga.gov/Legislation/20112012/116631.pdf See also Robbie Brown, Georgia Gives Police Added Power to Seek Out Illegal Immigrants, at available 13, 2011, May TIMES, N.Y. (last visited http://www.nytimes.com/2011/05/14/us/14georgia.html?_r-1 May 15, 2012) (discussing rationale and intent of Georgia's immigration legislation).

5. See, e.g., WASHBURN UNIV. SCH. OF LAW, BREACHING BORDERS STATE ENCROACHMENT INTO THE FEDERAL IMMIGRATION DOMAIN? (Oct. 20, 2011), http://washburnlaw.edu/centers/government/events/breachingborders/ (last visited May 15, 2012); AM. CONST. SoC'Y, THE CONSTITUTIONALITY OF IMMIGRATION LEGISLATION: THE STATE OF STATE LAW (Feb. 7, 2012), http://www.acslaw.org/SEimmigrationsymposium (last visited May 15, 2012).

6. Id. The 7. See AM. IMMIGR. LAWYERS ASS'N., http://www.aila.org/.

American Immigration Lawyers Association ("AILA") holds programs focusing on immigration and one can only assume that the AILA and other similar organizations will continue to hold such programs.

8. Robert Barnes, Supreme Court to Hear Challenge to Arizona's Immigration Law, WASH. POST, Dec. 12, 2011, available at http://www.washingtonpost.com/politics/supreme-court-to-hear-challengeof-arizonas-restrictive-immigrationlaw/2011/12/12/gIQA4UYepO story.html (last visited May 15, 2012).

9. In all candor, I should note that I am not an expert in immigration law.

I have neither practiced in the area, nor studied it in any depth. My

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of this Article is to explore the morality of these state legislative actions. In particular, the concern here is about the motivations of those who promote and support these types of enactments. I suspect that embedded within the rationales offered by supporters of state laws purporting to grant authority to state and local law officials to police the federal immigration laws is a deep-seated racism and xenophobia.

These pernicious motivations, of course, are never explicitly stated; they are buried beneath more-or-less rational (if not reasonable) arguments for why state action is required.

In what follows, this Article explores why it is that I might have this suspicion. This will require an evaluation of the explicit rationales that are put forth in support of theses state laws. I will evaluate what I consider to be the moral basis of these arguments. In the end, I maintain that until these moral positions are adequately accounted for, all citizens should be leery of such legislative action even if they are deemed to be constitutionally sound.

Before moving on, I feel compelled to explicitly set out my predisposition.

I am, by training and proclivity, an internationalist at heart.

I believe that isolationism and nationalism have been the progenitors of many of the national and international tragedies witnessed during the Twentieth Century. As a result, as this Article will discuss, I believe that as a policy question we are-as a country-headed in the wrong direction with regard to the issue of the migration of people.

America is a nation of immigrants, and should remain so. As a moral claim that means that the nation as whole ought to welcome those who come to the United States and add to the diversity already present because of the previous waves of immigration. With that admission, Part II discusses why I think there is so much recent debate about immigration, particularly at the state level.

II. WHY THIS? WHY Now?

One must wonder why immigration is such an important issue for so many people at this point in our nation's history.

contribution to this debate is from the perspective of one who views these sorts of policy debates on philosophical grounds.

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Why are people fixated on this "problem?"' 0 The United States is a nation of immigrants." Yet for the past two decades, the United States has seen a fairly consistent preoccupation on the issue of immigration-particularly illegal immigration-by wide swaths of the public in the United States.' 2 Immigration into the United States is not a problem. There are even indications that the attitudes of many people in the United States regarding immigration are changing, for the positive.13 Gallup polls for the last decade have consistently shown that around 60 percent of U.S. citizens polled think immigration is a good thing for the country.14 Just recently, reports indicate that illegal immigration has slowed to a trickle.'

According to Professor Dowell Meyers of the University of Southern California, the net number of new illegal immigrants-particularly from Mexico-has dwindled to almost zero.' Indeed, many illegal immigrants who are here are either assimilating into U.S. culture or returning home.1 7 In 10. Cristina M. Rodriguez, Building Capacity for the Transnational Regulation of Migration, 110 COLUM. L. REv. SIDEBAR 1 (2010) (asserting "the rhetorical emphasis placed on 'fixing' our broken regime reflects a conception of immigration as a problem to be solved").

11. See JOHN F. KENNEDY, A NATION OF IMMIGRANTS (1964) (providing

an overview of U.S. immigration policy and suggestions for reform).

12. See, e.g., PEW RESEARCH CENTER FOR THE PEOPLE & THE PRESS, No CONSENSUS ON IMMIGRATION PROBLEM OR PROPOSED FIXES: AMERICA'S

IMMIGRATION QUANDARY (Mar. 30, 2006), available at http://www.people-

press.org/files/legacy-pdf/274.pdf (compiling metropolitan survey data for Chicago, Las Vegas, Phoenix, Raleigh-Durham, and Washington, D.C., regarding American views of immigration).

13. Id. at 8-9.

14. Jeffrey M. Jones, Americans' Views on Immigration Holding Steady, GALLUP POLITICS, June 22, 2011, http://www.gallup.com/poll/148154/Americans-Views-ImmigrationHolding-Steady.aspx (last visited May 15, 2012). "Although Americans are most likely to say immigration levels should be decreased, 59% still believe immigration is good for the county today. In the 10-year history of this Gallup trend, a majority of Americans have consistently believed immigration is a good thing, with a high of 67% in 2006." Id. 15. Dowell Myers, The Next Immigration Challenge, N.Y. TIMES, Jan. 11, 2012, http://www.nytimes.com/2012/01/12/opinion/the-next-immigrationchallenge.html (last visited May 15, 2012).

16. Id.

17. Id.

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fact, there are indications in suburban Atlanta that immigrant communities are beginning to voluntarily repatriate.is Despite these developments, why have so many states passed immigration laws? If most people in the United States believe that immigration is, on the whole, positive for the country, why are states spending time legislating against immigration (especially when it is at least highly questionable whether states have any legal purview in the area)? There are likely several reasons for this, running the gamut from the genuine heart-felt view that our population is growing too fast and the limited supply of resources in the United States that will become overtaxed if immigration is not held in check, 20 to the openly nationalistic and xenophobic views spewed by various hate 21 groups.

Most arguments put forth for controlling immigration into the United States, and certainly most of the arguments advanced by those who support state attempts to police national immigration laws, do not really fall at either end of this continuum however.

Most anti-immigration rationales advanced by supporters of 18. One anecdotal example, based on my work within the community, is the rather sizable Brazilian community in suburban Atlanta. A little over five years ago, there were nearly 60,000 Brazilians living in the area (primarily in Marietta), many of them undocumented or illegal aliens.

Today, however, there are just over half that number.

19. See Tamar Jacoby, Even State Immigration Laws Have to Face http://articles.cnn.com/20l 1-1017, 2011, Oct. Reality, CNN, 17/opinion/opinionjacoby-immigration_1_immigration-status-illegalimmigration-immigration-reform?_s=PM:OPINION (last visited May 15, 2012).

20. E.g., Howard F. Chang, The Environment and Climate Change: Is InternationalMigration Part of the Problem or Part of the Solution?, 20 FORDHAM ENVTL. L. REv. 341, 354-55 (2009) (arguing increases and shifts

"To the extent that in migration patterns result in climate change). immigrants increase environmental harm, either in the hose country or globally, the optimal response would be environmental policies tailored to specific environmental problems." Id. at 355.

21. See generally ANTI-IMMIGRATION GROuPS, S. POVERTY LAW CTR, http://www.splcenter.org/get-informed/intelligence-report/browse-allissues/2001/spring/blood-on-the-border/anti-immigration- (last visited May 15, 2012). "In the eyes of most of these groups, immigrants (typically, nonwhite immigrants) are responsible for nearly all the country's ills, from poverty and inner city decay to crime, urban sprawl and environmental degradation." Id.

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laws like those in Arizona and Georgia are cloaked in seemingly reasonable (of a sort, I guess) resource allocation arguments.

But the arguments contain elements of the racist and xenophobic motivations of the extremist nationalist groups. I will elaborate on this position in a moment, but before I do, let me briefly discuss the effect of the 9/11 terrorist attacks on this issue.

A. The Effect of the 9/11 TerroristAttacks The terrorist attacks on September 11, 2001 did not begin the immigration debate 23 -not by a long shot. There has been a long and sordid history of anti-immigrant sentiment in the United States that dates back to at least the 19th century.24 Nonetheless, certain sectors of many U.S. political and social institutions effectively utilized the anti-immigrant rhetoric in the ramp-up to the passage of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism, or commonly known as the "Patriot Act," 25 which provided renewed focus to anti-immigration positions of long standing. 26 The anti-immigration arguments that flowed from the events of 9/11 focused on immigrants from Middle Eastern and North African countries; 27 a classic expression of Carl Schmitt's 22. Id.

23. Michael Powell, U.S. Immigration Debate is a Road Well Traveled, POST, May 8, 2006, http://www.washingtonpost.com/wpdyn/content/article/2006/05/07/AR200605070072 1.html.

24. See generally MATTHEW G. HANNAH, GOVERNMENTALITY AND THE MASTERY OF TERRITORY IN NINETEENTH-CENTURY AMERICA (2000) (providing overview of "the modernization of the American federal government during" the late nineteenth-century).

25. Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act), Pub. L. No. 107-56, §§ 412, 201-25, 115 Stat. 272, 278-96, 350-52 (West 2012) 26. See generally Kevin R. Johnson, September 11 and Mexican Immigrants: Collateral Damage Comes Home, 52 DEPAUL L. REV. 849 (2003) (analyzing the impacts of September 11th on the immigrant community).

27. This focus, however, did not last long. After 2001, anti-immigrant groups refocused their attention on Latin American immigrants, particularly (although not exclusively) on immigrants from Central America. See WASH.

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friend-enemy distinction.28 Schmitt was a German political theorist whose views on "the political" and the relationship between the nation-state and its citizens were used to justify the rise of Nazism in Germany. 29 Schmitt focused on the threat posed to sovereign states by those that do not share the same fundamental vision that the political power structures have developed. 30 He believed this difference of vision makes enemies of those who are considered alien, other, or different.31 In The Concept of the Political,for example, Schmitt advanced the view that these enemies are "in a specially intense way, existentially something different and alien, so that in the extreme case conflicts with [them] are possible." 32 For Schmitt and others, 33 this leads to an extreme form of nationalism and conformity to political authority.34 In application, anyone who threatens the nation-state is an enemy and therefore is open to attack and exclusion, political and otherwise.

The George W. Bush administration (and the Republican Party in general) effectively played this "friend" (citizens of the United States) 35 versus "enemy" (foreign-terrorist) card at every

Johnson, supra note 26, at 863-64.

28. See generally CARL SCHMITT, THE CONCEPT OF THE POLITICAL

(1996).

29. See generally JOSEPH W. BENDERSKY, CARL SCHMITT: THEORIST FOR THE REICH (1983).

30. See generally id.

31. SCHMITT, supra note 28, at 27.

32. Id. 33. For example, the French ultra-nationalist, Jean-Marie le Pen. See generally JONATHAN MARCUS, THE NATIONAL FRONT AND FRENCH POLITICS: THE RESISTIBLE RISE OF JEAN-MARIE LE PEN (1995).

34. SCHMITT, supra note 28, at 28.

35. But being a citizen was not even enough to shield one from coming under suspicion. There are many cases of U.S. citizens who looked foreign-particularly Middle Eastern-coming under scrutiny by state and federal law enforcement agencies. E.g., Adam Goldman et al., NY Police Eyed US Citizens in Secret Intelligence Effort, MSNBC.COM, Sept. 22, 2011, http://www.msnbc.msn.com/id/44621976/ns/us-newsAM, 5:28 security/t/ny-police-eyed-us-citizens-secret-intelligence-

effort/#.T2iDSMWrJ8E (reporting "[t]he New York Police Department put American citizens under surveillance and scrutinized where they ate, prayed and worked, not because of charges of wrongdoing but because of their ethnicity").

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turn.36 The whole "war on terror" rhetoric is shot through with the friend-enemy distinction.3 7 In addition, this dichotomy was used by the Bush administration, particularly Dick Cheney, not only externally against suspected or known terrorists, but internally against political opponents as well.38 As a result, it did not take long for this internal gaze to be focused upon the issue of immigration. The Homeland Security Act of 200239 brought border protection and customs under the umbrella of the "war on terror." 4 0 In addition, not long after the enactment, the Immigration and Naturalization Service was brought under the control of the Department of Homeland Security.41 B. PoliticalIssue Immigration is, as should be obvious by now, a political issue. It is an issue that the Republican Party in the United 42 In States has kept on the national agenda for decades now. fact, every major Republican presidential candidate in 2012 has gone on the record with his or her views about immigration, illegal and otherwise.43 The immigration debate is a "hot button" issue that plays well to party loyalists. Thus, it appears that there is some sort of crucial link between conservativism and nationalism. Although, I neither have the time nor the space to tease this connection out, this is certainly true in the 36. See, e.g., PresidentBush Releases National Strategy for Combating Terrorism, THE WHITE HOUSE, available at http://georgewbush(last whitehouse.archives.gov/news/releases/2003/02/20030214-7.html visited May 15, 2012).

37. Id. 38. See Excerpts from Dick Cheney's Memoir, USA TODAY, Aug. 31, at available AM, 6:00 2011, http://www.usatoday.com/news/washington/story/2011-08-3 I/Excerptsfrom-Dick-Cheneys-memoir/50197828/1 (last visited May 15, 2012).

39. Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135 (West 2012) (codified in scattered titles of U.S.C.).

40. Id. ยง 601(a)(7).

41. Id. ยง 471.

42. See ROGER DANIELS, COMING TO AMERICA: A HISTORY OF IMMIGRATION AND ETHNICITY IN AMERICAN LIFE 435-41 (2d ed. 2002).

43. Daniel Griswold, GOP Candidates Betray the Spirit of Reagan on Immigration, NAT'L REV. ONLINE, Jan. 3, 2012, 4:00 AM, http://www.nationalreview.com/articles/28698 1/gop-candidates-betrayspirit-reagan-immigration-daniel-griswold (last visited May 15, 2012).

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European context. Across Europe, right-wing political parties consistently pushed anti-immigrant agendas under the guise of nationalism throughout the Twentieth Century." In my view this is true of conservatives in the United States as well. One consistent way to win one's conservative bona fides is to attack those dastardly illegal immigrants who are getting up to all kinds of no good.4 5 In the United States, these attacks are frequently cloaked in the guise of the economic impact illegal immigration has on citizens and public institutions. 6 It is often argued that illegal immigrants are a drain on the public welfare system because they are exhausting state-based social resources such as food stamps.4 7 In addition to social services, others maintain that the resources of public institutions, such as hospitals and schools, are drained by the needs of illegal immigrants.4 8 Still others suggest that U.S. workers lose jobs because illegal immigrants will work longer hours for less money. 49 These and other rationales are the staples of conservative talk radio and television "news" commentary.50 This is precisely the problem.

Because of the expectation of many Republican diehards that their standard bearers will push this anti-immigration position, at least explicitly in their campaign rhetoric, the immigration issue has become a litmus test for conservative acceptability.

44. See generally NORA LANGENBACHER & BRITTA SCHELLENBERG, IS EUROPE ON THE "RIGHT" PATH? RIGHT-WING EXTREMISM AND RIGHT-WING POPULISM IN EUROPE (Friedrich-Ebert-Stiftung 2011), available at

http://library.fes.de/pdf-files/do/08338.pdf (compiling articles discussing the affects of right-wing extremism in Europe).

45. Cf NPR Staff, Will the Real Ronald Reagan Please Stand Up?, NPR.ORG, Jan. 15, 2012, http://www.npr.org/2012/01/15/145271755/will-theReagan's Ronald (suggesting real-ronald-reagan-please-stand-up Immigration Reform and Control Act "would have a tough time winning the GOP nomination today").

46. CONGRESSIONAL BUDGET OFFICE, THE IMPACT OF UNAUTHORIZED

IMMIGRANTS ON THE BUDGETS OF STATE AND LOCAL GOVERNMENTS 2 (Dec.

at available 2007), http://www.cbo.gov/sites/default/files/cbofiles/ftpdocs/87xx/doc8711/12-6immigration.pdf.

47. Id. at 9.

48. Id. at 2.

49. Id. 50. E.g., THE RUSH LIMBAUGH SHOW, http://www.rushlimbaugh.com/.

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Lest one assume that this is a partisan attack on Republicans, let me explain that I believe this is an issue where at least some Democrats in the United States are trying to outdo the political right. For example, like the "let's get tough on crime" agenda,51 anti-immigration appears to sell across the political spectrum.

In fact, new data suggests that the Obama administration has been much more active in deporting illegal immigrants than the Bush administration was. 52 This is an issue that the Democrats, including an incumbent President, are not going to let the Republicans get out ahead of them on. 53 The political climate in the United States is (and has been for a good long while) conducive to the use of anti-immigrant rhetoric, especially rhetoric targeting illegal immigrants.

Despite a growing percentae of the U.S. electorate softening their stance on immigration, 4 coupled with a larger than ever number supporting the influx of immigrants,s politicians have not caught on. For example, major Republican presidential candidates are still talking about building a wall to keep out the invading hordes of Latin Americans who are threatening the is way of life in the United States.56 And President Obama 57 trying to keep pace by pushing for immigration reform.

51. See generally Francs T. Cullen et al., Public Opinion About Punishment and Corrections, 27 CRIME & JUST. 1, 1 (2000) ("'Get tough' control policies in the United States are often portrayed as the reflection of the public's will: Americans are punitive and want offenders locked up").

52. Alan Silverleib, Obama's Deportation Record: Inside the Numbers, CNN, Oct. 19, 2011, available at http://articles.cnn.com/2011-1019/politics/politics deportation-record I ice-director-john-mortonundocumented-immigrants-criminal-alien-program?_s=PM:POLITICS (last visited May 15, 2012).

53. Shamus Cooke, Democrats and Republicans Join Hands Over Immigration, CTR. FOR RESEARCH ON GLOBALIZATION, June 29, 2009, availableat http://www.globalresearch.ca/index.php?context=va&aid=14151 (last visited May 15, 2012).

54. Shamit Saggar, Immigration and the Politics of Public Opinion, 74 POL. Q. 178, 179 (2003).

55. Id. at 180.

56. See, e.g., Ron Paul: Border Fence Will Be Used to "Keep Us In",Fox NEWS, Sept. 7, 2011, http://nation.foxnews.com/ron-paul/2011/09/07/ronpaul-border-fence-will-be-used-keep-us (last visited May 15, 2012).

57. Fixing the Immigration System for America's 21st Century Economy, THE WHITE HOUSE, http://www.whitehouse.gov/issues/fixing-immigrationsystem-america-s-2 1st-century-economy (last visited May 15, 2012).

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These tropes are tired and overused. Will we never hear the end of people proclaiming that this is "our" country and not "theirs?" The dichotomy of "friend versus enemy," "citizen versus foreigner," and "us versus them" is socially irrelevant.

These arguments, if they deserve that characterization, are like a tired parody of the storyline in the movie The Gangs of New York. In the film, the "natives" (those born and bred in the United States) are used by the political machine of Boss Tweed in Tammany Hall to thwart the upward mobility of newly arrived (mostly Irish) immigrants. 59 Throughout the film's plot, the "natives" convey the message to the new arrivals (and any other outsider group they can find) that this is our place, it is not yours; these are our things, the are not yours; we were here first and you are not welcome. 6 Today, in comparison, many U.S. politicians and political commentators are still sending these messages.

C. The Effects of Race Historically, the intersection of competing economic interests between different social groups is where race started explicitly working into the immigration equation.61 In the mid-19th century, immigrant groups from Europe competed economically, with certain volatility to this competition; 2 as illustrated by the narrative told in The Gangs of New York. Yet all the immigrant populations from Europe shared one thing in common: race. Whether it was the Irish competing with the Italians, the Italians competing with the Germans, or the Germans competing with the Poles, the equation was the same-one group of white Europeans was competing with another white European group for economic ascendency. After the Civil War, however, when the newly freed African58. THE GANGS OF NEW YORK (Miramax Films 2002).

59. Id. 60. Id. 61. See, e.g., Barbara J. Fields, Ideology and Race in American History 143-77, in REGION, RACE, AND RECONSTRUCTION: ESSAYS IN HONOR OF C. VANN WOODWARD (J. Morgan Kousser & James M. McPherson ed. Oxford Univ.

Press 1982), available at http://chss.montclair.edu/english/furr/essays/fieldsideolandrace.html (arguing "[riacism has been America's tragic flaw").

62. Id. at 147-48.

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Americans were factored into this equation, race became a much more palpable and noticeable part of the equation.

Then in the 1880s, with the Chinese Exclusion Act of 1882,63 the federal government itself became implicated in the racialization of immigration policy.6 4 By singling out the Chinese for exclusion (based in no small part on the popular sentiment at the time) the U.S. government legitimized the often-explicit racial animus that prevailed at the time by making it official immigration policy.65 Restrictions against disfavored groups continued in one guise or another throughout both World Wars.66 The latest iterations of this racialization of immigration policy are, of course, the focus on Latin Americans and adherents to Islam, or more enerally, those who come from the Middle East or North Africa.

The manifestations of this racism-as it is just that-are many and varied. 68- Racism in current immigration policy runs the gamut from stereotyping the dress, mannerisms, and cultural heritage of the disfavored (and then excluded) group, to quasiscientific characterizations of racial inferiority, to linguistic isolation, and finally to outright vicious and hateful racialized clich6s about levels of education or native intelligence, work ethic, and other like qualities. 69 In fact, when one unpacks the motivations, express or implied, of those who seek to restrict immigration of one group of another, these motivations have far less to do with economic competition than with the prevailing racial hatreds and bigotry. The history of the United States 63. Chinese Exclusion Act of 1882, ch. 126, 22 Stat. 58 (repealed 1943) (preventing Chinese laborers from entering the United States for a period of ten years); see also JOHN SOENNICHSEN, THE CHINESE EXCLUSION ACT OF

1882 (2011) (providing historical overview of the Chinese Exclusion Act of 1882).

64. See SOENNICHSEN, supranote 63, at 67-68.

65. Id. 66. Id. at 78.

67. See, e.g., Susan M. Akram & Kevin R. Johnson, Race, Civil Rights, andImmigration Law After September 11, 2001: The Targeting ofArabs and Muslims, 58 N.Y.U. ANN. SuRv. AM. L. 295 (2002).

68. A very interesting program was held on this at the University of Virginia School of Law in February 2007. The program was sponsored by the Center for the Study of Race and Law, entitled Love Thy Neighbor?: The Ethical Underpinningsand Racial Politicsoflmmigration Reform.

69. See Akram & Johnson, supra note 67, at 308-10.

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shows that there was racial hatred aimed at the newly freed former slaves, then the Chinese, and now today the biases are focused on Latin Americans and Arabs. The stereotypes that our politicians and the media utilize play upon old and established patterns of justifying exclusionary immigration policies. The rhetorical devices used are the same; they are simply aimed at different groups throughout our rather sad and humiliating history.

III.

ETHICS, RACE, AND EXCLUSION

Against this history and backdrop of rhetorical assault, state legislatures across the United States began to explore the possibility of entering the immigration affray. Until very recently, the states left the issue of immigration up to the federal government; which makes sense given the fact that the federal courts were Aiven exclusive subject matter jurisdiction over Yet when national immigration reform in the immigration.

U.S. Congress was not forthcoming, politicians in some states maintained that action was necessary to protect their states and their budgets against the influx of illegal immigrants.n This logic was the basic premise behind the Arizona law. 72 Advocates of state intervention, like Michael Hethmon, General Counsel of the Immigration Reform Law Institute ("IRLI"), 73 have been pushing for states to step in where Congress has not or will not go on the issue of immigration.7 4 70. Immigration and Nationality Act of 1952, 8 U.S.C. ยง 1101 et seq.

(West 2012) (also known as the McCarran-Walter Act). Although this jurisdiction was curtailed somewhat in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, 28 U.S.C. ยง 2241 (West 2012).

71. See, e.g., NAT'L CONFERENCE OF STATE LEGISLATURES, ARIZONA'S 28, 2011, JULY LAWS, ENFORCEMENT IMMIGRATION

http://www.ncsl.org/issues-research/immigration/analysis-of-arizonasimmigration-law.aspx.

72. Michael Memoli, Jan Brewer "Confident" Supreme Court will Uphold Immigration Law, L.A. TIMES, Dec. 12, 2011, http://articles.1atimes.com/201 1/dec/12/news/la-pn-brewer-immigration20111212 (last visited May 15, 2012).

73. IMMIGRATION REFORM LAW INSTITUTE, http://irli.org/ (last visited

May 15, 2012) [hereinafter IRLI].

74. What Does Arizona's Immigration Law Do?, CNN, Apr. 23, 2010, http://articles.cnn.com/2010-04-23/politics/immigration.faq_1 arizona-

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In fact, Arizona employed Hethmon to help write the state's immigration law and he has advised other states on the The rhetoric that development of similar enactments.7 5 use is familiar-it fits Hethmon and his colleagues at the IRLI For squarely into the Schmitt friend-enemy dichotomy.76 example, on the institute's website the following text is located on the home page: IRLI represents citizens experiencing injury resulting from illegal immigration, and advises U.S. workers and propertyowners on how to protect their jobs, working conditions, and businesses against entities that employ unauthorized alien workers in their communities. IRLI fights to suppress and control criminals who transport, shelter, encourage or aid [and] abet illegal aliens present in the United States.

IRLI works to defend the civil rights of US citizens against incursions by federal, state, or local government personnel who fail to respect or comply with our national immigration and citizenship laws, or in an increasing number of cases openly discriminate against citizens on the basis of immigration status and national origin.

IRLI works to protoct [sic] the sustainability of our natural and civic environments threated [sic] by rapid expansion of population density, a trend linked in the US to massive levels of immigration.

IRLI works to design and promote state and local legislation that enables communities to effectively address problems resulting from illegal immigration. IRLI helped develop and supports the "attrition through enforcement" model for the sustainable control of illegal immigration.

IRLI is dedicated to controlling illegal immigration and reducing legal immigration to levels consistent with the national interest of the United States.

Look specifically at the language used here: "protect," 78 These are war "fight," "suppress," and "incursion." immigration-law-reform-sb1070?_s=PM:POLITICS

(last visited May 15,

2012) [hereinafter Arizona'sImmigration Law].

75. Id. 76. See SCHMITT, supra note 28, at 28.

77. IRLI, supra note 73 (follow "ABOUT IRLI" hyperlink).

78. Id.

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metaphors 79 that promote the tropes of a country and its citizens under siege by aliens. Hethmon's rhetoric is even more striking in his public lectures.8 0 There, Hethmon uses the following words and phrases when referring to immigration, both legal and illegal: "fear," "crisis," "terrorism," and "war on citizens."8 1 Phrases and expressions of this nature would not be as troubling if Hethmon were simply a member of the U.S. body politic. Everyone is entitled to their own opinions, after all, no matter how retrograde and dangerous they may be. 82 Unfortunately, however, Hethmon and the IRLI are intimately involved with the state immigration reform movementHethmon and the IRLI have been hired to consult in the drafting of legislation regarding immigration reform. 83 By extension then, these pernicious characterizations are driving (and one can assume, are being crypto-normatively worked into) the legislation that states all across the United States are passingparticularly in the Southern states.

Returning to the issue of race in the context of immigration, interestingly enough the states with the most extreme immigration enactments are in the southern half of the United States; mainly in the Southeast. 84 These laws are, in a way, similar to the Jim Crow laws of the late 19th century.

After 79. GEORGE LAKOFF & MARK JOHNSON, METAPHORS WE LIVE By 4-5 (2d

ed. 2003).

80. See, e.g., Video Presentationsfrom the September 30, 2007 Writers Conference

-

Part

1,

Soc.

CONTRACT

PRESS,

http://www.thesocialcontract.com/video/tscwriters_conf_2007sep30.html (last visited May 15, 2012).

81. Id. 82. U.S. CONST. amend. I. 83. Arizona's ImmigrationLaw, supra note 74.

84. E.g., H.B. 87, 151st Gen. Assemb., 1st Reg. Sess. (Ga. 2011), available at http://www.legis.ga.gov/Legislation/20112012/116631.pdf (Georgia's Anti-Immigration Act); H.B. 56, 2011 Reg. Sess. (Ala.), available at http://www.acca-online.org/legis-news/201 1_bills/HB56enr.pdf (Hammon-Beason Alabama Taxpayer and Citizen Protection Act); see also Kent Faulk, Alabama Immigration Law Has Denied Some Their Basic Human Rights, Report Says (Gallery), BIRMINGHAM NEWS, Dec. 13, 2011, 11:30 PM, http://blog.al.com/spotnews/2011/12/alabama-immigration-law-has-de.htm 1.

85. See generally JERROLD M. PACKARD, AMERICAN NIGHTMARE: THE

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the Civil War, Southern states attempted to thwart (successfully for quite a while) federal laws regarding voting, education, employment, and a whole host of other social issues directly related to the newly freed African-Americans.86 This same strategy is at work again within the context of immigration. 8 7 Southern states are attempting to thwart the federal immigration laws by instituting their own set of enforcement mechanisms aimed at a group, mainly Latinos, that is disfavored by the The only dominant social and political power structure. difference this time around is that other states have gotten in on the affray. 88 If the state is a "red state" you can bet that "immigration reform and enforcement" is on the agenda of the legislature and quite probably the governor as well.

Just what is the real concern with current immigration reform? First, on the face of state immigration laws is the hardcore social division that such rhetoric creates. By utilizing the Schmitt-type dichotomy that pits "us" against "them" advocates of state action create the appearance of a state under siege. But this is clearly not the case. Second, many of the state laws allow for local and state authorities to stop and demand that people who they "reasonably suspect" to be aliens prove their legal right to be in the United States;89 establishing a clear case (2002) (detailing the history and effects of Jim Crow laws).

86. See generally id.

87. See Martin Luther King, III & Richard Trumka, Alabama's Immigration Law: Jim Crow Revisited, CNN, Nov. 17, 2011, http://edition.cnn.com/2011/11/17/opinion/trumka-king-civil-rightsalabama/index.html (last visited May 15, 2012). "The passage of Alabama's anti-immigration legislation, HB 56, invokes inhumanity reminiscent of the Jim Crow South. And the police state it has created is equally cruel." Id. 88. E.g., S.B. 1070, 49th Leg., 2d. Reg. Sess. (Ariz. 2010), availableat http://azgovemor.gov/dms/upload/SB_1070 Signed.pdf (Support Our Law Enforcement and Safe Neighborhoods Act); H.B. 497, 2011 Gen. Sess.

(Utah), available at http://www.ncsl.org/documents/statefed/hb0497.pdf (Utah Illegal Immigration Enforcement Act).

89. E.g., Alan Gomez, Georgia, Other States Tackle Immigration Piecemeal, USA TODAY (June 28, 2011, 3:05 AM), http://www.usatoday.com/news/nation/2011-06-27-state-laws-illegalimmigration n.htm (last visited May 15, 2012). "In Georgia, . . . the bill, but out the "reasonable suspicion" requirements, meaning officers there will check a person's immigration status is he or she can't produce identification or provide other information that could help determine identity." Id. HISTORY OF JIM CROw

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of racial profiling extending beyond what can be imagined. 90 Lastly, while some have suggested that racial profiling can be morally defensible under certain (largely utilitarian) conditions, 91 there is great moral harm that attaches to a vision of a civil society that gives law enforcement carte blanche to decide who to detain and question solely on what appears to be their racial or ethnic heritage.

Principles of basic human dignity are overlooked when assessments are made on issues of this nature according to a utilitarian calculus-not including the fact that such policies create racial and ethnic tensions in communities where they are carried out.92 And these tensions go both ways. People, including law enforcement officials, in and representing the dominant group grow overly suspicious of those who appear to be different, alien, or other, while those being profiled grow furtive and afraid of public officials who are arguably tasked with helping all members of the community. 93 Such racial animus and distrust is not only alarming and socially destructive, but morally reprehensible.

An analogy can be drawn here to the recent debates in the United States about torture. 94 Many argue that torture, in 90. See Mary Romero, Racial Profiling and Immigration Law Enforcement: Rounding Up of Usual Suspects in the Latino Community, 32 CRITICAL SOCIOLOGY 447 (2006).

91. See Mathias Risse & Richard Zeckhauser, Racial Profiling, 32 PHILOSOPHY & PUB. AFFAIRS 131, 133 (2004), http://www.hks.harvard.edu/fs/mrisse/Papers/Papers%20%20Philosophy/RacialProfiling.pdf.

92. See, e.g., Seth M.M. Stodder & Nicolle Sciara Rippeon, State and Local Governments and Immigration Laws, 41 URB. LAW. 387 (2009) (providing overview of "those areas where states and local governments have worked to deal with the issue of illegal immigration through enforcing federal immigration laws, through refusing to do so, or through enacting their own laws"); Floyd D. Weatherspoon, Racial Profiling of AfricanAmerican Males: Stopped, Searched, and Stripped of Constitutional Protection, 38 J. MARSHALL L. REv. 439 (2004) (discussing the effects of race lirofiling on African-American males).

93. Devona Walker, Immigrants' Fear of Police Aids CriminalsDistrust of Officials Make Foreigners Easy Targets, Authorities Says, OKLAHOMAN (May 11, 2008), 2008 WLNR 8998130.

94. E.g., David J. R. Frakt, Mohammed Jawad and the Military Commissions of Guantanamo, 60 DUKE L.J. 1367 (2011) (detailing detainee journal through Guantinamo); Adam Zagorin, New Charges of Gitmo

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certain circumstances, can be morally justified because the good that might come from torturing one individual-saving hundreds of lives-outweighs the negative implications of torturing one human being.9 5 This is a classic utilitarian calculation; 96 one that was apparently used quite often in the Bush White House. 97 Yet the damage done by a government agent acting in an official capacity who tortures someone in custody cannot be morally excused under any circumstances.98 Such actions, therefore, debase everyone involved, including the governmental institutions implicated.

The stirring of racial and ethnic animus that is caused by the current tide of immigration. enactments at the state level is very similar to the recent torture debates. First, the rhetoric that is used is almost identical in both cases. Second, the justifications given-we must do this to protect ourselves-are the same.

Finally, a similar sort of debasement happens to the individuals involved, on both sides, and the institutions implicated. When this debasement plays upon, indeed utilizes and feeds upon, negative racial and ethnic stereotyping that is cryptonormatively built into the political rhetoric on this issue it is all the more divisive and destructive.

State action in the immigration arena might turn out to be constitutionally permissible. There are certainly those who maintain that the U.S. Supreme Court will ultimately permit such state laws when it hears the challenge to the Arizona law in the spring of 2012.99 The extremely conservative political makeup of the current U.S. Supreme Court makes this a distinct Torture, TIMEU.S., Feb. 06, 2008, http://www.time.com/time/nation/article/0%2C8599%2C 1710491%2C00.ht ml.

95. See generally JOHN STUART MILL ET AL., UTILITARIANISM AND OTHER ESSAYS (Penguin Classics 1987).

96. See generally id.

97. E.g., Jeremy Waldron, Torture and Positive Law: Jurisprudencefor the White House, 105 COLuM. L. REv. 1681 (2005) (advancing "that the prohibition on torture is not just one rule among others, but a legal archetype--a provision which is emblematic of our larger commitment to nonbrutality in the legal system").

98. But then again, I am no utilitarian.

99. See Memoli, supra note 72 ("I am confident the high court will uphold Arizona's constitutional authority and obligation to protect the safety and welfare of its citizens.") (statements by Arizona Governor Jan Brewer).

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possibility.100 Thus far, however, several lower federal courts have set aside parts of these laws as violating the supremacy clause of the U.S. Constitution. 0 1 But it does not matter what the U.S. Supreme Court decides with the immigration issue.

The Supreme Court has endorsed immoral and reprehensible legislation before, 102 and will likely do so again.

Not enough discussion has occurred at the grass roots level to overcome the xenophobic hangover that our politicians, both at the state and national level, have with regard to the immigration issue. Given that such a large portion of the U.S. population is displaying more favorable views regarding immigration, it is strange that the old fear-mongering and racialized rhetoric still prevails. The focus, rather, should be on discussing the policies that our elected leaders are pushing, with an eye and ear to the true motivations behind them.

IV. CONCLUSION It is an old adage that if you want to know what the legislature is dedicated to, all you need to do is follow the money. Money is not the only corrupting influence in politics however. It is sad that we still live in an age where racial and ethnic division and animus play a significant role in our public debates. Those who would push these agendas have become savvier, however, and learned lessons from the 1950s and 100. The fact that Justice Kagan has recused herself will likely militate in favor of the far right members of the Court. David A. Selden et al., Placing S.B. 1070 and Racial Profiling Into Context, and What S.B. 1070 Reveals About the Legislative Process in Arizona, 43 ARIZ. ST. L.J. 523, 561 (2011) "The involvement of then-Soliciter General Elena Kagan has also led to her recusal from considering the merits of the Arizona case before the Supreme Court on which she now serves." Id. 101. United States v. Arizona, 703 F. Supp. 2d 980 (D. Ariz. 2010); Ga. Latino Alliance for Human Rights v. Deal, 793 F. Supp. 2d 1317 (N.D. Ga. 2011). See also Randall C. Archibold, Judge Blocks Arizona's Immigration Law, N.Y. TIMES, July 28, 2010, available at http://www.nytimes.com/2010/07/29/us/29arizona.html (last visited May 15, 2012); CNN Wire Staff, Judge Blocks Key Parts of Georgia Immigration Law, CNN, June 27, 2011, http://articles.cnn.com/2011-0627/us/georgia.immigration.awsuit_1judge-blocks-key-parts-illegalimmigration-immigration-status?_s=PM:US (last visited May 15, 2012).

102. E.g., Plessy v. Ferguson, 163 U.S. 537 (1896); Dred Scott v.

Sandford, 60 U.S. 393 (1856).

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1960s. It may have been acceptable to spew racial and ethnic hatred then, but these days such sentiments are secretly embedded deeply in our public discourse. They are hidden and purposefully concealed. We must not let that stop us from calling these policies what they are though. When we see racism and xenophobia, we need to combat it at every turn.

State laws that purport to protect citizens, economically or physically, from immigrants, illegal or otherwise, are driven by a retrograde xenophobia that works to the political advantage of certain sectors of the political elite. The fact that politicians who advocate for these policies do not come clean about their motivations should not surprise us. But I am surprised at the lack of interest and motivation that we (as members of this profession and as citizens of this Republic) have shown. We should all be working to uncover the true motivations of those who violate the basic human dignity of citizens and visitors alike. Immigration laws of this nature are as reprehensible as torturing suspected terrorists. Is this really the sort of nation we want to live in where fear and division drive us? Or, would we rather have a more inclusive and rational debate about the many benefits that immigration (legal and otherwise) has always brought to us as a people.

I am tired of ceding the advantage to the hate-mongers and xenophobes. We need a new perspective on immigration. A majority of the people in the United States have caught on, but why not our politicians? Ultimately, I do not want the law enforcement personnel of my city wondering the streets asking people for "their papers." The image that this strikes up is too sinister to stomach.

COMMENTS

STOPPING THE ROTTING: A PROPOSAL FOR A GEORGIASPECIFIC GUESTWORKER PROGRAM TABLE OF CONTENTS I.

INTRODUCTION

II.

HOUSE BILL 87 AND STATE-LEVEL IMMIGRATION REFORM............. 574

A. B. C. III.

.......................................

Other States ...........................

Georgia'sHouse Bill 87...........................

Concerns Over Preemption ..................

...... 572

........ 575 578 ...... 579

THE EFFECT OF HOUSE BILL 87 ON GEORGIA'S AGRICULTURAL ECONOMY

A. B. C.

...................................

582

Facts about Georgia'sAgriculturalEconomy ...... ..... 582 Early Problems with House Bill 87 and Potential Solutions Offered by GovernorDeal....... .................. 582 University of Georgia'sCenterfor Agribusinessand Economic Development Report ............. .........

585

IV.

A GEORGIA-SPECIFIC GUESTWORKER PROGRAM...............

585

V.

FEDERAL-LEVEL SOLUTIONS

589

A. B. VI.

.............................

History of FederalImmigration Policy With Regard to AgriculturalLabor ................................ 589 PotentialFederal-LevelSolutions ............. ...... 593

CONCLUSION

.........................................

...... 595

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INTRODUCTION

Hot on the heels of his gubernatorial victory in 2010, Georgia's Governor Nathan Deal finally brought the hot-button issue of immigration law to Georgia in 2011.1 This was no surprise to most Georgians-Governor Deal campaigned on a platform that included his promise to "get tough" on immigration in Georgia. 2 And he did just that. In May 2011, Governor Deal signed into law his champion of state-level immigration reform: Georgia House Bill 87, an Arizona-style immigration reform bill that includes several provisions intended to eradicate unauthorized immigrants from working within the state by requiring employers to use the federal EVerify system. 3 The bill also contained a provision, Section 20.1, that required the Georgia Department of Agriculture to develop a report that discusses what-if any-negative effects House Bill 87 may have on Georgia's agricultural economy. 4 While Section 20.1 does not propose to solve any potentially harmful effects on agricultural resulting from House Bill 87, it does show that the Georgia legislature certainly thought about the issue in drafting the law.

House Bill 87 appeared to have at least one immediate unintended consequence, even before it was signed into lawthe loss of over 11,000 agricultural workers in the State.5 And then, before the law could even take effect, a federal district court blocked the pertinent portions of the law, 6 holding it up in litigation that will likely continue with the Governor's promise that the State will appeal.7 In the meantime, farmers watched as their crops died on the vine, unable to fill the gaps in their 1. Willoughby Mariano, IllegalImmigration: No Clear Cost, ATLANTA J.CONST., July 16, 2011, at Bl. 2. Id. 3. See H.B. 87, 151st Gen. Assemb., 1st Reg. Sess. (Ga. 2011), available at http://wwwl.legis.ga.gov/legis/2011_12/pdf/hb87.pdf [hereinafter Ga. H.B. 87].

4. Id. 5. Jeremy Redmon, Illegal Immigration Law, ATLANTA J.-CONST., Jun. 15, 2011, at Al. 6. Ga. Latino Alliance for Human Rights v. Deal, 793 F. Supp. 2d 1317 (N.D. Ga. 2011).

7. Jeremy Redmon, Judge Blocks Two Key Parts Of Georgia Law, ATLANTA J.-CONST., Jun. 28, 2011, at Al.

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decimated workforce.8 In sum, it appears that House Bill 87 has left nothing but a pressure cooker of a situation with regard to Georgia's $68 billion agricultural industry.

Based on Census Bureau data, in 2008 Georgia's unauthorized immigrant population was estimated at 475,000 individuals. 9 This number ranks Georgia seventh among the entire nation in terms of unauthorized immigrant population.10 It has also been noted that the pattern of unauthorized immigration, in general, has changed dramatically over the past two decades, with more immigrants moving into states such as Georgia and North Carolina-states that traditionally had very few immigrants in the past." This population of unauthorized immigrants makes up about 4.4 percent of Georgia's entire population. 12 With regard to labor, unauthorized workers comprise 6.3 percent of Georgia's workforce.13 Comparatively, Nevada and California check in with 12.2 percent and 9.9 percent of their workforces, respectively, consisting of unauthorized workers.14 This Comment will discuss what steps Georgia should take in alleviating the pressure House Bill 87 appears to have put on the agricultural sector in the state, as well as offer up a few solutions that may predate-and hopefully, perhaps even enlarge-any solutions that the Georgia Department of Agriculture may propose in the coming months.

Part I attempts to give a broad lay of the land in terms of state-level immigration reform nationwide. In order to get a firm perspective on House Bill 87 itself, it is first important to take a broader look at state-level immigration reform nationally.

This is certainly an area that while not necessarily groundbreaking, has come to the forefront of the nation's radar.

8. Redmon, supra note 5, at B 1.

9. See Jeffrey S. Passel & D'Vera Cohn, A Portraitof Unauthorized Immigrants in the United States, ii (2009) available at http://www.pewhispanic.org/2009/04/14/a-portrait-of-unauthorizedimmigrants-in-the-united-states/ ("Complete Report" .pdf listed under report materials).

10. Id. 11. Id. at i-ii.

12. Id. 13. Id. at iii.

14. Id.

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Part I then discusses Georgia's House Bill 87 itself and what the law intends to accomplish. Part I concludes with a discussion of the attendant issues of federal law preemption and what this means for the future of House Bill 87 in Georgia and any potential state-level solution to immigration reform.

Part II discusses what immediate impact House Bill 87 has had on the Georgia agricultural industry. This part also proposes a solution the State should contemplate-a solution that should be adopted sooner rather than later. At the state level, the path of least resistance in terms of a proposed solution appears to be a Utah-like guestworker program-a program discussed in detail in Part II, and tailored for Georgia. Part II concludes with a discussion of how such a guestworker program would not be preempted by federal law.

Part III gives a broad sweep of the federal guestworker regulatory scheme, the H-2A program.' 5 While it is certainly not lacking imperfection, H-2A is potentially a good starting point for either state-level or federal-level immigration reform and simultaneously itself a likely candidate for significant overhaul. Part III concludes with a look at several federal-level initiatives that could either be adopted within the state, or perhaps proposed by Georgia's elected officials in Washington, D.C. The conclusion of this Comment simply posits that regardless of what solution is adopted, it is clear that Georgia will continue to suffer unless something is done with respect to House Bill 87 and its effect on the agricultural economy in this state.

II. HOUSE BILL 87 AND STATE-LEVEL IMMIGRATION REFORM

Since Arizona passed its controversial Senate Bill 1070 in the late spring of 2010,16 state-level immigration laws have become ever popular among legislatures. Less than a year after Senate Bill 1070, three other state legislatures passed their own versions of immigration reform: Utah with House Bill 497,17 15. See 8 U.S.C. ยง 1101 (West 2012).

16. S.B. 1070, 49th Leg., 2d Reg. Sess. (Ariz. 2010), available at http://www.azleg.gov/legtext/ 4 9leg/2r/bills/sb1070s.pdf [hereinafter Ariz.

S.B. 1070].

17. H.B. 497, 59th Leg., 2011 Gen. Sess. (Utah 2011), available at http://le.utah.gov/~201 1/bills/hbillenr/hb0497.htm [hereinafter Utah H.B.

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Georgia with House Bill 8718, and Alabama with House Bill 56.19 And while these laws tend to mirror the basic provisions of the Arizona law, there is no doubt that the state legislatures, in just the past few years have put immigration reform to the forefront of their agendas.o A. Other States Arizona's Senate Bill 1070 provides the mold that several other states have followed in the most-recent influx of statelevel immigration legislation. Senate Bill 1070, also known as the "Support Our Law Enforcement and Safe Neighborhoods Act," 2 1 amended four sections of the Arizona Revised Statues; sections that seek to "impose criminal liability based on undocumented presence in the United States." 22 The stated intent of the bill is to "make attrition through enforcement the public policy of all state and local government agencies in Arizona,"2 3 and to "deter the unlawful entry and presence of aliens and economic activity by persons unlawfully present in the United States." 24 If, or perhaps when Senate Bill 1070 becomes a part of Arizona law,2 it would require law enforcement officials to 497].

18. Ga. H.B. 87, supra note 3.

19. H.B. 56, 2011 Reg. Sess. (Ala. 2011), available at http://alisondb.legislature.state.al.us/acas/ACTIONViewFrameMac.asp?TYP E=Instrument&INST=HB56&DOCPATH=searchableinstruments/201 IRS/P rintfiles/&PHYDOCPATH=//alisondb/acas/searchableinstruments/201 1RS/P rintFiles/&DOCNAMES=HB56-int.pdf,HB56-eng.pdf,HB56-enr.pdf [hereinafter Ala. H.B. 56].

20. Other states, including Indiana, have either passed, or are in the process of passing similar legislation. It should be noted that Indiana's immigration bill has also been enjoined. See Susan Guyett, Judge Blocks Parts ofIndiana Immigration Law, REUTERS.COM, Jun. 24, 2011, 11:13 PM, http://www.reuters.com/article/2011/06/25/us-indiana-immigrationidUSTRE75009R20110625 (last visited May 15, 2012).

21. Ariz. S.B. 1070, supranote 16.

22. Gabriel J. Chin, et al., A Legal Labyrinth: Issues Raised by Arizona Senate Bill 1070, 25 GEO. IMMIGR. L.J. 47, 50 (2010).

23. Ariz. S.B. 1070, supranote 16.

24. Id. 25. As of November 2011, most of Arizona's S.B. 1070 was on an injunctive hold, and not part of Arizona law. See United States v. Arizona,

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"determine the immigration status" of individuals encountered in a "lawful stop," when a law enforcement officer has reasonable suspicion to believe that an individual is an undocumented alien.26 The law further requires documented aliens to carry an alien registration document with them at all times27 and to carry the same card in order to apply for or solicit work, or to perform work as an independent contractor.28 Before the pertinent portions of the statute went into effect, the United States sought to block Senate Bill 1070, filing a lawsuit against its application based on federal preemption A federal district court subsequently enjoined grounds. 2 several portions of the law, and in the summer of 2011, the Ninth Circuit affirmed the district court's holding. 30 Arizona has filed a petition for certiorari to the United States Supreme Court in the case.

In March 2011, Utah was the next state to follow Arizona's lead with its own version of Senate Bill 1070. Utah House Bill 497 sought to enact the "Illegal Immigration Enforcement Act," which in many respects essentially mirrors the important parts of the Arizona law. 32 A class-action lawsuit was filed just months after the bill passed the state legislature, with the American Civil Liberties Union and National Immigration Law Center challenging the lawsuit based on (as in the Arizona lawsuit) federal preemption grounds.3 3 A federal district court judge, just days later, put a temporary hold on the law and set a hearing for July 14, 2011.34 At the same time House Bill 497 passed, Utah also passed a separate bill that created a 703 F. Supp. 2d 980 (D. Ariz. 2010).

26. Ariz. S.B. 1070, supra note 16. See also Andrea Christina Nill, Demonization, Dehumanization, and Latinos and S.B. 1070: Disenfranchisement,14 HARv. LATINO L. REv. 35, 38 (2011).

27. Ariz. S.B. 1070, supra note 16.

28. Id. 29. United States v. Arizona, 703 F. Supp. 2d at 985.

30. United States v. Arizona, 641 F.3d 339, 366 (9th Cir. 2011) (holding that S.B. 1070 §§ 2(B), 3, and 5(C) continue to be enjoined).

31. Arizona v. United States, 132 S.Ct. 845 (2011).

32. Utah H.B. 497, supra note 17.

33. Julia Preston, Class-Action Lawsuit Says Utah Immigration Law Violates Civil Rights, N.Y. TIMES, May 4, 2011, at A20.

34. Utah ImmigrationLaw Is Blocked, N.Y. TIMES, May 11, 2011, at A17.

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comprehensive guestworker program that gives illegal immigrants living in the state access to legal work permits.3 5 This portion of the law has yet to be challenged by anyone in the State of Utah, and it will be discussed at length in Part 111.36 Alabama also passed comprehensive state-level immigration reform, in June 2011-a version of immigration reform labeled as the toughest of its kind, by both supporters and opponents.3 7 Alabama House Bill 56, "The Beason-Hammon Alabama Taxpayer and Citizen Protection Act," while similar in many ways to Senate Bill 1070, departs from the "Arizona" line of legislation in that it prohibits illegal immigrants from enrolling in any public college after high school and requires public schools to (1) identify the immigration status of students, and (2) provide the state with annual reports on the effect immigrant students are having on the public school system. 38 House Bill 56 also prohibits the renting of housing to any illegal * 39 immigrant.

While the law was planned to take effect on September 1, 2011, the United States Department of Justice ("DOJ") sought an injunction against the passage of House Bill 56 on August 1, 2011, seeking injunctive relief on many of the most controversial portions of the law. 40 The lawsuit challenges the Alabama statute based on the idea that a state cannot, on its own, institute an immigration policy.41 The DOJ, in filing the suit, also asserted that laws such as Alabama's House Bill 56 divert law enforcement resources from legitimate threats to

35. Id. 36. See infra Part III. 37. Julia Preston, In Alabama, a Harsh Bill for Residents Here Illegally, N.Y. TIMES, June 4, 2011, at Al0.

38. Id.; Ala. H.B. 56, supranote 19.

39. Ala. H.B. 56, supra note 19.

40. Press Release, Department of Justice, Department of Justice Challenges Alabama Immigration Law (Aug. 1, 2011) available at http://www.justice.gov/opalpr/201 i/August/I 1-ag-993.html [hereinafter DOJ Complaint]. Interestingly, on July 8, 2011-less than a month before the DOJ filed its lawsuit-a large class-action lawsuit was filed against Alabama Governor Robert Bentley, based on the House Bill 56 legislation. See Hispanic Interest Coalition of Alabama v. Bentley, No. 5:11-CV-2484-SLB, 2011 WL 5516953 (N.D. Ala. 2011).

41. See DOJ Complaint, supra note 40.

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public safety. 42 Less than a month later, the Northern District of Alabama granted in part and denied in part the DOJ's motion for a preliminary injunction, finding parts of the law potentially preempted by federal law. 43 B. Georgia'sHouse Bill 87 Georgia passed a version of Arizona's Senate Bill 1070 in the spring of 2011. The legislative history of the Bill shows that the sponsor, Representative Matt Ramsey (R-Peachtree City), felt House Bill 87 was essential to remedy illegal immigrants from "siphoning" public funding and taking jobs from unemployed Georgians.4 And although in many instances the proponents of the Bill stated it does not borrow heavily from Arizona's Senate Bill 1070, the main portions are almost identical.4 5 Georgia Governor Nathan Deal signed the law in May 2011, and most of the Bill was slated to take effect on July 1, 2011.46 In Georgia's case, the DOJ has yet to intervene, but several civil rights groups, including the Georgia Latino Alliance for Human Rights, brought a lawsuit against the law in early June. 4 7 The plaintiffs made similar arguments as those who challenged the other state-level immigration efforts in Arizona, Utah, and Alabama-namely, that the law is preempted by federal law. 4 8 A federal district court blocked several portions of the law, including Section 8, which provides that local law enforcement can stop, arrest, and detain an individual if the officer determines that person has violated Georgia's immigration law. 49 The district court reasoned that Section 8 "circumvents Congress' intention to allow the Attorney General to authorize and designate local law enforcement officers to enforce civil 42. Id. 43. See United States v. State of Alabama, 813 F. Supp. 2d 1282 (N.D. Ala. 2011).

44. Jeremy Redmon, Report May Affect Immigrant Debate, ATLANTA J.CONST., Feb. 2, 2011, at Bl. 45. Compare Ga. H.B. 87, supra note 3, at ยง17-5-100 with Ariz. S.B. 1070, supra note 16, at ยง 2(B).

46. Ga. H.B. 87, supra note 3.

47. See Ga. Latino Alliance for Human Rights v. Deal, 793 F. Supp. 2d 1317 (N.D. Ga. 2011).

48. Id. at 1323.

49. Id. at 1337.

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immigration law."50 For those reasons, the court felt that a preemption challenge would prove successful when applied to that section of House Bill 87.5 At the time of the ruling, Georgia planned to appeal the decision.52 Undoubtedly, House Bill 87 is generally similar to the other state-level immigration laws, save Alabama's. But it does contain an interesting provision with regard to employment, and specifically, the agricultural sector. Section 20.1 requires the Georgia Department of Agriculture to provide the legislature with a comprehensive look into the effects-if any-House Bill 87 is likely to have on the agricultural sector in Georgia. 5 3 House Bill 87 specifically asks that the Georgia Department of Agriculture look at "the conditions, needs, issues, and problems [the legislation, or lack thereof, might cause]

. . . and

recommend any actions or legislation that the department deems necessary or appropriate."54 C. Concerns Over Preemption While these laws represent what must be characterized as sweeping immigration change, state-level immigration laws are nothing new. By 2008, over forty-one states had enacted over 200 laws and statutes, each relating to immigration in some regard.5 5 In fact, as of 2009, over twenty-four states had enacted either state laws or executive orders that work to prohibit illegal immigrants from gaining employment.56 According to the Ninth Circuit, one of the reasons for the rapid increase is that the states themselves have become incensed with the federal government's a arent lack of enforcement with regard to illegal employment.

At least one part of the Ninth Circuit's premise is correct50. Id. at 1333.

51. Id. at 1340.

52. Redmon, supra note 7, at Al. 53. Ga. H.B. 87, supranote 3, at ยง 20.1.

54. Id. 55. Hajra I. Malik, Raiding the American Workplace: FederalPreemption and States' Rights in Curbing Unlawful Alien Employment, 39 N.M. L. REv. 577, 583 (2009).

56. Careen Shannon, Regulating Immigration at the State Level: A Focus on Employment, 3 ALB. Gov'T REv. 218, 223 (2010).

57. Malik, supranote 55, at 583.

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the Obama Administration recently announced that it would suspend the deportation of illegal immigrants that pose no immediate safety concerns to the United States.5 8 And although there appears to be no end in immediate sight in terms of more states passing immigration reform legislation, the question becomes whether the states are preempted from passing immigration law in the first place.

The Supremacy Clause of the United States Constitution holds that federal law will preempt state and local law, generally, in two ways.5 9 Express preemption of state law occurs when Congress includes "explicit preemptive language" in a federal statute,6roviding for both the existence and scope of the preemption.

Under a theory of express preemption, Congress has clearly manifested its intent to preempt a state from acting in a certain way. The second form of federal preemption occurs when Congress implicitly seeks to restrain states from acting in certain areas.61 "Implied preemption" further breaks down into two subsets: (1) "field preemption" and (2) "conflict preemption." 62 Field preemption occurs "when federal law leaves no doubt that Congress has intended by its legislation to occupy an entire field, such that even without a federal rule on some activity within the field, state regulation of that activity is preempted leaving the activity unregulated by either state or federal law."63 Field preemption may occur in several situations, including areas of law where federal regulations within a field are so endemic such that the states are essentially on notice of the preemption. 64 Another example of field preemption involves areas of regulation where Congress has laid out clear intent to occupy a certain field of law. 6 5 Most important to this discussion, with regard to doctrine of field preemption, are 58. Robert Pear, Fewer Youths to Be Deported in New Policy, N.Y. TIMEs, Aug. 19, 2011, at Al. 59. U.S. CONST. art. VI, cl. 2.

60. CALVIN MASSEY, AMERICAN CONSTITUTIONAL LAW: POWERS AND LIBERTIES 318 (Vicki Been et. al. eds., 3d. ed. 2009).

61.

62.

63.

64.

65.

Id. Id. Id. Id. Id.

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instances where federal regulations "converge" or "touch" with another field of law, traditionally the subject of federal interest-such as immigration-to the point that states are almost precluded from acting in that specific area. 66 Conflict preemption, on the other hand, generally occurs in one of two ways: first, where state and federal laws are literally so conflicted that enforcement of both laws is impossible; and second, where a state law "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." 67 It should be noted that in the past, the Supreme Court has stated that immigration is traditionally a power that is reserved to the federal government.6 8 But more recently the Court appears to be moving in another direction, holding that federal law does not preempt some state-level immigration laws.6 9 Several courts have even intimated that there is an assumption against preemption specifically with regard to the employment of illegal aliens. 70 But the fact remains that every state-level immigration law passed in the past five years is currently under some form of an injunction based on a preemption challenge. 7 It is entirely possible, however, that some portions of state-level immigration reform can coexist with federal authority. And as discussed in Part IV, it is entirely possible that a state-specific guestworker program, tailored specifically for Georgia, would survive preemption challenges.

66. Id. 67. MASSEY, supra note 60, at 318 (quoting Hines v. Davidowitz, 312 U.S. 52 (1941)).

68. See Chin, supra note 22, at 77.

69. See, e.g., Chamber of Commerce of the United States v. Whiting, 131 S. Ct. 1968, 1981 (2011) (holding that an unauthorized alien employment law did not conflict with federal immigration law, and was thus not preempted).

70. See, e.g., Chicanos Por La Causa, Inc. v. Napolitano, 558 F.3d 856, 865 (9th Cir. 2008) (holding that "the power to regulate the employment of unauthorized aliens remains with the states' historic police powers . . . .").

71. See infra Part I for a discussion of how each state discussed here has handled the preemption issue.

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III. THE EFFECT OF HOUSE BILL 87 ON GEORGIA'S AGRICULTURAL EcoNoMY

This section will first discuss significant facts relating to Georgia's agricultural economy, followed by a discussion of the events surrounding the passage of House Bill 87. When combining these two discussions, it becomes readily apparent that Georgia is facing an agricultural predicament with potentially devastating consequences.

A. Facts about Georgia'sAgriculturalEconomy Georgia, with the largest landmass of any State east of the Mississippi, has an agricultural economy that is valued at over $68 billion dollars, and contributes to about 12 percent of Georgia's entire economic output.72 Over 47,000 farms cover ten billion acres of agricultural land within the State.7 3 Georgia is first in the nation in both peanut and pecan output, and is second in the nation in cotton, cucumber, and onion production.7 4 Georgia, while traditionally called the "Peach State," actually ranks third in the country in terms of peach production, but still checks in with a $60 million peach harvest.

B. Early Problems with House Bill 87 and Potential Solutions Offered by Governor Deal By looking at several news stories from around the time House Bill 87 was in its final stages before passage, it seems apparent that the Deal administration knew there was going to be an agricultural sector labor-shortage problem-an immediate problem even before the law was signed-resulting from the passage of House Bill 87. Just a few days after he signed House Bill 87 into law, Gov. Deal tasked Georgia Agriculture Commissioner Gary Black with providing the Governor's office a survey of farmers across Georgia, and what-if any-impact

72. A Look at Georgia Agriculture, U.S. DEPT. OF AGRIC. (2011), http://www.agclassroom.org/kids/stats/georgia.pdf [hereinafter Georgia Agriculture].

73. Id. 74. Id.

75. Id.

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76

the farmers had seen so far.

Several special interest groups, including the Georgia Fruit and Vegetable Growers Association, also expressed concern at the effects House Bill 87 would have on the agricultural sector in Georgia, and these groups likely put some added pressure on the Deal administration to et something done well ahead of House Bill 87's effective date.

The survey included questions such as how many more workers the farmers would need as a result of House Bill 87 being passed, for how long the workers would be needed, what the farmers were paying the workers, and what steps the farmers were taking to recruit workers.7 8 The results of the report became available to the public about a month after House Bill 87 was signed into law, and according to the report, about 11,000 jobs from the previous year's agricultural labor figures were suddenly vacant.

Interestingly, this loss of labor on Georgia's farms came well before House Bill 87 was even slated to take effect. As stated previously, the law was placed on an injunctive hold before it could take effect. But that appears not to have slowed the apparent self-displacement of unauthorized workers that were previously employed by farmers in Georgia. What is known is that at least a few farmers in southern Georgia were certainly suffering from the prospective loss of crops due to the labor shortages. 80 Regardless of the reasons for the sudden drop in the agricultural workforce in Georgia, Gov. Deal announced on June 14, 2011 that he had a "partial solution" to the agricultural sector's sudden lack of workers: probationers, many of whom

76. Redmon, supra note 5.

77. Id. "The Georgia Fruit and Vegetable Growers Association [estimated] the labor shortages afflicting South Georgia counties could put as much as $300 million in crops at risk." Id. 78. Id. 79. Redmon, supra note 5, at Bl. As an interesting aside here, there is little-if any-information available on the survey.

80. Craig Schneider, In Georgia's Fields, a Growing Anxiety, ATLANTA J.-CONST., Jun. 4, 2011, at Al ("Bo Hemdon, a farmer in Toombs County, said the labor shortage has already cost him $150,000 in Vidalia onions that rotted in the field . . . Jason Berry, a farmer in Baxley, has lost 10 percent of

his spring yield of highbush blueberries and has begun picking more fruit by machine."). Id.

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were unemployed at the time, would be hired to work on the farms needing help.81 Deal also promised to look for "viable and law abiding" solutions for the agricultural sector's labor shortage going forward as well. 82 And while Gov. Deal was not able to exactly "force" the probationers to work on the farms, he did have the support of Agriculture Commissioner Gary Black, as well as Labor Commissioner Mark Butler, in finding a solution to the immediate labor issue. 83 There also appeared to be at least some support for the program, in the form of the Georgia Agribusiness Council and the Georgia Farm Bureau.84 Commissioner Black also stated that something needed to be done for the fall harvesting season as well, but as of November 2011 there did not appear to be any further probationer program in place.8 5 The experiment with the probationers appears to have failed, at least by some accounts.86 For one, the "pilot program," as it was called, did not start until the week of June 13-after the end And while Gov. Deal stated of the vegetable harvest season. that a "substantial number" of the probationers that took to the fields of southern Georgia were able to complete the work that was delegated to them, the reality on the farms did not appear to substantiate that claim. In fact, it appeared that of the several thousand unemployed probationers that Governor Deal 81. Press release, Governor Deal's office, Gov. Deal's Statement on the Status of Agricultural Workforce in Georgia (Jun. 14, 2011), available at http://gov.georgia.gov/00/press/detail/0,2668,165937316_172151555_17248 6990,00.html.

82. Id. 83. Id. 84. Redmon, supra note 5, at B 1.

85. Interview by Denis O'Hayer with Gary Black, Georgia Agriculture at available 2011), 14, (Jun. Commissioner http://www.publicbroadcasting.net/wabe/news.newsmain/article/0/0/1 81564 1/news/Immigration.Survey..A.Proposal.to.Put.Probationers.in.Farm.Fields..

A.Conversation.with.Georgia.Agriculture.Commissioner.Gary.Black [hereinafter Radio Interview]. Commissioner Black emphasized the "atwill" nature of the program and that it was a "free market decision" each farmer would have to make with regard to employing probationers. Id. 86. Willoughby Mariano, 'SubstantialNumber' of ProbationersHaven't Yet Hit Fields, ATLANTA J.-CONST., Jun. 27, 2011, at Bl. 87. Id. 88. Id.

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"committed" to the Program, only handfuls were showing up at a time to the farms. In total, over a two-week snapshot, half of the 14 probationers that worked on southern Georgia farms actually returned to work after one day of labor. 90 But it also appeared that the state was planning to continue with the program into the fall harvest season as well. 91 In sum, it appears that the "pilot program" involving the probationers was designed as a "quick fix" to the labor shortage on Georgia's farms.

C. University of Georgia'sCenterfor Agribusiness and Economic Development Report Well before any report was due to the Georgia General Assembly as part of House Bill 87, the University of Georgia's Center for Agribusiness and Economic Development provided a report in November 2011 that outlined a $391 million loss in agricultural goods for the year within the state.92 Ironically, the same day the report was released, Georgia Agriculture Commissioner Black was in Washington, D.C., outlining Georgia's issues with regard to the agricultural labor shortage.

Both the report, and Commissioner Black's statements on Capitol Hill, echoed the same issues the state had in June: that there was a severe labor shortage-a shortage that threatened a large portion of Georgia's crops.

IV. AGEORGIA-SPECIFIC

GUESTWORKER PROGRAM

Two basic solutions become apparent in the discussion of House Bill 87's effect on Georgia's agricultural economy: first, 89. Id. For example, according to the Georgia Fruit and Vegetable Growers Association, on the first day of the program three probationers showed up to work, and none returned on the second day. Id. 90. Id.

91. Jeremy Redmon, Probationersto Help Farmers, ATLANTA J.-CONST,

Aug. 6, 2011, at B3.

92. JOHN C. MCKISSICK & SHARON P. KANE, AN EVALUATION OF DIRECT AND INDIRECT ECONOMIC LOSSES INCURRED BY GEORGIA FRUIT AND VEGETABLE PRODUCERS IN SPRING 2011-A PRELIMINARY DATA ANALYSIS AND SUMMARY WORKING PAPER (2011),

http://www.caes.uga.edu/center/caed/pubs/20 11/documents/CR-11 -01.pdf.

93. Jeremy Redmon & Daniel Malloy, IllegalImmigration, ATLANTA J.CONST., Oct. 5, 2011, at Al.

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a Georgia-specific (or state-level) solution that involves a guestworker program similar to the program Utah recently adopted; and second, an overhaul of the federal H-2A program.

The former is discussed here first, as it likely presents an easier-and certainly faster-solution that Georgia may look to in solving its agricultural worker shortage.

There are certainly several solutions that Georgia can look to, whether it be a state-level legislative or executive decision concerning guestworkers or, perhaps more difficult, a federal solution to the H-2A program. Regardless, the facts-the legislature asking for the Section 20.1 report, farmers declaring a massive loss of their workforce, the state's almost immediate implementation of the "probationer pilot program," and the October 2011 UGA report-all lead to one conclusion: a solution must come quickly. A Georgia-specific guestworker program, based on a similar program in Utah and discussed below, is a solution that can be quickly implemented to help alleviate the burden faced by state's agricultural economy.

Just weeks before Georgia passed its version of Arizona Senate Bill 1070, Utah passed a similar type of law. 94 But the Utah law departs markedly from all other state-level immigration reform bills: it provides for a state-level guestworker program that would allow for certain unauthorized immigrants to stay in the state and continue working.9 5 The Utah plan provides that unauthorized workers- workers that could prove they had been living and working in Utah before May 10, 2011-would be entitled to a two-year work permit.96 In order to apply for the permit, the unauthorized worker would also have to commit to pay a fine determined on naturalization status 97 and submit to a criminal background

94. Utah Illegal Immigration Enforcement Act of 2011, UTAH CODE ANN.

§§ 76-9-1001 to -1009 (West 2012).

95. Guest Worker Program, UTAH CODE ANN. § 63G-12-201 (West 2012). The Utah law contains two separate acts, House Bill 497 and House Bill 116, the latter specifically dealing with the guestworker program. Id. 96. Id. 97. UTAH CODE ANN. § 63G-12-207(4)(a)(i), (ii) (West 2012). The fines are as follows: $1,000.00 if the individual entered the U.S. legally, but is currently not in compliance with immigration and naturalization laws, and $2,500.00 if the individual has entered into the U.S. illegally. Id.

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check.9 8 While arguments immediately spring up about whether such state action is preempted by federal law, the Bill also contains a provision that gives the Governor of Utah until 2013 to negotiate for and receive a waiver from the United States government to implement the program. 99 The only detraction to the plan appears to be that it has been placed-along with just about every other state-level immigation reform bill-on a temporary hold by a federal judge. o And in this case, the judge did not "sever" the remaining portions of the Bill, as other courts have done.o10 Commissioner Gary Black stated in May 2011, that he was going to "have a conversation" with Utah's Agricultural Commissioner about the inner-workings of the Utah guestworker plan.102 The interesting question becomes: why did Georgia with an agricultural industry that is valued at over $68 billion, 103 not make an effort to even discuss the potential for such a program? 04 Any talk of a partisan issue quickly fades away when one considers that Utah is arguably one of the most conservative states in the nation, and that the Mormon Church-a pillar of conservatism in the United States-also approved of the guestworker measures.105 Yet, the only solution to come out of the Georgia Legislature with regard to a potential agricultural labor shortage is Section 20.1 of House Bill 87, a section that merely asks the Georgia Department of Agriculture to produce a report on what effects House Bill 87 has on the agriculture sector. 106 98. UTAH CODE ANN. ยง 63G-12-205(3)(a) (West 2012).

99. UTAH CODE ANN. ยง 63G-12-202(3)(a), (b) (West 2012).

100. See Utah Coalition of La Raza v. Herbert, No. 2: 11-CV-401 CW, 2011 WL 7143098 (D. Utah May 11, 2011).

101. Id. 102. Radio Interview, supranote 85.

103. GeorgiaAgriculture, supranote 72.

104. Perhaps even more interesting are the facts about Utah's agricultural economy. In 2009, Utah's agricultural economy was worth about $1.5 billion, or just under 1/45th that of Georgia's. See id 105. Julia Preston, Utah G.O.P. Adopts Immigration Alternative, N.Y. TIMES, Mar. 7, 2011, at Al l.

106. And as was stated in Section II, infra, the report that comes out of Section 20.1 will likely not have any hard data to rely on-most pertinent sections of House Bill 87, as of October 2011, are under an injunctive hold.

Therefore, there will be no data to show any effect of the law as it has not

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The better solution-along the lines of Agricultural Commissioner Gary Black's idea to "have a chat" with Utah officials-is for the state to adopt a plan of action that mirrors the Utah guestworker program, and to put that program into place immediately. The benefits would instantly serve multiple interests-the state would have at least some revenue in the form of whatever fines are levied on certain individuals, and the farmers can get their workforce back into place. And because Utah laid the groundwork with its guestworker program, Georgia need only replicate what has already been done, in terms of drafting legislation.

The question of whether federal law would preempt a Georgia-specific guestworker program-while not an easy one, to be sure-is certainly a question that can be answered in the negative. Utah, in House Bill 116, appears to have tried to circumvent the preemption issue by placing what it calls a "waiver" into the law's portion relating to guestworkers.10 7 But quite unclear is what grounds this "waiver" argument attempts to detour, in terms of preemption, other than that the federal government is essentially acquiescing to the conduct in Utah. os Georgia, however, in crafting legislation that would provide for a state-wide guestworker program, need only look to the Ninth Circuit's decision in Chicanos Por La Causa v. Napolitano and the Immigration Reform and Control Act ("IRCA"), to better shield any legislation from federal preemption.' 09 The IRCA provides for sanctions against employers throughout the United States that knowingly hire and employ illegal immigrants.110 The IRCA also places the burden on an employee to prove his or her citizenship through the use of the 1-9 verification system."' Important to the Chicanos court, taken effect. That decision is also likely to be appealed to the Eleventh Circuit.

107. Utah H.B. 497, supra note 17.

108. Id. 109. Chicanos Por La Causa, Inc. v. Napolitano, 558 F.3d 856, 865 (9th Cir. 2008) (holding that several portions of Arizona's "Legal Arizona Workers Act," a precursor to Arizona's current state-level immigration law that penalized employers for not using the federal E-Verify system, were not preempted by federal law); see 8 U.S.C. §§ 1324(a)-1324(b) (West 2012).

110. 8 U.S.C. § 1324(a) (West 2012).

111. Id.; The 1-9 system has since been replaced by the "E-Verify"

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with regard to IRCA, was the fact that the IRCA contains a "savings clause;" a clause that permits "licensing and similar laws" to be enacted by the states.

In Chicanos, the court determined that an illegal alien employment law-the Legal Arizona Workers Act-was not preempted by federal law, expressly or impliedly, by the IRCA. 13 The court first looked to the language of the statute, and how-if at all-it mirrored other federal-level regulations regarding immigrant employment.11 4 The court held that because the law mirrored federal law with regard to immigration status, express preemption did not apply." 5 Further, the Chicanos court held that if Congress had wanted to preempt the entire field of immigration labor regulation, there would have been no mention of the savings clause in the IRCA.1 16 Based on this reasoning, the Georgia-specific guestworker program should mirror federal-level immigrant definitions within the IRCA. This provision, combined with a "waiver" stipulation as in the Utah law would provide a strong ground for a Georgia-specific guestworker program to withstand any preemption challenge.

V.

FEDERAL-LEVEL SOLUTIONS

A. History of FederalImmigrationPolicy With Regard to AgriculturalLabor In order to potentially apply a new, state-specific guestworker program to face Georgia's agricultural labor shortage, it is also important to look at the history of the federal guestworker program in the United States. The United States has a long and distinguished history of using foreign workers as a means to fill the labor gaps that are traditionally left in the low-paying, hardsystem, which is essentially a newer version of the 1-9 system that requires employees to submit identification to prove their citizenship. See generally Naomi Barrowclough, E-Verify: Long-awaited Magic Bullet or Weak Attempt to Substitute Technology for Comprehensive Reform, 62 RUTGERS L. REV. 791 (Spring 2010).

112. Chicanos, 558 F.3d at 861.

113. Id. 114. Id. 115. Id. at 860.

116. Id. at 866-67.

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working agricultural sector." 7 As early as 1917, Mexican guestworkers began arriving in the United States, largely a result of a labor shortage during World War 1.118 In fact, by 1921 over 73,000 temporary workers were in the United States. 1 19 It also appears that even during this first influx of temporary workers, the United States was largely not interested in enforcing any of the immigration laws that would send these workers back to their homes, and many simply folded themselves into the U.S. population. 120 The pattern of increased guestworkers continued right up until the Depression, at which time there were approximately 300,000 legal Mexican workers and over one million undocumented workers.' 2 1 The apparently porous nature of the border with the southwestern states was exacerbated by the Border Patrol itself, which would often not initiate raids on undocumented workers until after the growing season was over. 122 This encouraged both legal and illegI workers to come across the border during the growing season.

During the Depression itself, many foreign workers either left or were forced out of the country by the U.S. government.124 The next large flood of Mexican agricultural workers came during World War II in the form of the Emergency Farm Labor Program, better known at the time as the Bracero Program.

This program was a joint effort by both the United States and Mexico to assuage the shortage of labor in the U.S. agricultural

117. Alice J. Baker, Agricultural Guestworker Programs in the United States, 10 TEX. HiSP. J. L. & POL'Y 79, 83-84 (2004).

118. Elizabeth Johnston, The United States Guestworker Program: The Needfor Reform, 43 VAND. J. TRANSNAT'L L. 1121, 1125 (2010).

119. Baker, supra note 117, at 82.

120. Id. at 82-83.

121. Johnston, supra note 118, at 1126.

122. Baker, supra note 117, at 83. Baker also notes that "the Border Patrol was formed on May 18, 1924. . . [and] [t]he Immigration and Naturalization Service was formed in 1932 from the merger of the Immigration Service and Bureau of Naturalization." Id. at 114 n.6.

123. Id. at 83.

124. Johnston, supra note 118, at 1126.

125. Alejandro V. Cortes, The H-2A Farmworker: The Latest Incarnation of the Judicially Handicapped and Why the Use of Mediation to Resolve Employment Disputes Will Improve Their Rights, 21 OHIO ST. J. ON DISP. RESOL. 409,410 (2006).

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sector.126 The agreement allowed for up to 50,000 Mexican workers to enter the United States each year, and it provided the guestworkers with certain protections in the workplace.127 in order to apply for guestworker labor, U.S. farmers were required to calculate the amount of workers needed and were then certified by the Department of Labor.128 The Bracero Program was set to expire at the end of World War II (at which time the workers would be forced to go home), but several subsequent treaties between the United States and Mexico extended the treaty up until 1964.129 Although the Bracero Program appeared to work as a benefit to the U.S. agricultural sector, there is exhaustive evidence that many farmers abused and took advantage of the program,' 30 which saw over 4.6 million contract workers employed.131 The next substantial guestworker program offered by the U.S. government-the H-2A program-traces its roots to the Immigration Reform and Control Act of 1986 (IRCA).132 While part of the intent of the IRCA was to reduce the number of illegal immigrants living in the United States, it also specifically delineated a program for guestworkers to fill labor shortages within the U.S. agricultural sector, the H-2A program. 3 Regulation of the program comes under the discretion of the Department of Labor, which sets specific criteria for the 126. Id. 127. Id at 411. While the Bracero Program mandated that workers were to be paid at the prevailing rate within the industry, and offered -other guarantees such as food, transportation, and housing, there were certainly still situations of exploitation that occurred with the guestworkers. Id. 128. Rain Levy Minns, Registry Systems for Foreign and Domestic Farmworkers in the United States: Theory Vs. Reality, 15 GEO. IMMIGR. L. J. 663,665 (2001).

129. Johnston, supranote 118, at 1126.

130. See Minns, supra note 128, at 666-67 (noting that farmers would often collude to set low prevailing wages for various harvests); Johnston, supra note 118, at 1126 ("[A]mple evidence exists to support the proposition that farmers lobbied for the system to avoid paying higher wages."); Baker, supra note 117, at 85 (stating that foreign workers were often exploited and did not have the means to enforce their legal rights under the labor contracts).

131. Baker, supra note 117, at 85.

132. See generally 8 U.S.C. ยง 1101 (West 2012).

133. Id

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introduction of new agricultural guestworkers into the United States. 134 The processes contemplated by the H-2A program are, as one can imagine, exceedingly complex. One overarching theme governs, however: while the H-2A program assumes, to an extent, that there is a labor shortage in the agricultural sector, the employers that participate must not be able to find U.S. workers to perform the needed labor.' 3 5 Another important rule within the program states that the program cannot offer guestworkers wages and benefits that are superior to those that would be offered to U.S. workers. 36 This rule operates to attempt to end agricultural sector labor shortages by offering U.S. workers higher wages and benefits than those guestworkers currently receive.13 7 There are also several things that the employers must provide the guestworkers under the H-2A program: employers must provide housing and workers compensation insurance to the guestworkers, as well as transportation between the guestworker's accommodations and

the worksite.138 Despite the fact that the H-2A program appears to help provide the U.S. agricultural sector with much-needed labor, the reality of the current guestworker system in the U.S. is less than ideal. While many of the statutory provisions of the H-2A program are designed to protect the guestworkers while keeping encroachment on U.S. labor at a minimum, often the regulations are not enforced, resulting in the exploitation of many H-2A workers.139 In many cases, the crimes that habitually confront guestworkers rise to the level of human trafficking, with corrupt recruiting agents selling off workers to the highest bidders.

There also are several other detractions, such as H-2A workers being tied to one job (unlike domestic workers that can move Id. See 20 C.F.R. ยง 655.0 (West 2012).

136. Id. 137. In fact, the regulations require the Secretary of Labor to establish an Adverse Effect Wage Rate ("AEWR") which provides the lowest wage that an employer can pay a guestworker without having an adverse effect on the domestic labor force. 20 C.F.R. ยง 655.207 (West 2012).

138. See 20 C.F.R. ยง 655.1305 (West 2012).

139. Johnston, supra note 118, at 1130-31.

140. Id. 134.

135.

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from position to position),141 and grossly ineffective statutory remedies offered through the program itself. 142 While the H-2A program certainly has flaws, it is still a program that is currently in place, allowing employers access to a labor force that is ready and willing to work in the agricultural sector. While many advocates for state-level immigration reform hail H-2A as one of the reminders of why the federal government is not following through with enforcement, it is nonetheless a program that-if operated properly, and perhaps with some significant updates-could potentially solve some of the workforce problems that Georgia's agricultural sector faces.

B. PotentialFederal-LevelSolutions Although House Bill 87 originally passed at the state-level, it is certainly possible that potential solutions to the problems Georgia's agricultural sector faces could come from the federal level: with pressure coming from the States (including Georgia), the H-2A program could be overhauled, and could better reflect what the States want to see in a guestworker program. There are a multitude of potential solutions that are currently being discussed within the H-2A program. While some are certainly not without a radical touch, some of the ideas would certainly get the program back on the right track while simultaneously helping the agricultural economy-nationwide-to benefit.

One idea involves an increase in the permanent farmworker base in the United States, such that unauthorized workers that have been in the country for a certain amount of time would be entitled to permanent legal residency.143 This would help to reduce the amount of unauthorized workers in the United States and perhaps encourage more domestic workers to seek jobs in the agricultural field.144 This would also encourage the agricultural industry to consider their positions as long-term, rather than from season-to-season (or even from immigration bill to immigration bill). 14 5 Another proposed solution to the H2A issue might involve allowing H-2A workers more access to

141.

142.

143.

144.

145.

Cortes, supra note 125, at 415.

Id. at 417.

Minns, supra note 128, at 693-94.

Id. Id

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legal services, 14 6 or even having disputes between guestworkers and their employers be sent to a mandatory mediation session There is also discussion of offering the H-2A for resolution. workers reimbursement for their transportation, visa, and recruitment costs; something that would even out the balance of power between the workers, the employers, and the recruiters.1 48 Another possible federal-level solution that appears to be readily available is the Agricultural Job Opportunities, Benefits, and Security Act of 2009, otherwise known as AgJOBS. 149 This is a piece of legislation that first appeared in 2003 and has steadily been reintroduced with additions and edits almost every year since. 150 AgJOBS would provide unauthorized farmworkers a potential path to permanent residency through an "earned legalization" program. 5 1 There are also certain requirements that unauthorized workers would have to meet, under AgJOBS, to be considered for a "blue card." 152 Many of these requirements include residence in the United States for a particular time period before the Bill becomes law, a criminal background check, as well as a fine or fee.1 53

146. Johnston, supra note 118, at 1144.

147. Cortes, supra note 125 at 443-44.

148. Bryce W. Ashby, Indentured Guests-How the H-2A and H-2B Temporary Guest Worker Programs Create the Conditions for Indentured Servitude and Why Upfront Reimbursement for Guest Workers' Transportation, Visa, and Recruitment Costs is the Solution, 38 U. MEM. L. REv. 893, 893 (2008).

149. Agricultural Job Opportunities, Benefits, and Security Act of 2009, S.1038, 111th Cong. (2009).

150. AgJOBS was originally introduced in June 2011 as part of a larger bill, the Comprehensive Immigration Reform Act of 2011. See Austin T. Fragomen & Careen Shann, Immigration Legislation is Introduced in Congress, 13 No. 13 IMMIGR. Bus. NEWS & COMMENT 10, 10 (2011).

151. S.1038 ยง 101.

152. The AgJOBS "blue card" is essentially a guestworker permit that also contains the possibility of earning permanent resident status, subject to additional requirements. See id.

153. S.1038 ยง 101. It becomes apparent-after seeing some of the requirements of the AgJOBS bill-that perhaps Utah took some cues from the bill in drafting its own version of state-level immigration reform. See Utah H.B. 497, supra note 17.

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VI. CONCLUSION No one doubts Georgia's ability to act as a laboratory; to try and effect change through legislation, here specifically in the area of immigration. As Justice Brandeis once said: [t]here must be power in the states and the nation to remould, through experimentation, our economic practices and institutions to meet changing social and economic needs. 154 To be sure, states should have this "experimental" power-

the power to test out new forms of legislation. But states must do so with strong conviction that the "great experiment" will not negatively affect the sum parts of the whole. There is trouble with House Bill 87, and something needs to be doneimmediately-to quickly reverse its harmful effects on Georgia's agricultural sector.

Thomas J Lyman*

154. New State Ice Co. v. Liebman, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting). * Juris Doctor Candidate, Atlanta's John Marshall Law School, May 2012; Bachelor of Arts, Journalism, Georgia State University, 2006. I'd like to thank my wife, Lindsay, for putting up with me and this madness over the past three years. My uncle, Lawrence Lessig, also deserves a mention as he inspired me to seek a career in law. It has also been a true pleasure working with the other executive editors on the journal this year-I'd be happy to go into (or to?) battle with each of you. Finally, this Comment is dedicated to my father-Bernie Lyman-and his gold chain, if we can ever determine whose it is.

MISGUIDED INTERPRETATION IS NOT "IMMUTABLE": A CRITIQUE OF THE BOARD OF IMMIGRATION APPEALS' INTERPRETATION OF "MEMBERSHIP IN A PARTICULAR SOCIAL GROUP" UNDER UNITED STATES ASYLUM LAW - A PROPOSED STANDARD

All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.

Everyone has the right to life, liberty and security of person.

Everyone has the right to seek and to enjoy in other countries asylum from persecution. 1 TABLE OF CONTENTS I.

II.

III.

INTRODUCTION: MEXICO AND DRUG TRAFFICKING ORGANIZATIONS .................................

...... 598

INTERNATIONAL STANDARDS GOVERNING REFUGEE AND ASYLUM STATUS...................................

601

ASYLUM STATUS IN THE UNITED STATES ...............

603

A. B. C.

.....

An Overview ............................. ..... 603 Membership in a ParticularSocial Group .... ......... 606 ControllingBoardoflmmigrationAppeals' Opinions Determining What Constitutes "Membership in a ParticularSocial Group"..........................608 608 1. Matter ofAcosta.............................

2. In re C-A............................ ..... 610 613 3. InreA-M-E&J-G-U-...............................

615 .....................................

4. Matter of S-E-G-

1. Universal Declaration of Human Rights, G.A. Res. 217(111) A, U.N. Doc. A/RES/217(III), arts. 1, 3, 14(1) (Dec. 10, 1948). Created in 1948, the Universal Declaration of Human Rights is an international acknowledgement of human rights of which the United States is a signatory. Id.

598 IV.

John MarshallLaw Journal A PROPOSED STANDARD To DETERMINE "MEMBERSHIP INAPARTICULAR SOCIAL GROUP" UNDER U.S. ASYLUM LAW-AN APPLICATION...................

A. B.

V.

...... 618

A ProposedStandard.............................. 618 Abram's ProposedSocial Group.............. ...... 621

CONCLUSION

1.

[Vol. V

..........................................

623

INTRODUCTION: MEXICO AND DRUG TRAFFICKING ORGANIZATIONS

After wandering the desert for days, Abram was seized by the

United States Border Patrol.2 He had recently been subjected to torture and abuse unfathomable by civilized nations. Four days prior, lacking a tin roof for his family's small hut made from cinder blocks, and any economic opportunities in his homeland of Chihuahua to procure basic subsistence for his family because of corruption and infiltration of his homeland by Drug Trafficking Organizations, Abram accepted an offer of transportation, food, shelter, and adequate wages to take a pilgrimage to the north into the United States. The journey led Abram through the treacherous deserts of northern Mexico, via an obstacle course of thieves, kidnappers, headhunters, scorpions, rattlesnakes, and temperatures exceeding 100 degrees. Before reaching the United States-Mexico border, where Abram would be picked up and transported to work in agricultural farms or factories in the United States, he and 200 other economic migrants were kidnapped by the Zeta drug cartel.

After being abducted at gunpoint and forced onto a bus, 2. Abram is a hypothetical character inspired by Comments and blogs documenting recent acts of murder, extortion, and gang-recruitment in Mexico. See, e.g., Adam Clark Estes, Mexico's Tales of Bus Passengers Forced to Fight to the Death, BORDERLAND BEAT (Jun. 14, 2011), http://www.borderlandbeat.com/2011/06/mexicos-tales-of-bus-passengersforced.html; A Nightmare of the Massacre in San Fernando, BORDERLAND BEAT (Apr. 18, 2011), http://www.borderlandbeat.com/2011/04/nightmareof-massacre-in-san-fernando.html.

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Abram was blindfolded, beaten, and transported to a warehouse on a nearby ranch. The Zetas separated the group of economic migrants into males and females, and further separated the young from the elderly. The elderly and weak men were blindfolded, ordered to lie on the ground, ran over and killed by Inside the the bus, saving the Zetas expensive bullets. warehouse, Abram and the other travelers were held hostage and subjected to various inhumane acts of torture to extort the migrants to beg their families for ransom, forcibly recruit them as gang members, or force them into sex slavery. Those who refused to succumb to this torture were killed and thrown into mass graves; others frantically attempted to reach their families to procure ransom, or agreed to become gang members and instruments of the sex trafficking industry. Miraculously, Abram escaped the farm and fled to the United States. He was located by the United States Border patrol and subsequently placed into deportation proceedings.

There is a war commencing in Mexico that is victimizing humans in need of societal protection. At the heart of this war is a battle between the Mexican government and drug trafficking organizations ("DTOs"). The victims of this war are being subjected to unfathomable violations of human rights involving deprivations of life, liberty, and the economic means for basic subsistence. While nationwide efforts at suppressing this war are failing, the number of humans falling victim to this vast persecution is drastically increasing.

Between January 2007 and December 2010, the Mexican government reported that over 34,500 individuals were killed by DTOs.3 In 2010 alone, that figure reached an alarming 15,273 homicides.4 Although many of these killings are purported to be inter-gang related, lack of consistency in reporting figures have led to increased doubt that these atrocities are not

3. JUNE S. BEITTEL, CONG. RESEARCH SERV., R41576, MEXICO's DRUG TRAFFICKING ORGANIZATIONS: SOURCE AND SCOPE OF THE RISING at available (2011), 20 VIOLENCE

http://www.fas.org/sgp/crs/row/R41576.pdf.

4. BUREAU OF DEMOCRACY, HUMAN RIGHTS, & LABOR, U.S. DEP'T OF STATE, 2010 HUMAN RIGHTS REPORT: MEXICO 1 (2011), available at

http://www.state.gov/g/drl/rls/hrrpt/2010/wha/154512.htm MEXICO REPORT 2010].

[hereinafter

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impacting persons wholly uninvolved in drug trafficking.

Several mass graves 6 have been unearthed along the United States-Mexico border containing economic migrants,7 economic refugees, 8 and American citizens, all of which are victims of the war in Mexico.9 Estimates indicate that over 230,000 people have fled their homeland due to corruption and violence directly linked to DTOs; half have fled to the United States, the other half are left internally displaced.' 0 Furthermore, kidnapping and extortion of humans at all socioeconomic levels has increased by 100 percent from 2008 to 2010.11 Between September 2008 and February 2009, approximately 10,000 migrants traveling from Mexico to the United States were subjected to physical abuse, kidnapping, and 5. See id. at 1-3.

6. See American Found in Mass Grave in Mexico, Fox NEWS LATINO,

Jun. 15, 2011, http://latino.foxnews.com/latino/news/2011/06/15/americanfound-among-mass-graves-victims-in-mexico; Mexico: Zetas Cartel Blamed over Tamaulipas Mass Graves, BBC NEWS, Apr. 12, 2011 6:20 PM, http://www.bbc.co.uk/news/world-latin-america-13044944; More Bodies Discovered in Mass Graves in Mexico, CNN.COM, Apr. 8, 2011, http://Comments.cnn.com/2011-04-08/world/mexico.mass. graves 1-massgraves-cartel-bodies?_s=PM:WORLD; Sara Miller Llana, Mexico Mass Grave Highlights Abuse of Migrants Heading to US, CHRISTIAN SCIENCE MONITOR

(Aug.

26,

2010),

http://www.csmonitor.com/World/Americas/2010/0826/Mexico-mass-gravehighlights-abuse-of-migrants-heading-to-US. 7. "Economic migrants normally leave their country voluntarily to seek a better life. If they choose to return home they will continue to receive the protection of their government."

OFF. OF THE U.N. HIGH COMM'R FOR

REFUGEES, THE 1951 REFUGEE CONVENTION: QUESTIONS & ANSWERS 11

(Sept.

2007), available at http://www.unhcr.org/refworld/pdfid/47a7078dd.pdf.

8. "[Economic] [r]efugees flee because of the threat of persecution and cannot return safely to their homes unless there is a fundamental shift in the situation (for example a durable peace agreement or change of government)." Id. 9. American Found in Mass Grave in Mexico, supra note 6.

10. INTERNAL DISPLACEMENT MONITORING CTR., NORWEGIAN REFUGEE

COUNCIL, 2010 REPORT: MEXICO 1 (2010), available at http://www.intemal-

displacement.org/publications/global-overview-2010-americas-mexico.pdf [hereinafter Mexico IDP Report].

11. Compare Llana, supra note 6 ("An estimated 10,000 migrants were kidnapped in Mexico between September 2008 and February 2009."); with MEXICO REPORT 2010, supra note 4, at 5.

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extortion by DTOs. 12 Mexico's National Human Rights Commission reported that this number reached 20,000 in 2010 alone.13 Although these statistics are gathered from reported crimes, these numbers are most likely underestimated because many migrants are reluctant to report or file charges against DTOs to avoid retaliation.14 The Mexican government is seemingly unable to control this war because of a vast infiltration of corruption caused by DTOs. "[P]olice . . . [are] involved in kidnapping, extortion, and in

providing protection for, or acting directly on behalf of, organized crime and drug traffickers,"' with over 10 percent of federal police officers being dismissed in 2010 after failing to perform duties or engaging in criminal enterprise.' 6 Furthermore, migration officials are assisting in crimes against migrants, failing to provide for migrants' safety, and operating smuggling nngs.

Many of the victims of the war in Mexico deserve unique societal protection.

This Comment first introduces the international standards for refugee and asylum status that provide such societal protection.

Second, this Comment explores the Board of Immigration Appeals' interpretation and misguided application of one ground for relief within United States asylum law: membership in a particular social group.

The Comment concludes by suggesting a proposed standard to determine what legally constitutes "membership in a particular social group" for asylum seekers, and applies that proposed standard to the circumstances upon which Abram migrated to the United States.

II. INTERNATIONAL STANDARDS GOVERNING REFUGEE AND ASYLUM STATUS The

principal

instruments

which

propose

international

12. Llana, supra note 6 (referring to BUREAU OF DEMOCRACY, HUMAN RIGHTS, & LABOR, U.S. DEP'T OF STATE, 2009 HuMAN RIGHTS REPORT: MEXICO (2009), http://www.state.gov/g/drl/rls/hrrpt/2009/wha/136119.htm).

13. MEXICO REPORT 2010, supra note 4, at 5.

14. Id. at 5.

15. Id. at 23.

16. Id. at 24.

17. Id.

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standards governing the legal status of refugees and asylum seekers are the Convention Relating to the Status of Refugees ("1951 Refugee Convention"),' 8 and its 1967 Protocol Relating to the Status of Refugees ("1967 Protocol").19 Adopted by the United Nations General Assembly, the 1951 Refugee Convention embodies the standard for achieving refugee and asylum status worldwide. 20 Millions of humans across the world rely on the language contained within the 1951 Refugee Convention for protection and safety from various forms of persecution. The United States was not a signatory of the 1951 Convention but joined as a signatory of the 1967 Protocol. 2 1 The 1951 Refugee Convention is grounded in Article 14 of the Universal Declaration of Human Rights, which states that "[e]veryone has the right to seek and to enjoy in other countries asylum from persecution." 22 Created in the wake of World War II, the 1951 Refugee Convention was enacted in response to thousands of uprooted and displaced Europeans seeking livelihood after the fall of the Nazi regime. 23 Known as the "Magna Carta" of international refugee law, the 1951 Convention serves as the "cornerstone" of protection for millions of displaced persons worldwide. 24 Unwilling to "sign a blank check" against the future, the drafters of the 1951 Refugee Convention restricted protection under the document both temporally and geographically to individuals in Europe suffering from events that occurred before January 1, 1951.25 Sixteen years later, with a spirit of empathy and humanitarianism, the United Nations General Assembly signed 18. CONVENTION RELATING TO THE STATUS OF REFUGEES, JULY 28, 1951,

189 U.N.T.S. 150 [hereinafter REFUGEE CONVENTION].

19. PROTOCOL RELATING TO THE STATUS OF REFUGEES, JAN. 31, 1967, 19.5 U.S.T. 6223 [hereinafter REFUGEE PROTOCOL].

20. REFUGEE CONVENTION, supra note 18.

21. Ray Wilkinson, The Refugee Convention at 50..., REFUGEE, no. 123, 2001, at 2.

22. Universal Declaration of Human Rights, supra note 1, art. 14.

23. Wilkinson, supranote 21, at 2.

24. Id. 25. Id. As of April 1, 2011, the total number of nations party to the Refugee Convention is 144, the total number of nations party to the Refugee Protocol is 145, and the total number of nations party to both is 142. Id. The United States is not a signatory of the 1951 Refugee Convention, but has joined as a signatory of the 1967 Refugee Protocol. Id.

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that "blank check" and amended the Refugee Convention in the 1967 Refugee Protocol.2 6 This amendment removed the temporal and geographical restrictions set by the 1951 Refugee Convention, and offered protection from persecution to humans everywhere, at anytime, to seek refuge within a signatory country.27 When used in conjunction, these documents are the foundation of asserting claims of refugee or asylum status. 28 Pursuant to the 1951 Refugee Convention, a refugee is an individual owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.29 This definition has received international attention by both signatory and non-signatory countries, 30 and has become the principal language from which nations legislate statutes allowing persecuted humans to achieve refugee and asylum status.

III. ASYLUM STATUS IN THE UNITED STATES

A. An Overview Regardless of the legality to enter or be physically present in

26. REFUGEE PROTOCOL, supra note 19, art. I(A)(2).

27. Id. 28. The requirements for establishing asylee status in the United States are identical to that of a refugee. See U.S. Immigration Support, Asylum and Refugee Application, https://www.usimmigrationsupport.org/asylumrefugee-application.html (last visited May 15, 2012). The only difference between an asylee and a refugee is that an asylee is already present within the country sought for refuge. Id. (providing explanation as to the "difference between Asylum and Refugee Status").

29. REFUGEE CONVENTION, supra note 18, art. I(A)(1).

30. Irial Glynn, The Genesis and Development of Article 1 of the 1951 Refugee Convention, 25 J. REFUGEE STUDIES (forthcoming 2012).

3 1. Id.

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the United States, any immigrant may apply for asylum.32 Although the United States is not a signatory of the 1951 Refugee Convention (rather, the United States is only a signatory of the 1967 Protocol Relating to the Status of Refugees), the proposed elements contained within the 1951 Refugee Convention that qualify an individual to achieve refugee or asylum status have been legislated into the Immigation and Nationality Act 3 3 and the United States Code. Pursuant to these statutes, a refugee is: any person who is outside any country of such person's nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a wellfounded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion[.]35 To achieve asylum in the United States, an applicant must satisfy four essential elements: (1) the applicant is outside of the country of habitual residence; (2) is unable or unwilling to return to or avail himself of the protection of that country; (3) because of persecution or a well-founded fear of persecution; and (4) on account of any of the five enumerated grounds for relief--(a) race, (b) religion, (c) nationality, (d) membership in a particular social group, or (e) political opinion. 36 When an asylum seeker satisfies these statutory requirements, he or she is allowed to move or stay in the granting country to escape "a well-founded fear of persecution" in his or her own country. 37 Congress has granted both the Attorney General, in his or her capacity within the Department of Justice, and the Secretary of the Department of Homeland Security, sole discretionary authority to grant or deny an applicant's claim for asylum in the

32. 8 U.S.C. ยง 1158(a) (West 2012) (enacted 2006).

33. Immigration and Nationality Act, ยง 208(b)(1) (West 2012) (enacted

2006).

34. 8 U.S.C. ยง 1101(a)(42)(A) (West 2012) (enacted 2006).

35. Id. 36. Id. 37. Id. ยง 1158(a), (b)(1)(A).

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38

United States. No court has jurisdiction to review any grant or denial of an application for asylum by the Attorney General or Secretary of Homeland Security. 39 To achieve discretionary review, an applicant must satisfy his or her burden before the administrative body composed of Immigration Judges-the Executive Office of Immigration Review-and the Board of Immigration Appeals that reviews decisions of Immigration

Judges. 40 Assuming all procedural requirements are met, the burden of proof in every petition for asylum is on the applicant to show that he or she satisfies the requisite substantive statutory definition of a refugee. 4 1 The timing of an applicant's claim for asylum will drastically affect the burden of proof. If an applicant applies within one year of being physically present in the United States, the applicant need not show that it is "more likely than not" that he or she has been, or will be, subject to persecution in his or her own country to satisfy the burden of proof.42 On the other hand, when an applicant asserts a claim for asylum as a defense to removal, the burden on the asylum seeker is much higher. When used as a defense, the asylum seeker must prove each element under a clear-probability standard that it is "more likely than not" that they have been persecuted, or will be subject to persecution upon deportation to their home country. 4 3 The reasoning behind these different burdens seems to be an acknowledgement that the United States is more willing to allow applicants who report their presence to 38. Id.; I.N.S. v. Cardoza-Fonesca, 480 U.S. 421, 427-28 (1987) (stating that "[u]nder this section, [of the United States Code], eligibility for asylum depends entirely on the [Secretary of Homeland Security] Attorney General's determination that an alien is a 'refugee,' as that term is defined in ยง 101 (a)(42) [of the Immigration and Nationality Act]").

39. 8 U.S.C. ยง 1158(a)(3).

40. Id. ยง 1103(g)(1).

41. Id. ยง 1158(b)(1)(B). This section of the U.S. Code also reiterates that to satisfy the burden of proof in a claim for asylum, the "applicant must establish that race, religion, nationality, membership in a particular social group, or political opinion was or will be at least one central reason for persecuting the applicant." Id (emphasis added).

42. Cardoza-Fonseca,480 U.S. at 449.

43. Id. In I.N.S. v. Cardoza-Fonesca,the Supreme Court rejected the Board of Immigration Appeals administrative construction of the statutory burden for satisfying the requirement for asylum. Id. at 446-47.

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stay in the country, while those who wait until they are caught and faced with deportation must satisfy a higher burden to show they deserve societal protection from persecution.

In sustaining this burden, uncorroborated testimony by the applicant shall suffice so long as a "trier of fact [determines] that the applicant's testimony is credible, persuasive, and refers to specific facts sufficient to demonstrate that the applicant is a refugee."44 All credibility determinations must be reviewed under the "totality of the circumstances." 45 Furthermore, while examining all relevant factors, a trier of fact may base a credibility determination on the demeanor, candor, or responsiveness of the applicant or witness, the inherent plausibility of the applicant's or witness's account, the consistency between the applicant's or witness's written and oral statements (whenever made and whether or not under oath, and considering the circumstances under which the statements were made), the internal consistency of each such statement, the consistency of such statements with other evidence of record (including the reports of the Department of State on country conditions), and any inaccuracies or falsehoods in such statements, without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicant's claim, or any other relevant factor. There is no presumption of credibility, however, if no adverse credibility determination is explicitly made, the applicant or witness shall have a rebuttable presumption of credibility on appeal. 46 Because the determination of whether or not an applicant has satisfied the elements of asylum is based almost entirely on issues of fact, the written statements and oral testimony of any applicant or witness are the most crucial aspects of building a strong case to achieve asylum and preserving issues for appeal.

B. Membership in a ParticularSocial Group A threshold requirement for asylum seekers in the United States is that they suffer persecution "on account of race, religion, nationality, membership in a particular social group, or 44. 8 U.S.C. ยง 1158(b)(1)(B)(ii) (West 2012).

45. Id. ยง 1158(b)(1)(B)(iii).

46. Id.

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political opinion[.]A 7 This Comment focuses on an analysis of the fourth category: "membership in a particular social group."4 8 What exactly satisfies the substantive requirement for the "membership in a particular social group" element is wholly undefined by international or United States statutes, leaving nearly all interpretation of this element to the United States Department of Justice and its administrative courts. 4 9 The proper interpretation of this element is highly debated and demands consistent application and clarification so that asylum seekers may seek refuge from persecution, furthering the core principles for which the 1951 Refugee Convention was enacted: non-discrimination, non-penalization, and non-refoulment.5 0 Due to the administrative structure in the United States, the authority to interpret section 1101(a)(42)(A) is vested to the Attorney General within his or her capacity as head of the Department of Justice.5 ' The Department of Justice immigration court system is called the Executive Office for Immigration Review, and is comprised of Immi ation Judges and the Board of Immigration Appeals ("BIA").5 Decisions by the Department of Justice are appealable only to United States Federal Circuit Courts of Appeal.5 3 Any denied applicant seeking review by the Department of Justice must file in the circuit in which his or her claim originated.5 4 Decisions by federal Courts of Appeal are binding on the BIA only in cases arising from the circuit in which the applicant applied for

47. Id. ยง I 1010(a)(42)(A).

48. Id.

49. Id. ยง 1103(g)(1).

50. See generally REFUGEE CONVENTION, supra note 18, at Introductory

Note.

51. 8 U.S.C. ยง 1101(a)(42)(A); T. Alexander Aleinkoff, Protected Characteristics and Social Perceptions: An Analysis of the Meaning of 'Membership of a ParticularSocial Group', in REFUGEE PROTECTION IN INTERNATIONAL

LAW:

UNHCR's

GLOBAL

CONSULTATIONS

ON

INTERNATIONAL PROTECTION 263, 275 (Erika Fuller et al. eds., 2003),

available at http://www.unhcr.org/cgibin/texis/vtx/home/opendocPDFViewer.html?docid=419cbe 1f4&query-me mbership%20in%20a%20particular%20social%20group.

52. Id. 53. Id. 54. Id.

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asylum.ss C. ControllingBoardoflmmigration Appeals' Opinions Determining What Constitutes "Membership in a Particular Social Group " This section gives an overview of the seminal BIA decisions interpreting this controversial ground of persecution. The section also contains a critique of the BIA for its seemingly misguided approach of explicitly citing and outwardly conforming to international standards as a signatory of the 1967 Protocol, while inwardly misapplying the standards to limit, rather than expand, the reach of an applicant's claim for asylum.

1. Matter ofAcosta The seminal BIA decision interpreting the statutory element of "membership in a particular social group" is Matter of Acosta. 6 Acknowledging the drastic need for interpretation and clarification of this particular ground of persecution, the BIA stated that "Congress did not indicate what it understood [membership in a particular social group] to mean, nor is its meaning clear in the Protocol."5 The BIA further stated that the ground was not included in the original definition of a refugee ... proposed by the U.N. Convention ... [but] was included as an afterthought . . . [intended] for broader application than [the other enumerated groups] .. . to stop a

possible gap in the coverage of the U.N. Convention.

Exercising its administrative authority vested by Congress, the BIA then interpreted the meaning of social group as persecution that is directed toward an individual who is a member of a group of persons all of whom share a common, immutable characteristic. The shared characteristic might be an innate one such as sex, color, or kinship ties, or in some circumstances it might be a shared past experience such as 55. Id. 56. Matter of Acosta, 19 I. & N. Dec. 211, 232-34 (B.I.A. 1985), overruled on other grounds by Matter of Mogharrabi, 19 I. & N. Dec. 439 (B.I.A. 1987).

57. Id. at 232.

58. Id.

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former military leadership or land ownership. The particular kind of group characteristic that will qualify under this construction remains to be determined on a case-by-case basis. However, whatever the common characteristic that defines the group, it must be one that the members of the group either cannot change, or should not be required to change because it is fundamental to their individual identities or consciences. Only when this is the case does the mere fact of group membership become something comparable to the other four grounds of persecution under the Act, namely, something that either is beyond the power of an individual to change or that is so fundamental to his identity or conscience that it ought not be required to be

changed. By construing 'persecution on account of membership in a particular social group' in this manner, we preserve the concept that refuge is restricted to individuals who are either unable by their own actions, or as a matter of conscience should not be required, to avoid persecution.

In Acosta, the respondent asserted a claim of asylum to stay an order of deportation.6 0 In El Salvador, the respondent and 150 other individuals worked as taxi drivers in a small cooperative called COTAXI.61 Beginning in 1978, an antigovernment guerilla group in El Salvador sought to punish the respondent and his colleagues because COTAXI was a socialist organization that refused to participate in work stoppages meant to disrupt transportation services in the city of San Salvador.62 Because COTAXI refused to comply, the cooperative members received threats of retaliation. 63 These threats culminated in the murders of five COTAXI members by the guerillas.6 After these murders, the respondent received three death threats and was ultimately assaulted by the guerilla group.65 Fearing for his life, the respondent fled El Salvador and entered the United States.66 Respondent asserted that he was a member of a particular 59. Id. at 233-34 (emphasis added).

60. Id. at 213.

61. Id. at 216.

62. Id. at 216-17.

63. Id. at 216.

64. Id. at 216-17.

65. Id. at 216.

66. Id.

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social group of COTAXI members who had refused to participate in work stoppages.6 7 The BIA, however, denied the respondent's claim, stating that [n]either of these characteristics is immutable because the members of the group could avoid the threats . . . by

changing jobs or by cooperating in work stoppages. It may be unfortunate that the respondent either would have had to change his [job] . . . or cooperate with guerrillas in order to

avoid their threats. 68 The BIA concluded by iterating that the characteristics shared by respondent's purported social group were not immutable, but rather something respondent had the power to change.69 As a result of this power, the respondent had not satisfied his burden under the substantive statutory requirements. 7 0 The decision in Acosta set forth an "immutability test" for determining what constitutes membership in a particular social group by identifying the underlying commonality as "one that the members of the group either cannot change, or should not be required to change because it is fundamental to their individual identities or consciences." 71 This test has received international attention, and has governed what constitutes membership in a particular social group for twenty years, until the BIA expanded the test to outwardly conform to international standards in theory, but not in application.

2. In re C-AIn an attempt to exercise its signatory responsibility under the 1967 Protocol, the BIA conformed to the United Nations High Commissioner for Refugees Guidelines ("UNHCR Guidelines") concerning what constitutes membership in a particular social group in the case of In re C-A-. 7 2 In applying the UNHCR Guidelines, however, the BIA seemed to be misguided and actually conflicted with the United Nations by restricting coverage, rather than expanding, as intended by the United 67. Id. 68. Id. at 234.

69. Id. 70. Id. 71. Id. at 233 (emphasis added).

72. In re C-A-, 23 1. & N. Dec. 951 (B.I.A. 2006).

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Nations.

In the opinion In re C-A-, the BIA adopted a two-part test, adding an additional element, to determine who constitutes members of a particular social group: (1) immutability and (2) social visibility.7 3 In In re C-A-, a Colombian respondent claimed he had been persecuted on account of his membership in a group of non-criminal informants. 74 The respondent, an owner of a local bakery, had been severely beaten by members of the Cali drug cartel because he had been providing information about the location of the cartel's assets to law enforcement.

As a result, he went into hiding.76 After many of his acquaintances had been beaten to reveal his location, he fled to the United States seeking refuge from the alleged persecution. 77 Considering whether non-criminal informants constitute a particular social group, the BIA expanded upon the substantive definition of a social group and stated that not only must group characteristics be "immutable," but also "socially visible."

Citing to the UNHCR Guidelines for the "social group" element, 79 the BIA adopted the United Nations standard for social visibility and stated that "'visibility' is an important element in identifying the existence of a particular social group."80 The BIA conflated this element with the UNHCR Guidelines and inquired to what extent other members of the community in which the purported social group resides would subjectively recognize the existence of the social group." This 73. Id. at 958-61.

74. Id. at 952-53.

75. Id. at 952.

76. Id. at 953.

77. Id. 78. Id. at 959-61.

79. U.N. High Comm'r for Refugees, Guidelines on International Protection: "Membership of a ParticularSocial Group" Within the Context of Comment 1(A)(2) of the 1951 Convention and/or Its 1967 Protocol Relating to the Status of Refugees, U.N. Doe. HCR/GIP/02/02 (May 7, 2002), available at http://www.unhcr.org/cgibin/texis/vtx/home/opendocPDFViewer.html?docid=3d58de2da&query-me [hereinafter mbership%20in%20a%20particular%20social%20group UNHCR Guidelines].

80. In re C-A-, 23 I. & N. Dec. at 959-61.

81. Id. at 959.

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interpretation was misguided, resulting in a misapplication of the standard.

The BIA's misapplication is exemplified in the UNHCR Guidelines, which state that this "approach examines whether or not a group shares a common characteristic which makes them a cognizable group or sets them apart from society at large. This has been referred to as the 'social perception' approach." 82 Women, families, and homosexuals have been internationally recognized social groups under the social perception approach, and such an approach "might recognize as social groups associations based on a characteristic that is neither immutable nor fundamental to human dignity-such as, perhaps, occupation or social class." 83 Seemingly, the UNHCR intended this element to be objective-in the sense that one may not physically recognize an individual from a particular social group by sight, but society as a whole can recognize the existence of the group; rather than subjective-in the sense that one person must be able to physically recognize the individual by sight. The subjective interpretation of the standard was exemplified by the BIA's application to the facts. In its application, the BIA stated that [in] the normal course of events, an informant against the Cali cartel intends to remain unknown and undiscovered.

Recognizability or visibility is limited to those informants who are discovered because they appear as witnesses or otherwise come to the attention of cartel members. 84 Focusing on the subjective "recognizability" of individuals in a social group rather than the objective "social perception" shared by society is wholly in conflict with the UNHCR Guidelines. "Often it is unclear whether the Board is using the term 'social visibility' in the literal sense or in the 'external criterion' sense, or even-whether it understands the difference."85 The BIA outwardly admits to conforming to international standards of refugee protection while 82. UNHCR Guidelines,supra note 79, ยง II(A)(7).

83. Id. ยง II(A)(7), (9).

84. In re C-A-, 23 I. & N. Dec. at 960.

85. Benitez Ramos v. Holder, 589 F.3d 426, 430 (7th Cir. 2009) (agreeing with the holding of the Immigration Judge and Board of Immigration Appeals denial that "former Salvadorian gang members" constitute a particular social group, but wholly criticizing the means to get to that end).

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fundamentally altering these standards in its application in a given case.

3. In re A-M-E & J-G-UThe BIA expanded on the interpretation of the "membership in a particular social group" ground for persecution in In re AM-E & J-G-U-. 86 There, the BIA strayed further from the UNHCR Guidelines and ignored its standard articulated in In re C-A- by further altering the "social perception" test in considering a third element: "particularity."87 Whether or not an individual is a member in a particular social group is currently a three-part test, considering: (1) immutability, (2) social visibility, and (3) particularity.

In In re A-M-E & J-G-U-, the BIA affirmed an Immigration Judge's denial of the respondents' asylum and withholding of removal claims by holding that "affluent Guatemalans" are not members of a particular social group.88 The respondents, a married couple from Guatemala, had been subjected to extortionist threats of their lives in return for money for the release of the wife-respondent's sister, who had been kidnapped by an organized gang and shot in the leg. 89 After continuously changing their location within their home country, and experiencing no cessation of threats by the organized gang, the respondents sought refuge in the United States.9o The BIA held that the respondents' proposed social group failed the particularity requirement, "[b]ecause the concept of wealth is so indeterminate, the proposed group could vary from as little as 1 percent to as much as 20 percent of the population, or more." 91 Further, "when 'wealth' alone is the sole criterion, group membership is difficult to delimit for a large swath of potential members," 92 and thus the respondents had failed to exercise their burden by showing that "affluent Guatemalans" are a particular social group for the purposes of achieving asylum and staying the order of deportation.

86. In re A-M-E & J-G-U-, 24 I. & N. Dec. 69 (2007).

87. Id. at 76.

88. Id. at 77.

89. Id. at 70.

90. Id. 91. Id at 76.

92. Id. at 70.

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In interpreting "particularity" to be determined by the size of a particular social group, the BIA is entirely in conflict with the UNHCR Guidelines.

The UNHCR Guidelines speak specifically to the relevance of size in determining whether a particular social group exists, stating [t]he size of a purported social group is not a relevant criterion in determining whether a particular social group exists within the meaning of [the 1951 Refugee Convention] ... [T]he fact that a large number of persons risk persecution

cannot be a ground for refusing to extend international protection where it is otherwise appropriate. 93 The BIA, again, has outwardly sought to conform to international standards to which it does not inwardly adhere.

In addition to denying the respondents' claim for lack of particularity, the BIA further held that the proposed group of "wealthy Guatemalans" failed the "social visibility" test. The BIA stated that "[w]hether a proposed group has a shared characteristic with the requisite 'social visibility' must be considered in the context of the country of concern and the persecution feared." 95 Wholly ignoring the subjective "recognizability" test applied in In re C-A-, the BIA reasoned that the evidence on record lacked indication that "wealthy Guatemalans would be recognized as a group that is at a greater risk of crime in general or of extortion or robbery in particular." 96 In applying the "social visibility" test in this way, the BIA has stated that to satisfy an applicant's burden of showing membership in a particular social group, society must objectively acknowledge that the articulated group is exclusively subject to the type of persecution compared to the rest of the country's population. 97 This interpretation of social visibility is also in direct conflict with the UNHCR Guidelines. The role of persecution in defining a particular social group is explicitly examined in the UNHCR Guidelines, which state that although persecution may be a relevant factor, "a particular social group cannot be defined 93. UNHCR Guidelines,supra note 79, at ยง II(B)(18).

94. In re A-M-E & J-G-U-, 24 I. & N. Dec. at 75.

95. Id. at 74 (emphasis added).

96. Id. at 74.

97. See id. at 74-75.

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exclusively by the persecution that members of the group suffer or by a common fear of being persecuted." 98 To interpret otherwise would jeopardize the structure and integrity of the 1951 Convention.9 By making persecution a mandatory factor in social visibility, the BIA has further restricted coverage under the 1951 Refugee Convention where the United Nation's intentions were to expand the coverage.

An opinion from Australia, cited and quoted by the UNHCR Guidelines, provides an illustrative example of how the role of persecution in defining a particular social group should be used to expand the coverage under the 1951 Convention, rather than restrict it by making it a mandatory factor: [W]hile persecutory conduct cannot define the social group, the actions of the persecutors may serve to identify or even cause the creation of a particular social group in society.

Left-handed men are not a particular social group. But, if they were persecuted because they were left-handed, they would no doubt quickly become recognizable in their society as a particular social group. Their persecution for being lefthanded would create a public perception that they were a particular social group. But it would be the attribute of being left-handed and not the persecutor acts that would identify them as a particular social group.

By adopting the UNHCR Guidelines for "social visibility" in In re C-A-,' 0 the BIA is defying the 1951 Convention and its 1967 Protocol by subjecting the term to such a narrow and Nonetheless, the three-part contradictory interpretation. approach articulated in In re A-M-E & J-G-U- remains and serves as the current standard to determine what constitutes membership in a particular social group.

4. Matter ofS-E-GThe next and most recent BIA decision interpreting the threepart test is Matter of S-E-G. 10 2 The question presented to the 98. UNHCR Guidelines, supra note 79, ยง II(B)(14) (citing Applicant A v.

Minister for Immigration and Ethnic Affairs, (1997) 190 CLR 225, 264) (emphasis added).

99. Id. ยง 1(2).

100. Id. ยง II(B)(14).

101. In re C-A-, 23 I. & N. Dec. 951, 959 (B.I.A. 2006).

102. Matter of S-E-G-, 24 I. & N. Dec. 579 (B.I.A. 2008).

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BIA was whether "Salvadorian youths who have resisted gang recruitment, or family members of such Salvadorian youth," are members of a particular social group for the purpose of The respondents, a achieving asylum in the United States. nineteen year-old female and her two sixteen year-old brothers, fled their country in 2004 because of alleged persecution by members of the MS-13 gang.104 Evidence in the record indicated that they had been harassed, beaten, and threatened of rape and death by members of the MS-13 to join the gang. os Before the respondents' departure to seek refuge in the United States, they learned that a young boy in their neighborhood had been shot and killed by the MS-13 for refusing to join the gang.106 The BIA denied the respondents' proposed groups satisfied the standards of "particularity" or because they had not 0 7 "social visibility."', In Matter of S-E-G-, the BIA began its analysis by stating that all federal Courts of Apeal decisions are expressly consistent First, in discussing the immutability with its three-part test. test, the BIA reasoned that "'youth' is not an entirely immutable characteristic but is, instead, by its very nature, a temporary state that changes over time. The mutability of age is reflected in this case by the fact that the [] respondents" had aged two years from the time they asserted their claim." 109 Confusingly, the BIA then stated "that if an individual has been persecuted in 103. Id. at 582.

104. Id. at 579.

105. Id. at 580.

106. Id. 107. Id. at 583.

108. Id. at 583 (citing to Elien v. Ashcroft, 364 F.3d 392, 396-97 (1st Cir. 2004); Ucelo-Gomez v. Mukasey, 509 F.3d 70, 73-74 (2d Cir. 2007); Lukwago v. Ashcroft, 329 F.3d 157, 170-71 (3d Cir. 2003); Fatin v.

Immigration & Naturalization Serv., 12 F.3d 1233, 1240-42 (4th Cir. 1993); Mwembie v. Gonzales, 443 F.3d 405, 414-15 (5th Cir. 2006); Rreshpja v. Gonzales, 420 F.3d 551, 555-56 (6th Cir. 2005); Tapiero de Orejuela v. Gonzales, 423 F.3d 666, 672-73 (7th Cir. 2005); Lwin v.

Immigration & Naturalization Serv., 144 F.3d 505, 512 (7th Cir. 1998); Makatengkeng v. Gonzales, 495 F.3d 876, 881 (8th Cir. 2007); Raffington v. INS, 340 F.3d 720, 723 (8th Cir. 2003); Arteaga v.

Mukasey, 511 F.3d 940, 944-45 (9th Cir. 2007); Niang v. Gonzales, 422 F.3d 1187, 1198-99 (10th Cir. 2005)).

109. Id. at 583.

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the past on account of an age-described particular social group, or faces such persecution at a time when that individual's age places him within the group, a claim for asylum may still be cognizable."' 10 Had the respondents asserted their claim by articulating their particular social group as youth "age 16-19," or "age

16-21," would the BIA have acknowledged the

immutability of age as a "shared past experience," recognized in the immutability test from Acosta?"' The BIA seemed to simultaneously deny and admit that the respondents' proposed groups were immutable.

Second, the BIA's application of the "particularity" requirement seemed to be a hybrid of both the "social visibility" and the "particularity" requirements. In its attempt to further interpret and clarify the "particularity" requirement, the BIA stated that "[t]he essence of the 'particularity' requirement . .. is

whether the proposed group can accurately be described in a manner sufficiently distinct that the group would be recofnized, The in the society in question, as a distinct class of persons."

BIA then rejected the respondents as members of a particular social group because "the make up a potentially large and diffuse segment of society.' 13 Finally, the BIA utilized a very confused and misguided application of the "social visibility" test by, again, combining the elements of particularity, social visibility, and gang visibility. In its application of the "social visibility" test, the BIA concluded that victims of gang violence come from all segments of society, and it is difficult to concluded that any 'group,' as actually perceived by the criminal gangs, is much narrower than the general population of El Salvador . . . [and] we have no

reason to believe, that the general societal perception would be otherwise.114 The BIA's application of the social visibility test does not indicate the use of a logical means to an end, but rather the end result of denying a claim seems to somehow justify the means.

I10. Id. at 583-84.

111. See Matter ofAcosta, 19 1. & N. Dec. 211, 234 (B.I.A. 1985).

112. Matter of S-E-G-, 24 I. & N. Dec. at 584.

113. Id. at 585.

114. Id. at 588.

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Through its inability to articulate a consistent standard to determine "membership in a particular social group," the BIA seems motivated by an effort to keep the gates of immigration closed to asylum applicants. In Matter of S-E-G-, the BIA again cited to the UNHCR Guidelines to endorse the "social visibility" approach, while sweeping the Guidelines under the rug in its application.' 15 IV. A PROPOSED STANDARD To DETERMINE "MEMBERSHIP IN A PARTICULAR SOCIAL GROUP" UNDER U.S. ASYLUM LAw-AN APPLICATION

Because of its conflicting and misguided interpretation, the BIA should adopt, articulate, and consistently apply a clear standard to determine what constitutes "membership in a To respect the integrity of the particular social group." definition of a refugee, the BIA must articulate a standard consistent with the adopted UNHCR Guidelines and furthermore, consistent with the principles under which the 1967 Protocol was enacted: to provide refuge to individuals suffering brutal atrocities on account of immutable and fundamental identities. As mentioned in the Introduction, this Section introduces a proposed standard to determine what constitutes membership in a particular social group consistent with the UNHCR Guidelines, and it then applies that standard to the circumstances Abram suffered in Mexico.

A. A ProposedStandard The appropriate standard to determine what constitutes membership in a particular social group should reflect the original intent in the UNHCR Guidelines: the creation of a universal formula to determine whether an individual has suffered persecution on account of his or her immutable or fundamental identity, or an identity that society recognizes to Thus, the formula can be satisfied by either element of exist. a two-part inquiry: (1) immutability or (2) social perception.

The third element of "particularity" is apparently a catch-all, entirely in conflict with the UNHCR Guidelines that the BIA has consistently looked to for guidance, implemented to keep 115. Id. at 586.

116. UNHCR Guidelines, supra note 79, ยง II(A)(9).

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the gates of immiration closed to groups which may include too many people. 1 7 Quite simply, the "particularity" element should be wholly ignored as an irrelevant consideration in the analysis. Admittedly, the UNHCR Guidelines explicitly state that the "[particular social group] ground needs delimiting ... [and] cannot be interpreted as a 'catch all' that applies to all However, the Guidelines also persons fearing persecution."' state that [t]he size of the purported social group is not a relevant criterion in determining whether a particular social group exists within the meaning [of the 1951 Convention] . . .

[T]he fact that a large number of persons risk persecution cannot be a ground for refusing to extend international protection where it is otherwise appropriate.

Because the Guidelines to the 1951 Convention not only reject-but specifically prohibit-the consideration of "particularity" in any social group determination, the "particularity requirement" should be dropped from every inquiry into what constitutes membership in a particular social group to preserve the integrity of the 1951 Refugee Convention and its 1967 Protocol.

The UNHCR Guidelines approach, endorsed by this Comment, seeks to reconcile the dominant international approaches nationwide into a clear standard that can be consistently applied to determine what constitutes "membership in a particular social group." The first approach sought to be reconciled in a consistent test is used by international courts outside the United States, and is called the "protected This approach is largely an characteristics" approach. expansion of the "immutability" test articulated in Acosta.120 Under this approach, a fact finder would examine three factors to determine whether the purported social group is defined: (1) by an innate, unchangeable 117. See In re A-M-E & J-G-U-, 24 I. & N. Dec. 69, 76 (B.I.A. 2007) (applying the particularity test and denying respondents claim because the proposed group was too difficult to differentiate from a "large swath" of people).

118. UNHCR Guidelines, supra note 79, ยง 1(2).

119. Id. ยง II(B)(18).

120. See id ยง II(A)(6); see also Matter of Acosta, 19 I. & N. Dec. at 23334.

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characteristic, (2) by a past temporary or voluntary status that is unchangeable because of its historical permanence, or (3) by a characteristic or association that is so fundamental to human dignity that group members should not be compelled to forsake it. 121 The second approach to be reconciled in a test determining group membership is the "social perception approach," discussed in Section III(C)(2-4) of this Comment. An Analysis under these two dominant approaches may frequently converge,122 so the Guidelines suggest a disjunctive approach that asks whether the group is (1) immutable, or (2) perceived The United Nations suggests a as a group by society. definition that states that a particular social group is a group of persons who share a common characteristic other than their risk of being persecuted, or who are perceived as a group by society. The characteristic will often be one which is innate, unchangeable, or which is otherwise fundamental to identity, conscience or the exercise of one's human rights.124 Keeping the immutability requirement will preserve the integrity of the other grounds for persecution of race, religion, nationality, and political opinion, and prevent rendering them superfluous. Race and nationality are unarguably immutable, in the sense that these characteristics cannot change over time and are unalterable identities with which an individual is born.

Religion, political opinion, and kinship ties are also unarguably immutable, in the sense that they are "so fundamental that an individual should not be required to change them." 125 Thus, the internationally recognized immutability requirement articulated in Acosta should remain intact.

But if a purported social group otherwise fails the immutability requirement, a group "perceived by society" can Preserving the social perception still retain protection. requirement will require that the proposed group of an asylum applicant is not too abstract or ill-defined by ensuring that society recognizes that particular social group exists, whatever 121.

122.

123.

124.

125.

UNHCR Guidelines, supra note 79, ยง II(A)(6).

Id. ยง II(A)(9).

Id. Id. ยง II(B)(1 1).

Matter ofAcosta, 19 I. & N. Dec. at 233-34.

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the size may be. Furthermore, allowing the social visibility test alone to satisfy the definition of "a particular social group" ensures that individuals suffering persecution on account of their identity, conscience, and basic human dignity may retain protection where the immutability requirement otherwise falls short of providing protection.126 Critics of this proposed standard should remember that establishing "membership in a particular social group" is merely one step in the process of acquiring asylum in the United States.

While the protection afforded under this ground of persecution may be broadened by this proposed standard, as intended by the UNHCR Guidelines, an applicant must still show that he or she has been "persecuted" on account of being a member in a particular social group. 127 Furthermore, the Attorney General and the Secretary of Homeland Security have sole discretionary authority to admit an individual who has otherwise satisfied the requisite definition of asylum.1 28 This procedural safeguard provides a mechanism to deny applicants when concerns regarding overpopulation or lack of adequate resources to support asylum applicants in the United States become issues.

B. Abram's ProposedSocial Group Abram, from the Introduction, is a member of a proposed social group of "internally displaced persons from the northern region of Mexico as a result of DTOs." As the name appears, this group consists of individuals who have been displaced from his or her homeland due to vast corruption and forced displacement by DTOs. Defined both by its immutable and fundamental ties to its homeland, and by the persecution it suffers as a result of DTOs perceived by society, this proposed group falls squarely in line with both U.S. and international standards concerned with immutability and social perception, as well as the proposed standard promulgated by the UNHCR Guidelines.

First, to satisfy the "immutability" requirement under the standard set forth in Acosta, "[i]nternally displaced persons 126. See Universal Declaration of Human Rights, G.A. Res. 217(111) A, U.N. Doc. A/RES/217(III), arts. 1, 3, 14(1) (Dec. 10, 1948).

127. 8 U.S.C. ยง 1158(b)(1)(B)(ii) (West 2012). An analysis of the element of persecution is entirely outside the scope of this Comment.

128. Id. ยง 1158(b)(1)(A).

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from the northern region of Mexico as a result of DTOs" must "The shared share an "immutable characteristic."1 29 characteristic might be an innate one such as sex, color, or kinship ties, or in some circumstances it might be a shared past experience such as former military leadership or land ownership."o3 0 Nonetheless, the immutable characteristic must be "one that the members of the group either cannot change, or should not be required to change because it is fundamental to their individual identities or consciences," 131 or fundamental to the exercise of one's human rights.1 32 Grounding Abram's proposed group in ties to his homeland ensures that the immutability requirement is met. Being from the northern region of Mexico, in the state of Chihuahua, is an immutable characteristic-an identity that Abram cannot or should not be required to change because it is fundamental to his identity and conscience-it is his homeland. The vast persecution by DTOs is centered in northern Mexico, mainly in the states of Chihuahua and Tamaulipas, where drug-trafficking routes are most concentrated. 133 Second, if the immutability element is otherwise unsatisfied, for "internally displaced persons from the northern region of Mexico by DTOs" to qualify as members of a particular social group, society must recognize this group to exist. 134 "Internally displaced persons from the northern region of Mexico" are recognized, or, if ignored, should be recognized, by society to constitute a social group because, in the year 2010 alone, there were approximately 350,000 individuals who were internally displaced in the northern regions of Mexico solely due to persecution by DTOs. 135 Due to the vast influx of corruption and the exponentially rising rates of murders and kidnappings, society is aware of-and cannot deny-the existence of these groups. 136 The role that persecution by DTOs plays in the 129. Matter ofAcosta, 19 1. & N. Dec. at 233-34.

130. Id. at 233.

131. Id. (emphasis added).

132. UNHCR Guidelines,supra note 79, ยง II (A)(6).

133. MEXICO IDP REPORT, supra note 10.

134. See In re C-A-, 23 I. & N. Dec. at 960 (citing to UNHCR Guidelines, supra note 79, ยง II(A)(7)).

135. MEXICO IDP REPORT, supranote 10.

136. See supra Part I.

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identification of "internally displaced persons" under the "social visibility test" has been specifically accepted, both internationally and locally. 137 Because both "immutability" and "social perception" are satisfied by a review of the prevailing standards examined in this Comment, Abram is likely a member of a social group comprised of "internally displaced persons from the northern region of Mexico as a result of DTOs." V. CONCLUSION There is a war commencing in Mexico that is victimizing humans in need of societal protection. International standards provide such protection to individuals suffering persecution on account of their basic human identities. The United States has outwardly conformed with these standards while inwardly misapplying them to seemingly limit-rather than expand-the scope of societal protection. The United States Board of Immigration Appeals should articulate and apply a standard that is consistent with the United Nations Guidelines it has adopted, abandoning current standards in direct conflict with them.

Under the proposed standard, the victims of the war in Mexico may potentially obtain the societal protection demanded by a basic respect for fundamental human rights.

Matthew Shelton Nestrud

137. See In re A-M-E & J-G-U-, 24 I. & N. Dec. at 76 (B.I.A. 2007); UNHCR Guidelines, supra note 79, ยง II(B)(14). * Executive Legislative Editor, John Marshall Law Journal; J.D., Atlanta's John Marshall Law School; B.A., University of Arkansas. The author would like to thank Professor Anthony V. Baker, Professor Michael B. Kent, Jr., Professor Neva B. Jeffries, the John Marshall Law JournalExecutive Board and Editorial Staff, and Tyler G. Banks for their instrumental help on this work.

IMPLIED CONSENT AND NON-ENGLISH SPEAKERS TABLE OF CONTENTS I.

INTRODUCTION

II.

HISTORY OF IMPLIED CONSENT IN GEORGIA ........

A. B. III.

B.

......... 626 ............

630

....... 630 Non-English-SpeakingDrivers.................

Hearing-ImpairedDrivers............................. 634

CONSTITUTIONAL ANALYSIS

A.

IV.

.....................................

.............................

636

Issues Raised in Rodriguez.................636 1. Due Process................................636 2. Equal Protection............................636 a. Hearing-ImpairedDrivers versus Non-English-SpeakingDrivers ............... 637 b. English-Speaking Drivers versus ................ 637 Non-English-SpeakingDrivers Why The Issues Raised in Rodriguez Do Not Violate the Constitution ...........................

639 ....... 640 1. The State's CountervailingPolicies.... ........ 640 a. Obtain Evidence Without Delay.. ............... 641 b. Burdens on Officers to Interpret 2. Non-English Speakers' Concerns.... ................ 643 a. Suspect's Rights Under Implied Consent................... 643 i. Refusal ................... ............... 643 . Independent Test ............................ 645 b. Consequence .................. ............... 646

PROPOSAL..................................................

647

A. B.

647 648 649 652 653

C.

Driver's License Language Code............................

Good Faith Standard .................................... . ObtainingEvidence Without Delay... .................

2. Burdens to Interpret.. ........................

ProposedStatute Ld..................... ....................

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CONCLUSION

APPENDIX

......................................

......... 655

................ 656

A...........................

ProposedStatutefor Implied Consent and ..........................

Non-English Speakers

I.

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.....

656

INTRODUCTION

Imagine for a moment you were born in Mexico and have recently immigrated to Georgia after living your first 25 years in Mexico. You speak Spanish and have very little understanding of English. You took the written portion of your driver's license examination in Spanish but were required to take the driving portion in English-which was difficult-but you managed to pass. A few years later, and after living in Georgia for several years, you still do not understand English that well because you live and work with other Spanish-only speakers.

One night after work, you and a few of your friends go to the local bar to get drinks. You have a few more than you should but decide to drive home anyway because you feel like you are able to drive. There are very few people on the road because it is 2:30 a.m., so you decide to speed on the interstate to get home faster. Police lights fill your rear view mirror, and you pull over to the side of the road. The officer approaches your car and speaks to you in English. You have no idea what he is saying but you see that he is making a motion for you to get out of the car. He tries to communicate with you in English, but you stare at him with a blank expression because you do not understand the language he is speaking. The officer continues to speak English and moves his finger in front of your face while he looks at your eyes. Then he speaks more English and walks in a line and then stands on one leg. You try to mimic him but each time you do, he motions for you to stop. You are still very confused.

The officer then pulls out a small machine and acts like he is going to blow into it, but then he puts it up to your mouth. You are not sure what he wants you to do because you have no idea what he has said. The officer abandons his attempts with the machine after a few minutes and places you in handcuffs. He

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pulls out a small card and begins reading something in English.

You do not understand what he is reading but recognize that he has asked you a question. You shake your head up and down to indicate "yes" because you think agreeing with the officer will be best. You are then taken to jail where you are put in front of a larger machine. Several officers seem like they are trying to show you what to do by placing their mouth near a piece of the machine, but when you put your mouth on the mouthpiece, nothing happens. The officers try to show you again, but you still do not know what they are saying. Finally, the officers appear to give up, leaving you in a jail cell having understood nothing within the past few hours.

What you do not know is that when the officer asked you a question and you shook your head in the affirmative, you consented to take a State-administered chemical test of your breath that will provide the State with evidence against you in a driving under the influence charge. You are also unaware that you could have asked for an independent test of your own choosing at your own expense to assist you in your defense.

Knowing that you had the right to refuse, and knowing that you have the right to an independent test, is important in your defense against the driving under the influence charges you will soon face. You do not know these things because you speak Spanish and the officer only spoke English.

Had you been able to understand what the officer read from the card he pulled out when he arrested you, you would have heard him say that as a driver you have been deemed to have given your consent to chemical tests of your blood, breath, urine, or other bodily substance to determine the presence of alcohol.' This is known as the implied consent notice, which 1. O.C.G.A. ยง 40-5-67.1(b)(2)(West 2012). Implied Consent Notice for Suspects Age 21 or Over: Georgia law requires you to submit to state administered chemical tests of your blood, breath, urine, or other bodily substances for the purpose of determining if you are under the influence of alcohol or drugs. If you refuse this testing, your Georgia driver's license or privilege to drive on the highways of this state will be suspended for a minimum period of one year. Your refusal to submit to the required testing may be offered into evidence against you at trial. If you submit to testing and the results indicate an alcohol concentration of 0.08 grams or more, your Georgia driver's license or privilege to drive on the highways of this state may be suspended for a minimum

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applies to any driver on Georgia's roadways. 2 The officer would have gone on to say that if you refuse to submit to such tests, your license will be suspended for a minimum of one year and the evidence of your refusal may be used against you at trial.3 Next, you would have heard him tell you that if you do submit to the test and your blood alcohol content is above .08 grams, then your license may be suspended for a minimum of one year.4 You then would have been informed that after you submit to the State administered test, you may submit to additional tests at your own expense and your own choosing.

Finally, you would have heard the officer ask if you will submit to the State's test. 6 Georgia has no requirement that the implied consent notice be read in Spanish or any other language. In fact, the statute is silent as to what language the implied consent notice must be read in, but it is read in English because that is the predominate language spoken in this country. The English-only reading appears to give English speakers an advantage over non-English speakers when it comes to defending themselves in a DUI case because English speakers can understand the language, and are therefore more likely to be informed of their rights under the implied consent notice. The law in Georgia also seems to favor hearing-impaired drivers. Officers are required to request a qualified interpreter for hearing-impaired suspects, 7 but there is not a similar requirement that a request for a qualified period of one year. After first submitting to the required state tests, you are entitled to additional chemical tests of your blood, breath, urine, or other bodily substances at your own expense and from qualified personnel of your own choosing. Will you submit to the state administered chemical tests of your (designate which tests) under the implied consent law?

2. State v. Webb, 212 Ga. App. 872, 873 (1994) ("[A]ny person who operates a motor vehicle . . . throughout this state shall be deemed to have

given consent, subject to Code Section 40-6-392 [as to advisement of driver of his right to an additional test], to a chemical test or tests.

. .

. The test or

tests shall be administeredas soon as possible to any person who operates a motor vehicle upon the highways.").

3. O.C.G.A. ยง 40-5-67.1(b)(2) (West 2012).

4. Id. 5. Id. 6. Id. 7. O.C.G.A. ยง 24-9-103(b)(1) (West 2012).

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interpreter be made for non-English-speaking suspects.

Although it appears that non-English speakers are at a disadvantage when faced with the implied consent notice, Georgia courts have clearly indicated there is no disadvantage and therefore, no requirement to interpret the implied consent notice into languages all drivers would understand. The history of these decisions will be discussed in Part II. The English-only position of the courts could be problematic because of the increasing number of immigrants who may not speak English. "In 2010, a total of 1,042,625 persons became [legal permanent residents] of the United States." 9 A legal permanent resident ("LPR") is "a person who has been granted lawful permanent residence in the United States."' 0 But this total does not account for other people who come to the United States illegally who also may not speak English but could be involved in a DUI arrest.'

In Georgia alone, from 2008 to 2010, a total of 80,999 people were granted LPR status.' 2 Additionally, 9.1 percent of people in Georgia reported being foreign-born from 2005-2009, and 12 percent of people age 5 years and up reported speaking a language other than English at home.' 3 According to the 2010 8. Rodriguez v. State, 275 Ga. 283, 286 (2002).

9. Randal Monger & James Yankay, Annual Flow Report, March 2011; U.S. Legal Permanent Residents: 2010, DEP'T OF HOMELAND SEC. OFFICE OF

IMMIGRATION

STATISTICS,

http://www.dhs.gov/xlibrary/assets/statistics/publications/lpr fr 2010.pdf.

10. Id. 11. Michael Hoefer, Nancy Rytina, & Bryan C. Baker, Estimates of the UnauthorizedImmigrant Population Residing in the United States: January 2010, DEP'T OF HOMELAND SEC. OFFICE OF IMMIGRATION STATISTICS, http://www.dhs.gov/xlibrary/assets/statistics/publications/ois-ill-Pe_201 0.pd f.

[T]he number of unauthorized immigrants living in the United States in January 2010 was 10.8 million-the same as in January 2009but down from 11.8 million in January 2007. Between 2000 and 2010, the unauthorized population grew by 27 percent. Of all unauthorized immigrants living in the United States in 2010, 39 percent entered in 2000 or later, and 62 per- cent were from Mexico.

12. Monger & Yankay, supra note 9.

13. State and County QuickFacts: Georgia, U.S. CENSUS BUREAU, http://quickfacts.census.gov/qfd/states/13000.html (last visited May 15, 2012).

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Census, there were 418,462 more Hispanics in Georgia than in 2000, which accounted for a 96.15 percent increase.14 There were also 140,179 more Asians in Georqia than in 2000, which Even in light of this accounted for an 81.73 percent increase. growing diversity, the Supreme Court of Georgia has clearly stated there is no constitutional violation when the implied consent notice is not interpreted for non-Enlish-speaking The court's drivers, and thus no interpretation is required.' reasoning and policy implications will be discussed in Part III. There seems to be an impasse because of the rising immigration numbers and the inflexibility of the courts to deal with the problems associated with the language barrier. But the solution does not lie with the courts fashioning a rule for officers in the field to follow. As Georgia Supreme Court Chief Justice Hunstein has suggested, the Legislature must be the authority that creates the rules the officers follow in dealing with non-English-speaking drivers.'" Because the language barrier will continue to be an issue due to the rising level of immigration in the immediate future, both the Georgia Department of Driver Services and the Georgia Legislature must adopt new guidelines to deal with this issue of non-English speakers and implied consent. A proposal for the new procedures and processes will be discussed in Part IV.

II.

HISTORY OF IMPLIED CONSENT IN GEORGIA

A. Non-English-SpeakingDrivers Georgia has rejected the idea that the implied consent notice should be interpreted into languages all drivers can understand.' 8 This trend began in State v. Tosar,19 where the CNN.COM, numbers, by country the Explore 14. (last http://www.cnn.com/SPECIALS/defining.americalmap/index.html visited May 15, 2012) (Click on the drop-down menu labeled "View" and select "Hispanic population change." Then click on the drop-down menu labeled "Geography" and select "State." Click "COLLAPSE" and hover the mouse pointer over Georgia.)

15. Id. 16. See Rodriguez v. State, 275 Ga. 283, 284-87 (2002).

17. Id. at 287 (Hunstein, J., concurring).

18. Id. at 285 ("[T]he language of the relevant statutes does not require that the implied consent rights be read only in English.... They only require

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defendant argued he "understood very little, if any, English and that he did not actually understand the implied consent rights which [the officer] had read to him.",20 The defendant also argued that the officer "had made no effort to procure a Spanish-speaking person to interpret the reading of [the defendant's] implied consent rights." 2 1 Despite defendant's arguments and a finding by the trial court below in his favor, 22 the Georgia Court of Appeals held that the only statutory obligation the officer has is to "advise the testee that he is entitled to an independent test of his own choosing. Once that duty is fulfilled by the officer, the statutory obligation is satisfied. Sworn testimony by the officer that such advice was given constitutes prima facie showing of compliance." 23 The policy reason found in O.C.G.A. ยง 40-5-55(a) was relied on as primary support for the court's decision. 24 The court did point out that "[t]he failure to so advise the suspect of his right to an additional test invalidates the result of that the implied consent rights be read to defendants."); Furcal-Peguero v.

State, 255 Ga. App. 729, 732-33 (2002) (JAfll drivers are entitled only to be advised of their rights under the implied consent law, that is, to have the implied consent notice read to them. . . . The law does not require the

arresting officer to ensure that the driver understands the implied consent notice.").

19. State v. Tosar, 180 Ga. App. 885, 887 (1986).

20. Id. at 886.

21. Id. 22. Id ("Concluding that appellee spoke only Spanish, the trial court found that the State had failed to meet its burden of informing appellee of his implied consent rights. Appellee, therefore, could not knowingly waive his right to an additional test under O.C.G.A. ยง 40-6-392(a).")

23. Id. 24. Id. at 886; O.C.G.A. ยง 40-5-55(a) (West 2012).

The State of Georgia considers that any person who drives or is in actual physical control of any moving vehicle in violation of any provision of Code Section 40-6-391 constitutes a direct and immediate threat to the welfare and safety of the general public.

Therefore, any person who operates a motor vehicle upon the highways or elsewhere throughout this state shall be deemed to have given consent, subject to Code Section 40-6-392, to a chemical test or tests of his or her blood, breath, urine, or other bodily substances for the purpose of determining the presence of alcohol or any other drug, if arrested for any offense arising out of acts alleged to have been committed in violation of Code Section 40-6-391 ....

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any test so given and precludes its admissibility in evidence."25 But "[t]here are statutorily excepted situations in which the failure to advise the suspect of his right to an independent chemical test does not make the results of the state-administered test inadmissible." 26 The defendant attempted to argue that he fit within one of the exceptions: 27 that he was "otherwise in a condition rendering him incapable of refusal" because he was unable to understand English and therefore had not withdrawn his consent.28 "This contention has merit where the statute is read to mean that the inability to understand the rights read in English rendered the non-English speaking [defendant's] condition the same as unconscious, i.e., in a noncommunicative condition." 29 But the court was unwilling to adopt that interpretation, as evidenced by its holding that there is no requirement to interpret implied consent for non-English speakers, only that it must be read.3 0 A few years later, in Rodriguez v. State,3 1 the Supreme Court of Georgia gave more support to the non-interpretation view by holding that there are no due process or equal protection violations where an interpreter is provided for hearing-impaired drivers, but not for non-English-speaking drivers. 32 The Court reasoned that non-English-speaking drivers are not similarly situated to hearing-impaired drivers and thus have no right to receive a qualified interpreter. 33 Noting that the statute did not create a classification on its face of English-speaking and nonEnglish-speaking drivers, the Court declined to apply strict The rational relationship standard was applied scrutiny. instead and the Court found the statute to be rationally related to several important policy concerns.3 5 The Court affirmed what 25. Id. at 887.

26. Id. 27. Being dead or unconscious are the other two exceptions in O.C.G.A. ยง 40-5-55(b).

28. Tosar, 180 Ga. App. at 887.

29. Id. 30. Id. 31. Rodriguez v. State, 275 Ga. 283 (2002).

32. Id. 33. Id. at 285.

34. Id. at 287.

35. Id.

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the court in Tosar had already held-because there were no constitutional violations that would require interpretation, the only requirement was that the notice be read, not that the driver necessarily understand it.36 That same year, the Court of Appeals in Furcal-Peguerov.

State37 echoed the Supreme Court of Georgia and held there was no equal protection violation where a hearing-impaired driver was provided a qualified interpreter, but a non-English-speaking driver was not.3 Similar to Tosar and Rodriguez, the defendant in this case had difficulty with English. 39 But in this case, "[b]efore trial, the parties agreed that the arresting officer read [the defendant] the implied consent notice only in English, despite knowing that [his] native language was Spanish and that a telephonic translation service was immediately available." 4 0 The defendant tried to argue that Tosar "should be overruled as unconstitutional or modified to address situations in which translation services are instantly available to the arresting officer." 4 1 The same argument made by the defendant in Rodriguez was also made here-the defendant argued that Tosar should "be overruled or modified because non-Englishspeaking drivers are denied equal protection of the law in comparison to hearing-impaired drivers."42 But as the Supreme Court of Georgia rejected this argument in Rodriguez, so too did the Court of Appeals.4 3 The court supported its decision with the policy behind the statute: "removing drunk drivers from our highways and roads is a critical public safety function, and because the level of alcohol or drugs in a person's blood, breath or urine inevitably changes over time, police officers must be able to initiate the evidence collection process without unreasonable delay." 44 The court again emphasized that "all 36. Id. at 286.

37. Furcal-Peguero v. State, 255 Ga. App. 729 (2002).

38. Id. at 732.

39. Id. at 729.

40. Id. (emphasis added).

4 1. Id. 42. Id. at 731.

43. Id. at 732. ("While Georgia law requires a limited accommodation for this immutable physical disability, a hearing impaired driver does not have greater rights and privileges than a hearing driver.")

44. Id.

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drivers are entitled only to be advised of their rights under the implied consent law, that is, to have the implied consent notice read to them . . . [t]he law does not require the arresting officer

to ensure that the driver understands the implied consent notice." 45 Three months after the decisions in Furcal-Peguero and Rodriguez, the Supreme Court of Georgia again decided that "the statutes do not violate the due process or equal protection rights of a driver with a non-physical inability to comprehend English."4 6 The courts have decided similar cases regarding hearing-impaired drivers, but have allowed more flexibility in the holdings, due to a statute that provides for qualified interpreters for the hearing-impaired.4 7 B. Hearing-ImpairedDrivers Officers are required to request a qualified interpreter from the Department of Human Resources for a hearing-impaired suspect under O.C.G.A. ยง 2 4 -9-103.4 The statute also requires that the qualified interpreter be present at any investigative procedure, and if he or she is not present, any evidence gathered from the hearing-impaired defendant is not admissible. 49 However, if a qualified interpreter is not available within an hour, the investigation may proceed, provided everything is preserved ind writing. 50 Although there is a statute that provides for interpretation for hearing-impaired drivers, the Court of Appeals of Georgia has recognized that it will not require officers to take extraordinary steps when dealing with hearing-impaired drivers. 1 In State v.

Webb,52 the court set forth a standard for the hearing-impaired 45. Id. at 732-33.

46. Lucas v. State, 275 Ga. 508 (2002).

47. See State v. Webb, 212 Ga. App. 872 (1994); State v. Woody, 215 Ga. App. 448 (1994).

48. O.C.G.A. ยง 24-9-103(b)(1) (West 2012).

49. Id. 50. O.C.G.A. ยง 24-9-103(b)(2) (West 2012). The hour time frame does appear to balance the hearing-impaired suspect's interests with the State's interests, but this requirement will be replaced by a more flexible standard in 2013 by O.C.G.A. ยง 24-6-653.

51. Webb, 212 Ga. App. at 874.

52. Id.

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driver similar to the standard set forth by the court in State v.

Tosar53 for non-English-speaking drivers. The court held that it is not necessary that the driver understand the warning being given, but only that the warning was given.5 4 The court then found that because the officer conveyed the implied consent notice to the hearing-impaired defendant, even though not through a qualified interpreter, the evidence of defendant's intoxication was still admissible. 5 Noting that "[t]he legislature did not intend to contravene the laws relating to DUI by imposing impossible or impractical conditions on law enforcement agencies when arresting hearing-impaired persons for driving under the influence[,]" 56 the court pointed out that this standard did not give hearing-impaired drivers any greater rights and privileges than non-hearing impaired drivers. The court also noted that the provision in O.C.G.A. ยง 24-9-103(b)(1) that states a qualified interpreter shall be provided is not absolute. 8 This is so because subsection (b)(2) provides that if after an hour a qualified interpreter is not available, then interrogation may begin so long as it is in writing and is preserved. 59 "That the officer conveys to the driver his rights to an additional test is the most the law now requires before depriving the State of its right to introduce the test evidence at trial. "160 The same year, the court in State v. Woody 6 1 agreed that the provision was not absolute but declined to follow exactly the holding in Webb and held instead that a qualified interpreter must at least be requested.6 2 The court deemed the blood test in Woody to be inadmissible because the officer never requested a qualified interpreter; instead the officer relied on the defendant's mother, who was not a qualified interpreter, to

53. State v. Tosar, 180 Ga. App. 885 (1987).

54. Id.

55. Webb, 212 Ga. App. at 874.

56. Id. 57. Id. 58. Id 59. Id.

60. Id. 61. State v. Woody, 215 Ga. App. 448,448 (1994).

62. Id. at 450.

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translate.63 The court stated that had the officer followed the procedure set forth in O.C.G.A. ยง 24-9-103 for requesting a qualified interpreter, the results would have been admissible. 64 This decision made it clear that the interpreter must be a qualified interpreter and not merely a family member or others who could communicate via sign language with the hearingimpaired suspect. While the courts are willing to grant hearingimpaired drivers a qualified interpreter, the most that is still required is that the implied consent notice be conveyed, not that it is understood. From these decisions it is not clear why there is a statutory requirement that a qualified interpreter must be requested for a hearing-impaired suspect but not a non-Englishspeaking suspect, but the Supreme Court of Georgia made that point clear in Rodriguez.

III.

CONSTITUTIONAL ANALYSIS

A. Issues Raised in Rodriguez 1. Due Process The non-English-speaking defendant in Rodriguez argued that "due process requires that a driver be read his implied consent notice in his native language so that he is meaningfully advised of the rights and can exercise those rights in a meaningful fashion." 65 This argument was flatly rejected by the Supreme Court of Georgia without much reasoning; the only statement given by the Court was that "[i]mplied consent warnings, however, are a matter of legislative grace, and due process does not require that the warnings be given in a language that the driver understands." 66 With that one sentence, the Court rejected the idea of interpreting the implied consent notice on the basis of a due process violation.

2. Equal Protection In the absence of any requirement that the implied consent notice be interpreted for non-English speakers, the defendant in Rodriguez unsuccessfully argued an equal protection 63. Id. 64. Id. at 449.

65. Rodriguez v. State, 275 Ga. 283, 284 (2002).

66.Id. at 287.

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violation.6 7 a. Hearing-ImpairedDrivers versus Non-English-Speaking Drivers The non-English-speaking defendant in Rodriguez argued that O.C.G.A. ยง 24-9-103, which requires officers to request a qualified interpreter for hearing-impaired suspects, violated equal protection because there was not a similar requirement for non-English-speaking drivers.68 The defendant argued that "non-English speaking criminal defendants are similarly situated to hearing impaired defendants in that they cannot readily understand or communicate in the spoken language." 69 The State countered defendant's argument by reasoning that "it is the physical disability of a hearing impaired person that prohibits the person from understanding oral communications when spoken in normal conversational tone" and the defendant had no similar physical disability. 70 Therefore, the defendant was not similarly situated.

The State's argument was adopted by the Supreme Court of Georgia in its holding that the groups are not similarly situated.

The Court reasoned that "because hearing impaired persons physically cannot learn to understand an implied consent warning read to them in English, [but] non-English-speaking persons . . . [who] have no hearing disability . . . have the

potential to understand such a warning[,]" there is no equal protection violation, and thus no requirement that the notice be interpreted. 71 b.

English-SpeakingDrivers versus Non-English-Speaking Drivers The non-English-speaking defendant in Rodriguez also argued there was an equal protection violation because reading the implied consent notice only in English created two classes,

67. Id. at 284.

68. Id. at 283.

69. Brief of Appellant at 6, Rodriguez v. State, 275 Ga. 283 (2002), 2001 WL 34642350 at *6.

70. Brief of Appellee at page 7-8, Rodriguez v. State, 275 Ga. 283 (2002), 2002 WL 32333639 at *7-8.

71. Rodriguez, 275 Ga. at 285.

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English speakers and non-English speakers.72 The defendant argued that "the statutes treat non-English-speaking drivers differently than English-speaking drivers in that non-Englishspeaking drivers will not understand their implied consent rights."

The Court found defendant's classification problematic because the "language of the relevant statutes does not require that the implied consent rights be read only in Tosar's earlier holding was then used by the Court English. for support: the statute "only require[s] that the implied consent rights be read to defendants" not that they understand them, and this did not create a classification on its face between English speakers and non-English speakers.7 5 In the absence of an actual classification, the Court engaged in a hypothetical analysis of whether there would be a constitutional violation if the statute created two groups.76 The rational relationship standard was used by the Court because it rejected the defendant's argument that "a language classification by itself, particularly a broad English-speaking versus non-English-speaking one, generally is not equated with national origin or other suspect classification[s]. . ."77 Under

the rational relationship standard, the Court deemed the classification between English speakers and non-English speakers would still be constitutional because of the "considerations" it then listed.7 8 First, reading all drivers their implied consent rights in English will advise most people of their implied consent rights. Second, requiring that officers advise drivers of the implied consent rights in their native language would impose severe administrative costs in that officers would have to be equipped to issue warnings in any and every language spoken by drivers in this State or would have to have access to an interpreter to issue the warnings. The logistics of such a requirement would be extremely problematic in a society as pluralistic and diverse as the United States. Third, the 72. Id. 73. Id. at 285.

74. Id. at 285-86.

75. Id. at 286.

76. Id. 77. Id. at 287.

78. Id.

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requirement urged by [the defendant] that an interpreter be made available to read a non-English-speaking driver his rights could lead to delay in obtaining the driver's bloodalcohol level, which dissipates over time, and thus would interfere with one of the purposes behind the implied consent law.7 9 It appears that, at least in the Court's opinion, these policy considerations outweigh the need to cater to individuals who are in this State with an awareness that English is the predominate language, and the courts should not be burdened by that individual's choice to remain ignorant of the language in which the implied consent warning is given. "[T]he court sent a clear message to non-English-speaking defendants charged with DUI-either learn to understand the implied consent warning when given in English or risk the evidentiary consequences that might result from the failure to understand such warning."80 B. Why The Issues Raisedin Rodriguez Do Not Violate the Constitution Despite the defendant's arguments in Rodriguez and the apparent discrepancy in the interpretation of the implied consent notice, the Court declined to hold there were any constitutional violations.8 ' The Court explained more thoroughly why there was no equal protection violation by analyzing the dissimilarities between non-English speakers and both hearingimpaired drivers and English-speaking drivers.82 But the Court did not fully explain why there was no due process violation, other than it was "a matter of legislative grace."83 There is an overlap of the two constitutional claims because non-English speakers are going through the process of a DUI arrest differently based on the group to which they belong. Even with these differences, the discussion below identifies further support, beyond that of the Court's statement and reasoning, for why there are no constitutional violations.

79. id.

80. Adam Ferrell, Rodriguez v. State: Addressing Georgia's Implied Consent Requirements for Non-English-Speaking Drivers, 54 MERCER L. REv. 1253, 1269 (2003) [hereinafter Ferrell].

81. Rodriguez, 275 Ga. at 287.

82. Id. 83. Id.

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1. The State's CountervailingPolicies a. ObtainEvidence Without Delay Obtaining evidence without delay is a concern of the courts when deciding whether to interpret for non-English-speaking drivers. The Court of Appeals of Georgia stated that "the level of alcohol or drugs in a person's blood, breath, or urine inevitably changes over time, [so] police officers must be able to initiate the evidence collection process without unreasonable delay." 84 "The police investigator is often faced with the problem of preserving evidence of a crime which he believes If an upon reasonable grounds to have been committed."8 interpreter were required for a non-English-speaking suspect before police could read the implied consent notice, then there would be a delay in obtaining valuable evidence.

How does this comport with the statutory one-hour wait requirement for hearing-impaired drivers before an investigation can occur?86 Does this mean that an officer must wait an hour before giving the implied consent notice to a hearing impaired person if a qualified interpreter is not immediately available? It appears so: "[w]hat the law requires is that the notice be conveyed and, in the case of the hearing impaired, that it be conveyed by a 'qualified interpreter,' or, if in certain circumstances an interpreter is not available, in writing."87 O.C.G.A. ยง 24-9-103 mandates a delay to provide interpretation to hearing-impaired drivers, and because of this delay there is also a delay in obtaining critical and valuable evidence. If the State can wait for a qualified interpreter for a hearing-impaired driver, then it should also be able to wait for a qualified interpreter for a non-English-speaking driver. The fact that hearing-impaired drivers are physically incapable of learning English should not be the sole basis on which this distinction is based. But based on the Supreme Court of Georgia's holding in Rodriguez, the physical inability is sufficient to draw the distinction and provide a qualified interpreter for hearing-impaired drivers, but not non-English-

84.

85.

86.

87.

Furcal-Peguero v. State, 255 Ga. App. 729, 732 (2002).

State v. Tosar, 180 Ga. App. 885, 887 (1986).

O.C.G.A. ยง 24-9-103(b)(1), (2) (West 2012).

Yates v. State, 248 Ga. App. 35, 37 (2001).

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speaking drivers. b. Burdens on Officers to Interpret In addition to the delay in obtaining evidence, the courts have noted the burdens on officers if interpretation were required.8 9 The defendant in Tosar suggested the court should "compel the State to print the implied consent rights in Spanish, or in as many different languages as the Georgia driver's license examination is given."90 The court rejected this idea: To do so, we believe, would unreasonably burden law enforcement officers who would then be required to determine if the non-English-speaking person spoke one of the languages of the pre-selected printed forms as well as determining if that person could also read his spoken language. This we will not do.91 Despite the majority's recognition of these burdens in Rodriguez, 92 Justice Hunstein suggested that the Legislature should "consider requiring law enforcement agencies to provide written foreign-language versions of the implied consent rights and, perhaps, a phonetic representation of those foreignlanguage versions . .. ."93 Her suggestion was made "[i]n light

of the growing international diversity of drivers in Georgia,"94 even though the Court of Appeals rejected the same idea in 1986.95 But as the law stands now, there is no requirement that either of these methods of interpretation be used. The Supreme Court of Georgia pointed out that because the statute did not specify a particular language in which the implied consent notice must be read, individual officers could read the rights in other languages if they so chose. 96 But if individual officers communicated in 88. Rodriguez, 275 Ga. at 285.

89. Id. at 287.

90. Tosar, 180 Ga. App. at 887.

91. Id. 92. Rodriguez, 275 Ga. at 287.

93. Id. 94. Id. 95. Yates v. State, 248 Ga. App. 35, 37 (2001).

96. Rodriguez, 275 Ga. at 286 ("[A] police department could require its officers to read the rights in other languages or an individual officer could do so on his own.").

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whichever language they chose when they encountered a nonEnglish-speaking driver, without more specific guidelines inconsistent results would occur when cases came to court, creating more of a problem than a solution.

While pre-printed language cards seem like a reasonable alternative, it is not feasible to require officers to know enough of each of the eleven languages in which the driver's license examination is given to make the determination of what language a suspect speaks. This would cause more of a delay in obtaining evidence against the suspect, a delay which the courts have already spoken out against. 97 Another option that has been raised by a non-Englishspeaking9 defendant is the use of telephonic translation services.98 While these services are readily available, the State would be burdened with the cost associated with obtaining the service. This creates another burden on the State, as well as the officer who must use more time to go through the steps to obtain an interpreter; 99 more time that creates a delay in 97. Id. at 287.

98. Furcal-Peguero v. State, 255 Ga. App. 729, 729 (2002); E-mail from William C. Head, defense counsel in Furcal-Peguero, to Ashton Sappington, author (Sept. 15, 2011, 6:24 PM) (on file with author).

99. Fulton County Sheriffs Office, Written Directive, Jan. 1, 2008; Fulton County Jail Personnel procedure a. Procedure for AT&T Language Line (telephonic interpretation service provider) i.

Use conference hold to place the nonEnglish speaker on hold.

Dial 1-800-874-9426 for routine calls, ii.

OR Dial 1-800-523-1786 for Emergency iii. calls iv.

Give information 1. Language needed 2. Client ID Number - (from unit 1200 or Central Control) 3. Organization name - Fulton County, GA 4. Personal Code - Sheriff+(your DID) Add non-English speaker to the line. v. vi.

Wait for the answer point to conference in the Interpreter.

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obtaining evidence. Even though the courts have acknowledged other options, the burden imposed on the State still outweighs the benefit to a non-English speaker, at least in the opinion of Georgia courts.

2. Non-English Speakers' Concerns In spite of the burdens associated with interpreting the implied consent notice, "it is clear that [the implied consent notice provides] a defendant with substantial rights. The failure of a defendant to understand those rights can result in serious consequences in his ability to present a strong defense to [DUI]."'oo

Even though these rights appear to be substantial,

and non-English speakers are rightfully concerned when they cannot understand what is said to them, there is no violation of these rights when the implied consent notice is not interpreted. a. Suspect's Rights Under Implied Consent i. Refusal The first right comes from O.C.G.A. ยง 40-5-67.1(d), which grants the defendant the right to refuse testing and to withdraw his implied consent. However, a defendant's refusal to submit to a stateadministered chemical test is admissible against him at trial.

The implied consent warning that officers must read to a defendant charged with DUI informs the defendant that if he refuses to submit to the state-administered test, evidence of his refusal may be used against him at trial. Therefore, it is quite possible that a non-English-speaking defendant who does not understand the implied consent warning will refuse testing and have to suffer the evidentiary consequences of his refusal at trial."o1 If a non-English speaker does not understand that he has the choice either to refuse the State's test or submit to it, then he is vii. viii.

Brief the Interpreter. Summarize what you wish to accomplish and give any special instructions.

Say "End of call." to the interpreter when the call is completed.

100. Ferrell, supra note 80, at 1267.

101. Id.

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not able to make an informed decision about the consequences in the same manner that an English-speaking driver or hearingimpaired driver would. But because taking the types of chemical samples requested by implied consent is not so offensive to rise to the level of a violation, the Supreme Court of Georgia has found "no violation of due process. . . ."102 The Court of Appeals of Georgia has also found no violation of due process: [N]either due process nor the Georgia privilege against selfincrimination codified at O.C.G.A. ยง 24-9-20(a) is implicated by the choice granted by the Georgia Implied Consent Statute whether to submit to a chemical test of bodily substances such as blood, breath, or urine. The distinction lies between performing incriminating acts, such as field sobriety tests, and submitting to breath, blood or urine tests. The State cannot force a defendant to act, but nevertheless can, under proper circumstances, produce evidence from his body.103 Georgia's view on taking a blood samlel 04 is consistent with the United States Supreme Court's view. 05 The Supreme Court 102. Allen v. State, 254 Ga. 433, 434 n.1 (1985) ("neither [taking a blood sample from a defendant without his consent nor refus[ing] to take the bloodalcohol test] is so painful, dangerous, or severe, or so violative of religious beliefs that no choice actually exists.").

103. State v. Coe, 243 Ga. App. 232, 234 (2000).

104. Allen, 254 Ga. at 434 ("In Georgia, the state may constitutionally take a blood sample from a defendant without his consent." (citing Strong v.

State, 231 Ga. 514, 518 (1973) ("The removal of a substance from the body through a minor intrusion does not cause the person to be a witness against himself within the meaning of Fifth Amendment protection and similar provisions of Georgia law"))).

105. Rochin v. California, 342 U.S. 165, 172-73 (1952) (Having the defendant's stomach pumped "shock[ed] the conscious" and did not comport with "the community's sense of fair play and decency."); Breithaupt v.

Abram, 352 U.S. 432, 435 (1957) (There was nothing 'brutal' or 'offensive' "in the taking of a sample of blood when done, as in this case, under the protective eye of a physician."); Schmerber v. California, 384 U.S. 757 (1966) (Defendant's blood results were admissible despite his refusal because there was no due process violation; drawing blood was nontestimonial thus no self-incrimination; and it was not an unreasonable search or seizure because a DUI investigation is already supported by probable cause and where a "clear indication that in fact such evidence will be found" taking of blood is acceptable.).

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of Georgia has also stated that "compelling a defendant to submit to breath testing" is not "unconstitutional under Georgia law" 106 where there is probable cause.

But where probable cause is lacking, the Supreme Court of ยง 40-5-55 Georgia has held part of O.C.G.A. 10 7 The Court held there was an unreasonable unconstitutional. search and seizure where no probable cause existed because the statute deemed the driver to have consented solely by virtue of being in an accident resulting in "serious injuries" without any other indication of intoxication. os With the one exception, the Court has decided that intrusions into a person's body are constitutional, regardless of the language they speak. ii. Independent Test

The second right defendants have under the statute is "the right to request an additional chemical test following arrest for DUI."l09 [A] non-English-speaking defendant who cannot understand the implied consent warning read by an officer will not be aware of his right to request an additional chemical test. As a result, it is highly unlikely that a non-English-speaking defendant will request an additional test to challenge the results of the state-administered test. This is another decision that can have substantial evidentiary consequences for a defendant charged with driving under the influence.'o Without an independent chemical test, a defendant will have difficulty challenging the State's test at trial. There is another way to potentially avoid the State's test being admitted into evidence, but it would require the non-English speaker to understand what has been communicated in the implied consent notice. "The failure to so advise the suspect of his right to an additional test invalidates the result of any test so given and precludes its admissibility in evidence.""' If the non-English speaker is unable to identify whether he has been advised of this 106. Klink v. State, 272 Ga. 605, 606 (2000).

107. Cooper v. State, 277 Ga. 282 (2003).

108. Id. at 285 (emphasis added).

109. Id. 110. Id. at 1268.

111. State v. Tosar, 180 Ga. App. 885, 887 (1986).

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right to an additional test, then he may not be able to block the State's test.

But the Court of Appeals of Georgia has held that a nonEnglish speaker's inability to understand what has been communicated to him does not affect the admissibility of the evidence: Where the law enforcement officer cannot communicate with the suspect because the suspect cannot speak English, any failure to obtain an additional test is justifiable and the results of the state-administered test are admissible. This is so because of the exigent circumstances surrounding the chemical test for the alcohol or drug content in the blood of one suspected of driving under the influence.1 12 The court's holding favors the State at the expense of the non-English speaker, but because of exigent circumstances there is no violation of the right to an independent test. b. Consequence A consequence of either refusing to take the State's test, or taking it and the results being above .08 grams, is the This could pose suspension of driving privileges.113 transportation problems as well as loss of employment.114 But if a non-English speaker does not understand this consequence, it is not that much of a loss because: [in Georgia, a driver's license is not an absolute right but rather is a privilege that may be revoked for cause. "[T]he right to continue the operation and to keep the license to drive is dependent upon the manner in which the licensee exercises this right. The right is not absolute, but is a privilege.... [W]hile it cannot be revoked without reason, it can be constitutionally revoked or suspended for any cause having to do with public safety.""s Id. 113. O.C.G.A. ยง 40-5-67.1 (West 2012).

114. Ferrell, supra note 80, at 1267. ("The suspension of driving privileges can pose transportation problems for defendants charged with DUL. Furthermore, for defendants who possess commercial drivers licenses and earn a living driving commercial vehicles, the suspension of driving privileges can result in loss of employment and income.").

115. Nolen v. State, 218 Ga. App. 819, 822 (1995) (citing Nelson v. State, 87 Ga. App. 644, 648 (1953)).

112.

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Because there is no right connected with driving, and because it is only a privilege, the State can impose limitations on the privilege as it chooses, so long as those limitations are rationally related to a proper legislative purpose. 1 6 And because the State has identified persons under the influence as an "immediate threat to the welfare and safety of the general public," 11 7 there is a proper legislative purpose for regulating the privilege of driving, regardless of whether a non-English speaker understands this consequence.

IV. PROPOSAL

While Georgia courts have declined to find a constitutional problem with not interpreting the implied consent notice (despite the concerns of the non-English speaker), there is a practical problem due to the rise in immigration, which inevitably increases the language barrier. Because there is a practical problem regarding the implied consent notice, as a matter of policy the Department of Driver Services should add a language code to all driver's licenses to assist law enforcement officers in following the standards-standards the Legislature should adopt to deal with the language barrier issue.

A. Driver'sLicense Language Code To assist the officers in the field in identifying what language a suspect speaks, the Department of Driver Services ("DDS") should include a language code' 18 on each driver's license indicating the driver's primary language. This code should be a three or four letter code of the language. For example, English would be indicated by ENG, or Spanish would be SPN. Including this code on each driver's license would not impose 116. Quiller v. Bowman, 262 Ga. 769, 770 (1993).

The license grants persons the privilege to operate a vehicle on the public highways. Since the right to drive is not a fundamental right, the rational basis test applies. Under this analysis, if the laws passed are seen to have a reasonable relation to a proper legislative purpose, and are neither arbitrary nor discriminatory, the requirements of due process are satisfied.

117. O.C.G.A.ยง 40-5-55(a) (West 2012).

118. A special thank you to Matthew Nestrud, who suggested the language code.

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any burden on the DDS because it would be similar to indicating whether the driver was an organ donor, or what class license the driver held. When the person applies for a driver's license for the first time, the question of her primary language will be asked and put onto her driver's license. For drivers who already possess a license without a language code, the DDS should begin putting the language code on the newly renewed license.

Including a language code will not be a burden on the State.

To the contrary, it will be a significant benefit to the State, the officers, and non-English speakers facing the implied consent notice. The language code will allow officers to quickly identify what language the suspect speaks, and if the suspect does not speak a language that the officer speaks, the officer will have immediate notice and can act accordingly. In the situation of a non-English-speaking DUI suspect, this will minimize any delay about which the courts have been concerned regarding obtaining evidence. It will also protect the non-English speaker because the officer will be able to convey to the suspect the implied consent notice in his or her primary language in accordance with the new standards proposed below, which will afford non-English speakers the same opportunities under the implied consent notice as an English speaker or hearing-impaired person.

B. Good Faith Standard Once the officers are able to identify the suspect's primary language from the language code on the driver's license, they must act in accordance with the standards established by the Georgia Legislature. Justice Hunstein proposed one solution to the language barrier issue in her concurrence in Rodriguez: I write specially to urge the Legislature to consider requiring law enforcement agencies to provide their officers with written foreign-language versions of the implied consent rights and, perhaps, a phonetic representation of those foreign-language versions, so officers can make a good faith attempt to inform non-English-speaking drivers of these important rights.' 19 The Court of Appeals rejected the suggestion to provide 119. Rodriguez v. State, 275 Ga. 283, 287 (2002).

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officers with preprinted cards in different languages in Tosar about 20 years earlier because of the burden it would place on law enforcement officers to learn many languages. 120 Justice Hunstein did not address this burden in her concurrence, but it was negatively addressed in the majority opinion. 12 1'Te rejection of the preprinted language cards was rightfully rejected by the Court. of Appeals because it would impose burdens that would outweigh any benefit.

A better solution, especially in conjunction with the driver's license lanquage code, and which Justice Hunstein also suggested,' 2 is for officers to be equipped with a phonetic version of the notice in as many languages as the Legislature deems necessary. The device would include a recording of the implied consent notice on an audio device that the officer plays for the suspect after identifying the non-English speaker's primary language from the language code.

1. ObtainingEvidence Without Delay Officers will be trained on how to identify the suspect's primary language from the driver's license language code, and will also be trained on how to use the phonetic version of the implied consent notice. With adequate training officers will be able to convey quickly the implied consent notice to the non120. State v. Tosar, 180 Ga. App. 885, 887 (1986).

Through our holding we decline appellee's suggestion that we compel the State to print the implied consent rights in Spanish, or in as many different languages as the Georgia driver's license examination is given. To do so, we believe, would unreasonably burden law enforcement officers who would then be required to determine if the non-English-speaking person spoke one of the languages of the pre-selected printed forms as well as determining if that person could also read his spoken language. This we will not do.

121. Rodriguez, 275 Ga. at 287.

[R]equring that officers advise drivers of the implied consent rights in their native language would impose severe administrative costs in that officers would have to be equipped to issue warnings in any and every language spoken by drivers in this State or would have to have access to an interpreter to issue the warnings. The logistics of such a requirement would be extremely problematic in a society as pluralistic and diverse as the United States.

122. Id.

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English speaker. Use of the language code and the phonetic device would cause no more of a delay than the procedure currently in place for the officer to read the implied consent notice to an English speaker from a printed card. This alternative method of conveying the implied consent to a nonEnglish speaker is not likely to cause such great delay that all evidence of guilt is lost.

The situation could arise where an officer encounters a nonEnglish speaker whom, for whatever reason, does not have a license that tells the officer what the suspect's primary language is. For these situations, the officer should be required to abide by the reasonableness standard that was created by the Supreme Court of Wisconsin in State v. Piddington.123 There, the Wisconsin Supreme Court held that Wisconsin's implied consent statute "require[d] the arresting officer under the circumstances facing him or her at the time of the arrest, to utilize those methods which are reasonable, and would reasonably convey the implied consent warnings."l 2 4 To determine "whether the arresting officer ha[d] used reasonable methods which would reasonably convey the necessary information in light of the pertinent circumstances, the focus rests upon the conduct of the officer."l 2 5 Placing an objective focus on the officer is consistent with what Georgia courts have previously decided. Georgia courts have held that it is not necessary for the defendant to understand the notice, therefore it is not a subjective standard, but only that the notice be read, therefore placing the focus on the objective conduct of the officer. 126 Because Georgia courts already focus on the objective conduct of the officer, requiring the officer to use reasonable methods to convey the implied consent notice in the absence of a language code is a logical next step.

In Piddington, the trooper encountered a hearing-impaired suspect and the court held that the officer used reasonable methods.127 Even though the defendant was not a non-English speaker, the application of the rule was still valid. The trooper "used notes, gestures and some speaking to communicate with 123. See State v. Piddington, 623 N.W.2d 528 (Wis. 2001).

124. Id. at 534-35.

125. Id. at 535.

126. State v. Tosar, 180 Ga. App. 885, 886 (1986).

127. Piddington,623 N.W.2d at 535.

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[the defendant,]" 1 2 8 and also "contacted dispatch to track down a law enforcement officer who knew sign language, but was informed no one was available." 29 Further, throughout the field sobriety tests, the officer used oral and written instructions in addition to demonstrations.' 30 Once the defendant was arrested, the officer cuffed his hands in front of him instead of behind him so that the defendant could still communicate through written notes.131 The Piddington court reached its decision that officers should use reasonable methods under the circumstances because the court found "that the legislature intended that law enforcement officers inform accused drivers of the implied consent warnings . . . ."132 This standard was also limited by the court-a limitation Georgia should similarly adopt: That a law enforcement officer must use reasonable methods to convey the implied consent warnings does not mean the officer must take extraordinary, or even impracticable measures to convey the implied consent warnings.

Reasonableness under the circumstances also requires consideration of the fact that alcohol dissipates from the blood over time, particularly after the subject has stopped drinking. The State cannot be expected to wait indefinitely to obtain an interpreter and risk losing evidence of intoxication. Such would defeat, rather than advance, the intent of the implied consent law "to facilitate the gathering of evidence against drunk drivers in order to remove them from the state's highway."' 33 Georgia courts would determine what is reasonable under the circumstances of each case, and should hold that reasonable efforts were made when the officer made some attempt to convey the implied consent notice to the non-English speaker in their primary language. This could include calling for a qualified interpreter or selecting a language from the phonetic device the officer thought the suspect could speak and playing that for the suspect, but would not punish the state if the officer 128.

129.

130.

131.

Id.

Id. Id. Id. 132. Id. at 540.

133. Id. at 542 (citations omitted).

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did not take extraordinary measures as discussed in Piddington.

If the officer was bound by the reasonableness standard in Furcal-Peguero,where "a telephonic translation service was immediately available" but was not used,134 the holding would be different. If the standard in that case had been for the officer to use reasonable methods under the circumstances, the court likely would have found that the officer did not use reasonable methods because after determining that the defendant's native language was Spanish, the officer did not use the translation service, which was readily available,' 3 5 and made no effort to obtain a Spanish translation of the notice.'36 Although there may be more of a delay associated with a non-English speaker without a driver's license bearing the language code, the delay should be attributed to the non-English speaker who declined to have such a license while driving.

There, the officer should be bound by the reasonableness standard. But any detriment resulting to the non-English speaker should not be viewed by the courts as a violation of his rights because it was his decision to drive without a languagecoded license after the State instituted methods to assist him in this situation. Under either standard, both the State's and the non-English speaker's interests are protected.

2. Burdens to Interpret The burden on the law enforcement officer to interpret the implied consent notice is considerably reduced with the use of the driver's license language code that tells the officer which language to select on his phonetic device. All that will be required of the officer is a training course on how to identify the language code on the driver's license and how to operate the phonetic device. Beyond that, no more of a burden will be imposed on the officer when actually conveying the implied consent notice to the non-English-speaking suspect than he would encounter with an English speaker. This combination could also produce less of a delay than the procedure currently required for obtaining a qualified interpreter for a hearingimpaired suspect.

Furcal-Peguero v. State, 255 Ga. App. 729, 729 (2002).

E-mail from William C. Head, supra note 98.

136. Id.; Furcal-Peguero,255 Ga. App. at 729.

134.

135.

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The burden the State will be more concerned with is the cost associated with implementing the usage of phonetic devices.

Acquiring these phonetic devices could easily be worked into the budget, and it will be deemed as necessary as other devices officers regularly need on the job.

Equipping officers with phonetic versions of the implied consent notice in conjunction with the driver's license language code will allow officers to make a good faith attempt to communicate the notice, as Justice Hunstein suggested. By mandating that the officers abide by either the good faith standard or the reasonableness standard, the notice will be conveyed to the non-English speaker and the courts can still abide by its standard that the suspect-regardless of the language he speaks-does not have to understand the notice, but only that the notice be conveyed. This combination will balance the State's concerns regarding prosecution and the nonEnglish speaker's concerns regarding his rights.

C. ProposedStatute The Georgia Legislature should incorporate both the good faith standard (which utilizes the driver's license language code and a phonetic device) and the reasonableness standard (which looks to the officer's reasonable conduct in the absence of a language code) into a new statute that would tell officers what to do when conveying the implied consent notice to a nonEnglish speaker. In addition to the reasons previously given for the incorporation of these two standards, support also comes from the newly amended evidence code section regarding qualified interpreters for hearing-impaired suspects.

First, the current code section, O.C.G.A. ยง 24-9-103, provides that a qualified interpreter shall be provided when a hearingimpaired suspect is taken into "custody."l 37 Second, there is a requirement that the qualified interpreter shall be immediately requested and no investigation can take place until a qualified interpreter is provided, and also that no evidence from a hearing-impaired suspect is admissible unless it was "knowingly and voluntarily, given through and in the presence Third, if a qualified interpreter "is of a qualified interpreter."I 137. O.C.G.A. ยง 24-9-103(a) (West 2012).

138. O.C.G.A. ยง 24-9-103(b)(1) (West 2012).

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not available one hour after the hearing-impaired person has been taken into custody and a request has been forwarded to the department," interrogation or a statement may be taken, so long as it is in writing and preserved. 139 The new code section, O.C.G.A. § 24-6-653, which will take effect January 1, 2013, follows the current code section but with a few significant changes. First, the hearing-impaired suspect must be "arrested" before a qualified interpreter is provided.140 Second, the express provision that a qualified interpreter be immediately requested has been deleted, but is somewhat implied by the provision that no investigation can take place "unless a qualified interpreter has been provided or the law enforcement agency has taken such other steps as may be reasonableto accommodate such person's disability."'41 Third, the express provision that evidence is not admissible unless "knowingly and voluntarily given through and in the presence of a qualified interpreter" is replaced with the requirement that the evidence need only be given knowingly and voluntarily.143 Fourth, the one-hour wait period is deleted and now, if at any point, a qualified interpreter is not available, an interrogation or statement may be taken so long as everything is in writing and preserved.

The new code section follows a reasonableness standard for hearing-impaired suspects. 14 5 The procedural requirements that would have caused delay are deleted and replaced with alternatives that still protect hearing-impaired suspect's rights and also serve the State's interest in obtaining evidence.

Because the standard has changed for hearing-impaired suspects and hurdles are done away with that have previously caused courts trouble in deciding whether to interpret for non-English speakers, the Legislature should adopt a similar standard for non-English speakers as it has adopted for hearing-impaired suspects. A proposed statute exhibiting this standard can be found in Appendix A. 139.

140.

141.

142.

143.

144.

145.

O.C.G.A. § 24-9-103(b)(2) (West 2012).

O.C.G.A. § 24-6-653(a) (West 2012).

O.C.G.A. § 24-6-653(b)(1) (West 2012) (emphasis added).

O.C.G.A. § 24-6-103(b)(1) (West 2012).

O.C.G.A. § 24-6-653(b)(1) (West 2012).

O.C.G.A. § 24-6-653(b)(2) (West 2012).

O.C.G.A. § 24-6-653(a) (West 2012).

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V. CONCLUSION With an increase in immigration that brings with it a growing language barrier, the time has come for the Georgia Legislature to decide how to deal with the intersection of the language barrier and the implied consent notice. Even though the courts have declined to find any constitutional violations with not interpreting the implied consent notice, without a change in the statutes, non-English speakers will continue to be denied the same opportunity afforded to English speakers in the judicial system. The Department of Driver Services should first add a language code to driver's licenses that identifies the primary language spoken by the driver. This language code will assist officers in following the good faith and reasonableness standards adopted by the Legislature. With the language code and new standards working together, both the non-English speaker's interests and the State's interests will be served.

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A

ProposedStatutefor Implied Consent andNon-English Speakers (a) An arresting law enforcement agency shall make a good faith effort to convey the implied consent notice to a suspect by using the driver's license language code to identify the primary language spoken by the suspect.

Once the law enforcement officer identifies that language, the phonetic device shall be used to convey the implied consent notice. (b) If no language code is available, or if for any other reason the officer is unable to communicate with the suspect, the officer shall use reasonable methods under the circumstances to convey the implied consent notice to the suspect.

Ashton Sappington*

Juris Doctor Candidate, Atlanta's John Marshall Law School, May 2012; Bachelor of Science, Psychology, magna cum laude, Kennesaw State University, 2008. I would like to thank my Mom who has taught me to do my best and has always been proud of me. She has been my safety net for my ventures out into the world. I would also like to thank the other members of my family for their love and support. My Michael also needs special thanks for the countless conversations we had debating the finer points of the law on this topic, and for his love and guidance as someone who has traveled the road I now find myself on. *

151ST GEORGIA GENERAL ASSEMBLY 2011 LEGISLATIVE SESSION

591: LAWFUL

PRESENCE VERIFICATION; POSTSECONDARY EDUCATION; RESERVE BENEFITS

HOUSE BILL

Amending O.C.G.A. ยง 50-36-1 First Signature: Representative Tom Rice (51st) Representative Brett Harrell (106th), Co-Sponsors: Representative Len Walker (107th), Representative Earl Ehrhart (36th), Representative Timothy Bearden (68th), Representative Matt Ramsey (72nd) Summary: House Bill 59 seeks to amend Chapter 36 of Title 50 of the Official Code of Georgia Annotated, relating to verification of lawful presence within the United States. House Bill 59 would list postsecondary education as a state and local public benefit, prohibiting the admission of undocumented applicants from state postsecondary institutions, and would require verification of the eligibility for all applicants for admission to a postsecondary school through the use of the federal SAVE program.2 Status: House Withdrawn, Recommitted on April 14, 201 13 1. H.B. 59, 151st Gen. Assemb., 1st Reg. Sess. (Ga. 2011), available at http://wwwl.legis.ga.gov/legis/2011_12/pdf/hb59.pdf [hereinafter Ga. H.B. 59].

2. Id.; See Save Verification Process, U.S. CITIZENSHIP AND IMMIGRATION SERVS., http://www.uscis.gov/save (follow "SAVE Verification Process" hyperlink) (last visited May 15, 2012).

3. 2011-2012 Regular Session-HB 59, Lawful presence verification;

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TEXT OF HOUSE BILL

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59

ยง 1.

Chapter 36 of Title 50 of the Official Code of Georgia Annotated, relating to verification of lawful presence within the United States, is amended by revising Code Section 50-36-1, relating to verification requirements, as follows: "50-36-1. (a) As used in this Code section, the term: (1) 'Agency or political subdivision' means any department, agency, authority, commission, or government entity of this state or any subdivision of this state.

(2) 'Applicant' means any natural person, 18 years of age or older, who has made application for access to public benefits on behalf of an individual, business, corporation, partnership, or other private entity.

(3)(A) 'Public benefit' means a federal benefit as defined in 8 U.S.C. Section 1611, a state or local benefit as defined in 8 U.S.C. Section 1621, a benefit identified as a public benefit by the Attorney General of Georgia, or a public benefit which shall include the following: (i) Adult education; (ii) Authorization to conduct a commercial enterprise or business; (iii) Business certificate, license, or registration; (iv) Business loan; (v) Cash allowance; (vi) Disability assistance or insurance; (vii) Down payment assistance; (viii) Energy assistance; (ix) Food stamps; (x) Gaming license; (xi) Health benefits; (xii) Housing allowance, grant, guarantee, or loan; postsecondary education; reserve benefits, GA. GEN. ASSEMB., http://wwwl.legis.ga.gov/legis/2011_12/sum/hb59.htm (last visited May 15, 2012) [hereinafter H.B. 59 Status Sheet].

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(xiii) Loan guarantee; (xiv) Medicaid; (xv) Occupational license; (xvi) Postsecondary education; (xvii) Professional license; (xvii)(xviii) Registration of a regulated business; (xviii)xix) Rent assistance or subsidy; (xix)xxI State grant or loan; (**)(xxi) State identification card; (xmi)(xxii) Tax certificate required to conduct a commercial business; (xxii)(xxiii) Temporary assistance for needy families (TANF); (**iii)LxxivJ Unemployment insurance; and (xxi v) Welfare to work.

(B) Each year before August 1, the Attorney General report indicating detailed a prepare shall any additional 'public benefit' that may be administered in this state as defined in 8 U.S.C. Sections 1611 and 1621 and whether such benefit is subject to SAVE verification pursuant to this Code section. Such report shall provide the description of the benefit and shall be updated annually and distributed to the members of the General Assembly and be posted to the Attorney General's website. (b) Except as provided in subsection (d) of this Code section or where exempted by federal law, every agency or political subdivision shall verify the lawful presence in the United States of any applicant for public benefits. (c) This Code section shall be enforced without regard to race, religion, gender, ethnicity, or national origin. (d) Verification of lawful presence under this Code section shall not be required: (1) For any purpose for which lawful presence in the United States is not required by law, ordinance, or regulation; (2) For assistance for health care items and services that are necessary for the treatment of an emergency medical condition, as defined in 42 U.S.C. Section 1396b(v)(3), of the alien involved and are not related to an organ transplant

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procedure; (3) For short-term, noncash, in-kind emergency disaster relief; (4) For public health assistance for immunizations with respect to immunizable diseases and for testing and treatment of symptoms of communicable diseases whether or not such symptoms are caused by a communicable disease; (5) For programs, services, or assistance such as soup kitchens, crisis counseling and intervention, and short-term shelter specified by the United States Attorney General, in the United States Attorney General's sole and unreviewable discretion after consultation with appropriate federal agencies and departments, which: (A) Deliver in-kind services at the community level, including through public or private nonprofit agencies; (B) Do not condition the provision of assistance, the amount of assistance provided, or the cost of assistance provided on the individual recipient's income or resources; and (C) Are necessary for the protection of life or safety; or (6) For prenatal care-ef (7) For pestseconidary cducation, whcrceby the Board oe Regents of the University System of Georgia or the State

Board of Technical and Adult Education shall set

forth, or

cause to be set forth, policies regarding postsecondary benefits that comply with all federail law including but not limited to public benefits as deScribed in 8 U.S.C. Section 1611, 1621, or 1623. (d.1) All policies of agencies or political subdivisions regarding postsecondary education benefits shall comply with federal law as described in 8 U.S.C. Section 1623. (e) An agency or political subdivision providing or administering a public benefit shall require every applicant for such benefit to execute a signed and sworn affidavit verifying the applicant's lawful presence in the United States, which affidavit shall state: (1) The applicant is a United States citizen or legal permanent resident 18 years of age or older; or (2) The applicant is a qualified alien or nonimmigrant under the federal Immigration and Nationality Act, Title 8 U.S.C.,

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as amended, 18 years of age or older lawfully present in the United States and provide the applicant's alien number issued by the Department of Homeland Security or other federal immigration agency.

If an applicant for postsecondary education benefits is under 18 years of age, the applicant shall be required to execute the signed and sworn affidavit within 30 days following such applicant's eighteenth birthday to continue the enrollment process or attendance at a public postsecondary educational institution. (f) For any applicant who has executed an affidavit that he or she is an alien lawfully present in the United States, eligibility for public benefits shall be made through the Systematic Alien Verification of Entitlement (SAVE) program operated by the United States Department of Homeland Security or a successor program designated by the United States Department of Homeland Security. Until such eligibility verification is made, the affidavit may be presumed to be proof of lawful presence for the purposes of this Code section. (g) Any person who knowingly and willfully makes a false, fictitious, or fraudulent statement of representation in an affidavit executed pursuant to this Code section shall be guilty of a violation of Code Section 16-10-20. (h) Verification of citizenship through means required by federal law shall satisfy the requirements of this Code section. (i) It shall be unlawful for any agency or political subdivision to provide or administer any public benefit in violation of this Code section. On or before January 1 of each year, each agency or political subdivision which administers any public benefit shall provide an annual report to the Department of Community Affairs that identifies each public benefit, as defined in subparagraph (a)(3)(A) of this Code section, administered by the agency or political subdivision and a listing of each public benefit for which SAVE authorization for verification has not been received. (j) Any and all errors and significant delays by SAVE shall be reported to the United States Department of Homeland Security. (k) Notwithstanding subsection (g) of this Code section, any applicant for public benefits shall not be guilty of any crime

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for executing an affidavit attesting to lawful presence in the United States that contains a false statement if said affidavit is not required by this Code section.

(1) In the event a legal action is filed against any agency or political subdivision alleging improper denial of a public benefit arising out of an effort to comply with this Code section, the Attorney General shall be served with a copy of the proceeding and shall be entitled to be heard. (m) Compliance with this Code section by an agency or political subdivision shall include taking all reasonable, necessary steps required by a federal agency to receive authorization to utilize the SAVE program or any successor program designated by the United States Department of Homeland Security or other federal agency, including providing copies of statutory authorization for the agency or political subdivision to provide public benefits and other affidavits, letters of memorandum of understanding, or other required documents or information needed to receive authority to utilize the SAVE program or any successor program for each public benefit provided by such agency or political subdivision. An agency or political subdivision that takes all reasonable, necessary steps and submits all requested documents and information as required in this subsection but either has not been given access to use such programs by such federal agencies or has not completed the process of obtaining access to use such programs shall not liable for failing to use the SAVE program or any such successor program to verify eligibility for public benefits. (n) In the case of noncompliance with the provisions of this Code section by an agency or political subdivision, the appropriations committee of each house of the General Assembly may consider such noncompliance in setting the budget and appropriations. (o) No employer, agency, or political subdivision shall be subject to lawsuit or liability arising from any act to comply with the requirements of this chapter."

ยง2.

All laws and parts of laws in conflict with this Act are repealed.

House Bill 59

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SPONSOR's RATIONALE

Representative Tom Rice, of the 51st district, introduced House Bill 59 to ensure that Georgia's postsecondary education establishments are in compliance with current law, to preserve public benefits for the citizens of Georgia, and to improve the likelihood that the investment made into public post-secondary education by Georgia's taxpayers results in a benefit to those citizens.4 The Bill is a continuation in a line of bills, including Senate Bill 529,5 that have attempted to ensure that postsecondary public education is defined as a "public benefit" in the Georgia Code.6 Under this definition, postsecondary education is only available to legal Georgia residents.' To achieve this, House Bill 59 amends Georgia Code Chapter 36 of Title 50 by adding "postsecondary education" to the list of public benefits that require verification of lawful presence.

The Bill also provides that verification of lawful residence be completed by using the Systematic Alien Verification of Entitlement ("SAVE") program. 9 Representative Rice asserts that House Bill 59 will ensure that the Georgia postsecondary education system is in compliance with current Georgia law. 10 When the Georgia General Assembly passed Senate Bill 529 in 2006," the chief sponsor of that Bill, Senator Chip Rogers of the 21st district, intended that postsecondary education be defined as one of the state public benefits requiring verification of lawful presence.12 4. Telephone Interview with Rep. Tom Rice, H. Dist. 51 (Feb. 9, 2012)

[hereinafter Rice Interview].

5. S.B. 529, 148th Gen. Assemb., 1st Reg. Sess. (Ga. 2006) (as passed), http://wwwl.legis.ga.gov/legis/2005_06/pdf/sb529.pdf at available [hereinafter S.B. 529].

6. Rice Interview, supra note 4.

7. Id. 8. Telephone Interview with Rep. Brett Harrell, H. Dist. 106 (Feb. 7, 2012) [hereinafter Harrell Interview].

9. Id. 10. Rice Interview, supra note 4.

11. See S.B. 529, supra note 5.

12. Video Recording of Ga. H. High. Edu. Comm. Meeting, Jan. 31, 2012, at available http://www.livestream.com/gahln406/video?clipld-pla_3f3263f6-a6c3-4c33-

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Since the passage of Senate Bill 529, however, the Board of Regents of the University System of Georgia has not been enforcing this provision as intended.13 The failure of the Board of Regents to enforce this policy was exemplified by the Jessica Colotl controversy.14 In 2010, Jessica Colotl, an undocumented student, was paying instate tuition rates while attending Kennesaw State University.1 5 This controversy precipitated the need for new legislation because postsecondary educational institutions were failing to verify lawful presence prior to admission to Georgia's public colleges and universities. 6 Sponsors of House Bill 59 also maintain that this Bill is valid under the Georgia Constitution.17 Article I, Section I, Paragraph VII of the Georgia Constitution declares that it is the duty of the Georgia General Assembly to enact laws that will protect the citizens of the State of Georgia in the full enjoyment of the rights, privileges, and immunities entitled to them through their Georgia citizenship.

Furthermore, Article VIII, Section I, Paragraph I of the Georgia Constitution establishes the principle that an adequate public education for Georgia citizens should be a primary obligation of the State of Georgia. 19 Article VIII states that taxation should provide for free public education prior to postsecondary schooling and the expense of other public education should be provided for in a manner and amount as provided by law.20 The sponsors of House Bill 59 understand these passages of the Georgia Constitution to preserve privileges for Georgia citizens ony, and that postsecondary education is one of these privileges.

8459-068a21e770bb (last visited May 15, 2012) [hereinafter HB 59 House Video].

13. Rice Interview, supra note 4.

14. Id. 15. Laura Diamond, Bill to Bar Illegal Immigrants in Public Colleges Clears Panel, ATLANTA J.-CONST., Feb. 15, 2012, http://www.ajc.com/news/georgia-politics-elections/bill-to-bar-illegal839985.html.

16. Harrell Interview, supranote 8.

17. Id. 18. Id. 19. Id. 20. Id. 2 1. Id.

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Sponsors of House Bill 59 believe that the Bill is necessary to ensure that Georgia's public benefits, specifically public postsecondary education, are preserved only for Georgia citizens.22 One of the Bill sponsors' primary concerns is that undocumented students are taking the spots of academically qualified Georgia citizens in postsecondary institutions.

Because House Bill 59 defines postsecondary education as a public benefit within the Georgia Code, the Bill prevents undocumented students from taking admission spots that should be enjoyed by Georgia citizens and legal residents. 24 In addition to ensuring that public benefits are only available to those eligible individuals, sponsors of House Bill 59 see the Bill as a way to improve the likelihood that Georgia taxpayers will see a return on their investment. 25 Public postsecondary education establishments are funded by tax revenue with the hope that once students graduate, they will return back into the workforce to contribute to Georgia's economy. 2 6 When undocumented students graduate from these publically funded colleges and universities however, they are unable to join the Georgia workforce because they do not have the required legal status for employment. 27 With the passage of House Bill 872 in 2011, and the required use of the E-Verify system29 by employers, it makes it difficult for undocumented students graduating from Georgia colleges and universities to return to the Georgia workforce. o If undocumented students are unable to return to the workforce, House Bill 59 sponsors argue that the

22. Rice Interview, supra note 4.

23. Id 24. Id. 25. Harrell Interview, supra note 8.

26. Id 27. Id.

28. H.B. 87, 151st Gen. Assemb., 1st Reg. Sess. (Ga. 2011) (as passed), availableat http://wwwl.1egis.ga.gov/legis/201 1_12/pdf/hb87.pdf.

29. See What is E-Verify?, U.S. CITIZENSHIP AND IMMIGRATION SERVS., http://www.uscis.gov/everify (follow "What is E-Verify?" hyperlink) (last visited May 15, 2012). "E-Verify is an Internet-based system that compares information from an employee's Form 1-9, Employment Eligibility Verification, to data from U.S. Department of Homeland Security and Social Security Administration records to confirm employment eligibility." Id. 30. Rice Interview, supra note 4.

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Georgia taxpayers have no return on their investment.31 OPPOSITION'S RATIONALE

Opponents of House Bill 59 base their rationale on federal policies which allow all students, regardless of immigration status, to attend primary public schools. 32 Professors, students, legislators, and community activists are among the groups who oppose the Bill. 33 Opponents argue that the Bill is (1) unnecessary; (2) economically shortsighted; and (3) fundamentally unjust.3 4 The Bill is Unnecessary35 Representative Scott Holcomb, of the 82nd district, describes the Bill as a "solution without a problem." 36 He cites the Board of Regents' estimate that only about one tenth of one percent of all students in Georgia's public colleges and universities are Opponents, including Representative undocumented.

Holcomb, argue that undocumented students in public colleges and universities is not a major problem because the University System of Georgia has already established rules that ensure undocumented students do not take seats at public institutions that would otherwise go to Georgians and require undocumented students to pay out-of-state tuition.3 8 Opponents of the legislation contend that undocumented students do not take away seats from Georgians. 3 9 In 2011, the 31. Id. 32. See Plyler v. Doe, 457 U.S. 202 (1982); Telephone Interview with Rep. Scott Holcomb, H. Dist. 82 (Feb. 6, 2012) [hereinafter Holcomb Interview].

33. HB 59 House Video, supranote 12.

34. HB 59 and SB 458, "Destroying the DREAMS" Bills, Are Fundamentally Unjust andEconomically Shortsighted, AM. CIVIL LIBERTIES at available GA., OF UNION (last http://www.acluga.org/HB59SB4581egislativesummarysheet-2012.pdf visited May 15, 2012) [hereinafter ACLU Bill Summary].

35. Id. 36. Holcomb Interview, supra note 32.

37. Id. 38. Id. 39. Id.

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Board of Regents imposed a rule prohibiting the admission of undocumented applicants to Georgia's most selective institutions. 40 Hank Huckaby, chancellor of the University System of Georgia argues that "no undocumented student will be taking a seat in a class away from a documented student since [Georgia's] selective institutions are not allowed to admit any undocumented students." 4 ' According to Chancellor Huckaby, the implementation of this rule has already demonstrated a reduction of undocumented students in Georgia's public universities.42 For example, in 2010, about 500 undocumented students attended public postsecondary institutions, and in 2011 that number decreased to about 300 undocumented students.# Thus, Chancellor Huckaby argues that because the current policies are working, there is no need for this new law.4 4 The Bill is Economically Shortsighte4 5 Opponents next argue that the Bill will not save the taxpayers any money because undocumented students do not use tax revenue to pay for their education.46 Undocumented students pay out-of-state tuition, which is not funded by the Georgia 47 taxpayers. As a result, undocumented students do not take any public benefit, but rather pay for all of their tuition costs from sources outside of Georgia tax revenue. 48 Because taxpayers 40. Id.; Jeanne Bonner, Chancellor Opposes Illegal Student Law, GA. PUB. BROAD. NEWS, Jan. 31, 2012, http://www.gpb.org/news/2012/01/3 1/chancellor-opposes-illegal-student-law [hereifiafter Bonner Article].

41. Id. 42. Id. 43. HB 59 House Video, supra note 12.

44. Id. 45. ACLU Bill Summary, supra note 34.

46. Holcomb Interview, supra note 32.

47. For example, tuition rates for fiscal year 2011/2012 at Kennesaw State University are $157.80 per credit hour for resident students and $557.00 per credit hour for non-resident students. Undergraduate Tuition FY 11/12, KENNESAW STATE UNIV. (Oct. 18 2011), https://financialservices.kennesaw.edu/bursar/sites/financialservices.kennesa w.edu.bursar/files/Undergraduate%20Tuition%20FY 1-12.pdf.

48. HB 59 House Video, supra note 12; Telephone Interview with Rep. Pedro Marin, H. Dist. 96 (Feb. 6, 2012) [hereinafter Marin Interview];

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are not paying for undocumented students' education, opponents argue that preventing them from attending Georgia institutions will not save taxpayers money.

Further, opponents point to Plyler v. Doe,so in which the Court held that absent a substantial state interest, students cannot be denied a primary education, regardless of immigration status.5 1 This is up to a thirteen year investment in the education of undocumented students which opponents argue would be lost if the State does not allow qualified undocumented students to enroll in public post-secondary institutions.52 Opponents argue that if undocumented applicants leave Georgia and enroll in a college or university in a state that will admit them 53 Georgians will have lost the investment into their education. 4 Opponents argue that not only will Georgia be losing the minds they have educated, but also possible tuition payments to a Georgia public postsecondary institution.5 5 Moreover, in not allowing them to attend postsecondary education, opponents argue that many students who may later be eligible to work by the passage of the DREAM Act or by Bonner Article, supra note 40.

49. Id. 50. Plyler v. Doe, 457 U.S. 202 (1982).

51. Id. 52. This is assuming that the applicant attended a Georgia public school from kindergarten through twelfth grade. Telephone Interview Maria Duarte, Ga. Ass'n of Latino Elected Officials ("GALEO") Program Coordinator for Civic Engagement (Feb. 3, 2012) [hereinafter Duarte Interview].

53. There have been several states which have proposed "tuition equity" bills which would grant the same higher education opportunities to undocumented applicants as their documented or U.S. such as Colorado's Senate Bill 15, Hawaii's House Bill 1674 and Senate Bill 2163, Florida's House Bill 81; Alvin Melathe and Suman Raghunathan, Tuition Equity Bills Continue to Build Momentum in State Legislatures, IMMIGRATION IMPACT (Feb. 10, 2012), http://immigrationimpact.com/2012/02/10/tuition-equity996 (last 1 bills-continue-to-build-momentum-in-state-legislatures/#morevisited May 15, 2012).

54. This is assuming that the applicant attended a Georgia public school from kindergarten through twelfth grade. ACLU Bill Summary, supra note 34.

55. Duarte Interview, supra note 52.

56. The Development, Relief and Education for Alien Minors ("DREAM") Act, is a

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obtaining legal status, would not be able to obtain jobs that require a postsecondary education.5 7 This would likely limit them to low-paying jobs which would not be as lucrative to the Georgia economy as if they were to get a higher-paying job that results in higher taxes.5 8 Although the Bill does not affect private higher education institutions, opponents assert that the cost of private school is not attainable for most undocumented students. 59 With the passage of this Bill, opponents argue that Georgia taxpayers will have little hope of getting a return on their investment because the State is obstructing undocumented students' opportunity to obtain legal residency and therefore obstructing their opportunity to legally obtain a job.60 Opponents also argue that bills such as House Bill 59 have already damaged Georgia's reputation, and in turn, its economy. 6 1 For example, Jerry Gonzalez, executive director of the Georgia Association of Latino Elected Officials ("GALEO"), noted that the American Education Research Association recently decided to move its 2013 conference from proposed federal legislation that provides undocumented students a path to citizenship if they: entered the United States before age 16 and have been in the U.S. at least 5 years before enactment of DREAM; complete two years of military service or college; and are not guilty of any major crime or deportation order. After meeting all these requirements, eligible students will obtain conditional residency before they can obtain a green card, a process that will take several more years.

HB 59-AALAC Supports Higher Education for all, ASIAN AM. LEGAL ADVOCACY CTR., http://aalegal.org/wp-content/uploads/2011/02/HB-59policy-highlight2.pdf (last visited May 15, 2012).

57. Duarte Interview, supra note 52.

58. Id. 59. HB 59 House Video, supra note 12. Emory University is a private school in Georgia and the cost of attendance for the 2012-2013 school year is $58,180.

Emory College: Cost of Attendance, EMORY UNIV., http://www.emory.edu/FINANCIALAID/undergraduates/emorycollege/cost-of-attendance.php (last visited May 15, 2012).

60. Duarte Interview, supra note 52.

61. Jerry Gonzalez, Georgia Senate is poised to commit an act of bullying against immigrant youth, CONSTANT CONTACT (Mar. 2, 2012), http://myemail.constantcontact.com/Jerry-Gonzalez--GALEO--OpinionEditorial---Georgia-Senate-is-poised-to-commit-an-act-of-bullying-againstimmigrant-youth.html?soid=1011289453034&aid=XCgeNIiKQO.

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Atlanta because of Georgia's new immigration law, House Bill 87.62 He stated that the conference "could have attracted 15,000 educators and could have generated $25 million directly from the convention and an additional $20-50 million from tourism." 63 Gonzalez contended that a bill like House Bill 59 would "further make Georgia an outlier" because most states are either making in-state tuition available for undocumented students or allowing them to pay out-of-state tuition. 64 The Bill is Fundamentally Unjust6 5 Opponents also argue that the Bill should not be passed as a matter of policy.66 They argue that Georgia should not unish the undocumented youth for the acts of their parents.6 The students have done "all of the right things[:]" they have done well in school, stayed out of trouble, have applied and been accepted to college. 68 Opponents contend that undocumented applicants did not choose to enter the United States without proper documentation or to overstay their visa. 69 This may have been a choice their parents made when the students were very young minors. 70 In summary, opponents argue that it would be unfair to punish undocumented applicants for acts of their parents over which they had no control.n Further, opponents argue that United States Supreme Court has deemed education important to our society evidenced by its holding in Plyler v. Doe.72 In light of this decision, the 62. Id. 63. Id. 64. Gonzalez stated that Georgia would be one of only two other states, Alabama and South Carolina, which deny any public postsecondary education to undocumented applicants. Id. The bill that Gonzalez directly references in his article is Senate Bill 458, which would have a similar effect as House Bill 59. See infra note 98.

65. ACLU Bill Summary, supra note 34.

66. Marin Interview, supra note 48; Holcomb Interview, supra note 32; ACLU Bill Summary, supra note 34.

67. Marin Interview, supra note 48.

68. Duarte Interview, supra note 52.

69. Id. 70. Id. 7 1. Id.

72. In Plyler, the United States Supreme Court held that absent a

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opposition states that postsecondary public education is vital to our society because without the prospect of a postsecondary education, students would not have the drive and commitment they currently have to excel in their K- 12 classes. 73 Moreover, opponents contend that House Bill 59 should not be passed because it, along with other bills, is solely intended to be a state law which drives undocumented immigrants away from Georgia. 74 Opponents argue that "if Georgia's elected officials really wanted to do something about immigration, they would be asking to send caravans to Washington and lobby for federal immigration reform because that is the only way this issue will be resolved." 75 Opponents assert that immigration is a federal issue that should be regulated and controlled by federal laws and regulations rather than a patchwork of laws from fifty states.7 6 IMPLICATIONS IN GEORGIA

If House Bill 59 were passed into law, public postsecondary education institutions would be required to verify the lawful presence of any applicant using the SAVE 7 7 program prior to

substantial state interest, all children, regardless of immigration status, cannot be denied an education from kindergarten through twelfth grade.

Doe, 457 U.S. 202 (1982); Holcomb Interview, supra note 32.

73. Duarte Interview, supra note 52. Even though House Bill 59 would not apply to private institutions, opponents argue that public institutions are many times the only alternative because of the high cost of private institutions. Id. Keisha Kim testified that although undocumented, her parents have paid their taxes annually. Id. However, she is required to pay out-of-state tuition. Id. Kim argued that this Bill would prohibit undocumented applicants, like her, admission to public postsecondary institutions. Id. With the price of out-of-state tuition being nearly too expensive to pay, it is unlikely that Kim would be able to afford to pay the costs of private postsecondary education. HB 59 House Video, supra note 12.

74. Duarte Interview, supra note 52.

75. Id. 76. Holcomb Interview, supra note 32.

77. See Save Verification Process, U.S. CITIZENSHIP AND IMMIGRATION SERVS., http://www.uscis.gov/save (follow "SAVE Verification Process" hyperlink) (last visited May 15, 2012).

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granting a student enrollment.7 8 Only those students who are citizens or legal aliens would be permitted to gain admission into publically funded postsecondary colleges, universities, and technical schools. 79 The Bill, however, only affects public institutions; undocumented students would still be allowed to Sponsors of House Bill 59 argue attend private universities. that Georgia citizens will benefit from the Bill because it ensures that the law is enforced and that citizens' tax dollars are being invested in postsecondary education that will benefit 81 Georgia citizens.

Because only two other states have implemented laws banning undocumented immigrants from public postsecondary institutions,82 very little data exists as to the possible social ramifications of such laws in Georgia. Opponents argue that the direct implications of the Bill include effectively banning all undocumented students from all postsecondary education because private postsecondary education is cost-prohibitive for most, if not all, undocumented students. 83 Opponents declare that "these types of anti-immigrant policies" have already been reported to affect the mental health of immigrant students and their families, and that this will only increase with the passage of the Bill. 84 They also predict that undocumented students' frustration will continue to grow and that their motivation to do well in school will greatly decrease, which may lead to some

78. Harrell Interview, supra note 8.

79. Id. 80. Rice Interview, supra note 4.

81. Harrell Interview, supra note 8.

82. Alene Russell, State Policies Regarding Undocumented College Students: A Narrative of Unresolved Issues, Ongoing Debate and Missed Opportunities,AM. Ass'N OF STATE COLLS. & UNIVs. (Mar. 2011), available at http://www.aascu.org/uploadedFiles/AASCU/Content/Home/MediaAndPubli cations/PolicyMattersMagazine/Article/2011 .marchpm.pdf.

83. Duarte interview, supra note 52.

84. Duarte further states that a few students have "attempted or committed suicide due to the fear, isolation, and desperation" they feel from their "undocumented status and his limited possibilities." E-mail from Maria Duarte, GALEO Program Coordinator for Civic Engagement, to Viridiana G. Carreon, Staff Member, John Marshall Law Journal (Mar. 2, 2012, 11:28 AM) (on file with the John Marshall Law Journal).

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students dropping out of school. With the increase in dropout rates, they predict the crime rate will also increase. 86 LEGISLATIVE GENEALOGY

The first reading of House Bill 59 took place on January 25 2011.8 The second reading took place on January 26, 2011.

House Speaker David Ralston then assigned the Bill to the House Higher Education Committee.89 A public hearing took place before the Higher Education Committee on February 15, 2011, during which the Committee received testimony both in favor and in opposition to the Bill. 90 At the end of the Committee meeting, a motion was made to pass House Bill 59, an oral vote was taken, and the motion passed.9 ' The House Higher Education Committee favorably reported on the Bill on February 16, 2011.92 House Bill 59 was then withdrawn from the 2011 House Session general calendar and recommitted to the House Higher Education Committee on April 14, 2011.9' Another public hearing was held before the House Higher Education Committee on January 31, 2012.94 At 85. Id. 86. Id.; Marin Interview, supra note 48.

87. H.B. 59 Status Sheet, supra note 3.

88. Id. 89. Id. 90. House Higher Education Committee Video Archive (Feb. 15, 2011), http://media.legis.ga.gov/hav/11_12/2011 /committees/higherEd/higherEd021 51 IEDITED.wmv.

91. Id. There was no record of how many "yays" or "nays" were cast during the oral vote at the meeting, only that "the 'yays' have it." Id. 92. H.B. 59 Status Sheet, supra note 3.

93. Id. According to Rep. Brett Harrell, If a particular matter does not make it all the way through the House to the floor, and is not passed out of the House by the end of the session, then it's called 'Withdrawn and Recommitted.' Which means the bill is still alive, but since it did not make it all the way through the House vote that first year, it is pulled back and recommitted, which means it is sent back to the committee from where it came. In the case of House Bill 59, it was sent back to the Higher Education Committee.

Harrell Interview, supra note 8.

94. Harrell Interview, supra note 8. "So now we're [sic] come into the

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the January 31, 2012 hearing, the Committee received testimony both in favor and opposed to House Bill 59.95 The Committee members took no vote on January 31, 2012.96 As of March 20, 2012, the Bill remains pending before the Higher Education Committee. 9 7 Because Crossover Day for the 2012 Legislative Session occurred on March 7, 2012, House Bill 59 has been allowed to expire for the 2012 Session in the House Higher Education Committee. 99 In a related matter, Senator Barry Loudermilk, of the 52nd district, introduced Senate Bill 4581 0 on February 16, 2012.101 Senate Bill 458 is similar to House Bill 59 in that it amends Chapter 36 of Title 50 of the Georgia Code so as to modify provisions relating to verification requirements, procedures, and conditions for applicants for public benefits. 1 02 It was read and session in January 2012, the second year of our two year session, and...the Bill remains alive to have a hearing and start that process at the Higher Ed Committee again." Id. 95. Id. 96. Id. "There was no vote taken, so at the moment it is still at Higher Ed. It could stay there, and at the end of the second year of a two-year session, all bills die. So, if it stayed there, it would die and need to be reintroduced next year." Id. 97. H.B. 59 Status Sheet, supra note 3.

98. See Jim Walls, Which Bills Survived Crossover Day in the Georgia Assembly, JUVENILE JUSTICE INFO. EXCH., (Mar. 8, 2012), http://jjie.org/which-bills-survived-crossover-day-ga-assembly/77591.

The General Assembly designates Day 30 of each year's session as "Crossover Day," the deadline by which the state House or Senate must pass a bill and send it over to the other chamber. Bills that don't make it are dead, but can be revived by tacking the language onto another measure that remains under consideration.

Id. 99. See Harrell Interview, supra note 8. "It could stay there, and at the end of the second year of a two-year session, all bills die. So, if it stayed there, it would die and need to be reintroduced next year." Id. 100. S.B. 458, 151st Gen. Assemb., 2nd Reg. Sess. (Ga. 2012), available at http://wwwl.legis.ga.gov/legis/2011_12/pdf/sb458.pdf.

101. 2011-2012 Regular Session-S.B. 458, Government; modify provisions; verification requirements, procedures, and conditions for applicants for public benefits, GA. GEN. ASSEMB., available at http://www.legis.ga.gov/legislation/en-US/Display/20112012/SB/458 (last visited May 15, 2012) [hereinafter S.B. 458 Status Sheet].

102. See id.

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assigned to the Senate Judiciary Committee on February 17, 2012.103 Senate Bill 458 was passed by the Senate Judiciary Committee on February 22, 2012, and was favorably reported by the Senate Committee on February 23, 2012.104 On March 5, 2012, the Senate passed Senate Bill 458 by a 34-19 vote and the Bill was assigned to the House Judiciary Non-Civil Committee.1os

Senate Bill 458 was favorably reported by the

House Judiciary Non-Civil Committee on March 19, 2 0 12 .106 On March 28, 2012, Senator Loudermilk struck the college ban from Senate Bill 458 because it was "stalling the bill."10 7 Senate Bill 458 retained provisions which addressed requirements to receive public benefits and which defined acceptable forms of identification.' 08 The legislative session ended on March 29, 2012, without a vote on the Senate Bill 458, thus the Bill will need to be reintroduced in order to be considered. 09

Prepared by: ViridianaG. Carreon Dave Williamson

103. Id 104. S.B. 458 Status Sheet, supra note 101; See Laura Diamond, Committee passes bill banning illegal immigrantsfrom Ga. public colleges, ATLANTA J.-CONST., Feb. 22, 2012, http://www.ajc.com/news/georgiagovernment/committee-passes-bill-banning-1359359.html.

105. S.B. 458 Status Sheet, supra note 101.

106. Id.; See also Jeremy Redmon, Bill banning illegal immigrantsfrom Ga. colleges clears House panel, ATLANTA J.-CONST., Mar. 19, 2012, http://www.ajc.com/news/georgia-politics-elections/bill-banning-illegalimmigrants-1391035.html.

107. Laura Diamond, College ban struckfrom immigration bill in House, ATLANTA J-CONST., Mar. 28, 2012, http://www.aje.com/news/georgiagovernment/college-ban-struck-from-1400645.html.

108. Id. 109. Julianne Hing, Georgia'sStatewide Undocumented Students College Ban Fails, ACLU GEORGIA (Mar. 30, 2012), http://www.acluge.org/news/2012/03/30/georgiaE2%80%99s-statewideundocumented-students-college-ban-fails/.

HOUSE BILL 721: DRIVERS' LICENSES; EXAMINATIONS ONLY IN ENGLISH LANGUAGE

Amending O.C.G.A. ยง40-5-2 7 First Signature: Representative James Mills (25th)

Co-Sponsors: Representative Timothy Bearden (68th), Representative Calvin Hill (21st), and Representative Maxwell Howard (17th) Summary: House Bill 72 seeks to amend Chapter 5 of Title 40 of the Official Code of Georgia Annotated, relating to issuance, renewal, and expiration of drivers' licenses. 2 The amendment to Code Section 2-5-40 would limit the language of the administration of the written and oral driver's license examinations to only English.3 Additionally, House Bill 72 provides an exception for persons eligible for a temporary license under Chapter 5 of Title 40, but also limits the period for which the department may issue a temporary license by examination in a language other than English.4 Status: House Tabled on February 9, 201 1s

1. H.B. 72, 15 1st Gen. Assemb., 1st Reg. Sess. (Ga. 2011), available at http://wwwl.legis.ga.gov/legis/2011_12/pdf/hb72.pdf [hereinafter Ga. H.B. 72].

2. Id. 3. Id. 4. Id. 5. 2011-2012 Regular Session-HB 59, Drivers' licenses; examinations only in English language; provide, GA. GEN. ASEMB., http://wwwl.legis.ga.gov/legis/2011_12/sum/hb72.htm (last visited May 15, 2012) [hereinafter H.B. 72 Status Sheet].

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BILL 72

ยง 1.

Article 2 of Chapter 5 of Title 40 of the Official Code of Georgia Annotated, relating to issuance, expiration, and renewal of licenses, is amended by revising Code Section 40-527, relating to examination of applicants for certain drivers' licenses, by adding a new subsection to read as follows: "(e) All written and oral examinations required pursuant to this Code section shall be administered only in the English language: provided, however, that the department may administer examinations to persons eligible for a temporary license pursuant to Code Section 40-5-21.1 in a language other than English."

ยง 2.

Said article is further amended by revising subsection (a) of Code Section 40-5-21.1, relating to temporary licenses, permits, or special identification cards, and foreign licenses or identification cards as evidence of legal presence in the United States, as follows: "(a) Notwithstanding any other provision of this title, an applicant who presents in person valid documentary evidence of: (1) Admission to the United States in a valid, unexpired nonimmigrant status; (2) A pending or approved application for asylum in the United States; (3) Admission into the United States in refugee status; (4) An approved application for temporary protected status in the United States; (5) Approved deferred action status; (6) Other federal documentation verified by the United States Department of Homeland Security to be valid documentary evidence of lawful presence in the United States under federal immigration law; or (7) Verification of lawful presence as provided by Code

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Section 40-5-21.2 may be issued a temporary license, permit, or special identification card. Such temporary license, permit, or special identification card shall be valid only during the period of time of the applicant's authorized stay in the United States or five years, whichever occurs first; provided, however, that no person shall, during his or her lifetime, be issued temporary licenses or permits by examination in any language other than English for a total combined period of more than ten years." ยง3.

All laws and parts of laws in conflict with this Act are repealed.

SPONSOR'S RATIONALE

Representative James W. Mills proposed House Bill 72 to improve highway safety.6 Representative Mills believes the Bill was necessary to ensure that Georgia's drivers sufficiently comprehend cautionary road signs and digital reader boards. 7 In 1996, Georgia designated English as its official language by statute,8 and, as Representative Mills notes, all of Georgia's road signs are presented in English.9 ProEnglish, a non-profit lobbying organization that was instrumental in the introduction of the Bill, alleges there are at 6. Phil Kent, Pro & Con: Should Georgia Driver's License Tests Be English-Only, ATLANTA J.-CONST., Feb. 16, 2011, available at [hereinafter http://www.ajc.com/opinion/pro-s-license-tests-841632.html Kent, Pro & Con]. Unfortunately, Rep. Mills declined to participate in the research conducted for this legislative summary. E-mail from James W. Mills, Board Member, Georgia State Board of Pardons and Parole, to Renatto Garcia, Staff Member, John Marshall Law Journal (Feb. 6, 2012, 7:45 PM) (on file with the John Marshall Law Journal).

7. Lawmakers: Day 12 (Georgia Public Broadcasting television broadcast Feb. 9, 2011), available at http://www.gpb.org/lawmakers/2011/day-12 (statements of Rep. James W. Mills, H. Dist. 25) [hereinafter Lawmakers Day 12, Mills]. See Kent, Pro & Con, supra note 6.

8. GA. CODE ANN. ยง 50-3-100 (West 2011).

9. Lawmakers: Day 12, Mills, supranote 7.

10. Interview with Rep. B.J. Pak, H. Dist. 102, in Atlanta, GA (Feb. 7, 2012) [hereinafter Pak Interview].

See also PROENGLISH,

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least fifty-five different types of instructional and advisory road signs." The fifty-five road signs include signs for school and construction zones, "Pedestrian Crossing", and "Single Lane 1,000 Feet." 2 The level of comprehension required to assess the potential dangers while driving goes beyond simply "know[ing] a few 'command words,' such as 'slow' or 'stop'." 3 In light of this and other considerations, supporters perceive the Bill as a "needed, common-sense [piece of] public safety legislation."1 4 Representative Mills submits that providing permanent Georgia citizens with the opportunity to take the exam in fourteen different languages poses a significant public safety concern.15 Today, Georgia's road signs are "more than just symbols," but rather digital read-out messages which inherently http://www.proenglish.org (last visited May 15, 2012). ProEnglish, the "Nation's Leading English Language Advocates[,]" has been at the forefront of several other state debates concerning English-only driver's test requirements, including Alabama, Mississippi, Missouri, North Carolina, and Tennessee. Id. 11. Kent, Pro & Con, supra note 6.

12. Id. 13. Id.

14. E-mail from Phil Kent, Chair, ProEnglish Board of Advisors, to Renatto Garcia, Staff Member, John Marshall Law Journal (Feb. 8, 2012, 10:45 AM) (on file with the John Marshall Law Journal) [hereinafter Kent Email]. See generally Wes Duplantier, Missouri House Endorses Englishonly Driver's Tests, ASSOCIATED PRESS, Feb. 21, 2012, available at http://www.kmov.com/home/Missouri-House-endorses-English-onlyMissouri's experience with a legislative drivers-tests-139789833.html. proposal similar to HB 72 parallels Georgia's, during which many of the same arguments were posed in favor of the Missouri proposal, and in addition "a fiscal estimate included with the legislation project[ed] that [Missouri] would save about $52,000 in the coming fiscal year by eliminating printed versions of [driving license exams] in 11 languages and computerized versions in seven of the languages." Id. 15. Lawmakers: Day 12, Mills, supra note 7; see also Press Release, ProEnglish, ProEnglish Testifies before Committee on Public Safety in Georgia (Feb. 2, 2011), available at http://www.proenglish.org/officialenglish/archived-action-alerts/2011/305.html [hereinafter Press Release, Pro English] ("...Georgia foolishly allows state driver's license exams to be

given in 14 different languages including Arabic, Bosnian, Cambodian, Chinese, Laotian, Spanish and Vietnamese. Not only is this a violation of Georgia's official English-in-government law, but it poses a clear safety hazard to Georgia motorists").

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necessitate a driver's grasp of the content.16 Because Georgia's road signs are not just symbols, Representative Mills stresses that individuals "who intend to make Georgia their home need to be able to answer in English the basic questions asked on this The immediacy and important [driver's license test]." 17 frequency with which driving conditions change often require a minute-by-minute update on Department of Transportation ("DOT") Traffic Boards.18 Those in favor of the Bill believe it is vital that drivers have the presence of mind to act accordingly when DOT Traffic Boards relay a change in road situations.

Supporters believe Georgia drivers who lack the knowledge to both recognize and process signs such as "Bridge Out Ahead" and "School Speed Limit Reduced to 25mph[,]" create an unnecessary risk to the welfare of all motorists and

pedestrians. 20 While conceding that there are no available statistics definitively linking limited English proficiency to motor vehicle accidents,zI Representative Mills suggests that there is sufficient evidence to infer a parallel. 22 Data compiled under a 287(g) program23 out of Gwinnet County, shows that immigrants in 16. Lawmakers: Day 12, Mills, supra note 7.

17. Kent, Pro & Con, supra note 6.

18. Lawmakers: Day 12, Mills, supra note 7.

19. Id. 20. Id. 21. See Rebecca Townsend, English Driving Exam Effort Takes Another Lap in House, MO. NEWS HORIZON, Mar. 2, 2011, available at http://missouri-news.org/news/regulation/english-driving-exam-effort-takesThe Missouri bill mandating English-only another-lap-in-house/3233. driving tests has likewise been questioned on the grounds that no evidence exists to show an elevated safety threat. Id. Rep. Chuck Gatschenberger, the bill's sponsor in the Missouri House of Representatives, responded to a Senate Transportation Committee inquiry by saying: "If this stops one person from getting on the wrong way of an interstate or highway and not having a head-on collision... Can I say emphatically that this would happen? No. But what would be the value of that one life or the lives...?" Id. 22. Lawmakers: Day 12, Mills, supra note 7.

23. Immigration and Nationality Act ยง 287(g), 8 U.S.C. ยง 1357(g) (West 2006); Fact Sheets: Delegation of Immigration Authority Section 287(g) Immigration and Nationality Act, U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, http://www.ice.gov/news/library/factsheets/287g.htm (last visited May 15, 2012). The Act authorizes the Secretary of the U.S. Department of Homeland Security ("DHS") to enter into joint mutual

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custody contributed to 45% of Gwinnett's traffic violations other than DUls. 24 When broken down by ethnic background, the numbers also demonstrate that 51% of traffic fatalities involve Hispanic residents. 25 Standing before the House, Representative Mills stated he interpreted this to signify that a majority of fatal driving violations occur as a result of drivers' inability to read English.2 6 Additionally, Representative Mills maintains driving is a privilege, not a constitutional right, and raising the standard for the issuance of driver's licenses sends a message that Georgia wants its non-English proficient citizens to "be working towards reading English. 2 7 To supplement Representative Mills' statements, Representative Bearden of the 68th district,28 and former Chairman of the Public Safety and Homeland Security Committee, presented the Federal Motor Carrier Safety Administration ("FMCSA") regulations for commercial drivers: 29 ". . a person is qualified to drive a motor vehicle if agreements with state and local law enforcement entities, under which Immigration and Customs Enforcement ("ICE") personnel train and supervise the officers as they perform immigration functions, such as logging arrest information and identifying the status of suspected criminal aliens in detainment. Id. 24. Lawmakers: Day 12, Mills, supra note 7.

25. Id. 26. Id. 27. Id; see Press Release, Marketwire, Missouri State House Passes Bill Requiring Driving Tests in English (Feb. 21, 2012), available at http://www.marketwire.com/press-release/missouri-state-house-passes-billrequiring-driving-tests-in-english-1622509.htm [hereinafter Press Release, Marketwire]. Mauro E. Mujica, Chairman of U.S. English, a non-partisan action group "dedicated to preserving the unifying role of the English language," believes strongly that driving exam translations are a waste of taxpayer dollars, and "also send a message that [the State] is.. Englishoptional.. .English is the language of success in America, and government at every level should be promoting a message of assimilation to help put immigrants on the path to success." Id. 28. Unfortunately, Representative Bearden was unavailable for comment regarding House Bill 72. E-mail from Timothy Bearden, Director, Georgia Public Safety Center, to Renatto Garcia, Staff Member, John Marshall Law Journal (Feb. 1, 2012, 1:26 PM) (on file with the John Marshall Law Journal).

29. Lawmakers: Day 12 (Georgia Public Broadcasting television at available 2011), 9, Feb. broadcast

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he can read and speak the English language sufficiently ... to understand highway traffic signs and signals in the English language. . . ."30 Representative Bearden asserted that what is required of drivers engaged in interstate commerce under the FMCSA should likewise be required of Georgia's drivers to protect public safety.3 1 Representative Bearden also cited the U.S. Bureau of Labor Statistics, which found in 2004 that a 72% increase in work-related traffic fatalities was attributable to the number of employee drivers who could not read and understand English warning signs. 32 Representative B.J. Pak, of the 102nd district, supported the intent behind the Bill by acknowledging Georgia's interest in cultivating driver awareness and guaranteeing that drivers are able to identify and understand warnings of "whatever dangers lay ahead."3 The issue is straightforward, suggests Representative Pak-there is definitely an inherent public safety hazard.3 4 To afford the situation a measure of perspective, Representative Pak believes one need only consider the consequences of an English-speaking person attempting to drive a vehicle in South Korea.35 During the floor debate, Representative Pak nonetheless submitted an amendment to the http://www.gpb.org/lawmakers/20 11/day-12 (statements of Rep. Timothy Bearden, H. Dist. 68) [hereinafter Lawmakers: Day 12, Bearden].

30.

49 C.F.R. ยง 391.11 (West 2010), available at http://www.fmcsa.dot.gov/rulesregulations/administration/fmcsr/fmcsrruletext.aspx?reg=39 1.11.

31. Lawmakers: Day 12, Bearden, supranote 29.

32. Id.; see generally Robert Farley, Alabama's Tim James Says Government Report Backs up his Claim that Non-English Speaking Drivers Are a Public Safety Hazard, POLITIFACT.COM (Apr. 29, 2010), http://www.politifact.com/truth-o-meter/statements/20 10/apr/29/timjames/alabamas-tim-james-says-government-report-backs-hi/. An Alabama gubernatorial candidate, Tim James, seems to have relied on the same data from the U.S. Bureau of Labor Statistics ("BLS") for a campaign advertisement, which the author found to be unfounded, and in fact directly contradicted by both the 2003 and 2004 BLS reports. Id. The author was unable to find any studies that suggested a higher rate of traffic accidents, fatal or not, among non-English speaking persons, nor was he able to find news reports of any traffic fatalities caused by a driver's inability to understand English road signs. Id. 33. Pak Interview, supra note 10.

34. Id. 35. Id.

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Bill for consideration. 36 OPPOSITION'S RATIONALE

A non-partisan group of House leaders have spoke in opposition to House Bill 72. The primary reason a number of legislators are in opposition to the Bill is the lack of evidence that the Bill would further public safety. According to some legislators, the sponsors have absolutely no evidence that the Bill will improve safety. 39 Lawmakers in opposition stated the current system is "sufficient to weed out non-safe drivers" and the Bill is a "completely unnecessary measure." 40 In other words, opponents believe if the current law promotes safe driving, there is no reason to alter it.4 1 Representative Scott Holcomb, Member of the House Public Safety and Homeland Securit Committee, spoke against the Bill on the House Floor. 4 Representative Holcomb testified that knowledge of 36. Rep. Pak Amends House Bill 72, HOUSE-PRESS.COM (Feb. 10, 2011), http://www.house-press.com/?p=1892 [hereinafter Rep. Pak Amends House Bill 72]; Lawmakers: Day 12 (Georgia Public Broadcasting television broadcast Feb. 9, 2011), available at http://www.gpb.org/lawmakers/201 1/day-12 (statements of Rep. B.J. Pak, H. Dist. 102) [hereinafter Lawmakers: Day 12, Pak]. Rep. Pak declared that English proficiency, or fluency, does not necessarily lead to safe driving skills, or vice versa, and explained that his amendment was well suited to address the public safety concerns by alerting applicants of limited Englishproficiency as to the meaning and importance of common English warnings displayed on digital billboards, without requiring the applicant to take the complete driver's license examination in English. Id. 37. See Erik Voss, HB 72 "English Only" Driver License Testing Fails before Georgia House, GEORGIA IMMIGRANT & REFUGEE RIGHTS COAL. (Feb. 9, 2011), http://girrc.wordpress.com/2011/02/09/hb-72-english-onlydriver-license-testing-fails-before-georgia-house/.

38. In the News, House District 82 Newsletter, ScoTT HOLCOMB FOR STATE REP. (Feb. 23, 2011), http://www.votescottholcomb.com/news/viewnews.php?id=39 [hereinafter House District82 Newsletter].

39. Telephone Interview with Rep. Scott Holcomb, H. Dist. 82 (Feb. 7, 2012) [hereinafter Holcomb Interview].

40. See Voss, supra note 37; Holcomb Interview, supranote 39.

41. House District82 Newsletter, supra note 38.

42. E-mail from Rep. Scott Holcomb, H. Dist. 82, to Jenna Melton, Staff Member, John Marshall Law Journal (Feb. 3, 2012, 2:41 PM) (on file with

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the English language has nothing to do with being a safe Additionally, Representative Holcomb believes this driver.

Bill is just an attempt to "turn up the volume on antiimmigration fervor."44 Representative Holcomb believes nonEnglish speaking individuals are capable of learning the necessary words, symbols, and signals to be a safe driver in Georgia. 5 Moreover, Representative Holcomb states that the Bill does not offer any cost savings to the state because the Department of Driver Services ("DDS") will continue to offer examinations for temporary visitors in fourteen different languages.4 6 Representative Holcomb also notes the Bill does nothing to create safer roadways because temporary non-English speaking visitors can drive on Georia's roads for nine years before The opposition believes that if taking the exam in English. safer roads are truly a concern, the state would not permit temporary visitors to drive for nine years without learning the language.

The opposition further asserts that illiterate applicants can obtain a license to drive in Georgia because the DDS reads them the questions on driver's license exam, including the questions on the road sign portion of the test.4 Opponents of the Bill believe this is no different from non-English speaking immigrants obtaining a drivers license because, like nonEnglish speaking immigrants, illiterate individuals cannot read the John Marshall Law Journal).

43. See Voss, supra note 37 (summarizing Representative Scott Holcomb's humorous anecdote of a visiting British commander driving on the wrong side of the road). While in the military, Representative Holcomb notes he drove in countries overseas and learned the crucial information necessary to be a safe driver. Holcomb Interview, supra note 39.

44. Holcomb Interview, supra note 39.

45. Representative Holcomb stated learning this type of information is not akin to interpreting or learning something complicated, such as Shakespeare.

Id. 46. House District 82 Newsletter, supra note 38.

47. Holcomb Interview, supra note 39.

48. Id.

49. Helen Kim Ho, Pro & Con: Should GeorgiaDriver'sLicense Tests Be English-Only, ATLANTA J.-CONST., Feb. 16, 2011, available at [hereinafter http://www.ajc.com/opinion/pro-s-license-tests-841632.html Kim Ho, Pro & Con].

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English road signs.50 Lawmakers attempted to amend the Bill to get rid of this loophole, but the House voted against this proposal. 5 ' Thus, the opposition believes that this proves Representative Holcomb's assertion that the Bill is just another effort to impose anti-immigration legislation. 52 Businesses, civic, and social organizations are also in opposition to the Bill and see it as unlawful and anti-economic Organizations in legislation that targets immigrants. 53 opposition to the Bill also believe the Bill violates existing law.54 Specifically, the organizations consider the Bill to be a violation of Title VI of the Civil Rights Act and a related Executive Order,55 which mandates that the State offer written portions of the driver's license exams in certain languages. 56 Other group leaders, such as Jerry Gonzalez, Executive Director for the Georgia Association of Latino Elected Officials, have expressed concern that the Bill " oes after legal immigrants for 5 not being proficient in English."

50. Id.; see also English-Only Driver License Bill, AALEGAL.ORG, http://aalegal.org/campaigns/english-only-legislation-driver-license-bill/, (last visited May 15, 2012) [hereinafter English-OnlyDriver License Bill].

5 1.Id. 52. See id.

53. Press Release, Asian American Legal Advocacy Center, Leading Asian-American Business, Civic and Service Organizations Unite Against Unlawful, Anti-economic Legislation and Urge a More Civil Discussion about Immigration in Georgia (Feb. 2. 2011), available at http://aalegal.org/wp-content/uploads/2011/02/HB72-Joint-PressRelease.pdf.

54. See English-Only DriverLicense Bill, supra note 50.

55. Id.; ACLU of Georgia Urges Lawmakers to Reject English-Only Driver's License Bill, ACLU.ORG (Mar. 1, 2011), http://www.aclu.org/immigrants-rights/aclu-georgia-urges-lawmakers-rejectenglish-only-drivers-license-bill [hereinafter ACLU of Georgia Urges Lawmakers]. See also Exec. Order No. 13166, 65 Fed. Reg. 50121 (Aug. 11, 2000), availableat http://www.justice.gov/crt/about/cor/Pubs/eolep.pdf. The executive order requires agencies that receive federal funding to provide language assistance for significant populations that are limited English proficient. English-Only DriverLicense Bill, supra note 50.

56. Holcomb Interview, supra note 39.

57. Ernie Suggs, Groups Lobby Against English-only Driver's License available at 2010, 8, Apr. J.-CONST, ATLANTA Test, http://blogs.ajc.com/gold-dome-live/2010/04/08/groups-lobby-againstenglish-only-drivers-license-test/?cxntfid=blogsgold dome_1ive.

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The Asian American Legal Advocacy Center, Inc. ("AALAC") of Georgia also believes passing the Bill would cause Georgia to appear unwelcoming and inhospitable to foreign businesses. 8 Helen Kim Ho, Executive Director of the AALAC, worries the Limited English Proficient Asian American citizens of Georgia stand to hurt the most from the passage of the Bill because two of the top three languages requested during the written portion of the examination are Korean and Japanese. 9 The AALAC reports that Georgia has one of the fastest growing Asian American populations in the country.60 Additionally, opponents argue Asian Americans are a socially and economically integral part of Georgia. 6 1 Therefore, Asian American leaders believe the Bill will impact Georgia's ability to attract, retain and recruit foreign Asian

business. 62 Other organizations believe the passage of the Bill would prevent immigrants from being able to support themselves because many citizens need the option to drive in order to survive.63 Those who argue citizens need the option to drive believe that Georgia has poor public transportation. 64 Thus, those in opposition believe passing the Bill could affect citizens who drive to work, drive their children to school, drive to English-as-a-second-language courses or even drive to the hospital in the event of an emergency. Opponents also believe the Bill could cause a problem for immigrants who are trying to integrate into the community and support themselves because the Bill may rob immigrants from receiving one of the most common forms of identification, a driver's license, which many use to open bank accounts and utility services.66 58. English-Only Driver License Bill, supra note 50.

59. Helen Kim Ho, AALAC Appalled by the Re-introduction of EnglishOnly

Driver

License

Bill,

AALEGAL.ORG

(Jan.

26,

http://aalegal.org/2011/01/26/aalac-appalled-by-the-re-introduction-ofenglish-only-driver-license-bill/ [hereinafter AALAC Appalled].

60. English-Only Driver License Bill, supra note 50.

61. AALAC Appalled, supra note 59.

62. Id.

63. Suggs, supranote 57.

64. Id. 65. English-Only DriverLicense Bill, supra note 50.

66. Id.

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IMPLICATIONS IN GEORGIA

In mandating that all driver's license applicants take the written portion of the exam in English, the Bill would require that all potential drivers exhibit a capacity to read and comprehend the English language.67 Applicants that lack this necessary proficiency would be denied the privilege of obtaining a Georgia driver's license.68 Further, Representative Holcomb believes the State cannot ignore the inevitable, economic outcome the Bill would present.69 Passing legislation like House Bill 72 sends the message that Georgia's doors are closed to global businesses. 70 Representative Holcomb stated that "if Georgia wants to be a global competitor, we should have a welcome sign on our doorstep." 7 ' Representative Holcomb mentions states, like Alabama, who have passed similar legislation, have seen their economies suffer. 72 If Georgia continues down the road of antiimmigration legislation, those in ogposition to the Bill think Georgia will also see similar affects.

According to the Bill's supporters, decreasing the number of non-English proficient drivers on the road will diminish a public safety hazard currently afflicting Georgia's motorways. 74 Representative Mills feels that enacting the Bill into law will have the effect of incentivizing English learning among persons with limited language proficiency. Thus, Representative Mills believes "the Bill] makes it safer for everyone to drive in Georgia."

Representative Mills does not believe the Bill is in conflict with Title VI because nine other states adopted similar English67. Lawmakers: Day 12, Mills, supra note 7.

68. Id. 69. Holcomb Interview, supra note 39.

70. Id. 7 1. Id. 72. Id.

73. Id. 74. Lawmakers: Day 12, Mills, supra note 7; Pak Interview, supra note 10.

75. Lawmakers: Day 12, Mills, supra note 7.

76. Kent, Pro & Con, supra note 6.

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only license testing without challenge on constitutionality.n According to Representative Mills, allegations that the Bill is unconstitutional are a "fake smoke screen."78 Representative Mills emphasizes that the Bill would not discriminate against Georgia citizens; instead, it would create a level plain wherein all residents and permanent citizens have the same opportunity.79 Representative Pak also rejects the constitutional question, claiming instead that some notable organizations opposing the Bill are "overreaching" the potential implications.8 0 House Bill 72 could cause many organizations in opposition to the Bill to bring civil rights claims in Georgia courts. 8 1 Passage of the Bill may not only cause an influx of civil rights claims, but may also cause Georgia to lose federal funding if the Bill is found to violate Title VI.82 Specifically, Georgia may lose federal funding needed to operate the DDS and construct highways. The ACLU reports federal funding was the DOT's greatest source of highway and transportation funding in

77. Lawmakers: Day 12, Mills, supra note 7; see Fact Sheets: Languages Used for Driver's License Exams, U.S.ENGLISH, http://www.usenglish.org/view/305 (according to the U.S.English official website, the States that currently offer driving license exams only in English are: Arizona, Hawaii, Kansas, Maine, New Hampshire, Oklahoma, South Dakota, Utah, and Wyoming) (last visited May 15, 2012). Several other states have proposed similar legislation in recent years. See Adrianne Flores, Lawmakers ConsiderEnglish-only Driver's License Bill, CHARLOTTE NEWS 14, Feb. 7, 2011, available at http://charlotte.newsl4.com/content/topstories/639240/lawmakers-considerenglish-only-driver-s-license-bill (North Carolina); Keli Rabon, Lawmaker PushingEnglish-Only Driving Tests, WREG-TV, Jan. 13, 2011, available at http://www.wreg.com/wreg-englishonly-story,0,6629371.story (Tennessee); Josh Hinkle, English-only Driver's Test Proposed, KXAN NEWS, Jan. 13, 2011, available at http://www.kxan.com/dpp/news/texas_lege/english-onlydrivers-test (Texas).

78. Lawmakers: Day 12, Mills, supra note 7.

79. Id.; see also Press Release, ProEnglish, supra note 15 ("...giving

driver's license exams in foreign languages increases the risk of cheating and makes it very difficult to prevent or detect fraud.").

80. Pak Interview, supra note 10.

8 1. Id. 82. Id.

83. Id.; ACLU of Georgia Urges Lawmakers, supra note 55.

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Georgia in 2009 and 2010.84 Thus, if the passage of the Bill exposes Georgia to sanctions, highway and transportation construction will suffer.8 5 Phil Kent, Chairman of ProEnglish, stresses that the legislation will not drive away tourism and global business, as the opposition suggests, because the Bill only applies to the written driver's license test for people seeking to be permanent residents of Georgia. 86 The English requirement proposed in the Bill does not affect international business persons.8 ' The Bill's exceptions provide that under certain circumstances, the DDS may issue non-resident applicants temporary licenses in languages other than English for a "gracious" period of ten years, and thus, serve to contradict claims that the Bill will For that reason, unduly burden foreign personnel.

Representative Pak discards the possibility that the Bill's passage will have a negative impact on international business development.89 Representative Pak believes that if foreign corporate investors intend on remaining in this country to do business longer than the specified period of 10 years, they will surely learn English. 90 Contrary to the belief that the Bill will depict Georgia as a "red-neck" state, intolerant of cultural variance, and hostile towards non-English speaking immigrants, 91 Representative Pak maintains that opponents overstretch the issue.9 Representative Pak further states that Georgia's image is harmed more by rallies, protests, and public denouncements portraying the Bill, 84. Id. 85. Id. 86. See Kim Ho, Pro & Con, supra note 49; Kent E-Mail, supra note 14.

87. Lawmakers: Day 12, Mills, supra note 7.

88. Id. 89. Pak Interview, supra note 10. See Press Release, Marketwire, supra note 27 (quoting U.S. English Chairman Mauro Mujica as saying, "[w]e have yet to hear of an instance in which the state of Missouri has lost business because of this amendment. Likewise, [the Bill] will not serve as a detriment to commerce in Missouri. If anything, it will further encourage immigrants to learn English, allowing them to gain better, higher paying jobs.").

90. Pak Interview, supranote 10.

91. Id.; see Suggs, supranote 57 (contending that opponents of House Bill 72 declared the bill to be "anti-immigration, racist and xenophobic, as well as an economic development killer.").

92. Pak Interview, supranote 10.

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and the legislators supporting it, as xenophobic. 93 LEGISLATIVE GENEALOGY

Representative Mills introduced House Bill 72 on January 25, 2011.9 4 The first reading of the Bill occurred on January 26, 2011 and was assigned to the House Committee on Public Safety and Homeland Security (the "Committee").9 5 The second reading took place on January 27, 2011.96 On February 9, 2011, the Committee reported favorably on the Bill. 97 A third reading occurred on February 9, 2011.98 After the third reading, the House voted on amendments to the Bill five separate times. 99 The first and second vote, which involved amendments recommended by Representative Rashad Taylor, were defeated.100o

The third vote concerned an amendment advanced by Representative B.J. Pak.' 0 Representative Pak supported an updated form of the Bill on the grounds that it would properly test drivers' comprehension of emergency messages, and thus address public safety concerns.1 02 The amendment proposed by Representative Pak required the DDS to incorporate five new questions into the oral and written examinations for driver's licenses issued to citizens and permanent residents of Georgia, rather than abandoning the availability of all other languages besides English.103 The additional questions would demand that potential drivers be able to read those warning signs in English "that are more than three words long." 104 The amendment 93. Id.; see Kim Ho, Pro & Con, supra note 49.

94. H.B. 72 Status Sheet, supra note 5.

95. Id. 96. Id. 97. Id. 98. Id. 99. Id. 100. H.B. 72 Status Sheet, supra note 5.

101. Id. 102. Id. 103. Rep. PakAmends House Bill 72, supra note 36.

104. Id. An example would be posing the phrase, "use caution hazardous conditions ahead," and employing questions that also include signs that provide alert information regarding criminal abductions. Id.

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passed by a vote of 88 to 78.105 For the fourth vote, Representative Mills initiated a motion to reconsider Representative Pak's modifications because the new amendment drastically altered the nature of the Bill.106 However, it failed to gain sufficient support to override the modifications.107 The fifth vote introduced on the floor, commenced by Representative Bearden, was a proposition to table the Bill and thereby allow time for the DDS to evaluate how its operations would be affected.108 The motion passed by a vote of 115 to 50.109 Since the Bill was tabled, Representative Mills and Representative Bearden have both resigned from the Georgia House of Representatives and taken positions in the Georgia Board of Pardons and Parole' 1 and the Georgia Public Safety Center, respectively."' Representative Howard Maxwell "[does not] see [the Bill] going anywhere" after the departure of its two principal sponsors. 12 While nothing is certain, Helen Kim Ho believes that the General Assembly will have "too many [other] things to cover" and it is unlikely to reintroduce the Bill this year. 13 However, Phil Kent promises that ProEnglish "will continue to support passage and hopes it is brought off the table

105. H.B. 72 Status Sheet, supranote 5.

106. Voss, supra note 37.

107. Lawmakers: Day 12, Mills, supra note 7. Prior to the House voting on amendments to the Bill, Rep. Mills recommended a 'No' vote on all, as they were intended to effectively 'gut' the intent of the bill. Id. 108. Id. 109. H.B. 72 Status Sheet, supra note 5.

110. Ashley Fielding, Governor Appointing Mills to State Pardons and Paroles Board, GAINESVILLE TIMES, Sept. 22, 2011, available at

http://www.gainesvilletimes.com/archives/56370/.

11. Press Release, Office of the Governor, Deal taps Bearden for Director of Georgia Public Safety Training Center (Oct. 20, 2011), available at

http://gov.georgia.gov/00/press/detail/0,2668,165937316_176645229_17759 4962,00.html.

112. Voice Message from Rep. Howard Maxwell, H. Dist. 17, left for Renatto Garcia, Staff Member, John Marshall Law Journal (Feb. 1, 2012, 4:24 PM).

113. Telephone Interview with Helen Kim Ho, Executive Director, Asian American Law Advocacy Center, Inc. (Feb. 9, 2012).

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where it currently resides."ll 4 Prepared by: Renatto Garcia Jenna L. Melton

114. Kent E-mail, supra note 14.

HOUSE BILL 871: ILLEGAL IMMIGRATION REFORM AND ENFORCEMENT ACT OF 2011 Amending 0. C. G. A. § 13-10-90 to 91; § 16-9-126; §16-9128; § 35-2-14; § 36-60-6; § 42-4-14; § 42-5-51; § 45-10-28; and § 50-36-1 Creating0. C. G. A. § 16-9-121.1; §§ 16-11-200 to 203; § 175-100; § 35-1-16; § 35-6A-10; and §§ 50-36-2 to 3 First Signature: Representative Matt Ramsey (72nd) (34th), Golick Rich Representative Co-Sponsors: Representative Katie Dempsey (13th), Representative Rick Austin (10th), Representative Stephen Allison (8th), Representative Edward Lindsey (54th), and Senator Bill Hamrick (30th) Summary: House Bill 87 provides new definitions and state positions under the Illegal Immigration Reform and Enforcement Act of 20112 (the "Georgia Immigration Act").

The Georgia Immigration Act amends Article 3 of Chapter 10 of Title 13 of the Official Code of Georgia ("Georgia Code") to require public employers and certain private employers to utilize the federal work authorization program ("E-Verify"), and to provide penalties for the failure to use E-Verify. 3 The Act also amends Chapter 60 of Title 36 of the Georgia Code requiring private employers to provide proof to local governments they are participating in the E-Verify program before issuing a business license.4 1. H.B. 87, 151st Gen. Assemb., 1st Reg. Sess. (Ga. 2011), available at http://wwwl.1egis.ga.gov/legis/2011_12/pdf/hb87.pdf [hereinafter Ga. H.B. 87].

2. Id. 3. Id. at 2-8. This summary will not discuss E-Verify as it relates to Georgia's public and private employers. See Chamber of Commerce v.

Whiting, 131 S.Ct. 1968 (2011).

4. Id. at 16-18.

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The Georgia Immigration Act amends Title 16 of the Georgia Code to establish crimes and penalties for the acts of harboring illegal aliens in Georgia, transporting illegal aliens in Georgia, and inducing illegal aliens to enter Georgia. The Act amends Chapter 5 of Title 17 of the Georgia Code relating to the search and seizure of illegal aliens and allows for the investigation of an individual's immigration status. 6 Title 45 of the Georgia Code creates penalties against public agency heads who fail to abide by Georgia immigration law.7 The Georgia Immigration Act amends Title 35 of the Georgia Code to allow Georgia law enforcement officers to enter into agreements with federal agencies to enforce federal immigration law. The Act also provides grants for local law enforcement agencies to enter into the agreements, provide for the training of Georgia police officers enforcing federal immigration law, and provide immunity to officers who act in good faith while enforcing the Georgia Immigration Act. The Georgia Immigration Act amends Title 42 of the Georgia Code to provide for the verification of foreign nationals arrested and held in Georgia county or municipal jails. The Georgia Immigration Act also provides additional funding to local governments that have entered or have attempted to enter into agreements with federal authorities for the confinement of the foreign nationals. 9 The Georgia Immigration Act amends Chapter 36 of Title 50 of the Georgia Code enacting the Secure and Verifiable Identity Document Act ("SAVID"), and provides identification documents for public benefits.' 0 The Act also establishes the Immigration Enforcement Review Board, which creates penalties against public agency heads who fail to verify the lawful immigration status of certain applicants for public benefits, and "establish[es] a study on the impact of immigration reform on Georgia's agricultural industry within the Department of Agriculture." 1 5. Id at 8-12.

6. Ga. H.B. 87, supranote 1, at 12-13.

7. Id. at 20.

8. Id. at 13-16.

9. Id. at 18-20.

10. Id. at 21-23.

11. Id. at 23-26.

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Status: Signed by Governor Nathan Deal on May 13, 2011, with an effective date of July 1, 201112 TEXT OF HOUSE BILL

8713

A BILL to be entitled an Act to enact the "Illegal Immigration Reform and Enforcement Act of 2011"; to amend the O.C.G.A., so as to provide for definitions; to provide for a private cause of action; to require private employers to use an employment eligibility verification system and provide for civil penalties; to provide for offenses; to provide for the investigation of illegal alien status; to provide authority for law enforcement officers to enforce federal immigration laws and to provide immunity; to provide for civil and criminal penalties; to modify provisions relating to training peace officers; to establish grant funding; to provide for the verification of the immigration status of foreign nationals; to provide that counties shall receive additional funding for confinement of state inmates; to require proof that private businesses are participating in the employment eligibility verification system; to provide for identification cards; to enact the "Secure and Verifiable Identity Document Act"; to provide for related matters; and for other purposes.

SPONSOR'S RATIONALE

Representative Matt Ramsey, of the 72nd district, authored the Georgia Immigration Act to "address the social and economic consequences of illegal immigration."' 4 Ramsey 12. 2011-2012 Regular Session-HB 87, Illegal Immigration Reform and Enforcement Act of 2011; enact, GA. GEN. ASSEMB., http://wwwl.legis.ga.gov/legis/2011-12/sum/hb87.htm [hereinafter H.B. 87 Status Sheet].

13. The full text of House Bill 87 is over 27 pages in length and cannot be replicated in this Legislative Summary due to page constraints. The First Reader Summary is presented above, and the full text is available at http://wwwl.legis.ga.gov/legis/201 112/pdf/hb87.pdf.

14. Rep. Matt Ramsey, Thank You to Georgia Citizens, May 20, 2011, available at http://repmattramsey.blogspot.com/ (last visited May 15, 2012) [hereinafter Ramsey Thank You]. In 2008, Georgia had an illegal immigrant

69 8

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states the Georgia Immigration Act was an issue led by the "hard working people of Georgia that recognize the serious consequences of our federal government's failure to secure our borders."" Representative Edward Lindsey, of the 54th district, claims the "issue of illegal immiration has been a subject at the Capitol for the past ten years." 6 Both Ramsey and Lindsey state that illegal immigration puts a burden between $1 billion and $2 billion per year on the state of Georgia.17 Russell Pearce, Arizona Senate President, supports the Georgia Immigration Act.18 Arizona State Senator Pearce, a sponsor of the "Support Our Law Enforcement and Safe Neighborhoods Act" ("Arizona's Immigration Act"), 19 initiative and Ramsey's Representative congratulated commented that "[h]aving seen the positive effects of enforcement here in Arizona, I can assure all concerned that [the Georgia Immigration Act] will serve to greatly reduce the illegal population in Georgia, save budgt dollars and protect jobs for American workers in [Georgia]."

A. Section 7: Transporting,Harboring,or Inducing Aliens21 Representative Matt Ramsey stated a purpose of the Georgia Immigration Act is to respond to the issue of persons who profit

population of between 425,000 and 500,000. Jeffrey S. Passel & D'Vera Cohn, A Portrait of Unauthorized Immigrants in the United States, PEW HISPANIC CTR. OF THE PEW RESEARCH CTR., (Apr. 14, 2009), available at http://pewresearch.org/pubs/I 190/portrait-unauthorized-immigrants-states (last visited May 15, 2012).

15. Ramsey Thank You, supra note 14.

16. Interview with Rep. Edward Lindsey, H. Dist. 54, in Atlanta, Ga. (Feb. 23, 2012) [hereinafter Lindsey Interview].

17. Id.; see also Mar. 3 House Video, infra note 221.

18. Georgia Immigration Enforcement Bill Endorsed by President of Arizona Senate, TALK GWINNETT & THE GWINNETT GAZETTE, Mar. 2011, available at http://www.talkgwinnett.net/main/clg/2150-georgiaimmigration-enforcement-bill-endorsed-by-president-of-arizona-senate [hereinafter Arizona Senate Article].

19. S.B. 1070, 49th Leg. Sess., 2nd Reg. Sess. (Ariz. 2010), available at http://www.azleg.gov/legtext/491eg/2r/bills/sbl070s.pdf [hereinafter Arizona Senate Bill 1070].

20. Arizona Senate Article, supra note 18.

21. Ga. H.B. 87, supra note 1, at ยง 7.

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from the transportation of illegal immigrants. 22 During a House floor debate, Representative Ramsey quoted a study that stated "we are only catching one out of every four or five individuals that illegally cross [the United States] borders."2 3 Representative Ramsey states the purpose of Section 7 is to address the problem of "mules and coyotes" that prey on illegal immigrants to make a profit.24 The concern of targeting commercial trafficking is echoed by Representative Edward Lindsey, who stated "the main purpose behind Section 7 was to prevent commercial human trafficking, not to prevent charitable organizations from performing their services." 25 Representative Ramsey also dispels the notion that persons performing community service will be prosecuted under the transporting and harboring section. 26 Representative Ramsey stated that to be prosecuted under this section, there must be proof that the person had (i) knowledge of the illegal status of the person being transported; (ii) the person being transported was committing an additional criminal act; and (iii) the illegal person was committing the crime in furtherance of continuing their illegal stay.27 Although the type of additional criminal act is not specified, Section 7 allows all acts including felonies, misdemeanors, and traffic violations to meet the second requirement. 28 Unlike Arizona, the Georgia Immigration Act does not make the illegal immigrants' presence in the state enough to fulfill the third requirement, 29 as noted by 22. GeneralAssembly Video Archive: Morning House Session (Ga. Pub. Broad. internet broadcast Mar. 3, 2011), available at http://www.gpb.org/lawmakers/201 1/day-23-0 [hereinafter Mar. 3 House Video]; see O.C.G.A. §§ 16-11-200 through -202 (2012).

23. Mar. 3 House Video, supra note 22.

24. Id. 25. Lindsey Interview, supra note 16.

26. Mar. 3 House Video, supra note 22. Section 7 does not apply to "a person providing privately funded social services." See O.C.G.A. § 16-11200(d)(2) (2012).

27. Mar. 3 House Video, supra note 22.

28. Id. Although any criminal act will suffice to satisfy the element, Representative Ramsey suggests that the main intent would be to prosecute individuals for commercial trafficking. Id. 29. Arizona Senate Bill 1070, supra note 19 (making the presence of an illegal immigrant within the state a crime of trespass). See Ariz. Rev. Stat. § 13-1509 (2012)).

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Representative B.J. Pak, of the 102nd district, during a House floor debate. 30 B. Section 8: Search and Seizure; Verifying Immigrant Status DuringArrest3 After signing the Georgia Immigration Act into law, Governor Nathan Deal stated: "[w]e do not wish to go to war with the federal government. We wish to partner with the federal government to enforce the current law of the nation." 32 He further stated: "[i]llegal immigration is a complex and troublesome issue, and no state alone can fix it. We will continue to have a broken system until we have a federal solution. In the meantime states must act to defend their taxpayers." 33 Representative Lindsey also recognizes that the Georgia Immigration Act cannot secure national borders or deport illegal immigrants that are identified within Georgia's borders. 34 He stated the Georgia Immigration Act only "allows Georgia law enforcement to detain a suspected illegal immigrant until the federal government decides how, or if, it wishes to proceed against an individual."35 Representative Lindsey stresses the detainment is temporary and the Georgia Immigration Act does not give Georgia the Tower to initiate deportment proceedings against an individual.

In addition, Representative Ramsey recognizes the need for law enforcement to obtain the identity of a person suspected of committing a crime. 37 Representative Ramsey suggested that requesting verifiable documents, such as a drivers' license or state issued identification card, avoids the common forgery of 30. Mar. 3 House Video, supra note 22.

31. Ga. H.B. 87, supra note 1, at ยง 8.

32. Georgia Governor Nathan Deal Signs Illegal Immigration Reform and Enforcement Act of 2011, ROME NEWSWIRE, May 13, 2011, available at http://romenewswire.com/2011/05/13/georgia-governor-nathan-deal-signsillegal-immigration-reform-and-enforcement-act-of-201 1/ (last visited May 15, 2012).

33. Id.

34. Lindsey Interview, supra note 16.

35. Id.

36. Id. 37. Mar. 3 House Video, supra note 22.

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consular cards and attributes confidence to the identification provided to government officials. 8 Additionally, he suggested giving law enforcement officers the latitude to determine the identity of a person suspected of a crime is "common sense" and a part of routine protocol. 39 Representative Ramsey stated the immigration verification program has been a practice in Georgia for multiple years for felony offenses, and the Georgia Immigration Act expands the verification program.

Furthermore, according to Georgia's Attorney General Sam Olens, any crime categorized under Section 7 is an offense for which a person can be fingerprinted. 4 ' Although the need for identification verification was a crucial consideration in passing the Georgia Immigration Act, Representative Pak dispels the opposition's notion that the Act promotes legalized racial profiling. 42 To the contrary, Pak points out the Georgia Immigration Act specifically outlaws racial profiling 43 and "provides clear guidance to the police officer and law enforcement on exactly when they can investigate the [immigration] status of a person and exactly when they cannot." 44 The argument that traffic stops are often a pretext for racial profiling is "an insult to law enforcement." 45 C. Section 9: Working in Cooperationwith Federal Government and 287(g)46 The House Special Joint Committee found that there is a $2.4 billion financial burden imposed on state and local governments each year by the presence of 425,000 illegal aliens in Georgia. 47 38. Id. 39. Id. 40. Id. 41. Official Opinion 2011-5, GA. ATT'Y GEN. (Nov. 22, 2011), available at http://law.ga.gov/00/opinion/detail/0,2668,87670814_90679019_178993996, 00.html.

42. Mar. 3 House Video, supra note 22.

43. O.C.G.A. § 17-5-100(d) (West 2012).

44. Mar. 3 House Video, supra note 22; O.C.G.A. §§16-11-200 through 202 (2012).

45. Mar. 3 House Video, supra note 22.

46. Ga. H.B. 87, supra note 1, at § 9.

47. Id.

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These illegal aliens impose burdens on schools, transportation, healthcare, and law enforcement. 48 The Georgia Immigration Act adopted several sections of Senate Bill 174 regarding the Department of Homeland Security's Secure Communities Initiative, Section 287(g). 49 Representative Ramsey believes adoption of these sections will provide law enforcement with greater ability to identify illegal aliens and adjudicate those who commit crimes in Georgia.5 0 Representative Charlie Bethel, sponsor of Senate Bill 174, learned the challenges facing law enforcement when he served on the City Counsel of Dalton, Georgia. 5 ' He believes the benefit of Section 287(g) is that an officer may identify an offender's status at the time of arrest and refer the individual to immigration authorities, preventing commission of a similar future crime in the community by that individual.52 Representative Bethel feels these sections will give tools to law enforcement which will help them stay connected to the federal infrastructure on immigration status. 5 3 As an incentive, counties that have demonstrated compliance under Section 287(g) will receive an additional 10% of the rate paid as reimbursement for the confinement of state inmates.5 4 Such an incentive will help alleviate the additional costs to taxpayers of the detention of illegal aliens by law enforcement.s OPPOSITION's RATIONALE

Those who oppose the Georgia Immigration Act say it does not address Georgia's concerns with illegal immigration, but rather its legislative intentions are designed to circumvent the 48. Id. 49. Ga. H.B. 87, supra note 1, at 12-13.

50. Id. 51. Interview with Rep. Charlie Bethel, H. Dist. 54, in Atlanta, Ga. (Feb. 3, 2012) [hereinafter Bethel Interview].

52. Id. 53. Id. 54. Senate Judiciary Committee Meeting Minutes, 151st Gen. Assemb., available at 2011), 30, Mar. (Ga. Sess.

1st Reg. http://www.senate.ga.gov/committees/Documents/2011Minutes80.pdf [hereinafter Minutes of the Senate Judiciary Committee].

55. Bethel Interview, supra note 51.

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federal government's regulation of immigration.5 6 Representative Tyrone Brooks, of the 63rd district, opposes the Georgia Immigration Act "because immigration is a federal issue" and Georgia "has no business trying to regulate immigration., 5 7 Senator Donzella James, of the 35th district, agrees that immigration is a federal matter, and stated "yes, something needs to be done, but on the federal level."5 Senator James believes the Georgia Immigration Act includes "too many elements for abuse" and provides too many loopholes which will open the state to lawsuits. 5 9 The issue of litigation is also a concern of Senator Curt Thompson, of the 5th district, who states that several provisions under the Georgia Immigration Act are unconstitutional and will spark litigation that overburdens the Office of the Attorney General.6 0 Representative Pedro Marin, of the 96th district, is the author of "The Rural Recovery Act of 2012,"61 which proposes to repeal the Georgia Immigration Act.6 2 According to Representative Marin, "[t]he state must get out of the federal immigration business and return to the business of producing the nation's food supply." 63 Rural Recovery Act co-author, Representative Lynmore James, of the 135th district, adds "if we want good jobs and a stronger economy, the first step is

56. Plaintiffs' Brief in Support of Motion for Preliminary Injunction, at 34, Ga. Latino Alliance for Human Rights v. Deal, 793 F. Supp. 2d 1317 (2011) (No. 1:11-CV-1804), 2011 WL 2438945 [hereinafter Plaintiffs Briefl.

57. Winston Jones, Lawmakers split on immigration reform bill, TIMESGEORGIAN.COM, Feb. 13, 2011, 6:55 AM, http://timesgeorgian.com/view/full_story/1 1374325/article-Lawmakers-here-split-onimmigration-reform-bill.

58. GeneralAssembly Video: Afternoon Senate Session (Ga. Pub. Broad. internet broadcast Apr. 14, 2011), http://www.gpb.org/lawmakers/201 1/day40-sine-die.

59. Id. 60. Id. 61. H.B. 796, 151st Gen. Assemb., 2nd Reg. Sess. (Ga. 2012), available at http://www.legis.ga.gov/Legislation/20112012/118913.pdf.

62. House Democrats roll out legislative agenda; Rep. Marin leading effort to repeal HB 87, PEDRO "PETE" MARIN, (Jan. 27, 2012), available at http://www.marinstatehouse.com (last visited May 15, 2012).

63. Id.

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repealing [the Georgia Immigration Act] .164 In Georgia Latino Alliance for Human Rights v. Deal,6 5 multiple individuals and organizations (collectively the "GA Alliance") sought to preliminarily enjoin several provisions of the Georgia Immigration Act under the theory that the federal government has the "exclusive right to legislate in the general field of foreign affairs, including power over immigration, naturalization and deportation" of illegal immigrants.6 6 The GA Alliance argues that the General Assembly's legislative intent, coupled with the creation of state crimes involving illegal immigrants, shows the Georgia Immigration Act does not address issues of local concerns, but was enacted to circumvent federal law with state law.67 The GA Alliance, along with others, opposes the Georgia Immigration Act because it is preempted by the Supremacy Clause of the United States Constitution, the social impact within Georgia, and its effects on Georgia's agricultural economy.

A. ConstitutionalConcerns: FederalPreemption Substantively, the GA Alliance also believes the Georgia Immigration Act violates the Supremacy Clause of the United States Constitution. 68 Federal law preempts state law when Congress intends federal law to occupy a particular field of law, or when a state law stands as an obstacle to the accomplishments of a federal law's full purposes and objectives. 69 The Constitution authorizes Congress to establish a uniform rule of naturalization and gives the federal government the power to prevent states from interfering with United States foreign relations.70 The GA Alliance argues that state laws regulating immigration are unconstitutional because the federal government has the exclusive power to regulate immigration by determining which foreign nationals should and should not stay in the United States, and under what conditions 64. Id. 65. Ga. Latino Alliance for Human Rights v. Deal, 793 F. Supp. 2d 1317 (N.D. Ga. 2011).

66. Id. at 1328-29 (citing Hines v. Davidowitz, 312 U.S. 52 (1941)).

67. Plaintiff s Brief, supra note 56, at 11.

68. Id. at 3-4.

69. Ga. Latino Alliance, 793 F. Supp. 2d at 1328.

70. Plaintiffs Brief, supra note 56, at 3-4.

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a legal entrant may remain. 7 1 However, a state law relating to immigration may be held constitutional if it has only a "purely speculative and indirect impact" on immigration and primarily addresses local concerns.72 The GA Alliance argues that the Georgia Immigration Act is preempted by Title 8, Section 1324 of the United States Code, which allows criminal sanctions for concealing or harboring illegal aliens from detection or encouraging or inducing an Section 7 illegal alien to live in the United States.73 criminalizes the act of knowingly "inducing, enticing or assisting" illegal aliens to enter into Georgia, which the GA Alliance argues directly conflicts with Section 1324's prohibition against inducing illegal aliens to enter the United States because, once an illegal alien is in the country, it is not a federal crime to enter into Georgia. 74 Furthermore, the GA Alliance states that the term "harboring," defined under Section 7 of the Georgia Immigration Act as any "conduct that substantially helps an ille al alien" to remain in the U.S. in violation of federal law, is interpreted differently under Section 1324's harboring statute. Federal law has determined harboring to mean conduct which tends to substantially facilitate an alien remaining in the United States illegally by actively preventing government authorities from detecting the alien's unlawful presence.7 7 Under Section 7, a person could be subject to criminal consequences by giving an undocumented alien a ride to the grocery store, church, or doctor's office.7 8 Federal District Court Judge Thomas Thrash of the Northern District of Georgia agreed with the GA Alliance and found the scope of the Section 7 harboring provision to be overbroad and "is good reason to require federal supervision of any attempts

by Georgia to enforce federal immigration law." 79 71. Id. at 7-8.

72. Id. at 8 (quoting DeCanas v. Bica, 424 U.S. 351, 355 (1976)).

73. 8 U.S.C. ยง 1324(a)(1)(A)(ii-iv) (2005); Ga. Latino Alliance, 793 F. Supp. 2d at 1333.

74. Ga. Latino Alliance, 793 F. Supp. 2d at 1334.

75. Id. (emphasis added).

76. Id. 77. Id. at 1335.

78. Plaintiffs Brief, supra note 56, at 24.

79. Ga. Latino Alliance, 793 F. Supp. 2d at 1335.

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Furthermore, the GA Alliance states that Section 8 conflicts with federal law because it allows Georgia to create its own alien registration enforcement program by granting peace officers the discretion to investigate an individual's immigration status by "any reasonable means."80 The GA Alliance argues that Section 8 will create inconsistent immigration polices between local law enforcement agencies because local law enforcement officers have the discretion to determine what is reasonable.'

Judge Thrash agreed, finding such "discretion poses a serious risk that [Section 8] will result in inconsistent civil immigration policies" between federal and state governments. 2 Any individual suspected of criminal activity, even traffic violations, must be able to produce a state-certified document to establish their lawful presence to "avoid extended Federal law neither considers an police questioning."83 undocumented aliens presence in the country without authorization to be a crime, nor does it authorize local law enforcement officials to detain a person for illegal presence. 84 Section 8 grants police officers broad discretion in developing their own "enforcement priorities and strategies,"8 5 and allows, but does not require, officers to detain individuals for prolonged periods of time, without a warrant, to investigate the individual's immigration status.86 The GA Alliance argues that this discretion will increase the number of immigration inquiries to the federal government and undermine federal immigration enforcement priorities.87 B. Social Concerns The GA Alliance states that because Section 8 extends unconstitutional authority to law enforcement, the Georgia

80. Plaintiffs Brief, supra note 56, at 26, 33.

81. Plaintiff s Brief, supra note 56, at 4, 13 n.12; Ga. Latino Alliance, 793 F. Supp. 2d at 1332 (emphasis added).

82. Ga. Latino Alliance, 793 F. Supp. 2d at 1332.

83. Id. at 26.

84. Plaintiffs Brief, supra note 56, at 18; Ga. Latino Alliance, 793 F. Supp. 2d at 1330-3 1.

85. Ga. Latino Alliance, 793 F. Supp. 2d at 1332.

86. Plaintiffs Brief, supra note 56, at 17-18.

87. Id. at 29; Ga. Latino Alliance, 793 F. Supp. 2d at 1332.

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Immigration Act results in racial profiling.8 8 Specifically, the ACLU argued Section 8 "gives police officers discretion in choosing who should be subjected to an investigation of immigration status." 89 The ACLU stated that the discretion afforded to police officers invites racial profiling in two forms: (1) "an officer may find a [pre-textual] reason to stop someone on a very minor infraction based on the way they look, and then demand to see their papers"; and (2) "an officer may stop a person for a lawful reason, but then, based on appearance or accent, demand their papers." 90 In an affidavit filed in support of the GA Alliance, Lewis Smith, the police chief of Uvalda Georgia, confirmed Section 8 will lead to racial profiling.91 Police Chief Smith "believes that officers in small towns will rely on physical appearance or way of talking (accent) to determine whether or not to stop someone and attempt to verify the person's immigration status."9 2 According to Azadeh Shahshahani, of the ACLU of Georgia, "[t]he fundamental problem with placing federal immigration enforcement in the hands of local law enforcement is that local officers are not adequately trained in immigration law and its enforcement." 93 Shahshahani continues that without proper training, local authorities often identify potential immigration violators based solely on an individual's racial and ethnic status. 94 ACLU testimony before Congress explained this phenomenon: Because a person is not visibly identifiable as being undocumented, the basic problem with local police enforcing 88. Ga. Latino Alliance, 793 F. Supp. 2d at 1342.

89. Frequently Asked Questions About the GeorgiaRacial ProfilingLaw, AM. CIVIL LIBERTIES UNION (Jun. 2, 2011), http://www.aclu.org/immigrantsrights-racial-justice/frequently-asked-questions-about-georgia-racialprofiling-law.

90. Id. 91. Plaintiff s Brief, supra note 56, at 44-47.

92. Jay Bookman, Ruling Hits Law's Intent on the Nose, ATLANTA J.CONST., Jun. 28, 2011, at A10 [hereinafter Bookman].

93. Azadeh Shahshahani, The Persistence of Racial Profiling in Gwinnett: Time for Accountability, Transparency, and an End to 287(g), AM. CIVIL LIBERTIES

UNION

FOUND.

OF

GA.

http://www.acluga.org/gwinnettracialreportfinal.pdf Profiling in Gwinnett].

94. Id.

(Mar.

7,

2010),

[hereinafter

Racial

708

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immigration law is that police officers who are often not adequately trained, and in some cases not trained at all, in federal immigration enforcement will improperly rely on race or ethnicity as a proxy for undocumented status. ... The

predictable and inevitable result is that any person who looks or sounds "foreign" is more likely to be stopped by the police, and more likely to be arrested (rather than warned or cited or simply let go) when stopped.95 Furthermore, Shahshahani states that the Georgia Immigration Act will lead to an increase in racial profiling, an effect already being demonstrated with the implementation of 287(g) in Cobb and Gwinnett Counties in Georgia. 96 Mary Bauer, legal director of the Southern Poverty Law Center, stated "[t]his law undermines our core American values of fairness and equality... by perpetuating the hate rhetoric that has become commonplace among many elected officials, this law threatens the rights of citizens and non-citizens alike by encouraging racial profiling." 97 There are a number of testimonies indicating that Latinos are being stopped by police for no other reason than appearing Latino and being suspected of having an undocumented status. 98 According to Georgia immigration attorney Aaron Ortiz, in some instances, people whom the police simply presume do not have a license are stopped for "no other reason" than their appearance. 9 9 As a whole, the opposition feels that Latinos have been 95. Caroline Frederickson, et al., Written Statementfor a Joint Hearingon the Public Safety and Civil Rights Implications of State and Local Enforcement of Federal Immigration Laws, AM. CIVIL LIBERTIES UNION, available at http://www.aclu.org/immigrants/gen/39242leg200904O1.html, at 6 (last visited May 15, 2012).

96. E-mail from Azadeh Shahshahani, American Civil Liberties Union of Georgia, to Kristen Turner, Staff Member, John Marshall Law Journal (Feb. 2, 2012, 2:17 AM) (on file with the John Marshall Law Journal).

97. SPLC, Allied Groups Sue Georgia to Stop Controversial immigration Law, S. POVERTY LAW CTR. (Jun. 2, 2011), available at http://www.splcenter.org/get-informed/news/splc-allied-groups-sue-georgiato-stop-controversial-immigration-law.

98. See generally Azadeh Shahshahani, Terror and Isolation in Cobb: How Unchecked Police Power under 287(g) Has Torn Families Apart and Threatened Public Safety, AM. CIVIL LIBERTIES UNION FOUND. OF GA. (Oct. 2009), http://www.acluga.org/racial%20profiling%2OCobb.pdf [hereinafter Terror and Isolation in Cobb]; RacialProfiling in Gwinnett, supra note 93.

99. Terrorand Isolation in Cobb, supra note 98, at 9.

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singled out for immigration stops and inquiries by law enforcement, even though the majority of Latinos in the United States are United States citizens or lawful permanent residents. 0 After being stopped, if the individual is arrested, "[Immigration and Customs Enforcement ("ICE")] will be notified almost immediately ... even if no state criminal charges

are ever filed, or even if the arrest is later found to have been unlawful or unconstitutional." 01 Almost eighty percent of 287(g) agreements have been signed with jurisdictions in the South, and eighty-seven percent of the states and localities signing on with ICE had a higher rate of Latino population growth than the national average ... support[in 4 the view that 287(g) is propelled by

race and not by crime.

Gwinnett County has had a number of complaints largely from Latino drivers, but the county also has large African and Asian immigrant populations, and, according to the ACLU of Georgia, it is likely these communities are experiencing the same racial profiling as the Latino community.10 3 The deterrence from reporting crimes is also a result of individuals watching their friends, families, and neighbors being detained after reporting crimes.104 According to Ortiz, watching the disappearance of honest hard-working people into detention for minor violations, such as broken tail lights and overly-tinted windows, has had an enormously negative impact on the faith of the immigrant community in the fairness of the criminal justice system for Latino or foreign-appearing residents. 105 As of October 2009, the Cobb County Sheriffs Office was 100. Aaron Terrazas & Jeanne Batalova, The Most Up-To-Date Frequently Requested Statistics on Immigrants in the United States, MIGRATION POLICY INST. (Dec. 2010), available at http://www.migrationinformation.org/feature/display.cftn?ID=818 (last visited May 15, 2012).

101. ACLU Statement on Secure Communities, AM. CIVIL LIBERTIES UNION (Nov. 10, 2010), available at http://www.aclu.org/immigrantsrights/aclu-statement-secure-communities (last visited May 15, 2012) [hereinafter ACLU Statement on Secure Communities].

102. Terrorand Isolation in Cobb, supranote 98, at 6.

103. Racial Profilingin Gwinnett, supra note 93, at 11.

104. Id. 105. Terrorand Isolation in Cobb, supra note 98, at 9.

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one of seventy-seven law enforcement offices participating in conjunction with 287(g with Gwinnett County following on November 16, 2009.

In 2008, the Cobb County jail processed 3,180 inmates for ICE detention, 2,180 of which were arrested for traffic offenses.' 07 In January and February of 2009, of the 434 people held in Cobb County on ICE detainers, 255 were arrested on non-DUI traffic offenses. 0 8 The reasons provided for these arrests were violations the police could discover only after pulling over a driver, such as driving without a license or insurance.' 09 The GA Alliance argues that not only will Section 8's implementation result in racial profiling, but it will also result in immigration investigations being performed on legal Georgia residents." 0 Although the language in Section 8 specifically states "[a] peace officer shall not consider race, color, or national origin"" in implementing the requirements of the section, the opposition believes the nature of Section 8 will most likely result in Georgia citizens being subjected to unnecessary police scrutiny.

To commence an immigration investigation, Section 8 does not require an officer to have "reasonable suspicion" that an individual is unlawfully in the state. 113 According to the Southern Center for Human Rights and others, this flexibility could potentially convert routine stops, such as "jaywalking, speeding, and littering," into prolonged and extensive investigations, particularly for people of color.114 "Knowingly" transporting an illegal alien in violation of Section 7 creates many potentialities that could impact 106. Terror and Isolation in Cobb, supra note 98, at 5; Racial Profilingin Gwinnett, supra note 93, at 9.

107. Terror and Isolationin Cobb, supra note 98, at 8.

108. Id. 109. Id. at 9.

110. Plaintiff s Brief, supra note 56, at 3-5.

111. O.C.G.A. ยง 17-5-100 (West 2012).

112. See Bookman, supra note 92.

113. Plaintiff's Brief, supra note 56, at 3-5.

114. Amicus Curiae Brief Submitted by the Southern Center for Human Rights and Other Amicus Curiae, at 3, Ga. Latino Alliance for Human Rights v. Deal, 793 F. Supp. 2d 1317 (2011) (No. 1:11-CV-1804), 2011 WL 2447442 [hereinafter SCHR Brief].

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Georgia's community safety and good will, although there are Activities several delineated exceptions to prosecution.' where an individual provides a ride to a neighbor, an ambulance driver transports a patient to the hospital, or a driver of a public transportation vehicle are not exempt under the Georgia Immigration Act, and thus "the transporter" could be subject to prosecution.11 6 Paul Edwards, a GA Alliance plaintiff and devout Christian, transports undocumented individuals to church and to obtain medical care as part of his religious commitment."' 7 If Edwards were to make an illegal lane change or exceed the speed limit while "knowingly" transporting an undocumented individual, he could be subject to prosecution under Section 7.118 Paul Bridges is the Republican mayor of Uvalda Georgia, a devout Christian, and a GA Alliance plaintiff. 19 Mayor Bridges speaks Spanish and is a well-known presence in his community.120 He often assists with interpretation in schools, doctors' offices, courts, and other settings as well as providing transportation to undocumented individuals to church, the grocery store, doctors' appointments, and soccer tournaments in nearby towns. 2 1 Under the Georgia Immigration Act, Mayor individuals traveling with him Bridges and* the undocumented * *122 will be at risk of criminal prosecution.

Section 7 does not exempt an immigration attorney, or other attorney, for representing an illegal alien in a civil matter, and therefore, places attorneys who assist illegal aliens to remain in David Kennedy, a GA Georgia at risk of prosecution.

Alliance plaintiff, argues that the new state crime of harboring 115. O.C.G.A. ยง 16-11-200(d)(1)-(5) (West 2012).

116. Karla Mantilla, NWSA Confronts Anti-Immigration Law in Georgia, 37 FEMINIST STUDIES (IssuE 2) 1 (2011).

117. Azadeh Shahshahani, Georgia "Show Me Your Papers" Legislation Will Endanger Survivors of Domestic Violence and Sexual Assault, THE HUFFINGTON POST, Apr. 13, 2011, http://www.huffingtonpost.com/azadeh[hereinafter shahshahani/georgia-is-not-a-show-me-_b_871179.html Endanger Survivors].

118. Id. 119. Id. 120. Id. 121. Id. 122. Id. 123. Plaintiffs Brief, supranote 56, at 23.

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illegal aliens will subject Georgia's immigration attorneys to criminal sanctions.1 24 Kennedy, a licensed attorney in Georgia, regularly meets with undocumented individuals to give them legal advice regarding immigration matters.125 He frequently drives undocumented individuals to immigration court hearings and other administrative hearings.126 Kennedy would not be subject to prosecution for harboring an illegal alien under Section 1324 because these activities would not prevent "government authorities from detecting the alien's unlawful presence."1 2 7 In contrast, the GA Alliance feels that the Georgia Immigration Act seems to target immigration attorneys for prosecution of harboring an illegal alien because Kennedy's activities could fall under the broad provisions of any "conduct that substantially helps an illegal alien" in the country. 128 Furthermore, the GA Alliance believes that United States citizens may be subjected - to prolonged detentions and interrogations about their residency status. 129 The American Immigration Lawyers Association ("AILA") argues that Section 8 documents "cannot serve as accurate proxies for citizenship" because citizens are not required to carry proof of citizenship with them at all times.130 However, the states of Washington and New Mexico issue valid driver's licenses regardless of an T he AILA individual's citizenship or immigration status. points out that because citizens of theses states do not have the required document under Section 8, they will presumptively not be able to establish their legal residency.132 The GA Alliance further argues that Section 7 creates a state system for "prosecuting and interpreting immigration law" with 124. Id. 125. Id. 126. Id. 127. Id.; Ga. Latino Alliance, 793 F. Supp. 2d at 1335.

128. Plaintiffs Brief, supra note 56, at 23; Ga. Latino Alliance, 793 F. Supp. 2d at 1334.

129. Brief of Amicus Curiae of American Immigration Lawyers Association in Support of Appellees, at 16, Deal v. Ga. Latino Alliance for Human Rights, (No. 11-13044-C), 2011 WL 5908801, at *16.

130. Id. at 15. Citizenship may be definitively established by a birth certificate, passport, certificate of naturalization, or a certificate of citizenship. Id 131. Id. at 15-16.

132. Id. at 16.

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the intent to create a "climate of hostility, fear, mistrust and insecurity" so that illegal aliens will leave Georgia.133 The GA Alliance believes Section 7 will allow state and local officials to develop their own legal interpretations "about what immigration violations justify a warrantless arrest," independent of federal law, regulation, or policy.134 It also thinks the law will give state agents prosecutorial discretion in deciding when to charge a person for transporting, harboring, or inducing an illegal immigrant and what penalty to place on a person who violates the state law.135 Furthermore, the GA Alliance feels that state judges will no longer be constrained by federal law or federal precedent in deciding how to rule on a state illegal immigration violation.' 3 6 Proponents argued Section 7 creates a mechanism by which immigration crimes could be prosecuted at the state level. 1 3 However, Judge Thrash found that argument to be a "gross hypocrisy" and the intent of the type of legal interpretational, prosecutorial, and judicial discretion allowed under Section 7 is to encourage illegal aliens to leave

G -138 Georgia.

In an amicus curiae brief filed by the Southern Center for Human Rights ("SCHR"), citing a study conducted by the Chief Justice Earl Warren Institute on Race, Ethnicity and Diversity, found when "officers use race as an indicator of illegal immigration status, it is virtually inevitable that Hispanic United States citizens and lawful residents will be funneled through this vetting process."l 3 9 The SCHR feel that immigrants who witness or have information of a crime will most likely not come forward for fear of investigation, detention, and/or deportation. 140 The American Bar Association reported "[1]ocal police and prosecutors should be prepared for the predictable reduction in reporting of serious crimes if law enforcement officers choose to expand their duties to include the policing of

133. Ga. Latino Alliance, 793 F. Supp. 2d at 1333, 1335.

134. Plaintiff s Brief, supra note 56, at 12.

135. Ga. Latino Alliance, 793 F. Supp. 2d at 1335.

136. Id. 137. Id.

138. Id. at 1333.

139. SCHR Brief, supra note 114.

140. Id.

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immigration matters."' 4 1 In smaller communities where police resources are scarce, the added responsibility of verifying an individual's immigration status may detract from law enforcement officials' time spent patrolling and preventing crime, as reiterated by Police Chief Lewis Smith.142 Shahshahani, among other individuals opposing the Georgia Immigration Act, argues the Act will endanger victims of domestic violence and sexual assault, particularly, because it will create more fear and distrust of local law enforcement in Alyse Lopez-Salm, the communities across the state.14 3 Community Outreach Advocate for Partnership Against Domestic Violence ("PADV") stated "287(g) has ensured many survivors of domestic violence remain in the shadows - terrified to call the police or even reach out to organizations like [PADV] for help." 44 Furthermore, Lopez-Salm stated "when survivors of domestic violence finally come into contact with PADV, they say they were afraid that seeking help would have a negative effect on their immigration status."145 According to an amicus curiae brief filed in the ACLU lawsuit challenging Arizona's Immigration Law, Legal Momentum, a women's rights group, points to how Arizona's Immigration Law will endanger immigrant women: Immigration status significantly affects the willingness of immigrant women to seek law enforcement help. Rape and sexual assault already have low reporting rates. Immigrants who are victims or witnesses of sexual assault will be even less likely to report and aid in the prosecution. Immigrants with stable permanent immigration status are more than twice as likely as women with temporary legal immigration status to call police for help in domestic violence cases (43.1% vs. 20.8%). This rate decreased to 18.8% if the battered immigrant was undocumented. These reporting rates are significantly lower than reporting rates of battered women generally in the United States (between 53% and 58%).

146

141. Id. 142. Id. at 2.

EndangerSurvivors, supra note 117.

144. Id. 143.

145. Id. 146. Id.

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According to many of those in opposition, an erosion of trust between immigrant communities and law enforcement will lead to less safe communities as more distrust builds between the two entities. 147 The opposition believes that as victims become more afraid to report crimes, more crimes will go unreported, unnoticed, and communities will become less safe for all individuals, including United States citizens, which is counter to the Georgia Immigration Act's or 287(g)'s purpose.148 Data from ICE shows that 26% of all those deported under 287(g) were classified by ICE as non-criminals, meaning the individuals had no criminal convictions. 149 Seventy-nine percent of those deported individuals "were either non-criminals or were picked up (and not necessarily charged or convicted) for lower level offenses.o50 Only 21% were charged with or convicted of a serious felony.1 5 Many of those in opposition, including Shahshahani, stated the concerns about 287(g) implementation in Georgia is due in part to the fear of deportation created within the immigrant community, especially among victims of domestic violence.' 5 2 However, subsection (f) of the Georgia Immigration Act provides a protection for victims of crimes, a protection not afforded by 287(g). 153 Adelina Nicholls, Executive Director of the Georgia Latino Alliance for Human Rights, has reported her association being inundated with referrals since 287(g)'s implementation in Cobb County reporting "families being 147. E-mail from Azadeh Shahshahani, American Civil Liberties Union of Georgia, to Kristen Turner, Staff Member, John Marshall Law Journal (Feb. 2, 2012, 11:27 AM) (on file with the John Marshall Law Journal).

148. Terrorand Isolation in Cobb, supra note 98, at 16-17.

149. ACLU Statement on Secure Communities, supra note 101.

150. Id. 151. Id. 152. EndangerSurvivors, supra note 117.

153. O.C.G.A. ยง 17-5-100 (West 2012). The Georgia Immigration Act provides in Section 8 [n]o person who in good faith contacts or has contact with a state or local peace officer or prosecuting attorney or member of the staff of a prosecuting attorney for the purpose of acting as a witness to a crime, to report criminal activity, or to seek assistance as a victim to a crime shall have his or her immigration status investigated based on such contact or based on information arising from such contact.

O.C.G.A. ยง 17-5-100(f) (West 2012).

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separated, fear of law enforcement officials, questionable practices in Cobb County regarding payment of bond money, and possible racial Rrofiling of the Latino community by local The fear that has grown due to 287(g) has law enforcement."' been so abundant, Nicholls stated, "community members would rather move away from Cobb County than risk a 287(g) stop." 55 The fear is also having an effect on Latino children as demonstrated by one study which found that both United States citizen and immigrant children sometimes avoid coming into contact with any public official because they fear either they or their families will be targeted by law enforcement based on their actual or perceived immigration status.156 "Amy" and her children have witnessed road blocks in Gwinnett on a daily basis, and the children hear stories about the Gwinnett police targeting Latinos from their classmates in their school, which is ninety-eight percent Latino.15 7 "Amy's" youngest daughter does not like the police and does not believe they are there to help her because of these experiences. ss Her eldest daughter, "Lucy," who is a United States citizen, stated she "would rather live in Honduras .. . if this is the way she will be treated."l 59 C. Agricultural-EconomicConcerns Section 20.1 directs the Department of Agriculture to conduct a study on the impact of immigration on the agriculture industry and make appropriate recommendations.160 Reform of the federal H-2A temporary and seasonal visa program is specifically addressed by the study. 161 At the conclusion of the first study, the Department of Agriculture made a final written 154. Terror and Isolation in Cobb, supra note 98, at 9.

155. Id. 156. Sarah Auerbach, English Language Learners Feel Effects of Battle Over Illegal Immigration, THE ELL OUTLOOK, (Nov./Dec. 2007), available

http://www.coursecrafters.com/ELLat Outlook/2007/novdec/ELLOutlooklTIArticlel.htm. (last visited May 15, 2012).

157. Racial Profiling in Gwinnett, supra note 93, at 16.

158. Id. 159. Id.

160. Ga. H.B. 87, supra note 1, at 25-26.

161. Id.

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report to the Governor, President of the Senate, and Speaker of the House of Representatives. 162 The results of the study projected a loss of $391 million and 3,260 jobs lost in 2011 because of farm labor shortages.' 6 3 By mid-2011, the president of the Georgia Agricultural Council, Bryan Tolar, whose group represents over 700 farming and agricultural businesses in Georgia, estimated that the agricultural industry losses of unharvested crops approached $300 million, and the overall economic impact on Georgia is in the range $1 billion.

In anticipation of the implementation of the Georgia Immigation Act, many farm laborers fled to other states to find work. 65 According to a report submitted by a senior policy analyst at the Georgia Senate Research Office, even legal immigrants fled Georgia out fear of being racially profiled. 66 The Georgia Department of Agriculture began receiving calls from farmers reporting labor shortages in anticipation of the passing of the Georgia Immigration Act.167 By June 10, 2011,

162. Report on Agriculture Labor: As Required by House Bill 87, GA. DEP'T

available

2012),

(Jan.

AGRIC.,

OF

at

http://agr.georgia.gov/Data/Sites/l/media/agadministration/legislation/AgL aborReport.pdf [hereinafter Report on Agriculture Labor].

163. Jeremy Redmon & Daniel Malloy, Farm Labor Shortages May Cost Georgia Economy $391 Million, ATLANTA J.-CONST., Feb. 22, 2012, 9:00

PM, available at http://www.ajc.com/news/georgia-politics-elections/reportfarm-labor-shortages-1194039.html.

164. TOM BAXTER, CTR. FOR AM. PROGRESS, How GEORGIA'S ANTIIMMIGRATION LAW COULD

ECONOMY,

7,

HURT THE STATE'S (AND

2011),

(Oct.

THE NATION'S)

available

at

http://www.americanprogress.org/issues/20 11/10/pdf/georgia-immigration.p df 165. Id. at 2-3.

166. LAUREN GREER, S. RESEARCH OFFICE, FROM THE FIELDS: A 2011

GEORGIA

AGRICULTURE

UPDATE,

2,

(Oct.

2011),

available

at

http://www.senate.ga.gov/sro/Documents/AtIssue/atissueOctll .pdf [hereinafter GREER].

167. America's Agricultural Labor Crisis, Enacting a PracticalSolution Hearing Before the Subcommittee on Immigration, Refugees and Border Security of the Senate Committee on the Judiciary (United States S. Comm.

4, 2011) Oct. broadcast internet Judiciary on the http://www.senate.gov/fplayers/jw57/urlMP4Player.cfm?fn=judiciaryl00411 &st-150&dur-7807 (statement of Gary W. Black, Comm'r, Ga. Dep't of Agric.).

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there were reportedly 11,080 un-filled jobs on Georgia farms.168 This figure was also supported in the Senate Research Office report, but claimed the number of available jobs may be higher, as not all farmers participated in the survey. 9 In an attempt to remedy the labor shortage, Governor Deal established a program that would match Georgia probationers with agricultural jobs.o7 0 According to one article, once the program was implemented it became apparent it would not be First, the probationers effective for a number of reasons. were apparentl unwilling to do the strenuous work required to harvest crops.l 2 Secondly, more labor intensive crops require specialized laborers, which most probationers are not.173 And lastly, farmers were unwilling to pay individuals an increased wage when the probationers' production yielded far less than the skilled laborers that previously held the position. 174 The Georgia Immigration Act's economic implications were further analyzed by the University of Georgia's Center for Agribusiness and Economic Development ("CAED").'7 5 In November 2011, CAED released an economic impact study that focused specifically on the impact of the labor shortage on farmers and supporting industry. 76 The CAED study found the fresh fruits and vegetable producers were the ones most profoundly impacted by the labor shortage, as their crops are

168. Id. 169. GREER, supra note 166.

170. Report on Agriculture Labor, at 7.

171. Reid J. Epstein, Georgia Immigrant Crackdown Backfires, POLITICO (Jun. 22, 2011, 5:27 PM), http://www.politico.com/news/stories/0611/57551.html.

172. Id.

173. Id. 174. Catherine Shoichet, Georgia Governor: Probationers Could Fill Farm Jobs, CNN POLITICS, June 14, 2011, http://articles.cnn.com/2011-0614/politics/georgia.farm.workers.immigrationl1 immigration-law-georgiagovernor-labor-shortages?_s=PM:POLITICS. 175. JOHN C. McKISSICK & SHARON P. KANE, AN EvALUATION OF DIRECT AND INDIRECT EcoNOMIC LOSSES INCURRED BY GEORGIA FRUIT AND VEGETABLE PRODUCERS IN SPRING 2011, THE UNIV. OF GA. CTR. FOR available at 2011), (Nov. ECON. DEV. AND AGRIBUSINESS

http://www.caes.uga.edu/center/caed/pubs/20 11/documents/CR-Il -01 .pdf.

176. Id.

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labor-intensive to harvest. 7 7 In monetary terms, the CAED study found losses due to labor shortage in vegetable production amounted to $41.9 million, with another $56.1 million lost in goods and services that are entwined with vegetable production, for a total impact nearing $98 million.' 7 8 Of the fruit producers, berry production was the hardest hit with $33.1 million in losses as a result of inadequate labor, creating an additional loss of $50.5 million, for a total impact of the fruit production industry of $83.5 million.' 7 9 The total impact on Georgia's fresh vegetable and berry industry, as a result of the labor shortage, was an estimated loss of over $181 million in total goods and services produced. 8 0 The CAED study estimates also included the monetary effects of the labor shortage, as well as the "trickle down" losses, causing input suppliers to lose sales and jobs, and retailers to lose business as a result of the shortage.181 Uvalda Mayor Paul Bridges, expressing his concerns on the Georgia Immigration Act's effects on the agricultural communities of Georgia, stated "[The Georgia Immigration Act] strikes fear in all skilled laborers and anyone associated with them." 82 He feels that immigrant families will leave the state of Georgia out of fear they will be separated "from undocumented loved ones" and will be broken up due to the provisions enacted by the Georgia Immigration Act.1 83 Finally, Mayor Bridges stated that the Georgia Immigration Act's effects can be seen in the farms across southern Georgia. In Uvalda [Georgia,] and in neighboring towns, it's not uncommon to see farmers struggling to find enough hands to pick the last of their Vidalia onion, squash, and berries crops. Local businesses will soon be deprived of reliable revenue provided by the workers - both with and without papers 177. Id. at 6.

178. Id. 179. Id. 180. McKISSICK & KANE, supra note 175, at 7.

18 1. Id. 182. Paul W. Bridges, Why I'm Suing Georgia Over Immigration Law, 10:21 AM), (June 20, 2011, CNN OPINION http://www.cnn.com/2011/OPINION/06/19/bridges.georgia.immigration/ind ex.html.

183. Id.

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who contribute to our economy..184 LEGISLATIVE GENEALOGY

House Bill 87, the Georgia Illegal Immigration Enforcement and Reform Act of 2011, was first read in the Georgia House on January 27, 2011.1" After the second reading on January 31, 2011, House Bill 87 was assigned to the Judiciary Non-Civil House Committee.1 86 The committee held two days of hearings on the Bill, February 4, 2011, and February 8, 2011.

The Committee reported favorably on House Bill 87 on February 28, 2011 and was passed by the Georgia House on March 3, 2011.18

The Georgia Senate read and referred House Bill 87 to the Senate Judiciary Committee on March 4, 2011.189 On March 30, 2011, the Senate Committee held a meeting on the Bill and voted to "pass by substitute" by a 5-4 vote.190 The Committee changed or substituted House Bill 87's sections regarding Contracts for Public Works, Aggravated Identity Fraud, Transporting Illegal Aliens by Motor Vehicle, Harboring Illegal Aliens, Encouraging an Illegal Alien to Enter the United States, Immigration Checks during Law Enforcement Stops, Use of Full Immigration Enforcement Power under Federal Law, Grants & Incentives for Use Of Federal Immigration Programs, Private Employers to Use E-Verify, Immigration Verification for Suspected Illegal Aliens in Jail, County Reimbursement, Citizen Complaints to Attorney General, Tax Deductions, Public Benefits, Penalties for Agency Heads, Secure and Verifiable Identity Document Act, and Severability.191 The Senate read the Senate Judiciary Committee's substitutions on March 31, 2011, and, after several amendments were proposed Id. 185. H.B. 87 Status Sheet, supra note 12.

186. Id. 187. JudicialNon-Civil-Archives, 2011 Regular Session, GA. H. OF REPS., available at http://www.house.ga.gov/committees/enUS/CommitteeArchivesl46.aspx.

188. The Georgia House of Representative's version of the Bill passed in the House by a vote of 113-56. H.B. 87 Status Sheet, supra note 12.

189. Id. 190. Minutes of the Senate JudiciaryCommittee, supra note 54, at 106.

184.

191. Id. at 102-106.

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and considered, the Georiia Senate passed its version of House Bill 87 on April 11, 2011.

The Georgia House voted and passed the Senate version of House Bill 87 on April 12, 2011.3 The Senate proposed and considered additional amendments and passed the amended version of the Bill on April 14, 2011.194 The House voted to approve the Senate's amendments to House Bill 87 on the same day and it was sent to the Governor on April 20, 2011.195 Governor Nathan Deal signed House Bill 87 into law on May 13, 2011, and The Georgia Illegal Immigration Enforcement and Reform Act took effect on July 1, 2011. 96 On June 2, 2011, a class action suit was filed in United States District Court for the Northern District of Georgia seeking declaratory and injunctive relief.197 Judge Thomas Thrash found the plaintiffs had demonstrated a likelihood of success on the merits of their claim that Sections 7 and 8 of the Georgia Immigration Act were preempted by federal law.198 Judge Thrash preliminarily enjoined Sections 7 and 8 on June 27, 2011, but allowed the rest of the Georgia Immigration Act to be enforced.199 The injunction was appealed to the Eleventh Circuit Court of Appeals and oral arguments were heard on March 1, 2012.200 Before oral arguments were presented, Judge Charles Wilson stated the Eleventh Circuit would not issue an opinion until the United States Supreme Court has issued its 192. The Georgia Senate version of the Bill passed in the Georgia Senate by a vote of 39-17. H.B. 87 Status Sheet, supranote 12.

193. The Georgia House of Representatives passed the Georgia Senate version of the Bill by a vote of 115-59. H.B. 87 Status Sheet, supra note 12.

194. The amended Georgia Senate version of the Bill passed in the Senate by a vote of 37-19. H.B. 87 Status Sheet, supranote 12.

195. The Georgia House of Representatives passed the amended Georgia Senate version of the Bill by a vote of 112-59. H.B. 87 Status Sheet, supra note 12. .

196. H.B. 87 Status Sheet, supra note 12.

197. Complaint, Ga. Latino Alliance for Human Rights v. Deal, 793 F. Supp. 2d 1317 (2011) No. 1:11-CV-1804, 2011 WL 2150744.

198. Ga. Latino Alliance, 793 F. Supp. 2d at 1333, 1336.

199. Id. at 1340.

200. Karen Weinstock, 11th Circuit Hears Oral Arguments on Georgia and Alabama Immigration Laws, GA. IMMIGRATION (Mar. 1, 2012, 1:26 http://georgiaimmigration.blogspot.com/2012/03/11th-circuit-hearsPM), oral-arguments-on.html

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Arizona's

Immigration Act.2 0 Prepared by: Penelope Hansen Tiffany E. Norris Michelle Thompson Kristen A. Turner Ethan Williams

201. Jeremy Redmon, Court to rule later on Georgia, Alabama's antiillegal immigration laws, ATLANTA J.-CONST., Mar. 1, 2012, available at http://www.ajc.com/news/georgia-politics-elections/court-to-rule-later1368578.html.

HOUSE

BILL 871: ILLEGAL IMMIGRATION REFORM AND ENFORCEMENT ACT OF 2011 (E-VERIFY)

Amending O.C.G.A. ยง 13-10-90 First Signature: Representative Matt Ramsey (72nd) (34th), Golick Rich Representative Co-Sponsors: Representative Katie Dempsey (13th), Representative Rick Austin (10th), Representative Stephen Allison (8th), Representative Edward Lindsey (54th), Senator Bill Hamrick (30th) Summary: Section 2 of Senate Bill 87 defines terms such as "Contractor" and "Subcontractor." 2 Section 3 seeks to require private employers to use the E-Verify system to verify employment eligibility.3 Section 12 of Senate Bill 87 seeks to require private employers to prove compliance with the EVerify systems and penalties for noncompliance. 4 Status: Enacted into law as Act 252 on May 13, 2011.5

1. H.B. 87, 151st Gen. Assemb., 1st Reg. Sess. (Ga. 2011), available at http://wwwl.legis.ga.gov/legis/201 112/pdf/hb87.pdf [hereinafter Ga. H.B. 87].

2. Id. 3. Id. 4. Id. 5. 2011-2012 Regular Session-HB 87, Illegal Immigration Reform and ASSEMB., GA. GEN. enact, 2011; of Enforcement Act http://wwwl.legis.ga.gov/legis/2011_12/sum/hb87.htm (last visited May 15, 2012) [hereinafter H.B. 87 Status Sheet].

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BILL 87 - E-VERIFY 6

ยง 2.

Article 3 of Chapter 10 of Title 13 of the Official Code of Georgia Annotated, relating to security and immigration compliance, is amended by revising Code Section 13-10-90, relating to definitions as follows: "13-10-90.

As used in this article, the term: (1) 'Commissioner' means the Commissioner the Geergia Department-ef Labor.

(2) 'Contractor' means a person or entity that enters into a contract for the physical performance of services with a public employer.

(2)(3) 'Federal work authorization program' means any of the electronic verification of work authorization programs operated by the United States Department of Homeland Security or any equivalent federal work authorization program operated by the United States Department of Homeland Security to verify employment eligibility information of newly hired employees, pursuant-te--the immigration Rcform and Ccntrol Act of 1986 (IRCA), D.L. 99-603 commonly known as E-Verify, or any subsequent replacement program.

(2-"(4) 'Physical performance of services' means the building, altering, repairing, improving, or demolishing of any public structure or building or other public improvements of any kind to public real property within this state, including the construction, reconstruction, or maintenance of all or part of a public road; or any other performance of labor for a public employer within this state under a contract or other bidding process.

(35) 'Public employer' means every department, agency, or instrumentality of the state or a political subdivision of the state with more than one employee.

(4)(6) 'Subcontractor' means a person or entity having 6. Only the portions of House Bill 87 that pertain to E-Verify have been reproduced here.

The full text of House Bill 87 is available at http://wwwl.legis.ga.gov/legis/201 1_12/pdf/hb87.pdf.

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privity of contract with a contractor and includes a subeentraetei, contract employee; or staffing agency--f any cfntracter regardlcss of its tier.

(7) 'Subcontractor' means a person or entity having privity of contract with a subcontractor or privity of contract with another person or entity contracting with a subcontractor or sub-subcontractor." ยง3.

Said article is further amended by revising subsection (a) and (b) of Code Section 13-10-91, relating to the verification of new employee eligibility, applicability, and rules and regulations as follows: "(a) Every public employer, including, but not limited to, every municipality and county, shall register and participate in the federal work authorization program to verify employment eligibility of all newly hired employees. Upon federal authorization, a public employer shall permanently post the employer's federally issued user identification number and date of authorization, as established by the agreement for authorization, on the employer's website; provided, however, that if a local public employer does not maintain a website, the identification number and date of atherization shall be puiblished aafmally in the official legal ergan- for- the eeunty then the local government shall submit such information to Carl Vinson Institute of Government of the University of Georgia to be posted by the institute on the website created for local government audit and budget reporting. The Carl Vinson Institute of Government of the University of Georgia shall maintain the information submitted and provide instructions and submission guidelines State departments, agencies, or for local governments. instrumentalities may satisfy the requirement of this Code section by posting information required by this Code section on one website maintained and operated by the state." 8

7. H.B. 87 Status Sheet, supranote 5.

8. Id.

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ยง 12.

Chapter 60 of Title 36 of the Official Code of Georgia Annotated, relating to general provisions applicable to local governments, is amended by revising Code Section 36-60-6, relating to issuance of local business licenses and evidence of state licensure, as follows: "36-60-6. (a) Every private employer with more than ten employees shall register with and utilize the federal work authorization program, as defined by Code Section 13-10-90.

The requirements of this subsection shall be effective on January 1, 2012, as to employers with 500 or more employees on July 1, 2012, as to employers with 100 or more employees but fewer than 500 employees, and on July 1, 2013, as to employers with more than ten employees but fewer than 100 employees. (b) For purposes of this Code section, the term 'employee' shall have the same meaning as set forth in subparagraph (A) of paragraph (1.1) of Code Section 48-13-5, provided that such person is also employed to work not less than 35 hours per week. (a)(c) Before any county or municipal corporation issues a business license, occupational tax certificate, or other document required to operate a business to any person engaged in a profession or business required to be licensed by the state under Title 43, the person m*ust shall provide evidence of such licensure to the appropriate agency of the county or municipal corporation that issues business licenses.

No business license, occupational tax certificate, or other document required to operate a business shall be issued to any person subject to licensure under Title 43 without evidence of such licensure being presented. (d) Before any county or municipal corporation issues or renews a business license, occupational tax certificate, or other document required to operate a business to any person the person shall provide evidence that he or she is authorized to use the federal work authorization program or evidence that the provisions of this Code section do not apply.

Evidence of such use shall be in the form of an affidavit provided by the Attorney General in subsection (f) of this

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Code section attesting that he or she utilizes the federal work authorization program in accordance with federal regulations or that he or she employs fewer than 11 employees or otherwise does not fall within the requirements of this Code section. Whether an employer is exempt from using the federal work authorization program as required by this Code section shall be determined by the number of employees employed by such employer on January 1 of the year during which the affidavit is submitted. The affidavit shall include the employer's federally assigned employment eligibility verification system user number and the date of authority for use. The requirements of this subsection shall be effective on January 1, 2012, as to employers with 500 or more employees, on July 1, 2012, as to employers with 100 or more employees but fewer than 500 employees, and on July 1, 2013, as to employers with more than ten employees but fewer than 100 employees. (e) Beginning December 31, 2012, and annually thereafter, any county or municipal corporation issuing or renewing a business license, occupational tax certificate, or other document required to operated a business shall provide to the Department of Audits and Accounts a report demonstrating that such county or municipality is acting in compliance with provisions of this Code section. This annual report shall identify each license or certificate issued by the agency in the preceding 12 months and include the name of the person or business issued a license or other document and his or her federally assigned employment eligibility verification system user number as provided in the affidavit submitted at the time of application. Subject to funding, the Department of Audits and Accounts shall annually conduct an audit of no fewer than 20 percent of such reporting agencies. (f) In order to assist private businesses and counties and municipal corporations in complying with the provisions of this Code section, the Attorney General shall provide a standardized form affidavit which may be used as acceptable evidence demonstrating use of the federal employment eligibility verification system or that the provision of subsection (b) of this Code section do not apply to the applicant. The form affidavit shall be posted by the Attorney General on the Department of Law's official website no later than January 1, 2012.

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(g) Once an applicant for a business license, occupational tax, certificate, or other document required to operate a business has submitted an affidavit with a federally assigned employment eligibility verification system user number, he or she shall not be authorized to submit a renewal application using a new or different federally assigned employment eligibility verification system user number, unless accompanied by a sworn document explaining the reason such applicant obtained a new or different federally assigned employment eligibility verification system user number. (b){h) Any person presenting false or misleading evidence of seh state licensure shall be guilty of a misdemeanor. Any government official or employee knowingly acting in violation of this Code section shall be guilty of a misdemeanor, provided, however, that any person who knowingly submits a false or misleading affidavit pursuant to this Code section shall be guilty of submitting a false document in violation of Code Section 16-10-20. It shall be a defense to a violation of this Code section that such person acted in good faith and made a reasonable attempt to comply with the requirements of this Code section. (i) Documents required by this Code section may be submitted electronically, provided the submission complies with Chapter 12 of Title 10. (j) The Attorney General shall be authorized to conduct an investigation and bring any criminal or civil action he or she deems necessary to ensure compliance with the provisions of this Code section. The Attorney General shall provide an employer who is found to have committed a good faith violation of this Code section 30 days to demonstrate to the Attorney General that such employer has come into compliance with this Code section. During the course of any investigation of violations of this Code section, the Attorney General shall also investigate potential violations of Code Section 16-9-121.1 by employees that may have led to violations of this Code section."

9. H.B. 87 Status Sheet, supranote 5.

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SPONSOR'S RATIONALE

Representative Matthew Ramsey introduced House Bill 8710 (the "Georgia Immigration Act") with concerns that the federal government had failed Georgia in protecting United States Representative Ramsey stated that Georgia borders." lawmakers could either "stand idly by" and wait on the federal government or they could act "within the bounds of the U.S. and State Constitution" to effectively address immigration b_ removing incentives for illegal persons to come to Georgia."

Prior to House Bill 87, the Governor signed the Georgia Security and Immigration Compliance Act ("Senate Bill 529") into law on April 17, 2006, which stated that "every public employer shall register and participate in the federal work authorization program to verify information of all new employees." 3 Representative Ramsey asserted that requiring contractors to submit E-Verifyl 4 documentation concurrently with applications to government agencies for public works

10. Id. 11. HB 87 House Debate 030311 Rep. Ramsey (1/3) YOUTUBE (Mar. 3, 2011) http://www.youtube.com/watch?v-JBKhiowtU c&feature=related.

12. GeorgianAgainstHB87, HB 87 House Debate 030311 Rep. Ramsey (1/3), YoUTUBE (Mar. 3, 2011), http://www.youtube.com/watch?v-JBKhiowtU-c&feature=related.

13. S.B. 529, 148th Gen. Assemb., Ist Reg. Sess. (Ga. 2006), availableat http://wwwl.legis.ga.gov/legis/2005 06/sum/sb529.htm (last visited May 15, 2012) [hereinafter S.B. 529 Status Sheet].

14. E-Verify Overview, U.S. CITIZENSHIP AND IMMIGRATION SERVS.,

http://www.uscis.gov/portal/site/uscis/template.PRINT/menuitem.ebld4c2a3 e5b9ac89243c6a7543f6dla/?vgnextoid=7fl 9fb41c8596210VgnVCM100000 b92ca60aRCRD&vgnextchannel=7fl9fb41c859621OVgnVCMIOOOOOb92ca 60aRCRD (last visited May 15, 2012). E-Verify is a free, web based software program operated by the U.S. Department of Homeland Security in conjunction with the Social Security Administration and provided to employers who volunteer to verify required Form 1-9 information. Id. Over 17 million cases were created nationally in the E-Verify system during 2010, over 3.7 million in 2011, and about 1, 400 new cases are entered per week.

Id. Nationally, participating employers must sign an agreement with the Department of Homeland Security agreeing to follow all requirements prior to verifying an employee's eligibility, tell the potential employees that EVerify will be used, and complete the Form 1-9 within three days of hiring an employee. Id.

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projects (state or local) started with Senate Bill 529' and was not new to House Bill 87.16 However, Senate Bill 529 was flawed because it lacked an enforcement mechanism which resulted in inconsistent submissions of the required E-Verify affidavits by contractors.' 7 Representative Ramsey also noted the necessity of obtaining "secure and verifiable identification" for the information process to be credible.18 Representative Ramsey asserted that addressing private employment concerns is a critical part of House Bill 87 because the availability of employment for illegal immigrants is the root cause of illegal immigration to Georgia.19 He further explained that E-Verify is a simple, efficient process that requires just a few extra seconds in the hiring process and only a few minutes to enroll online and get a result. o He commented that E-Verify is not only the best, but the only tool available to verify eligibility of a state's workforce.21 Representative Ramsey acknowledged concerns by Georgia employers over the accuracy of the E-Verify system; however, he also stated the system returns a "verified" response to queries 15. S.B. 529 Status Sheet, supra note 13; see also SB 529 New Rules and available at DEP'T OF LABOR, Regulations, GEORGIA http://www.dol.state.ga.us/spotlight/spsb 529_newrules.htm (last visited May 15, 2012).

Senate Bill 529 is the "Georgia Security and Immigration Compliance Act" of 2006 (Act 457). Section 2 of S.B. 529 enacted new work eligibility verification requirements that apply to Georgia's public employers, and the contractors and subcontractors of Georgia's public employers. Under Section 2 of SB 529, public employers, their contractors and subcontractors are required to verify the work eligibility of all newly hired employees through an electronic federal work authorization program. The new requirements became effective on July 1, 2007.

Id. 16. GeorgianAgainstHB87, HB 87 House Debate 030311 Rep. Ramsey 2011), 3, (Mar. YouTUBE (2/3) http://www.youtube.com/watch?v=nOoQkb21RS4&feature=related.

17. Id.

18. Id. 19. GeorgianAgainstHB87, HB 87 House Debate 030311 Rep. Ramsey (3/3) YouTUBE (Mar. 3, 2011), http://www.youtube.com/watch?v-mlIXGoQb-uk&feature-related.

20. Id. 21. Id.

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approximately 97 percent of the time. 22 Georgia employers are also concerned over the consequences of employing illegal workers who provide fraudulent identification which is then put into the E-Verify system.23 Representative Ramsey explained that a new provision will be added to the Aggravated Identify Fraud statute 24 imposing severe penalties on any person who offers fraudulent identification to get hired in Georgia. 25 Representative Ramsey stated that "[i]f there is one Georgia citizen going without a job because a person who came across the border illegally is holding it, that is one too many for me, especially in this tough economic time." 2 6 Supporters of House Bill 87 assert that it is a "victory for taxpayers" because illegal immigrants are "taking jobs from state residents and burdening Georgia's public schools, hospitals, and jails."2 7 Representative Ramsey stated that "to the extent that there is concern out there in the business community, just know we understand how important business is to our state," and that, "Georgia is going to continue to be a business-friendly state."28 However, House Bill 87 "represents our responsibility to watch the taxpayers' bottom line just as the business community vigilantly guards their bottom line." 29 OPPOSITION's RATIONALE

A general criticism is that the E-Verify process is projected to increase costs of the federal government due to its implementation, and decrease revenues and tax income Id. 23. GeorgianAgainstHB87, HB 87 House Debate 030311 Rep. Ramsey 2011), 3, (Mar. YouTUBE (3/3) http://www.youtube.com/watch?v-mllXGoQb-uk&feature=related.

24. Id. 25. GeorgianAgainstHB87, HB 87 House Debate 030311 Rep. Ramsey 2011), 3, (Mar. YouTUBE (3/3) http://www.youtube.com/watch?v-mllXGoQbuk&feature=related.

26. Id. 27. Jeremy Redmon, Governor signs Arizona-style immigration bill into available at 13, 2011, May ATLANTA J.-CONST., law, http://www.ajc.com/news/georgia-politics-elections/governor-signs-arizona.

2 8. Id. 29. Id. 22.

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generated by undocumented workers. 30 In a letter from Peter R. Orszag, Director ("Director") of the Congressional Budget Office, to the Honorable John Conyers Jr., Chairman of the Committee on the Judiciary in the U.S. House of Representatives, the Director projected the following: (1) the Department of Homeland Security would need to hire an additional 5,000 law enforcement positions in the following three years; (2) detention centers would need to increase their beds by 8,000; and (3) additional funding would be required to enforce the U.S. - Mexico border.3 1 In addition, federal revenues are estimated to decrease by $17.3 billion from 2012 to 2018 due in large part to the mandatory verification of employment eligibility through the EVerify -system. 32 Federal spending is expected to increase by $30 million from 2009 to 2018 to pay for the additional judges that would be required to adjudicate cases. 3 3 Also, discretionary spending associated with the E-Verify system, personnel, increased detention capacity, and similar costs are projected to cost $23.4 billion from 2009 to 2018.34 Lastly, according to U.S. Hispanic Chamber of Commerce President and CEO Javier Palomarez, "[m]andatory E-Verify at the state and federal level would stifle job growth by placing a disproportionate regulatory and costly burden on small business."3 According to the Migration Policy Institute, 36 the E-Verify system does not charge employers to 30. Letter from Peter R. Orszag, Director, Congressional Budget Office, to the Honorable John Conyers Jr., Chairman of the Committee on the Judiciary in the U.S. House of Representatives (Apr. 4, 2008) (on file with the John Marshall Law Journal).

31. Id. 32. Id. 33. Id. 34. Id.

35. Press Release, National Immigration Forum, E-Verify: States Bear the at available 5, 2011) (Jul. Burden, Economic http://immigrationforum.org/mediale-verify-states-bear-the-economicburden (last visited May 15, 2012).

36. Marc Rosenblum & Lang Hoyt, The Basics of E- Verify, the US Employer Verification System, MIGRATION INFO. SOURCE (Jul. 13, 2011), at available (last http://www.migrationinformation.org/usfocus/display.cfm?ID=846 visited May 15, 2012). "The Migration Policy Institute is an independent,

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participate in the system. 37 However, the cost to employers occurs when the employer must establish E-Verify secure procedures. 38 The administrative and technical costs that burden employers include (1) infrastructure investments such as upgrading hardware and software to be more secure; (2) training; (3) potential legal fees associated with the administration of the program; and (4) being required to continue to employ those workers who are waiting for resolution to an E-Verify discrepancy. 39 In September of 2011, three groups (Take Back Washington,4 0 Liberty Coalition,41 and Institute for Liberty 42 ) combined efforts to send a letter to the U.S. Congress regarding their concerns on the mandatory use of E-Verify. 43 The primary concerns were that E-Verify would create a mandatory national I.D. system making an employers' right to hire an employee of their choosing subject to governmental permission, and violating a Also, the system would require person's right to work.4 "citizens to secure permission from the Department of Homeland Security to enjoy the fruits of their labor is an nonpartisan, nonprofit think tank in Washington, DC dedicated to analysis of the movement of people worldwide." Id. 37. Id. 38. Id. 39. Id. 40.

TAKE BACK WASHINGTON.COM, http://www.takebackwashington.com/aboutus.html (last visited May 15, 2012). Take Back Washington specializes in making documentaries to educate Americans about the importance of "rescuing" the Constitution and "saving" the Bill of Rights. Id. 41.

About The Liberty Coalition, THE LIBERTY COAL., http://www.libertycoalition.net/about (last visited May 15, 2012). The Liberty Coalition advocates civil liberties and human rights. Id. 42.

About

IFL,

THE

LIBERTY,

FOR

INST.

www.instituteforliberty.org/index.php?submenu=About&src=gendocs&refAboutIFL&category=Main (last visited May 15, 2012). The Institute for Liberty is an organization that focuses on defending small businesses. Id. 43. Kathryn Serkes, et al., E-Verify Letter to Congress, TAKEBACKWASHINGTON.ORG

(Sept.

15,

2011),

available

http://www.takebackwashington.org/Clint_s_OpenLetter-html.html visited May 15, 2012).

44. Id.

at

(last

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unacceptable violation of our civil liberties." 4 5 With an implementation cost of $6.1 billion, E-Verify would cripple small businesses by mandating a cost prohibitive regulatory burden. 46 E-Verify would further require employers to become enforcement agents for the government. 47 The system may encourage an identity theft black market. 48 In the recent 2011 decision of Chamber of Commerce v.

Whiting, the U.S. Supreme Court answered the question of whether Arizona could require its citizens to use E-Verify, given that federal Immigration Reform and Control Act ("IRCA") prohibits "any State or local law-imposing civil or criminal sanctions upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens," however, that prohibition does not apply to licensing and similar laws a State may institute. 49 According to Arizona law, courts are allowed to "suspend or revoke the business licenses of in-state employers that employ unauthorized aliens." 50 The Court held that the Arizona law requiring an employer to use E-Verify, or potentially lose their business license was not in conflict with federal immigration law because "although Congress had made the program voluntary at the national level, it had expressed no In intent to prevent States from mandating participation.",5 has government federal the that said Court the fact, "consistently expanded and encouraged the use of E-Verify." 52 Justice Breyer dissented, stating the term "licensing" used in the Arizona statute was broadly construed and an expansive power to revoke a business license was not intended by Congress. 53 Georgia's E-Verify requirement has also been met with 45. Id. 46. Id. 47. Id. 48. Id. 49. Chamber of Commerce of the United States of America v. Whiting, 131 S.Ct. 1968, 1970 (2011).

50. Id. 51. Id. at 1987.

52. Id. at 1986.

53. Id. at 1970.

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resistance. Georgia requires both public and private employers with more than ten employees to use the E-Verify system.5 4 Charles Hall, Executive Director of the Georgia Fruit and Vegetable Growers Association,55 said that "Georgia is the poster child for what can happen when mandatory e-verify and enforcement legislation is passed without an adequate guest worker program" because it results in labor shortage in the At the United Fresh Produce agricultural industry.56 Association's Washington Public Policy 2011 Conference, Hall said that "most of the 'mandatory E-Verify' legislation is promoted as a jobs creation bill," however, when it comes to the agricultural industry, it "is not a job creating bill - it is job loss legislation."5 7 Therefore, Hall said that the Georgia Fruit and Vegetable Growers Association are primarily concerned with to House Bill 87's requirement of E-Verify because it places on additional burden on the farmers.

IMPLICATIONS IN GEORGIA

Historically, immigration has been under federal control, although some states such as Arizona and Georgia have recently passed similar immigration legislation mandating the use of EVerify.5 9 In 1986, Congress passed the Immigration Reform and Control Act ("IRCA") which prohibits, among other things, 54. E-Verify, NAT'L COMMERCE OF STATE LEGIS. (Nov. 4, 2011) available (last at http://www.ncsl.org/issues-research/immigration/e-verify-faq.aspx visited May 15, 2012).

55. About GFVGA, GA. FRUIT AND VEGETABLE GROWERS Ass'N, http://gfvga.org/ (last visited May 15, 2012). The GFVGA "provides programs and services to the membership designed to increase production efficiencies, provide educational opportunities, promote new markets, and improve encourage applied research monitor legislation, communications among GFVGA members and industry suppliers." Id. 56. Press Release, Georgia Fruit and Vegetable Growers Association, Economic Impact Report (Oct. 4, 2011) available at http://gfvga.org/20 11/10/press-statement-economic-impact-report-10-42011.

57. Id. 58. Id. 59. E-Verify FAQ, NAT'L CONFERENCE OF STATE LEGIS., available at http://www.ncsl.org/issues-research/immig/e-verify-faq.aspx#7 (last visited May 15, 2012).

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an employer from knowingly or intentionally hiring or continuing to employ an unauthorized immigrant. The IRCA also requires employers to have Form 1-9 completed on every new hire that attests to their eligibility to work.6 1 In 1996, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA") which created, among other things, E-Verify. 62 Signed into law on 2007, Arizona Senate Bill 1070 became a template for Georgia House Bill 87.63 Arizona requires the use of E-Verify, among other things, and imposes penalties for nonIn Chamber of Commerce v. Whiting, the compliance.64 Supreme Court upheld Arizona's mandatory use of E-Verify as discussed previously. 65 In Georgia Latino Alliance for Human Rights v. Deal, a Northern District judge issued a preliminary injunction against certain provisions of the Georgia's House Bill 87; however, provisions regarding E-Verify remain in force. 66 Unlike Arizona's Senate Bill 1070, Georgia's House Bill 87 specifically includes a provision dealing with the agricultural sector.67 Section 20.1 recognizes Georgia's agricultural sector as "a vital pillar of the state's economy and essential to the quality of life enjoyed by all Georgians," and understands that potential impacts on the agricultural industrial is an important factor to consider when implementing immigration reform.

Georgia is the foremost producer of peanuts, pecans, and watermelons in the nation and the second most producer of 60. Monica Castillo & Janie Schulman, Ready or Not, Here They Come: State E-Verify Laws and What Employers Should Know, EMP. LAW available at 2011), (Aug. 8 No. 23, Vol. COMMENT., http://www.industrycortex.com/datasheets/profile/1010819802/employmentthe (follow law-commentary-august-20 11 ready-or-not-here-they-com 2012).

15, May visited (last "Download This Datasheet hyperlink) 6 1. Id. 62. Id.

63. Fact Sheet for S.B. 1070, ARIz. STATE S., available at (last http://www.azleg.gov/legtext/491eg/2r/summary/s. 1070pshs.doc.htm visited May 15, 2012).

64. Id. 65. Whiting, 131 S.Ct. at 1968.

66. Georgia Latino Alliance for Human Rights v. Deal, 793 F.Supp.2d 1317 (N.D.Ga. 2011).

67. H.B. 87 Status Sheet, supra note 5.

68. Id.

House Bill 87- E-Verify

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737 70

cotton.

Contributing more than $68 billion annually, "agriculture is the main driver of the state's economic engine," with over 48,000 farmS71 statewide. 72 Therefore, Section 20.1 requires the Georgia Department of Agriculture to conduct a study regarding the "conditions, needs, issues, and problems" specifically associated with the agricultural industry.

Georgia farmers believe the use of E-Verify has, in part created a labor shortage in the state's agricultural industry. 7 Published in November 2011, a study by the University of Georgia Center for Agribusiness and Economic Development 75 projected that a labor shortage in the agricultural industry would cost the Georgia economy about $391 million. 76 Published in January 2012, the Report on Agricultural Labor 77 verified that about 11,000 agricultural positions usually filled by immigrant workers were left unfilled from the previous year. In response to the agricultural labor shortage, Governor Deal proposed a "partial solution" of letting probationers work in those vacant agricultural jobs. 79 69.

Ag

Stats

&

Agencies,

UGA

COOPERATIVE

EXTENSION,

http://extension.uga.edu/agriculture/ag-stats-agencies/index.cfm (last visited May 15, 2012).

70. Report on Agricultural Labor As Required by House Bill 87 (2012), GA. DEP'T OF AGRIC., available at agr.georgia.gov/AgLaborReport.pdf [hereinafter H.B. 87 RequiredReport on Ag Labor].

71. Id. 72. Agriculture, UGA COOPERATIVE EXTENSION, available at http://extension.uga.edu/agriculture (last visited May 15, 2012).

73. H.B. 87 Status Sheet, supra note 5.

74. Jeremy Redmon & Daniel Malloy, Report: Farm labor shortages my cost Georgia economy $391 million, ATLANTA J.-CONST., Oct. 4, 2011, availableat http://www.ajc.com/news/georgia-politics-elections/report-farmlabor-shortages-i 194039.html?printArticle=y (last visited May 15, 2012).

75. John C. McKissick & Sharon P. Kane, An Evaluation of Direct and Indirect Economic Loss Incurredby GeorgiaFruitand Vegetable Producers in Spring 2011, THE UNIV. OF GA. CTR. FOR AGRIBUSINESS AND ECON. DEV., (Nov. 2011) available at http://www.caes.uga.edulcenter/caed/pubs/20 11/documents/CR-I 1-01 .pdf (last visited May 15, 2012).

76. Redmond & Malloy, supra note 74.

77. H.B. 87 RequiredReport on Ag Labor, supra note 70.

78. Id. 79. Press Release, Georgia Governor Nathan Deal, Gov. Deal's Statement on the Status of Agriculture Workforce in Georgia, (Jun. 14, 2011) available

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Published in January 2012, the Report on Agricultural Labor asked a random sample of individuals in the Georgia agricultural community a series of questions regarding the implications of immigration legislation specifically on agriculture in Georgia. o One respondent stated that, "enrollment in E-verify program as of 2010" was a reason for hiring fewer employees than the previous year. 1 When asked about the major reasons for hiring difficulties, one respondent stated, "pickers did not come due to E-Verify fear." 82 Another question asked respondents to identify concerns they have about hiring a legal workforce for the upcoming season. 83 One respondent identified, "[h]iring immigrants that actually have proper information that chocks out on E-Verify." 84 Another respondent said the while he/she attempts to "verify documentation on all workers," they "often worry" if those workers are in fact legal.

Another respondent expressed concern regarding E-Verify and questioned, "[w]hy does the burden have to be placed on the employer."86 One respondent believes that E-Verify removes the responsibility of verifying worker documentation from the farmers and "puts it back on the government which is where it should be."87 Another believed that E-Verify must be mandatory because that will deter illegal immigration taking away the ability work; therefore, illegal immigrants will leave Georgia thereby reduce costs associated with, "medicare, WIC, food stamps, and public school overcrowding and other benefits that they receive for their 'anchor children'."

Further, Representative Matt Ramsey stated, "There are existing federal visa programs that provide a legal avenue for at http://gov.georgia.gov/00/press/detail/0,2668,165937316_172151555_17248 6990,00.html (last visited May 15, 2012).

80. H.B. 87 RequiredReport on Ag Labor, supra note 70.

81. Id. 82. Id. 83. Id. 84. Id. 85. Id. 86. Id. 87. Id. 88. Id.

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the agriculture industry to import as much migrant labor as necessary to supplement their domestic workforce."89 However, Representative Ramsey agrees with the Georgia farming community that the federal guest-worker programs, as currently in force, are expensive and "bureaucratically and administratively cumbersome." 90 In 2004, the number of temporary workers admitted to the United States was 1.5 million while the number of permanent workers admitted was only 155,330.91 For a significant number of employers, the temporary worker system is a method of transitioning to a permanent immigration status over a period of time.9 The current system has been described as "a patchwork that has been crafted in response to specific needs and exceptions." 93 According to the Migration Policy Institute, existing worker programs involve complicated processes that utilize three separate cabinet agencies: "the Labor Department (labor certification or attestation); the State Department (visa issuance); and the Department of Homeland Securit (adjudication of petition and determination of admissibility)."

The Institute stated that detailed regulations like temporary worker programs are ineffective when goals are not clear, the infrastructure is not sufficient, and the enforcement efforts are not dedicated to the objective of providing temporary workers. 95 LEGISLATIVE GENEALOGY House Bill 87 was first read on January 27, 2011, and again on January 31, 201 1.96 The Bill was read a third time and passed on March 3, 2011.97 The Bill proceeded from the House

89. Redmon & Malloy, supra note 74.

90. Id. 91. Deborah Waller Meyers, Temporary Worker Programs:A Patchwork Policy Response, MIGRATION POLICY INST. (Jan. 2006), available at http://www.migrationpolicy.org/ITFIAF/TFI_12_Meyers.pdf.

92. Id. 93. Id. 94. Id

95. Id. 96. H.B. 87 Status Sheet, supra note 5.

97. Id.

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to the Senate where it was read and referred on March 4, 2011.98 After the Senate favorably reported on the Bill, it was read a second time on March 31, 2011.99 The Bill was read a third time and passed by the Senate on April 11, 2011.100 The House agreed with the Senate amendments on April 12, 2011.101 On April 14, 2011, the Senate agreed to House amendments and reverted the Bill back to the House for further approval.102 The final version of the Bill, approved by the General Assembly, was sent to Governor Nathan Deal on April 20, 2011.103 The Bill was signed into law by the Governor Deal as Act 252 on May 13, 2011, and took effect in Georgia on July 1, 2011.104 Prepared by: JenniferK Walker Elizabeth J. Young

98. Id. 99. Id. 100. Id. 101. Id. 102. H.B. 87 Status Sheet, supra note 5.

103. Id. 104. Id

SENATE BILL 271: GEORGIA PUBLIC WORKS AND CONTRACTOR PROTECTION ACT

Amending 0. C. G.A. Article 3 of Chapter 10 of Title 13 First Signature: Senator Judson Hill (32nd) Co-Sponsors: Senator Barry Loudermilk (52nd) and Senator Chip Rogers (21st) Summary: Senate Bill 27 sought to redefine certain terms contained within Section 13-10-90 and clarify some of the provisions contained within Code Section 13-10-91 of the Official Code of Georgia. 2 Specifically, Senate Bill 27 sought to add time provisions relating to a public employer's usage of the "federal work authorization program" and the employer's ability to bid on government jobs;3 to make it a requirement for public employers, contractors and subcontractors to comply with the affidavit and work authorization program usage and file annual reports to the state auditor; to provide for audits and publication of those reports;4 and to add penalties and sanctions, in addition to the 12 month ban on bidding for failure to comply, that shall include misdemeanor charges for criminal negligence.5 Senate Bill 27 further sought to limit bidding of road construction contracts to only those contractors approved under the "IMAGE program of the United States Immigration and Customs Enforcement," and for other purposes.

Status: Senate read and referred on January 27, 2011' 1. S.B. 27, 151st Gen. Assemb., 1st. Reg. Sess. (Ga. 2011) (read and referred), available at http://wwwl.legis.ga.gov/legis/2011_12/pdf/sb27.pdf [hereinafter Ga. S.B. 27].

2. Id.

3. Id. at ยง 3.

4. Id. 5. Id. 6. Id. 7. 2011-2012 Regular Session-SB 27, Georgia Public Works and

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TEXT OF SENATE

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BILL 27

ยง1.

This Act shall be known and may be cited as the "Georgia Public Works and Contractor Protection Act." ยง2.

Article 3 of Chapter 10 of Title 13 of the Official Code of Georgia Annotated, relating to security and immigration compliance, is amended by revising Code Section 13-10-90, relating to definitions, as follows: "13-10-90.

As used in this article, the term: (1) 'Commissioner' means the Commissioner of the Georgia Department o Labor.

(2) 'Federal work authorization program' means any of the electronic verification of work authorization programs operated by the United States Department of Homeland Security or any equivalent federal work authorization program operated by the United States Department of Homeland Security to verify employment eligibility information of newly hired employees, pursuant to the Immigration Reform and Control Act of 1986 (IRCA), DPub. L. 99-603.

(2.1) 'Physical performance of services' means the building, altering, repairing, improving, or demolishing of any public structure or building or other public improvements of any kind to public real property, including the construction, reconstruction, or maintenance of all or part of a public road; or any other performance of labor for a public employer under a contract or other bidding process.

(3) 'Public employer' means every department, agency, or instrumentality of the state or a political subdivision of the ContractorProtection Act; redefine a certain term; provisions, GA. GEN. ASSEMB., http://wwwl.1egis.ga.gov/legis/2011_12/sum/sb27.htm (last visited May 15, 2012) [hereinafter S.B. 27 Status Sheet].

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state.

(4) 'Subcontractor' includes a subcontractor, contract employee, staffing agency, or any contractor regardless of its tier." ยง3.

Said article is further amended by revising subsection (b) of Code Section 13-10-91, relating to the verification of new employee eligibility, applicability, and rules and regulations, as follows: "(b)(1) No public employer shall enter into a contract pursuant to this chapter for the physical performance of services within this state unless the contractor registers and participates in the federal work authorization program to verify employment eligibility information of all newly hired employees or subcontractors. Before a bid for any such service is considered by a public employer, the bid shall include a signed, notarized affidavit from the contractor attesting to the following: (A) The affiant has registered with, and is authorized to use, and uses the federal work authorization program and: (i) Beginning on July 1, 2011, has been continuously using the federal work authorization program for the previous six months; (ii) Beginning on January 1, 2012, has been continuously using the federal work authorization program for the previous 12 months: (iii) Beginning on July 1, 2012, has been continuously using the federal work authorization program for the previous 18 months; and (iv) Beginning on January 1, 2013, has been continuously using the federal work authorization program for the previous 24 months.

Newly incorporated contractors shall show authority to use the federal work authorization program dated not more than 15 days from the date of incorporation or the issuance of a business license or occupational tax certificate, whichever is earlier; (B) The user identification number and date of

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authorization for the affiant; and (C) The affiant is using and will continue to use the federal work authorization program throughout the contract period and will contract only with subcontractors who present an affidavit with the date of authorization and the user number attesting to continuous use of the federal employment verification system: (i) Beginning on July 1, 2011 for the previous six months; (ii) Beginning on January 1, 2012, for the previous 12 months; (iii) Beginning on July 1, 2012, for the previous 18 months; and (iv) Beginning on January 1, 2013, for the previous 24 months.

Newly incorporated contractors shall show authority to use the federal work authorization program dated not more than 15 days from the date of incorporation or the issuance of a business license or occupational tax certificate, whichever is earlier for the previous six months.

An affidavit required by this subsection shall be considered an open public record once a public employer has entered into a contract for physical performance of services; provided, however, that any information protected from public disclosure by federal law or by Article 4 of Chapter 18 of Title 50 shall be redacted. Affidavits shall be maintained by the public employer for five years from the date of receipt.

(1.1) Any person who knowingly and willfully makes a false, fictitious, or fraudulent statement in an affidavit submitted pursuant to this subsection shall be guilty of violating Code Section 16-10-20, relating to falsifying a government document, and upon conviction, shall be punished as prescribed by that Code section.

(1.2) Except as otherwise provided in paragraph (1.1) of this subsection, any person who with criminal negligence violates any provision of this subsection shall upon conviction be guilty of a misdemeanor.

(1.3) Any subcontractor that subcontracts for goods and services with a subcontractor not in privity with the

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contractor shall provide the required affidavit to the contractor and to the public employer in the manner and time period required in this subsection.

(2) No contractor or subcontractor who enters a contract pursuant to this chapter with a public employer or a contractor of a public employer shall enter into such a contract or subcontract in connection with the physical performance of services or a contract for road construction under Chapter 4 of Title 32 within this state unless the contractor or subcontractor registers and participates in the federal work authorization program to verify employment eligibility information of all newly hired employees. Any employee, contractor, or subcontractor of such contractor or subcontractor shall also be required to satisfy the requirements of this paragraph.

(3) Upon contracting with a new subcontractor, a contractor or subcontractor shall, as a condition of any contract or subcontract entered into pursuant to this chapter, provide a public employer with notice of the identity of any and all subsequent subcontractors hired or contracted by that contractor or subcontractor. Such notice shall be provided within five business days of entering into a contract or agreement for hire with any subcontractor. Such notice shall include an affidavit from each subsequent contractor attesting to the subcontractor's name, address, user identification number, and date of authorization to use the federal work authorization program.

(4)(A) Each public employer shall submit a compliance report to the state auditor annually certifying compliance with the provisions of this subsection. Such compliance report shall be submitted not later than July 1 of each year and shall contain the public employer's federal employment verification user number and date of authorization and the legal name, address, and e-verifV user number of or proof of participation in any subsequent similar federal employment verification system by the contractor and each subcontractor and the date of the contract between the contractor and public employer and between the contractor and each subcontractor. Each report submitted to the state auditor by a public employer shall have attached thereto the sworn affidavit reauired by naragranh (1) of this

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subsection. The state auditor shall conduct annual compliance audits on a minimum of at least one-half of the reporting agencies and publish the results of such audits annually on or before September 30.

(B) Contingent upon appropriation or approval of necessary funding and in order to verify compliance with the provisions of this subsection, each year the Commissioner shall conduct no fewer than 100 random audits of public employers and contractors or may conduct such an audit upon probable cause to suspect a violation of this subsection. The results of the audits shall be published on the www.open.georgia.gov website and on the Georgia Department of Labor's website no later than December 31 of each year. The Georgia Department of Labor shall seek funding from the United States Secretary of Labor to the extent such funding is available.

(4.1)(A) If the state auditor finds any public employer which is a political subdivision or instrumentality of the state to be in violation of this subsection, such public employer shall be excluded from the list of qualified local governments under Chapter 8 of Title 50 until such time as the public employer demonstrates to the commissioner of community affairs that the public employer has corrected all deficiencies and is in compliance with this subsection. A new compliance report submitted to the state auditor shall be deemed satisfactory and correcting the prior deficient compliance report so long as the new report fully complies with this subsection.

(B) If the state auditor finds any public employer which is a state department or agency to be in violation of the provisions of this subsection twice in a five-year period, the funds appropriated to such state department or agency for the fiscal year following the year in which the agency was found to be in violation for the second time shall be not greater than 90 percent of the amount so appropriated in the second year of such noncompliance. Any public employer found to be in violation shall be listed on www.open.georgia.gov or another official state website with an indication and explanation of each violation.

(5) Any person who knowingly and willfully makes a false,

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fictitious, or fraudulent statement in an affidavit submitted pursuant to this subsection shall be guilty of a violation of Code Section 16-10-20 and, upon conviction, shall be punished as provided in such Code section. Contractors and subcontractors convicted for false statements based on a violation of this subsection shall be prohibited from bidding on or entering into any public contract for 12 months following such conviction. No public employee shall be liable for negligently accepting a bid from or contracting with a contractor or subcontractor convicted under paragraph (1.1) or (1.2) of this subsection. Any contractor or subcontractor found to be in violation shall be listed on www.open.georgia.gov or another official state website with an indication and explanation of each violation." ยง4.

Said article is further amended by adding a new subsection to Code Section 13-10-91, relating to the verification of new employee eligibility, applicability, and rules and regulations, to read as follows: "(g) On and after January 1, 2013, only corporations approved under the IMAGE program of the United States Immigration and Customs Enforcement shall be allowed to bid on any public works contracts in this state." ยง5.

This Act shall become effective December 31, 2011.

ยง 6.

All laws and parts of laws in conflict with this Act are repealed.

SPONSOR'S RATIONALE

Senate Bill 27 was introduced by Senator Judson Hill and cosponsored by Senators Barry Loudermilk and Chip Rogers.'

The Bill is designed to ensure that all public entities and employers, along with contractors and subcontractors who bid for public works contracts, comply with employment eligibility 8. S.B. 27 Status Sheet, supra note 7.

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verification requirements.9 A main concern that Senate Bill 27 seeks to address is the widespread use of illegal labor in the construction industry that has decreased work for American and legal immigrant contractors. 10 Contractors using legal workers are unable to compete because illegal workers are able to do the same work for a fraction of the pay" - reportedly six dollars less an hour than legal laborers. 12 Also, illegal workers are usually not given the overtime and benefits provided to legal workers.13 As a result, companies using illegal workers submit lower bids and are thus awarded construction projects over those using legal labor.14 According to Senator Judson Hill, "[t]he Bill's intent is to help employ Georgians by ensuring that only American citizens are hired on any public works projects, such as Senate Bill constructing roads and government buildings."

27's co-sponsor, Senator Loudermilk, stated that a primary purpose of the Bill was to "make sure those illegally in the country are not taking jobs of American citizens or legal immigrants."' 6 Another concern sought to be addressed by Senate Bill 27, according to Senators Hill and Loudermilk, is the proper use of taxpayer funds in regards to public works contracts.'

Reportedly, illegal workers have been used in major taxpayerfunded construction projects, such as Georgia schools, health 9. Senate Judiciary Committee Meeting Minutes, 151st Gen. Assemb., 1st 24 - Feb. 2, 2011) available at Reg. Sess. (Ga. Jan. http://www.senate.ga.gov/committees/Documents/201 1Minutes80.pdf [hereinafter S.B. 27 Comm. Min.] 10. Interview with Senator Barry Loudermilk, S. Dist. 52, in Atlanta, Ga. (Feb. 6, 2012) [hereinafter Loudermilk Interview].

11. Id. 12. Randy Travis, I-Team: Illegal Workers, Fox 5 NEWS, Mar. 4, 2012, 7:58 PM, http://www.myfoxatlanta.com/dpp/news/iteaml-Team-IllegalWorkers-20120213-pm-pk [hereinafter Fox 5 NEWS REPORT].

13. Id. 14. Id.

15. Jon Gillooly, Bill would put teeth in existing immigration law, THE at available 2011, 22, Jan. J., DAILY story/11093268/article-Bill-would-puthttp://www.mdjonline.com/view/full teeth-in-existing-immigration-law?instance=specialcoverage rightcolumn.

16. Loudermilk Interview, supra note 10.

17. Gillooly, supra note 15; Loudermilk Interview, supra note 10.

MARIETTA

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centers, courthouses, police departments, and military installations.' 8 Senator Hill stated that, "[w]hen taxpayers' money is used to develop government projects, I believe that the contractors we hire must be required to show that they only employ people who are here lawfully."' 9 Senator Loudermilk stated that, in light of the poor economy and the limited amount of jobs in the construction industry, "it is the right and prudent thing to do to ensure that taxpayer funded projects are not providing jobs for illegal immigrants." 20 Senator Loudermilk further stated "[t]axpayer funds should be used to hire American and legal immigrant workers only." 2 1 Immigration reform activist D.A. King of the Dustin Inman Society strongly supports Senate Bill 27 because in his view, the Bill will prevent public works contractors from 22 E-Verify is an circumventing the requirements of E-Verify. internet-based system that compares information from an employee's Form 1-9, Employment Eligibility Verification, to data from U.S. Department of Homeland Security and Social Security Administration records to confirm employment eligibility.23 Prior to the proposal of Senate Bill 27, Section 1310-91 of the Official Code of Georgia already required public employers to verify the employment eligibility of contractors.2 4 Public employers could not consider a contractor's bid unless the contractor signed a sworn affidavit pledging compliance with a federal work authorization program, currently E-Verify.2 5 However, the law did not require contractors to continuous comply with E-Verify prior to bidding on a public contract. y Contractors only had to attest that E-Verify would be used for 18. Fox 5 NEWS REPORT, supranote 12.

19. Gillooly, supra note 15.

20. Loudermilk Interview, supra note 10.

2 1. Id. 22. Telephone Interview with D. A. King, Immigration reform activist, in Marietta, Ga. (Feb. 16, 2012) [hereinafter King Interview].

23. What is E- Verify?, U.S. CITIZENSHIP AND IMMIGRATION SERVS. (Sept.

15, 2011), http://www.uscis.gov/portal/site/uscis/menuitem.ebl d4c2a3e5b9ac89243c6a 7543f6dla/?vgnextoid=e94888e60a405 110VgnVCM1000004718190aRCR D&vgnextchannel=e94888e60a405 11 0VgnVCM1000004718190aRCRD. 24. S.B. 27 Comm. Min., supra note 9.

25. O.C.G.A. ยง 13-10-91(b)(1) (LexisNexis 2012).

26. King Interview, supra note 22.

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employees hired in the future.27 According to King, this allowed contractors to bid on and secure public contracts while still employing illegal workers because current employees were not checked for eligibility.28 Also, participation in E-Verify is only voluntary unless a company is a federal contractor. 29 King stated that, as a result, many contractors only register for EVerify in order to bid on a public contract then once the government bid has been secured the contractor simply drops 30 the program.

Senate Bill 27 seeks to address these problems by requiring public contractors, as of July 1, 2011, to use E-Verify for at least six months before being eligible to bid on any public works contracts. 3 1 The Bill further provides timelines which require continuous use of E-Verify for at least two years by January 1, 2013.32 Kings says, that the specified timelines would "create a pool of contractors with constant use of EVerify so as to stop contractors from dropping E-Verify after winning a bid."33 Subsequent to January 1, 2013, the Bill further provides that only corporations approved under the United States Immigration and Customs Enforcement ("ICE") IMAGE program will be allowed to bid on any public works contracts in Georgia. 34 IMAGE is a federal program introduced by ICE that assists employers in preventing unlawful employment.3 5 To be deemed "IMAGE certified," employers must enroll in the membership implement the IMAGE program and requirements.36 Employers are required to comply with the following: "enroll in . . E-Verify . . ., establish a written hiring

and employment eligibility verification policy that includes an internal Form 1-9 audit at least once a year, and submit to a 27. Id. 28. Id. 29. Gillooly, supra note 15.

30. Id. 31. S.B. 27 Status Sheet, supra note 7.

32. Id. 33. Gillooly, supranote 15.

34. S.B. 27 Status Sheet, supra note 7.

35. IMAGE, U.S. IMMIGRATION AND CusToMs http://www.ice.gov/image/ (last visited May 15, 2012).

36. Id.

ENFORCEMENT,

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Form 1-9 Inspection . . . ."37

751

King stated that the IMAGE

requirements, particularly the 1-9 initial inspection and annual audits, will eliminate contractor's ability to employ illegal workers because the audits extend to both future and current

employees. 38 King also supports Senate Bill 27 because he feels it will encourage the enforcement of penalties against contractors who violate employment verification requirements.3 9 King stated that contractors often lie on their affidavits pledging compliance with E-Verify. 40 Furthermore, local governments are accused of failing to check whether contractors are in violation of E41 Moreover, even when contractors are Verify's requirements. caught lying, little, if any, penalty is given.4 2 Senate Bill 27 addresses this issue by curtailing funds for local governments or official agencies that consistently violate its verification requirements. 4 3 King said that these provisions will make it more difficult for contractors to cheat in regards to their If political instrumentalities are subject to affidavits." penalties, they will have an incentive to ensure that all contractors and sub-contractors remain in compliance. 4 5 OPPOSITION'S RATIONALE

The Associated General Contractors ("AGC") is one of the main interest groups in opposition to Senate Bill 27.46 AGC is a 501(c)(6) non-profit corporation and professional trade association whose members include general contractors, builders and construction managers. 4 7 AGC's first concern is 37. Id. 38. King Interview, supra note 22.

39. Id. 40. Gillooly, supra note 15.

41. Fox 5 NEws REPORT, supra note 12.

42. Id. 43. S.B. 27 Status Sheet, supra note 7.

44. Gillooly, supra note 15.

45. King Interview, supra note 22.

46. Telephone Interview with Mark S. Woodall, Director of Governmental Affairs, The Associated General Contractors Georgia Branch, in Atlanta, Ga. (Feb. 7, 2012) [hereinafter Woodall Interview].

47. Building Your Quality of Life, GA. BRANCH, THE ASSOCIATED GEN.

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the Bill's requirement that contractors enroll in E-Verify for six months prior to being eligible to bid or propose on public works contracts. 48 AGC believes this could potentially eliminate new businesses or joint ventures from being eligible to bid on public works contracts. 49 Secondly, AGC opposes the Bill because it requires public works contractors to participate in the Department of Homeland Security's IMAGE Program.5 0 Although businesses in other industries may voluntarily participate in IMAGE, the Bill singles out the construction industry by mandating that all public works contractors enroll. 5' IMAGE requires employers to submit to 1-9 Compliance Audits by the Department of Homeland Security, wage reporting audits and social security verification of existing employees. 52 i addition to being subjected to audits, E-Verify adds an administrative burden to employers during the hiring process.53 Also, AGC sees immigration reform as a federal issue and supports federal comprehensive reform because its members are bound by federal law. 54 AGC's opposition is supported by many others who believe that immigration reform and control are issues that belong to the federal government.55 Lastly, AGC believes that any standard of immigration compliance should be applied across all industries and therefore, other businesses CONTRACTORS OF AMER., INC., http://www.agcga.org/ (last visited May 15,

2012).

48. Mark S. Woodall, Georgia Branch, AGC 2011 Week 5 Legislative http://www.agcga.org/galleries/new2011), 9, 1 (Feb. Report, gallery/2011%2OWeek%205%20Legislative%2OReport.pdf.

49. Id. 50. Id. 51. Woodall Interview, supra note 46.

52. Woodall, supra note 48.

53. Telephone Interview with Nicole A. Kersey, Managing Director Immigration Compliance Center, Seyfarth Shaw, LLP, in Atlanta, Ga. (Feb. 2, 2012) [hereinafter Kersey Interview].

54. Woodall Interview, supra note 46.

55. Brief for Business Organizations et al. as Amici Curiae Supporting Petitioners, at 7, Chamber of Commerce of the United States v. Whiting, 131 S.Ct. 1968 (2011) (No. 09-115), 2010 WL 3518660, at *7 (quoting a congressional hearing where Rep. Edwards stated that the "responsibility for resolving the illegal alien problem" should be that of the federal Government) (internal citation omitted) [hereinafter Brief for Business Organizations].

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should be held to the same standard. 56 The American Civil Liberties Union of Georgia ("ACLU") also opposes the Bill, noting that the E-Verify database is prone to error and that Congress intended that E-Verify be a voluntary program.5 7 These errors can include problems with social security earnings within the database or social security numbers transmitted inaccurately. 58 ACLU explains that businesses using E-Verify report that 10-15% of eligible workers are deemed ineligible, and that the errors disroportionately affect lawful residents and naturalized citizens.5 Secondly, Congress intended E-Verify to be a voluntary program.60 "Congress has 56. Woodall, supra note 48; Woodall Interview, supra note 46.

57. Anti-Immigrants' Rights Legislation in 2011, AMER. CiVIL LIBERTIES available at 1 (2011), ("ACLUGA"), GA. OF UNION http://www.acluga.org/Anti-immigrants%27%20rights%201egislation2011a.pdf [hereinafterAnti-Immigrants'RightsLegislation in 2011].

58. Katharine Madison Burnett, Illegal Immigration, Social Security Numbers, and the FederalPrivacyAct: A Suggested Avenue ofLitigation, 25 GA. ST. U. L. REv. 503, 513-514 (Winter 2008). The Social Security Administration ("SSA") has an Earnings Suspense file for social security earnings fund that are submitted by employers for employee social security numbers that do not match SSNs on file with the SSA. Id. When submitted funds do not match, the SSA will send a "no-match" letter to the employer in addition to an insert from the Department of Homeland Security indicating that "the employer has hired unauthorized workers . . . [and] could be

subjected to criminal and civil liability." Id. (citing Am. Fed'n of Labor v.

Chertoff, 552 F. Supp. 2d 999, 1003-1004 (N.D. Cal. 2007). These letters would be based on "numerous errors" in the SSA records. Id. (internal citations omitted).

59. Anti-Immigrants' Rights Legislation in 2011, supra note 57; see also Brief for Business Organizations, supra note 56, at 24 (finding that "one of the databases on which E-verify relies - contains inaccuracies that could result in the communication of incorrect work authorization information to employers on a substantial scale." Further, the "citizenship status of aliens who become naturalized citizens" does not get updated regular which causes "significant problem[s]" increasing the "error rate . . . for foreign-born employees" (citation omitted)).

60. Anti-Immigrants' Rights Legislation in 2011, supra note 57; see also Brief for Business Organizations, supra note 55, at 6 (stating that "Congress deliberately specified [E-verify] should be voluntary." Petitioners further stated that the state and local immigration laws were so varied that they "undermines Congress's intent to establish a comprehensive and uniform national framework that limits the imposition of undue burdens on businesses. Id.

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kept E-Verify strictly voluntary for good reason: while the program continues to evolve and improve, it imposes significant burdens on employers." 61 Mandatory participation will result in a loss of time and resources.62 IMPLICATIONS IN GEORGIA

Senate Bill 27, if passed, is likely to have few impacts on Georgia employers and potential employees; however, contractors and subcontractors will find some benefits in the Bill's enactment.63 Because Senate Bill 27 requires contractors and sub-contractors to use a "federal work authorization program," some believe local contractors will find more jobs since these contractors will not be competing with illegal immigrants.64 This would be beneficial to Georgia's economy in that the unemployment amount could decrease infusing more money back into the economy.65 Georgia's economy will further benefit in that tax funds collected for projects will be used efficiently because money will go back to Georgia residents and less funds can be used for projects because contractors can charge less. 66 Despite the increased amount of work, the Bill may have a negative impact on contractors and sub-contractors as well.

Most significantly, compliance with the Bill could increase the contractor's administrative labor costs and burden.67 This potential burden is a result of the annual compliance reports the contractor must file, the annual audits the contractor is subjected to, and the requirement to continuously use an authorization

61. Brief for Business Organizations, supra note 55, at 22-23.

62. Anti-Immigrants'RightsLegislation in 2011, supranote 57.

63. Loudermilk Interview, supra note 10.

64. Id. 65. Id. 66. Id. 67. Kersey Interview, supra note 53; see also Brief for Business Organizations, supra note 55, at 4 (arguing that each immigration law the states enact "by itself imposes substantial costs on businesses that desire in good faith to comply with all applicable standards. Collectively, they impose an enormous financial and administrative burden on multi-state businesses. . . .")

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program. 8 The contractors have to expend the time and money to complete the employee authorizations because a failure to comply with the authorization program can result in a loss of bids. If the contractor falsifies documents or is found to have violated this section, the contractor is unable to obtain public contracts for the next twelve months.7 0 Lastly, the errors in the E-verify database and operation could cause employers to expend money hirin and time training employees thought to be authorized workers.

LEGISLATIVE GENEALOGY Senate Bill 27 was first pre-filed as Senate Bill 3 on November 16, 2010.72 The Bill was modified to change the requirement for a sixth month continuous usage of the federal work authorization program on Lines 46 and 4773 to a twentyfour month requirement, which will be introduced in six month increments beginning July 1 2011 contained in Lines 48 through 55 of Senate Bill 27.

Senate Bill 27 also contained the same twenty-four month introduction of the compliance requirement in Lines 64 through 67, which were not included in Senate Bill 3.7 An additional change from Senate Bill 3 to 68. Id.; see also S.B. 27 Status Sheet, supra note 7.

69. S.B. 27 Status Sheet, supra note 7.

70. Id. 71. Brief for Business Organizations, supra note 55, at 25 (stating that "Everify .. . produces erroneous results in the converse direction, mistakenly designating unauthorized workers to be authorized.") A "governmentcommissioned study" found "E-Verify's inaccuracy rate for unauthorized workers exceeds 50 percent, with more than half of unauthorized workers mistakenly deemed authorized." Id. (citing Findings of the E-Verify Program Evaluation xxv (2009), WESTAT, available at http://www.uscis.gov/USCIA/E-Verify/E-Verify/Final%2 1OEVerify%20Report%2012-16-092.pdf).

72. S.B. 3, 151st Gen. Assemb., 1st. Reg. Sess. (Ga. 2011) (Prefile) available at http://www.1egis.ga.gov/Legislation/20112012/108063.pdf [hereinafter S.B. 3 Status Sheet].

73. Id.

74. S.B. 27 Status Sheet, supra note 7.

75. Compare S.B. 27, 151st Gen. Assemb., 1st. Reg. Sess. (Ga. 2011) (read and referred), available at http://www.legis.ga.gov/Legislation/20112012/108620.pdf; with S.B. 3,

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Senate Bill 27 was the removal requiring the Commissioner to report, "upon finding probable cause to suspect any violation of [the] subsection" to the authorities on Lines 101 through 103.76 Lastly, Senate Bill 27 added subsection "(g)" to Code Section 13-10-91 providing that, after January 1, 2012, a corporation wanting to bid on a state public works contract must be approved under IMAGE.77 Senate Bill 27 was introduced on January 26, 2011, and was Senate Bill 27 was read and referred on January 27, 2011. sent before the Senate Judiciary Committee for a hearing only on February 2, 1011.7 9 The Bill may not proceed because many of its provisions were included in House Bill 87.80 Prepared by: Ginger Fowler Joy Smith Shaheem Williams

151st Gen. Assemb., Ist. Reg. Sess. (Ga. 2011) (Prefile), available at http://www.legis.ga.gov/Legislation/20112012/108063.pdf.

76. S.B. 3 Status Sheet, supra note 72.

77. S.B. 27 Status Sheet, supra note 7.

7 8. Id. 79. S.B. 27 Comm. Min., supra note 9.

80. Loudermilk Interview, supra note 10; see also H.B. 87, 151st Gen. (enacted), available at 1st Reg. Sess. (Ga. 2011) Assemb., http://www.legis.ga.gov/Legislation/en-US/display/20112012/HB/87.

SENATE BILL 1041: STATE GOVERNMENT; PROHIBIT POLICIES

BY LOCAL GOVERNMENTS THAT LIMIT/RESTRICT THE ENFORCEMENT OF IMMIGRATION LAWS

Amending 0. C.G.A. ยง 50-36-20 to -28 First Signature: Senator Jeff Mullis (53rd) Co-Sponsors: Senator Jack Murphy (27th), Senator Bill Heath (31st), Senator Steve Gooch (51st), Senator Barry Loudermilk (52nd), and Senator Bill Jackson (24th) Summary: The Bill was proposed to amend Chapter 36 of Title 50 of the Official Code of Georgia Annotated by providing a more straight-forward and comprehensive code section for law enforcement to follow when handling undocumented immigrants.2 This Bill was proposed in support of the Georgia General Assembly's directive on illegal immigration reform.3 Status: Senate Read and Referred on February 17, 20114 TEXT OF SENATE BILL

104

ยง 1.

The General Assembly finds that there is a compelling interest in the cooperative enforcement of federal immigration laws throughout all of Georgia. The General Assembly declares that 1. S.B. 104, 15 1st Gen. Assemb., 1st Reg. Sess. (Ga. 2011) available at http://wwwl.legis.ga.gov/legis/2011_12/pdflsbl04.pdf [hereinafter Ga. S.B. 104].

2. Id. 3. Id. 4. 2011-2012 Regular Session-SB 104, State Government; Prohibit Polices by Local Governments that Limit/Restrict the Enforcement of Immigration Laws; Definitions, GA. GEN. ASSEMB., http://wwwl.legis.ga.gov/legis/2011_12/sum/sb l04.htm (last visited May 15, 2012) [hereinafter S.B. 104 Status Sheet].

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the intent of this Act is to make attrition through enforcement the public policy of all state and local government agencies in Georgia. The provisions of this Act are intended to work together to discourage and deter the unlawful entry and presence of aliens and economic activity by persons unlawfully present in the United States.

ยง2.

Chapter 36 of Title 50 of the Official Code of Georgia Annotated, relating to verification of lawful presence within the United States, is amended by designating the existing text as Article 1 and adding a new article to read as follows: "ARTICLE 2 50-36-20.

As used in this article, the term 'unauthorized alien' means an alien who does not have the legal right or authorization under federal law to work in the United States as described in 8 U.S.C. Section 1324a(h)(3).

50-36-21. (a) No official or agency of this state or any county, city, town, or other political subdivision of this state shall adopt a policy that limits or restricts the enforcement of federal immigration laws to less than the full extent permitted by federal law. (b) For any lawful stop, detention, or arrest made by a law enforcement official or agency of this state or any county, city, town, or other political subdivision of this state where reasonable suspicion exists that the person is an alien who is unlawfully present in the United States, a reasonable attempt shall be made, when practicable, to determine the immigration status of the person. The person's immigration status shall be verified with the federal government pursuant to 8 U.S.C. Section 1373(c). (c) If an alien who is unlawfully present in the United States is convicted of a violation of state or local law, on discharge from imprisonment or assessment of any fine that is imposed

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the alien shall be transferred immediately to the custody of United States Immigration and Customs Enforcement or United States Customs and Border Protection. (d) Notwithstanding any other law, a law enforcement agency may securely transport an alien who is unlawfully present in the United States and who is in the agency's custody to a federal facility in this state or to any other point of transfer into federal custody that is outside the jurisdiction of the law enforcement agency. (e) A law enforcement officer, without a warrant, may arrest a person if the officer has probable cause to believe that the person has committed any public offense that makes the person removable from the United States. (f) Except as provided in federal law, officials or agencies of this state and counties, cities, towns and other political subdivisions of this state shall not be prohibited or in any way be restricted from sending, receiving, or maintaining information relating to the immigration status of any individual or exchanging that information with any other federal, state, or local governmental entity for the following official purposes: (1) Determining eligibility for any public benefit, service, or license provided by any federal, state, local, or other political subdivision of this state; (2) Verifying any claim of residence or domicile if determination of residence or domicile is required under the laws of this state or by a judicial order issued pursuant to a civil or criminal proceeding in this state: (3) Confirming the identity of any person who is detained or (4) If the person is an alien, determining whether the person is in compliance with the federal registration laws prescribed by Title II, Chapter 7 of the federal Immigration and Nationality Act. (g) A person may bring an action in the superior courts to challenge any official or agency of this state or a county, city, town, or other political subdivision of this state that adopts or implements a policy that limits or restricts the enforcement of federal immigration laws to less than the full extent permitted by federal law. If there is a judicial finding that an entity has violated this subsection, the court shall order any of the

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following: (1) That the person who brought the action recover court costs and attorney fees: and (2) That the entity pay a civil penalty of not less than $1,000.00 and not more than $5,000.00 for each day that the policy has remained in effect after the filing of an action pursuant to this subsection. (h) A court shall collect the civil penalty prescribed in subsection (g) of this Code section and remit the civil penalty to the Office of the State Treasurer for deposit in the general fund of the state treasury. (i) A law enforcement officer shall be indemnified by the law enforcement officer's agency against reasonable costs and expenses, including attorney fees, incurred by the officer in connection with any action, suit, or proceeding brought pursuant to this Code section to which the officer may be a party by reason of the officer being or having been a member of the law enforcement agency, except in relation to matters in which the officer is adjudged to have acted in bad faith. (i) This Code section shall be implemented in a manner consistent with federal laws regulating immigration, protecting the civil rights of all persons, and respecting the privileges and immunities of United States citizens.

50-36-22. (a) In addition to any violation of federal law, a person shall be guilty of unlawful presence if the person is both: (1) Present on any public or private land in this state; and (2) In violation of 8 U.S.C. Section 1304(e) or 1306(a). (b) In the enforcement of this Code section, the final determination of an alien's immigration status shall be determined by either: (1) A law enforcement officer who is authorized by the federal government to verify or ascertain an alien's immigration status; or (2) A law enforcement officer or agency communicating with United States Immigration and Customs Enforcement or United States Border Protection pursuant to 8 U.S.C. Section 1373(c). (c) A person who is sentenced pursuant to this Code section shall not be eligible for suspension or commutation of

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sentence or release on any basis until the sentence imposed is served. (d) In addition to any other penalty prescribed by law, the court shall order the person to pay jail costs and an additional assessment in the following amounts: (1) For a first violation, $500.00: and (2) If the person was previously subject to an assessment pursuant to this subsection, $1,000.00. (e) A court shall collect the assessments prescribed in subsection (d) of this Code section and remit the assessments to the Office of the State Treasurer for deposit in the general fund of the state treasury. (f) This Code section shall not apply to a person who maintains authorization from the federal government to remain in the United States. (g)(1) Except as otherwise provided in this subsection, any person violating this Code section shall be guilty of a misdemeanor.

(2) A person who violates this Code section while in possession of: (A) A controlled substance or marijuana as defined in Code Section 16-13-21; (B) Substances in violation of Code Section 16-13-30.5; (C) A deadly weapon or any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury: or (D) Property that is used for the purpose of any felony, including any completed or preparatory offense, that involves the use of a deadly weapon or a weapon of mass destruction or the intentional or knowing infliction of serious physical injury with the intent to either: (i) Influence the policy or affect the conduct of this state or any of the political subdivisions, agencies, or instrumentalities of this state; or (ii) Cause substantial damage to or substantial interruption of public communications, communication service providers, public transportation, common carriers, public utilities, public establishments, or other public services shall be guilty of a felony and, upon conviction thereof, shall be punished by imprisonment for not less than one nor

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more than ten years.

(3) Except as provided in paragraph (2) of this subsection, a person who is convicted of violating this Code section for a second or subsequent time or who, within 60 months before the violation, has been removed from the United States pursuant to 8 U.S.C. Section 1229a or has accepted a voluntary removal from the United States pursuant to 8 U.S.C. Section 1229c shall be punished by imprisonment for not less than one nor more than five years.

50-36-23. (a) For the purposes of this Code section, the term: (1) 'Family member' means the person's parent, grandparent, sibling, or any other person who is related to the person by consanguinity or affinity to the second degree.

(2) 'Procurement of transportation' means any participation in or facilitation of transportation and includes: (A) Providing services that facilitate transportation, including travel arrangement services or money transmission services; and (B) Providing property that facilitates transportation, including a weapon, a vehicle or other means of transportation, or false identification, or selling, leasing, renting, or otherwise making available property or real property that is used to facilitate smuggling of human beings.

(3) 'Smuggling of human beings' means the transportation, procurement of transportation, or use of property or real property by a person or an entity that knows or has reason to know that the person or persons transported or to be transported are not United States citizens, permanent resident aliens, or persons otherwise lawfully in this state or have attempted to enter, entered, or remained in the United States in violation of law. (b) It shall be unlawful for a person intentionally engage in the smuggling of human beings for profit or commercial purposes. (c)(1) Except as otherwise provided in this subsection, a violation of this Code section shall be a felony punishable by imprisonment for not less than one nor more than five

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years.

(2) A violation of this Code section shall be punishable by imprisonment for not less than three nor more than ten years if the human being who is smuggled is under 18 years of age and is not accompanied by a family member over 18 years of age or the offense involved the use of a deadly weapon or any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury.

(3) A violation of this Code section shall be punishable by imprisonment for not less than two nor more than ten years if the offense involves the use or threatened use of physical force, but does not involve the use of a deadly weapon or any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury. (d) Notwithstanding any other law to the contrary, a peace officer may lawfully stop any person who is operating a motor vehicle if the officer has reasonable suspicion to believe the person is in violation of any traffic law and this Code section.

50-36-24. (a) For the purposes of this Code section, the term 'solicit' means verbal or nonverbal communication by a gesture or a nod that would indicate to a reasonable person that a person is willing to be employed. (b) It shall be unlawful for an occupant of a motor vehicle that is stopped on a street, roadway, or highway to attempt to hire or hire and pick up passengers for work at a different location if the motor vehicle blocks or impedes the normal movement of traffic. (c) It shall be unlawful for a person to enter a motor vehicle that is stopped on a street, roadway, or highway in order to be hired by an occupant of the motor vehicle and to be transported to work at a different location if the motor vehicle blocks or impedes the normal movement of traffic. (d) It shall be unlawful for a person who is unlawfully present in the United States and who is an unauthorized alien to knowingly apply for work, solicit work in a public place, or perform work as an employee or independent contractor in

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this state. (e) A violation of this Code section shall be a misdemeanor.

50-36-25. (a) It shall be unlawful for a person who is in violation of a criminal offense to: (1) Transport or move or attempt to transport or move an alien in this state in a means of transportation if the person knows or recklessly disregards the fact that the alien has come to, has entered into, or remains in the United States in violation of law(2) Conceal, harbor, or shield or attempt to conceal, harbor, or shield an alien from detection in any place in this state, including any building or any means of transportation, if the person knows or recklessly disregards the fact that the alien has come to, has entered, or remains in the United States in violation of law; or (3) Encourage or induce an alien to come to or reside in this state if the person knows or recklessly disregards the fact that such coming to, entering, or residing in this state is or will be in violation of law. (b) A person who violates this Code section is guilty of a misdemeanor; provided, however, that a violation of this Code section that involves ten or more illegal aliens shall be a felony punishable by imprisonment for not less than one nor more than three years and a fine of not more than $1,000.00 for each alien involved. (c) A means of transportation that is used in the commission of a violation of this Code section shall be subject to seizure and forfeiture in the same manner and using the same procedures as provided in Code Section 16-13-49.

50-36-26. (a) An employer shall not knowingly or intentionally employ an unauthorized alien. If, in the case when an employer uses a contract, subcontract, or other independent contractor agreement to obtain the labor of an alien in this state, the employer knowingly or intentionally contracts with an unauthorized alien or with a person who employs or contracts with an unauthorized alien to perform the labor, the employer violates this subsection.

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(b) The Attorney General shall prescribe a complaint form for a person to allege a violation of subsection (a) of this Code section. The complainant shall not be required to list the complainant's social security number on the complaint form or to have the complaint form notarized. On receipt of a complaint on a prescribed complaint form that an employer allegedly knowingly or intentionally employs an unauthorized alien, the Attorney General or district attorney of the judicial circuit in which the alleged unauthorized alien is or was employed by the employer is located shall investigate whether the employer has violated subsection (a) of this Code section. If a complaint is received but is not submitted on a prescribed complaint form, the Attorney General or district attorney of the judicial circuit in which the alleged unauthorized alien is or was employed by the employer is located may investigate whether the employer has violated subsection (a) of this Code section. This subsection shall not be construed to prohibit the filing of anonymous complaints that are not submitted on a prescribed complaint form. The Attorney General or district attorney shall not investigate complaints that are based solely on race, color, or national origin. A complaint that is submitted to a district attorney shall be submitted to the district attorney in the judicial circuit in which the alleged unauthorized alien is or was employed by the employer. The sheriff or any other local law enforcement agency may assist in investigating a complaint.

When investigating a complaint, the Attomey General or district attorney shall verify the work authorization of the alleged unauthorized alien with the federal government pursuant to 8 U.S.C. Section 1373(c). A state, county, or local official shall not attempt to independently make a final determination on whether an alien is authorized to work in the United States. An alien's immigration status or work authorization status shall be verified with the federal govemment pursuant to 8 U.S.C. Section 1373(c). A person who knowingly files a false or frivolous complaint under this subsection is guilty of a misdemeanor. (c) If, after an investigation, the Attorney General or district attorney determines that the complaint is not false and frivolous: (1) The Attorney General or district attorney shall notify United States Immigration and Customs Enforcement of the

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unauthorized alien; (2) The Attorney General or district attorney shall notify the local law enforcement agency of the unauthorized alien; and (3) The Attorney General shall notify the appropriate district attorney to bring an action pursuant to subsection (d) of this Code section if the complaint was originally filed with the Attorney General. (d) An action for a violation of subsection (a) of this Code section shall be brought against the employer by the district attorney of the judicial circuit containing the county where the unauthorized alien employee is or was employed by the employer. The district attorney shall not bring an action against any employer for any violation of subsection (a) of this Code section that occurs before January 1, 2012. A second violation of this Code section shall be based only on an unauthorized alien who is or was employed by the employer after an action has been brought for a violation of subsection (a) of this Code section. (e) For any action in superior court under this Code section, the court shall expedite the action, including assigning the hearing at the earliest practicable date. (f)(1) For a first violation of subsection (a) of this Code section, as described in paragraph (3) of this subsection, the court: (A) Shall order the employer to terminate the employment of all unauthorized aliens in this state; (B) Shall order the employer to be subject to a five-year probationary period for the business location where the unauthorized alien performed work. During the probationary period the employer shall file with the district attorney quarterly reports in a form and containing such information as may be ordered by the court of each new employee who is hired by the employer at the business location where the unauthorized alien performed work; (C) Shall order the employer to file a signed sworn affidavit with the district attorney within three business days after the order is issued. The affidavit shall state that the employer has terminated the employment of all unauthorized aliens in this state and that the employer

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will not intentionally or knowingly employ an unauthorized alien in this state. The court shall order the appropriate agencies to suspend all licenses subject to this subparagraph held by the employer if the employer fails to file such signed sworn affidavit with the district attorney within three business days after the order is issued. All licenses suspended under this subparagraph shall remain suspended until the employer files a signed attorney. district the with affidavit sworn Notwithstanding any other law, on filing of the affidavit, the suspended licenses shall be reinstated immediately by the appropriate agencies. For the purposes of this subparagraph, the licenses subject to suspension under this subparagraph are all licenses held by the employer specific to the business location where the unauthorized alien performed work. If the employer does not hold a license specific to the business location where the unauthorized alien performed work, but a license is necessary to operate the employer's business in general, the licenses subject to suspension under this subparagraph are all licenses held by the employer at the employer's primary place of business. On receipt of the court's order and notwithstanding any other law, the appropriate agencies shall suspend the licenses according to the court's order. The court shall send a copy of the court's order to the Attorney General and the Attorney General shall maintain the copy pursuant to subsection (g) of this Code section; and (D) May order the appropriate agencies to suspend all licenses described in subparagraph (C) of this paragraph held by the employer for a period of time not to exceed ten business days. The court shall base its decision to suspend under this subparagraph on any evidence or information submitted to it during the action for a violation of subsection (a) of this Code section and shall consider the following factors, if relevant: (i) The number of unauthorized aliens employed by the employer: (ii) Any prior misconduct by the employer: (iii) The degree of harm resulting from the violation, (iv) Whether the emplover made good faith efforts to

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comply with any applicable requirements: (v) The duration of the violation; (vi) The role of the directors, officers, or principals of the employer in the violation; and (vii) Any other factors the court deems appropriate.

(2) For a second violation of subsection (a) of this Code section, as described in paragraph (3) of this subsection, the court shall order the appropriate agencies to permanently revoke all licenses held by the employer specific to the business location where the unauthorized alien performed work. If the employer does not hold a license specific to the business location where the unauthorized alien performed work, but a license is necessary to operate the employer's business in general, the court shall order the appropriate agencies to permanently revoke all licenses held by the employer at the employer's primary place of business. On receipt of the order and notwithstanding any other law, the appropriate agencies shall immediately revoke the licenses.

(3) A violation of subsection (a) of this Code section shall be considered: (A) A first violation by an employer at a business location if the violation did not occur during a probationary period ordered by the court under this subsection for that employer's business location; or (B) A second violation by an employer at a business location if the violation occurred during a probationary period ordered by the court under this subsection for that employer's business location. (g) The Attorney General shall maintain copies of court orders received pursuant to subsection (f) of this Code section and shall maintain a data base of the employers and business locations that have a first violation of subsection (a) of this Code section and make the court orders available on the Attorney General's website. (h) On determining whether an employee is an unauthorized alien, the court shall consider only the federal government's determination pursuant to 8 U.S.C. Section 1373(c). The federal government's determination shall create a rebuttable presumption of the employee's lawful status. The court may take judicial notice of the federal government's determination and may request the federal government to provide automated

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or testimonial verification pursuant to 8 U.S.C. Section 1373(c). (i) For the pupMoses of this Code section, proof of verifying the employment authorization of an employee through the federal E-Verify program shall create a rebuttable presumption that an employer did not knowingly or intentionally employ an unauthorized alien. (i) For the purposes of this Code section, an employer that establishes that it has complied in good faith with the requirements of 8 U.S.C. Section 1324a(b) establishes an affirmative defense that the employer did not knowingly or intentionally employ an unauthorized alien. An employer is considered to have complied with the requirements of 8 U.S.C. Section 1324a(b), notwithstanding an isolated, sporadic, or accidental technical or procedural failure to meet the requirements, if there is a good faith attempt to comply with the requirements. (k)(1) It is an affirmative defense to a violation of subsection (a) of this Code section that the employer was entrapped. To claim entrapment, the employer must admit by the employer's testimony or other evidence the substantial elements of the violation. An employer who asserts an entrapment defense has the burden of proving the following by clear and convincing evidence: (A) The idea of committing the violation started with law enforcement officers or their agents rather than with the employer: (B) The law enforcement officers or their agents urged and induced the employer to commit the violation; and (C) The employer was not predisposed to commit the violation before the law enforcement officers or their agents urged and induced the employer to commit the violation.

(2) An employer does not establish entrapment if the employer was predisposed to violate subsection (a) of this Code section and the law enforcement officers or their agents merely provided the employer with an opportunity to commit the violation. It is not entrapment for law enforcement officers or their agents merely to use a ruse or to conceal their identity. The conduct of law enforcement officers and their agents may be considered in determining

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if an employer has proven entrapment.

50-36-27. (a) For the purposes of this Code section, the term: (1) 'Economic development incentive' means any grant, loan, or performance based incentive from any government entity that is awarded after December 31, 2010. Economic development incentive does not include any tax provision under Title 48.

(2) 'Government entity' means this state and any political subdivision of this state that receives and uses tax revenues. (b) After December 31, 2011, every employer, after hiring an employee, shall verify the employment eligibility of the employee through the federal E-Verify program and shall keep a record of the verification for the duration of the employee's employment or at least three years, whichever is longer. (c) In addition to any other requirement for an employer to receive an economic development incentive from a government entity, the employer shall register with and participate in the federal E-Verify program. Before receiving the economic development incentive, the employer shall provide proof to the government entity that the employer is registered with and is participating in the E-Verify program.

If the government entity determines that the employer is not complying with this subsection, the government entity shall notify the employer by certified mail, return receipt requested, of the government entity's determination of noncompliance and the employer's right to appeal the determination. On a final determination of noncompliance, the employer shall repay all moneys received as an economic development incentive to the govermnent entity within 30 days of the final determination. (d) Every three months, the Attorney General shall request from the United States Department of Homeland Security a list of employers from this state that are registered with the EVerify program. On receipt of the list of employers, the Attorney General shall make the list available on the Attorney General's website.

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50-36-28.

As soon as practicable after the end of each fiscal year, the Office of the State Treasurer shall report the amount of funds received pursuant to this article to the Office of Planning and Budget. It is the intent of the General Assembly that, subject to appropriation, an amount equal to such proceeds received from such fines in any fiscal year shall be made available during the following fiscal year for the purposes of gang and immigration enforcement and for county jail reimbursement costs relating to illegal immigration."

ยง3.

This Act shall become effective on January 1, 2012.

ยง4.

All laws and parts of laws in conflict with this Act are repealed.

SPONSOR'S RATIONALE

Senator Jeff Mullis of the 53rd district, first signature of Senate Bill 104, stated that the Bill creates a more straightforward and easily understood set of policies for law enforcement to follow and implement.s In addition, the Bill seeks to provide law enforcement with more tools and flexibility in determining the legal status of a person in Georgia. The Bill allows the police the freedom to check a person's immigration status if the police believe they have been involved in a deportable "public offense." 7 The Bill further 5. Jeff Mullis, Mullis Champions Comprehensive Illegal Immigration Reform Measure in Senate, JEFFMULLIS.COM (Mar. 5, 2012), http://www.jeffmullis.com/newsDetail.aspx?newslD= 11331 [hereinafter Jeff Mullis].

6. Id. 7. Jeremy Redmon, New Bill Targets Illegal Immigrants, People Who Pick Up Day Laborers, ATLANTA J.-CONST., Feb. 18, 2011, 6:52 PM, http://www.ajc.com/news/georgia-politics-elections/new-bill-targets-illegal844680.html. [hereinafter Redmon].

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protects federal immigration laws and policies that have previously been enacted, a problem that the Arizona legislation faced. 8 Senate Bill 104 operates similarly to Arizona Senate Bill 1070; however, Senate Bill 104 specifically creates a provision reserving federally preempted laws. 9 Senate Bill 104 largelXy mirrors the language of House Bill 8710 and Senate Bill 40, but additionally makes it a crime for any person to pick up an illegal day laborer or for any undocumented immigrant to solicit work in a public place.12 The Bill would further make it a crime for any Georgia citizen to offer work to an undocumented day laborer.13 Ultimately, Senator Mullis wanted this Bill to be considered so that all of the options would be on the table while addressing the issue of immigration reform in Georgia.14 Senator Mullis realizes that immigration is still a significant and prevalent concern for all of Georgia and that additional measures need to be taken.15 OPPOSITION's RATIONALE

There is a strong opposition to Senate Bill 104. One of the main groups that oppose Senate Bill 104 is the National Day Laborer Organizing Network ("NDLON").1 6 NDLON works to "improve[] the lives of day laborers in the United States" by working "to protect and expand their civil, labor, and human

8. Id. (noting that similar Arizona legislation was struck down by the Obama Administration because it was pre-empted by federal law).

9. Jeff Mullis, supra note 5.

10. H.B. 87, 151st Gen. Assemb., 1st Reg. Sess. (Ga. 2011) available at http://wwwl.legis.ga.gov/legis/2011_12/pdf/hb87.pdf.

11. S.B. 40, 151st Gen. Assemb., Ist Reg. Sess. (Ga. 2011) available at http://wwwl.legis.ga.gov/legis/2011l_2/pdf/sb40.pdf.

12. Redmon, supra note 7.

13. Id. 14. Id. 15. Jimmy Holbrook, Mullis Sponsor's "Arizona" Style Immigration Bill, CHATTOOGA CoUNTY RADIO (Mar. 5, 2011, 5:04 AM), available at http://www.chattoogall 80.com/index.php?option-com content&task=view &id=18928&Itemid=9.

16. Id.

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rights."1 7 Chris Newman, Legal Director for NDLON, states that, "the Bill is unwise, unjust, and unconstitutional" as it relates to day laborers and will likely cost the Georgia taxpayers, if it is signed into law, due to foreseeable litigation Newman bases this assertion on arising from its enactment. the fact that the Supreme Court has been willing to strike down a number of similar laws that criminalize the act of seeking work in public. 19 Local attorneys are envisioning a flood of private suits in the form of "citizen suits" in response to the potential enactment of the Bill.2o Since the enactment of the Arizona Senate Bill 1070, Arizona has paid out "hundreds of thousands in litigation costs" and it is likely that Georgia will face similar- consequences. 21 The Georgia Latino Alliance for Human Rights "GLAHR") is another group that opposes Senate Bill 104. 2 Adelina Nicholls, executive director for GLAHR, states that the Bill would take Georgia down a slippery slope and would lead to widespread negative impacts on the economy and people of Georgia.23 In addition to the litigation costs, it is foreseeable that Georgia will lose money on tourism and convention industry.2 Further Georgia could experience loss of business, jobs, and investments which it cannot afford to lose. 25 GLAHR supports a solution that respects the human and civil rights of individuals.26 GLAHR believes that instead of restricting 17. Mission, NAT'L DAY LABORER ORG. NETWORK ("NDLON"), http://www.ndlon.org/en/about-us (last visited May 15, 2012).

18. Redmon, supra note 7.

19. Id. (basing this assertion on First Amendment grounds).

20. Teri A. Simmons & Stephen Pocalyko, Immigration Law Likely Will Spark Litigation, Job Losses, ATLANTA J.-CONST., Apr. 13, 2011, 6:09 PM, http://www.ajc.com/opinion/immigration-law-likely-will-908641.html.

21. Id.

22. Redmon, supra note 7.

23. Id.

24. Simmons & Pocalyko, supra note 20.

25. Id.

26. See generally GLAHR Team, Racial ProfilingLaw in Georgia Would Damage Economy and Decrease Safety, GLAHR (Feb. 7, 2011), availableat http://www.glahr.org/index.php?option=com-content&view-article&id=216 %3Athe-georgia-latino-alliance-for-human-rights-condems-hb-87-thatThis criminalizes-immigrants&catid=1 %3Alatest&Itemid=82&lang-en. article refers primarily to House Bill 87; however, the proponents/opponents

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immigrants from pursuing a better life, Georgia must stimulate the economy with more highly skilled people, raise the wage level and encourage equal opportunity for competition.27 Senate Bill 104 has further received opposition from the American Civil Liberties Union. The ACLU opposes Senate Bill 104 for three main reasons.2 8 First, they believe the Bill is unconstitutional and violates core American values of fairness and equality. 29 Second, the Bill encourages law enforcement officers throughout Georgia to use racial profiling as a tool. 30 Third, if passed it would require all Georgian's to have identification on them at all time in order to keep from being detained while their status is determined. 3 1 ACLU officials believe that laws "threaten the safety and security of all Georgians by diverting already limited resources away from law enforcements primary responsibility to provide protection and promote public safety in the community." 32 The ACLU further criticizes the law for making law enforcement seem less trustworthy and deterring witness's victims of crimes from coming forward.3 3 IMPLICATIONS IN GEORGIA

Targeting undocumented day laborers will affect a major portion of Georgia's economy: its labor supply. The Bill bans day laborers 34 who are seeking work from getting into vehicles overlap and assert similar positions regarding each Bill involved with Immigration Reform. Id. 27. Id 28. Anti-Immigrants' Rights Legislation in 2011, AM. CIVIL LIBERTIES UNION OF GA., http://www.acluga.org/Anti-immigrants'rightslegislation2011.pdf 29. Id.

30. Id. 3 1. Id.

32. Elizabeth Llorente, ACLU to File Suit Against Georgia'sImmigration Law,

Fox

NEWS

LATiNO,

Jun.

1,

2011,

http://latino.foxnews.com/latino/politics/2011/06/01/aclu-file-suit-georgiasimmigration-law/.

33. Id.

34. A day laborer is defined as "a worker who stands on a street corner, parking lot curb, sidewalk, park, etc., in order to wait for a variety of temporal work. See FAQ's about Day Laborers and Laborers, DAY LABOR

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that are stopped and blocking traffic and additionally punishes the motorists in that same scenario. 3 5 The Bill further bans illegal immigrants from soliciting work in public places.3 6 The intended effects of the Bill are to reduce the amount of day laborers that reside in the state illegally. 37 More than forty percent of temporary employers that hire day laborers are homeowners and private contractors. 38 Some of these temporary employees may be forced to pursue more traditional forms of employment. The effect of the Bill will be to force legal day laborers into traditional full-time employment and encourage illegal day laborers to emigrate out of the state. 40 Reports state that "[a]bout two in five day laborers claim that their immigration status is their main impediment to fulltime employment, while others blame language barriers, transportation." and discrimination, In a study that surveyed a large number of day laborers, approximately half "reported instances of not being paid for

(last visited May 15, 2012) (noting that this temporal work ranges from work for the day to full time employment). It is important to note that day laborers are not strictly Latino immigrants, but are from a variety of countries, including Mongolia, Poland, Russia, Brazil, Central and South America, and countries in Africa.

See Comparing Solutions: An Overview of Day Labor Programs, DAY at available (2004), INST., RESEARCH LABOR www.ilaborate.org/fetch/daylabor-research-institute_2.pdf.

35. Ga. S.B. 104, supra note 1; see also, April Hunt, Sandy Springs Targets Day Laborer Traffic, ATLANTA J.-CONST., Jul. 26, 2009, 5:42 PM, available at http://www.ajc.com/news/north-fulton/sandy-springs-targetsday-100983.html. The city of Sandy Springs has recently passed a new ordinance that will "fine any driver who doesn't pull off [a public road] and park to hire the workers. Id. The citation is $250 for the first offense, $500 for the second, and $1,000 and up to three months in jail for the third. Id. 36. Ga. S.B. 104, supra note 1.

RESEARCH INST., http://daylaborinfo.org/FAQ.aspx

3 7. Id.

38. Kijune Kim and Eddie Taylor, The University of Maryland Labor Law NDLON, Laborers, Day on Studies Research Clinic, http://www.ndlon.org/en/resources/item/371 -research-studies-on-daylaborers (Click on "Download PDF") (last visited May 15, 2012) [hereinafter Research Studies].

39. Id.

40. Redmon & Guevara, infra note 69.

41. Research Studies, supra note 38.

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work."4 2 Furthermore, the study found that "many workers complain about not being paid the agreed upon wage, receiving bad checks from employers, receiving no breaks during the day, getting robbed or threatened, and falling victim to other abuses at work."4 3 Employers of day laborers "almost without exception" provide neither healthcare nor aid in paying for injuries that occur on the worksite.4 Not providing healthcare or aid to day laborers is an advantage to temporary employers.4 5 If these employers are forced to hire more traditional employees as the supply of day laborers dwindles, the employers may be required to contribute into a workers' compensation fund for temporary workers, increasing employment costs. 46 Undocumented day laborers and their employers may challenge the Bill as a violation of their constitutional rights.

The Bill and its effects on day laborers have been declared unconstitutional by a national organization that represents day laborers. 48 The passage of the Bill will increase civil suits by legal day laborers and temporary employers, such as homeowners and private contractors.4 The Bill also provides a private right of action against local and state officials who attempt to limit or restrict federally preempted law.5 o "Successful plaintiffs could recover their court costs and attorney fees, and government agencies could face daily fines of between $1,000 and $5,000."'

Passage of the Bill may also affect the tourism industry in Georgia's economy due to negative reactions from national organizations sympathetic to immigrants. A "network of national organizations" informed Georgia's governor that procedures are taking place to organize a boycott of the state. 52 42. Id. 43. Id. 44. Id. 45. Id. 46. Id. 47. Redmon, supra note 7.

48. Id. 49. Id.

50. Id. 5 1.Id. 52. BorderExplorer, National Boycott of Georgia Impending, ALLVOICES (Apr. 7, 2011, 1:20 PM), available at http://www.allvoices.com/contributed-

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Among the network of national organizations supporting the boycott is the National Gay and Lesbian Task Force. 53 The organization has Atlanta scheduled as the location of their 2013 Creating Change Conference, which in 2010 generated approximately four billion dollars in revenue for the city of Dallas. 5 4 The organization stated that it will reconsider its choice of venue for the 2013 Conference if Georgia's governor does not veto all new anti-immigration legislation.ss Reports indicate that Arizona lost nearly forty-five million dollars in revenue from hosting conventions after the passage of its immigration laws and up to 150 million dollars in total tourism revenue. 56 Representatives in Alabama's construction industry commented that after passage of the state's similar bill they experienced a loss of "a significant portion of their work force."57 Homeowners and private contractors' search for day laborers may become difficult after the passage of Georgia's similar bill. One voice of concern asked, "How are we going to rebuild Tuscaloosa without roofers and construction workers?"5 8 Further, a lower supply of day laborers may increase the overall cost of labor for short-term construction jobs. Consequently, a higher cost of labor may deter businesses from constructing new businesses in Georgia. In Alabama, a Spanish bank considering building an 80 million dollar U.S. headquarters in Birmingham is rumored to have canceled plans after the passage of a similar bill. 9 Also, a Chinese manufacturer is said to be expressing second thoughts on news/8714781 -national-boycott-of-georgia-impending.

53. Id. 54. Id. 55. Id. 56. Id. 57. Judy Woodruff, Alabama's Immigration Law: Assessing the Economic, Social Impact, PBS NEWSHOUR (Aired: Oct 3, 2011), availableat http://www.pbs.org/newshour/bb/business/july-dec 11/alimmigration 1013.html.

58. Center For American Progress Immigration Team, Top 10 Reasons Alabama's New Immigration Law is a Disasterfor the State's Economy, CTR. FOR AM. PROGRESS (Nov. 18, 2011), available at http://www.americanprogress.org/issues/20 11/11/alabamatopl0_economy.h tml.

59. Id.

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initiating the construction of a plant in Alabama worth 100 million dollars. 60 Studies have shown that immigration enforcement often has the most negative effects on the children of the undocumented immigrants.

As a result of the immigration enforcement, families may be separated.6 2 Children of undocumented immigrants may be taken into foster care by the Department of Family and Child Services if their parents are arrested for being in the United States illegally and given that they have no other immediate relatives to take care of them.63 The psychological effect of immigration raids on children is significant.64 There have been studies that have shown that the trauma caused by having a parent deported or being removed from the home often causes the child to have behavioral problems. 65 Carola SudrezOrozco, a professor of Applied Psychology at New York University, says that immigration enforcement may create a "climate of racial profiling" that leads to "negative implications for acculturation, social belongingness, and the civic engagement of the next generation of immigrant youth."6 6 has had effects on the Immigration enforcement in Arizona 67 The lost profits from profits of Hispanic businesses. businesses serving Hispanic communities have caused some Hispanics to leave their respective states.68 This same problem has affected Georgia. Many immigrants have left the state and 60. Id. 61. Elise Sandra Shore, Sapelo Foundation, Immigration Enforcement and its Impact on Latino Children in the State of Georgia (Jun. 22, 2010), available at http://www.sapelofoundation.org/immigration2.pdf.

62. Id. 63. Id. 64. Carola Suirez-Orozco, In the best interest of our children: Examining our immigration enforcement policy, AM. PSYCHOLOGICAL Ass'N (Jul. 15, 2010), available at http://www.apa.org/about/gr/issues/cyf/immigrationenforcement.aspx.

65. Id.

66. Id. 67. Arizona Already Seeing Effects of Immigration Enforcement Law, RIGHT SIDE NEWS, (Jun. 15, 2010, 5:26 PM), available at http://www.rightsidenews.com/2010061510602/us/homelandsecurity/arizona-already-seeing-effects-of-immigration-enforcementlaw.html.

68. Id.

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caused a number of regional and local businesses that serve their communities to lose substantial profits and in some cases close their stores.

Not only have business lost profits, but have also lost employees over fear of the prospective laws.70 Further churches that serve these immigrants have felt the drop in donations on Sunday that support their charitable donations.

Some proponents of immigration enforcement point to the high cost that illegal immigrants impose on social programs such as Medicaid.7 Steven A. Camarota, Director of Research at the Center for Immigration Studies in Washington, D.C, studied the costs of illegal immigrants on the government's social progams and the disparity at which illegal immigrants pay taxes. Among those costs, Camarota provides in his study cost that illegal immigrants subject social programs to costs of: "Medicaid ($2.5 billion); treatment for the uninsured ($2.2 billion); food assistance programs such as food stamps, WIC, and free school lunches ($1.9 billion); the federal prison and court systems ($1.6 billion); and federal aid to schools ($1.4 billion)".7 4 By enforcing immigration laws, such as Senate Bill 104, some believe these costs would be lessened.

Georgia also faces the problems of the high costs associated with illegal immigrants' uses of social programs.7 6 The Federation for Immigration Reform has estimated that 133,262 children of illegal immigrants are attending public schools costing taxpayers approximately $1.4 billion per year.77 Further, starting January 1, 2012, the state has now 69. Jeremy Redmon & Mario Guevara, Many Immigrants Leaving Georgia Behind, ATLANTA J.-CONST., Jun. 8, 2011, 5:00 AM, http://www.ajc.com/news/dekalb/many-immigrants-leaving-georgia967054.html.

70. Id. 71. Id. 72. Steven A. Camarota, The High Cost of Cheap Labor: Illegal Immigration andthe FederalBudget, CTR. FOR IMMIGRATION STUDIES (Aug. 2004), availableat http://www.cis.org/articles/2004/fiscalexec..HTML%20.

73. Id. 74. Id.

75. Id. 76. Jeremy Redmon, Immigration Law's Impact Unseen in Georgia Schools, ATLANTA J.-CONST., Oct. 6, 2011, 5:00 AM) http://www.ajc.com/news/immigration-laws-impact-unseen-I 193468.html.

77. Id.

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implemented a policy that would require state and local agencies to "request persons seeking social benefits-such as Medicaid or housing benefits-to provide at least one form of "secure and verifiable identification," such as a Georgia driver's license." 78 Proponents assert that by enforcing this legislation, in addition to other proposed Georgia legislation, that the taxpayers will save money and the over-crowding burden in the school system will decrease. 79 LEGISLATIVE GENEALOGY

Senate Bill 104 was introduced in the Senate on February 17, 2011.80 On the same day it was referred to the Senate Judiciary Committee. 1 The Bill has received no further action.

Prepared by: Logan Millians Tyler S. Sims Benjamin C. Stidham

78. Id. 79. Id. 80. S.B. 104 Status Sheet, supra note 4.

8 1.Id.

SENATE BILL 1331: PEACE OFFICERS; PERSONS GIVEN PERMANENT RESIDENT STATUS; ELIGIBLE TO BE CERTIFIED AND EMPLOYED AS PEACE OFFICERS IN THIS STATE

Amending O.C.G.A. Chapter8 of Title 35 First Signature: Senator Curt Thompson (5th) Co-Sponsor: Senator Fran Millar (40th) Summary: Senate Bill 133 seeks to amend Chapter 8 of Title 35 of the Official Code of Georgia Annotated ("O.C.G.A.") which provides the qualifications for employment and training of peace officers.2 Subsection (a)(2) of O.C.G.A 35-8-8 currently requires that a person employed as a peace officer be a citizen of the United States. 3 Senate Bill 133 expands this requirement, amending subsection (a)(2) to include citizens of the United States, as well as aliens who have been given permanent resident status in the United States, by the United States Citizenship and Immigration Services. 4 Status: Senate Read and Referred to Committee on February 23, 2011'

Senate Judiciary

1. S.B. 133, 151st Gen. Assemb., Ist Reg. Sess. (Ga. 2011), available at http://wwwl.legis.ga.gov/legis/2011_12/pdf/sbl33.pdf (last visited May 15, 2012) [hereinafter Ga. S.B. 133].

2. O.C.G.A. ยง 35-8-8 (a)(2) (West 2012).

3. Id. 4. Ga. S.B. 133, supra note 1.

5. 2011-2012 Regular Session-SB 133, Peace Officers; Persons Given PermanentResident Status; Eligible to be Certified and Employed as Peace Officers

in

this

State,

GA.

http://wwwl.legis.ga.gov/legis/2011_12/sum/sbl33.htm 133 Status Sheet].

GEN.

ASSEMB.,

[hereinafter

S.B.

782

John MarshallLaw Journal TEXT OF SENATE

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BILL 133

ยง 1.

Chapter 8 of Title 35 of the Official Code of Georgia Annotated, relating to employment and training of peace officers, is amended by revising subsection (a) of Code Section 35-8-8, relating to requirements for appointment or certification of persons as peace officers and preemployment attendance at basic training course, as follows: "(a) Any person employed or certified as a peace officer shall: (1) Be at least 18 years of age; (2) Be a citizen of the United States or an alien who has been given permanent resident status in the United States by the United States Citizenship and Immigration Services; (3) Have a high school diploma or its recognized equivalent; (4) Not have been convicted by any state or by the federal government of any crime the punishment for which could have been imprisonment in the federal or state prison or institution nor have been convicted of sufficient misdemeanors to establish a pattern of disregard for the law, provided that, for purposes of this paragraph, violations of traffic laws and other offenses involving the operation of motor vehicles when the applicant has received a pardon shall not be considered; (5) Be fingerprinted for the purpose of conducting a fingerprint based search at the Georgia Bureau of Investigation and the Federal Bureau of Investigation to determine the existence of any criminal record; (6) Possess good moral character as determined by investigation under procedure established by the council; (7) Be found, after examination by a licensed physician or surgeon, to be free from any physical, emotional, or mental conditions which might adversely affect his or her exercising the powers or duties of a peace officer; and (8) Successfully complete a job related academy entrance examination provided for and administered by the council in conformity with state and federal law. Such examination shall be administered prior to entrance to the basic course provided for in Code Sections 35-8-9 and 35-8-11. The

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council may change or modify such examination and shall establish the criteria for determining satisfactory performance on such examination. Peace officers who do not perform satisfactorily on the examination shall be ineligible to retake such examination for a period of six months after an unsuccessful attempt. The provisions of this paragraph establish only the minimum requirements of academy entrance examinations for peace officer candidates in this state; each law enforcement unit is encouraged to provide such additional requirements and any preemployment examination as it deems necessary and appropriate."

ยง2.

All laws and parts of laws in conflict with this Act are repealed.

SPONSOR'S RATIONALE

Senator Curt Thompson, of the 5th district, introduced Senate Bill 133 at the behest of an Israeli national who was granted permanent resident status in the United States by the United States Citizenship and Immigration Services.6 Senator Thompson's constituent attempted to gain employment with the Gwinnett County police department, but was turned away because she was not a United States Citizen as required by O.C.G.A. 35-8-8.' In Israel, the constituent served in the Israeli Mossad, a top law enforcement agency equivalent to the United States Central Intelligence Agency.8 Upon completion of her post-secondary education at a Georgia University, the constituent had hopes of gaining employment as a law enforcement officer in Georgia; however, the current law prohibits her from such employment.9 As a result the

6. Interview with Curt Thompson, Georgia State Senator, Georgia Capital (Feb. 17, 2012) [hereinafter Thompson Interview].

7. Id. 8. Id. 9. Id.

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constituent was advised to contact Senator Thompson.' 0 After meeting with his constituent, and learning of three other constituents in the same predicament, Senator Thompson recognized that the current law prohibits qualified, legally immigrated applicants from being certified as Peace Officers in Georgia." Senator Thompson, along with the first constituent that contacted him, then met with legislative counsel to have Senate Bill 133 drafted.12 Although Senator Thompson asked for a hearing in the Senate Judiciary during this term,13 a hearing was not scheduled prior to the cross-over date. Senator Thompson will reintroduce the Bill during the 2013 Legislative Session.14 OPPOSITION'S RATIONALE

Although no specific opposition to this Bill has been found, the political environment in which this Bill was introduced has perhaps hampered its ability to move forward in the Senate.

Senator Thompson introduced the Bill to the Senate in February 2011, during the same time that House Bill 87, the Illegal Immigration Reform and Enforcement Act ("Act") of 2011, was introduced in the House.' 5 The Act was politically polarizing, and the lines between anti-immigration and anti-illegal immigration appeared to merge.16 Thus the Bill was not afforded a hearing in the Senate Judiciary, and it still has not gained momentum.

IMPLICATIONS IN GEORGIA

The requirement that persons employed as a peace officers in Georgia be citizens of the United States limits the applicant pool 10. Id. 11. Id.

12. Id. 13. Id. 14. Id. 15. H.B. 87, 151st Gen. Assemb., 1st Reg. Sess. (Ga. 2011), availableat (last http://www.legis.ga.gov/legislation/en-US/Display/20112012/HB/87 visited May 15, 2012).

16. Thompson Interview, supra note 6.

17. Id.

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of otherwise qualified individuals by prohibiting foreign nationals, with permanent resident status, from employment and training as peace officers.'8 Along with the law enforcement experience that such permanent residents bring to Georgia, comes their abilit to communicate with those that speak foreign languages.' Foreign-born residents make up 9 percent of Georgia's population.

Where a portion of Georgia's communities are non-English speaking residents, it is imperative that law enforcement agencies are provided with qualified applicants that can communicate with the changing population.

This ability to communicate in a foreign language is also essential in Georgia's jails, prisons and juvenile detention facilities where non-English speaking individuals are housed.2 1 Correctional facilities without peace officers that speak foreign languages must -often*- resort*22 to alternative methods of communicating simple instructions to inmates.

Officers may have to find interpreters, call family members, or use Google Translate to communicate with inmates.2 3 Foreign language speaking peace officers are also vital in interviewing nonEnglish speaking suspects, witnesses, and detainees critical to investigating correctional facilities where illegal contraband continues to be found.2 4 Facilities without foreign language 18. Id. 19. Id. 20. Jeremy Redmon, Feds may deport 1,256 Ga. inmates, ATLANTA J.available at 20, 2011, 4:27 AM, CONST., Oct. http://www.ajc.com/news/georgia-politics-elections/feds-may-deport-11211754.html (last visited May 15, 2012) [hereinafter Redmon].

21. Interview with Sarah Draper, Director of Investigations, Georgia Department of Juvenile Justice, in Decatur, Ga. (Mar. 22, 2012) [hereinafter Draper Interview].

22. Jessica Fairley, FBSOTD: Communicating with non-English Speaking Inmates, FOX 31 ONLINE, Dec. 1, 2011, 10:01 PM, available at http://www.mysouthwestga.com/news/story.aspx?list-~%5Cnews%5Clists% 5Crecent&id=692859#.TIWFnYf2ZvB (last visited May 15, 2012).

23. Id. 24. ContrabandArrests at GDC Facilities, GA. DEPT. OF CORRECTIONS,

http://www.dcor.state.ga.us/NewsRoom/Publications/ContrabandArrests/Con trabandArrests.html (last visited May 15, 2012). "More than 399 civilians [and] "72 staff members [have been] arrested to date" for attempting to introduce contraband into GDC facilities." Id.

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speaking peace officers are disadvantaged on the intelligence that can be uncovered to prevent such situations.25 Georgia ranks seventh nationwide for the number of illegal immigrants, with an estimated 425,000 residing in the state.26 Illegal immigrants have so populated many of the state's local jails and detention centers that, between 2007 and 2009, five Georgia law enforcement entities have entered into a Memorandum of Agreement with United States Immigration and Customs Enforcement providing them with "delegated authority for immigration enforcement within their ,,27 officers are peace speaking language Foreign jurisdictions. vital to this immigration enforcement function in both determining that non-English speaking inmates were born in or are citizens of other countries, and determining whether such immigrants are legal or illegal. 8 Finally, foreign nationals, after applying for citizenship, generally wait several years for citizenship to be granted. 2 9 By the time that citizenship is approved, applicants who are otherwise qualified are likely to have moved to a state that allows permanent residents to serve as Peace Officers, or to become employed with the Federal Government, which also permits permanent residents to serve as peace officers.30 Thus, state resources are expended on educating legal immigrants at our public universities, but then prohibit them from using that education as public servants.31 25. Draper Interview, supranote 21.

26. Robbie Brown, Georgia Gives Police Added Power to Seek Out Illegal Immigrants, N.Y. TIMES, May 13, 2011, available at http://www.nytimes.com/2011/05/14/us/14georgia.html? r-1 (last visited May 15, 2012).

27. Fact Sheet: Delegation of Immigration Authority Section 287(g) Immigration and Nationality Act, U.S. DEPT. OF HOMELAND SECURITY, http://www.ice.gov/news/library/factsheets/287g.htm (last visited May 15, Cobb, Gwinnett, Hall and Whitfield 2012) (also known as 287(g)).

Counties' Sheriffs Offices and the Georgia Department of Public Safety have all entered into a memorandum of agreement. Id. 28. Redmon, supra note 20.

29. Thompson Interview, supra note 6.

30. Id. 31. Hank Huckaby, Testimony by Chancellor Hank Huckaby of the University System of Georgia on SB 458, UNIV. SYS. OF GA. (Feb. 22, 2012), available at

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LEGISLATIVE GENEALOGY

The first reading of Senate Bill 133 occurred on February 23, 2011.32 At that time, it was referred to the Senate Judiciary Committee. 33 Since that time, the Bill has received no further action.

Prepared by: Audrey D. Holliday Kamau Hull

http://www.usg.edu/chancellor/speeches/testimony bychancellorhank-huc kabyof the universitysystemof georgiaon (last visited May 15, 2012) (advocating for re-implementing a policy allowing undocumented immigrants to receive public benefits of in-state tuition after residency requirement verification).

32. S.B. 133 Status Sheet, supra note 5.

33. Id.

SENATE BILL 1621: RULES OF THE ROAD; PROVIDE DRIVING UNDER INFLUENCE OF ALCOHOL/DRUGS BY ILLEGAL ALIEN IS A FELONY

Amending 0. C.G.A ยง 40-6-391 First Signature: Senator William Ligon Jr. (3rd) Senator Barry Loudermilk (52nd), Senator Co-Sponsors: Joshua McKoon (29th), Senator John Crosby (13th), Senator Bill Hamrick (30th), and Senator Rick Jeffares (17th) Summary: Senate Bill 162 amends Code Section 40-6-391 of the Official Code of Georgia Annotated by making a first time conviction of driving under the influence a felony for non-legal residents.2 Status: As of March 22, 2011, the Bill was referred to the House Subcommittee of Judiciary Non-civil committee with no further action. 3 TEXT OF SENATE BILL

162

ยง1.

Code Section 40-6-391 of the Official Code of Georgia Annotated, relating to driving under the influence of alcohol, drugs, or other intoxicating substances, penalties, publication of notice of conviction for persons convicted for the second time, and endangering a child, is amended by revising the 1. S.B. 162, 151st Gen. Assemb., Ist Reg. Sess. (Ga. 2011), available at http://wwwl.legis.ga.gov/legis/201 1_12/pdflsbl62.pdf [hereinafter Ga. S.B. 162].

2. Id. 3. 2011-2012 RegularSession-SB 162, Rules of the Road; provide driving under influence of alcohol/drugs by illegal alien is a felony, GA. GEN. (last http://wwwl.legis.ga.gov/legis/2011_12/sum/sbl62.htm AsSEMB., visited May 15, 2012) [hereinafter S.B. 162 Status Sheet].

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introductory paragraph of subsection (c) and by adding a new subsection to read as follows: "(c) Except as otherwise provided in subsection (m) of this Code section, every Eery person convicted of violating this Code section shall, upon a first or second conviction thereof, be guilty of a misdemeanor, upon a third conviction thereof, be guilty of a high and aggravated misdemeanor, and upon a fourth or subsequent conviction thereof, be guilty of a felony except as otherwise provided in paragraph (4) of this subsection and shall be punished as follows:" "(in) A person convicted of violating this Code section who is an illegal alien shall be guilty of a felony and shall be punished in accordance with the provisions of paragraph (4) of subsection (c) of this Code section. As used in this subsection, the term 'illegal alien' means a person who is present in the United States in violation of federal immigration law."

ยง2.

This Act shall become effective on July 1, 2011, and shall apply to all crimes which occur on and after that date. ยง3.

All laws and parts of laws in conflict with this Act are repealed.

SPONSOR'S RATIONALE

Senator Ligon proposed Senate Bill 162, an amendment to Section 40-6-391 of the Official Code of Georgia, to encourage compliance with statewide Driving Under the Influence ("DUI") laws and to reduce the number of fatalities and serious injuries due to DUIs in Georgia.4 Senate Bill 162 would make it a felony for a non-legal resident to drive under the influence alcohol or drugs.5 Senator Ligon introduced the amendment to Georgia's DUI laws as a result of observations made while 4. Id. 5. Id.

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serving as a municipal court judge in Brunswick, Georgia.

During this time, Ligon noticed a disparity in the number of DUI convictions for non-legal residents compared to DUI The convictions of those lawfully residing in Brunswick. former judge requested that his judicial clerk research the disparity, which resulted in the discovery that over a twelve month period, 96 of the 172 DUI convictions belonged to illegal immigrants.8 OPPOSITION's RATIONALE

Senator Emmanuel Jones, of the 10th district, raised the issue that the Bill "single[s] out illegal immigrants .

.

. without the

same repercussions to all races, ethnic groups, religious affiliations." 9 Senator Jones also noted that the report by Senator Ligon's former judicial clerk cannot be reasonably relied upon because it was based on only 172 incidents in not necessarily demographic Brunswick, Georgia-a representative of the entire state.10 Senator Bill Cowsert, of the 46th district, inquired into the legitimacy of Senator Ligon's rationale of encouraging safer roads by reasoning that, if a DUI is serious enough to result in a felony for non-legal residents who are first-time offenders, than the same result should apply to all."

Senator Steve Henson, of the 41st district, moved to table Senate Bill 162 based on potential constitutional violations of equal protection, due process, and federal preemption.12 He also noted that Senate Bill 162 may have the unintended consequence of "increasing the probability of flight from the scene" because of the potential of a felony conviction for non legal residents, resulting in the "endangerment of public

6. General Assembly Video Archive: Senate Session (Ga. Pub. Broad. internet broadcast Mar. 10, 2011), http://mediaml.gpb.org/ga/leg/2011/galeg-senate_031011_AM.wmv. [hereinafter Senate Session].

7. Id.

8. Id. 9. Id. 10. Id. 11. Id. 12. Id.

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lives."' 3 Senator Steve Thompson, of the 33rd district, stated that Senate Bill 162 could result in additional costs of over $25,000 per year to Georgia taxpayers for the incarceration of non-legal residents. 14 He considered those costs unreasonable "in light of the alternative of federal deportation." 5 Despite the opposition, Senator Ligon maintains that Senate Bill 162 only considers the legal status of a DUI convict, not his or her nationality, race, or religious affiliation. 16 He also justifies the impact of the felony conviction on first-time offenders who are non legal residents by noting that those who are impacted "continue to violate the law by their illegal presence in this country."' 7 Senator Ligon stood by the data used to justify Senate Bill 162 by noting that, even though there has been no statewide research into the number of DUI violations by non-legal residents, he has had experience with DUI violations as a municipal court judge.' 8 He has also received encouragement from law enforcement that this Bill promotes safe roads without placing "any significant burden on anyone."1 9 Senator Ligon does not believe that Senate Bill 162 would pose any constitutional violations.2 0 Nor does Senator Ligon believe that Senate Bill 162 increases probability of flight by non legal residents facing a felony conviction for DUI. 2 IMPLICATIONS IN GEORGIA

The immediate impact of Senate Bill 162 is the change in sentencing for non-legal residents found guilty of driving under the influence of alcohol, drugs, or other intoxicating 22 Before the enactment of the Bill, when a substances.

13. Id. 14. Id. 15. Id. 16. Id. 17. Id. 18. Id. 19. Id. 20. Id. 2 1. Id. 22. Telephone Interview with Thomas Hayes, Prosecutor Attorney's Council of Georgia (Feb. 6, 2012) [hereinafter Hayes Interview] (on file with

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defendant was convicted of drivingunder the influence, the first two offenses were misdemeanors. Upon the third offense, the penalty was an aggravated misdemeanor and finally on the fourth offense a felony.2 4 However, under Senate Bill 162, a non-legal resident could receive a felony conviction for a first time DUI offense.25 Thus, these defendants could potentially face fines of up to $5,000 and one to five years in prison.2 6 Before a non-legal defendant can be charged with a felony for a DUI, the prosecutor bears the burden of proving that the defendant is an unlawful resident. 27 Accordingly, this proof may come in the form of testimony from an immigration official. 2 8 However, this may pose a problem to counties that do not have easy access to the metropolitan area, because immigration offices in Georgia are mainly located in Atlanta. 29 Thus, counties may verify a defendant's immigration status through the Immigration Customs Enforcement center, 30 commonly referred to as ICE, or through the E-verify system.

Conversely, opponents argue that because the statute does not specify how status would be determined, a jury may find unlawful status.3 ' The distinction in immigration status may also trigger violations of Constitutional rights protected under the Equal Protection clause of the Fourteenth Amendment. 32 Under this clause, "[a] state may not...deny to any person within its the John Marshall Law Journal).

23. O.C.G.A. ยง 40-6-391(c) (West 2012).

24. Id. 25. O.C.G.A. ยง 40-6-391(m) (West 2012).

26. See generally O.C.G.A. ยง 40-6-391; see also Laura Fishman, Senate Bill 162 would make DUI a felony offense for illegal immigrants, THE ATLANTA DUI LAW BLOG (Mar. 11, 2011, 9:03 AM), available at http://atlantaduinews.com/2011/03/senate-bill-i 62-would-make-dui-afelony-crime-for-illegal-immigrants.html (last visited May 15, 2012).

27. Hayes Interview, supra note 22.

28. Id. 29. Id. 30. Id. 3 1. Id.

32. E-mail from Azadeh Shahshahani, American Civil Liberties Union, to Christina Saad, Staff Member, John Marshall Law Journal (Feb. 8, 2012) [hereinafter Azadeh E-mail] (on file with the John Marshall Law Journal); see also Apprendi v. New Jersey, 530 U.S. 466, 480 (2000).

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jurisdiction the equal protection of the laws." 33 Accordingly, opponents of the Bill, such as the American Civil Liberties Union, argue that a defendant's equal protection rights are violated as immigration status should not be a differentiating factor for the same infraction. 34 The Georgia Court of Appeals recently addressed a similar issue.

In Sadlen v. State, the Georgia Court of Appeals held that a DUI statute distinguishing between legal and illegal users of Xanax, was in violation of the Equal Protection Clause because the distinction was not related to the public safety purpose of the legislation.3 5 Applying this logic to this instant Bill, opponents argue that, because immigration status is a legal status, the law is unconstitutional unless the State can prove that it has a compelling public safety interest that would justify the legal and non-legal residents. 3 6 distinction between Alternatively, supporters of the Bill hold that the law is valid as illegal immigrants have already shown a disregard for the law, being unlawful residents. 37 Although the immediate impact of the Bill concerns DUI violations, it may also have an impact on a defendant's immigration proceedings. By making a DUI a felony for nonlegal residents, problems may arise when trying to change immigration status under cancelation of removal because the defendant/petitioner would not be able to fulfill the good moral character requirement with a previous felony conviction. 38 Pursuant to Immigration and Nationality Act of 2002 ยง 204(b) and 8 U.S.C. ยง 1229b(b) (2002), non-legal residents may qualify for cancelation of removal if they have been physically present in the United States for a continuous period of not less than ten years, a person of good moral character during such period. 39 Also, the petitioner must establish that removal would ยง 1.

34. Azadeh E-mail, supra note 32.

35. Sadlin v. State, 707 S.E.2d 378, 378 (Ga. Ct. App. 2011).

36. Id.; See also Azadeh E-mail, supra note 32.

37. Senate Session, supra note 6.

38. E-mail from Anonymous Practicing Attorney, Philadelphia, P.A., to Christina Saad, Staff Member, John Marshall Law Journal (Feb. 6, 2012, 3:08 PM) (on file with the John Marshall Law Journal).

33. U.S. CONST. art XIV,

39. Immigration and Nationality Act of 2002

U.S.C. ยง 1229b(b) (West 2012).

ยง 204(b) (West 2012); 8

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result in exceptional and extremely unusual hardship to the alien's spouse, parent, or child, who is a citizen of the United States or lawfully admitted for permanent residence.40 One cannot be found to have good moral character if "during such period, [one] has been confined, as a result of conviction, to a penal institution for an aggregate period of one hundred and eighty days or more." 4 1 Accordingly, when a non-legal resident is found guilty of a DUI and is confined at least 180 days within the ten year statutory period, an immigration judge may deny the applicant's petition for cancelation of removal.

LEGISLATIVE GENEALOGY

Senate Bill 162 was placed in the Georgia Senate Hopper on February 24, 2011, and had its first reading on February 28, 2011.43 Senator Ligon introduced Senate Bill 162 to the Senate Judiciary Committee on March 4, 2011, where it was passed unanimously.44 Senate Bill 162 was favorably reported by the Senate Judiciary Committee on March 7, 2011.45 The Georgia Senate read Senate Bill 162 for a second and third time on March 8, 2011, and March 10, 2011, respectively.46 Senator Henson moved to table the legislation during the third reading. 4 7 The Georgia Senate voted to allow Senate Bill 162 to proceed despite Senator Henson's motion to table the Bill by a vote of 34-20.48 The Georgia Senate passed and adopted Senate Bill 162 by a vote of 35-18 on March 10,

2011.49 The Georgia House of Representatives conducted the first and second reading of Senate Bill 162 on March 11, 2011, and Id. 8 U.S.C. ยง 1101(f) (West 2012).

Id. S.B. 162 Status Sheet, supranote 3.

Senate Judiciary Committee Meeting Minutes, 151st Gen. Assemb., 1st Reg. Sess.

(Ga. Mar. 4, 2011), available at http://www.senate.ga.gov/committees/Documents/2011 Minutes80.pdf.

45. S.B. 162 Status Sheet, supra note 3.

46. Id. 47. Senate Session, supra note 6.

48. Id. 49. Id 40.

41.

42.

43.

44.

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March 14, 2011, respectively.5 0 Senate Bill was referred to the House Subcommittee of Judiciary Non-civil on March 22, 2011, and has since had no further action.5 1 Prepared by: Kandice M Allen ChristineSaad

50. Id. 51. Id.