Legal Issues and Courts and Law

Indiana backs off defense of new immigration law

July 31, 2012

The state attorney general's office said Tuesday that it no longer will defend most of the disputed portions of Indiana's new immigration law, as they were rendered invalid when the U.S. Supreme Court struck down similar parts of an Arizona law in June.

The state said in documents filed in in federal court in Indianapolis that it would recommend that Judge Sarah Evans Barker strike down most of the portions of the Indiana law that enable police to make warrantless arrests based on certain immigration documents, including common documents known as notices of action.

"The Attorney General will submit the issue to the Court with the recommendation that a warrantless arrest under those circumstances is unconstitutional. Warrantless arrests under those circumstances and justifications will not be defended and a ruling by this Court to that effect will be accepted," the court documents said.

The state said it would seek to keep the power to arrest immigrants for whom a 48-hour detention order has been issued.

Federal immigration officials said that applies only to people who already are in custody.

"A detainer notifies that law enforcement entity that we would like to take custody of that person when they are released from local custody," said Gail Montenegro, a spokeswoman for U.S. Immigration and Customs Enforcement.

Ken Falk, legal director for the American Civil Liberties Union of Indiana, which challenged the Indiana law along with the National Immigration Law Center, said the state's decision meant police would not able to arrest immigrants on the street or during traffic stops unless they had a warrant.

Linton Joaquin, general counsel for the law center, said Indiana's decision to back down was a "positive development."

"The attorney general's decision to drop the defense of parts of the law should serve as a warning to other state legislatures that may consider enacting similar state immigration laws in the future," he said.

The state also asked the judge to clarify the limits of its power to regulate immigrants' use of consular identification cards, which were not covered in the Supreme Court ruling. The Indiana law would have made it illegal for immigrants to use ID cards issued by foreign consulates as proof of identification.

The attorney general's office said it would recommend that Indiana should have the right to define what identification is acceptable for government purposes.

"We've never disputed that," Falk said.

The state said it would leave it up to the judge to determine if the law applied in other situations, such as acceptance of consular ID by private entities such as businesses.

Barker last year threw out both portions of the extensive law that was passed by the 2011 Legislature.

The attorney general's office said it would continue to contest a separate challenge to different sections of the law filed in federal court in northern Indiana. That case challenges a provision allowing the state to sue employers who employ illegal workers to recoup unemployment benefits and a requirement that those seeking day-labor jobs complete proof of employment forms.

Attorney General Greg Zoeller said the Supreme Court ruling on Arizona's law made it clear that enforcing immigration laws was up to the federal government, not states. But, he said, states were frustrated by lack of enforcement.

"Whatever its flaws, this Indiana legislation was not an 'anti-immigrant' bill, it was an anti-illegal-immigration bill," Zoeller said in a statement.

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