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Sep 9 - Third Circuit Splits With Ninth On IRCA

Rating: 7 votes, 5.00 average.

-----------------IMMIGRATION DAILY FROM ILW.COM------------------


September 9, 2010


http://www.ilw.com/immigrationdaily/digest/2010,0909.shtm

Contents:


Comment


2 Articles


2 News Items


Focus


10 Headlines


Classifieds: Immigrant Tax Services, Help Wanted: Immigration


Paralegal, Help Wanted: Immigration Paralegal, Help Wanted:


Immigration Professional, Immigration Law Certificate, Website


Services


ReadersWrite


ComingsNGoings


_________________________________________________________________


ITEMS


1. Comment: Third Circuit Splits With Ninth On IRCA - A major


decision on the country's ongoing conflict over immigration sets


the stage for Supreme Court consideration of the extent of state


and local power over immigrants. The 3rd circuit today decided


Lozano v. City of Hazelton (No. 07-3531, 3rd Circuit, Sep 9,


2010) in a 188 page opinion authored by the Chief Judge (see


below).


The court said "we agree that the provisions of the ordinances


which we have jurisdiction to review are pre-empted by federal


immigration law and unconstitutional under the Supremacy Clause"


(opinion at p. 66). The court found conflict pre-emption for


Hazelton's employment ordinance: "we agree that the [Hazelton's


ordinance's] employment provisions stand as an obstacle to the


accomplishment and execution of federal law, and thus are pre-


empted ... Congress went to considerable lengths in enacting IRCA


to achieve a careful balance among its competing policy


objectives ... The [Hazelton ordinance] substantially undermines


this careful balance" (opinion at p. 106-107), offering as


authority "[t]he Supreme Court has consistently found state and


local laws which alter the careful balancing of objectives


accomplished by a federal law to be pre-empted, and so have we.


See, e.g., Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489


U.S. 141, 144 (1989) (opinion at p. 111)". Disagreeing with the


Ninth Circuit, the court said "In Chicanos Por La Causa ... the


Court of Appeals for the Ninth Circuit concluded that an Arizona


law that made use of E-Verify mandatory was not conflict pre-


empted ... [this] decision[], however, fail[s] to afford proper


weight to the purposes underlying Congress's decision to retain


E-Verify as a voluntary program" (opinion at p. 121-122). The


Supreme Court will have to decide this circuit split on IRCA pre-


emption of state/local authority to regulate employment of


unauthorized aliens.


The court returned again and again to the holistic approach of


Congress in enacting IRCA, wherein Congress sought to balance


conflicting aims and priorities. The court implied that the


Hazelton's non-holistic procedure was pre-empted. The court


explained "If Hazleton's ordinance is permissible, then each and


every state and locality would be free to implement similar


schemes for investigating, prosecuting, and adjudicating whether


an employer has employed unauthorized aliens ... A patchwork of


state and local systems each independently monitoring,


investigating, and ultimately deciding - all concurrently with


the federal government - whether employers have hired


unauthorized aliens could not possibly be in greater conflict


with Congress's intent for its carefully crafted prosecution and


adjudication system to minimize the burden imposed on employers"


(opinion at p. 115). The court further explained "Simply put,


Hazleton has enacted a regulatory scheme that is designed to


further the single objective of federal law that it deems


important - ensuring unauthorized aliens do not work in the


United States. It has chosen to disregard Congress's other


objectives - protecting lawful immigrants and others from


employment discrimination, and minimizing the burden imposed on


employers. Regulatory "cherry picking" is not concurrent


enforcement, and it is not constitutionally permitted" (opinion


at p. 130).


In finding express pre-emption against Hazelton's housing


ordinance, the court said "To be meaningful, the federal


government's exclusive control over residence in this country


must extend to any political subdivision" (opinion at p.


136-137). The court found Hazelton's housing ordinance


conflicting with/pre-empted by the INA, saying "[t]hrough its


housing provisions, Hazleton attempts to remove persons from the


community based on current immigration status. However, as


Justice Blackmun explained in Plyler: "the structure of the


immigration statutes makes it impossible for the State to


determine which aliens are entitled to residence, and which


eventually will be deported." 457 U.S. at 236 ... Stitched into the


fabric of Hazleton's housing provisions, then, is either a lack


of understanding or a refusal to recognize the complexities of


federal immigration law" (opinion at p. 138, 140); saying further


"The federal prohibition against harboring has never been


interpreted to apply so broadly as to encompass the typical


landlord/tenant relationship" (opinion at p. 142).


The matter is now ready for review before the Supreme Court,


given (i) the conflict between the 3rd and 9th circuits on this


matter (ii) the large number of similar state and local


statutes/ordinances already enacted and underway, with several in


litigation before the federal judiciary and (iii) the inherent


importance of immigration to the nation at this time in our


history. The opinion said "The Supreme Court will undoubtedly


speak to this tension soon, given the number of states and


localities attempting to chip away piece-meal at the federal


power to regulate immigration" (opinion at p. 104, footnote 31).


This is not the last chapter in America's immigrant saga. We will


hear from the Supremes next. Stay tuned.


2. Article: DHS To Develop Single, Searchable Immigration


Database by Greg Siskind


http://www.ilw.com/articles/2010,0909-siskind.shtm

3. Article: Let Avvo Help You Select a Great Immigration Attorney


by Carl Shusterman


http://www.ilw.com/articles/2010,0909-shusterman.shtm

4. News: CBP Reminds Travelers ESTA Fee To Begin


http://www.ilw.com/immigrationdaily/news/2010,0909-estafee.shtm

5. News: Lozano v. Hazelton (No. 07-3531, Sep 9, 2010)


http://www.ilw.com/immigrationdaily/cases/2010,0909-lozano.pdf

6. Focus: The Consular Posts Book


The Table of Contents for "The Consular Posts Book" is as


follows:


PART I. MAJOR CONSULAR POSTS


A chapter each on - Argentina - Buenos Aires; Armenia - Yerevan;


Australia - Sydney; Brazil - Sao Paulo; Canada -Toronto; China -


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Paris; Germany - Frankfurt, and Munich; Haiti - Port au Prince;


India - Chennai, Kolkata, Mumbai, and New Delhi; Jamaica -


Kingston; Nigeria - Lagos; Philippines - Manila; Taiwan -


Taipei; Trinidad and Tobago - Port of Spain; United Kingdom -


London; Vietnam - Ho Chi Minh City.


PART II. THEORY AND PRACTICE


Chapter 1: Introduction


Chapter 2: New Attorney Vulnerabilities in International Practice


Chapter 3: Trade and Immigration Tightening? NAFTA, WTO, GATS


Soup to Nuts


Chapter 4: Tips for Avoiding B-1/B-2 Visa Denials and Correcting


other Refusal Issues with the Consul


Chapter 5: The Visa Waiver Program (VWP): Not As Simple and Easy


As It Looks


Chapter 6: Non-Immigrant Classes and Their U.S. Tax Obligations


Chapter 7: E-1/E-2 Treaty Traders and Treaty Investors


Chapter 8: The Consular Role in L-1 Blanket Petitions


Chapter 9: H-1B "Dependent Employees": From Labeling to


Lawbreaking


Chapter 10: Temporary Assignment of H-1B Employees to Client Work


Sites


Chapter 11: State Department Name-Checks and Security Advisory


Opinions (SAOs)


Chapter 12: ICE Data-Mining and Federal Benefits Fraud Task


Forces - Send In the Marines: Best Practices to Survive Audits


and Task Forces


Chapter 13: What to do if Your Client's Visa is Denied: Visa


Office Advisory Opinions


Chapter 14: A Template for Attorney Risk-Assessment


PART III. THE CONSULAR POSTS RESOURCES ON CD-ROM


For contributor bios, more info, and to order, please see:


http://www.ilw.com/books/ConsularPosts.shtm. Or for fax, please

see:

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7. Headline: Labor's Stand for Immigration Reform: An Interview


with Eliseo Medina

http://ow.ly/2BNsh

8. Headline: Import Job Creators: Let's give immigrant


entrepreneurs incentives to hire American workers.


http://ow.ly/2BNeN

9. Headline: Authorities rescue 37 immigrants locked inside small


bedroom in Southern California house

http://ow.ly/2BMP9

10. Headline: 'Tea Party' is today's 'Know Nothing' movement


http://ow.ly/2BMBH

11. Headline: Why the US is charging an entry fee to some


international travelers

http://ow.ly/2BM9P

12. Headline: Graduate Dean says Immigration is this Year´s


Deciding Factor in Elections

http://ow.ly/2BLYh

13. Headline: Obama administration sets record year for


deportations

http://ow.ly/2BLQM

14. Headline: Family came to NM to escape Arizona immigration law


http://ow.ly/2BoUi

15. Headline: PERM Book 2d. Ed: Your Book for PERM Rule, Analysis


and Comments, ETA forms, Memos, Roadmaps & Checklists. Get your


copy

http://ow.ly/2uKZT

16. Headline: Rival says Texas attorney general's Arizona stance


shows shift in his beliefs

http://ow.ly/2BkHE

To submit an Article or a news item to Immigration Daily, write


to

mailto:editor@ilw.com. Follow ILW.COM on Twitter:

http://www.twitter.com/ilwcom

_________________________________________________________________


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To place a classifieds ad in Immigration Daily, see here


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_________________________________________________________________


ReadersWrite


1. ReadersWrite: Yesterday's Discussion


http://blogs.ilw.com/immigrationdaily/2010/09/08_august_top_links.html#comments

2. ReadersWrite: Today's Discussion


http://blogs.ilw.com/immigrationdaily/2010/09/09_third_circuit_splits_with_ninth_on_irca.html#comments

To submit an Article for consideration, write to


mailto:editor@ilw.com

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Comments

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