Heather Gillers–1:16 PM, Jun. 21, 2011
The controversial state immigration law that faced widespread criticism during the legislative session took another beating in federal court Monday.
U.S. District Judge Sarah Evans Barker grilled a deputy attorney general for roughly an hour about how exactly the state could enforce the legislation without running afoul of federal law and international treaties.
The American Civil Liberties Union of Indiana is challenging two main provisions of the law: the use of consular identification cards and the arrest of people whose immigration status is questionable.
Barker said she will make a decision by July 1 — the day the law is slated to go into effect — about whether to suspend enforcement of those provisions while the ACLU and the state make their case.
The ACLU is challenging the law’s prohibition of the use of ID cards issued by foreign consulates, even though the Treasury allows banks to accept them. The other part of the law being challenged allows local police to arrest immigrants whose immigration status has been questioned by federal authorities — even if those authorities have determined that the person should be able to remain in the country.
“He (the police officer) can trump the (federal) judge’s decision?” Barker asked Deputy Attorney General Betsy Isenberg.
She also questioned Isenberg about the ID cards, which are valid under international agreements.
“Does Indiana law trump a treaty?” the judge asked — before answering her own question: “It doesn’t.”
Isenberg argued that the consulate-issued cards are subject to fraud and the state has an interest in regulating them — not just for government business but for private transactions as well. She also argued that the plaintiffs in the case — three immigrants –should not be able to sue until they are actually affected by the law with an arrest or other action — something that might never happen. Isenberg said police might decide to not even enforce the law, and that if they did, they would likely only do so when arresting an illegal immigrant for another offense.
ACLU legal director Kenneth Falk said that would not be a fair assumption.
“We have to presume that the Indiana legislature is passing laws that they intend to enforce,” he said. “I don’t think the legislature was kidding.”
One plaintiff in the suit is a Nigerian immigrant, Louisa Adair, who has been living in Marion County under a federal order to be removed from the country — an order that was issued in 1996 by an immigration court. Since that time, she has been released under a supervision order that has her report to an immigration officer every six months while she pursues a request to terminate the order and apply for permanent residency.
If the law goes into effect, Falk said, Adair could be arrested immediately.
The ACLU’s suit is not challenging the bulk of the law, which focuses on denying tax breaks to businesses that knowingly hire illegal immigrants.
Many of the law’s most controversial provisions, including one that tasked local police with investigating the immigration status of people stopped for reasons such as a broken taillight, were stripped from the legislation before lawmakers approved it.
During the legislative session, Indiana Attorney General Greg Zoeller joined a group of community leaders in supporting an “Indiana Compact” that states that immigration “is a federal policy issue between the U.S. government and other countries, not Indiana and other countries.”
Zoeller released a statement Monday saying his office would defend the statute, “as is our obligation.”
Zoeller’s statement also acknowledged that “there is great frustration with the federal government’s inability to enact and enforce immigration laws. Due to the federal government’s failure, the Indiana state legislature passed a much-revised law after concerns were raised.”
Sen. Mike Delph, R-Carmel, the author of Senate Enrolled Act 590, said he has not had an opportunity to review the case but called it unsurprising “given (the ACLU’s) very liberal leanings.”
“Illegal immigration is just that — illegal,” Delph said. “Those here unlawfully need to return to their country of origin and re-enter by lawful means. It’s time we stand up for the taxpayer and the American citizen who wants nothing less than existing law enforced.”
But even the watered-down version of the law is taking the state into uncharted waters.
At one point in the back-and-forth between Barker and Isenberg, the deputy attorney general acknowledged that her expertise is limited.
“I am not an immigration lawyer,” Isenberg told the judge.
“If this goes into effect,” Barker replied, “you may become one.”