Recent Updates on Immigrant Protection Legislation Under the Trump Administration

March 15, 2018

States, counties and municipalities are all passing legislation opposing the Trump administration's crackdown on the undocumented. The latest includes Westchester County, New York, which approved a bill on March 12 protecting the undocumented, but stopped short of calling it a sanctuary law.

The Immigrant Protection Act (IPA), passed by the Westchester County Board of Legislators in an 11-3 vote, limits the amount of information that the county would share with federal authorities. It further bars its employees from inquiries regarding a person's citizenship status in most circumstances. The bill was primarily motivated by legislators claiming that individuals would not report crimes for fear of reprisal and immigration consequences if their undocumented status was discovered during the process.

Some specific examples covered by the bill would include an abused spouse concerned for their immigration status, or for an undocumented immigrant in jail who is now not permitted to be interviewed solely for the purpose of assessing his or her immigration status. Further, the bill provides that immigration transfers or detainer requests would not be honored without an accompanying judicial warrant. County Executive George Latimer, a Democrat, is expected to sign the bill and has stated that the bill is "about safety - and nothing else."

Critics of the bill claim that it could potentially let dangerous criminals slip through the cracks of the county jail system.

The passing of this bill follows the California Immigrant Worker Protection Act (also known as IWPA), which became effective on January 1, 2018. The IWPA, much broader and more comprehensive than the IPA, imposes specific restrictions on California employers and prohibits them from giving federal agents access to non-public areas of the workplace or employee records without a judicial record or subpoena. It also requires that employees and union representatives (if any) be furnished with notification before and after I-9 inspections and confirms that employers may not re-verify the immigration eligibility of employees for continued employment eligibility unless mandated by federal law. Penalties for IWPA violations can result in civil fines of up to $10,000 or more.

The U.S. Department of Justice filed a lawsuit challenging this law on March 6, 2018, requesting injunctive relief against California and arguing that the IWPA and other California laws violate the Supremacy Clause of the Constitution. To date, California has not yet answered the DOJ complaint. Other states, including Maryland (the SAFE Act), Illinois (the TRUST Act) and others have passed legislation protecting the undocumented. Oregon, California and others have designated sanctuary cities where the undocumented will not be prosecuted for their status.

It remains to be seen if this movement to protect the undocumented will expand and grow with increasing pressure from the federal government and threats of withholding of federal funds.

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