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By
Melissa Crow
Gulf Coast Policy Attorney
In Dec. 2006, the Louisiana Fourth Circuit Court of Appeal
issued a landmark ruling affirming a lower court decision that threw out
criminal charges against a man who had been charged under a Louisiana
statute, LSA-R.S. 14:100.13, which makes it a felony for “alien
students” and “nonresident aliens” to drive a vehicle without
documentation demonstrating that their presence in the United States is
lawful. The Fourth Circuit has jurisdiction over much of the greater
New Orleans area — Orleans, St. Bernard, and Plaquemines Parishes.
Violators of the statute, which was enacted in 2002, face up to
a year in jail, a fine of $1,000, or both. Through contacts with public
defenders’ offices in Louisiana, as well as with private lawyers,
immigrant rights advocates, and individuals charged with driving without
lawful presence (“DWLP”), NILC has monitored the enforcement of the
statute over the past approximately eight months. Existing evidence,
including numerous police reports, strongly suggests that some police
officers throughout the state are using the statute as a pretext to
specifically target Latinos when the officers make traffic stops and
arrests — to decide whom to stop based on whether or not they “look”
Latino. Many of those who have been stopped and arrested under the
statute are Latinos who migrated to the New Orleans area to perform
post–Hurricane Katrina cleanup and reconstruction jobs.
In its Dec. 20, 2006, decision granting a motion to quash DWLP
charges against Neri Lopez, the Fourth Circuit reasoned that the DWLP
statute “places a burden on both legal and non-legal aliens which
exceeds any standard contemplated by federal immigration law” — i.e., it
imposes a requirement regarding who must carry documents that exceeds
what federal law requires, and the penalties it imposes are harsher than
those provided for in federal law. State of Louisiana v. Neri Lopez,
948 So. 2d 1121 (La. Ct. App. 4th Cir. 2006). Accordingly, the court
held that the statute is preempted by federal law. Nevertheless, the
New Orleans Police Dept. continued to make arrests under the statute
until Feb. 6, 2007, when Police Superintendent Warren Riley issued a
directive prohibiting them. The state government has asked the
Louisiana Supreme Court to review the Fourth Circuit’s decision, a
request that defendant Lopez has opposed. As of April 19, 2007, the
Louisiana Supreme Court had not decided whether or not to hear the case.
The Louisiana Fourth Circuit’s decision has not put an end to
enforcement of the DWLP law outside the circuit court’s judicial
district, however. NILC, together with the Advancement Project, the
Immigrants’ Rights Project of the American Civil Liberties Union
Foundation, the ACLU Foundation of Louisiana, Friends and Families of
Louisiana’s Incarcerated Children, the New Orleans Workers’ Center for
Racial Justice, and Safe Streets–Strong Communities, submitted amici
briefs in two DWLP cases pending in criminal courts in Jefferson Parish,
which is to the immediate west of the three parishes that comprise the
Fourth Circuit’s district and includes part of greater New Orleans.
These briefs elaborate on the reasons why the DWLP statute unlawfully
infringes on the federal government’s plenary power over immigration,
thus violating the Supremacy Clause of the U.S. Constitution.
In De Canas v. Bica, 424 U.S. 351 (1976), the U.S.
Supreme Court set forth three tests for determining whether a state
statute dealing with non–U.S. citizens is preempted by federal law.
Briefly, such a state law must be invalidated if it (1) regulates
immigration, which is the exclusive domain of the federal government
under the Immigration and Nationality Act (INA), (2) operates in a field
which Congress has occupied, or (3) otherwise conflicts with federal
law. A state statute that fails any one of these tests is preempted.
The Louisiana DWLP statute regulates immigration by requiring
state and local law enforcement officials, who lack the expertise
and training of federal officials in applying immigration law and
verifying the authenticity of immigration-related documents, to make
independent determinations about drivers’ immigration statuses and
report drivers whom they arrest to the U.S. Dept. of Homeland Security
(DHS). To do this, officers must first ascertain — through unspecified
means — whether a driver qualifies as a “nonresident alien” or “alien
student,” raising serious concerns about whether agents are engaging in
racial or ethnic profiling in deciding whom to stop for alleged traffic
violations in the first place. Neither of these categories is
succinctly defined by federal immigration law, and many nonresident
noncitizens and noncitizen students, as defined by the state statute,
have lawful immigration status. After somehow concluding that a driver
is an “alien student” or “nonresident alien,” an officer attempting to
enforce the DWLP statute must determine whether the driver is carrying
proof of lawful status. In most cases, officers construe a driver’s
inability to produce immigration documents upon demand to mean that the
driver lacks lawful immigration status, in which case the officer
arrests the driver. And although the stated purpose of the DWLP statute
is to fight terrorism, its true purpose is evident from the requirement
that Louisiana law enforcement officers notify DHS of the names and
locations of individuals whom they have arrested so that DHS can
initiate removal proceedings against them.
The DWLP statute also fails the other De Canas tests, the
amici briefs argue. With respect to the second test, the statute
reflects overreaching by the Louisiana state legislature into the field
of immigration regulation, which Congress occupied by enacting the INA.
As for the third test, the DWLP statute interferes with the federal
scheme for identifying individuals who are subject to removal and
reporting them to the federal authorities.
In Jan. 2007, a court in Jefferson
Parish issued an imported decision in which it adopted the arguments set
forth in the amici brief,
holding that the DWLP statute constitutes “an impermissible attempt to
regulate immigration and conflicts with federal immigration law.”
State of Louisiana v. Omar Barrientos, No. 06-1726 (La. 24th
Jud. Dist. Ct. Jefferson Parish Jan. 31, 2007).
In a subsequent decision in
State of Louisiana v. Juan Herrera, No. 467-763 “K” (La. Crim.
Dist. Ct. Orleans Parish Feb. 1, 2007), a court in Orleans Parish
focused on the use of racial profiling to enforce the DWLP statute. The
decision includes excerpts of testimony from a New Orleans police
officer who confessed that his training in immigration law was limited
to a one-day seminar in 2006. The officer testified that he had
arrested four or five Latino drivers pursuant to the statute, but that
he did not know how many, if any, white, black, Asian, Middle Eastern,
Indian, or Pakistani drivers he had arrested. He implied that he was
most likely to ask Latino drivers about their immigration status,
although he could not determine whether other drivers were lawfully
present in the United States. Based on this testimony, the court
concluded that “the defendant’s arrest pursuant to LSA-R.S. 14:100.13
was made without probable cause, because it was the result of a
selective enforcement policy profiling, targeting and arresting Latino
drivers.” The court deferred ruling on the preemption issue pending a
decision by the Louisiana Supreme Court in the Lopez case.
Copies of the amici briefs mentioned above are available
by contacting
Karen Tumlin in NILC’s Los Angeles office.
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