United States of America v. Alabama, State of et al

Filing 2

MOTION for Preliminary Injunction by United States of America. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11)(Reeves, C)

FILED
2011 Aug-01 PM 03:38
U.S. DISTRICT COURT
N.D. OF ALABAMA

EXHIBIT 1

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION

THE UNITED STATES OF
AMERICA,
Civil Action No.

Plaintiff,
v.
THE STATE OF ALABAMA, et al.,
Defendants.

DECLARATION OF WILLIAM J. BURNS
Pursuant to 28 U.S.C. § 1746, I, William J. Burns, declare and state as follows:
1. I am Deputy Secretary of State. I make this declaration based on my
personal knowledge and on information I have received in my official capacity.
2. I was sworn in as Deputy Secretary of State on July 28, 2011. For the
preceding three years, I was the State Department's Under Secretary for Political
Affairs. From 2005 to 2008, I served as United States Ambassador to Russia, and
from 1998 to 2001 as United States Ambassador to Jordan. From 2001 to 2005, I
served as Assistant Secretary of State for Near Eastern Affairs. Since entering the
Foreign Service in 1982, I have held a variety of other posts, including Executive
Secretary of the State Department and Special Assistant to Secretaries Warren
1

Christopher and Madeleine Albright; Acting Director and Principal Deputy
Director of the State Department's Policy Planning Staff; and Special Assistant to
the President and Senior Director for Near East and South Asian Affairs at the
National Security Council staff. I hold the highest rank in the Foreign Service,
Career Ambassador.
3. In my capacity as Deputy Secretary of State, I assist the Secretary of
State in the formulation and conduct of U.S. foreign policy and in giving general
supervision and direction to all elements of the Department. I have delegated
authority to act on behalf of the Secretary of State, and assist the Secretary in
representing the United States at international meetings and in performing other
representational assignments with senior foreign governmental officials. As Under
Secretary for Political Affairs from May 2008 to July 2011, I was the Department's
third-ranking official and its senior career diplomat. In that capacity, I likewise
had broad policymaking, supervisory, and representational responsibilities. I was
the day-to-day manager of overall regional and bilateral policy issues, and oversaw
the bureaus for Africa, East Asia and the Pacific, Europe and Eurasia, the Near
East, South and Central Asia, the Western Hemisphere, International
Organizations, and International Narcotics and Law Enforcement.
4. I have read and am familiar with the Beason-Hammon Alabama
Taxpayer and Citizen Protection Act ("H.B. 56"). I am also familiar with the

2

reactions of foreign governments to this law and to other recently enacted state
immigration laws.
5. As I explain further below, U.S. federal immigration law incorporates
foreign relations concerns by providing a comprehensive range of tools for
regulating entry and enforcement. These may be employed with sensitivity to the
spectrum of foreign relations interests and priorities of the national government.
By contrast, Alabama law H.B. 56 establishes an inflexible, state-specific
immigration enforcement policy based narrowly on criminal sanctions that is not
responsive to these concerns, and that unnecessarily antagonizes foreign
governments. If allowed to enter into force, H.B. 56 would result in lasting harm
to U.S. foreign relations and foreign policy interests.
6. Through the Immigration and Nationality Act ("INA") and other federal
laws, the national government has developed a comprehensive regime of
immigration regulation, administration, and enforcement, in which the Department
of State participates. This regime is designed to accommodate complex and
important U.S. foreign affairs priorities—including economic competitiveness and
trade, humanitarian and refugee protection, access for diplomats and official
foreign visitors, national security and counterterrorism, criminal law enforcement,
and the promotion of U.S. human rights policies abroad. To allow the national
government flexibility in addressing these concerns, the INA provides the

3

Executive Branch with a range of options governing the entry, treatment, and
departure of aliens. Moreover, foreign governments' reactions to immigration
policies and the treatment of their nationals in the United States impacts not only
immigration matters but also any other issue on which we seek cooperation with
foreign states, ranging from investment protection to tourism to defense. These
foreign relations priorities and policy impacts are ones to which the national
government is sensitive in ways that individual states are not.
7. By rigidly imposing a singular form of immigration enforcement through
mandatory verification of immigration status and criminal enforcement of alien
registration, H.B. 56 interferes with the national government's carefully calibrated
policy of immigration regulation. The Alabama law also uniquely burdens foreign
nationals by regulating, and in many cases criminalizing, work, travel, housing,
contracting, and educational enrollment well beyond any restrictions imposed by
U.S. law. These multiple, interlinking procedural and criminal provisions, adopted
to supplant the federal regime and deter unlawfully present aliens from entering or
residing in the State of Alabama, all manifest Alabama's intention to regulate
virtually every aspect of those aliens' lives and to influence immigration
enforcement nationwide. H.B. 56 thereby undermines the diverse immigration
administration and enforcement tools made available to federal authorities, and
establishes a distinct state-specific immigration policy, driven by an individual

4

state's own policy choices, which risks significant harassment of foreign nationals,
is insensitive to U.S. foreign affairs priorities, and has the potential to harm a wide
range of delicate U.S. foreign relations interests.
8. Alabama's H.B. 56 also must be viewed in the context of the recent
proliferation of stringent state laws addressed to the issue of immigration
enforcement. Arizona enacted such a law, after which H.B. 56 was modeled in
part, in April 2010; Utah enacted such a law in March 2011; Georgia and Indiana
enacted such laws in May 2011; and South Carolina enacted such a law in June
2011. The first law in this series, Arizona's S.B. 1070, created significant
difficulties for U.S. bilateral relationships with many countries, particularly in the
Western Hemisphere, and provoked vociferous and sustained criticism in a variety
of regional and multilateral bodies. Foreign governments and international
organizations expressed serious concerns regarding the potential for discriminatory
treatment of foreign nationals posed by S.B. 1070, among other issues. These
same criticisms and concerns have been reasserted—and expanded upon—in
response to the recent wave of state laws, including H.B. 56.
9. By deviating from federal immigration enforcement policies as well as
federal rules governing work, travel, housing, contracting, and educational
enrollment by foreign nationals, and by seeking to regulate virtually every aspect

5

of certain aliens' lives, H.B. 56 threatens at least three different serious harms to
U.S. foreign relations.
• First, H.B. 56 risks reciprocal and retaliatory treatment of U.S. citizens abroad,
whom foreign governments may subject to equivalently rigid or otherwise
hostile immigration regulations, with significant potential harm to the ability of
U.S. citizens to travel, conduct business, and live abroad. Reciprocal treatment
is an important concern in immigration policy, and U.S. immigration laws must
always be adopted and administered with sensitivity to the potential for
reciprocal or retaliatory treatment of U.S. nationals by foreign governments.
• Second, H.B. 56 antagonizes foreign governments and their populations, both at
home and in the United States, likely making them less willing to negotiate,
cooperate with, or support the United States across a broad range of foreign
policy issues. U.S. immigration policy and treatment of foreign nationals can
directly affect the United States' ability to negotiate and implement favorable
trade and investment agreements, to secure cooperation on counterterrorism and
counternarcotics trafficking operations, and to obtain desired outcomes in
international bodies on priorities such as nuclear nonproliferation, among other
important U.S. interests. Together with the other recently enacted state
immigration laws, H.B. 56 is already complicating our efforts to pursue such
interests. H.B. 56's impact is liable to be especially acute, moreover, not only

6

among our critical partners in the region but also among our many important
democratic allies worldwide, as those governments are the most likely to be
responsive to the concerns of their constituents and the treatment of their own
nationals abroad.
• Third, H.B. 56 threatens to undermine our standing in regional and multilateral
bodies that address migration and human rights matters, and to hamper our
ability to advocate effectively for the advancement of human rights and other
U.S. values. Multilateral, regional, and bilateral engagement on human rights
issues and international promotion of the rule of law are high priorities for the
United States. Consistency in U.S. practices at home is critical for us to be able
to argue for international law consistency abroad. By deviating from national
policy in this area, H.B. 56 may place the United States in tension with our
international obligations and commitments, and compromise our position in
bilateral, regional, and multilateral conversations regarding human rights.
10. Furthermore, when H.B. 56 is considered in the context of the
unprecedented surge in state legislative efforts to create state-specific immigration
enforcement policies, each of these threats is significantly magnified, and several
additional concerns arise.
• First, by creating a patchwork of immigration regimes, states such as Alabama
make it substantially more difficult for foreign nationals to understand their

7

rights and obligations, rendering them more vulnerable to discrimination and
harassment.
• Second, this patchwork creates cacophony as well as confusion regarding U.S.
immigration policy, and thereby undermines the United States' ability to speak
with one voice in the immigration area, with all its sensitive foreign policy
implications.
• Third, this patchwork fosters a perception abroad that the United States is
becoming more hostile to foreign nationals, corroding a reputation for
tolerance, openness, and fair treatment that is critical to our standing in
international and multinational fora, our ability to attract visitors, students, and
investment from overseas, our influence in a wide range of transnational
contexts, and the advancement of our economic and other interests.
1 I . In light of these broad, overlapping, and potentially unintended ways in
which immigration activities can adversely impact our foreign affairs, it is
critically important that national immigration policy be governed by a uniform
legal regime, and that decisions regarding the development and enforcement of
immigration policy be made by the national government. In all matters that are
closely linked to U.S foreign relations, including immigration, the United States is
constantly engaged in weighing multiple competing considerations and choosing
among priorities in order to develop an overall foreign policy strategy that will

8

most effectively advance U.S. interests and values. The United States likewise is
constantly seeking the support of foreign governments, through a delicately
navigated process, across the entire range of U.S. policy goals. Only the federal
government has the international relationships and information, and the national
mandate and perspective, to be able to appropriately evaluate these choices on a
continuing basis in response to fluctuating events on the world stage. The
proliferation of state laws advancing state-specific approaches to immigration
enforcement represents a serious threat to the national control over immigration
policy that effective foreign policy demands.
12. While particular state enactments that incidentally touch on immigration

may not implicate foreign affairs concerns or may implicate them only slightly,
Alabama's law H.B. 56, even when considered in isolation, more directly and
severely impacts U.S. foreign affairs interests by establishing an alternative
immigration policy of multiple, interlinking procedural and criminal provisions, all
of which manifest Alabama's intention to create a separate regulatory regime and
to influence immigration enforcement nationwide. Alabama's effort to set its own
immigration policy is markedly different from instances in which states and
localities assist and cooperate with the federal government in the enforcement of
federal immigration laws. Such a cooperative approach greatly diminishes the
likelihood of conflicts with U.S. foreign policy interests. When states and

9

localities work in concert with the federal government, and take measures that are
coordinated with federal agencies and in line with federal priorities, the United
States retains its ability to speak with one voice on matters of immigration policy,
which in turn enables it to keep control of the message it sends to international
audiences and to calibrate responses as it deems appropriate, in light of the everchanging dynamics of foreign relations.
13. In contrast, H.B. 56 pursues a singular policy of criminal enforcement at
all costs through, among other things, an extraordinary mandatory verification
regime coupled with the effective state criminalization of unlawful presence and
numerous other mutually reinforcing sanctions. By so doing, the law has the
capacity to cause harassment of foreign nationals; to provoke retaliatory treatment
of U.S. nationals overseas; to weaken public support among key constituencies
abroad for cooperating with the United States; to endanger our ability to negotiate
international arrangements and to seek bilateral, regional, or multilateral support
across a range of economic, human rights, security, and other non-immigration
concerns; and to be a source of ongoing criticism in international fora. Alabama's
effort to set its own immigration policy conflicts with numerous U.S. foreign
policy interests and with the United States' ability to speak with one voice in this
sensitive area.

10

I.

U.S. Immigration Law Incorporates Foreign Relations Concerns

14. The Secretary of State is charged with the day-to-day conduct of U.S.
foreign affairs, as directed by the President, and exercises authority derived from
the President's powers to represent the United States under Article II of the
Constitution and from statutory sources. As part of its responsibilities, the State
Department plays a substantial role in administering U.S. immigration law and
policy, as well as in managing and negotiating their foreign relations aspects and
impact. Within the Department, the Bureau of Consular Affairs has responsibility
for the adjudication and issuance of passports, visas, and related services;
protection and welfare of U.S. citizens and interests abroad; third-country
representation of interests of foreign governments; and the determination of
nationality of persons not in the United States. See 1 Foreign Affairs Manual 250. 1
The Bureau of Population, Refugees, and Migration has responsibility for
coordinating and managing the U.S. Refugee Admissions Program; administering
and monitoring U.S. contributions to migration-focused multilateral organizations
such as the Office of the UN High Commissioner for Refugees and the
International Organization for Migration; and advancing effective and humane
migration policies globally and regionally. Several other bureaus within the
1

The Secretary of State's authorities under the INA are found in various provisions, including
§§ 104, 105, 349(a)(5), 358, and 359 (8 U.S.C. §§ 1104, 1105, 1481(a)(5), 1501, and 1502) (visa
and other immigration-related laws). The Department also exercises passport-related authorities,
including those found at 22 U.S.C. §§ 211a et seq.

11

Department of State, including the Bureau of Human Rights, Democracy, and
Labor, the Bureau of International Organization Affairs, and all regional bureaus
are routinely engaged in negotiations and multilateral diplomatic and policy work
in global, regional, and bilateral fora on migration issues. Collectively, the
Department of State promotes U.S. policies internationally in this area and bears
the burden of managing foreign governments' objections to the treatment of their
nationals in the United States.
15. Federal statutes, and particularly Section 104 of the INA as amended by
the Homeland Security Act, invest the Secretary of State with specific powers and
duties relating to immigration and nationality laws. A 2003 Memorandum of
Understanding Between the Secretaries of State and Homeland Security
Concerning Implementation of Section 428 of the Homeland Security Act of 2002
("MOU"), 1(b), provided that the Secretary of Homeland Security would establish
visa policy, review implementation of that policy, and provide additional direction
as described in the MOU, while respecting the prerogatives of the Secretary of
State to lead and manage the consular corps and its functions, to manage the visa
process, and to execute the foreign policy of the United States.
16. Our federal immigration laws, including those administered by the State
Department, are crafted to incorporate and accommodate a wide range of sensitive
U.S. foreign relations concerns. Our visa regime, for example, both embodies and

12

permits consideration of U.S. diplomatic, human rights, and other foreign relations
interests. To give just a few examples, the INA authorizes the Secretary of State to
help determine which diplomats are entitled to official visas to represent their
countries in the United States. INA § 101(a)(15)(A). INA § 243(d) authorizes the
Secretary of State to determine the scope of visa sanctions that will be imposed on
countries, upon notification from DHS that such countries have denied or
unreasonably delayed accepting their nationals back from the United States. The
INA also authorizes the Secretary of State to deny visas to aliens whose entry or
proposed activity in the United States "would have potentially serious adverse
foreign policy consequences." INA § 212(a)(3)(C). During the Honduran
constitutional crisis in 2009, the State Department imposed visa restrictions and
revoked several visas under this authority to encourage the de facto government to
enter into good-faith negotiations with deposed President Zelaya. Likewise, under
the auspices of INA § 212(f) and Presidential Proclamation 7750, the State
Department recently revoked several visas for officials who engaged in or
benefited from corruption, in an effort to bring pressure to bear on other countries
to investigate and eliminate corruption by their government officials.
17. Further, our laws provide for the denial of U.S. visas on security and

related grounds to aliens who are anticipated to violate U.S. law following entry
into the United States and to aliens with a broad range of ties to terrorism,

13

including those who have engaged in terrorist activity as defined in the INA, §
212(a)(3)(B), as well as those who a consular officer reasonably believes are
engaging or will engage in terrorist activity. Our visa laws also render
inadmissible and make subject to removal aliens who participated in human rights
violations such as genocide or torture. 2 And even the general authority to issue
visas requires Department officials to monitor the political, legal, economic, and
cultural developments in foreign countries for matters directly relevant to the full
range of visa ineligibilities, including economic, demographic, political, ethnicity,
criminal, and security issues.
18. Under section 244 of the INA, 8 U.S.C. § 1254a, federal law also

provides for temporary protected status ("TPS"), which permits eligible foreign
nationals who are already present in the United States to remain in the country and
obtain employment authorization. TPS is available to eligible foreign nationals
who, due to armed conflict, an environmental disaster, or extraordinary and
temporary conditions in their state of nationality, may face risk to personal safety if
returned to that state while such conditions persist. Recent examples include the
designation last year of Haiti for TPS following the devastating earthquake in that
country, and the extension of Sudan's designation as a result of ongoing armed
conflict. DHS administers this program and, pursuant to the statute, routinely
8 U.S.C. §§ 1182(a)(2)(G), 1182(a)(3)(E)(iii), and 1182(a)(3)(G) (inadmissible); 8 U.S.C. §§
1227(a)(4)(D)-(4)(F) (removable).

2

14

consults with the State Department for its views on issues relevant to
determinations whether to designate or continue to designate a foreign state or part
thereof for TPS, including whether the statutory criteria are satisfied in each case.
TPS furthers certain U.S. foreign policy interests by facilitating provision of
humanitarian protection to eligible persons who might otherwise be subject to
removal to their home countries in times of armed conflict, environmental
disasters, or other extraordinary and temporary conditions. The impact of the
program can be significant: As of July 14, 2011, U.S. Citizenship and Immigration
Services, a component of DHS, had approved more than 48,000 applications for
TPS under the original designation of Haiti made by the Secretary of Homeland
Security on January 15, 2010.
II. U.S. Immigration Practices Significantly Impact Our Foreign Relations
19. In addition to incorporating foreign affairs concerns, the United States'

choices with respect to immigration policies and practices also have a significant
impact on our foreign relations. Again using State Department visa processes as
an example, the process for visa issuance and denial is of great interest to foreign
governments, owing to the direct impact the visa process has on the affairs of their
own nationals. Similarly, domestic processes for arrest, detention, and removal of
aliens and other aspects of their treatment in the United States are of great interest
to foreign governments because of the impact these processes have on foreign

15

nationals and their families. Aspects of U.S. immigration laws, such as the
prohibitions on removal of individuals to countries where it is more likely than not
that they would be tortured, and on removal of refugees to countries where their
life or freedom would be threatened on account of their race, religion, nationality,
membership in a particular social group, or political opinion, implement U.S. treaty
obligations under the Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment and the 1967 Protocol relating to the Status of
Refugees.
20. Given the diplomatic, legal, and policy sensitivities surrounding
immigration issues, even small changes in U.S. immigration laws, policies, and
practices can provoke a substantial international reaction—both in the immigration
context and across American diplomatic concerns. It is for reasons such as these
that, while federal law recognizes that states and localities may play beneficial
roles in assisting in the enforcement of federal immigration law, see, e.g., 8 U.S.C.
§ 1357(g), it is critical from a foreign affairs standpoint that the authority to
directly regulate immigration be assigned exclusively to the federal government.
21. Indeed, countries routinely raise concerns about immigration-related
changes in bilateral, regional, and multilateral arenas. The exercise of immigration
functions can quickly provoke a significant bilateral or multilateral problem that
harms U.S. interests if handled without appropriate consideration of relevant

16

foreign policy implications. The State Department is often in the position of
interacting directly with foreign governments in managing the impact of these
bilateral problems. For example, decisions regarding the issuance of individual
visas to controversial figures, such as leaders of foreign governments with which
the United States experiences significant diplomatic tensions, prominent
individuals with checkered pasts, and delegates to international bodies, require a
full review of U.S. government equities, including foreign policy interests and
consideration of international treaties to which the United States is a party.
A. Reciprocal Impact on U.S. Citizens Abroad
22. U.S. immigration policies and practices can also have immediate and
substantial impacts on the treatment of U.S. nationals abroad. INA § 221(c), for
example, requires the length of validity for visas to be reciprocal as far as
practicable. Even relatively non-controversial issues such as the period of validity
of a visa and the fees charged are the subject of discussion, negotiation, and
agreement among countries and have a direct impact on how other governments
treat U.S. citizens who wish to travel abroad. For example, in the recent past,
some countries have responded to changes in U.S. visa charges by significantly
raising the entry fees that they impose on U.S. nationals. The Enhanced Border
Security and Visa Entry Reform Act of 2002, which requires the fingerprinting of
foreign nationals for the visa application process and for entry into the United

17

States, was the subject of much criticism by other governments and caused some
governments to consider taking reciprocal retaliatory action against U.S. nationals.
For instance, Brazil instituted a new tourist visa requirement in response, and
reserves the right to require a thumbprint of Americans upon entry into its territory.
23. In the area of consular services, how we treat foreign nationals who are
present in the United States likewise can affect how a foreign government treats
U.S. citizens present in its country. For example, the Department of State
proactively takes a number of steps to ensure U.S. compliance with our obligations
under Article 36 of the Vienna Convention on Consular Relations ("VCCR"),
which requires that all foreign nationals arrested or in custody in the United States
be informed of their option to request to meet with a consular official. The
Department does so in important part to increase the likelihood that such
notification and consular access will be provided to U.S. citizens who are arrested
or detained abroad.
24. Accordingly, the State Department considers carefully not only the
foreign policy goals and consequences of its immigration-related decisions, but
also the potential impact of those decisions on the reciprocal treatment of U.S.
citizens by the relevant foreign governments.

18

B. Impact in Regional and Multilateral Fora
25. The situation of foreign nationals within a country, particularly with
regard to the protection of the human rights of migrants, irrespective of their
immigration status, is a matter of international concern and is addressed by
international treaties. The United Nations and regional bodies such as the
Organization of American States ("OAS"), an intergovernmental organization
composed of all thirty-five States of the Americas, have established institutions
and mechanisms for the discussion, examination, and oversight of international
migration policy. As a matter of longstanding human rights and humanitarian
policy, the U.S. government strongly supports international efforts to protect
migrants, who are typically especially vulnerable to mistreatment and abuse.
Accordingly, the United States as a matter of its foreign policy engages actively in
regional and multilateral human rights fora, through which the United States
promotes respect for human rights (including the human rights of migrants), the
rule of law, and other U.S. values.
26. As part of the international migration framework, the United States has
ratified several global human rights treaties which impose obligations on States
Parties regarding the rights of persons, including migrants, within their territories,
often without regard to the legal status of a non-national within a State's territory.
Such treaties include the International Covenant on Civil and Political Rights, the

19

International Convention on the Elimination of All Forms of Racial
Discrimination, and the Convention Against Torture. The United States is also
party to law enforcement conventions that address multilateral cooperation on
immigration issues and the rights of certain migrants, including the United Nations
Convention Against Transnational Organized Crime and two of its supplemental
Protocols: the Protocol Against the Smuggling of Migrants by Land, Sea, and Air
and the Protocol to Prevent, Suppress, and Punish Trafficking in Persons,
Especially Women and Children. These protocols require States Parties to protect
the rights of smuggled aliens. Other relevant conventions include the 1967
Protocol relating to the Status of Refugees, the VCCR, and various bilateral
Friendship, Commerce, and Navigation treaties creating reciprocal treatment
obligations toward foreign nationals.
27. Many United Nations human rights conventions, including those

referenced above, establish expert treaty bodies which are responsible for
monitoring compliance by reviewing and commenting upon reports from States
Parties regarding implementation of their treaty obligations. These expert bodies
routinely address immigration and migration-related issues, and criticize states,
including the United States, for laws and policies which, in their view, raise
questions about unfair, arbitrary, or racially discriminatory treatment of migrants,
or other human rights concerns. Such criticisms are public, are often the subject of

20

further discussion in UN bodies, and may be raised directly with the United States
in bilateral exchanges with foreign countries.
28. Additionally, the United Nations General Assembly and other UN organs
routinely adopt resolutions regarding the human rights and protection of migrants.
The United Nations has also established "special mechanisms," including
independent experts and special rapporteurs, that investigate, issue reports, and
make recommendations regarding the human rights of migrants.
29. At the regional level, the OAS has several organs in which issues related
to migration policy and the treatment of migrants are raised. Like the UN General
Assembly, the OAS General Assembly adopts resolutions on a range of topics
including the human rights of migrants. Additionally, within the OAS system, the
Inter-American Commission on Human Rights ("IACHR"), which is based in
Washington, D.C., promotes respect for human rights, including by issuing
statements and reports and holding hearings and adopting findings in response to
individual petitions regarding a breach of a Member State's human rights
commitments. The IACHR often expresses concern about the treatment of
migrants by OAS Member States, including the United States. For example, in
addition to holding hearings that considered the enforcement of U.S. immigration
laws and policies, the IACHR recently published a thematic report addressing the
United States' use of immigration-related detention and associated issues.

21

30. Other intergovernmental organizations and international bodies, not
specifically focused on issues related to the human rights of migrants, also provide
venues in which States address issues related to migration generally, and which
often include issues related to the treatment of migrants within a State's domestic
legal and policy framework. These include the International Organization for
Migration, the Regional Conference on Migration (Western Hemisphere), the UN
High Level Dialogue on International Migration and Development, the Global
Forum on Migration and Development, the International Labor Organization, the
UN Office for Drug Control and Crime Prevention, and others.
31. As a matter of both international law and practice, the federal
government is held accountable internationally for the actions of state and local
authorities regarding our treatment of foreign nationals. International bodies and
foreign governments do not typically distinguish between the conduct of the
national government and the conduct of individual states within a federal system.
This is starkly evidenced by the United States' experience in cases in which U.S.
state and local government authorities have failed to comply with U.S. obligations
under the VCCR to provide consular notification to all foreign nationals in U.S.
custody. Failure to provide such notice by state officials has led to three suits by
Paraguay, Germany, and Mexico against the United States in the International
Court of Justice, an advisory opinion sought by Mexico in the Inter-American

22

Court of Human Rights, petitions against the United States in the IACHR, and
bilateral complaints by numerous foreign governments. The fallout from these
state activities remains a serious, ongoing foreign policy problem for the United
States.
32. The United States takes seriously allegations that it has failed to adhere
to its international law obligations and foreign policy commitments, and engages in
a variety of venues to address such claims. Although the State Department is fully
prepared to defend U.S. practices against unjustified claims of human rights
shortcomings, criticism from an international body over immigration issues can
directly undercut the credibility of U.S. efforts to advance human rights and can
lead to significant diplomatic obstacles—both on immigration issues of bilateral
concern and on other matters that might be the subject of diplomatic negotiations.
33. As discussed below, in this context, H.B. 56's criminal-enforcement-atall-costs approach and its sweep into matters left properly to federal direction and
control open the United States up to such criticism, while simultaneously denying
the United States the tools to decide for itself whether and how to adjust its
activities in response. These problems are magnified by H.B. 56's concurrent
enactment with other state laws that establish a cacophony of state-specific
immigrant enforcement regimes uncoordinated with the federal government's
policies and priorities. The State Department should be conducting international

23

diplomacy and defending U.S. interests only with regard to, and in light of,
immigration policies that have been adopted through a considered process that
reflects the interests of all the American people, not just the views of a particular
state legislature or set of state legislatures.
III. Alabama Law H.B. 56's Harm to U.S. Foreign Relations

34. H.B. 56 broadly threatens the national government's primacy in setting
immigration policy and ensuring that, when the federal government has spoken, its
word has weight and can be trusted by the international community. The Alabama
law conflicts with or undermines a number of specific foreign policy positions of
the United States, including: (1) that we do not ordinarily impose criminal
sanctions or other punitive measures on foreign nationals solely for unlawful
presence; (2) that we abide by norms of mutuality, hospitality, and respect, as well
as the principle of uniformity, in crafting and enforcing our immigration rules; and
(3) that we honor our international legal, political, and moral commitments to
protect the human rights of migrants. Foreign governments rely on these policies,
and trust that we will treat their nationals accordingly; the United States, in turn,
has the credibility and leverage to demand the same. It is because the international
community perceives laws like H.B. 56 as reneging on these stated policy
positions, which guarantee aliens are not, for example, subjected to legislated
homelessness or put in prison solely for seeking work, that so many foreign

24

governments have expressed their displeasure at such laws, and may retaliate in
kind. This kind of grievance tarnishes the United States' image and reduces our
ability to engage in foreign policy on numerous fronts.
35. Given the diplomatic and foreign relations sensitivities surrounding U.S.
immigration policy generally and the significant foreign relations consequences
that can result from even small changes in this area, and given that H.B. 56
represents an effort to regulate virtually every aspect of certain aliens' lives, it is
not surprising that H.B. 56 has already provoked international controversy. The
Alabama law unilaterally alters clear and longstanding policy choices by the
federal government regarding enforcement against individuals who are unlawfully
present in the United States. U.S. immigration law—and our uniform foreign
policy regarding the treatment of foreign nationals—has provided that the unlawful
presence of a foreign national, in itself, ordinarily will not lead to that foreign
national's criminal arrest, incarceration, or other punitive measures (e.g., legislated
homelessness) but instead to civil removal proceedings. Unlawful presence is a
basis for removal, not retribution. This is a policy that is understood
internationally, that is consonant with multilateral resolutions expressing the view
that an individual's migration status should not in itself be a crime, and that is both
important to and supported by foreign governments. This policy has been the
subject of repeated international discussions, and is firmly grounded in the United

25

States' human rights commitments as well as our interest in having our own
citizens treated humanely when abroad. H.B. 56 undermines this aspect of U.S.
immigration law and foreign policy by effectively allowing for criminal sanctions
and other punitive measures based on unlawful presence alone.
36. H.B. 56 further deviates from federal law and priorities by imposing
mandatory verification of immigration status and criminal enforcement of alien
registration, and by regulating, and in many cases criminalizing, work, travel,
housing, contracting, and educational enrollment by foreign nationals in a manner
not contemplated by U.S. law. H.B. 56's registration scheme imposes on aliens
severe administrative and interrogation burdens beyond those imposed by federal
law. Aliens in the United States expect to be verified and tracked by the federal
government, just as U.S. citizens traveling in other countries are prepared to
accommodate the legitimate demands of the national host government. But it is
counter to our longstanding foreign policy and our national interest for individual
states unilaterally to impose such severe, distinct burdens, and thereby to invite
both retaliatory measures against American nationals abroad and excessive
encroachments on the liberty of foreign nationals in the United States.
37. Through a variety of overlapping criminal and procedural mechanisms,
H.B. 56 invites harassment and mistreatment of foreign nationals locally, and
jeopardizes the United States' relationships and reputation abroad. Provisions in

26

H.B. 56 such as Section 27, which prohibits Alabama state courts from enforcing
contracts between an "alien unlawfully present in the United States" and any other
party; Section 28, which requires every public elementary and secondary school to
determine and report whether enrolling students were born "outside the jurisdiction
of the United States" or to an unlawfully present alien, and which will chill both
citizen and noncitizen minors from seeking an education; and Section 30, which
makes it a felony for unlawfully present aliens to enter into or attempt to enter into
any transaction with the state or its political subdivisions, all mark a dramatic
departure from the norms of mutuality, hospitality, and respect that have informed
U.S. law and foreign policy in this area. While the negative effects of these
provisions will not be limited to unlawfully present aliens, the clear intention is to
remove such individuals from Alabama public life, and from the State of Alabama
itself.

38. Both standing alone and in conjunction with other recently enacted state
immigration enforcement laws, H.B. 56 thus threatens significant harm to U.S.
bilateral relationships and to our standing and efficacy in regional and multilateral
fora. The criticism provoked by the Alabama law threatens multiple concrete
harms to U.S. foreign relations. As noted above, Alabama's effort to revise
immigration policy invariably risks the adoption of harmful reciprocal measures
toward U.S. nationals by foreign governments. It can also undermine the

27

willingness of foreign states to engage bilaterally and multilaterally with the
United States to advance U.S. foreign policy goals, and erode the credibility of
U.S. efforts in regional and multilateral intergovernmental bodies to advance
human rights. In addition, by contributing to the growing patchwork of statespecific immigration regimes, Alabama has fostered both cacophony and confusion
regarding U.S. immigration policy, undermining the United States' ability to speak
with one voice in this area and fueling a damaging perception that the United
States is becoming more hostile to foreign nationals.
A. Immediate Reaction to H.B. 56
39. The consequences of H.B. 56 on U.S. bilateral, regional, and
multinational relationships have inevitably been less visible than the consequences
of Arizona's S.B. 1070, enacted in April 2010, given that H.B. 56 was signed into
law only a few weeks ago; it followed on the heels of other state laws that had
already spotlighted the issue of state-specific immigration enforcement policies;
and Alabama is not a border state. Nevertheless, H.B. 56 has already generated
negative reaction that has damaged the public image of the United States, thereby
undermining our ability to pursue diplomatic objectives, and has provoked public
criticisms by governments with which the United States maintains important and
sensitive relations. Moreover, as noted above, the foreign affairs significance of
H.B. 56 cannot be assessed in isolation from the legislative efforts by other states

28

such as Arizona. The collective impact of these efforts threatens significant harm
to U.S. foreign relations and foreign policy interests.
40. Mexico's reaction to H.B. 56 was swift and strongly negative. The
Mexican Foreign Ministry issued a statement on the day H.B. 56 was signed into
law, expressing the Government of Mexico's "concerns and objections," and
noting that the Government had already registered its opposition "through several
channels and to different actors." The statement further remarked that H.B. 56
"criminalizes immigration and may lead to the incorrect enforcement of the law by
local authorities;" "potentially affects human and civil rights of Mexicans who live
in or visit Alabama;" and "goes against the principles of shared responsibility,
trust, and mutual respect under which the federal governments of Mexico and the
United States have determined to work to address shared challenges in North
America." Shortly after the issuance of this statement, the Government of El
Salvador publicly expressed its support for Mexico's protest against H.B. 56.
41. On the day after H.B. 56 was signed into law, the Mexican Ambassador
to the United States, Arturo Sarukhan, sent a letter to U.S. Attorney General Eric
Holder expressing the Government of Mexico's "deepest concern regarding the
recent enactment of HB 56." Ambassador Sarukhan devoted special criticism to
Section 28, stating that it "creat[es] a subclass of students singled out on the sole
basis of national origin and/or ethnicity," and warned that "Alabama's actions are

29

detrimental to the robust relationship that [Mexico and the United States] have
built as partners and neighbors in such important issues as enhancing economic
competitiveness and trade, cooperating against transnational organized crime,
promoting clean energy, and combating climate change." Ambassador Sarukhan
further criticized the growing state "patchwork of individual immigration
regimes," which "make[s] it impossible for Mexican nationals to understand their
rights and obligations[,] thereby rendering them vulnerable to potential
discrimination and abuse," and which "will weaken public support in Mexico for
working together" with the United States.

42. On July 8, 2011, the Embassy of Mexico issued a statement reiterating
Mexico's "deep concern" about H.B. 56 and "express[ing] dismay about its
content." The statement remarked that Section 28 of the Alabama law "could
likely lead to potential discrimination of Mexican students, including those who
are actually U.S. citizens of Mexican descent," and that "[t]he Government of
Mexico has repeatedly underscored that certain provisions of this law could
adversely affect the fundamental civil rights of Mexican nationals living or visiting
Alabama, further criminalize immigrants, and potentially lead to the selective
application of the law." H.B. 56 has deepened the perception that significant parts
of the United States are hostile toward Mexico, which in turn negatively affects

30

both Mexican popular views of the United States and numerous diplomatic
processes between U.S. and Mexican officials.
43. H.B. 56 has already received criticism from a key regional human rights
body as well. The IACHR, an autonomous organ of the OAS, announced on June
24 that it "is troubled by Alabama's HB56 and Arizona's SB 1070 laws, as well as
by other similar laws that have been enacted in the states of Utah, Indiana, and
Georgia," as these laws are in its view in tension with international human rights
standards. The IACHR warned that H.B. 56 "could lead to the use of racial
profiling by law enforcement officers," and that "implementing Alabama's HB56
carries a high risk of discrimination." The IACHR further expressed concern with
"the criminalization of the presence of irregular or undocumented immigrants,"
and with the possibility that H.B. 56's provisions criminalizing third-party
activities "could improperly hinder the work of assistance and protection of the
defenders of migrants' human rights." The IACHR "strongly urge[d]" the United
States to take corrective action in response to H.B. 56 and related state laws.
44. This kind of negative reaction by key regional allies and human rights
experts cannot readily be dismissed. Such criticisms—particularly when provoked
by an immigration enforcement policy that is being pursued unilaterally by a U.S.
state and that the national government does not control or endorse—affect the
United States' standing in bilateral, regional, and international relationships, and

31

ultimately the leadership role of the United States as we seek to advance a wide
range of policy goals within the international community. They risk retaliatory
harms to the legal rights of U.S. nationals abroad. And they compromise our
ability to engage effectively in bilateral, regional, and multilateral conversations
regarding human rights.
45. In my professional judgment, these immediate reactions provide only a
sample of the serious concerns that foreign governments and international bodies
will likely have with H.B. 56, and of the criticisms that H.B. 56 can be expected to
generate in the future. The international community has already demonstrated that
it perceives the Alabama law as a pernicious continuation and extension of
Arizona's S.B. 1070. The negative foreign relations effects of H.B. 56 will only
intensify if the legislation goes into effect.
B. Impact Since July 2010 of Related State Laws
46. As noted above, foreign governments and international legal and policy
bodies, as well as overseas opinion-makers, hold the United States responsible for
the immigration activities of its states, and have already lumped together
Alabama's H.B. 56 with recently enacted immigration enforcement laws in
Arizona, Utah, Georgia, Indiana, and South Carolina. These laws differ in certain
meaningful respects, but share a common purpose of establishing state-specific
immigration enforcement regimes. Because these laws adversely affect U.S.

32

foreign relations in similar and mutually reinforcing ways, and because the
growing patchwork of state immigration policies generates additional foreign
relations concerns, it is necessary to view the reaction to H.B. 56 in the context of
the fallout caused by Arizona's S.B. 1070 and follow-on state laws.
47. In a declaration dated July 2, 2010 which was filed in court, thenDeputy Secretary of State James Steinberg provided a detailed explanation of how
"the passage of Arizona S.B. 1070 ha[d] provoked broad-based criticism and
concern among U.S. allies in the Western Hemisphere, by human rights experts,
and in numerous intergovernmental fora." Declaration of James B. Steinberg at
20-25, United States v. Arizona, 641 F.3d 339 (9th Cir. 2011) (No. 10-16645).
Without repeating that explanation here, I can confirm that S.B. 1070 has had a
continued detrimental effect on U.S. foreign relations and foreign policy
objectives, and that the more recently enacted state immigration enforcement laws
have, individually and collectively, exacerbated those negative effects.
48. S.B. 1070 has been repeatedly criticized by foreign leaders in public
venues and raised by foreign officials in nonpublic settings, and has generated a
range of foreign affairs difficulties. For instance, Mexican concerns about S.B.
1070 led to the cancellation of the September 2010 U.S.-Mexico Border
Governors' Conference, an important initiative for improving binational
coordination on border issues, and to its subsequent relocation to New Mexico. At

33

the November 2010 Universal Periodic Review of the United States before the UN
Human Rights Council, part of a new process established by the UN General
Assembly to review quadrennially the human rights record of every UN Member
State, numerous countries pressed the high-level U.S. delegation on S.B. 1070.
Bolivia characterized S.B. 1070 as facilitating racial profiling in an advance
question. Ecuador characterized the law as discriminatory and racist, and
Guatemala implicitly characterized it as repressive and a violation of human rights,
in written recommendations. El Salvador similarly condemned S.B. 1070 at the
second Ibero-American Forum on Migration and Development, held in San
Salvador in late July 2010. Media in many Western Hemisphere countries, as well
as others, continue to cover S.B. 1070 extensively and in highly negative terms,
associating the law with American racism, xenophobia, and intolerance.
Consistent with the polling data cited by Deputy Secretary Steinberg, id. at 21,
diplomats who work in the region report that S.B. 1070 has contributed to a
perception among many Mexicans that ethnically based prejudice is free to find
legislative expression in the United States, and that S.B. 1070—together with the
more recently enacted state immigration enforcement laws—complicates numerous
aspects of their work.

49. Recently enacted immigration laws in Utah, Georgia, Indiana, and South
Carolina, along with Alabama's H.B. 56, have aggravated the negative foreign

34

relations and foreign policy impacts caused by S.B. 1070. The Government of
Mexico has issued statements criticizing each of these laws, and it vociferously
protested them both publicly and privately. Mexico has specifically criticized
provisions in the Georgia and Indiana laws that would bar the use of consular
identification cards for a wide range of purposes and therefore potentially
undermine U.S. compliance with our consular access obligations under the VCCR.
As noted above, the Mexican Ambassador has expressed particular concern about
the "patchwork of immigration regimes" developing within the United States.
Other Western Hemisphere countries, including Guatemala, Ecuador, and El
Salvador, have issued critical statements and/or sent critical diplomatic notes to the
State Department. Media coverage in Mexico has been particularly negative. On
account of Georgia's new law, Mexico has already elected to move a significant
binational health conference that it had planned to hold in Atlanta. Foreign
governments have additionally expressed their opposition to these new state laws
through litigation. Mexico has filed amicus briefs in support of private challenges
to the Utah, Indiana, and Georgia laws, and numerous Western Hemisphere
countries have joined those briefs. Indeed, more countries have joined Mexico's
amicus brief in Utah (Argentina, Brazil, Chile, Colombia, Costa Rica, Ecuador, El
Salvador, Guatemala, Honduras, Nicaragua, Paraguay, Peru, and Uruguay) than

35

joined its corresponding brief in Arizona—reflective of the growing regional
concern about these laws.
C. Future Ramifications
50. If H.B. 56 were to enter into effect, criticism will unquestionably
increase, and the risk of such harms will escalate. If enforced, the Alabama law
would have an increasingly caustic impact on the United States' relations with
important regional allies, undermine additional diplomatic arrangements and
opportunities for international cooperation, constitute an ongoing irritant in U.S.
bilateral, regional, and multilateral relationships, and subject the United States to
ongoing criticism in international fora.
51. A few such circumstances are readily foreseeable. For example, the
United States would almost certainly be criticized for H.B. 56 and related state
laws by UN human rights treaty monitoring bodies in the context of U.S. human
rights treaty reporting requirements. Within the next several months, the United
States is expected to report to both the UN Human Rights Committee and the
Committee on the Elimination of Racial Discrimination, and thereafter will be
expected to appear before each body to defend the United States' record of human
rights compliance. H.B. 56, if still in effect, would very likely be the subject of
criticism before both bodies.

36

52. If Alabama's attempt through H.B. 56 to set its own uncoordinated
immigration policy that regulates virtually every aspect of certain aliens' lives were
to go into effect, it would directly call into question the ability of the United States
to speak with one voice at the international level on issues related to immigration
and migration policy. As explained above, only the national government is in a
position to assess the full impact of a policy such as H.B. 56 on our overall foreign
relations agenda, and to balance the competing foreign affairs considerations
involved in the adoption and enforcement of such a law. Normally, when the
United States incurs criticism of immigration law and policies adopted at the
federal level, the United States is in a position to review the criticism and
determine whether to defend the practices against attack or else to take appropriate
action to modify its practices. The United States is also able to develop and
implement immigration policy in anticipation of these and other foreign affairs
concerns. But in this case, the policy being pursued has not been developed, nor
would it be implemented, with sensitivity to the full range of foreign policy
information and considerations available to the national government, and the
United States is unable to calibrate its immigration and foreign policies to respond
effectively to these claims.
53. The proliferation of state laws that seek to advance state-specific
immigration enforcement policies magnifies these concerns significantly. This

37

development threatens to subject the United States to a cacophony of competing
immigration enforcement priorities and agendas, with little regard for the sensitive
diplomatic and foreign relations considerations that immigration policy addresses,
and with an extreme adverse impact on the United States' international reputation
and its ability to speak with one voice in this sensitive area. Although the harm is
inflicted by the individual states, the costs invariably will fall on the United States
as a whole. Both the current and expected foreign affairs impacts of H.B. 56 must
be assessed with reference to such related state initiatives and potential future
initiatives, as the United States is held responsible internationally for all such
efforts.
54. In sum, H.B. 56—in particular, the mandatory verification and criminal
registration regime and the interlinking provisions restricting work, travel, housing,
contracting, and educational enrollment—poses a significant risk of provoking
retaliatory treatment against U.S. nationals by other states, and of generating
ongoing adverse consequences for important and sensitive bilateral relationships
with U.S. allies such as Mexico and others in the Western Hemisphere, and for our
global standing in regional and multilateral institutions. Along with other recently
enacted state immigration enforcement laws, it will likely hinder our ability to
secure the cooperation of foreign governments in efforts to promote U.S. interests
internationally across a range of trade, security, and other interests unrelated to

38

immigration. Finally, it will likely undermine the United States' ability to engage
effectively with the international community to promote the advancement and
protection of human rights. Such serious harm to international relations and U.S.
stature in bilateral, regional, and multilateral relationships is often extremely
difficult to repair after the fact.
55. Thus, having analyzed Alabama law H.B. 56, considered how it would
interact with existing federal immigration policy and practice, and assessed the
international reaction, I have concluded that the law runs significantly counter to
American foreign policy interests, and that its enforcement would further
undermine American foreign policy.
I declare under penalty of perjury that the foregoing is true and correct to the
best of my information, knowledge and belief. Executed the Rci*day of July 2011
in Washington, D.C.

William J. Burns

39