Georgia Latino Alliance for Human Rights et al v. Deal et al

Filing 56

MOTION for Leave to File Amicus Curiae Brief in Support of Plaintiffs Motion for Preliminary Injunctionby American Immigration Lawyers Association. (Attachments: # 1 Brief Amicus Curiae Brief in Support of Plaintiffs Motion for Preliminary Injunction)(Chea, Socheat)

Rebecca Sharpless
(Pro hac vice motion forthcoming)
Florida Bar No. 0131024
Farrin Anello
(Pro hac vice motion forthcoming)
New York Bar No. 4403952
Immigration Clinic
University of Miami School of Law
1311 Miller Drive, E273
Coral Gables, FL 33146
[phone]
[phone], clinic

Socheat Chea
Georgia Bar No. 122212
Socheat Chea, P.C.
3500 Duluth Park Ln, Bldg. 300
Duluth, GA 30096
[phone]

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHEN DISTRICT OF GEORGIA
ATLANTA DIVISION

Georgia Latino Alliance for Human
Rights, et al.,
Plaintiffs
v.
Governor Nathan Deal, et al.,
Defendants.

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Case No. 1:11-cv-1804-TWT

AMICUS CURIAE BRIEF IN SUPPORT OF PLAINTIFFS’ MOTION FOR
PRELIMINARY INJUNCTION

TABLE OF CONTENTS
TABLE OF AUTHORITIES.....................................................................................ii
INTRODUCTION......................................................................................................1
STATEMENT OF INTEREST OF AMICI CURIAE................................................4
ARGUMENT.............................................................................................................5
I.

BECAUSE GEORGIA LAW CRIMINALIZES MINOR OFFENSES
SUCH AS TRAFFIC INFRACTIONS, HB 87 WILL CONVERT
ROUTINE LAW ENFORCEMENT ENCOUNTERS INTO
PROLONGED AND INTRUSIVE CUSTODIAL INTERROGATIONS
REGARDING IMMIGRATION STATUS.................................................7

II.

HB 87 INCORRECTLY ASSUMES THAT THERE IS A CLEAR
ILLEGAL/LEGAL DISTINCTION AND THAT CITIZENSHIP AND
IMMIGRATION STATUS IS READILY
ASCERTAINABLE....................................................................................8

III. THE ENUMERATED IDENTIFICATION DOCUMENTS IN HB 87
SECTION 8 FAIL TO CORRESPOND TO LAWFUL IMMIGRATION
STATUS AND THEREFORE DO NOT SIGNIFICANTLY LIMIT
CIVIL IMMIGRATION ENFORCEMENT ACTIONS BY GEORGIA
POLICE.....................................................................................................15
CERTIFICATE OF COMPLIANCE.......................................................................20
CERTIFICATE OF SERVICE................................................................................21

i

TABLE OF AUTHORITIES
Cases
American Baptist Churches v. Thornburgh, 760 F. Supp. 796 (N.D. Cal. 1991)...12
DeCanas v. Bica, 424 U.S. 351, 354 (1976)..............................................................2
Hines v. Davidowitz, 312 U.S. 52, 67 (1941)............................................................3
Matter of Rivera, 21 I&N Dec. 232 (BIA 1996)......................................................11
Matter of Rodriguez-Tejedor, 23 I. & N. Dec. 153 (BIA 2001)..............................14
Miller v. Albright, 523 U.S. 420, 429-30 (1998).....................................................14
Nken v. Holder, 129 S.Ct. 1749, 1756–57 (2009)...................................................11
Orantes-Hernandez v. Thornburgh, 919 F.2d 549, 558 (9th Cir. 1990).................11
United States of America v. State of Arizona, __F.3d__, 2011 WL 1346945 (9th
Cir. Apr. 11, 2011)...............................................................................................2
Zadvydas v. Davis, 533 U.S. 678 (2001)...................................................................9
Statutes and Regulations
8 C.F.R. §214.14(c)(5)(i).........................................................................................10
8 C.F.R. § 264.1(a)...................................................................................................18
8 C.F.R. § 264.1(b)...................................................................................................18
8 C.F.R. § 1241.8(d).................................................................................................12
ii

8 U.S.C. § 1101(a)(27)(J).........................................................................................10
8 U.S.C. §1101(a)(47)..............................................................................................11
8 U.S.C. § 1182(a)(9)(B).....................................................................................8 n.4
8 U.S.C. § 1182(a)(9)(C).....................................................................................8 n.4
8 U.S.C. § 1229a......................................................................................................11
8 U.S.C. §1231(c)(2)................................................................................................11
8 U.S.C. §1252c...................................................................................................2 n.1
8 U.S.C. § 1324(c)................................................................................................2 n.1
8 U.S.C. § 1357(a)(2)...........................................................................................3 n.2
8 U.S.C. §1357(g)(1).................................................................................................2
8 U.S.C. § 1401........................................................................................................14
8 U.S.C. § 1401(g)...................................................................................................14
8 U.S.C. § 1409........................................................................................................14
8 U.S.C. § 1431(a)...................................................................................................14
8 U.S.C. § 1431(b)...................................................................................................14
8 U.S.C.A. § 1373(c)..................................................................................................4
8 U.S.C.A. § 1644......................................................................................................4
Child Citizenship Act of 2000, Pub. L. No. 106-395, 114 Stat. 1631 (Oct. 30,
2001)..................................................................................................................15
N.M. Stat. Ann. § 66-5-9(B) (1978)..................................................................17 n.8
N.M. Code R. § 18.19.5.12(D)...........................................................................17 n.8
O.C.G.A. § 16-11-202(d)...........................................................................................4
O.C.G.A. § 17-5-100..............................................................................................1, 3
O.C.G.A. § 17-5-100(a)(2)...................................................................................8, 12
iii

O.C.G.A. § 17-5-100(b).............................................................................................3
O.C.G.A. § 17-5-100(b)(1)................................................................................15, 16
O.C.G.A. § 17-5-100(b)(2)...............................................................................15, 16
O.C.G.A. § 17-5-100(b)(3)................................................................................15, 16
O.C.G.A. § 17-5-100(b)(4)................................................................................15, 16
O.C.G.A. § 17-5-100(b)(5)................................................................................15, 16
O.C.G.A. § 17-5-100(c)...........................................................................................13
O.C.G.A. § 17-5-100(e).............................................................................................4
O.C.G.A. § 17-5-100(f)............................................................................................10
O.C.G.A. § 40-2-8................................................................................................7 n.3
O.C.G.A. § 40-6-42..............................................................................................7 n.3
O.C.G.A. § 40-6-43..............................................................................................7 n.3
O.C.G.A. § 40-6-49..............................................................................................7 n.3
O.C.G.A. § 40-6-50..............................................................................................7 n.3
O.C.G.A. § 40-6-92..............................................................................................7 n.3
O.C.G.A. § 40-6-124............................................................................................7 n.3
O.C.G.A. § 40-6-181............................................................................................7 n.3
Wash. Rev. Code 46.20.035(3)..........................................................................17 n.8
Other Authorities
Defendant’s Memorandum In Support of Motion to Dismiss (No. 1:11-cv01804)...............................................................................................................7-8
Denial of Driver’s Licenses to Many Immigrants Voided, The New York Times,
May 11, 2005.....................................................................................................17
iv

Donald Neufeld, Lori Scialabba, and Pearl Chang, Consolidation of Guidance
Concerning Unlawful Presence for Purposes of Sections 212 (a)(9)(B)(i) and
212(a)(9)(C)(i)(I) (May 6, 2009)...................................................................8 n.4
ICE Law Enforcement Service Center (LESC) Training Manual...........................12
Lawful Immigrants Sue Massachusetts RMV for Wrongful Denial of Driver’s
Licenses, December 15, 2006.......................................................................17-18
Memo, INS, Pearson HQASY120/12/11 (Feb. 23, 2001), reprinted in 78 No. 9
Interpreter Releases 444, 455–64 (Mar. 5, 2001)..............................................12
U.S. Const. Amend. XIV, § 1..................................................................................14
U.S. Department of State Bureau of Consular Affairs, Passport Statistics.......16 n.7

v

INTRODUCTION
The American Immigration Lawyers Association (AILA) writes as Amicus
Curiae to demonstrate how Section 8 of the Illegal Immigration Reform and
Enforcement Act of 2011 (HB 87) substitutes oversimplified state immigration
classifications for the complex federal immigration scheme and permits Georgia
police officers to make highly discretionary judgment calls during routine law
enforcement encounters about who they should detain for alleged civil immigration
violations. HB 87 (1) uses the phrases “illegal alien” and “present . . . in violation
of federal immigration law,” neither of which are found in the federal immigration
scheme; (2) ignores the fact that it will frequently involve a judgment call to
determine whether or not a person falls into these state-created categories; and
(3) fails to recognize that identification documents cannot accurately operate as
proxies for citizenship and immigration status.
Georgia’s immigration enforcement scheme grants sweeping and unchecked
authority to state and local police officers, invites invidious profiling based on
race, ethnic appearance, or language, and will result in prolonged and illegal
detentions of United States citizens and noncitizens with permission to be in the
United States. O.C.G.A. § 17-5-100. HB 87 usurps Congress’s power to regulate

1

immigration and conflicts with federal immigration law.

Like the immigration

enforcement laws enacted by Arizona and struck down as unconstitutional by the
Ninth Circuit Court of Appeals, HR 87 is preempted by federal law, which
exclusively governs the regulation of immigration. DeCanas v. Bica, 424 U.S.
351, 354 (1976) (regulation of immigration is exclusively federal); United States of
America v. State of Arizona, __F.3d__, 2011 WL 1346945 (9th Cir. Apr. 11, 2011).
HB 87 is additionally preempted because it conflicts with current federal law. The
federal government has delegated the authority to enforce specified criminal
immigration provisions to state authorities under 8 U.S.C. §§ 1252c and 1324(c),1
but has permitted state police officers to make arrests for civil immigration
violations only when the particular officers have been deputized and trained
pursuant to 8 U.S.C. §1357(g)(1) and are acting under the direct supervision of
federal immigration officers.

HB 87 directly conflicts with federal law by

purporting to allow all local and state police officers to investigate, detain, and
transport people suspected of violating civil federal immigration law and by
creating new criminal immigration violations. It further conflicts by requiring that
1

Under 8 U.S.C. § 1252c, state and local officers may arrest and detain a noncitizen for the federal crime of illegal
reentry by a felon who had been deported if the federal government provides “appropriate confirmation” of the person’s
status. Under 8 U.S.C. § 1324(c), state and local officers can make arrests for the federal immigration crimes of
transporting, smuggling, or harboring certain noncitizens.

2

everyone, United States citizens and noncitizens alike, carry certain forms of
identification in order to avoid being subjects of an immigration investigation and
by authorizing warrantless immigration arrests under circumstances more
expansive than federal law.2 HR 87 also creates impermissible “obstacles” to the
effective implementation of federal immigration enforcement by placing a
tremendous burden on the federal government to respond to time-consuming and
often unanswerable requests. Hines v. Davidowitz, 312 U.S. 52, 67 (1941).
Under Section 8 of HB 87, any “peace officer” is authorized to “verify” the
immigration status of anyone suspected of a violation of Georgia or federal
criminal law and has authority to detain, arrest, and transport suspected “illegal
alien[s].”

O.C.G.A. § 17-5-100.

proceeds in three steps.
identification.

Georgia’s state immigration investigation

First, the officer asks a suspected individual for

Second, if the person is unable to produce the identification

specified in § 17-5-100(b), the officer is “authorized to use any reasonable means
available to determine the immigration status of the suspect.” These means include
but are not limited to:

2

Under federal law, federal officers can only execute a warrantless arrest if they find that a suspected immigration
violator is likely to escape before a warrant can be obtained. 8 U.S.C. § 1357(a)(2). Georgia’s law contains no such
limitation.

3

“(1) Use of any authorized federal identification data base,” “(2)
Identification methods authorized by federal law, including those authorized
by 8 USCA 1373(c), 8 USCA 1644,” “(3) Use of electronic fingerprint
readers or similar devices,” and “(4) Contacting an appropriate federal
agency.”
Section 8, O.C.G.A. § 16-11-202(d). Third, if the officer believes that he or she
has “received verification that such suspect is an illegal alien,” the officer can
make a warrantless arrest for a suspected civil immigration violation. Specifically,
the officer can
take any action authorized by state and federal law, including, but not
limited to, detaining such suspected illegal alien, securely transporting such
suspect to any authorized federal or state detention facility, or notifying the
United States Department of Homeland Security or successor agency.
Section 8, O.C.G.A. § 17-5-100(e).
As the analysis below shows, Section 8 of HB 87 will result in numerous
erroneous detentions and arrests solely for suspected civil immigration violations.
Georgia police officers will detain and arrest United States citizens and noncitizens
with permission to be in the United States.
STATEMENT OF INTEREST OF AMICI CURIAE
AILA is a national association with more than 12,000 members throughout
the United States. Members include lawyers and law school professors who

4

practice and teach in the field of immigration and nationality law. AILA seeks to
advance the administration of law pertaining to immigration, nationality and
naturalization; to cultivate the jurisprudence of the immigration laws; and to
facilitate the administration of justice and elevate the standard of integrity, honor
and courtesy of those appearing in a representative capacity in immigration and
naturalization matters. AILA’s members practice regularly before the United States
Citizenship and Immigration Services and the Executive Office for Immigration
Review as well as before the United States District Courts, Courts of Appeals, and
the Supreme Court of the United States.
ARGUMENT
HB 87, like other recent state immigration enforcement schemes, is based on
the assumption that law enforcement officials can quickly and accurately ascertain
citizenship or immigration status.

This assumption is incorrect.

There is no

general federal definition of “illegal alien” or unlawful presence. The varieties of
immigration status are numerous and include categories of individuals who have
technically violated the immigration law but who are nonetheless present with the
permission of the United States, as well as many people who are awaiting
adjudication of their removability or claims to asylum or other relief from removal.

5

Although Section 8 of HB 87 creates a list of identification documents that are
deemed to create a presumption of lawful presence, these documents do not
sufficiently correlate to a person’s citizenship or immigration status.

Entire

categories of United States citizens and noncitizens with permission to remain in
the United States are unlikely to have the enumerated identification documents and
therefore will be subjected to interrogation and detention. The law’s requirement
that police officers “verify” with the federal government that a person is an “illegal
alien” provides little limitation on police authority because (1) there is no general
definition of “illegal alien” or being present in “violation” of immigration law; (2)
whether or not someone is present in violation of immigration law is complex and
time-consuming even for federal officers; and (3) Section 8 provides officers with
wide discretion to determine when the federal government can be considered to
have “verified” illegal status.

Nothing in HB 87 requires that a police officer

communicate

with

immigration

determination.

As such, HB 87 invites police officers to make determinations

federal

authorities

before

making

this

based on race, ethnic appearance, or language, notwithstanding the law’s
prohibition of invidious discrimination. HB 87 will result in illegal and prolonged
detentions of United States citizens and noncitizens whom the federal government

6

has chosen not to deport in accordance with its mandate to balance enforcement
against other interests.
I.

BECAUSE GEORGIA LAW CRIMINALIZES MINOR OFFENSES
SUCH AS TRAFFIC INFRACTIONS, HB 87 WILL CONVERT
ROUTINE LAW ENFORCEM ENT ENCOUNTERS INTO
PROLONGED AND INTRUSIVE CUSTODIAL INTERROGATIONS
REGARDING IMMIGRATION STATUS.
Because Georgia law criminalizes minor offenses such as traffic infractions,

HB 87 will convert routine encounters by state and local police into intrusive and
prolonged custodial interrogations.

Georgia police officers will not be simply

piggy-backing immigration detention onto criminal detention but will be detaining
people solely for immigration purposes. Although Section 8 authorizes police to
commence a civil immigration investigation only when they have probable cause
that someone has committed a crime, this requirement will not limit the reach of
the law because Georgia’s criminal code includes a wide range of minor offenses
that would normally not lead to detention or arrest. Under Georgia law, infractions
such as speeding, failing to signal, or jaywalking are violations of the criminal
code justifying a police stop.3 As recognized by Defendants, “the State of Georgia
has codified its traffic code with Title 40 of its official code.”
3

Defendant’s

See, e.g., O.C.G.A. §§ 40-2-8 (expired tag); -6-42 (improper passing on left); -43 (overtaking/passing on right); -49
(following too closely); -50 (crossing gore); -92 (jay walking); -124 (fail to use signals, hand, arm or signal lights); 1 8 1 (sp e e d in g ).

7

Memorandum In Support of Motion to Dismiss at 40, n. 9. As a result, Section 8
broadly authorizes police officers to conduct civil immigration investigations on
virtually anyone they encounter in their capacity as law enforcement officers.
II.

HB 87 INCORRECTLY ASSUMES THAT THERE IS A CLEAR
ILLEGAL/LEGAL DISTINCTION AND THAT CITIZENSHIP AND
IMMIGRATION STATUS IS READILY ASCERTAINABLE.
Section 8 of HB 87 defines “illegal alien” as someone “who is verified by

the federal government to be present in the United States in violation of federal
immigration law.” O.C.G.A. § 17-5-100(a)(2). The law assumes that there are
clearly defined “legal” and “illegal” categories and that the federal government can
easily verify whether a person falls into one or the other. Both assumptions are
incorrect. Immigration law contains no general definition of legal/illegal status or
lawful/unlawful presence.4

Nor do federal immigration authorities categorize

people in these binary terms. Rather, immigration law consists of a complex web
4

The Georgia law’s reference to “presen[ce] … in violation of federal immigration law” does not align with federal law
because this concept has no statutory counterpart in the Immigration and Nationality Act. Although the terms “unlawful
presence” and “unlawfully present” are found in 8 U.S.C. § 1182(a)(9)(B) and (C), two specific grounds of
inadmissibility to the United States, this term is limited to these contexts and is not a term of general application in the
Immigration and Nationality Act. Adjudication of “unlawful presence” for admissibility purposes occurs within the
context of a formal adjudication by an immigration judge or examiner within United States Citizenship and Immigration
Services. Moreover, some noncitizens are deemed to be accruing “unlawful presence” even though they have permission
to work or live in the United States. Conversely, not every noncitizen who is likely to be found deportable due to lack
of immigration status accrues unlawful presence under 8 U.S.C. § 1182(a)(9)(B) or (C). See Donald Neufeld, Lori
Scialabba, and Pearl Chang, Consolidation of Guidance Concerning Unlawful Presence for Purposes of Sections 212
(a)(9)(B)(i)
and
212(a)(9)(C)(i)(I)
(May
6,
2009)
at
9-12,
available
at
http://www.uscis.gov/USCIS/Laws/Memoranda/Static_Files_Memoranda/2009/revision_redesign_AFM.PDF.

8

of various types of status, ranging from lawful permanent residents (“green card”
holders) to people with final orders of removal who nevertheless are authorized to
be in the United States under supervision.

Many foreign-born individuals fall

neither within nor without the category “present in the United States in violation of
federal immigration law.”5 These include people who may have derived or
acquired United States citizenship through an American parent or parents; people
with pending removal proceedings or appeals; people who have been ordered
deported but who have been granted deferral of removal under the Convention
Against Torture or withholding of removal due to the probability of persecution if
they were to return to their countries of origin; people who could be or have been
ordered deported but have been granted deferred action (a form of prosecutorial
discretion); persons subject to final orders of removal who cannot be deported
because their countries of origin refuse to repatriate them or because they are
stateless;6 immigrant victims of domestic violence, crime, or severe forms of
human trafficking and others with pending petitions for status from U.S.
Citizenship and Immigration Services; and certain immigrant juveniles who may

5
6

The ambiguities of these categories are described in greater detail below.
See Zadvydas v. Davis, 533 U.S. 678 (2001).

9

be entitled to remain permanently in the United States as “special immigrant
juveniles.” 8 U.S.C. § 1101(a)(27)(J).
In light of the lack of a federal definition of “illegal alien” or “present . . . in
violation of federal immigration law,” HB 87 also presents an acute problem for
particularly vulnerable groups of noncitizens. Congress has authorized visas or
lawful status for crime victims in return for their cooperation with law enforcement
in attempts to prosecute the perpetrator. A person may qualify for the U-visa or
status even if he or she has committed an aggravated felony offense or has an
outstanding order of removal. See 8 C.F.R. § 214.14(c)(5)(i). Because of the
ambiguity of whether a pending U-visa application takes someone out of the
“illegal alien” category, HB 87 could authorize the detention of U-visa applicants
in direct contravention of Congress’s intent to protect victims of crime and to
encourage them to report crimes and cooperate with police. Section 8’s prohibition
of immigration investigations when people report a crime or seek assistance as
crime victims places no limits on investigations that occur during routine law
enforcement encounters. O.C.G.A. § 17-5-100(f).
The cases of noncitizens in removal proceedings are particularly complex.
There are many reasons why noncitizens ordered removed by an immigration

10

judge are not subject to deportation. The order may be on appeal with the Board of
Immigration Appeals (BIA) and not yet be final. See 8 U.S.C. §1101(a)(47)
(explaining that an order becomes final upon decision by the BIA or where the
time to seek BIA review lapses). Or it may be the subject of a stay by a federal
court of appeals during a petition for review. See Nken v. Holder, 129 S.Ct. 1749,
1756–57 (2009) (describing federal court authority to grant a stay).

A federal

district court may have issued a writ of habeas corpus or granted a temporary
restraining order or a preliminary injunction, preventing the execution of a removal
order. See, e.g., Orantes-Hernandez v. Thornburgh, 919 F.2d 549, 558 (9th Cir.
1990) (explaining that district courts have broad discretionary power to fashion
equitable relief). The BIA or an immigration judge may have granted a stay of
removal pending review of a motion to reopen or motion to reconsider.
See 8 U.S.C. § 1229a (explaining that the filing of a motion to reopen for
exceptional circumstances stays deportation until the immigration judge rules);
Matter of Rivera, 21 I&N Dec. 232 (BIA 1996) (deportation will be automatically
stayed until the BIA rules on an appeal). The U.S. Attorney General may have
granted a stay of removal for an individual who is needed as a witness in a
prosecution or whose removal is otherwise not practicable or proper. See 8 U.S.C.

11

§1231(c)(2).
Other noncitizens with removal orders may be protected against deportation
in part by binding agreements sanctioned by federal courts, such as the settlement
reached in American Baptist Churches v. Thornburgh, 760 F. Supp. 796 (N.D. Cal.
1991) (ABC Agreement). The ABC agreement is just one example of agreements
struck in federal courts that bind federal agencies from deporting certain aliens
with final orders of removal. See Memo, INS, Pearson HQASY120/12/11 (Feb.
23, 2001), reprinted in 78 No. 9 Interpreter Releases 444, 455–64 (Mar. 5, 2001).
See also 8 C.F.R. Part 1241 Subpart A (Post-hearing Detention and Removal) at
§ 1241.8(d).
Cases involving pending applications for relief or removal orders are
difficult to assess in part because relevant information may not be readily
obtainable from a central database.

See ICE Law Enforcement Service Center

(LESC) Training Manual available at http://www.scribd.com/doc/21968082/ICELaw-Enforcement-Service-Center-LESC-Training-Manual (describing databases).
Georgia law enforcement officers carrying out their duties may be unable to
accurately assess immigration status in all but a relatively narrow category of
situations where an individual possesses valid, unequivocal proof of status, such as

12

a “green card.” The fact that O.C.G.A. § 17-5-100(a)(2) defines “illegal alien” as
someone “who is verified by the federal government to be present in the United
States in violation of federal immigration law” does not alter this reality (emphasis
added). The statute grants Georgia police officers wide discretion to determine
whether or not someone has been “verified” to be an “illegal alien.” Under § 17-5100(c), police officers are “authorized to use any reasonable means available to
determine the immigration status of the suspect (emphasis added).” There is no
requirement that Georgia police actually contact DHS for the verification. The
statute states only that a “reasonable means” might include “[c]ontacting an
appropriate federal agency.” Id.
Although officers must “receive[] verification [from the federal government]
that [the] suspect is an illegal alien” before arresting the person on a civil
immigration violation, nothing in the law specifies how this verification is
supposed to occur. The broad language sanctioning immigration investigations by
“any reasonable means” suggests that officers could find “illegal alien” status to be
“verified” based on nothing more than inferences from information contained in
federal databases and/or federal documents.

As discussed above, immigration

status is complicated and records do not specify illegal/legal status as such.

13

Even determinations of United States citizenship can be both legally and
factually complex.

Birth in the United States straightforwardly confers United

States citizenship. See U.S. Const. Amend. XIV, § 1. Some people born abroad,
however, are also United States citizens by virtue of having acquired or derived it.
These United States citizens may not possess a certificate of citizenship, U.S.
passport, or other document as evidence of their status.
A foreign-born child automatically becomes a United States citizen by
operation of law if a parent naturalizes before the child reaches the age of eighteen
and certain other conditions are met. See 8 U.S.C. § 1431(a). A child born abroad
to one or two United States citizens can also be a United States citizen if certain
conditions are met. See 8 U.S.C. §§ 1401, 1409 (setting out various conditions
whereupon individuals may acquire U.S. citizenship at birth); Miller v. Albright,
523 U.S. 420, 429-30 (1998) (plurality opinion) (acknowledging that 8 U.S.C.
§ 1401(g) provides for citizenship at birth abroad to one U.S. citizen parent and
one alien parent). Accord 8 U.S.C. § 1431(b) (setting forth conditions whereupon
adopted alien children acquire U.S. citizenship automatically).
Analyses of derivative and acquired citizenship claims are particularly
complex because different laws apply in different situations.

14

See Matter of

Rodriguez-Tejedor, 23 I. & N. Dec. 153 (BIA 2001). Current law, contained in the
Child Citizenship Act of 2000, Pub. L. No. 106-395, 114 Stat. 1631 (Oct. 30,
2001), is not retroactive, making the relevant law a function of when a person was
born.

The factual determinations involved in citizenship determinations are

equally difficult, often depending on facts relating to the person’s parents (for
example, dates of naturalization and dates of physical presence).

As a result,

neither Georgia police in the field nor immigration agents responding to phone
calls are in a position to make timely and accurate determinations regarding United
States citizenship.
III.

THE ENUMERATED IDENTIFICATION DOCUMENTS IN HB 87
SECTION 8 FAIL TO CORRESPOND TO LAWFUL IMMIGRATION
STATUS AND THEREFORE DO NOT SIGNIFICANTLY LIMIT
CIVIL IMMIGRATION ENFORCEMENT ACTIONS BY GEORGIA
POLICE.
A safe-harbor provision of the Georgia statute, which enumerates five

documents as presumptive indicators of lawful immigration status, fails to
significantly limit civil immigration enforcement actions by state and local police.
O.C.G.A. §§ 17-5-100(b)(1)-(5). The documents are: (1) a “secure and verifiable
document” as defined in Section 19 of HB 87; (2) a valid Georgia driver’s license;
(3) a valid Georgia identification card; (4) a valid driver’s license or identification

15

document issued from an entity requiring proof of legal presence; and (5) a valid
international license if the holder is a nonresident. Id. These documents cannot
serve as accurate proxies for citizenship or immigration status because people who
are United States citizens and people who have lawful status may not possess one
of the five types of documents. Despite §§ 17-5-100(b)(1)-(5), entire categories of
United States citizens and people who have permission to remain in the United
States will be at risk of interrogation and detention.
United States citizenship may be definitively established through a birth
certificate, passport, certificate of naturalization, or a certificate of citizenship. But
it is highly unlikely that a United States citizen will possess one of these
documents during a routine stop by the authorities. United States citizens are not
required to carry proof of citizenship or identification, and it is estimated that fewer
than twenty-five percent possess a passport.7 Native-born United States citizens
who do not have passports are not in any federal immigration database. Moreover,
some states do not require proof of lawful presence in the United States before
issuing a driver’s license or state identification card. For example, Washington and
7

See U.S. Department of State Bureau of Consular Affairs, Passport
http://travel.state.gov/passport/ppi/stats/stats_890.html (last visited Jun. 10, 2011).

16

Statistics,

available

at

New Mexico issue driver’s licenses and identification cards to individuals
regardless of their citizenship or immigration status.8 As a result, United States
citizen residents of Washington who are not carrying a passport will be unable to
establish a presumption of lawful presence in the United States if they are stopped
in Georgia because they will lack the requisite documents required under Section 8
of HB 87.

HB 87 will therefore subject United States citizens to undue

interrogation and detention by law enforcement officers.
The same is true for noncitizens authorized to be present in the United States
who do not possess any of the enumerated identification documents.

Many

categories of noncitizens have some form of immigration status but do not possess
a driver’s license or state identification because of strict qualification requirements.
Even those who qualify for a driver’s license or identification may be erroneously
denied because Department of Motor Vehicle staff misapplied the complex rules
about who qualifies. See Denial of Driver’s Licenses to Many Immigrants Voided,
The New York Times, May 11, 2005, available at http://www.nytimes.com/2005/
05/11/nyregion/11license.htmlhttp://www.nytimes.com/2005/05/11/nyregion/11lic
8

W ash. Rev. Code 46.20.035(3) (allowing use of “other available documentation,” on a discretionary basis, for
issuance of driver’s license); N.M. Stat. Ann. § 66-5-9(B) (1978); N.M. Code R. § 18.19.5.12(D) (allowing foreign
national to obtain driver’s license with federal tax identification number and valid foreign passport or Matrícula
Consular card);

17

ense.html; Lawful Immigrants Sue Massachusetts RMV for Wrongful Denial of
Driver’s

Licenses,

December

http://www.aclum.org/news_12.15.06.

15,

Moreover,

2006,
some

available
people

may

at
have

paperwork associated with their status that is written in technical language and is
not readily understandable.

Federal immigration regulations at 8 C.F.R.

§§ 264.1(a)-(b) prescribe over twenty (20) different types of immigration
registration forms or documents that do not necessarily include a photo or picture.

In sum, HB 87 incorrectly assumes that citizenship or immigration status is
easily determined and readily ascertainable during every-day encounters with law
enforcement. In reality, the complexities of immigration law, lack of a uniform
meaning for “illegal alien,” and incomplete access to information combine to make
it difficult to accurately and timely assess immigration status. Moreover, the list of
safe-harbor documents provided in Section 8 does little to limit the immigration
investigations of police because many United States citizens and people with status
do not possess these documents.

HB 87 therefore subjects both United States

citizens and lawfully present noncitizens to erroneous and intrusive interrogation
and prolonged detention during routine law enforcement encounters.

18

RESPECTFULLY SUBMITTED,
/s/ Socheat Chea
Socheat Chea
On behalf of Attorneys for Amicus
Curiae American Immigration Lawyers
Association

Rebecca Sharpless*
Florida Bar No. 0131024
Farrin Anello*
New York Bar No. 4403952
Immigration Clinic
University of Miami School of Law
1311 Miller Drive, E273
Coral Gables, FL 33146
[phone]
[phone], clinic
[phone], facsimile
Counsel for Amicus Curiae
*Pro hac vice motions forthcoming

Socheat Chea
Georgia Bar No. 122212
Socheat Chea, P.C.
3500 Duluth Park Ln, Bldg. 300
Duluth, GA 30096
[phone]

19

CERTIFICATE OF COMPLIANCE

As required by Local Rule LR 5.1 and 7.1D, undersigned counsel hereby
certifies that this brief has been prepared with Times New Roman, 14 point font.

This 15th day of June, 2011.

/s/ Socheat Chea

20

CERTIFICATE OF SERVICE
I hereby certify that I have this date electronically filed the foregoing with
the Clerk of the Court using the CM/ECF system, which will automatically send
e-mail notification to the following attorney for Defendants Deal, Olens, Reese,
and Beatty, to whom a copy is being sent by Fed-Ex today:
Devon Orland
Office of State Attorney General
40 Capitol Square, S.W.
Atlanta, GA 30334-1300
[e-mail]
Attorney for Defendants Deal, Olens, Reese and Beatty
I hereby certify that a copy of the foregoing is being sent by Fed-Ex on this date to
the following non-CM/ECF participant:
Falecia Stewart
Executive Director, Housing Authority of Fulton County
HAFC Headquarters
4273 Wendell Drive
Atlanta, GA 30336
This 15th day of June, 2011.
/s/ Socheat Chea

21