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ACLU challenging immigration law

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ACLU challenging immigration law

Group's federal lawsuit says immigrants could be arrested for noncriminal actions


Indiana's new immigration law includes unlawful provisions that would allow local police to interfere with federal authorities and arrest immigrants -- documented or not -- for reasons that have little to do with criminal activity, one civil rights group says.

That's the basis of a federal lawsuit filed Wednesday by the ACLU of Indiana. The group is seeking an injunction against those provisions contained in the law, which is set to become effective in July.

Something as simple as using a picture ID card issued by the Mexican consulate would be enough to allow police to make an arrest, the ACLU lawsuit claims, even though more than 50,000 cards have been issued locally in the past five years for basic uses such as getting consular services, cashing a check or using a credit card.

"Banks in Indiana take them, but this now prevents that," said Ken Falk, legal director for the ACLU, who filed the lawsuit on behalf of three Central Indiana residents -- but is seeking to broaden the claim to class-action status on behalf of others.

"We don't want people on July 1 to be worried about getting arrested for using their Consulate Identification Cards. We want them to be able to go to Kroger and use their cards to get their groceries," he said.

Under other disputed provisions, police could arrest someone for having a federal immigration "removal order" on file -- even if that order is not being pursued by the federal government.

And if a person has a felony conviction on record -- even if time was served or the conviction was downgraded to a misdemeanor -- he or she could still be arrested.

The lawsuit was filed in U.S. District Court in Indianapolis.

Falk said his intent with this lawsuit isn't to get an injunction against the entire law. Major provisions, like compelling business owners to use the federal e-Verify system to determine legal status of an employee, are being tested in other federal courts and are not part of this action.

The lawsuit drew an immediate rebuke from state Sen. Mike Delph, R-Carmel, who authored the measure that attempts to crack down on illegal immigration in Indiana.

"It appears the ACLU has filed a lawsuit against citizens of Indiana in favor of illegal immigrants," Delph said in a written statement. "This is not surprising given their very liberal leanings.

"Illegal immigration is just that, illegal. Those here unlawfully need to return to their country of origin and re-enter by lawful means," he said.

But one immigration law expert, who reviewed the case for this story, believes the ACLU has a pretty good chance of winning the case.

"This is far from a frivolous lawsuit. It is addressing some genuine problematic features of the recent statute," said Professor Emeritus John Scanlon of the Indiana University School of Law-Bloomington, who taught immigration law for 26 years.

"There are always issues when a state is attempting to directly enforce a provision of the immigration code. And it's not really clear why the state of Indiana believes it has the right to legislate in this particular area."

Scanlon said legal precedent going as far back as the 19th century gives the federal government exclusive power over immigration issues. But supporters of the state's immigration law say that's the problem. The federal government has the authority, but seldom uses it.

The day Gov. Mitch Daniels signed the bill into law, more than 100 protesters gathered outside the Statehouse, including a handful that came out publicly to declare they were undocumented students. However, federal officials declined to take steps to have them deported.

The ACLU's suit was filed on behalf of three Central Indiana residents -- two from Mexico and one from Nigeria -- who claim they stand to be arrested under the new provisions.

Indiana Attorney General Greg Zoeller vowed to defend the law against the ACLU suit.

"It was clear during the recent legislative session that our legislature is responding to the failure of the federal government to enact and enforce immigration policies," Zoeller said in a statement.

The bottom line, Falk said, is the new law gives police the power to interfere in cases that are clearly under the jurisdiction of the federal government.

As an example, the lawsuit says Louisa Adair has been living here under a federal order to be removed from the country -- an order that was issued in 1996 by an immigration court. Since that time, she has been released under a supervision order that has her report to an immigration officer every six months while she pursues a request to terminate the order and apply for permanent residency.

Under the new law, Falk said, none of that would matter, and she could be arrested as of July 1.

The lawsuit also points out that under the new state law, local police officers could make an arrest without a warrant in cases where federal officers would need a warrant.

"Clearly, Indiana is getting involved in an area that it has no right to be in," Falk said.


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