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.
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.
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
"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.
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.
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
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.
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.
bottom line, Falk said, is the new law gives police the power to
interfere in cases that are clearly under the jurisdiction of the
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
Under the new law, Falk said, none of that would matter, and she could be arrested as of July 1.
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.