Northwest Indiana immigration attorneys raised concerns with an immigration bill that received final approval by the legislature this week as unconstitutional and an unfunded mandate on local governments.
House Bill 1393, authored by State Rep. Garrett Bascom, R-Lawrenceburg, was amended in a Senate committee to require jail and detention facility employees to tell county sheriffs when they have probable cause to believe an arrestee, who is facing misdemeanor or felony charges, is not in the county legally. The sheriff would then be required to contact Immigration and Customs Enforcement under the bill.
Initially, the bill required police officers who arrest someone for a misdemeanor or felony and have probable cause to notify the sheriff.
Sen. Aaron Freeman, R-Indianapolis, sponsored the bill in the Senate, which approved the bill Monday in a 37-10 vote, with two Republicans – Sen. Ron Alting, R-Lafayette, and Sen. Blake Doriot, R-Goshen – joining all Democrats present to vote against the bill.
“I am firmly of the camp and firmly believe that when somebody is arrested, they’ve been put in a car and they’re taken to a detention facility, I think we should determine who those people are. If you are not here legally, I think somebody needs to know that,” Freeman said.
Freeman said he amended the bill in committee to shift the notification from police officers to jail and detention center employees.
“I amended the bill because I did not want to put law enforcement in the position of even being able to pull somebody over or to detain somebody just because somebody may not be here legally,” Freeman said.
On second reading by the Senate, Freeman amended the bill to remove the provision that would offer law enforcement officers and agencies immunity from civil lawsuits sparked by ICE notices.
“I made the bill a lot better,” Freeman said.
Sen. Rodney Pol Jr., D-Chesterton, said when the bill reached the Senate, he “had a number of concerns about how that was going to be applied.” Pol said the amendments improved the bill, but he still opposed it.
“I still have a lot of questions about whether or not this is going to be fruitful at all, whether or not this is going to achieve the intent that it’s meant to do so without the collateral damage that could also happen here,” Pol said.
Pol shared a story of his grandfather, who was born in the U.S. to Puerto Rican parents. His grandfather, who had an accent, was once in a car accident, at which point he realized that his insurance had expired and he didn’t have his driver’s license with him.
“The police officers couldn’t identify him. He was only speaking in Spanish,” Pol said. “At that point, I could’ve had to have dealt with an ICE referral for somebody who had been a United States citizen since the day he was born.”
Sen. Fady Qaddoura, D-Indianapolis, said he is a proud U.S. citizen who emigrated to the country. Legislation like House Bill 1393 addresses an issue “that is good for campaigning, that is good for politics, but it’s not good policy.”
Qaddoura said police officers don’t have the authority to enforce federal immigration laws, reading a statement from Indianapolis Chief of Police to that effect.
“My concern is that the national partisan politicized debate about immigration is going to politicize our law enforcement work at the local level,” Qaddoura said. “The impact of these types of legislation … could have unintended consequences.”
Sen. Greg Taylor, D-Indianapolis, said the bill will target those in minority communities.
“It’s going to be somebody that looks Spanish, speaks Spanish, has broken English, doesn’t look like the majority of the people, which is going to lead to lawsuit after lawsuit after lawsuit,” Taylor said. “We’re doing this to make ourselves feel good, and it ain’t going to do nothing but lead to a whole bunch of people in the Black and brown community to be scrutinized once again.”
Alfredo Estrada, a Northwest Indiana immigration and municipal attorney, said when he read the latest version of the bill, he saw the impacts to municipalities. After contacting ICE, local sheriffs will get an ICE detainer request, Estrada said, which means a local jail will hold the person until ICE can respond.
Local governments will have to pay for clothing, housing, feeding, potential medical care and other costs for a number of days before an ICE agent can respond, Estrada said.
“This is an unfunded mandate,” Estrada said. “I’m concerned about that. I’m concerned about budgets.”
Sophia Arshad, a Merrillville immigration attorney, said she was not surprised that the bill passed the legislature because of its Republican supermajority, but she was disappointed that it passed.
The bill will open the way to racial profiling, she said. In Northwest Indiana, Arshad said her clients have called her to express their fear about the implementation of House Bill 1393, which will result in them no longer going to work or engaging in their communities.
“This is fear of the unknown,” Arshad said. “It’s sending the message of, if you look like an immigrant, if you sound like an immigrant, then I have the ability to say that you don’t have constitutional protection or procedural due process for me to start asking you about your immigration status.”
Immigrants don’t carry their immigration file around with them because it involves a lot of important paperwork, Arshad said. Permanent residents are supposed to carry their permanent resident cards with them, she said, but many times permanent residents don’t carry that card because they are scared of losing it.
But even if immigrants carried their immigration case files with them, Arshad said local law enforcement aren’t trained on reading through immigration paperwork to understand someone’s status.
If Gov. Mike Braun signs the bill into law, Arshad said lawsuits will be filed to stop its enforcement.
“I don’t think it’s going to pass constitutional muster,” Arshad said. “Local law enforcement has no authority to determine if someone is in or out of status or if there’s any reason to question someone about that.”
