Feds weigh in on Fremont, NE immigration lawsuits

The federal government weighed in on lawsuits against Fremont’s illegal immigration ordinance.

Attorneys from the U.S. Attorney General’s office and the Civil Rights Division of the Justice Department filed an amicus curiae brief at the Eighth Circuit U.S. Court of Appeals Friday.

An amicus curiae, meaning “friend of the court,” is someone who is not directly a party to a case, but who offers legal opinions and other information to a court.

U.S. District Court Judge Laurie Smith Camp on Feb. 20 upheld parts of Fremont Ordinance 5165 and struck down other parts.

The city has since begun implementing the portion requiring use of the federal E-Verify system, but Smith Camp issued a permanent injunction and declared void provisions prohibiting the harboring of illegal aliens, providing for the revocation of occupancy licenses and penalties following the revocation of occupancy licenses.

The American Civil Liberties Union and Mexican American Legal Defense and Educational Fund have appealed, and the city cross-appealed.

The brief filed by federal authorities on Friday claims the ordinance’s harboring and related provisions are preempted by federal law.

“The district court correctly concluded that the city’s ordinance infringes on the federal government’s authority to regulate immigration, and the Supreme Court’s decision in Arizona vs. United States … confirms the correctness of that ruling,” the brief said. “Arizona makes clear that a state or locality may not attempt to ‘achieve its own immigration policy,’ … even when it does so by purportedly regulating in an area of traditional local concern.”

“… Stressing the crucial role of federal discretion in the enforcement of immigration laws, the court left no doubt that a state or locality does not ‘cooperate’ with federal enforcement efforts when its officials take unilateral action against an alien that intrudes on the ability of federal officials to make discretionary determinations about the treatment of foreign nationals,” it said.

Fremont’s ordinance “would undermine the orderly operation of federal removal proceedings by depriving aliens of shelter while federal officials determine whether to institute removal proceedings, and while such proceedings take place,” attorneys wrote.

“… The assumption underlying the ordinance,” they wrote, “is that city police can determine if an individual is or will be permitted to remain in the United States by making an inquiry to DHS (Department of Homeland Security). … In this way, according to the city, the local police can verify if a renter is ‘not lawfully present’ in the United States and revoke his authority to rent an apartment in Fremont.

“A federal response to an inquiry … does not, however, reflect a determination as to whether an alien will be permitted to remain in the United States or even a determination as to whether the alien will, or should be, place in removal proceedings,” they wrote.

If cities and states adopt their own immigration-related ordinances, the brief continued, it “would undermine the calibrated uniformity of federal law, potentially disrupt the free movement of persons throughout the nation, and open the door to harassment of aliens, international controversy and possible retaliation against United States citizens in foreign countries. … The Constitution does not contemplate a patchwork of immigration regulations across the country.”