Tennessee’s New Anti-Immigration Law - Articles

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Posted by: Steven Simerlein on Apr 19, 2019

In 2018, the Tennessee state legislature passed a controversial law concerning the extent to which local governments may control how local law enforcement agencies interact with the federal government on immigration enforcement.  In April 2018, the Tennessee state legislature passed House Bill 2315 and presented it to then-Governor Bill Haslam.  In statement the next month explaining his refusal to sign the law, he said that it was a “solution looking for a problem and has primarily served to stir up fear on both sides of the issue ….”  (See https://publications.tnsosfiles.com/acts/110/pub/pc0973.pdf).

HB 2315, which took effect on January 1 of this year, prohibits any local or state governmental entity or official from adopting a “sanctuary policy.”  It defines such a policy a sweeping manner to include any informal or formal “directive, order, ordinance, resolution, practice, or policy” that does any of the following:

(1) restricts or forbids local governments/officials from communicating or cooperating with federal agencies or officials to verify or report the citizenship or immigration status of any individual, or bar law enforcement agencies from asking about the citizenship or immigration status of any person; (2) grants a right to “lawful presence” within Tennessee to any foreign national who is not lawfully present here under federal law; (3) restricts or imposes conditions on a state or local governmental entity's cooperation or compliance with U.S. Department of Homeland Security (DHS) detainers to keep a foreign national detained or to transfer him or her to DHS custody; (4) requires DHS to get a warrant or show probable cause for the entity to comply with a detainer.

To enforce these provisions, HB2315 provides that any “local government entity that adopts or enacts a sanctuary policy is ineligible to enter into any grant contract with the department of economic and community development until the sanctuary policy is repealed, rescinded or otherwise no longer in effect.”  Further, if a court finds that such an entity or official has violated the prohibition against “sanctuary policies,” the new law provides that the court “shall” issue a writ of mandamus to require compliance or enjoin the non-compliance.

HB2315 also does not merely bar “sanctuary policies,” but also authorizes (and arguably encourages) law enforcement agencies to ratchet up their involvement with immigration enforcement.  The bill affirmatively authorizes “all law enforcement agencies and officials … to communicate with the appropriate federal official regarding the immigration status of any individual, including reporting knowledge that a particular alien is not lawfully present in the United States or otherwise to cooperate with the appropriate federal official in the identification, apprehension, detention, or removal of aliens not lawfully present in the United States.”  The new law also authorizes law enforcement agencies to move beyond cooperation to direct enforcement of federal immigration via a memorandum of agreement (“MOA”) between the agency and federal government.  Such agreements may “[a]llow for the enforcement of federal immigration laws to the full extent permitted under federal law” but also requires officers to be trained in accordance with the MOA.

As might be expected with a law of this nature, its passage was controversial.  One commentator wrote that “[i]n effect, the new state law requires local police officers to become federal ICE agents. It's sort of like requiring the local property tax collector to arrest someone for filing a fraudulent federal income tax form.”  See https://www.commercialappeal.com/story/news/columnists/david-waters/2019/01/07/tennessee-immigration-law-shelby-county-asks-local-officials-break/2501410002/.  The Shelby County attorney concluded the new law was “void” and does not apply to the county or the Shelby County Sheriff’s Office.  Nevertheless, that sheriff continues to honor requests from ICE to notify it about inmate releases.  See https://www.commercialappeal.com/story/news/2019/01/02/county-attorney-says-new-immigration-law-doesnt-apply-shelby-county-hb-2315-sanctuary-city-policy/2467989002/.  There are indications that Governor Bill Lee has initiated an investigation into Shelby County for non-compliance with HB2315.  See https://www.courthousenews.com/new-immigration-law-sows-fear-in-tennessee/.

Many commentators have pointed to how this new law could undermine local law enforcement due to contributing to a climate of fear among foreign nationals and their families, friends, co-workers and employers.  The Tennessee Immigrant and Refugee Rights Coalition (TIRRC) has characterized HB2315 as “one of the most extreme, anti-immigrant laws in the country.”  Fear is a common theme articulated by foreign nationals in the state, with one immigration attorney in Chattanooga noting a growing tendency by local police to more proactively check the immigration status of those who are subjected to law enforcement action.  See https://www.courthousenews.com/new-immigration-law-sows-fear-in-tennessee/.

The fears associated with how HB2315 could be implemented in local communities are consistent with the findings of a study about how Davidson County implemented a prior agreement with the federal government over immigration enforcement from 2007 to 2012.  See https://www.aclu-tn.org/consequences-costs-lessons-learned-tennessees-jail-model-287g-program/.  These agreements, then and now, are authorized by section 287(g) of the Immigration and Nationality Act. The ACLU report concluded the 287(g) program led to deportations for relatively minor, often traffic-related offenses and “encouraged racial profiling and disparate treatment from stop to detention, based on characteristics such as appearance, ethnicity or language skills.”  Given those outcomes, the report found that the 287(g) program in Davidson County “led to immigrants living in fear and distrust of law enforcement,” including a reluctance to report “crimes they experienced or witnessed, ultimately undermining public safety as a whole.”

Within Tennessee, only the Knox County Sheriff’s Office has adopted  a MOA with Immigration and Customs Enforcement (ICE). See https://www.ice.gov/287g.  But at least for now, the Knox County MOA (available at https://www.ice.gov/doclib/287gMOA/KnoxCounty.pdf) appears to be more limited in scope that the breadth of enforcement activity that could have been implemented under HB2315.  That MOA authorizes local officials to perform “certain functions of an immigration officer within the KCSO’s jail/correctional facilities” and not outside those premises.  Of course, should that sheriff desire to modify the MOA in the future to allow his deputies to venture outside the local jails to engage in immigration enforcement, under HB2315, he would be free to negotiate an amendment to the MOA to enable his deputies to do so.

HB2315 appears to have contributed to a perception among foreign nationals that they are at increased risk during any interaction with law enforcement—whether as a defendant, victim or witness.  The new law eliminates the ability of local government entities and law enforcement to give absolute assurances to foreign nationals concerning their personal security vis a vis immigration enforcement.  As a result, the new law could undermine local government efforts to investigate and prosecute crime because individuals without legal immigration status may feel that it is too unsafe for them to participate.  The increasing presence of ICE officers at local courthouses and the practices of many jurisdictions to notify ICE for defendants who lack social security numbers merely reinforces such perceptions.

While the new law does not augment the legal right of a local law enforcement officer to stop a foreign national, HB2315 authorizes police to “ask for papers” incident to a lawful stop.  Moreover, an officer presumably may ask an individual about his or her immigration status if there is not a seizure of that individual.  Most foreign nationals, who are unaware of their constitutional rights during such interactions, may well volunteer information that need not have been disclosed.  Many who are acculturated to defer to authority figures will end up doing just that. 

Unfortunately, many foreign nationals who are subject to HB2315 and the vast array of other immigration laws remain uninformed.  Given the increased focus on immigration-related enforcement, it is now more important than ever for such individuals to be referred to a competent immigration law practitioner for advice and counsel.

Steven J. Simerlein is the founder of Immigration Law Offices of Steven J. Simerlein. He is a graduate of Loyola Law School at Loyola Marymount University in 1991. He may be reached at sjsimerlein@gmail.com or (615) 750-3142.