A Perilous Path: Final version of HB 1446 shows greater caution but still goes too far

With just days left in the legislative session, HB 1446 is the only immigration bill that remains alive out of several dozen introduced this session. Last week, the conference committee report for HB 1446 was introduced. Compared to the original version of HB 1446 and other bills that would have conferred sweeping new powers to law enforcement and public agencies to regulate immigration, the final version is significantly more balanced. Its authors appear to have learned from the experience with Oklahoma’s first omnibus immigration bill of four years ago, HB 1804, as well as Arizona’s contentious SB 1070, that state action on immigration risks disrupting economic activity, stretching scarce law enforcement resources, embroiling the state in costly and unsuccessful litigation, and heightening fear and anxiety in the immigrant community. However, there are still major flaws with HB 1446 that could again put Oklahoma at odds with federal law, invite more lawsuits, and create new problems for Oklahoma businesses and law enforcement officials.

HB 1446 initially contained sections on a wide-ranging set of issues, including day labor, hiring, record-keeping, ‘human smuggling,’ and higher education (see our overview of the original legislation). Oklahoma business, religious, and community leaders were vocal in warning of the harm that sections of HB 1446 could have on the state economy and the well-being of immigrant families and communities, while immigration experts called attention to sections of the bill that were in clear conflict with federal law and likely to be struck down by the Courts.

It seems that legislators have been listening – at least in part. Legislators should be commended for heeding the call from the student activists of Dream Act Oklahoma and others by removing a provision from HB 1446 that would have put a college education out of reach for hundreds of bright young undocumented Oklahoma students by rescinding access to resident tuition at public institutions. Also gone from the final version of the bill is a section criminalizing ‘day labor,’ that attempted to curb the right for workers and employers to solicit contract day labor in public spaces.  Sections on employment and reporting of information that were clearly duplicative of or in conflict with federal law were also stripped out in conference. The bill now includes a worthwhile section that would help address the problem of fraudulent practices by attorneys known as “notarios” who deceive vulnerable immigrants.

Unfortunately, despite significant improvements to the bill, some problematic language remains.  Most notable is a provision targeting human smuggling, which we covered in a previous blog post.  The U.S. State Department defines human smuggling as “transportation or illegal entry of a person(s) across an international border.”  Departing from the federal definition, HB 1446 seeks to classify routine commercial transactions, i.e. selling a car or renting a house to unauthorized aliens, as “human smuggling,” even when they aren’t being transported anywhere and already reside in the state. This definition is so broad that it could conceivably encompass virtually any commercial activity and subject individuals to felony charges and forfeiture of real and personal property.

The final version of HB 1446 also introduces some entirely new sections that are of concern. In particular, Section 6 of the conference committee report would place tremendous demands on the scarce resources of local law enforcement agencies by requiring them to investigate and verify the immigration status of all offenders being detained on any charge – even misdemeanors.  Existing state law requires jails to make a reasonable effort to determine the immigration status of offenders in their custody who have been charged with a felony or a DUI.  Many people charged with misdemeanor offenses are typically held for only a matter of hours, but this new requirement might extend that detention indefinitely for anyone who cannot produce adequate documentation of their legal status. This imposes a costly unfunded mandate on our already crowded local and county jails to pay the additional staff, food and overhead on misdemeanor offenders waiting on the federal government to make a determination of status in addition to the injustice of indefinite detention without trial of people who were arrested for minor offenses.

Another  new section of HB 1446  (Section 5) that relates to Nonimmigrant Status Certifications for  victims of  human trafficking  is well-intentioned but conflicts with federal law and could prevent victims of trafficking and violence, who would otherwise qualify for legal protection, from obtaining benefits.

Without question, HB 1446 is not as bad as it could have been. But that is not the appropriate standard by which we should judge legislation. Given the potential economic, legal and human costs involved in legislating in the immigration domain, states should proceed only with great caution and towards a clear and attainable public purpose. By these standards, HB 1446 still goes too far.

Update:  For a final update on this bill, see Where Are They Now? Bills we kept our eye on