Cooperate, or else: New York threatens fines to force people to help block immigration enforcement

Cooperate, or else: New York threatens fines to force people to help block immigration enforcement
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When President Donald TrumpDonald John TrumpZuckerberg launches public defense of Facebook as attacks mount Trump leaning toward keeping a couple hundred troops in eastern Syria: report Warren says making Israel aid conditional on settlement building is 'on the table' MORE ordered ICE to conduct a mass roundup of 2,000 migrant families who had failed to respond to deportation orders, New York City Mayor Bill de Blasio responded with an angry tweet:

De Blasio was serious about protecting New York's undocumented aliens.

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The NYC Commission on Human Rights (Commission) has announced new guidelines for New York's Human Rights Law that will make it easier for undocumented aliens to live and work in New York without being detected by immigration authorities.

The guidelines designate conduct that facilitates immigration enforcement or makes it harder for undocumented aliens to remain in New York as "unlawful discrimination," and the Human Rights Law has steep penalties to deter New Yorkers from doing these things.

Section 8-126 authorizes the Commission to fine a person up to $125,000 for engaging in an unlawful discriminatory act. If the act was willful, wanton or malicious, the fine can be up to $250,000.

The guidelines go too far.

For example, it could now be illegal to call someone an “illegal alien.”

But the guidelines in fact go much further. They violate the constitutional rights of lawful New York residents in order to protect undocumented alien residents. What’s more, making it easier for undocumented aliens to live and work in New York illegally is prohibited by a federal harboring provision that makes providing such assistance a criminal offense.

Hiring practices

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Federal law prohibits employers from knowingly hiring aliens who are not authorized to work in the United States. The objective is to eliminate the "job magnet" that draws undocumented aliens to the United States.

The New York guidelines restrict what employers can do to verify that a prospective employee has work authorization. For instance, the employer can't ask for additional documents if the prospective employee provides the required number of documents from the federal government's List of Acceptable Documents.

Also, reverification of employment authorization may result in fines, unless it is specifically authorized by federal law.

In other words, New York employers can be punished for taking additional steps to ensure that their alien employees are authorized to work in the United States.

Housing protections

Housing providers cannot refuse to rent or sell on the basis of an individual's actual or perceived immigration status or national origin. Questions related to immigration status or national origin are discouraged and may be a basis for presuming discriminatory animus.

Harassment

Disparate treatment may be considered harassment if it creates or fosters a work culture or atmosphere that is demeaning, humiliating, or offensive.

Employers have strict liability for harassment if the “harasser” exercises managerial or supervisory responsibility. If the harasser is a coworker, the employer may still be liable if he knew or should have known about the harassment and failed to take corrective action.

The severity or pervasiveness of harassment is relevant only to damages. Even a single comment that reflects discriminatory views about an employee's immigration status or national origin may be enough to constitute harassment.

The following example of disparate treatment — that the guide provides — indicates that the bar for establishing harassment on this basis is quite low: "A hotel prohibits its housekeepers from speaking Spanish while cleaning because it would 'offend' hotel guests or make them uncomfortable."

Calling someone an "illegal alien"

Under the guidelines, it is harassment to call someone at a workplace an “illegal alien” to demean, humiliate, or offend him.

According to Hans Bader, this prohibits speech based on viewpoint, and the First Amendment prohibits viewpoint-based restrictions on speech.

If an ordinance bans all speech on the war in Afghanistan, it is a content-based regulation, but if it just bans speech that criticizes the war, it is a viewpoint-based regulation.

Because the government is taking sides in a debate when it engages in viewpoint discrimination, the Supreme Court has found such restrictions to be especially offensive to the First Amendment.

Reporting an undocumented worker to ICE

It may be harassment if providers of public accommodations or services report an undocumented alien to ICE. The guide provides the following example:

"At a rest stop, a bus driver of a coach bus company voluntarily identifies to federal immigration authorities passengers whom he perceives to be foreign based on their ethnicity and the language they are speaking. He invites the federal immigration authorities to do a search on the coach bus, telling the agent, ‘Go ahead, round up the illegals.’”

Bader claims that this interferes with the enforcement of our federal immigration laws, which triggers federal preemption issues, and it violates the First Amendment freedom of petition right.

The courts generally find that freedom of petition covers reports made with an ulterior or discriminatory motive. For example, the Supreme Court held that a company’s First Amendment freedom of petition gave it the right to file a factually well-grounded lawsuit even if its motive for filing was retaliation.

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Harboring

The Immigration and Nationality Act provides criminal penalties for concealing, harboring, or shielding aliens from detection who are in the United States illegally.

It does not specify what actions constitute “harboring.”

This has been left to the courts, and the courts have not settled on one uniform definition. The most frequent characteristic the courts have used to identify “harboring,” however, is that it facilitates an immigrant’s remaining in the United States illegally — which seems to be the primary reason for New York's new guidelines.

I can understand wanting to help undocumented aliens, but this is not the way to do it.

Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years.  Follow him on Twitter @NolanR1