U.S. appeals court hears arguments over hold on Iowa immigration law

A federal appeals court in St. Louis heard arguments Thursday over a halted Iowa law that would allow the arrest and forced removal of immigrants in Iowa if they had previously been denied entry into the country.

The three-judge panel from the 8th U.S. Circuit Court of Appeals now has to rule on the appeal of a lower court’s injunction that stopped Senate File 2340 from going into effect.

The U.S. Department of Justice and civil rights organizations sued to stop the law, arguing it is unconstitutional because it tramples on federal sovereignty over immigration, ensnares those with legal status and creates “chaos” in orderly immigration enforcement.

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The law’s proponents, including Iowa Gov. Kim Reynolds and Iowa Attorney General Brenna Bird, both Republicans, have argued that the law simply mirrors federal law, which they claim is not being enforced by federal authorities.

A federal District Court judge in June temporarily blocked enforcement of the law, which was set to take effect July 1.

Judge Stephen Locher of the Southern District of Iowa ruled the Iowa law was preempted by federal law, which reserves enforcement of immigration laws to the U.S. government. Locher, who said the Iowa law was likely to disrupt the federal government’s immigration policy and relationship with foreign nations, issued a preliminary injunction, pausing the state law while legal proceedings play out.

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Bird appealed the District Court’s decision, arguing the precedent that the District Court relied on to block Iowa’s law — Arizona v. United States — does not apply. She said Iowa’s law allows state officials to enforce existing federal laws, while Arizona created a new law.

A similar law in Texas has been blocked by an appeals court.

Why is the law needed and what would it do?

Reynolds and other Republicans who supported the bill assert the law is needed to address rising numbers of illegal border crossings in recent years under Democratic President Joe Biden. Reynolds, a Republican who signed the bill into law, has said the federal government has insufficiently enforced federal immigration laws, causing states to take border enforcement into their own hands.

Border crossings reached historic levels under the Biden-Harris administration. Illegal crossings have since fallen after Biden issued an executive order restricting asylum applications in certain circumstances after Republicans thwarted a bipartisan border deal in the U.S. Senate pushed by Biden and endorsed by the National Border Patrol Council, which represents front-line agents.

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Border agents tallied 56,408 illegal crossings in July, a 32 percent decline from June and the fifth straight month that the figure has fallen, according to federal enforcement data released last month.

Iowa’s law would allow Iowa law enforcement officials to arrest and charge a noncitizen with a crime if they are in the state after being previously deported or barred from entering the United States. The law makes it an aggravated misdemeanor, which carries up to a two-year sentence. In some cases, including people with certain prior convictions, the state crime would become a felony, punishable by up to 10 years in prison.

A judge would then be able to order the person to leave the country or face prison time.

Attorney: Iowa has a right to respond to ‘immigration crisis’

Iowa Solicitor General Eric Wessan said Iowa is responding to an unprecedented “immigration crisis,” by creating the state crime of “illegal re-entry.” He told the panel plaintiffs in the case have failed to demonstrate that they would be harmed by enforcement of the law. And unless every application of the law is unconstitutional, Wessan said states should be allowed to demonstrate it can be applied consistent with federal laws and the Constitution before an injunction.

He gave the example of a person previously deported who re-enters the United States, kills someone and is charged with both murder and the crime of illegal re-entry.

“It seems odd, first, to say that the foreign policy interests of the United States would be affected by the illegal re-entry lesser charge, but not by the murder charge,” Wessan said. “And it also seems odd to say that if assuming that there is no lawful reason for that person to be in the United States, that charging that person and convicting him of illegal re-entry would itself be a violation or a conflict with federal law. And it seems odd to suggest … that if such a person, after serving a sentence for murder, was issued an order to return and presented at a port of entry, that this recently released murderer would be turned away and the federal authorities would be unwilling at that point to cooperate.”

Wessan also argued Iowa law does not touch on removal or entry, but rather illegal re-entry and refusal to comply with an order to return, which are separate from removal orders.

An attorney for the U.S. Department of Justice countered entry and removal “are the core of what has long been held for almost 150 years to be the exclusive federal power to control immigration.” And that an order directing a non-citizen to return to the country from which they entered the United States, as opposed to their home country, would conflict with federal removal orders.

“Arizona made clear, you have to speak with one voice under removal,” said attorney Leif Eric Overvold.

Civil rights groups: Law will ensnare those with legal status

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The American Civil Liberties Union, the ACLU of Iowa and the American Immigration Council filed a lawsuit on behalf of Iowa Migrant Movement for Justice and the thousands of immigrants that the organization assists, including two anonymous immigrants. They argue the law puts even those immigrants who are authorized to be in the United States at risk of being deported and gives local rather than federal law enforcement the near-impossible job of figuring out the complex documentation status of those with whom they interact.

“We're not just talking about arrest. We're talking about prosecution. … We're talking about separation from family,” Emma Curtis Winger, an attorney representing the Iowa Migrant Movement for Justice, told the three-judge panel. “Iowans who have long community ties to this country, including Iowans who are members of mixed-status families (that include both U.S. citizens and non-citizens), face the threat of prosecution and removal.”

Winger gave the example of an Iowa high school student, “Anna” (a pseudonym used in the lawsuit to protect her identity). She was born in Honduras, where her father was murdered and her sister kidnapped, and brought to the United States as a child by her mother fleeing persecution. They were deported in 2020. Shortly after, still fearing for her life, Anna returned unlawfully as a child. She applied for and received asylum, and is living in Iowa lawfully with an Iowa family and attending high school.

But under SF 2340, Winger said Anna should be arrested, prosecuted and ordered to return to Mexico, not her native country.

Winger said allowing states like Iowa, Texas and Oklahoma to create their own laws regulating entry and removal is “obviously unworkable.”

“We’d have a 50 state patchwork of different rules and different procedures that would create pure chaos,” she said.

Wessan, the Iowa Solicitor General, asserted the plaintiffs cannot be prosecuted under the statute, as two of the plaintiffs are lawfully in the country and a third did not sufficiently declare their status.

Winger, speaking to reporters after the hearing, rejected the argument, stating nothing within the Iowa law protects her clients from arrest, prosecution, imprisonment and requests to leave the country, other than a federal court order.

“No matter how you enforce this law, it’s going to violate the constitution,” she said. “... Immigration is a purely federal responsibility.”

The court typically issues decisions within three to six months, but could take longer. There is no deadline for the court to respond to the state’s request to lift the injunction.

Should the appellate court uphold the injunction, the case could then be appealed to the U.S. Supreme Court.

While the Supreme Court does not have to take up appeals, Iowa Attorney General Bird told reporters in June she thinks Iowa’s law, or a similar law in another state, is likely to make it to the nation’s highest court.

Comments: (319) 398-8499; tom.barton@thegazette.com