Oklahoma Looking to Criminalize Migration

Oklahoma legislators are working to pass a few bills regarding immigration. I’ll tackle them in separate posts over the next few days.

The first bill I want to highlight is H.B. 4090. This bill would create a new state law that would read as follows:

A. Any person who:

1. Upon reasonable suspicion, is detained by law enforcement;
2. Is apprehended and arrested for violating a criminal law of this state, and after determining the citizenship status of the person is found to be unlawfully present in the United States, shall be guilty of a felony punishable by imprisonment in the custody of the Department of Corrections for a term of not less than five (5) years.

The bill would also give courts the authority to “dismiss the criminal prosecution and issue a written order discharging the person and requiring said individual to return to his or her country of origin” if certain conditions are met.

The bill so-far has made it through the state’s Committee on Judiciary — Criminal. I’m not sure exactly what its next steps will be. It’s not yet scheduled nor come up for a vote by any larger body.

For those following these state law issues, note that the first half of the bill is a bit different from the most newsworthy state-law-effort-at-criminalizing-migration: Texas’ SB4. SB4 seeks to criminalize the act of entry into Texas itself, something that seems unlikely to withstand a preemption challenge given 18 U.S.C. § 1325. (Recall that enforcement of SB4 is currently stayed by SCOTUS.) Oklahoma is, instead, looking to criminalize presence for the first time–something the federal government has never done. Does that make a preemption challenge to the law more or less likely to succeed?

The second half of the bill–giving local judges the ability to dismiss a case in exchange for non-prosecution–does map directly onto SB4. So perhaps that litigation will answer the question of that provision’s validity.

-KitJ