10th Circuit probes Oklahoma immigration law

(CN) — Oklahoma defended House Bill 4156 before the 10th Circuit Wednesday, a 2025 law making it a misdemeanor for any noncitizen “illegally present” in the United States to enter, reenter or remain in the state. After immigrant rights groups and anonymous noncitizens challenged the law, U.S. District Judge Bernard M. Jones granted a preliminary injunction preventing its enforcement, finding it likely preempted by federal immigration statutes.

“For nearly 150 years, the Supreme Court has held that the power to control immigration — the entry, admission and removal of noncitizens — is exclusively a federal power,” Jones, a Donald Trump appointee, wrote in his decision. The congressional framework identifies who may enter, how they may enter, where they may enter and what penalties apply for those who enter unlawfully, and “it specifically delineates the ways in which states may operate within it.”

Oklahoma Solicitor General Garry Michael Gaskins defended the law as a valid exercise of state criminal authority that operates in concert with, rather than in defiance of, federal immigration law. He repeatedly characterized the statute as “parallel and complementary” to federal law, arguing there is no conflict preemption because individuals can comply with both, while no field preemption exists because “unlawful entry and reentry” is too narrow a regulatory slice to be deemed exclusively occupied by Congress.

Relying heavily on Kansas v. Garcia and Virginia Uranium, he urged the court to avoid broad notions of federal interests or shifting federal enforcement priorities, which he says cannot themselves have preemptive effect. Gaskins also said differences in penalty levels or available defenses between state and federal schemes are routine and do not trigger preemption.

The three-judge panel pressed Gaskins on multiple fronts, probing whether HB 4156 truly parallels federal law or instead intrudes into an exclusively federal domain. U.S. Circuit Judge Veronica S. Rossman, a Joe Biden appointee, repeatedly pushed him on what makes the immigration context different from ordinary state criminal law, questioning the narrower set of defenses available under Oklahoma’s statute and how divergent penalties should factor into a conflict-preemption analysis.

U.S. Circuit Judge David H. Urias, another Biden appointee, focused on the statute’s apparent criminalization of mere presence in Oklahoma without authorization — something federal law does not do — and challenged Gaskins’ insistence that the law is limited to entry and reentry.

U.S. Circuit Judge Joel M. Carson, a Donald Trump appointee, drilled into case law, testing Gaskins’ theory of field definition and warning that reliance on shifting federal executive positions could destabilize the law while also questioning whether the record showed a credible threat of prosecution sufficient for standing.

On rebuttal, Carson and Urias pushed Gaskins to reconcile his description of the statute as targeting only entry and reentry with text that appears to criminalize ongoing unlawful presence. Carson further raised concerns about the Commerce Clause implications of Oklahoma effectively “banishing” noncitizens from the state’s borders.

Gaskins maintained that “the coming into the country illegally and being present in the state of Oklahoma are two elements … You can’t have one without the other,” thus resisting the characterization that HB 4156 criminalizes mere presence in isolation.

Representing the plaintiffs, American Civil Liberties Union attorney Noor Zafar argued Oklahoma’s law is preempted because it invades that exclusively federal field: the regulation of noncitizen entry and presence. Zafar said over 150 years of precedent and the structure of the Immigration and Nationality Act show Congress has created a detailed, reticulated scheme governing irregular entry, removal processes and forms of humanitarian relief, leaving no room for parallel state immigration crimes that set up a “shadow” enforcement system.

“Oklahoma has set up its own immigration system that is in conflict with the federal system,” Zafar said. “We’re dealing with an inherently federal field of immigration that implicates external sovereignty, where Congress has given broad discretion to the federal government. So this is a field that even overlapping laws are simply not permitted in.”

Zafar said Oklahoma’s law “goes way beyond” the preempted immigration laws that were ruled unconstitutional in the Supreme Court’s Arizona vs. United Statesdecision.

“It sets up a state immigration scheme that gives unilateral discretion to state officers to conduct arrests, to prosecute and to impose penalties and banish people from the state,” she said.

The panel did not indicate when it would issue a ruling in the case.

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