A federal judge blocked House Bill 4156 after finding it was likely to be preempted by federal statutes.
(CN) – Oklahoma championed House Bill 4156 before the 10th Circuit on Wednesday, a 2025 law that makes it a misdemeanor for any noncitizen “unlawfully present” in the United States to enter, re-enter or remain in the state. After immigrant rights groups and Noncitizens Anonymous challenged the law, U.S. District Judge Bernard M. Jones granted a preliminary injunction preventing its implementation, 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. Congress’s framework identifies who may enter, how they may enter, where they may enter, and what penalties apply to those who enter illegally, and “it specifically defines the ways in which states may act within it.”
Oklahoma Solicitor General Garry Michael Gaskins defended the law as a valid exercise of state criminal authority acting in accordance with federal immigration law, not in defiance of it. He repeatedly characterized the statute as “parallel and complementary” to federal law, arguing that there is no conflict preemption because individuals can agree to both, while no ground preemption exists because “unlawful entry and reentry” is too narrow a regulatory body to be considered exclusively occupied by Congress.
Relying heavily on Kansas v. Garcia AND Virginia Uraniumhe urged the court to avoid broad notions of federal interests or changing federal enforcement priorities, which he says cannot themselves have preemptive effect. Gaskins also said differences in sentencing levels or available defenses between state and federal schemes are routine and do not trigger deterrence.
The three-judge panel pushed Gaskins on multiple fronts, investigating whether HB 4156 actually parallels federal law or instead intrudes on an exclusively federal domain. U.S. District Judge Veronica S. Rossman, a Joe Biden appointee, pushed him repeatedly on what makes the immigration context different from ordinary state criminal law, questioning the narrower set of protections available under the Oklahoma statute and how divergent sentences should be factored into a preemption analysis.
U.S. District Judge David H. Urias, another Biden appointee, focused on the statute’s apparent criminalization of Oklahoma’s mere presence without a warrant — something federal law does not — and challenged Gaskins’ insistence that the law is limited to entry and re-entry.
U.S. Circuit Judge Joel M. Carson, an appointee of Donald Trump, drew on case law, testing Gaskins’ theory of setting the bar and warning that reliance on changing federal executive positions could destabilize the law, while questioning whether the record showed a credible threat of prosecution enough to stand.
After objection, Carson and Urias pushed Gaskins to reconcile his description of the statute as targeting only entry and reentry with text that appears to criminalize continued unlawful presence. Carson further raised concerns about the Commerce Clause’s implications that Oklahoma was effectively “deporting” noncitizens from the state’s borders.
Gaskins asserted that “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 solitary confinement.
Representing the plaintiffs, American Civil Liberties Union attorney Noor Zafar argued that Oklahoma’s law is preempted because it occupies that exclusively federal domain: regulating the entry and presence of noncitizens. Zafar said more than 150 years of precedent and the structure of the Immigration and Nationality Act show that Congress has created a detailed, networked scheme that regulates irregular entry, removal processes and forms of humanitarian assistance, leaving no room for parallel state immigration crimes that create a “shadow” enforcement system.
“Oklahoma has created its own immigration system that conflicts with the federal system,” Zafar said. “We’re dealing with an inherently federal area of immigration that implicates foreign sovereignty, where Congress has given broad discretion to the federal government. So this is an area where even overlapping laws are simply not allowed.”
Zafar said Oklahoma’s law “goes far beyond” preemptive immigration laws that were struck down by the Supreme Court as unconstitutional. Arizona v. United Statesdecision.
“It creates a state immigration scheme that gives state officers unilateral discretion to make arrests, prosecute and impose sentences, and deport people from the state,” she said.
The panel did not indicate when it would issue a decision on the case.
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