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Letter to INS & U.S. Attorney regarding City of Boulder, December 22, 2002 Following is a complaint and request for an investigation sent on December 21, 2002 by five citizens of Boulder City and County, Colorado to the Denver INS Director and Denver U.S. Attorney asking for an investigation of the City and County of Boulder's acceptance of the Mexican ID card and other activities. A copy was also sent to Genesis Insurance Company, Stamfort CT which insures the City of Boulder and its elected, appointed and employed officials, employees, commissioners, and others to see if this liability policy (The Public Policy®) will cover any claims against the City of Boulder arising from personal injury, bodily injury and property damage suffered by a U.S. National arising from an illegal alien being encouraged to stay in Boulder due to the local government's acceptance of the Mexican ID card. Date: December 22, 2002 To: Michael M. Comfort, District Director, Immigration and Naturalization Service John W. Suthers, U.S. Attorney, District of Colorado From: Terry Graham Sandra Lynn Charles L. King Bunny Wilson Frosty Wooldridge RE: Request for an investigation into Boulder City and County's acceptance of the Mexican Government's matricula consular card and related activities According to published reports, several public entities in the City and County of Boulder now honor the matricula consular as a suitable form of identification for the disbursement of services by agencies.[1] As is well known, and as has been widely reported, the matricula consular is an identification card issued by the Government of Mexico, through its consulates, to Mexican nationals illegally residing in the United States. We citizens and residents of the City and County of Boulder believe that our City and County governmental elected and appointed officials, commissions and employees may not legally adopt any policy that authorizes, utilizes, recognizes, or incorporates (hereinafter, "accepts") the matricula consular. This includes the Police Chief and Sheriff, and employees and commission members who are acting in a supervisory and policy setting capacity for the City and County of Boulder. We ask that you investigate the City and County of Boulder to determine if their acceptance of the matricula consular card, or any identification issued by a foreign government: 1) is illegal, 2) is unconstitutional, 3) endangers the health, safety and welfare of U.S. nationals in Boulder, 4) exposes these public entities to civil liability, and 5) is irresponsible public policy. 1. Federal Statutory Violation It is our opinion that since only illegal aliens have need of the matricula consular for identification purposes or to access City and County services (all legal residents having the right to official U.S. identification), any public entity or its representative that accepts the matricula consular is in violation of Section 274 of the Immigration and Nationality Act, which provides criminal penalties for any act that "encourages or induces an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law."[2] "Encourage" and "induce" include actions that permit illegal aliens to be more confident that they could continue to reside with impunity in the United States, or actions that offer illegal aliens "a chance to stand equally with all other American citizens."[3] To prove that a state or local government agency "encouraged or induced" illegal Mexican aliens, all the government needs to establish is that the agency knowingly helped or advised the aliens, or emboldened them, or made them more confident in their continued illegal residence in the United States.[4] The courts have held that INA §274 is to be broadly construed both as to those persons subject to criminal liability under the statute,[5] and as to the types of activities covered therein. [6] Furthermore, Section 401 of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996[7] (as amended by the Illegal Immigration and Immigrant Responsibility Act of 1996)[8] prohibits non-qualified (illegal) aliens from receiving most "Federal public benefits." Any policy that accepts the matricula consular for the purpose of doling out Boulder City and County services explicitly violates this provision of federal law insofar as the services to illegal aliens are paid for with federal and public funds. Preempted on Constitutional Grounds The courts have long recognized that by Article I, Sec. 8 of the U.S. Constitution (the Commerce Clause), Congress has "plenary power" over all aspects of immigration law, including "the right to provide a system of registration and identification" for aliens, because "the entire control of international relations" is invested in the national government.[9] Courts have repeatedly held that no governmental authority (e.g., the City and/or County of Boulder, its departments, etc.) may establish any policy that relates to immigration other than Congress and authorized federal agencies, and that the "(p)ower to regulate immigration is unquestionably exclusively a federal power."[10] Thus, a local Boulder governmental public policy to accept an official foreign national identification document issued to aliens present in the United States in violation of Federal law improperly annexes powers to any public entity that are rightfully those of Congress and the policy is therefore unconstitutional. In a Supreme Court decision striking down a Pennsylvania alien registration statute, it was held that the "Federal Government...is entrusted with full and exclusive responsibility for the conduct of affairs with foreign sovereignties [, and that o]ur system of government is such that the interest of the cities, counties and states, no less than the interest of the people of the whole nation, imperatively requires that federal power in the field affecting foreign relations be left entirely free from local interference." The Court ruled that "where the federal government, in the exercise of its superior authority in this field, has enacted a complete scheme of regulation . . . states cannot, inconsistently with the purpose of Congress, conflict or interfere with, curtail or complement, the federal law, or enforce additional or auxiliary regulations."[11] We believe that this decision applies to Boulder City and County governmental entities; elected, appointed and employed officials; current and former commissions; boards or other entities and their members; current and former employees and "authorized volunteers"; and organizations and/or persons providing providing services under mutual aid or similar agreements. Therefore, no public entity, specifically Boulder City and County, as defined above, may make any rule, regulation or policy that speaks to the presence in the community of foreign nationals, and, thus, a "matricula consular policy" is preempted on constitutional grounds. Furthermore, such a policy has also been determined unconstitutional specifically in relation to public benefits because it violates "the exclusive federal power over the entrance and residence of aliens."[12] Civil Liability Exposure Entering the United States without inspection (illegal entry) is a criminal offense under 8 U.S.C. 1325. Providing public services to such an alien in "knowing and reckless disregard" of the alien's illegal status amounts to aiding and abetting a crime, and is a criminal violation in and of itself. By the INA §274(a) aiding and abetting statute,[13] the distinction is eliminated between principles and accessories in alien smuggling crimes. And courts have held that aiding and abetting also relates to conduct while the illegal alien is in the United States.[14] Furthermore, aiding and abetting an illegal entrant in his continued illegal residence in the United States constitutes a dangerous and unreasonable risk to the health and safety of the public, since, among other reasons, unlike legal entrants, an illegal entrant is not subject to a criminal background or health check before entering the United States. Moreover, when such aid is administered via official acceptance by any public entity of the matricula consular, by which possession any public entity, or any person acting under the authority of any public entity, would or should have known in the exercise of reasonable care that the person holding the card is an illegal alien, the public entity, or its officers, can be said to be negligent. For these reasons, official acceptance of the matricula consular by any Boulder City and Boulder County, and any of its elected or appointed officials (e.g., Mayor, Police Chief, Sheriff, etc.) can be said to be dangerous and negligent, and, therefore, the public entity, and its officers or representatives, may not enjoy sovereign immunity under the Colorado Governmental Immunity Act-especially since the grant of governmental immunity in Colorado is to be strictly construed and its waiver is to be liberally or deferentially construed.[15] Consequently: If any illegal entrant, whose illegal presence in the United States can be shown to have been encouraged, induced, harbored, and/or aided by any public entity, commits a crime while illegally present in the United States, during the commission of which an American citizen suffers personal injury, bodily injury or property damage, we believe the injured party can bring a personal injury suit against the public entity, and, to the extent allowed by law, against its officers, individually and severally, for damages. Irresponsible and Unpopular The acceptance of the matricula consular by Boulder City and County governmental entities constitutes a "stealth amnesty" for illegal aliens. We believe this de facto amnesty 1) is illegal, 2) generates more illegal immigration to Boulder, 3) provides a magnet in Boulder that lures Mexican nationals illegally to cross the dangerous U.S./Mexican border-often with fatal results, 4) is not supported by the people of Boulder or generally of the United States, and 5) threatens the domestic security, and undermines the general welfare of the Nation and its citizens. Officials in the Mexican government openly assert that the growing acceptance by U.S. institutions and political units of the matricula consular is essentially an "amnesty" for Mexican nationals illegally residing in the United States.[16] The Mexican government has undertaken as a matter of policy an aggressive campaign to press American political entities and other institutions into recognizing this card. Any public entity or institution that submits to the demands of the Mexican government is aiding a foreign government's subversion of American law and a foreign government's improper interference in domestic politics-a clear violation of the principle of national sovereignty, of the constitutional prohibitions summarized above, and of the democratic wishes of the American people, who oppose amnesty by wide margins.[17] We insist that any public entity in Boulder City and County that currently accepts the matricula consular cease and desist forthwith. And, in all good faith, we caution any public entity that is considering acceptance of the card that there are serious legal concerns and liability issues attached to such acceptance. We ask that you investigate the City of Boulder, the County of Boulder and its appointed and elected officials, employees, and commissioners in regards to possible violations of Federal, State and local statutes arising from its acceptance of the matricula consular card and any other identification cards issued by foreign governments -- acts we believe to be willful, wanton, reckless and illegal. We also ask that you investigate the activities of the City of Boulder Human Rights Commissioner Nino Gallo, Roberto Rivero, Boulder Head Start and Boulder County Community Action Programs, and any/all Boulder City and County involvement related to a February 28, 2002 workshop held at Boulder County Recycle Center entitled "Ningun Ser Humano Es 'Illegal'" (translated: No Human Being is Illegal), sponsored by Head Start and Boulder County Community Action Programs during which specific, detailed written and verbal instructions, and role playing skits were presented to illegal aliens on how to evade detection, arrest and deportation (see Attachments.) This Workshop was promoted and presented only in Spanish, with no English materials available. We appreciate your prompt handling of our concerns and request a response by January 31, 2003. Respectfully, Terry Graham Sandra Lynn Charles L. King Bunny Wilson Frosty Wooldridge encl: cc: Will Toor, Mayor, City of Boulder Thomas Eldridge, Deputy Mayor, City of Boulder Boulder City Council - Dan Corsin, Spence Havlick, Don Mock, Lisa Morzel, Francoise Poinsatte, Gordon Riggle, Mark Ruzzin Frank Bruno, City Manager (Christine Andersen) James Tydings, Risk Manager (City Attorney's Office) Boulder Sheriff Joe Pelle Scott Pemmell, Genesis Insurance Company, Stamford, CT. U.S. Senator Wayne Allard U.S. Senator Ben Campbell U.S Congressman Mark Udall U.S. Congressman Tom Tancredo Boulder City Attorney, Joseph de Raismes Boulder Police Chief Mark Beckner Boulder County Commissioners - Jana Mendez, Paul Danish, Ron Stewart CO Sen. Joan Fitz-Gerald CO Sen. Terry Phillips CO Sen. Ron Tupa CO Rep. Alice Madden CO Rep. Tom Plant CO Rep. Bill Swenson CO Rep. Pam Rhodes CO Rep. Paul Weisman CO Rep. Jack Palmer Richard D. Lamm Gov. Bill Owens Various others ------------------------------------------------------------------------ [1] City begins accepting Mexico IDs; Move eases access to services, Denver Post, October 04, 2002 [2] 8 U.S.C. §1324(a)(1)(A)(iv) [3] U.S. v. Oloyede, 982 F.2d 133 (4th Cir. 1992) [4] U.S. v. He, No. 00-2574 (7th Cir. Apr. 2, 2001) [5] U.S. v Zheng, No. 01-15551 (11th Cir. Sept, 2002) [6] Patel v Ashcroft, No. 01-3365 (3rd Cir. June, 2002) [7] Public Law 104-193 [8] Public Law 104-208 [9] Fong Yue Ting v. United States, 149 U.S. 698 (1893) [10] De Canas v. Bica, 424 U.S. 351 (1976) [11] Hines v. Davidowitz, 312 U.S., at 66 -67 [12] Graham v. Department of Pub. Welfare, 403 U.S. 365 (1971) (USSC+) [13] 8 U.S.C. 1324(a)(1)(A)(v)(II) [14] U.S. v. Mussaleen, 35 F.3d 692 (Cir. 2nd (N.Y.),1994. [15]Springer v. City and County of Denver, 990 P.2d 1092 (Colo. App. 1999), rev'd on other grounds, 13 P.3d 794 (Colo. 2000). [16] Using a Bottom-Up Approach, Mexico Pushes ID for Migrants, The Wall Street Journal, October 25, 2002 [17] 60 percent to 29 percent, Harris Poll, August 15 - August 22, 2001 Matricula consular ID card Home |