Legal references and information on immigration

U.S. legal references

Local Law Enforcement may cooperate with Immigration Enforcement

In a March 22, 2005 ruling, in Muehler v Mena, in unanimous decision from a Court known for its 5-4 splits, the United States Supreme Court essentially said that asking about immigration status during a lawful police contact (or, by implication, any lawful contact) was as fundamental a question as asking for name, address and date of birth. Indeed, the Court made clear that no predicate "independent reasonable cause' need exist to inquire into immigration status. It is the Law of the Land.
 
Calling a decision by the 9th Circuit Court of Appeals “faulty,” the Supreme Court held that “mere police questioning [regarding one’s immigration status] does not constitute a seizure.” The Court continued its landmark ruling on this issue by stating that “the officers did not need reasonable suspicion to ask Mena for her name, date of birth, or immigration status.”...
 
If there were even a hint that merely asking about immigration status is discriminatory (as claimed by proponents of the proposed Ordinance), then you might expect to have had at least one dissenter in that decision: Justice Ruth Bader Ginsberg. Justice Ginsberg was general counsel of the ACLU from 1973 to 1980 and sat on its National Board of Directors from 1974 to 1980. Justice Ginsberg's joining the entire court in this decision speaks volumes about its judicial wisdom and legal common sense.
 
Congress expressly intended for local law enforcement to act in cases in which officers have reason to believe that an individual is in the country illegally, even though immigration law enforcement is not their primary responsibility. In 1996, Congress passed and President Clinton signed legislation that protects individual officers who act to enforce federal immigration laws, even if their departments have non-cooperation policies.

...A recently unearthed U.S. Justice Department memo says state and local cops can make arrests after traffic stops if they find civil immigration violations, such as someone overstaying a visa.
 
No specific federal authority is needed for local officers to make such arrests, according to the 2002 memo, which came to light in a recent court case....
 
The Associated Press reported Thursday the 2002 memo was issued by then-Attorney Gen. John Ashcroft and his staff. It overturned a 1996 letter from Justice Department lawyers that said state and local police could enforce only criminal immigration violations, such as sneaking across a border....

The DHS and the states should pursue, and Congress should support, the use of Section 287 of the Immigration and Naturalization Act (INA) as a mechanism for state and local law enforcement to enforce the immigration aspect of border security. Section 287 (g) of the INA provides authority for state and local enforcement to investigate, detain, and arrest aliens on civil and criminal grounds. Officers governed by a §287 (g) agreement must receive adequate training and operate under the direction of federal authorities. In addition, in a civil lawsuit, the state law enforcement officers would be considered to have been acting under federal authority, thereby shifting liability to the federal government and providing additional immunity for the state law enforcement officers enforcing federal laws.

The inherent authority of local police to make immigration arrests was recognized by the Justice Department’s Office of Legal Counsel (OLC) and was announced by Attorney General Ashcroft on June 6, 2002. OLC’s unequivocal conclusion was that arresting aliens who have violated either criminal provisions of the Immigration and Nationality Act (INA) or civil provisions of the INA that render an alien deportable “is within the inherent authority of the states.”1 Such inherent arrest authority has never been preempted by Congress. This inherent authority is simply the power to arrest an illegal alien who is removable, detain the alien temporarily, and then transfer the alien to the custody of the Bureau of Immigration and Customs Enforcement (ICE).
 
In contrast, Section 287(g) delegates authority that is considerably broader than the power to merely arrest an alien and transfer him to ICE custody. Section 287(g) encompasses the spectrum of basic enforcement powers. Such 287(g) authority includes not only the power to arrest and transfer, but also the power to investigate immigration violations, the power to collect evidence and assemble an immigration case for prosecution or removal, the power to take custody of aliens on behalf of the federal government, and other general powers involved the routine enforcement of immigration laws. This broader enforcement authority can only be delegated to state and local law enforcement agencies through a formal Memorandum of Understanding (MOU), which effectively deputizes members of state or local law enforcement agencies to perform the “function[s] of an immigration officer.” 8 U.S.C. § 1357(g).
 
It has become a cliché since 9/11 to say that enhanced state-federal cooperation is essential if we are to improve our homeland security. All too often those words are devoid of real meaning. However, Section 287(g) is a program that facilitates systematic, structured cooperation with proven results. I wholeheartedly urge this Committee to support its expansion.

...Sanctuary laws are a serious impediment to stemming gang violence and other crime. Moreover, they are a perfect symbol of this country’s topsy-turvy stance towards illegal immigration.
 
Sanctuary laws, present in such cities as Los Angeles, New York, Chicago, Austin, Houston, and San Francisco, generally forbid local police officers from inquiring into a suspect’s immigration status or reporting it to federal authorities. Such laws place a higher priority on protecting illegal aliens from deportation than on protecting legal immigrants and citizens from assault, rape, arson, and other crimes....
 
Sanctuary laws violate everything we have learned about policing in the 1990s. Police departments across the country discovered that utilizing every law enforcement tool in their tool chest against criminals yielded enormous gains....

This Backgrounder briefly summarizes the legal authority upon which state and local police may act in rendering such assistance and describes the scenarios in which this assistance is most crucial. It does not cover the provisions of Section 287(g) of the Immigration and Nationality Act (INA) (that is, Section 133 of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA) of 1996 titled "Acceptance of State Services to Carry Out Immigration Enforcement"), since the scope of such delegated authority is evident on the face of the Act. Rather, this Backgrounder describes the inherent arrest authority that has been possessed and exercised by state and local police since the earliest days of federal immigration law.

Open borders and sanctuary city proponents claim illegal aliens have not violated criminal law, only civil law, and thus that this distinction makes illegal entry into the U.S. a less serious matter. The Attorney General of New York clearly points out that this is incorrect. Below is part of his letter to a New York attorney:

"You have asked whether New York law enforcement officials are authorized to make warrantless arrests for violations of the federal Immigration and Nationality Act ("INA" or "Act"). 8U.S.C. ch. 12. There is no definitive authority in the New York state courts holding that state and local police officers may make warrantless arrests for federal crimes. However, it appears likely that if the question were to be presented directly, the state courts would so hold.
 
If state and local officers do have such authority under state law, the INA permits them to arrest an individual without a warrant where the arresting officer has probable cause to believe that the individual has committed a criminal violation of the Act. Importantly, reasonable belief that a person has committed a civil violation of the Act does not provide a valid basis for an arrest. Therefore, a person’s status as illegally present in the country, which is a civil violation of the INA, without evidence that the person illegally entered the United States (a violation of the criminal provisions of the Act), does not, perforce, provide probable cause that the person is subject to arrest for violation of any criminal provision."
 
"Under the Act, "illegal alien" may mean an alien who has illegally entered the country, which is a criminal offense under § 1325, or an alien who legally entered but is illegally present in the United States, which may be only a civil violation."

Thus, a definite legal distinction exists between a) evidence that a person is in the U.S. illegally, which may not have been caused by illegal entry - which is a civil violation, 2) evidence that the person has entered the U.S. illegally, which is a criminal violation.
 
Note that the Attorney General is stating that state and local authorities do have the authority "to make warrantless arrests for federal crimes," meaning that they can arrest people for criminal (but not civil) violations of immigration law even if no warrant has been issued.
 
See the relevant portion of the INA, which refers to Title 18 of the United States Code, which is titled "Crimes and Criminal Procedures".

U.S. Code Title 8 -- Aliens and Nationality

CHAPTER 12--IMMIGRATION AND NATIONALITY
SUBCHAPTER II--IMMIGRATION
Part IX--Miscellaneous
Sec. 1373. Communication between government agencies and the Immigration and Naturalization Service
 
(a) In general Notwithstanding any other provision of Federal, State, or local law, a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual.
 
(b) Additional authority of government entities Notwithstanding any other provision of Federal, State, or local law, no person or agency may prohibit, or in any way restrict, a Federal, State, or local government entity from doing any of the following with respect to information regarding the immigration status, lawful or unlawful, of any individual:
 
(1) Sending such information to, or requesting or receiving such information from, the Immigration and Naturalization Service.
(2) Maintaining such information.
(3) Exchanging such information with any other Federal, State, or local government entity.
(c) Obligation to respond to inquiries

 
The Immigration and Naturalization Service shall respond to an inquiry by a Federal, State, or local government agency, seeking to verify or ascertain the citizenship or immigration status of any individual within the jurisdiction of the agency for any purpose authorized by law, by providing the requested verification or status information.
(Pub. L. 104-208, div. C, title VI, Sec. 642, Sept. 30, 1996,110 Stat. 3009-707.)
 
Codification
 
Section was enacted as part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, and also as part of the Omnibus Consolidated Appropriations Act, 1997, and not as part of the Immigration and Nationality Act which comprises this chapter.

U.S. Code Title 8:

Section 1324a states: "Any person who knowingly hires/harbors/transports any illegal alien is guilty of a felony punishable by 10 years jail + $2000 fine per illegal alien + forfeiture of the vehicle or property used to commit the crime".
 
Section 1324c states, "All officers whose duty it is to enforce criminal laws shall have authority to make arrests for a violation of any provision of this section" (affirmed U.S. v. Perez-Gonzalez 2002 Fed App 0360, 6th Circ.).
 
Section 1644, same title states, "No local ordinance, rule, or measure shall stop law enforcement officers from enforcement of this section" (affirmed Southern District Court of NY, U.S. v. Rudy Guiliani,1996).

Immigration and Nationality Act Section 237

Immigration law requires that aliens be documented for legal entry. Avoiding this documentation process is referred to as entry without inspection, or EWI. In addition, some aliens enter with legal documentation and then violate the terms of their admission by taking jobs they are not authorized to take, or by overstaying their authorized period of stay in our country. The INS estimated in 1996 that about 60% of the then estimated five million illegal aliens were EWI and 40% were visa overstayers. Both types of illegal aliens are deportable under Immigration and Nationality Act Section 237 (a)(1)(B) which says: "Any alien who is present in the United States in violation of this Act or any other law of the United States is deportable."

Notes on Federal versus criminal law

"8 U.S.C. 1325 - Improper Entry by Alien
 
(a) Improper time or place; avoidance of examination or inspection; misrepresentation and concealment of facts; Any alien who -
 
(1) enters or attempts to enter the United States at any time or place other than as designated by immigration officers, or
 
(2) eludes examination or inspection by immigration officers, or
 
(3) attempts to enter or obtains entry to the United States by a willfully false or misleading representation or the willful concealment of a material fact, shall, for the first commission of any such offense, be fined under Title 18 or imprisoned not more than six months, or both, and, for a subsequent commission of any such offense, be fined under Title 18, or imprisoned not more than two years or both."

Being illegally in the U.S. is a civil matter. However, it is a federal crime to enter the country without inspection (EWI, USC 8 1325). A first offense can bring a fine and/or up to six months followed with deportation. A second offense (a felony) can bring up to two years and/or fine and then deportation. Thus, illegal immigration is a federal crime and a civil offense, with two separate courts.
 
The criminal charge will be filed by a U.S. Attorney and heard in U.S. District Court. The deportation (the removal) will then be conducted by the immigration courts, the Executive Office of Immigration Review (EOIR) before an Administration Law Judge.
 
Along the southern border, 95 percent of the cases get deposed of by "voluntary removal" on the part of the illegal, with no prosecutions in District Court. However, some U.S. Attorneys are indeed now filing all violations of USC 8, 1325. The U.S, Attorney in the Southern District of Texas is doing exactly that, with en masse proceedings. In Denver about one-half of detainees go through the formal deportation as outlined above.
 
Other commonly committed federal crimes include: the misdemeanor Failure to Carry Alien Registration. 18 USC 911, False Claim of US Citizenship, is a felony with an up to five-years in prison. Under 18 USC 1546, false document and fraud misuse on an I-9 claim is a felony.

Colorado Secure and Verifiable Identity Document Act

As a result of the proliferation of the bogus Mexican Matricula Consular ID card, Colorado passed in 2003 the Colorado Secure and Verifiable Identity Document Act (HB03-1224). You can read the entire bill here, on the Colorado Legislature website.

HB03-1224 states that:

"A public entity that is issuing an identification card, license, permit, or official document shall not authorize acceptance of an identification document, nor shall a public official acting in an official capacity accept an identification document before issuing such documents, unless such identification document is a secure and verifiable document.

"SECURE AND VERIFIABLE DOCUMENT" means a document issued by a state or federal jurisdiction or recognized by the united states government and that is verifiable by federal or state law enforcement, intelligence, or homeland security agencies.

Matricula consular card legal information

• Immigration and Nationality Act
   
  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]
   
   
  
• Personal Responsibility and Work Opportunity Reconciliation Act
   
  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 providing 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.
   
   
  
• 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 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 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]
   
  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.
   
  A "matricula consular" policy adopted by local governmental authorities 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]
   
  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.
   
  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 city or 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]
   
   
  [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).
  

Legal issues in Colorado relating to the matricula consular card

• Letter of intent to Denver Mayor Wellington Webb.
• Open records request to the City and County of Denver.
• CAIR Letter to U.S. Attorney.
• Notification of INS regarding enforcement of clear violations of U.S. immigration law in a Denver-based hiring hall.
• A letter of objection was filed with the Mayor and City Council of Boulder, Colorado at the November 19, 2002 City Council meeting, stating "Your actions may possibly put you, and elected and appointed officials, and public servants, in legal jeopardy both personally and professionally."
• In addition, the letter was filed with the city's liability insurance company, since it is likely that the city's policy does not cover personal liability arising from accepting the matricula consular ID card.
• An open records request was filed on January 16, 2003. Friends of Immigration Law Enforcement (FILE), based in Omaha, Nebraska, wrote letters to numerous City and County and other municipalities throughout Colorado, insisting that they stop accepting the matricula consular card.