The growing immigration crisis has prompted an
increasing number of state and local governments to take
action to defend their communities.
The Need for
State and Local Action:
Citizens across America are
increasingly clamoring for their local officials to do
something about the rising population of illegal aliens
in their communities – and, about the costs they impose.
Several dozen local governments and a number of states
have responded by proposing or enacting measures to
mitigate the impact. Also, an increasing number of state
and local law enforcement agencies are signing up for
federal training in the enforcement of immigration laws.
There has been a spate of federal enforcement activity
in recent months, which is a good sign, but we fear that
much of it is window dressing designed to grease the
passage of an amnesty/guestworker program. And,
despite the passage of a sound, enforcement-only House
immigration bill (H.R. 4437), a majority of Senators
continues to prevent real progress at the federal level,
leaving state and local governments with few options but
to act on their own. State and local action also may be
constitutionally sound given the sovereign authority of
the states. In fact, state and local governments have
more extensive authority than is generally recognized to
enforce federal immigration law and to enact statutes
and ordinances that address immigration-related
activities which are also unlawful under federal
immigration law.
The Supreme Court has made
clear that Congress has plenary power over immigration,
so only Congress can regulate the entry and departure of
noncitizens, including how many may enter, and the terms
of their admission to, stay in, and removal from the
United States. It is also well established that, in
areas where Congress has asserted its plenary power,
states and localities may enact laws that go as far as,
but no further than, the federal law, as long as they do
not conflict with the federal law and Congress has not
asserted an exclusive authority. So, for example, states
and localities may deny non-emergency cash welfare
benefits to illegal aliens because Federal law also
denies such benefits. On the other hand, states and
localities may not establish their own system of
sanctions for employers who hire illegal aliens because
Congress specifically prohibited such systems when it
enacted the federal one.
States also have an inherent authority to protect the
public welfare. This authority includes the regulation
and licensing of businesses and motor vehicle drivers,
among other things. State and local governments
may set any criteria for such licensing, so long as they
do not violate the Constitution or conflict with federal
law. Thus, business licenses may be conditioned on the
business owner agreeing to verify that all employees are
legally authorized to work in the United States, but
they may not be conditioned on the owner employing only
native-born Americans, as this would be unconstitutional
discrimination. Despite the strong public support for
state and local action, open borders advocates and a
mostly sympathetic media actively oppose state and local
involvement in immigration matters. Groups like the
American Civil Liberties Union (ACLU) and the Puerto
Rican Legal Defense and Education Fund (PRLDEF) have
promised to litigate all proposed state and local
measures.
State and local involvement in immigration matters
will have two important effects:
(1) it will send a strong message to illegal aliens that
there are consequences for violating our laws and
encourage them to self-deport, which will benefit
American communities by making jobs available for
unemployed and underemployed legal residents; and (2) it
will send a strong message to Congress and the
Administration that the American people will no longer
accept the status quo, so they should assist in the
effort to rein in out-of-control immigration or be
prepared to be voted out of office.
State and local police are badly
needed to help overwhelmed federal immigration
authorities apprehend illegal aliens in the interior of
our country. Illegal aliens outnumber Immigration and
Customs Enforcement (ICE) agents by over 5,000 to one.
Only about 2,000 ICE agents are responsible for
enforcing the immigration laws in the interior of our
country. This number is too small to apprehend more than
a fraction of the illegal alien population now here.
More than 600,000 state and
local law enforcement officers already come into contact
with illegal aliens every day. Many of them, in the course
of their normal duties on their regular beat, routinely
observe and even stop illegal aliens — for example, for
traffic violations. Many of these officers want to help, but
are unsure of their authority and so do nothing. The
officers who do detain illegal aliens, and then contact
federal immigration officials, are frequently told to
release the aliens because of a lack of federal personnel to
pick them up or process them. Some officers are even
prohibited from cooperating with federal officials by state
or local laws called "sanctuary policies," which violate
federal law.
The courts have agreed that state and local
police can enforce any federal law, unless Congress has
specifically forbidden enforcement of a particular law.
Since Congress has not forbidden the states from enforcing
federal immigration laws—both criminal and civil—state and
local police have the inherent authority to enforce them.
State and local police, who make up approximately 96 percent
of U.S. law enforcement, would be a massive force
multiplier for immigration enforcement.
Were these state and local police officers to detain and
turn over to ICE every illegal alien with whom they come
into contact during the normal course of their duties,
hundreds of thousands more illegal aliens could be removed
from the United States each year. Moreover, this type of
enforcement would have a snowball effect because it would
encourage illegal aliens to self-deport, rather than face a
dramatically increased risk of getting caught and being
barred from legal reentry for a period of years.
Mayors, city councils, and county
boards across the nation are increasingly joining the
fight against illegal immigration, saying they are
frustrated with the federal government’s inability or
unwillingness to address the crisis. Since the
summer of 2006, more than 100 local governments in 27
states have considered, and in some cases passed, local
ordinances to crack down on those who hire or rent to
illegal aliens. The local
ordinances, a selection of which are listed below, take
different approaches but generally seek to:
Bar local government contracts with employers who hire
illegal aliens;
Prohibit landlords from renting to illegal aliens or fine
them for doing so; and
Prohibit business licenses for companies that hire illegal
aliens.
Employers are typically
expected to check the immigration status of new hires by
using the
Basic Pilot Program, a free and easy-to-use online
service operated by the Department of Homeland Security
(DHS) that verifies employment eligibility.
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The City of Hazleton, PA |
"CITY OF HAZLETON ILLEGAL IMMIGRATION RELIEF ACT
ORDINANCE" (see page
5):
The ordinance requires
businesses seeking a license to submit a sworn
affidavit that their employees are authorized to
work in the United States, and suspends the license
of violators. It also prohibits landlords from
renting to illegal aliens, and suspends the rental
license for violators. |
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Pickens County, SC
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"RESOLUTION 06-09":
The ordinance, which was
adopted on October 2, 2006, states that the County
will not do business with companies who knowingly
hire illegal immigrants. |
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Suffolk County, NY
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"A LOCAL LAW TO REQUIRE COMPANIES DOING BUSINESS
WITH THE COUNTY TO CERTIFY COMPLIANCE WITH FEDERAL
LAW WITH RESPECT TO LAWFUL HIRING OF EMPLOYEES":
The ordinance requires firms doing business with the
county to certify in a sworn affidavit that their
employees are legally eligible for employment in the
United States. The measure applies to all firms with
county contracts funded solely with county funds. |
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The City of Valley
Park, MO
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"AN ORDINANCE RELATED TO ILLEGAL IMMIGRATION WITHIN
THE CITY OF VALLEY PARK, MO":
The Valley Park ordinance
passed on July 17, 2006. The measure would fine
landlords $500 for renting to illegal immigrants.
Businesses that hire illegal immigrants could be
denied city contracts. A temporary restraining order
has blocked the city’s enforcement of the ordinance
until a federal hearing can be scheduled.
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Beaufort County, SC
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"Lawful Employment Ordinance":
The County Council
unanimously on December 27 to approve an ordinance
that requires businesses to attest that they do not
knowingly employ illegal aliens and allows the
County to take away a company's business license if
it employs illegal immigrants. It becomes effective
January 8, 2008. |
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Cherokee County, GA
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"Harboring Illegal Aliens Ordinance":
Adopted on
December 5, 2006, the ordinance seeks to discourage
landlords from renting to illegal immigrants. A
written complaint about landlords suspected of
renting to illegal immigrants would trigger an
investigation. The County would try to verify with
the federal government the immigration status of a
person seeking to use, occupy, lease or rent a
dwelling in the county. The ordinance, which also
requires landlords to maintain information on
tenants' immigration status, is scheduled to take
effect January 1, 2007. |
Farmers Branch, Texas also passed an ordinance in
November of 2006 that required landlords to verify
citizenship of new or renewing apartment rentals. A
petition to place the ordinance on a ballot initiative
was validated in December of 2006, but implementation
was blocked by a temporary restraining order shortly
thereafter. The City Council subsequently retracted the
original ordinance and replaced it with a new ordinance,
which will be put to a city-wide vote on May 12 of 2007.
The progress in Farmers Branch
occurred because the citizens organized, (in this case
under an organization called "Support Farmers Branch"),
raised funds to underwrite their efforts, and kept
fighting despite strong opposition from open borders
groups. Support Farmers Branch continues to engage in a
variety of noteworthy activities including a legal-voter
turnout drive and the promotion of sympathetic City
Council candidates in the election. The group believes
these two activities are critical because the
voters could overwhelmingly approve the ordinance, but
it could be overturned if open borders council members
are elected. While NumbersUSA does not endorse
Support Farmers Branch or its activities, their
website
is instructive and may be used as a resource for other
communities engaged in similar battles.
According to the National
Conference of State Legislatures (NCSL), state
legislatures also introduced over
570
immigration-related bills in 2006 .
(click
here to see NCSL’s study). As you will note in the
NCSL chart below, 84 bills were enacted in 32
states . Immigration-related state
legislative action in 2007 may rival or surpass that of
2006.
|
Enacted Bills
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|
Issue |
Number of bills enacted
|
Number of states
|
|
Benefits |
10 bills
|
7 states
|
|
Education |
3 bills
|
3 states
|
|
Employment |
14 bills
|
9 states
|
|
Human Trafficking |
13 bills
|
9 states
|
|
Identification |
6 bills
|
5 states
|
| Law
Enforcement |
8 bills
|
6 states
|
|
Legal Services |
5 bills
|
5 states
|
|
Miscellaneous |
19 bills
|
13 states
|
|
Voting |
6 bills
|
6 states
|
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13 bills passed in 10 states this year that get
tough with businesses that hire illegal aliens.
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Sanctuary Policy
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State
Ballot Measure Results
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On
November 7, voters across the nation
went to the polls to elect local, state,
and Congressional officials. In three
states, the electorate also cast their
votes on immigration-related ballot
measures.
In
Arizona,
voters approved three measures.
Proposition 100* prohibits the granting
of bail for an illegal alien charged with a
“serious felony,” provided proof of the
alien’s commission of the crime is evident
or the presumption of commission is “great.”
Proposition 102 prohibits an illegal
alien who entered this country unlawfully
from receiving punitive damages resulting
from a civil lawsuit.
Proposition 300 denies illegal aliens
access to certain state-funded services
(e.g., in-state tuition at state public
institutions of higher education; state
higher education waivers, grants, or
financial assistance; child care assistance
from the Department of Economic Security)
and requires affected state agencies to
report statistics every six months regarding
the number of illegal aliens denied
services.
Colorado
citizens approved two measures —
Referenda H and K. Referendum H (pp.
23-24 and 42 of the linked document),
requires businesses in the state, beginning
January 1, 2008, to disclose the amount of
compensation paid to illegal aliens they
deducted as expenses on their Federal tax
returns and, subsequently, requires that
their state taxable income be increased by
the amount disclosed. The latter requirement
will apply only: (1) to annual compensation
of $600 or more per worker; and (2) in cases
where the business knew, upon hiring an
individual, that he was an illegal alien.
Referendum K (pp. 29 and 54) requires the
state’s Attorney General to sue the Federal
government to demand that the latter enforce
existing Federal immigration law.
Finally, in
supporting
Constitutional Amendment 1 (pp. 4-6 in
the linked document)
New Mexico voters authorized the
repeal of an existing constitutional
provision prohibiting illegal aliens
ineligible for U.S. citizenship or certain
business entities whose majority owners are
aliens ineligible for citizenship from
owning property in the state.
* In
general, the linked documents in this
section provide a synopsis of what the
ballot measure does, arguments for and
against the measure, and the statutory or
constitutional language to be adopted if the
measure is approved. |
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Although
sanctuary policies are illegal
under federal law, two states
(Maine and New Mexico) and a multitude of cities and
counties maintain policies that forbid officials from asking
about a person’s immigration status or informing federal
immigration authorities about the presence of illegal
aliens. These sanctuary policies may prevent police from
inquiring about a person’s immigration status during the
course of routine duties, or from stopping or detaining a
person solely due to immigration status. They may also
prevent state public assistance agencies and institutions of
higher education from inquiring about an applicant’s
immigration status in order to determine eligibility for
public benefits. The resulting safe havens make it easier
for illegal aliens, including criminal aliens, to live
undetected in the United States.
Sanctuary policies hinder the
ability of police to combat increasingly violent criminal
alien gangs like MS-13. Such
gangs engage in murder as well as the trafficking of drugs
and illegal aliens. There are indications that
MS-13 may be cooperating with
al-Qaeda in smuggling
potential terrorists and/or weapons across the border.
Sanctuary policies directly
violate federal law. Section
642 of the Illegal Immigration Reform and Immigrant
Responsibility Act (IIRIRA) of 1996 provides that “States
and localities may not adopt policies, formally or
informally, that prohibit employees from communicating with
DHS regarding the immigration status of individuals.”
However, neither DHS nor the Department of Justice has ever
challenged a sanctuary policy. Soon after IIRIRA was passed,
the City of New York challenged this provision in court.
When the court upheld the law and ordered the City to
rescind its sanctuary policy, the City ended up modifying it
only slightly. The Justice Department declined to challenge
the new sanctuary policy.
The Section
287(g) program, established by the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996, is a
means by which state and local law enforcement agencies
may enter into agreements with DHS so that officers may
receive training from Immigration and Customs
Enforcement (ICE) to perform immigration enforcement
functions – such as identification, processing, and
detention of immigration offenders. This training
provides state and local police with additional tools
they can use to prosecute crimes committed by aliens,
especially gang violence and document fraud, while
reducing the impact of illegal immigration on local
communities and making it less likely that terrorists
will be able to operate with impunity in the United
States.
Any state or political
subdivision may initiate a 287(g) agreement on behalf of its
law enforcement officers by contacting ICE.
Once a Memorandum of Understanding (MOU) between the state
or locality and the Department of Homeland Security is
signed, the state or local officers participate in a four-
to five-week course on immigration law and enforcement. Once
the officers are certified, they can count on the assistance
of ICE agents as they perform the immigration functions for
which they were trained.
The utility of this program is borne out
by its documented success to date. In the four years
following the Florida Department of Law Enforcement’s (FDLE)
entering into the first 287(g) agreement – July 2002 through
June 2006 – 136 officers from the Sunshine State and three
other states (Alabama, Arizona, and California) have
received 287(g) training. Subsequently, those officers have
made 820 immigration-related arrests involving crimes from
document fraud, driving under the influence and burglary to
rape, drug possession and weapons violations.
At the local level, several large, urban
counties – including Los Angeles and San Bernadino Counties
in California and Mecklenburg County in North Carolina –
participate in the 287(g) program. Mecklenburg County’s
participation has been so successful, in fact, that during
this summer’s Congressional field hearings on immigration,
the Criminal Justice, Drug Policy and Human Resources
Subcommittee of the House Government Reform Committee held a
hearing in the county specifically to discuss that
jurisdiction’s experiences with the program.
For
additional information on the 287(g) program, please visit
these links:
ICE Fact Sheet (PDF format [Adobe
Acrobat Reader needed to view; click
here
to download])
Request for Additional Information from ICE
Other ICE “Partners” programs
Delegation of Immigration Authority under the 287(g) program
Some local law enforcement officials
have expressed concern in that their officers may not
enforce Federal immigration law because illegal aliens have
not committed a felony and, as such, the local officers may
not have the authority. In fact, this distinction is
irrelevant since the courts have
agreed that state and local police have inherent authority
to enforce all federal immigration laws against violators,
whether the violation is a civil or a criminal offense.
That being said, the only instance in which illegal
immigration is a civil, rather than criminal, violation is
when an alien either overstays his/her legal visa or
violates the terms of his/her visa. However, if that alien
then obtains employment, a criminal act has been committed –
most often by the alien (presentation to the prospective
employer of an expired, fake, stolen, or altered document),
but sometimes by the employer (failure to comply with the
I-9 process). So, most illegal
aliens – even overstays – have committed a criminal
violation.
Misdemeanor vs. Felony
The first time an alien crosses the
border illegally, he or she is guilty of a misdemeanor. The
second and subsequent times constitute felonies. Both are
criminal violations. The only distinction between a
misdemeanor and a felony offense is the length of potential
jail time; any crime punishable with up to one year’s
imprisonment is a
misdemeanor, while an offense punishable with
more than one year is a
felony.
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Here are some relevant
Federal statutes that may provide additional
guidance regarding immigration-related offenses:
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8
USC 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 6 months, or both, and, for a
subsequent commission of any such offense, be fined under
title 18, or imprisoned not more than 2 years, or both. (b)
Improper time or place; civil penalties.
Any alien who is apprehended while entering (or attempting
to enter) the United States at a time or place other than as
designated by immigration officers shall be subject to a
civil penalty of - (1) at least $50 and not more than $250
for each such entry (or attempted entry); or (2) twice the
amount specified in paragraph (1) in the case of an alien
who has been previously subject to a civil penalty under
this subsection.
Civil penalties under this subsection are in addition to,
and not in lieu of, any criminal or other civil penalties
that may be imposed.
***
18 USC 911. Citizen of the United
States
Whoever falsely and willfully represents
himself to be a citizen of the United States shall be fined
under this title or imprisoned not more than three years, or
both.
18 USC 1546. Fraud and misuse of
visas, permits, and other documents
(a) Whoever knowingly forges,
counterfeits, alters, or falsely makes any immigrant or
nonimmigrant visa, permit, border crossing card, alien
registration receipt card, or other document prescribed by
statute or regulation for entry into or as evidence of
authorized stay or employment in the United States, or
utters, uses, attempts to use, possesses, obtains, accepts,
or receives any such visa, permit, border crossing card,
alien registration receipt card, or other document
prescribed by statute or regulation for entry into or as
evidence of authorized stay or employment in the United
States, knowing it to be forged, counterfeited, altered, or
falsely made, or to have been procured by means of any false
claim or statement, or to have been otherwise procured by
fraud or unlawfully obtained; or
Whoever, except under direction of the
Attorney General or the Commissioner of the Immigration and
Naturalization Service, or other proper officer, knowingly
possesses any blank permit, or engraves, sells, brings into
the United States, or has in his control or possession any
plate in the likeness of a plate designed for the printing
of permits, or makes any print, photograph, or impression in
the likeness of any immigrant or nonimmigrant visa, permit
or other document required for entry into the United States,
or has in his possession a distinctive paper which has been
adopted by the Attorney General or the Commissioner of the
Immigration and Naturalization Service for the printing of
such visas, permits, or documents; or
Whoever, when applying for an immigrant or nonimmigrant
visa, permit, or other document required for entry into the
United States, or for admission to the United States
personates another, or falsely appears in the name of a
deceased individual, or evades or attempts to evade the
immigration laws by appearing under an assumed or fictitious
name without disclosing his true identity, or sells or
otherwise disposes of, or offers to sell or otherwise
dispose of, or utters, such visa, permit, or other document,
to any person not authorized by law to receive such
document; or
Whoever knowingly makes under oath, or as permitted under
penalty of perjury under section 1746 of title 28, United
States Code, knowingly subscribes as true, any false
statement with respect to a material fact in any
application, affidavit, or other document required by the
immigration laws or regulations prescribed thereunder, or
knowingly presents any such application, affidavit, or other
document which contains any such false statement or which
fails to contain any reasonable basis in law or fact - Shall
be fined under this title or imprisoned not more than 25
years (if the offense was committed to facilitate an act of
international terrorism (as defined in section 2331 of this
title)), 20 years (if the offense was committed to
facilitate a drug trafficking crime (as defined in section
929(a) of this title)), 10 years (in the case of the first
or second such offense, if the offense was not committed to
facilitate such an act of international terrorism or a drug
trafficking crime), or 15 years (in the case of any other
offense), or both. (b) Whoever uses - (1) an identification
document, knowing (or having reason to know) that the
document was not issued lawfully for the use of the
possessor, (2) an identification document knowing (or having
reason to know) that the document is false, or (3) a false
attestation, for the purpose of satisfying a requirement of
section 274A(b) of the Immigration and Nationality Act,
shall be fined under this title, imprisoned not more than 5
years, or both. (c) This section does not prohibit any
lawfully authorized investigative, protective, or
intelligence activity of a law enforcement agency of the
United States, a State, or a subdivision of a State, or of
an intelligence agency of the United States, or any activity
authorized under title V of the Organized Crime Control Act
of 1970 (18 U.S.C. note prec. 3481).
For purposes of this section, the term "State" means a State
of the United States, the District of Columbia, and any
commonwealth, territory, or possession of the United States.
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