Thread: Only feds may enforce immigration law

Only feds may enforce immigration law
By Ouisa D. Davis / Guest columnist
Article Launched: 09/21/2007 12:00:00 AM MDT
http://www.elpasotimes.com/opinion/ci_6953256


It is a reality -- local law-enforcement officers have no authority to enforce immigration law.
State and local police and sheriff's deputies' jurisdiction extends only to enforcement of state and municipal violations. Enforcement of immigration law is preempted by the federal government.

It is also a reality that the military, including the National Guard, has no criminal enforcement authority absent federal executive orders during time of war, civil strife or national emergency.

The obligation to make and enforce immigration laws lies squarely upon the shoulders of the federal government and is financed by federal appropriations. The Department of Homeland Security, the immigration enforcement agency, has two "police" departments -- Border Patrol, focusing on border enforcement, and Immigration & Customs Enforcement, whose jurisdiction extends throughout the country.

Local enforcement agencies and their controlling municipal governments are empowered to enforce laws dealing with the health, welfare and safety of the public, providing enforcement and crime victim services to all residents within their respective jurisdictions. An officer may only detain a person when there is probable cause to believe that a state criminal statute or municipal ordinance has been violated. They cannot fabricate probable cause to inquire into a person's immigration status.

You see, undocumented status, inside the borders, is not a crime. It is not illegal to live in the country


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without immigration status. It is a crime to enter the country without proper inspection and documentation, but apprehension must be made at the time of entry into the U.S.
Immigration law is a strange animal -- quasi-criminal, governed by federal civil administrative regulations and procedures. The Immigration & Nationality Act is a body of civil laws, the violation of which results primarily in the denial of an immigration benefit and/or removal (deportation) from the U.S.

Criminal penalties are attached to few provisions -- illegal entry, employment of unauthorized persons, etc.

The federal government faces a quandary; how to enforce immigration law with relatively few enforcement officers. Although they have funding to increase their ranks, recruitment levels remain stale. So, the federal government attempts to circumvent the U.S. Constitution by funding local and state law enforcement agencies to "assist" in the enforcement of immigration laws -- which violates civil rights.

Yes, it is a civil-rights violation for local law enforcement agencies to enforce immigration law. Once in the U.S., immigrants -- documented or otherwise -- enjoy many of the same constitutional protections provided to U.S. citizens. And taxpayers will be responsible for payment of any judgment recovered in favor of those wrongfully questioned or detained.

The answer is not to provide the "carrot" of funding to local agencies along with the "stick" of activity which violates civil rights. Local law enforcement officers cannot lawfully detain an individual on behalf of federal officers because they believe that person is undocumented. They have no authority to do so.

You cannot change this reality by passing a state law or municipal ordinance -- as has become quite clear in communities such as Farmers Branch, Texas and Riverside, N.J. Immigration is purely a federal issue, completely preempted by the federal government under the U.S. Constitution.

This type of activity will not solve the problem. On the other hand, reparative legislation to reinstate immigration benefits decimated by political agendas will go a long way to address it.

Ouisa D. Davis is an attorney at law in El Paso.

Immigration is purely a federal issue, completely preempted by the federal government under the U.S. Constitution.

I don't believe this guy! Is anyone here familiar enough with the Constitution to know where this guy is getting this from? I have looked briefly and don't see it.

As far as I'm concerned if the feds can't take care of it, then the states should. We cannot let our states be INVADED!

You see, undocumented status, inside the borders, is not a crime. It is not illegal to live in the country without immigration status. It is a crime to enter the country without proper inspection and documentation, but apprehension must be made at the time of entry into the U.S.

How on earth can it be illegal to come in and not illegal to stay if you're not caught when you come in? That's crap! That's like saying it's illegal to rob a bank, but if you're not caught in the act, you can't be prosecuted, and we KNOW that ain't the case!

Of course, this is ONLY an OPINION piece, and my OPINION is very different from his!!

I disagree!

READ: *Federal Immigration & Nationality Act Section 8 USC 1324(a)(1)(A)(iv)(b)(iii)

"Any person who . . . encourages or induces an alien to . . . reside . . . knowing or in reckless disregard of the fact that such . . . residence is . . . in violation of law, shall be punished as provided . . . for each alien in respect to whom such a violation occurs . . . fined under title 18 . . . imprisoned not more than 5 years, or both."

Section 274 FELONIES under the federal Immigration and Nationality Act, INA 274A(a)(1)(A):

A person (INCLUDING a group of persons, business, organization, OR local government) commits a Federal FELONY when she or he:

* ASSISTS an alien s/he should ‘reasonably’ know is ILLEGALLY in the U.S. OR who lacks employment authorization, BY transporting, sheltering, OR assisting him or her to obtain employment, OR

* ENCOURAGES that alien to REMAIN in the U.S. by referring him or her to an employer OR by acting as employer OR agent for an employer in ANY way, OR

* KNOWINGLY assists illegal aliens due to ‘personal’ convictions.

Penalties upon conviction INCLUDE criminal fines, imprisonment, AND forfeiture of vehicles and real property used to commit the crime. ANYONE employing OR contracting with an illegal alien WITHOUT verifying his or her work authorization status IS guilty of a misdemeanor. Aliens AND employers violating [im]migration laws ARE subject to arrest, detention, AND seizure of their vehicles OR property. In ADDITION, individuals OR entities who engage in ‘racketeering enterprises’ that commit (OR conspire to commit) [im]migration-related Felonies ARE subject to private civil suits for treble damages AND injunctive relief.

Recruitment and Employment of Illegal Aliens

It is unlawful to HIRE an alien, to RECRUIT an alien, OR to REFER an alien for a fee, knowing the alien is unauthorized to work in the United States. It is EQUALLY unlawful to CONTUNUE to employ an alien knowing that the alien is unauthorized to work. Employers may give preference in recruitment AND hiring to a U.S. citizen OVER an alien with work authorization only where the U.S. citizen ‘is equally or better’ qualified.

It is unlawful to HIRE an individual for employment in the United States WITHOUT complying with employment eligibility VERIFICATION requirements. Requirements INCLUDE examination of identity documents AND completion of Form I-9 for EVERY employee hired. Employers MUST retain ALL I-9s, AND, with three days' advance notice, the forms MUST be made available for inspection.

Employment INCLUDES ANY service OR labor performed for ANY type of remuneration within the United States, with the exception of sporadic domestic service by an individual in a private home. ‘Day laborers’ OR other casual workers engaged in ANY compensated activity (with the above exception) ARE employees for purposes of [im]migration law. An ‘employer’ INCLUDES an agent OR anyone acting directly OR indirectly in the interest of the employer. For purposes of verification of authorization to work, employer ALSO means an independent contractor, OR a contractor other than the person using the alien labor. The use of temporary OR short-term contracts CANNOT be used to circumvent the employment authorization verification requirements. If employment is to be for less than the usual three days allowed for completing the I-9 Form requirement, the form MUST be completed IMMEDIATELY at the time of hire.

An employer HAS ‘constructive knowledge’ that an employee IS an illegal unauthorized worker if a reasonable person would infer it from the FACTS. Constructive knowledge constituting a violation of Federal law has been found where (1) the I-9 employment eligibility form has NOT been properly completed, INCLUDING supporting documentation, (2) the employer HAS learned from other individuals, media reports, OR ANY source of information available to the employer that the alien is unauthorized to work, OR (3) the employer acts with ‘reckless disregard’ FOR the legal consequences of PERMITTING a ‘third party’ to provide OR introduce an illegal alien into the employer's work force. Knowledge CANNOT be inferred solely on the basis of an individual's ‘accent’ or ‘foreign appearance’.

Actual ‘specific knowledge’ is NOT required. For example, a newspaper article stating that “ballrooms ‘depend’ on an illegal alien work force of dance hostessesâ€

Let's see now. Last time I heard, it was a Federal Law to steal mail from a mail box. So, that means that since it is a Federal Law, I can proceed to a life of crime stealing from every mailbox I can lay my hands on, as long as a Federal agent doesn't catch me at it?I am completely immune from arrest from state & local police. Right?
Maybe we should start stealing from the mailboxes of illegal aliens. If they complain or try to get us arrested, we pull out the old Federal Law Card.

Ah, geez, OK, I'll bite...

Re:

You see, undocumented status, inside the borders, is not a crime. It is not illegal to live in the country without immigration status. It is a crime to enter the country without proper inspection and documentation, but apprehension must be made at the time of entry into the U.S.

OK, even *if* we accept that it is 'not a crime' to live in the country 'without status' (it is a civil infraction upon the first illegal entry essentially - if my facts and brain are in order this morning) - entering and working CERTAINLY IS A CRIME. And... entering and working and FALSIFYING DOCUMENTS is an even more severe crime, etc.
..And, then of course, we could talk about those that do the above and then commit additional crimes on top of that (DUIs, assaults, etc)

Or, conversely, yes, if those that 'come here without status' never worked, never faked an SSN/DL/etc., never drove illegally, sure - then I guess we could say that 'no one is committing a crime' <author's contention, not mine> but reality and common sense suggest otherwise to this humble reader.

Imblest, state and local officials are encouraged by the 1996 immigration laws to enforce the existing laws. That's how different states are applying for 287 (g). This is a tired old arguement used by the OBL's to throw people off. The author of that letter needs to do his homework.

Originally Posted by GREGAGREATAMERICAN

Only feds may enforce immigration law
By Ouisa D. Davis / Guest columnist

Ouisa D. Davis is an attorney at law in El Paso.

Ouisa D. Davis is a minister of misinformation.