Citizens for Immigration Reform
http://www.CFIRusa.org

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The following is from AZ State Senator Russell Pearce who has been responsible for the good immigration laws that have been passed in Arizona and upheld in the 9th circuit. It is in response to the Osama administration's curbing the powers of Sheriff Arpaio. His deputies will no longer be able to function under 287g while fulfilling their duties on the streets - They will no longer be able to arrest suspected illegals. The WSJ article states that "unlike others participating in the program, Mr. Arpaio will be restricted to determining the immigration status of inmates booked into Maricopa County jails."

Sheriff Arpaio said in this same article:

"They took away my authority on the streets. That doesn't
matter because I will still pursue illegal on the streets of Maricopa utilizing the authority I have as the elected official." WSJ October 7, 2009

We are a Nation of laws

"If it be asked, what is the most sacred duty and the greatest source of our security in a Republic? The answer would be an inviolable respect for the Constitution and Laws" - Alexander Hamilton.

"No 'Stinkin' 287g needed; Local Law Enforcement's Inherent Authority of Immigration Law:"

Congress has firmly established that there is a significant public interest in the effective enforcement of immigration law. Congress could have chosen to limit local enforcement pursuant to its plenary power over immigration, but it has not done so. In the absence of a limitation on local enforcement powers, the states are bound by the Supremacy Clause of the United 'States Constitution to enforce violations of the federal immigration laws. "The statutory law of the United States is part of the law of each state just as if it were written into state statutory law." States do not need a 287g, IGA, MOU or a permission slip to arrest illegal aliens. The 287g goes beyound the arrest powers as states already have inherent authority to make arrests, 287g is for post arrest, not anything to do with authority!!!!

Often a misunderstanding of the relationship between federal criminal and immigration law causes one to believe being present in the U.S. in violation of immigration law is civil and "not a crime" and is clearly wrong. The enforcement role given to local government by the Constitution and the Congress is clear. Unsanctioned entry into the United States is a crime.

State and local law enforcement officials have the general power to investigate and arrest violators of federal immigration statutes without prior INS knowledge or approval, as long as state law does not restrict such general power.

The U.S. has a "compelling interest" in the criminal prosecution of immigration law violators, which is a part of a comprehensive, essential sovereign policy of uniform immigration law enforcement.

In Sections 1324 the language that referred to officers "of the United States" when talking about authority to arrest was stricken from section 1324 by amendment. In People v. Baraja, a California court concluded, "that change can only mean that the scope of the arrest power under section 1324 was enlarged; in no way can it mean that the scope of arrest under the other two sections was restricted. Such an acute non sequitur would attribute to the Congress both serious inconsistency and profound lack of logic."

The arrest, detention, or transportation of aliens by local police enforcing criminal provisions of the INA is not a regulatory "determination" of the conditions of alien entrance and residency, but merely enforcement of the previously determined conditions. States can prosecute illegal aliens under state laws without running afoul of the INA. State and local laws do not attempt to regulate who may come to and stay in the U.S. , and thus do not impinge upon the federal government's exclusive power to regulate immigration, even if they affect immigrants.

Other important amendments to federal law enacted in 1996 were intended by Congress to encourage state and local agencies to participate in the process of enforcing civil as well as criminal federal immigration laws by providing incentives such as reduced liability and specialized training.

In 1999 a decision in the Tenth Circuit Court of Appeals upheld the independent authority of local police departments to enforce federal immigration law, as long as state law prescribing police power of arrest authorized such an arrest. The U.S. Dept. of Justice endorsed this doctrine in April 2002. Under Attorney General Ashcroft, the U.S. Dept. of Justice took the position that state and local police have inherent authority to enforce civil immigration laws.

Assistant Attorney General Kobach explained that the inherent arrest authority of states arises from their pre-constitutional status as sovereign entities. The powers retained by the states at the time of ratification proceeded "not from the people of the United States, but from the people of the several states," and remain unchanged, except as they have been "abridged" by the Constitution. The authority of a state to arrest for violations of federal law is thus not delegated; but "inheres in the ability of one sovereign to accommodate the interests of another sovereign." This federalism-based analysis has a strong judicial pedigree.

The courts also ruled (Miller v. U.S., 357 U.S. 301, 305(195 that a warrant less arrest "of an arrest for violation of federal law by state peace officers, .the lawfulness of the arrest without warrant is to be determined by reference to state law."

Sanctuary policies are illegal. Local, state, or federal government agencies that sanction or retaliate against employees or officials who report immigration law violations to ICE or the Border Patrol can be sued by the whistleblower under 8 U.S.C. 1373 or 8 U.S.C. 1644 for damages and costs.

Citizens have a constitutional right to expect the protection of federal laws which prohibit unauthorized activities by non-citizens are denied equal protection when a police department or magistrate acts in a manner that encourages or assists persons selected on the basis of nationality or alienage to engage in such unlawful activities.

Aggrieved residents may sue in state or federal court to block unlawful municipal passive resistance policies (so called Sanctuary Policies), and may sue officials and employees in their official or private capacities for violations of their rights. Local government officials do not possess Eleventh Amendment immunity or qualified immunity when sued in their official for prospective injunctive or declaratory relief to end statutory and constitutional violations.

"Harboring" includes any conduct that tends to substantially help an alien to remain in the United States unlawfully. Criminal liability for harboring or sheltering could arise from acceptance of a Mexican matricula consular - which, presented without proper immigration documents, is prima facie evidence of illegal alien status - by a local government agency that , for example, provide housing or utility assistance, made referrals to a public or private job assistance program or detained matricula presenters for violation of city ordinances and release them without verifying their immigration status with the U.S. Immigration and Customs Enforcement.

No policy or humanitarian argument has been identified by the courts that would negate the criminal mens rea of reckless disregard for the fact that aliens are present in the United States in violation of law. Neither sanctuary nor humanitarian concern is a valid defense to either civil or criminal violations of the Immigration and Nationality Act. It is illegal for non-profit, religious, or civic organizations to knowingly assist in the commission of an alien smuggling felony, regardless of claims that their member' convictions may require them to assist aliens. The First Amendment does not protect actions that aid illegal aliens to remain in the United States.

Illegal aliens are not a suspect class entitled to Fourteenth Amendment based strict scrutiny of any discriminatory classification based on that status, nor are they defined by an immutable characteristic, since their status is the product of conscious unlawful action.

Every alien who has seen issued a registration document is a required to carry the document on his or her person. Federal regulations specify the immigration document that are evidence of alien registration. The U.S. Supreme Court has held that the unregistered presence of an alien in the U.S. is in itself a crime. Failure to register is a continuing violation for which there is no statute of limitations. Other criminal misdemeanors are failure to have a registration card in personal possession ($100 fine and /or 30 days imprisonment), and failure to report a change of address ($200 fine and /or 30 days).

A law enforcement officer has probable cause to detain an individual who admits he or she is an alien (legal or illegal) but is not in possession of registration documents. This is a crime that a warrant less arrest can be made in most jurisdictions.

Immigration document fraud is a felony enforceable by local police officers under 18 U.S.C. 1028. Criminalizes eight types of knowing conduct that relate to false identification documents.

The Bail Reform Act of 1984 created a powerful detention provision that authorizes a state of local police officer to arrest any alien other than a legal permanent resident for a federal "offense," and to request a local magistrate to temporarily detain the alien for up to ten days without bail while awaiting transfer into federal custody, so long as the alien is found to be a "flight risk" or danger to any other person or the community."

The authority to make arrest for federal offenses under 18 U.S.C. 3041 extends to state and local law enforcement officers. (U.S. v Bowdach, 561 F.2d 1160, 1168 (5th Cir. 1977) An illegal alien is an inherent flight risk.

Supreme Court Ruling Razes Artificial Fire Wall Between Local Law Enforcement and Immigration Enforcement (Muehler v. Mena) 9-0 Landmark Decision (Washington D.C.-April 1, 2005) In its March 22 ruling in the case of Muehler v. Mena, the Supreme Court removed barriers that prevent local law enforcement officers from questioning the immigration status of individuals they suspect to be in the United States illegally. In this groundbreaking decision, the high Court rejected the claim of Ira Mena, a permanent resident of the U.S., that police had violated the Fourth Amendment while conducting a lawful search of her home.

The Fourth Amendment provides protection by establishing that persons be shielded against unreasonable search and seizure. Mena argued that by questioning her, and the illegal alien detainees about their immigration status during a lawful search, officers violated her Fourth Amendment rights. Mena further claimed that questions asked about her citizenship required officers to have had independent reasonable suspicion regarding the unlawfulness of her immigration status.

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."

"Whatever legal fig leaf many police departments have been using to justify policies of non-cooperation with federal immigration authorities, has been stripped away by this landmark Supreme Court decision,"

"If local police are barred from cooperating with federal authorities in the enforcement of U.S. immigration laws it is purely a political decision on the part of local politicians and police chiefs. There is no legal barrier to local police inquiring about a person's immigration status and then acting upon the information they gather."

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.

"In Muehler v. Mena the Court reinforced the clear intent of Congress in this matter," said Stein. "Inquiring about an individual's immigration status can and should be a routine part of ascertaining information, no different than asking questions about one's name, or date and place of birth. Local police come into contact with people who are violating federal immigration laws on a daily basis. Freeing local police to inquire about an individual's immigration status and allowing them to act is essential to curbing mass illegal immigration and protecting our homeland security."

Any decision by law enforcement not to enforce immigration laws is a political decision by politicians and local police chiefs, not a lack of authority.

A recent Memo by the U.S. Justice Dept. makes it clear local law enforcement can enforce immigration laws

Theodore Roosevelt's: AMERICAN in 1907.

"In the first place, we should insist that if the immigrant who comes here in good faith becomes an American and assimilates himself to us, he shall be treated on an exact equality with everyone else, for it is an outrage to discriminate against any such man because of creed, or birthplace, or origin. But this is predicated upon the person's becoming in every facet an American, and nothing but an American...There can be no divided allegiance here. Any man who says he is an American, but something else also, isn't an American at all. We have room for but one flag, the American flag... We have room for but one language here, and that is the English language... and we have room for but one sole loyalty and that is a loyalty to the American people."


We, as elected officials, must have the courage and the fortitude to enforce, with compassion but without apology, those laws that protect the integrity of our borders and our rights of our lawful citizens.

The Federal Government's failure is malfeasance. States and local governments also have a Constitutional responsibility to protect their citizens and taxpayers. Inaction has had devastating economic and social consequences.

We have a crisis in America; and those that ignore the damage to America and the destruction of our nation and our neighborhoods are in violation of their Oath of Office. We must demand the laws be enforced. We don't need reform we need enforcement. It will take all of us to force our politicians to do something about it.

Enforcement not Reform is what is needed.

Local law enforcement officers must be engaged in this effort and cannot sit on the sidelines and be spectators while our Nation/neighborhoods are being destroyed. America is a nation of legal immigrants, however so is every nation. People from all parts of the world dream of coming to America for freedom, opportunity and the chance to be the best they can be. We should encourage legal immigration and always discourage illegal immigration, yet Republicans and Democrats in DC are terrified to oppose illegal immigrationout of fear that they will be labeled racist. This assertion is ridiculous. There is nothing racist about upholding the law. We need representatives who are willing to speak clearly for legal immigration and speak clearly against illegal immigration.

Until the day I die, I will insist that 'illegal' is 'illegal'."

I have spent most of my career in law enforcement including Chief Deputy of the Maricopa County Sheriff's Office (4th largest Sheriff's Office in the nation) and I have two sons in law enforcement today. I know to speak out today puts one in jeopardy. For some reason enforcing the law is not the politically correct thing to do; and those that put profit or political power ahead of the interest of America help to destroy this nation.

I know it is strictly political and I believe constitutes malfeasance of office on the part of our local law enforcement agencies to ignore those in this country "illegally". Not only do they have the authority we have the moral obligation. This "illegal" invasion is one of the greatest threats to America (neighborhoods) facing us today, why we would ignore the damage, the violence, the economic destruction, etc. Why we would encourage or demand local law enforcement to use the most useful tool they have to protect our neighborhoods? Public Safety is our #1 job!!! It was intended and has always been a partnership in enforcing our laws and protecting our communities. Once they cross the border it is no longer JUST a federal issue, it is OUR Healthcare system, it OUR educational system, it is OUR criminal justice system, it is OUR jobs being taken, it is OUR welfare system, IT IS OUR TAX DOLLARS AND OUR NEIGHBORHOODS!! It is the LAW and we must enforce it.

ILLEGAL IMMIGRATION: Amnesty: Winning the Jackpot for Breaking the Law!

9,000 are killed "each" year at the hands of illegal aliens. 25 each day, 12 by stabbings and shootings and 13 by DUI and related crimes. This is from Congressional Homeland Security Report. (4 to 10 million illegals crossed into the U.S. last year alone) Investigations-Border-Report.pdf

Death and maimings of police officers and citizens in Arizona by illegal aliens

Phoenix Officer Nick Erfle

Phoenix Officer Shane Figueroa

Phoenix Office Glidewell

Child serial rapist in Chandler

15 year old raped in Scottsdale by school janitor

15 year old kidnapped and raped in Guadalupe

. Phoenix Officer Marc Atkinson;

. Phoenix Officer Robert Sitek;

. Kris Eggle-park ranger in southern Arizona;

. Border Patrol Agent James Epling;

. Two deputies - Sean Pearce & Lew Argetsinger were shot by an illegal alien while executing a search warrant for homicide;

. Sgt. Manuel H. Tapia was shot by a drug suspect;

. DPS Officer Robert K. Martin, 57, was shot to death - his assailant, Ernesto Salgado Martinez, a 19-year-old ex-convict;

. Agent Richard Fass, 37, of the United States Drug Enforcement Agency, murdered;

. Agent Alexander Kirpnick, 27, Border Patrol, murdered;

. Jason Schechterle suffered fourth-degree burns when his patrol care went up in flames after being struck by a taxi - the driver was an illegal alien.

To name a few more of the over 9,000 per year killed:

. Gilbert mother killed by illegal alien fleeing from police in Mesa.

. Jason, Decorated Iraq war veteran stabbed in his own front yard by illegal alien.

. Mother "legal immigrant" killed by illegal alien trying to ram Sheriff's Deputy's car in Phoenix.

. Illegal, 17, runs down hero cop - juvenile released by Border Patrol 10 days earlier

. Murder suspect - an illegal with driver's license - 24-year-old previously deported, now faces 41 counts

. Illegal alien accused of triple homicide - Pennsylvania suspect says he'd been experiencing 'blackouts'

. 3 illegals beat pregnant woman - mayhem rampage

Study: 1 million sex crimes by illegals
More than 100 offenders crossing border daily

. Deborah Schurman-Kauflin: Based on a one-year in-depth study, a researcher estimates there are about 240,000 illegal immigrant sex offenders in the United States who have had an average of four victims each.

Deborah Schurman-Kauflin of the Violent Crimes Institute in Atlanta analyzed 1,500 cases from January 1999 through April 2006 that included serial rapes, serial murders, sexual homicides and child molestation committed by illegal immigrants.

Most offenders were in states with the highest numbers of illegal immigrants. California had the most offenders, followed by Texas,Arizona, New Jersey, New York and Florida.

. 8 USC Sec. 1325: (ILLEGAL ENTRY)

. 8 USC Sec. 1324: (Hiring an ILLEGAL)

. 8 USC Sec. 1644: ("No local ordinance, rule, or measure shallstop law enforcement officers from enforcement of this section") "Any person who knowingly hires/harbors/transports any illegal alien is guilty of a felony punishable by:

. 10 years in prison

. $2000 fine per illegal alien

. Forfeiture of the vehicle or property used to commit the crime."

"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 US v Perez-Gonzalez 2002 Fed App 0360, 6th Circ.).

Now let me explain what the Fair and Legal Employment Act is intended to do and talk about the Myths and the Real Facts:

Fair and Legal Employment Act (HB2779 Summary)

. Reduce unauthorized employment

. Minimize verification-related discrimination

. Protect civil liberties and employee privacy

. Be quick and non-burdensome

. Hold "illegal" employers accountable (those that knowingly hire illegal aliens.

. Prohibits an employer from intentionally or knowingly employing an unauthorized alien.

. Provides progressive penalties for "knowingly" or "intentionally" violating this Act.

. Provides all employers a rebuttable presumption that the employer did not intentionally or knowingly employ an unauthorized alien the employer uses the Basic Pilot Program.

. Provides an affirmative defense that employers did not knowingly or intentionally employ an unauthorized worker if an employer complies with federal I-9 requirements.

. Requires the Attorney General or county attorney, upon receipt of a complaint that an employer allegedly intentionally or knowingly employs an unauthorized alien, to investigate the complaint.

. Requires Attorney General or County Attorney to verify work eligibility with the Federal Government.

. After an investigation determines the complaint to be valid, the investigating body is required to:

- Notify U.S. Immigration and Customs Enforcement of the unauthorized alien.

- Notify the local law enforcement agency of the unauthorized alien.

- If the investigation was completed by the AG, then the AG must notify the appropriate county attorney to bring an action against the employer.



Intentionally

. "Intentionally" or "with the intent to" means, with respect to a result or to conduct described by a statute defining an offense, that a person's objective is to cause that result or to engage in that conduct.

Knowingly
. The same actions described in 8 USC §1324a. This allows violations to be determined by the employer's constructive knowledge of the employee's lack of legal status rather than the employee's appearance or accent.

Employer Responsibilities

. Employers cannot use the EEV/Basic Pilot to prescreen job applicants, screen existing employees, selectively verify or reverify current workers: EEV Basic Pilot can only be used for new hires within 3 days of start date.

. Employers must inform employees of a tentative non-confirmation and cannot terminate an employee while a tentative non-confirmation is being resolved.

. Employers must post a notice in an area visible to prospective employees that it is a EEV/Basic Pilot Participant.

. Develop improvements to data completeness - even though 99.7% of non-citizen queries are resolved in 4 days if the employee contacts USCIS immediately.

. Sufficient lead-time and start-up funding to properly design all aspects of EEV, including allocating for SSA resource needs to conduct automatic secondary verifications.

. Address special needs of small and unusual needs employers.


. Ensure ease of use by employers using electronic I-9s.


. Collaborate with "designated agents" who verify new hires of clients who choose to outsource their HR functions.

Future inclusion of Biometrics.

Myth: Employers don't know what "knowingly employing an unauthorized alien" means. Fact: The "knowingly" standard passed in 1986 and has been explained in detail through federal regulation and court cases.



Myth: Employers acting in good faith who make an innocent mistake will be put out of business. Fact: No one gets in trouble for a mistake! One must "knowingly" hire illegal aliens. If they complete the I-9 document procedures in good faith, they have an affirmative defense. Second, employers who use the "free" Basic Pilot Program to verify legal employees will be presumed legal unless rebutted.


Myth: The federal Basic Pilot Program cannot absorb the demand from Arizona employers to use it as of Jan. 1, 2008. Fact: The U.S. Department of Homeland Security testified to the Arizona Legislature in March of this year that it could easily handle the increased demand.


Myth: The federal Basic Pilot Program to verify the legality of new employees has a high error rate. Fact: A June 7, 2007 report issued by the U.S. Government Accountability Office shows 92 percent of inquiries entered by employers are confirmed within seconds and 99.7 percent with 3 to 4 days. A mismatch usually means an illegal employee, not an error.


Myth: HB2779 needs to have an anti-employment discrimination clause based on race or national origin to ensure it is enforced in a fair and non-discriminatory manner. Fact: Discrimination is already illegal under state and federal law. Governor Napolitano's signing letter states, "federal and state law precludes employment discrimination on the basis of race or national origin." Another anti-discrimination law is not needed


Myth: An employer with multiple business locations will have all its locations closed even if the illegal alien performed work at one location only. Fact: HB2779 is site specific, only affecting the licenses at the business location where the violation took place. Where the offending location has no licenses, and only in that case, the licenses for the employer's primary location will be suspended.


Myth: Sanctions against employers for employing unauthorized aliens is a federal issue. Fact: The facts and our courts say otherwise. Federal courts have consistently held that local law enforcement has the authority to investigate and make arrests for violations of federal law, including immigration law (See Gonzalez v. City of Peoria, 722 F.2d 468 [9th Cir. 1983] and United States v. Santana - Garcia, 264 F.3d 1188 [10th Cir. 2001]). And the federal law for knowingly employing unauthorized aliens specifically allows states to sanction this through "licensing and similar laws."


Myth: The State of Arizona is trying to turn businesses into de facto immigration agents. Fact: It has been law since 1986 for employers to verify the work authorization of prospective employees. HB2779 simply enforces existing law against those who "knowingly" violate this law through suspension of business licenses. This isn't some new burden. What they really object to is the notion that we are actually going to enforce the law.


The "Fair and Legal Employment Act", along with recent ballot propositions passed by Arizona voters will help reduce the flow of illegal aliens, reduce costs to taxpayers and cut crime in our state.

In Arizona we have put our citizens and the Rule of Law first. Let's pray the rest of America follows our lead.

Citizens for Immigration Reform
http://www.CFIRusa.org