It started out with Republican candidate hopeful, Donald Trump, declaring that he would build a big wall on the southern border and he would make Mexico pay for it. Whether doing so or not is actually a real solution to the illegal immigration issue, certainly, his provocative statements have raised this sensitive and complex issue to the forefront of the minds of politicians, representatives, law enforcement, ordinary citizens and some of our local and state representatives.
On February 3rd there was a hearing at the Kansas House Judiciary Committee in Topeka regarding House Bill number 2587. HB 2587 basically prohibits the adoption of sanctuary policies by municipalities in Kansas.
To summarize the Act:
It would prohibit municipalities from establishing sanctuary city policies that:
(A) Limits or prohibits any municipality official or person employed by a municipality from communicating or cooperating with federal agencies or officials to verify or report the immigration status of any alien within such municipality;
(B) grants to aliens unlawfully present in the United States the right to lawful presence within the boundaries of a municipality in violation of federal law;
(C) violates any provision of 8 U.S.C. § 1373;
(D) restricts in any way, or imposes any conditions on, a municipality’s cooperation or compliance with detainers or other requests from United States immigration and customs enforcement to maintain custody of any alien or to transfer any alien to the custody of United States immigration and customs enforcement;
(E) requires United States immigration and customs enforcement to obtain a warrant or demonstrate probable cause before complying with detainers or other requests from United States immigration and customs enforcement to maintain custody of any alien or to transfer any alien to the custody of United States immigration and customs enforcement; or
(F) prevents a municipality’s law enforcement officers from inquiring as to the citizenship or immigration status of any person.
In my opinion, this would close at least one loop of the countless number of loops in the federal immigration laws and I commend the proponents of this bill.
History of Federal Immigration Law
Before I get into the meat of the sanctuary cities issue, I think it is prudent to understand a little about the history of the immigration laws in our country. It all began in 1790 where the federal government at that time required that a person seeking to immigrate to this country establish residency for two years before he or she was naturalized. In 1795 an amendment increased the residency requirement to five years. The five-year requirement remains on the books to this day.
When the Fourteenth Amendment was passed it gave citizenship to all children born within the United States. Since that time and over the years there has been numerous additional amendments such as quotas on the maximum number of immigrants allowed per year based upon ethnicity such as was the case in 1882 after the great influx of Asians – primarily Chinese – into the country from 1855 to 1870.
Over the years there have been amendments ranging from denying lunatics and felonious individuals from entering the country. The Immigration Act of 1924 put quotas on the number of immigrants from a specific country to be permitted entry per year based on proportions of existing people living in the U.S. form the same country.
The big reform came in 1952 with the Immigration Naturalization Act (INA) which is the fundamental law which still is in effect today. Now, again as in the past, it has been amended several times such as in 1986 when amendments toughened criminal sanctions for employers who hired illegal aliens, denied illegal aliens federally funded welfare benefits, and legitimized some aliens through an amnesty programs.
Administrative Action – Not a Criminal Offense
A big thing to understand about federal immigration law – on the entry side – is that these statutes are not criminal. They are administrative in nature and designed to control the entry, exit and presence of those persons desiring to legally immigrate or stay in the country.
Deportation is the administrative function that refers to the official removal of an alien from the United States. The U.S. government can initiate deportation proceedings against aliens admitted under the INA that commit an aggravated felony within the United States after being admitted. An alien’s failure to register a change of address renders the alien deportable, unless the failure resulted from an excusable circumstance or mistake. If the government determines that a particular alien gained entry into the country through the use of a falsified document or otherwise fraudulent means, the government has the grounds to deport.
Other common grounds for deportation include the following: aiding or encouraging another alien to enter the country illegally; engaging in marriage fraud to gain U.S. admission; participating in an activity that threatens the U.S.’s national security; voting unlawfully; and failing to update the government with a residential address every three months, regardless of whether the address has changed. The last of these policies served as the grounds for the government to deport 2,000 Pakistanis following the September 11th attacks.
If the government brings a proceeding for deportation because of fraud or falsification, the government bears the burden of proving by clear and convincing evidence that alleged falsification or fraud occurred and that the falsification or fraud proved material to the granting of admission to the alien. Upon such a proof, the government has established a rebuttable presumption that the alien gained admission through material falsification or fraud. To rebut the presumption, the alien must demonstrate by a preponderance of the evidence that admission would have been granted even without the falsification or fraud.¹
1. Source – Cornell University Law School, http://www.law.cornell.edu
Remember that immigration laws are not criminal offenses and as such don’t have any criminal penalty attached.
However the lines of the criminal and civil systems can overlap when a person who is in the United States illegally (illegal alien) comes in contact with the criminal justice system – i.e. commits and offense and is subsequently arrested. In that situation, the system is suppose to identify federal immigration officials that a person is in jail or prison, is a illegal alien and has committed a criminal offense – worthy of deportation.
Side bar argument – It seems to me that the mere existence of a person residing illegally in the USA should warrant deportation unless otherwise prescribed by the existence of legal proceedings. As such, even the most minor offenses should trigger deportation based upon the fact that person illegally entered the country in the first place – supposedly we are a country founded on the Rule of Law.
However, we cannot seem to be able to actually enforce the law either due to to political maneuvering or incompetence. And now we now have over 12 million people in the U.S. illegally. These people (some good, some bad) have families and are spread out all over the country. Unfortunately though, some of these people have and currently do commit a significant amount of crime in our communities. Not all of them do mind you and it sure would be nice if the good ones could just get legal. Not that easy, supposedly many reasons of which backlog and technology are significant factors.
Since we can not seem to find a solution to this significant issue, politicians can not seem to move to the issue of tightening or temporarily closing the border and enforcing existing law and thus the situation just continues.
End side bar argument –
One of the most recent contentious sub-topics of the national debate on immigration has been that of so-called “sanctuary cities.” By most accounts, there are hundreds of sanctuary cities and counties across the U.S. to include at least six counties in Kansas. The arguments for and against are as crystal clear as the federal immigration law itself.
For a host of reasons ranging from economics to public safety, cities and counties either formally adopt written local proclamations or informally “don’t ask – don’t investigate immigration status” operating policies that provide a safe haven of sorts for persons who are living in the U.S. illegally by overstaying their Visa requirements or crossing the borders illegally.
To the issue of public safety, senior law enforcement officials who are in support of sanctuary policies claim that their jurisdictions are safer as a result of increased trust between the police and the community, trust built on programs such as Community Oriented Policing that officials say leads to more citizens reporting more crimes. The belief is that an illegal alien will call the police only if he or she knows that federal agents will not show up with deportation orders in hand.
Others argue that anyone can call the police anonymously and report a crime and therefore even an illegal alien can make the call. That presupposes the fact that the caller is not somehow attached to the criminal or criminal behavior. Such as the unfortunate case of domestic violence where the victim wants the violence to stop but perhaps doesn’t necessarily want the perpetrator deported. Thus the cycle of violence continues and so does the illegal presence of those people in the country.
But what is often misunderstood by persons residing here illegally is that a victim is not fingerprinted and their citizen status is not questioned. The perpetrator, when arrested, is the one who is fingerprinted and whose status is eventually requested and verified.
This leads to the other complicating factor facing law enforcement – the reporting to Immigration and Customs Enforcement (ICE) agents the custody of a criminal offender. This reporting then triggers a citizen status check of the person by ICE. If the person is identified as an illegal alien and is a gang member, a national security risk or other priority offender ICE then issues a Request for Notification of Release. This is a newer and friendlier version of the previous 48-hour ICE Detention Order. It is used by ICE to request that local law enforcement hold an illegal alien for up to 48 hours following the normal release time. This request sidesteps warrant requirement issues.
The problem is that often ICE agents don’t get to the local jail within the 48-hour time period and without additional pending criminal charges the person is then regarded as being held against their 4th Amendment rights of illegal search and seizure.
Sheriffs, under threat of lawsuits and litigation by folks like the ACLU, ultimately defy the ICE Detention Order – “Request” – and consequently release the person if that is applicable and baring any other formal charges.
To make the issue even more complicated, legal experts pose arguments that challenge whether an illegal alien even has those 4th Amendment rights to begin with.
The gigantic elephant in the proverbial room
I fully support our law enforcement as they have a very difficult job to do on the streets each day. They don’t need their jobs to be complicated with politics revolving around federal immigration laws.
Federal immigration laws are a cluster and the issue of sanctuary cities is just one small component. But if the federal government – meaning Congress – is not going to take action to change, repeal or make new immigration laws, then the locals need to take matters in their own hands as they have with House Bill 2587.
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