ILW.COM - the immigration portal Immigration Daily

Immigration Daily: the news source for legal professionals. Free! Join 35000+ readers

Home Page

Advanced search


Immigration Daily

Archives

Processing times

Immigration forms

Discussion board

Resources

Blogs

Twitter feed

Immigrant Nation

Attorney2Attorney

CLE Workshops

Immigration books

Advertise on ILW

VIP Network

EB-5

Chinese Immig. Daily

About ILW.COM

Connect to us

Make us Homepage

Questions/Comments


SUBSCRIBE

Immigration Daily

 

Chinese Immig. Daily



The leading
immigration law
publisher - over
50000 pages of free
information!

Copyright
©1995-
ILW.COM,
American
Immigration LLC.

Immigration Daily: the news source for
legal professionals. Free! Join 35000+ readers
Enter your email address here:



< Back to current issue of Immigration Daily < Back to current issue of Immigrant's Weekly

February 22, 2002

January 21, 2003 

 

Ms. Jenifer L. French

City Clerk

City of Holland

Holland, MI  49423

 

Subject:  Acceptance of Mexican Consular Identification Documents by the City of Holland

 

Dear Ms. French:

 

I have been requested by Mr. Thomas Volkema, a citizen of your City, to comment on the legal issues raised by a draft city resolution entitled Authorizing the Matricula Consular As A Valid Form of Identification.”

 

Mr. Volkema has specifically requested that that this letter be entered into the public record of a hearing by the City Council to consider the draft resolution that I understand will be held on January 22, 2003.

 

The draft resolution, inter alia, requires “each city department” to “accept the Matricula Consular identification card issued by the Mexican Consulate as a valid form of identification” unless “there are probable grounds to determine that it is counterfeit, altered, improperly issued to the card-holder, or otherwise includes inaccurate information.”  The resolution states that it “does not confer any status on a person regarding the legality of his or her presence in the United States” and it “does not apply where federal or state law preempts local regulation of identification requirements or where the City of Holland would not be able to comply with conditions imposed by a funding source…”

 

            The City has directly negotiated the terms of the draft ordinance with the Mexican government, represented by its Consul in Detroit, Antonio Meza Estrada,[1] and has not sought the prior approval of federal authorities responsible for the conduct of diplomatic relations and the administration and enforcement of national immigration law.

 

I am of the opinion that acceptance by a political subdivision of a state or its agencies of identification documents issued by a foreign government or consulate as the sole basis for official identification or


eligibility for public services that are non-emergency in nature violates federal law and is unconstitutional.  My views are based on the following:

 

A government agency employee or representative who accepts a matricula consular as a stand-alone identification document knows as a matter of both law and fact that the presenter has no legal status in the United States.

 

Every non-citizen other than an illegal alien, whether a legal permanent resident, non-immigrant visitor, refugee, parolee, alien under temporary protected status or deferred extended departure status, etc., will possess an identity document and an entry status document issued by the Immigration and Naturalization Service.  Only an alien who entered the United States without inspection, or who has illegally overstayed his authorized stay in this country, will lack a valid identity document and the appropriate INS documentation. Thus, presentation of a consular identification card for official or business purposes, by an alien who does not also possess and present a corresponding document issued by the United States government demonstrating inspection and valid admission to the United States, is prima facie evidence that the presenter is unlawfully present in the United States in violation of 8 U.S.C. 1325.

 

A state or local government official or employee who provides any benefit or service to such a presenter possesses the criminal mens rea necessary for a felony indictment under 8 U.S.C. 1324 (Immigration and Nationality Act §274).  It is a sufficient mens rea for a Section 1324 conviction that the offending person “recklessly ignored the possibility” of the alien’s illegal presence in this country.[2]

 

It is also the statutory duty of every alien in the United States who is 14 years of age or older and who remains in the United States for thirty days or longer to apply for alien registration. Every alien aged 18 or over must at all times carry with him or have in his personal possession any certificate of alien registration or alien registration receipt card issued to him.[3]  Indeed, the preamble to the draft resolution asserts as determinative fact that Mexican consular cards are only issued to “Mexican nationals residing in the United States at least six (6) months.”  Every single adult so described is required to carry a valid alien registration document on his or her person.

 

Failure to carry registration documents is a misdemeanor punishable by imprisonment and a fine.  An alien who willfully fails to report a change of address has committed a misdemeanor and shall be removed from the United States irrespective of whether he is convicted or punished.[4]  In this context, an alien illegally in the United States is considered to have willfully failed to report.[5]

 

For purposes of compliance with federal law it is irrelevant whether the document at issue is a Mexican passport issued abroad, or an ID card issued by a Mexican consular official in this country where, as in this case, the document would be accepted by the City as a legal basis for granting benefits, services or privileges to a non-citizen, while knowingly exempting that alien from compliance with a general standard of eligibility — the requirement that an applicant for such privilege document his or her lawful presence in the United States. 

 

The City of Holland may not as a matter of law recognize illegal aliens as legal residents.

 

The preamble to the draft resolution wrongly refers to illegal aliens as legal “residents” of the City.  The city is said to “rely on forms of identification in providing services to residents of Holland.”  The resolution also asserts that the Mexican government issues consular identification cards only “to Mexican nationals residing in the United States at least six (6) months…”

 

The City of Holland may not classify an alien, (or in this case an invidious class of aliens) who lacks the legal capacity to establish domicile in the United States as a “resident” for purposes of eligibility for non-emergency municipal or state services.[6]  Notwithstanding the fact of physical presence, or “intent” to remain in the jurisdiction until removed, federal law has created a legal disability for illegal aliens that renders them incapable of becoming legal residents of Holland.  By including restrictions on intent to reside in the United States in the definition of some classes of aliens, Congress intended that some aliens are inadmissible if their purpose in coming to the United States was to immigrate permanently.[7]  It is also clearly the intent of Congress that, in the absence of an adjustment of status, aliens belonging to immigration classifications where permanent residence was prohibited who seek to establish domicile are to be deported.[8]  Illegal aliens are detainable and deportable, and may be barred either permanently or for a minimum ten years from reapplying for legal admission to the United States.[9]

 

A local or state government official who accepts a matricula consular as a stand-alone identification document would be subject to criminal liability under any of four related alien smuggling felonies: 8 U.S.C. 1324(a)(1)(A)(iii), 8 U.S.C. 1324(a)(1)(A)(iv), 8 U.S.C. 1324(a)(1)(A)(v)(I) and 8 U.S.C. 1324(a)(1)(A)(v)(II). 

 

First, INA §274(a)(1)(A)(iii) makes it a felony for any person to (i) “conceal, harbor, or shelter from detection” (ii) any alien (iii) in any place, including any building or means of transportation, (iv) knowing or in reckless disregard of the fact that the alien has come to, entered, or remained in the U.S. in violation of law.”[10] 

 

“Harboring” includes any conduct that tends to substantially help an alien to remain in the United States unlawfully.[11]  Providing housing for illegal aliens, assistance in obtaining employment, coaching aliens to claim legal status, and attempts to prevent detection by the authorities have all been held to constitute harboring.[12]  Harboring can occur outdoors as well as in a building. Criminal liability for harboring could arise from acceptance of a matricula consular – which establishes official knowledge of illegal alien status­-- by a local government agency that, for example, provided housing or utility assistance, made referrals to a public or private job assistance program, or detained matricula presenters for violation of city ordinances and released them without verifying their immigration status with the INS.

 

“Sheltering from detection” does not need to be clandestine.[13] The government does not need to show intent to evade federal immigration enforcement officials, but only that the defendant’s conduct “tend[ed] directly or substantially to facilitate an alien’s remaining in the United States in violation of law.”[14]  Taking actions that facilitate an alien’s employment have been held to constitute acting “in reckless disregard” of a worker’s illegal status.[15]

 

It is well established that “any person” is subject to criminal liability for Section 1324 felonies and that the term is to be construed broadly.[16]  It clearly reaches public officials and government employees. The claim that Section 1324 felonies apply only to professional smugglers or operators of sweatshops has been rejected.[17]

 

It is not difficult to document that the explicit intent of the Mexican government’s contacts with officials and employees of the City of Holland is to facilitate Mexican nationals residing and obtaining employment in this country in violation of United States law.  For example, official correspondence from the Mexican Consul General at Miami, Rodriguez Arriaga, dated June 24, 2002 to the Mayor of Lake Worth, Florida stated that the Mexican government considers Mexican national matricula holders to be “residents” of that jurisdiction, and cited taxpayer-funded legal services, medical services, and other social services for which it claimed cardholders need and deserve legal access.  (The City of Lake Worth subsequently rejected the Mexican government’s request to accept the consular card as valid identification for municipal services.)

 

            Second, INA §274(a)(1)(A)(iv) makes it a felony for any person to (i) encourage or induce (ii) an alien (iii) to come to, enter or reside in the U.S. (iv) knowing or recklessly disregarding the fact that the alien’s entry or residence is in violation of law.[18]  This statute is intended to criminalize a broad range of activities that assist illegal aliens in the United States.

 

“Encourage” means to knowingly instigate, help, or advise.  “Induce” means to knowingly bring on or about, to affect, cause, or influence an act or course of conduct.[19]  “Encouraging” includes 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.”[20]  To prove that an official or employee of the City of Holland “encouraged or induced” illegal Mexican aliens, all that a prosecuting party needs to establish is that City representatives knowingly helped or advised the aliens.[21] 

 

Specific actions found to constitute encouraging include counseling illegal aliens to continue working in the U.S. or assisting them to complete applications with false statements or obvious errors or omissions.[22]   The fact that the illegal alien may be a refugee fleeing persecution is not a defense to this felony, since U.S. law and the UN Protocol on Refugees both require that an alien claiming asylum must report to immigration authorities “without delay” upon entry to the U.S.

 

            Third, it is a felony to engage in any conspiracy to commit any of the bringing in, harboring, sheltering, transporting, or encouraging felonies in INA §274(a)(1)(A).[23]  Indictments for INA §274(a) smuggling crimes can include conspiracy as a separate offense.[24]  The three elements of criminal conspiracy are (i) an agreement by two or more persons to engage in illegal activity, (ii) an overt act by at least one person taken in furtherance of the agreement, and (iii) intent to commit the illegal activity.[25]  The June 24, 2002 letter from the Mexican Consul General described above – or the similar statements from Mr. Meza Estrada  -- documents the first element.  The subsequent adoption of an implementing regulation or policy constitutes the second element.  The criminal intent element is met as a matter of law, as discussed above.

 

Fourth, the INA §274(a) aiding and abetting statute eliminates the distinction between principals and accessories in alien smuggling crimes.  Aiding and abetting relates to conduct after the alien has entered the U.S.[26]  The statute allows conviction for an alien smuggling felony even if not all of the elements of the alien smuggling crime are proven. Persons indicted for criminal alien smuggling offenses can also be charged separately with aiding and abetting a substantive federal offense.[27] 

 

Convictions for felony aiding and abetting have been upheld where the defendant, acting in concert with others, simply encouraged the others to violate federal alien-smuggling statutes.[28]  Aiding and abetting an illegal entry is distinct from smuggling, transporting, or harboring offenses and is not a lesser-included offense of these crimes.

 

            Persons convicted of conspiracy or aiding and abetting immigration crimes are subject to the same fines and prison sentences imposed for the primary offenses.[29]

 

There is no possible policy or humanitarian argument 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 or civil sanctions, regardless of claims that member’s convictions require them to assist aliens.[30]  The First Amendment does not protect actions that aid illegal aliens to remain in the United States.[31] 

 

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.[32]  Identity is not a constitutionally protected privacy right, and an illegal alien has no expectation of privacy from another person’s knowledge of his or her immigration status.[33]  As discussed below, these principles of federal law clearly restrict the actions of local government agencies and personnel.

 

Acceptance of consular identification by a local government constitutes a regulatory scheme that has a direct and substantial effect on immigration, is in conflict with federal law, and thus is preempted on Constitutional grounds. 

 

As the preamble to the draft ordinance correctly notes, federal law prohibits, with narrow exceptions, the provision by local or state government agencies of any public benefits to any alien who is not entitled to such benefits under federal law.[34]  This prohibition applies to municipal proposals to extend such public benefits to a class of aliens typically defined as “persons whose only identity document is a matricula consular card issued by the Mexican government.”  This municipal statutory scheme, which is explicit in the draft ordinance, is an impermissible regulation of immigration, since it is not tied to and directly conflicts with federal standards, both in its classification system and effect on enforcement.

 

A fundamental principle of the Constitution is that Congress has the power to preempt state law.[35]  Acts of Congress preempt state law when (1) Congress expressly provided for preemption, (2) Congress intended to "occupy the field," or (3) the state law conflicts with the congressional statute at issue.[36]

 

The power to regulate immigration is unquestionably exclusively federal power, and any ordinance that regulates immigration is unconstitutional and thus proscribed.[37]  Congress intended federal law to “occupy the field” of immigration.[38]   A state or local government agency can neither add to nor take from federal conditions lawfully imposed upon the activities or residence of aliens in the United States.[39]

 

A state or local regulation is preempted to the extent of any conflict with a federal statute.[40]  The Supreme Court will find preemption where it is impossible for a local government employee or a private party resident of the jurisdiction to comply with both a local regulation or policy and federal immigration law.[41]  The draft resolution at issue would also be preempted on the ground that under the circumstances, it would stand as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.[42]

 

The Constitution does not permit a local or state government to unilaterally decide, based on the advice or desires of a foreign government, that its own parochial concerns override the will and intent of Congress.  Congress has firmly established that there is a significant public interest in the effective enforcement of immigration law.[43]  The whole of Title 8 of the United States Code, regarding aliens and naturalization, is founded on the legality of distinguishing between citizens and aliens in the federal regulatory scheme.[44] 

 

Acceptance of consular ID s by state and local government agencies constitutes a practice of unlawful resistance to federal immigration law. 

 

Official local government acceptance of the matricula consular is intended to and in fact resists and impedes the enforcement of immigration law by federal officials, and is therefore preempted by the Supremacy Clause of the United States Constitution.[45]

 

The Mexican government has claimed, in the statement by Mr. Meza Estrada in the Holland Sentinel, that “Mexican authorities… made an agreement with American federal authorities to facilitate the identification of Mexican [sic] living in this country.” This statement is simply a lie.  No such agreement exists. 

 

That the Mexican government would make such a transparently false statement in support of its “negotiations” with the City should place the City on notice that claims about the legality of the proposed City actions lack credibility.

 

 Cooperation among law enforcement at all levels is essential to any effective governmental response to the criminal and terrorist aspects of the illegal alien problem.  Nonetheless, in the 1980s and 1990s various cities and other local governments enacted laws, often referred to as refuge, sanctuary or non-cooperation laws, with the explicit intention of restricting or blocking immigration law enforcement in their jurisdictions.[46]  In response to widespread citizen complaints about these actions, Congress enacted the 1996 welfare reform[47] and illegal immigration reform[48] statutes to make restrictions on the sharing of immigration or citizenship status information by any government entity or official unlawful.

 

It is now settled that no federal, state, or local government agency can be prohibited from maintaining or exchanging information regarding the citizenship or immigration status of any individual with the INS.  In 1989, New York City issued a mayoral decree prohibiting city employees from providing federal immigration authorities with information concerning the immigration status of any alien except in limited criminal investigations initiated by federal agents.[49]  Similar policies appeared in other jurisdictions with strong ethnic or open borders lobbies.

 

            Immediately after Congress enacted IIRAIRA, New York City sued the federal government, claiming the two statutes violated the Tenth Amendment and exceeded the plenary power over immigration granted to Congress.[50]   New York City argued that it could elect not to participate in a federal regulatory program, and that the federal government could not disrupt the operations of local governments through legislation.  The federal district court rejected New York’s claims in 1997.[51] 

 

The Second Circuit Court of Appeals confirmed that the statutory ban on non-cooperation policies is constitutional.[52]  A policy protecting only non-citizens was not a general rule that protected confidential information for citizens and aliens alike, but instead had the intent and effect of obstructing federal officials “while allowing local employees to share freely the information in question with the rest of the world.”[53]  The Court of Appeals held that New York City had no right to “passive resistance,” because such claims violate the Supremacy Clause of the U.S. Constitution:

 

“ The City's sovereignty argument asks us to turn the Tenth Amendment's shield against the federal government's using state and local governments to enact and administer federal programs into a sword allowing states and localities to engage in passive resistance that frustrates federal programs.  If Congress may not forbid states from outlawing even voluntary cooperation with federal programs by state and local officials, states will at times have the power to frustrate effectuation of some programs.  Absent any cooperation at all from local officials, some federal programs may fail or fall short of their goals unless federal officials resort to legal processes in every routine or trivial matter, often a practical impossibility.  For example, resistance to Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), was often in the nature of a refusal by local government to cooperate until under a court order to do so [emphasis added].”[54]

 

Local government acceptance of consular ID violates Constitutional provisions vesting conduct of foreign affairs in the federal government.

           

            Various express and implied constitutional clauses vest the conduct of foreign affairs in the federal government, almost to the exclusion of individual states and local governments.[55]

           

            A state or municipal ordinance or policy would have an impermissible substantial effect on a foreign country (i.e. Mexico) where such policy was implemented at the request of a foreign government and provides preferential legal, economic and social treatment to a class of persons who are foreign nationals present in the United States in violation of federal law, and who are also prohibited by federal law from participation in economic activities – employment, local contracting, local commercial sales, operating a business, participation in municipally-funded programs and use of non-emergency public funds and services, etc, within that jurisdiction.

 

            Official acceptance of Mexican consular documentation without supporting INS documentation by departments of the City of Holland, for the purposes of facilitating unrestricted movement and providing government services and benefits, clearly has more than an incidental effect on the foreign country of Mexico since, as Mexican Consul Meza Estrada acknowledges in his letter, widespread local acquiescence is the objective of the Mexican Foreign Ministry’s “Programa Integral de Mejoramiento de los Servicios Consulares en los Estados Unidos de America.”[56]  This program is one of the most significant foreign initiatives undertaken by the Government of Mexico. It is intended to subvert U.S. federal law and the fundamental liberty interest of American citizens in sovereignty, by negotiating “mini-treaties” with local governments that contain assertions of extraterritorial rights of protection and jurisdiction over millions of Mexican nationals who are illegal aliens, not unlike the Concessions maintained by foreign colonial powers against China and the Ottoman Empire into the early part of the last century. 

 

The sweeping nature of most local ordinances purporting to legalize acceptance of Mexican consular identification is intended to advance the interests of Mexicans, not to protect American citizens. It impermissibly impacts the foreign affairs of the United States by undermining the deterrence and prevention of illegal Mexican immigration into the United States. For example, in the Lake Worth case, the Mexican government expressly acknowledged that its negotiations with the local government to enact and implement such an ordinance were intended to be a bellwether for similar laws throughout the state of Florida and other states.[57]

 

Acceptance of consular identification by a local government denies citizens equal protection of the laws under the Fourteenth Amendment.

 

            A local government agency custom or policy that extends affirmative benefits to a suspect class where such preferences are otherwise prohibited by federal law, such as in this case the protection from arrest and access to government services, violates the constitutional rights of a broad class of citizens and legal non-citizen residents to due process and equal protection of the law.[58] 

 

A policy or custom of acceptance of consular identification by a state or a political subdivision of a state deprives legal residents of the jurisdiction of a constitutional right under color of state law.[59]  This violation is by its nature ongoing. Citizens, who have a constitutional right to expect the protection of federal laws prohibiting unauthorized activities by non-citizens applied in a uniform and nondiscriminatory manner, have been denied equal protection when a police department, directed by state or local government officials, accepts consular identification cards in a manner that encourages or assists persons selected on the basis of nationality or alienage to conduct such unlawful activities.[60]

 

Aggrieved residents may sue in state or federal court to block such unlawful policies, and may sue officials and employees in their official or private capacities for violations of their rights.[61] 

 

State officials do not possess Eleventh Amendment immunity or qualified immunity when sued in their official capacity for prospective injunctive or declaratory relief to end the statutory and constitutional violations discussed in this letter.[62]  Qualified immunity does not shield government officials, or private parties acting in concert with public officials, from complaints for injunctive relief.[63]

 

Mr. Volkema has told me that it is his hope that this letter will help convince the City of Holland to reject the Mexican Consulate’s unlawful and deceitful suggestions.  Mr. Volkema urges the City Council to inform Mr. Meza Estrada that, while it understands his duty to represent the interests of Mexican citizens, the Council’s sworn responsibility is to uphold the law of the land, and that in this case those interests are in conflict.  Should you disregard his advice, it is my understanding that Mr. Volkema would feel obligated for patriotic reasons to protect the citizenry’s interests in court.

 

I would be happy to discuss the concerns raised in this letter with your legal advisors.

 

 

Sincerely,

 

 

 

Michael M. Hethmon

FAIR Staff Attorney

 

 

cc:        Thomas Volkema

            Andrew J. Mulder (Officer of the City Attorney)

Dan Stein (FAIR)

Susan A. Tully (FAIR)



[1] Mr. Meza Estrada has published the views of the Mexican government in an article “Accept matricula as valid ID,” posted Jan. 15, 2003 in The Holland Sentinel Online at www.hollandsentinel.com/stories/011503/opi_011503056.shtml.

[2] Patel v. Ashcroft, No. 01-3365, at 14 (3rd Cir., June 20,2002) [emphasis added].

[3] 8 U.S.C. 1301 et seq.

[4] Id.

[5] Gallegos-Covarrubias v. Del Guercio, 251 F.2d 519, at 521 (9th Cir. 1958).

[6] Carlson v. Reed, 249 F.3d 876 (9th Cir. 2001).  See also Hein v. Arkansas State Univ., 972 F. Supp 1175 (E.D. AR 1997);

[7] 8 U.S.C. 1184(b); INA §214(b).

[8] Elkins v. Moreno, 435 U.S. 647, at 664-65 (1978).

[9] 8 U.S.C. 1182(a)(9)(B); INA §212(a)(9)(B).

[10] 8 U.S.C. 1324(a)(1)(A)(iii), INA §274(a)(1)(A)(iii).

[11] U.S. v. Lopez, 521 F.2d 437 (2nd Cir. 1975).

[12] U.S. v. Kim, 193 F.3d 567, at 574 (2nd Cir.1999).

[13] U.S. v. Rubio-Gonzalez, 674 F.2d 1067 (5th Cir. 1982).

[14] U.S. v. Aguilar, 871 F.2d 1436, at 1463 (9th Cir. 1989), [emphasis added].

[15] U.S. v. Kim, supra.

[16] U.S. v. Zheng, No. 01-1551 (11th Cir. Sep. 17, 2002); U.S. v. Oloyede, 982 F.2d 133 (4th Cir. 1993); Villegas-Valenzuela v. INS, 103 F.3d 805 (9th Cir. 1996).

[17] U.S. v. Zheng, at 12; U.S. v. Sanchez-Vargas, 878 F.3d 1163, at 1169 (9th Cir. 1989).

[18] 8 U.S.C. 1324(a)(1)(A)(iv), INA§ 274(a)(1)(A)(iv).

[19] U.S. v. He, 245 F.3d 954 (7th Cir. 2001).

[20] U.S. v. Oloyede, at 136.

[21] U.S. v. He, at 957-59.

[22] U.S. v. Oloyede, at 137.

[23] 8 U.S.C. 1324(a)(1)(A)(v)(I), INA §274(a)(1)(A)(v)(I).

[24] INA §274 (a)(1)(A)(v) makes conspiracy to commit or aiding and abetting a §274(a) offense separate felonies.  The general conspiracy to commit any offense against the United State statute (18 U.S.C. 371) is also often added to indictments for alien smuggling offenses.

[25] U.S. v. Colwell, 2001 WL 247563 (9th Cir. Mar.13, 2001).

[26] 8 U.S.C. 1324(a)(1)(A)(v)(II), INA §274(a)(1)(A)(v)(II; U.S. v. Mussaleen, 35 F.2d 692, (2nd Cir. 1994).

[27] 18 U.S.C. §2.  U.S. v. Angwin, 263 F.3d 979 (9th Cir. 2001).

[28] U.S. v. Victor Ramirez-Martinez, 273 F.3d 903 (9th Cir. 2001), citing Pinkerton v. U.S., 328 U.S. 640, at 646 (1946); U.S. v. Merkt, 794 F.2d 950, at 953 (5th Cir. 1986), cert. denied 480 US 946.

[29] 8 U.S.C. 1324(a)(1)(B), INA §274(a)(1)(B).

[30] AFSC v. Thornburgh, 961 F.2d 1405 (9th Cir. 1992), Intercommunity Center for Peace and Justice v. INS, 910 F.2d 42 (2nd Cir. 1990).

[31] U.S. v. Merkt, supra.

[32] Plyler v. Doe, 457 U.S. 502, at 32-33 (1982).

[33] U.S. v. Rodriguez-Arreola, 270 F.3d 611 (8th Cir. 2001).

[34] 8 U.S.C. 1621.

[35] Art. VI, cl. 2; Gibbons v. Ogden, 9 Wheat. 1, at 211 (1824); Savage v. Jones, 225 U.S. 501, at 533 (1912); California v. ARC America Corp., 490 U.S. 93, at 101 (1989).

[36] Crosby v. National Foreign Trade Council, 530 U.S. 363 (2000); see also English v. General Elec. Co., 496 U.S. 72, 79 n. 5, 110 S.Ct. 2270, (1990) (recognizing that these categories are not "rigidly distinct"); both cited in In Re World War II Era Japanese Forced Labor Litigation, 164 F.Supp.2d 1160, (N.D.Cal. 2001).

[37] De Canas v. Bica, 424 U.S. 351, at 354-55 (1976).

[38] Id., at 100; cf. United States v. Locke, 529 U.S. 89, 120 S.Ct. 1135, at 1151 (2000), citing Charleston & Western Carolina R. Co. v. Varnville Furniture Co., 237 U.S. 597,at  604 (1915).

[39] Takahashi v. Fish & Game Comm’n, 334 U.S. 410, at 419 (1948).

[40] Hines v. Davidowitz, 312 U.S. 52, at 66-67 (1941); ARC America Corp., supra, at 100-101; Locke, supra, at 1148.

[41] See, e.g., Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, at 142-143 (1963).

[42] Hines, supra, at 67.

[43] U.S. v. Brignoni-Ponce, 422 U.S. 873, at 878 (1975); INS v. Miranda, 459 U.S. 14, at 19 (1982).

[44] Mathews v. Diaz, 426 U.S. 67, at 78 fn 12 (1976).

[45] Art. VI Cl.2; McCulloch v. Maryland, 17 U.S. 316 (1819).

[46] Staff Testimony, Senate Permanent Subcommittee on Investigations, before the U.S. Senate Commission on Governmental Affairs (Nov. 1993).

[47] Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA), P.L. 104-193, 110 Stat. 2105, §434, codified as 8 U.S.C. 1644:  “Notwithstanding any other provision of Federal, State, or local law, no state or local government entity may be prohibited , or in any way restricted, from sending to or receiving from the Immigration and Naturalization Service information regarding the immigration status, lawful or unlawful, of an alien in the United States.”

[48] Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA), P.L. 104-208, 110 Stat. 3009, §642:

“(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 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.”

[49] Executive Order 124, “City Policy Concerning Aliens, ” August 7, 1989:

“Section 2:  Confidentiality of Information Respecting Aliens.  

a. No City officer or employee shall transmit information respecting any alien to federal immigration authorities unless

  (1) such officer's or employee's agency is required by law to disclose information respecting such alien, or

  (2) such agency has been authorized, in writing signed by such alien, to verify such alien's immigration status, or

  (3) such alien is suspected by such agency of engaging in criminal activity, including an attempt to obtain public assistance benefits through the use of fraudulent documents.  

b. Each agency shall designate one or more officers or employees who shall be responsible for receiving reports from such agency's line workers on aliens suspected of criminal activity and for determining, on a case by case basis, what action, if any, to take on such reports.  No such determination shall be made by any line worker, nor shall any line worker transmit information respecting any alien directly to federal immigration authorities.  

c. Enforcement agencies, including the Police Department and the Department of Correction, shall continue to cooperate with federal authorities in investigating and apprehending aliens suspected of criminal activity.  However, such agencies shall not transmit to federal authorities information respecting any alien who is the victim of a crime.  

“Section 3. Availability of City Services to Aliens.  

  Any service provided by a City agency shall be made available to all aliens who are otherwise eligible for such service unless such agency is required by law to deny eligibility for such service to aliens.  Every City agency shall encourage aliens to make use of those services provided by such agency for which aliens are not denied eligibility by law.”

[50] New York City claimed it had over 400,000 illegal aliens at that time, many of them living in mixed households with legal aliens and U.S. citizens, and that granting them confidential treatment would insure that illegal aliens were not afraid to report crimes or seek treatment for contagious diseases.

[51] City of New York v. U.S., 971 F.Supp 789, (S.D. NY 1997).

[52] Id; 179 F.3d 29, (2nd Cir. 1999), cert. denied, 120 S. Ct. 932 (2000).

[53] Id., at 36.

[54] Id., at 35.

[55] U.S. Constitution, Art. I §8, Cls. 1,3,4,10 and 11, §10, cls. 1,2 and 3; Crosby v. National Foreign Trade Council, fn 33 supra.

[56] Translation: The Integral Program for the Improvement of Consular Service in the United States of America.

[57] “Resulta de gran importancia que las autoridades estatales y locales en el estado de la Florida reconozcan este documento como un vehiculo efectivo para la realizacion de tramites y el acceso al  diversos servicios.  En estados como California, Texas, Louisiana, Indiana, Dakota del Norte, Dakota del Sur, Iowa, Nebraska, y Nevada, entre otros, la matricula consular goza ya de aceptacion oficial…”  Letter from Mexican Consul General, June 24, 2002.  Translation:  It is an objective of great importance that the state and local authorities in the state of Florida recognize this document as an important means for conducting transactions and obtaining access to diverse services. In states such as California, Texas, Louisiana, Indiana, North Dakota, South Dakota, Iowa, Nebraska and Nevada, among others, the matricula consular has already gained official acceptance…

[58] Hopwood v. Texas, 78 F.3d 932 (5th Cir. 1996); Pyke v. Cuomo, 258 F.3d 107, at 108-9 (2nd Cir. 2001).

[59] 42 U.S.C. 1983.

[60] E.g. Watson v.  City of Kansas City, 857 F.2d 690, at 694  (10th Cir. 1988) [Although there is no general constitutional right to police protection, the state may not discriminate in providing such protection.]

[61] Yellow Freight Systems v. Donnelly, 494 U.S. 820 (1990).

[62] Burnham v. Ianni, 119 F.3d 668, at 673 (8th Cir. 1997); Ramirez v. Oklahoma Dept. of Mental Health, 41 F.3d 584, 588-89 (10th Cir. 1994) [11thAmdt. immunity]; Kikamura v. Hurley, 242 F.3d 950, at 956 (10th Cir. 2001) [qualified immunity].

[63] Wyatt v. Cole, 504 U.S. 158 (1992).



Immigration Daily: the news source for
legal professionals. Free! Join 35000+ readers
Enter your email address here: