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A bill that would authorize state and local authorities
to enforce immigration law and impose civil and criminal penalties under
state and local laws for immigration violations has been offered in the
Senate. Introduced on Oct. 5, 2005, by Sen. Kay Bailey Hutchison
(R-TX), the Illegal Immigration Enforcement and Empowerment Act (S.
1823) would also authorize the Dept. of Homeland Security (DHS) to
establish a volunteer "border marshal" program made up of trained police
and peace officers. Despite its intent to establish explicit federal
statutory authority for states and localities to engage in immigration
law enforcement, the bill leaves many key questions unanswered.
This legislation would give a state or unit of
local government the option to "investigate, identify, apprehend,
arrest, detain, prosecute, and impose criminal or civil penalties" on
individuals who violate federal immigration law or state laws based on
federal immigration law. The bill would place restrictions on the
penalties that could be imposed and require that the federal government
identify an individual as having violated immigration law before the
state or local government unit could impose a penalty.
Authorizing a state to prosecute and impose
criminal or civil penalties goes well beyond the Homeland Security
Enhancement Act of 2005 (HSEA, S. 1362), which purports to recognize the
"existing inherent authority of States, law enforcement personnel of a
State or a political subdivision of a State . . . to investigate,
identify, apprehend, arrest, detain or transfer to Federal custody
aliens in the United States." Under the HSEA, the federal government
retains its exclusive authority to prosecute and impose criminal or
civil penalties for violations of immigration law. The Hutchison bill
does not explain how state authorities would prosecute civil violations
of federal immigration law, which take place under procedures and rules
specified in the Immigration and Nationality Act.
The bill also would authorize states to create
their own regulations to enforce federal immigration law, so that states
would be able to dictate how federal laws are enforced. For example, a
sheriff in New Hampshire recently attempted to prosecute undocumented
immigrants for criminal trespassing. A state court dismissed the
trespassing charge, ruling that immigration enforcement is the sole
province of the federal government. S. 1823 would authorize states to
undertake such prosecutions.
The bill provides that no penalty may be
imposed by a state for an immigration violation unless the individual
has been "identified" by the federal government as having violated a
federal immigration law. But it does not require that such
identifications be based on any administrative or judicial determination
of an immigration violation having occurred. Nor does the bill require
local or state police personnel to be trained in immigration law
enforcement.
In addition, the legislation would give the
secretary of DHS the option to create a pilot Volunteer Border Marshal
Program to assist DHS in securing the border. The volunteers would have
to be "state-licensed peace officers," which are defined as any employed
or retired law enforcement agent who is (or was) licensed to enforce
state or local penal laws. The bill merely requires that the peace
officers be well trained before becoming border marshals, without
describing in detail what type of training would be required. Hutchison
has called her proposal a direct response to the Minuteman Project,
which consists of a group of private citizens who gained media attention
for patrolling parts of the U.S.-Mexico border. The group's original
plan to act as a civilian border patrol for a month gained wide media
attention, garnering the loose coalition national prominence.
Since that time, the activities of the
Minuteman Project and similar anti-immigrant groups have grown.
Participants in U.S. suburbs, such as Herndon, VA, have been monitoring
sites where day laborers gather in hopes of being hired by homeowners or
contractors. A Minuteman spin-off in Utah organized protests of banks
that accept consular identification cards, ID cards issued by the
consulates of Mexico and other countries to their citizens living in the
U.S. A related group in Colorado has protested the presence of Mexican
comic books in a public library. Some individuals are planning a
citizen patrol of the Canadian border. Minutemen Project participants
have been involved in incidents in which day laborers were harassed,
immigrant rights activists threatened, and border-crossers shot at.
Though Hutchison's bill aims to place border enforcement solely into the
hands of police professionals, immigrant rights advocates are alarmed by
its failure to require local and state police, volunteer or otherwise,
to be trained in immigration enforcement.
By
Jennifer Hojaiban, NILC
research associate | hojaiban@nilc.org
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