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State of the State: Lacking A Workable Federal Guide, States Attempt to Address Immigration

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mattpenning.com 2014
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WUIS/Illinois Issues

Pushed back on the agenda by health care reform and attempts to address the lagging economy, national immigration reform — a campaign pledge of President Barack Obama — has yet to materialize. At best, the federal government does not have a workable comprehensive guide for states on the issue, and at worst, it is sending them contradictory messages. Meanwhile, states across the country have started to address immigration in their own ways. 

Perhaps the most infamous recent case of a state taking up immigration policy is Arizona’s controversial law that, if courts allow it to go into effect, would require police officers to verify the citizenship or legal right to be in the country of anyone they apprehend and reasonably suspect to be here illegally. This means that under the Arizona law, if the police simply stop someone for a traffic violation and suspect that he or she is undocumented, they must “make a reasonable attempt” to determine whether the person is in the country legally. The law requires that the immigration status of persons arrested without identification must be verified by the federal government before they can be released. It would also allow citizens to sue law enforcement entities that they think are not doing enough to combat illegal immigration. Provisions of the law have been blocked by a federal court after the U.S. Department of Justice filed a lawsuit claiming the state had overstepped its bounds on immigration policy. 

When defending the law, Arizona officials point to the fact that the federal government has stepped up cooperation with local law enforcement under Obama and former President George W. Bush as an indicator that state and local governments should play a larger role in controlling immigration. 

“Congress contemplated state assistance in the identification of undocumented immigrants. We add, however, that Congress contemplated this assistance within the boundaries established in [federal law], not in a manner dictated by a state law that furthers a state immigration policy,” Judge Richard Paez wrote in the appellate court’s ruling. “Contrary to the state’s view, we simply are not persuaded that Arizona has the authority to unilaterally transform state and local law enforcement officers into a state-controlled [Department of Homeland Security] force to carry out its declared policy of attrition.”

The court found that Arizona’s law had affected the United States’ relations with Mexico by, among other things, causing that country to postpone a natural disaster emergency management agreement with the United States. The appellate court judges cited potential interference in international relations as a primary reason why states cannot set their own immigration policies. “That 50 individual states or one individual state should have a foreign policy is absurdity too gross to be entertained,” said Judge John Noonan, another jurist on the appellate court panel that heard the case. “In matters affecting the intercourse of the federal nation with other nations, the federal nation must speak with one voice.”

Arizona Gov. Jan Brewer says she will appeal the ruling to the U.S. Supreme Court. Her recent signature on a bill also set a plan into motion to build more fencing on Arizona’s border with Mexico using private donations for materials and prisoners for labor. The state plans to solicit donations through a website. 

Arizona’s legal battles have not deterred other states from delving into immigration policy. As of mid-May, 52 major pieces of legislation dealing with the topic of immigration had been introduced in 30 state legislatures, including Illinois. Illinois House Bill 1969, also dubbed the “Taxpayers Protection Act,” contains many of the provisions of the Arizona law, including a requirement that police check the immigration status of individuals during traffic stops and before releasing anyone who has been arrested. Rep. Randy Ramey, a Carol Stream Republican, sponsors the bill, which is currently languishing in the Rules Committee with little-to-no chance of ever seeing daylight. 

The Georgia legislature has approved a bill similar to Arizona’s law. As of press time, Georgia Gov. Nathan Deal said he intended to sign it into law. U.S. Homeland Security Secretary Janet Napolitano dodged questions about whether the U.S. Justice Department would seek to block parts of that bill before they could go into effect, as it did with the Arizona law. 

Napolitano said that states attempting to write their own immigration laws are incorrectly claiming that the federal government is doing nothing to address the problem. 

“I think these efforts at the state-by-state level ... they’re predicated on a falsity. The falsity is that there has been nothing done, that the border somehow is out of control. That is incorrect,’’ she told Reuters news service in May. 

However, Illinois officials say the feds are sending mixed messages about the intent of one enforcement policy. That is why Gov. Pat Quinn says Illinois will no longer participate in the federal Secure Communities Program, making it the first state signed on to the program that now wants to pull out entirely. Under the program, the fingerprints of any person who is arrested in a participating jurisdiction would be checked by the federal Immigration and Customs Enforcement Agency for immigration violations. 

Quinn froze enrollment in the program last November, capping participation at the 26 counties that had already signed up. He has since notified the federal immigration agency that the state plans to pull them out of the program under the original contract’s termination clause. Quinn took issue with the program because he says it is not doing what the feds say it was created to do: remove criminals that are in the country illegally. 

The contract Illinois signed with the feds to participate in the program describes it as an “initiative that focuses on the identification and removal of aliens who are convicted of a serious criminal offense and subject for removal.” But according to U.S. Immigration and Customs Enforcement statistics, only about 20 percent of individuals removed from Illinois under the program as of February 28 have been convicted of a serious offense. “We said, ‘Look, this isn’t what we signed up for,’” says Brie Callahan, a Quinn spokeswoman. 

Obama said at a recent town hall event held by Univision that he has shifted the focus of his enforcement policy — which has resulted in the deportation of almost 800,000 people in the last two years, according to the New York Times — to criminals who are in the country illegally. “We have redesigned our enforcement practices under the law to make sure that we’re focusing primarily on criminals. So our deportation of criminals are up about 70 percent. Our deportation of noncriminals are down. And that’s because we want to focus our resources on those folks who are destructive to the community.”

Callahan says Illinois signed on to the program because Quinn’s administration shared the goal of removing “criminals convicted of serious crimes” from the country. She says Quinn is disappointed with the end result of deporting many people who may have been arrested on petty offenses but are far from hardened criminals, or people who were never convicted of a crime at all. “Being in the country illegally is a civil offense, not a criminal offense. … For us, due process is very important.”

She says using the program to deport individuals who were not the target of the original agreement strains law enforcement’s relationship with the immigrant community and makes it less likely that immigrants in the state will report crimes or assist police in investigations for fear of being deported. “It’s very important that to make our communities secure, that people feel that they can call the police and work with the police.”

However, Napolitano says that states cannot opt out of a federal immigration policy, such as Secure Communities, any more than they can create their own. “Where immigration is concerned, the federal government fundamentally sets the policy. Just as states can’t on their own have a [law like Arizona’s] — this is kind of the flipside of that — nor can they exclude themselves from an enforcement tool that we are using.” 

Some local officials in California have claimed they were given the impression by the feds that they could choose to end their agreements to participate in Secure Communities. Rep. Zoe Lofgren of California, who serves on the U.S. House Judiciary immigration subcommittee, has called for an investigation into whether the Immigrations and Customs Enforcement Agency misled states and municipalities about the level of commitment they were making when they signed onto Secure Communities. California and Illinois lawmakers are considering legislation that would allow local jurisdictions to opt out.

The president renewed his push for immigration reform in May, saying that he wants to make a bipartisan effort to make the country more secure while “addressing the status” of the millions of people working in the country who do not have citizenship. 

Illinois Democratic U.S. Rep. Luis Gutierrez says he is encouraged by the message Obama is sending. “We’re heading in the right direction. I’m more optimistic than I have been in recent memory,” Gutierrez told National Public Radio. However, he says he is skeptical that the political appetite for immigration reform currently exists in Washington, D.C., since Democrats lost the majority in the U.S. House and failed during the lame duck session to pass bills such as the DREAM Act, which would have offered citizenship to children brought to the country illegally if they attend college or join the military. “It’s very unlikely we’re going to do it now.”

Until comprehensive reform to immigration policy is passed at the national level and a clear protocol is given to the states, there will be more cases — like those in Illinois and Arizona — of states trying to sort things out for themselves, much to the chagrin of the feds.

 

States attempting to write their own immigration laws are incorrectly claiming that the federal government is doing nothing to address the problem. —Janet Napolitano Homeland Security secretary

 

Illinois Issues, June 2011

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