ISAAC EDUCATION:
The History of U.S. Immigration Law- Part 6 (1996-Present)
In 1996, The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) severely curtailed the immigrants' access to courts and expanded the power of the government to remove them from the country. It established a special deportation procedure for immigrants that were considered terrorists and limited court review and habeas corpus relief. It also expedited removal for a broad range of crimes.
That same year, Congress then passed the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA). This law incorporated many AEDPA removal provisions. The major change was that the definitions of "conviction" and "aggravated felony" were broadened significantly. This was a major change because many forms of relief from deportation were eliminated for immigrants convicted of "aggravated" felonies. In addition, it created mandatory detention for some immigrants with criminal convictions and limited judicial review.
The Nicaraguan Adjustment and Central American Relief Act (NACARA), Tit. II., Div. A, Pub. L. No. 105-100, 111 Stat. 2160 (1997), was passed in 1997. This law allowed certain Nicaraguans and Cubans who had been present in the country since 1995 to adjust their immigration status. You can learn more here. Additionally, Congress passed the Haitian Refugee Immigration Fairness Act of 1998, Pub. L. No. 105-277, Div. A., §101(h), Tit. IX, 112 Stat. 2681 (1998), which also allowed special adjustment of status for certain Haitians. In 2000, the Victims of Trafficking and Violence Protection Act, Legal Immigration Family Equity Act (LIFE Act), and the American Competitiveness in the 21st Century Act, were also passed.
Since 9/11, Congress has passed the USA PATRIOT ACT, which contained numerous immigration provisions. The INS was abolished and the USCIS was created in the Homeland Security Act of 2002. In 2005, the REAL ID Act, passed, which, among other things, made broad procedural and jurisdictional changes to immigration proceedings. Congress attempted but failed to pass comprehensive immigration reform in the June 2007. Most commentators believe that Congress will not take up any major reforms until late 2009.
Facts about Immigration: Separating the wheat from chaff (Luke 3:17).
The "Sanctuary" City:
The term "sanctuary city" has no legal meaning or significance. It is a term that does not have a precise definition and, as a result, creates confusion and misunderstanding. The term "sanctuary" is defined by "BLACK'S LAW DICTIONARY" this way:
In old English law, a consecrated place which had certain privileges annexed to it, and to which offenders were accustomed to resort for refuge, because they could not be arrested there, nor the laws be executed. In general, any holy or consecrated place.
BLACK'S LAW DICTIONARY WITH PRONUNCIATIONS. Fifth edition.Henry Cambell Black, M.A.; West Publishing Co., St. Paul, Minnesota, 1979 (emphasis added).
As we will see, no state, county, or city can provide an unauthorized alien immunity from federal immigration law.
1. The historic roles between federal and state law enforcement
Generally, federal law trumps state law. See Art. VI, Sect. 6, United States Constitution. Additionally, the "[p]ower to regulate immigration is unquestionably exclusively a federal power." DeCanas v. Bica, 424 U.S. 351, 354-55 (1976). Thus, no state, county, or city can offer legal immunity to an individual who has violated federal immigration law. Because of the supremacy of federal law in this area, an ad hoc division of duties between federal immigration officials and local law enforcement has developed. A 2006 Congressional Research Service Report ("CRS") described the relationship this way:
Congress defined our nation's immigration laws in the Immigration and Nationality Act (INA) (8 U.S.C. §§1101 et seq.), which contains both criminal and civil enforcement measures. Historically, the authority for state and local law enforcement officials to enforce immigration law has been construed to be limited to the criminal provisions of the INA; by contrast, the enforcement of the civil provisions, which includes apprehension and removal of deportable aliens, has strictly been viewed as a federal responsibility, with states playing an incidental supporting role.
You can read the whole report here. There are many reasons why some local law enforcement agencies and municipalities have been reluctant to take on the historically federal responsibility of detention and deportation. These local entities cite their lack of training, manpower, resources, money, the potential for civil rights violations, and the erosion of public trust that such activities may cause.
Sanctuary in 1980s
In the 1980s, the "sanctuary movement" occurred. During that time, there were some churches that provided refuge to thousands of unauthorized Central Americans that had fled the civil wars in their homelands. The "sanctuary movement" churches provided social services to these immigrants but also refused to cooperate with federal authorities even if required to do so by law. The "sanctuary" offered by the churches offered no legal protection to the immigrants but was used as a form of civil disobedience and protest to raise awareness of the issues. Read about it here. Some church leaders were jailed because of their activities. Read a magazine article from the time period here.
Also during this time, some states and municipalities passed various laws or implemented certain policies that restricted local law enforcement from performing immigration-related detention or apprehension activities. For example, in 1987, Oregon passed Statute §181.850, which prohibited state and local law enforcement personnel from using state money and equipment "for the purpose of detecting or apprehending persons whose only violation of law is that they are persons of foreign citizenship present in the United States in violation of federal immigration laws." The statute did not prohibit the exchange of information with federal immigration officials in order to verify an arrested individual's immigration status nor did it prohibit the arrest of an undocumented immigrant pursuant to a federal warrant. Likewise, in 1989, San Francisco passed the "City and County of Refuge" Ordinance. It prohibited city employees from helping immigration officials with immigration investigations or arrests unless such help was required by federal or state law. You can read more about San Francisco's policies here.
Legislative, Judicial and Administrative responses
In 1996, Congress passed Section 434 of the Welfare Reform Act. It states in relevant part:
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.
A similar provision is found in Section 642 of the Immigration Reform Act. The City of New York challenged the law in federal court but the provision was upheld and is the current law today. See New York v. United States, 179 F.3d 29 (2nd Cir. 1999). It is important to note that this federal law does not require local governments to detain or apprehend illegal aliens. Rather it merely prohibits those entities from specifically restricting their employees and agents from relaying immigration information to immigration authorities.
To further complicate matters, the United States Supreme Court ruled in 1997 that federal authorities cannot direct state or local law enforcement officials to administer or enforce a federal program. See Printz v. United States, 521 U.S. 898, 922 (1997). Thus, Congress cannot force state and local police agencies to apprehend or detain illegal aliens. As a result, the federal government has attempted to enter into certain agreements with local law enforcement agencies in order to administer immigration enforcement at the local level. See 8 U.S.C. §1357(g). These types of agreements are called "cooperation" agreements. According to U.S. Immigration Customs and Enforcement ("ICE"), there are 55 such agreements with various local law enforcement agencies in 18 states across the country.
Usage of the term "Sanctuary City"
Those cities that have opted not to inquire about their residents' immigration status or not enter into "cooperation" agreements with federal immigration officials have been termed "sanctuary cities." The 2006 Congressional Research Services report states:
Most cities that are considered sanctuary cities have adopted a "don't ask-don't tell" policy where they don't require their employees, including law enforcement officers, to report to federal officials aliens who may be illegally present in the country.
The CRS report then lists 32 cities in the United States as having such "sanctuary policies." The CRS report, however, does not discuss how the list was compiled. For example, Austin, Texas is listed as one of the "sanctuary cities." Indeed, the city was sued by the parents of a slain woman who was killed by an illegal alien. The family claimed that Austin's unofficial "sanctuary policy" contributed to her death. In the lawsuit, the city denied that it had such a policy and a federal judge later dismissed the lawsuit on various grounds. Irrespective of its denials and the outcome of the lawsuit, Austin is still considered a "sanctuary city" by the CRS report. As of 2006, Houston, Texas, did have a formal policy which prohibited its police officers from inquiring about the immigration status of people they encounter. Houston officials denied it was a "sanctuary city" as well.
Summary
As noted earlier, the term "sanctuary city" has no legal significance. It also does not have a precise definition. It is generally used to signify states, counties or cities that don't require their law enforcement officers to report the names of potential illegal aliens to federal officials. It is also a phrase that has grown out of the complex relationship between the federal government and local authorities. The federal government cannot force local law enforcement to apprehend or detain illegal aliens since that is a federal function. The federal government and local authorities can enter into agreements which give those local agencies authority to enforce federal immigration law. Such agreements are, however, strictly voluntary. Currently, only 55 cities and counties in 18 states have entered into such agreements with the federal government.
A series of federal laws prohibit states, counties and cities from restricting their employees from relaying information about someone's immigration status to the proper federal authorities. The laws, however, do not require states, counties and cities to report individual illegal aliens to the authorities. Ultimately, however, a local government cannot provide any legal immunity to an undocumented alien because federal law supercedes state and local laws.
Errata: "14 Reasons e-mail"
Legal immigrants are barred from all federal means-tested public benefits for five years by the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. No. 104-193, 110 Stat. 2105 (Aug. 22, 1996) (codified as 8 USC §§1601 et seq.). Last issue we erroneously referred to the law as the "the Immigration Reform Act of 1996."
National News
Son of illegal immigrants wins gold medal for USA.
25-year-old immigrant beaten to death by mob in Pa. It resulted in the arrest of three teens.
U.S. plan to help immigrants "self deport" met with skepticism.
Software industry urges immigration reform.
Nebraska city's anti-illegal immigration ordinance fails to pass.
Navigating the immigration system tougher than winning national robotics competition.
Radio Frequency Identification (RFID) lanes on border will read new passport cards and driver's licenses.
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