Town Hall on Immigration Law

UNM Law Professor Margaret Montoya recently moderated a town hall on immigration law. The featured speaker was Thomas Saenz, president and general council for the Mexican American Legal Defense and Education Fund (MALDEF). Panelists included NM State Rep. Antonio “Moe” Maestas, Marcela Diaz of Somos un Pueblo Unido, and David Urias of Freedman Boyd Hollander Goldberg Ives & Duncan.

Saenz started off with a statement against SB 1070, noting that “our status as an independent nation is tied to immigration.” He added that one of the grievances colonists had against Great Britain’s King George was that he discouraged immigration to the colonies. So, immigration has been a topic since the US was a colony.

Saenz said that the federal government set a “uniform rule of naturalization.” The constitution assigns rule about associations with foreign countries and therefore only the feds can regulate immigration.

“To be a single united nation we have to recognize teh federal status of establishing, defining and enacting immigration policy,” he said.

We face a constitutional crisis, Saenz said, because too many officials — such as Arizona Gov. Jan Brewer – have publicly made clear their intention to defy federal law regarding immigration. SB 1070 charges Arizona law enforcement to determine legal status when faced with “reasonable suspicion” about a person’s documents or status.

This is a burden on state and local law enforcement because they don’t have the training provided to federal law enforcement. It also means that every contact with a citizen — whether a possible criminal, witness or victim — requires them to verify immigration status. They are “mandated” to engage in racial profiling. It makes it a crime to be undocumented in Arizona and permits law enforcement to arrest anyone viewed as a possible undocumented immigrant to be arrested.

“Brown vs. the Board of Education is assaulted by SB 1070,” he said.

The Bill of Rights is assaulted by SB 1070, as well. Arizona State Sen. Russell Pearce, the author of SB 1070, directly contradicts the Supreme Court under amendment fourteen, which states that public school enrollment cannot be denied based on immigration status.

“He wants to charge immigrants tuition to public schools,” Saenz said.

SB 1070 also attempts to regulate employment by making it illegal to solicit work. It violates the immigrants’ right to free speech. “This violates two centuries of constitutional law,” Saenz said.

“There is supremacy of the constitution. Federal law overrides state law as an obstacle,” he said.

He also wants to change the right to citizenship – make it difficult for undocumented parents to get citizenship papers for children born in Arizona. “This creates a class of stateless people in the world,” Saenz said.

This isn’t the first time a governor has defied federal law. We can recall Alabama Gov. George Wallace,  best known for his Southern populist, pro-segregation attitudes during America’s desegregation period.  He defied policy set by the constitution and the Supreme Court to wipe out desegregation.

Such acts earn people like Brewer and Wallace the title of “nullifiers,” Saenz said. “They nullify policy made by the Supreme Court. They seek to nullify principles of our constitution, whether it’s with regard to amendments established 28 years ago or the constitution itself, which has been around for 223 years. They seek to push us back to a time when we were not a single, unified nation,” he said.

He added that they are repeat offender “unconstitutionals” in their attempts to change longstanding U.S. principles.

Only in coming together across the nation can we avert this crisis. As a country we must come together to battle against the constitutional assault taking place in Arizona, he said.

Pretty good food for thought, I’m thinking. I agreed with him completely, as did Richard Schaefer, UNM Communication & Journalism associate professor, and a co-founder of the Cross-Border Issues Group.

Marcela Diaz, Somos Un Pueblo Unido, spoke a great deal about immigration enforcement’s impact on families, which is what her organization is engaged in. She said that Immigration and Customs Enforcement (ICE) already has a presence in many jails — including in the Prisoner Transport Center here in Albuquerque — and that U.S. Secretary of Homeland Security Janet Napolitano plans to have ICE in all jails by 2013. Between 60 and 70 percent of undocumented persons in jail have no criminal record and another small portion have only small crimes.

Diaz said that under the guise of the Criminal Alien Program (CAP), which is supposed to focus on identifying criminal aliens to ensure that they are not released into the community by securing a final order of removal — deportation — prior to the termination of their sentence. The ICE website says that “identification and processing of incarcerated criminal aliens prior to release reduces the overall cost and burden to the federal government as the number of aliens detained by U.S. Immigration and Customs Enforcement (ICE), upon expiration of sentence will be minimized.” What is being played out is that everyone who is arrested is fingerprinted and if a person’s fingerprints are in the system, there is an assumed criminal guilt and they are deported.

It may reduce federal costs, but Diaz pointed out that counties pick up the cost for longer detentions. She said, “Santa Fe kicked ICE out of the jail and Taos is trying to. Community members in Roswell are combating it and there is resistance in Portales, as well.”

Diaz spoke about 287(g) programs. The ICE website states, “The 287(g) program, one of ICE’s top partnership initiatives, allows a state and local law enforcement entity to enter into a partnership with ICE, under a joint Memorandum of Agreement (MOA), in order to receive delegated authority for immigration enforcement within their jurisdictions. The 287(g) program has emerged as one of the agency’s most successful and popular partnership initiatives as more state and local leaders have come to understand how a shared approach to immigration enforcement can benefit their communities.”

Given what Saenz said about level of training and racial profiling that occurs when immigration enforcement is put into the hands of state and local agencies, I don’t think this is a particularly good partnership for communities. In fact, Diaz said that Maricopa County Sheriff Joe Arpaio no longer has street level 287(g) powers although the program still exists in the jail.

Diaz said there is no 287(g) street enforcement in Albuquerque, either, but as I stated earlier, it is in the Prisoner Transport Center and the Metropolitan Detention Center, the local jail.

NM State Rep. Moe Maestas reminded everyone that securing borders is impossible, because “the history of mankind is immigration.” He said that there would be 25,000 proceedings per year in federal court to address the issue. “The federal judiciary would have to be doubled.”

He added that stepped up enforcement efforts are counter productive to public safety. “The police aren’t fighting crimes, and victims and witnesses become distrustful of law enforcement. Therefore, the public is less safe,” Maestas said.

Given the failure of tough immigration enforcement efforts to curb crime and their drain on scarce resources, Maestas says that the NM Senate must have “meaningful dialog” around these issues. He knows that driver licenses for undocumented workers, lottery scholarships for undocumented students, wage protection laws and policing will all be topics for discussion in the State Legislature come January.

Thomas Saenz called immigration a “wedge” issue. “It and tax are two policy issues that people don’t understand.” He added that many don’t understand why immigrants don’t “wait in line” for legal citizenship. “What they don’t get is that the line to citizenship can take 2 – 20 years depending upon a person’s country of origin.” It’s discriminatory.

Saenz called for a “full court press” on the DREAM Act, which offers a pathway to citizenship for those who graduate from college or serve in the military. Saenze noted that Senate Majority Leader Harry Reid, D-Nev., filed cloture on the DREAM Act amendment to the Department of Defense (DOD) authorization bill. “We need federal laws that reflect the constitution. Our national values say we don’t punish a child for what his parents did. Public education benefits the general public, not just those receiving the education. We have a belief that those students will go on to higher education and contribute to our economy.”

By denying the DREAM Act, Saenz said, “We’re saying we value public education so little that we’re going to punish you and the general public.”

He encouraged all to let them know in Washington that supporting the DREAM Act is in all our best interest.