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U.S. Policies Send Dangerous Assault Weapons Across Border to Mexico

We spend a great deal of time in this country complaining about immigrants coming across the border to the United States.  We spend very little time contemplating our own policies, and how these policies can impact our neighbors.  A recent New York Times article highlights an illicit export from the United States that is having a profound affect on Mexico:  assault weapons.

The Mexican agents who moved in on a safe house full of drug dealers last May were not prepared for the fire power that greeted them.

When the shooting was over, eight agents were dead. Among the guns the police recovered was an assault rifle traced back across the border to a dingy gun store here called X-Caliber Guns.

Now, the owner, George Iknadosian, will go on trial on charges he sold hundreds of weapons, mostly AK-47 rifles, to smugglers, knowing they would send them to a drug cartel in the western state of Sinaloa. The guns helped fuel the gang warfare in which more than 6,000 Mexicans died last year.

Mexican authorities have long complained that American gun dealers are arming the cartels. This case is the most prominent prosecution of an American gun dealer since the United States promised Mexico two years ago it would clamp down on the smuggling of weapons across the border. It also offers a rare glimpse of how weapons delivered to American gun dealers are being moved into Mexico and wielded in horrific crimes.

The article goes on to explain why guns are being brought in from the United States:

Drug gangs seek out guns in the United States because the gun-control laws are far tougher in Mexico. Mexican civilians must get approval from the military to buy guns and they cannot own large-caliber rifles or high-powered pistols, which are considered military weapons.

The ease with which Mr. Iknadosian and two other men transported weapons to Mexico over a two-year period illustrates just how difficult it is to stop the illicit trade, law enforcement officials here say.

The gun laws in the United States allow the sale of multiple military-style rifles to American citizens without reporting the sales to the government, and the Mexicans search relatively few cars and trucks going south across their border.

What is more, the sheer volume of licensed dealers — more than 6,600 along the border alone, many of them operating out of their houses — makes policing them a tall order. Currently the A.T.F. has about 200 agents assigned to the task.

Smugglers routinely enlist Americans with clean criminal records to buy two or three rifles at a time, often from different shops, then transport them across the border in cars and trucks, often secreting them in door panels or under the hood, law enforcement officials here say. Some of the smuggled weapons are also bought from private individuals at gun shows, and the law requires no notification of the authorities in those cases.

You can read the full article at the New York Times website.

Justice William J. Brennan on Due Process for Immigrants

Whatever his status under the immigration laws, an alien is surely a ‘person’ in the ordinary sense of that term. Aliens, even aliens whose presence in this country is unlawful, have long been recognized as ‘persons’ guaranteed due process of law by the Fifth and Fourteenth Amendments.

U.S. Supreme Court Justice William J. Brennan, Plyler v. Doe (1982).

Elie Wiesel: “No Human Being is Illegal”

There is little doubt that in the last few years, we have seen an upswing in anti-immigrant sentiment.  For those of us who spend every day fighting for immigrant rights, it can be a disheartening battle.  In difficult times, I find comfort in quotes about immigration that help to put our problems in perspective.  They remind us that our battles are not new ones, and that we have endured even worse periods in our country’s history.  As I am reminded of these quotes, I will be posting them on this blog.  Hopefully you, too, will find comfort in the wisdom of these quotes.

One of today’s most popular and powerful quotes is credited to Elie Wiesel, the writer, Nobel Peace Prize winner and Holocaust survivor:

You who are so-called illegal aliens must know that no human being is ‘illegal’. That is a contradiction in terms. Human beings can be beautiful or more beautiful, they can be fat or skinny, they can be right or wrong, but illegal? How can a human being be illegal?

Coming from a Holocaust survivor who witnessed the worst in humanity, these words are extremely potent.  This quote is the rallying cry for those of us who believe that the term “illegal alien,” or referring to human beings as “illegal,” is dangerously dehumanizing.

Exchanges at the Montana Capitol

Jamee Greer, a progressive lobbyist and all-around good guy, has a great post about an interesting exchange that occurred in the Montana Legislature last week between Representative David Howard (the sponsor of three anti-immigrant bills that were tabled) and Representative Tim Furey.  He posts about it at his blog:

I thought I’d share some of the quotes from Rep. Howard, and much like last time, I’ll point out the good with the ugly.

“Now the reason for this bill is very simple. If you look at states like Colorado, who have not watched their licenses, you have almost ninety percent of all the sheetrock contractors are illegal aliens. You have almost one hundred percent of the contractors that do yards and clean up and everything, are illegal aliens. I want to create a deterrent so Montana isn’t a state we wanna come fill up with illegal aliens.”

“I was on a business trip to Las Vegas, and I was really stunned that while I was driving into where I was gonna do some training, and at a corner where they had a Safeway, there was over a hundred and fifty people there, all illegal aliens, obviously, and the contractor trucks were driving up and picking them up.”

While Rep. Howard’s comments were offensive, Representative Tim Furey (D-HD 91) nobly tried to point out that you cannot make rash judgements on someone’s status based on conjecture, or hearsay.

Rep. Furey: “When you were in Las Vegas, and you saw one hundred people on the street corner, how did you know that the one hundred people you saw were ‘illegal aliens’?”

Rep. Howard: “I was with a contractor, doing a contractor seminar. And he was telling me that that was what was happening. He was showing me and telling me that that was actually cheating other young Americans that wanted jobs, out of jobs, because those were contractor jobs and they had the ability to pay them half as much and not pay them workers comp. Actually, in real true sense, they were taking advantage of the unauthorized alien.”

Rep. Furey: “So nobody checked their IDs? Just the fact that they looked like they were ‘illegal aliens’?”

Rep. Howard: “No they didn’t. I was being told that they were, by a contractor who had been doing this for twenty five years.”

This was one of many exchanges that occurred both last week and this week that highlight one of the biggest problems with state enforcement of immigration laws.  Even as he defended legislation that would would result in rampant racial profiling, Representative Howard couldn’t help but make baseless assumptions about people’s immigration status.  He basically made our point for us.

Thanks to Representative Furey for pointing this out, and thanks to Jamee Greer for posting about it.

Status of Anti-Immigrant Legislation in Montana

Last week was an exceptionally busy one for those of us who have been fighting the suite of anti-immigrant bills that have been proposed this session.  Committee hearings were held every day of the week, and there were ten hearings in all.  I am glad that I was able to testify on each of these bills, and I cannot thank Kim Abbott, Jamee Greer, Debbie Smith, and the ACLU enough for their help.  

First, the good news:  Every anti-immigrant bill that originated in the House has been killed.  This is a huge victory, as these bills would have been disastrous for Montana.  In addition, one particularly ridiculous bill from the Senate has been tabled.  

Here is the list of anti-immigrant legislation that has died in committee:

HB 587:  This bill would have required the Department of Labor to investigate immigration status before issuing a professional or occupational license, and go back and review every single license already on the books.   No evidence has been presented that undocumented aliens are getting professional licenses in Montana.  This bill would have needlessly cost the state time and resources, and it would have resulted in undue scrutiny for minority business owners.  The Business and Labor committee wisely tabled this bill, which was sponsored by David Howard.

HB 496:  This bill would have encouraged citizens to waste law enforcement time and resources by making complaints about employees that they suspect to be unauthorized aliens, and then required law enforcement to investigate each and every complaint regardless of whether they appeared to have any merit.  This would have had incredibly negative consequences for minority employees, who could be subjected to police investigations without any legitimate basis.  It would also have wasted law enforcement time and resources.  The Business and Labor committee tabled this bill, which was also sponsored by David Howard.

HB 554:  This incredibly misguided bill would have required the state to investigate the immigration status of children in foster care and deport them.  I wrote about this bill earlier.   The Judiciary committee tabled this bill mere hours after hearing oral testimony on the offensive bill.  This resulted in a shutout for Representative David Howard’s anti-immigrant bills.  

HB 556:  This bill would have required the state to use the federal E-Verify program for all state contractors.  E-Verify is not ready for widespread deployment and has far too many errors, especially when dealing with non-citizens.  Implementing this program would have resulted in far too many legitimate workers losing employment opportunities.  The State Administration committee wisely chose to wait until this program was ready for primetime and tabled the bill, which was sponsored by Gary MacLaren.

SB 380:  This bill would have required the county treasurer’s office to investigate immigration status and deny motor vehicle registration to undocumented immigrants.  The bill would have only had one effect:  less accurate motor vehicle registrations.  Rather than throwing their hands in the air and going home, undocumented immigrants would simply register in other people’s names or not register at all.  The Senate Judiciary committee tabled the bill.

Now the bad news.  Three bills sponsored by Shockley have made it out of committee and passed 2nd reading on a floor vote.  Votes were almost entirely based on party lines — Republicans in favor, and Democrats against.  I’ll be posting more on each of these bills in the coming days.

SB 381:  This bill would require the state to enter into a costly Memorandum of Understanding so that the Highway Patrol can be deputized as ICE agents and enforce immigration laws.  This was sponsored by Shockley and passed by Senate Judiciary.

SB 382:  This bill would require the state to “cooperate with” the federal government in immigration investigations without receiving any compensation for doing so.  It also allows crazies to sue to force the state to do the federal government’s job.  This was sponsored by Shockley and passed by Senate Judiciary.

SB 379:  This bill was discussed in a previous post.  It was sponsored by Gary Perry and passed by Senate Judiciary.

I will be posting more on the significant harm that would be caused by the remaining bills.  So long as the Democratic caucus holds, as it has been, these bills will never survive the House.

Bill Sponsored by Gary L. Perry Threatens Workplace Safety by Eliminating Worker’s Compensation for Unauthorized Aliens

On Thursday, February 12, 2009, Senator Gary L. Perry’s SB 378 will go to Committee.  This bill would prevent insurers from paying worker’s compensation claims to “unauthorized aliens.”  Current law requires that claims be paid to “aliens and minors, whether lawfully or unlawfully employed.”  MCA § 39-71-118(a).  While SB 378 does not amend the definition of an employee under the law, it would have the same effect.  The bill imposes obstacles that would make it impossible for unauthorized aliens to pursue a claim for worker’s compensation. 

Our worker’s compensation laws are based on the principle that once an employer has hired an employee and put them to work, the safety of the worker is the employer’s responsibility.  Any law that would prohibit an employee from making a claim for worker’s compensation would result in a less safe work environment for all workers.  Rather than deter employers from hiring unauthorized aliens, SB 378 would actually create a perverse incentive to hire unauthorized aliens to work in dangerous job positions.  This could create a class of “expendable” workers that an employer need not be concerned about insuring.  An employer who pays less attention to the safety of unauthorized aliens will create a hazardous work environment for all employees.

SB 378 would require hospitals to foot the bill for an employer’s mistake.  The bill would prevent insurers from paying for medical services until an unauthorized alien goes to a U.S. Consulate overseas to execute an affidavit, presumably to prove that the alien has left the country.  If an employee is seriously injured on the job, he or she will not be in any condition to undertake international travel.  Hospitals cannot refuse to provide emergency medical care, and will be required to pay for primary medical services that would normally be the insurer’s responsibility.

The bill provides no details on how an insurer is to determine whether or not an employee is unauthorized.  Our immigration laws are complex, and the potential for mistakes and abuse are obvious.  The state and federal government lack the time and resources to check into the immigration status of every employee who is injured on the job.  It would violate due process to simply single out minority workers for extra screening.  Injured workers who need immediate care cannot afford to waste time proving their authorized status to insurers.  If an employee is wrongly accused of being unauthorized, he or she may have to expend significant time and effort litigating the matter in state court.  But even state courts are not equipped to interpret and apply our immigration laws.  

The requirement that an unauthorized alien go overseas to get an affidavit before making a claim is clumsy and ineffective.  If the drafters of this bill believe that it will compel unauthorized aliens to depart from the country, they are sorely mistaken.  Unauthorized aliens will surely recognize that it would be impossible for them to maintain a worker’s compensation claim from outside of the country. 

The type and amount of compensation that a worker receives depends upon objective medical findings.  Nothing in the proposed law that would require an insurer to accept the determinations of a foreign doctor, and there would be no way to prove that injuries were not exacerbated by  travel — a specific defense provided under statute.  See MCA § 39-71-704.  Even simple issues like service of process would rely upon international treaty and would be costly and time-consuming for all parties. 

The truth is that this bill would eliminate recovery for unauthorized aliens, destroy the public policy behind our carefully designed worker’s compensation system, and provide no incentive for any unauthorized alien to leave the country to pursue benefits.  The bill only ensures that employers get off scott-free for creating a dangerous workplace.

The proper time to inquire into an employee’s work authorization is when an employee is hired — not when an employee is injured and requires medical assistance.  An employer bears the responsibility for ensuring the safety of all employees, and this results in a safer workplace for everyone.  SB 378 threatens workplace safety by relieving employers of their safety obligations with regard to unauthorized aliens.  We must not let the agenda of anti-immigrant activists affect the safety of all of our workers.  Implementing this law would be costly to the state and fails to resolve any identifiable problem that exists under current law.  

I strongly urge you to voice your opposition to this bill.  Click here to send a message to Mr. Perry and your local representatives to let them know that you oppose this disastrous bill.

Bill Sponsored by Christine Kaufmann Welcomes Immigrants and Promotes Integration in Montana Communities

After all the anti-immigrant bills being proposed by Montana legislators this year, Christine Kaufmann’s SD413 is a welcome change.  Senator Kaufmann is to be applauded for sponsoring a bill that would send a clear message that Montana welcomes immigrants to its borders, and will not be consumed by the “nativist” hatred sweeping many parts of the country.

Senator Kaufmann’s bill would have three important effects:  

(1) it would create an advisory council is to advise and inform public entities and officials of effective and efficient approaches to promote the integration of immigrants into the state and its communities;

(2) it would prohibit the word “illegal” from being used by a state agency or official in any official document of the state to modify the word “alien” because the term is inaccurate and pejorative; and

(3) it would provide that employees of local and state agencies, law enforcement officers, and all public officials shall, when carrying out their duties, take steps to recognize and protect the human rights of immigrants, prevent disparate treatment, and deter racial profiling.

This bill would be an important first step in curbing the growing level of anti-immigrant sentiment in the country.  This bill is based on recognition of several fundamental facts, many of which are too often ignored in our immigration debate:  

That immigrants have made economic, social, and intellectual contributions to enrich our community, and that integration and broader civic participation by immigrant communities is an important and mutually beneficial goal.  Too often, people look upon immigrants as an invading force that steal our jobs and dilute our culture.  This bill recognizes that immigrants have played an important role in Montana’s history, and that our society is better off as a result.  The vitality of our country depends upon the import of new perspectives and ideas.  Many of our greatest achievements in the United States were made possible by immigrants.  

That the state has an interest in supporting and encouraging immigrants to obtain legal immigration status and, if they choose, citizenship.  We are a nation of immigrants, despite the fact that “nativist” groups would like to close the door behind them.   The growth of our economy depends upon immigrants, who open new businesses, create jobs, and provide much needed service and labor.

That immigrants are often driven to the United States without documented status due to social, political, and economic conditions beyond their control.  For people who live in many countries, escape to the United States isn’t a choice.  It’s a necessity.  I have represented many immigrants who fled from their home countries to escape persecution on account of their race, religion, and political beliefs.  These clients literally faced torture and death in their home countries.  Economic conditions can compel immigration just as much as any political or social influences, because when someone can’t feed themselves of their family, they must look for somewhere that they can survive.  Human rights conditions are responsible for forcibly displacing immigrants, and our dialogue about immigration needs to reflect this reality.  

That the Constitution of the State of Montana prohibits disparate treatment of immigrants through xenophobia, discrimination, harassment, or racial profiling, and that these activities create serious and lasting divisions that threaten to segregate our immigrant communities.  As a society, we cannot support laws that are based on racism and xenophobia towards immigrant visitors and residents.  Nor can we implement laws that require racial profiling in their implementation.  Such policies run contrary to our fundamental ideals as a state and as a country.  

Senator Kaufmann deserves our admiration and support for bravely stepping forward and proposing this bill.  

Click here to send a message to Montana Legislators that you welcome immigrants to Montana and oppose any laws founded upon racism, xenophobia, or racial profiling.

Note:  In the interest of full disclosure, I am proud to have helped in drafting this bill.  

Bill Sponsored by Gary L. Perry Specifically Targets Immigrant Children For Deportation

On this blog, we have been discussing anti-immigrant bills proposed by Montana legislators.   One of the most shocking bill draft requests is LC0559, which would target immigrant youth who are in shelter care facilities.  The bill’s stated purpose is to verify the alien status of prisoners, but in actuality it does much more than that.  The law would require youth probation officers to inform the Department of Homeland Security of any children who don’t have documents to prove lawful status.  Upon request, the officers would turn the youth over to the federal authorities to initiate removal proceedings.  

In its beginning provisions, the bill requires law enforcement to contact the Department of Homeland Security and check into the immigration status of anyone in temporary custody who is charged with a felony or for driving under the influence, “if the lawful alienage of the inmate cannot be determined from documents in the possession of the inmate at the time of the arrest or while incarcerated.”

Law enforcement would be required to contact the Department of Homeland Security “within 48 hours of the beginning of confinement, or a shorter period of time before the inmate is released pending initial appearance, hearing, or trial . . . ”  If an inmate is determined to lack lawful status, they are to be turned over to the federal authorities.

Contrary to federal law, the proposed bill would create a presumption that an alien who is not lawfully present in the United States is a risk of flight.  Therefore, it would make it extremely difficult for the individual to be released on bond.  Under federal law, an alien “generally is not and should not be detained or required to post bond” unless it is determined that the individual is a threat to national security or is likely to abscond.  See Matter of Patel, 15 I&N Dec. 666 (BIA 1976); Matter of Daryoush, 18 I&N Dec. 352 (BIA 1982). 

As discussed above, however, the most objectionable part of this bill is the fact that it specifically targets immigrant children for removal.

The law states that all youth who cannot provide documentation of lawful status must be reported to the Department of Homeland Security regardless of whether any offense has been committed.  This makes the law relating to immigrant youth even more harsh than that applied to adults.

Let us be clear that the bill does not only target youth who are involved in delinquent behavior.  The bill requires a youth probation officer to check into the immigration status of any youth who is in a “detention center, youth assessment center, or shelter care facility.”  Shelter care facilities include “youth foster homes, kinship foster homes, youth group homes, youth shelter care facilities, child-care agencies, transitional living programs, and youth assessment centers.”  MCA §§ 52-2-602(11); 41-5-103(40); 41-5-347.

This means that children in foster care will be reported to the authorities and potentially deported, without having ever committed any kind of crime.  Youth are typically placed in foster care when they have no one else to care for them.  Deporting children to the custody and care of other countries, to be dependent upon the potentially inadequate care of the social programs in these countries, should not be a high priority for the state.

Strangely, the law prohibits the Department of Justice from implementing the regulations relating to youth, leaving implementation solely to youth probation officers.  Perhaps Mr. Perry is attempting to take authority away from the Department of Justice because  these provisions conflict with existing laws regarding treatment of youth in custody.  See MCA §§ 41-5-331; 41-5-322; 41-5-323.

The presumption that would limit the availability of bond appears to be applied to youth as well.  Therefore, this statute changes current law on release of youth offenders.  Present law states that “[w]henever a peace officer believes, on reasonable grounds, that a youth can be released to a responsible person, the peace officer may release the youth to that person upon receiving a written promise from the person to bring the youth before the probation officer at a time and place specified in the written promise, or a peace officer may release the youth under any other reasonable circumstances.”   See MCA §§ 41-5-322, 41-5-323.

This bill imposes a presumption that anyone whose immigration status doesn’t check out is a risk of flight.  That would potentially take discretion away from a peace officer to make his or her own determination regarding bond.

It is shocking that Mr. Perry has sponsored a bill that specifically targets children for removal. 

I urge you to contact your local representatives, as well as Mr. Perry, and voice your opposition to this bill.  

Bill Sponsored by Gary MacLaren Would Put Non-Citizens Who Vote in Prison for Up to 10 Years

As discussed in previous posts, Montana legislators have proposed a number of anti-immigrant bills that would require the state to step into the shoes of the federal government and enforce immigration laws.  One of the most pointless bill draft requests is LC0514, which is being sponsored by Gary MacLaren.  This bill would make it a felony for a non-citizen to register to vote in a state election

If a non-citizen registers to vote in an election, the court could sentence the individual for a “term not to exceed 10 years in the state prison or may fine the offender in an amount not to exceed $50,000 or may impose both such fine and imprisonment.”  MCA § 46-18-213.

The severe punishment imposed by this law is simply not warranted.  The proponents of this bill cannot point to any instances of voter fraud by non-citizens in the state of Montana that would justify imposing such a law. The Secretary of State has not spoken out in support of this bill, and I am not aware of any state or county election official who has stated that this law is necessary.

There are already harsh federal sanctions for any alien who makes a false claim to citizenship.  These sanctions are more than sufficient to deter a non-citizen from voting in a state election.

Under INA §237(a)(6) and INA § 212(a)(10)(D), an alien who unlawfully votes in any state, federal, or local election is removable from the country and barred from being admitted into the country. The only exception is where the alien’s parents were U.S. citizens, the person resided in the U.S. before age 16, and the person mistakenly believed that he or she was a U.S. citizen.  This is an extremely narrow exception designed to prevent unfair punishment of someone without wrongful intent.

In addition, under INA § 212(a)(6)(C)(ii) and INA §237(a)(3)(D), any alien who falsely claims to be a U.S. citizen is removable from the country and barred from being admitted into the country.  Only U.S. citizens are allowed to vote, and under federal law an alien who votes in an election could be deemed to have made a false claim to U.S. citizenship.

This law unfairly singles out non-citizens who register to vote, while providing no criminal sanctions for other individuals who may not be qualified to vote.  If the sanctity of state elections requires criminal punishment for improper registration, then it should also be a felony if a person under the age of 18 registers to vote.  

There appears to be no legitimate purpose to this bill, other than to further demonize non-citizens who reside in the state.  

I urge you to contact your local representatives, as well as Mr. MacLaren, and voice your opposition to this absurd bill.

No Human Being is Illegal: Why use of the term “illegal alien” is inaccurate, offensive, and should be eliminated from our public discourse.

One can rarely enter into a discussion about immigration without hearing the term “illegal alien,” or references to undocumented immigrants as simply “illegals.”  Our basic discourse has come to accept these terms, despite the fact that they are highly inaccurate and pejorative.  Whether intentional or accidental, the use of these terms has shaped public opinion on immigration policy.  Of course, not everyone who uses these terms intends to color undocumented immigrants with the stigma that these terms carry with them.  Therefore, the purpose of this editorial is to explain why these terms should be eliminated from our discourse.

When one refers to an immigrant as an “illegal alien,” they are using the term as a noun.  They are effectively saying that the individual, as opposed to any actions that the individual has taken, is illegal.  The term “illegal alien” implies that a person’s existence is criminal.  I’m not aware of any other circumstance in our common vernacular where a crime is considered to render the individual – as opposed to the individual’s actions – as being illegal.  We don’t even refer to our most dangerous and vile criminals as being “illegal.”

“Illegal alien” is not a legal term.  An alien is defined as anyone who is not a citizen or national of the United States.  However, “illegal alien” is not a legal term in the Immigration and Nationality Act.  For some, the use of the term “illegal alien” is likely based on a misconception that an immigrant’s very presence in the United States is a criminal violation of the law.  While the act of entering the country without inspection is a federal misdemeanor, and for repeat offenders could be a felony, the status of being present in the United States without a visa is not an ongoing criminal violation.

In addition, estimates are that almost half of the undocumented aliens in the United States actually entered with lawful status but merely overstayed their visas.  These aliens have not committed a criminal offense at all.  Their presence in United States while being out of status is a civil infraction, not a criminal offense.

To make it a criminal violation of the law to be present without a visa would be a “status offense.”  A status offense is an offense that is based on the fact that the offender has a certain personal condition or is of a specified character, rather than any action or inaction that the offender takes in violation of the law.  A common example is vagrancy; if a law rendered homelessness illegal, then the status of being homeless would be criminal.  Our courts wisely look upon status violations with heightened scrutiny, as the creation of status offenses infringe upon personal liberties and carry significant due process concerns.

Over the years, anti-immigration activists have proposed criminalizing the presence of the millions of immigrants here without documentation.  Such attempts have failed, as our legislators have recognized that social, economic, and political forces often forcibly displace immigrants and compel them to come to the United States.  To make federal criminal offenders of the individuals who are present in the United States under these circumstances would ignore their basic human rights.

By using the term “illegal alien” to refer to those without a visa or I-94 to show lawful entry into the United States, the speaker purports to assign guilt before a Judge ever considers the evidence and makes a determination on the individual’s status.  A basic principle of our legal system is innocence until guilt is proven.  This same principle applies to removal hearings in immigration court, and the government bears the burden of proving removability.

When white collar criminals are arrested, we are careful to label them as “accused” and state that the government’s accusations are merely “alleged.”  But when newspapers refer to immigration raids by Immigration and Customs Enforcement (ICE), the headlines often repeat ICE’s figures on the number of “illegal aliens” who were arrested.  These individuals are effectively convicted in the media before trial ever begins.  Officers in the Department of Homeland Security (DHS) often take full advantage of this to the detriment of the immigrants who are unfairly stigmatized as a result.

The reckless use of the term “illegal alien” is belied by the complexity of our immigration laws.  Immigration attorneys often discover that their clients — many of whom may have believed they were present without status — are actually citizens or are entitled to adjust status to become lawful residents.  Those without any specialized training in immigration law should be reluctant to make snap judgments on issues that they are not familiar with.

Further, the term is imprecise, and is used to encompass individuals who are in the United States under vastly different circumstances.  Some individuals are brought here against their will, such as victims of human trafficking.  Others come here on valid visas but subsequently fall out of status.  For instance, many victims of domestic violence have legal status that depends on the continued sponsorship of their abuser.  Some individuals are here under “temporary protected status” because of strife in their home country, but fall out of status when our government removes their protected status.  To blanket all immigrants who are out of status as being “illegals” is overly simplistic.

For many, the term “illegal alien” serves an entirely different purpose.  As David Bacon points out in his book “Illegal People:  How Globalization Creates Immigration and Criminalizes Immigrants,” the term is used as a divisive tool to define the social strata in which some believe that undocumented immigrants should be confined.  It serves to distinguish those with papers from those without, and to cement the idea that “illegal” people should be entitled to fewer rights and privileges.  Simply put, the term is an effective tool in the age old struggle of inequality between the “haves” and the “have nots.”

The term “illegal alien” has been used to dehumanize immigrants and divorce ourselves from thinking of them as human beings.  For some, this may serve as a defense mechanism to avoid feeling sympathy for undocumented immigrants, many of whom are separated from their children or loved ones when they are deported.  However, Elie Wiesel, a Holocaust survivor and Nobel Peace Prize winner, wisely stated that “No human being is illegal.”  We should all take care to recognize this ideal and avoid using the term “illegal alien.”

Anti-Immigrant Legislation Being Proposed this Legislative Session

When you think of states embroiled in deep controversies relating to their large immigrant populations, Montana isn’t the first one to come to mind.  Perhaps this is because Montana has one of the smallest percentages of foreign-born residents in the entire United States.  

This hasn’t stopped Montana legislators from proposing twenty-six different bills this legislative session that are intended to regulate immigration – a field traditionally occupied, and in many cases preempted, by federal law.  

At least four of the proposed bills have text available for review.  Gary L. Perry of Manhattan, Montana has sponsored three of these bills (LC0557, LC0558, and LC0560), and David Howard has sponsored one of them (LC1909).  Each of these bills threaten to create serious and lasting divisions that would segregate and disenfranchise members of our immigrant communities.  Over the next few days, I will be discussing each of these proposed bills.  

LC0558, which is sponsored by Gary L. Perry, would make it a misdemeanor or felony to transport, move, conceal, harbor, or shield any alien that you know to be undocumented.  It would also make it a misdemeanor or felony to encourage an undocumented alien to enter or remain in the state without status.  The bill would also provide for forfeiture of property belonging to anyone convicted of any of those offenses.  

The intent of this legislation is to deter legal residents from interacting with individuals who they might know or suspect to be an undocumented alien, for fear of being subjected to criminal penalties and forfeiture of property.  The undocumented immigrants living in Montana are already marginalized and victimized by those who prey upon their inability to report abuses to the authorities.  This legislation would only make matters worse by making legal residents more unwilling to come to the assistance of their immigrant neighbors.

This bill is modeled after the pre-existing federal statute at 8 U.S.C. § 1324.  In other words, this is already federal law, and is being enforced by Immigration and Customs Enforcement (ICE).  Mr. Perry apparently doesn’t believe the federal government is doing a good enough job and wants to expend state money and resources to enforce these laws as well.  

Besides being a waste of our taxpayer dollars and limited law enforcement resources, this legislation is pre-empted by federal law.  The federal government has created a comprehensive scheme for enforcement of such immigration penalties, and states may not enter the field and impose their own regulations and penalties.

It is also worth noting that the proposed legislation changes the language of the federal legislation it is modeled after, and creates a presumption that an alien is undocumented as along as the “United States government” says so.  Of course, the United States government is comprised of many different agencies, most of which have no authority to determine the immigration status of an individual.  

Perhaps this broad language is intended to allow the Social Security Administration to determine an immigrant’s status simply by running the individual’s social security number through their system.  This concept has been unilaterally rejected by the Ninth Circuit Court of Appeals, because it is highly inaccurate and unreliable.  

I urge each and every reader to inform their local representatives that they oppose this legislation, and any other attempt by the state to regulate immigration.  

Efforts such as these are not productive in reducing undocumented immigration, but only serve to further disenfranchise our immigrant populations, many of whom are already heavily segregated from our communities.  

Posts analyzing the other anti-immigrant bills being proposed this legislative session will be forthcoming.