Policy Brief Draft



CLEVELAND STATE UNIVERSITY

POLICY BRIEF

____________________________________________________________________________________________________

TO OPPOSE SENATE BILL No. 35

AND SENATE BILL No. 150

LUIS A. CORTES

May 12, 2010

SWK 300: SOCIAL WELFARE POLICY

PROF. MICHAEL A. DOVER

SPRING 2009

1. GOAL STATEMENT

To oppose S. B. No. 35 and S. B. No. 150.

2. SCOPE OF THE PROBLEM

If passed, S.B. No. 35 sponsored by Republicans Bill Seitz and Jimmy Stewart, would enact section 109.45 of the Revised Code to permit the attorney general to pursue a memorandum of agreement under the federal Illegal Immigration Reform and Immigrant Responsibility Act of 1996. Such an agreement between the state of Ohio and the United States attorney general would permit the enforcement in this state of federal immigration laws. This would allow local law enforcement officers to enforce federal immigration laws, both criminal and civil, including the apprehension, detention, and investigation of illegal aliens located in Ohio (128th Ohio General Assembly).

If passed, S.B. No. 150 sponsored by Republican Garry Cates, would allow county commissioners to direct a sheriff to take custody of persons who are being detained for deportation or who are charged with criminal violations of immigration law and to authorize state and local employees and county sheriffs to render assistance to federal immigration officials in the investigation and enforcement of federal immigration law. This bill contains the same provisions as SB 260 of the 127th General Assembly, which was also passed by the senate but failed to become law (128th Ohio General Assembly).

The power to prescribe rules as to which aliens may enter the United States and which aliens may be removed resides solely with the federal government, particularly with the Congress. It is also crucial to distinguish the civil from criminal violations. Entering the U.S. illegally is a civil, not a criminal violation of the immigration laws. Criminal violations on the other hand, include felonies and misdemeanors and are prosecuted in the federal courts.

It is permissible and in some way understandable, especially since 9/11, for state and local law enforcement officers to inquire into the status of an immigrant during the course of their normal duties in enforcing state and local law. This practice allows state and local law enforcement officers to play an indirect role that is incidental to their general criminal enforcement. (See Congressional Research Service (CRS) Reports and Issue Briefs (March 11, 2004) Seghetti, Lisa M.; Vina, Stephen R.; Ester, Karma. )

When state or local officers question the immigration status of someone they have detained for a state or local violation, they may contact a U.S. Immigration and Customs Enforcement (ICE) agent at the Law Enforcement Support Center (LESC). The federal agent may then place a detainer on the suspect, requesting the state official to keep the suspect in custody until a determination can be made as to the suspect’s immigration status. However, “the continued detention of such a suspect beyond the needs of local law enforcement designed to aid in the enforcement of federal immigration laws may be unlawful.” (Seghetti, Viña, & Ester, (2004))

Indirect state participation by means of immigration detainers is full of controversy. Many agents have committed abuses at state detentions centers and when making arrest for traffic violations or similar offenses “as pretexts for verifying an individual’s status with immigration authorities.” (Seghetti, Viña, & Ester, (2004))

Immigration laws are very complex and require extensive training to understand and enforce properly. Immigration law is not as clear as criminal or civil law. Some immigration violations are civil while some are criminal. Asking police to become experts in distinguishing the difference is an unrealistic demand. “Enforcement by inadequately trained officers could leads to racial profiling where people who look or sound foreign would be stopped or asked for proof of legal status.” (Seghetti, Viña, & Ester, (2004))

Officials’ participation in federal immigration investigations by local law enforcement agents could endanger public safety. Public trust is needed for local enforcement agents to be effective in the community. Immigrants’ trust in local law enforcement is destroyed when police act as immigration agents. Without assurances that they will not be subject to an immigration investigation, detention, and possible deportation, many immigrants will not come forward with vital information about crimes. This is especially true in cases of domestic violence. Battered immigrants will be afraid to call the police for help.

Another problem is that state and local police won’t be able to handle the strain on resources to be able to enforce immigration law. State and local police resources are already stretched thin. Asking local and state local enforcement agencies to enforce federal immigration laws will strain their already overburdened resources and will require substantial resource commitments of time, training, and administrative costs. This is why many local police departments and sheriffs oppose immigration enforcement initiatives and have taken public positions against them. (Seghetti, Viña, & Ester, (2004))

3. PAST POLICY

Section 287(g) of the Immigration and Nationality Act: The Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA), effective September 30, 1996, added Section 287(g), performance of immigration officer functions by state officers and employees, to the Immigration and Nationality Act (INA). This authorizes the secretary of the U.S. Department of Homeland Security (DHS) to enter into agreements with state and local law enforcement agencies, permitting designated officers to perform immigration law enforcement functions, pursuant to a Memorandum of Agreement (MOA), provided that the local law enforcement officers receive appropriate training and function under the supervision of sworn U.S. Immigration and Customs Enforcement (ICE) officers.

State and local patrol officers, detectives, investigators and correctional officers working in conjunction with ICE gain: necessary resources and authority to pursue investigations relating to violent crimes, human smuggling, gang/organized crime activity, sexual-related offenses, narcotics smuggling and money laundering; and support in more remote geographical locations.

4. CURRENT POLICY

Currently, Ohio law enforcement agencies can enter into agreements with the federal Immigration and Customs Enforcement (ICE) agency. However, they are limited to the enforcement of criminal provisions of immigration law. In June of 2007 the Ohio Attorney General issued an opinion, finding that:

Under R.C. 311.07(A) and R.C. 311.08(A), a county sheriff may arrest and detain an alien without a warrant when evidence establishes probable cause to believe that the alien has violated a criminal provision of federal immigration law. A county sheriff may not, however, arrest and detain an alien for a violation of a civil provision of federal immigration law.

R.C. 341.21(A) does not authorize a board of county commissioners to direct the county sheriff to receive into his custody aliens who are being detained by the United States Immigration and Customs Enforcement Office for deportation purposes when the aliens have not been charged with, or convicted of, a crime by the United States.

Under 8 C.F.R. § 287.7(d), a county sheriff may detain an alien on the basis of a detainer issued by the United States Immigration and Customs Enforcement Office for a period not to exceed 48 hours, excluding Saturdays, Sundays, and holidays in order to permit assumption of custody by federal immigration officials even though Ohio law otherwise would require that the alien be released from custody. Thus far, only one Ohio law enforcement agency has entered into such an agreement with ICE, and that is Butler County Sheriff's Office. (1928 Op. Att’y Gen. No. 3079, vol. IV, p. 2947, syllabus, paragraph three, overruled in part.)

5. PROPOSED SOLUTION(S)

First, don't pass S. B. No. 35 and S. B. No. 150. We need reform that unites people and protects everyone's rights and jobs, immigrant and non-immigrant alike. We need to use our ideals of rights and equality to guide us. For several years, immigrant rights groups, community organizations and unions have called for reform based on those ideals. It's time to put those ideas into a bill that can bring our country together, not divide it. Congress most passes a human rights immigration bill that would:

1. Stop trade agreements that create poverty and forced migration.

2. Give peoples a quick and easy path to legal status and citizenship.

3. End the visa backlogs, so there's no "get in the back" line.

4. Protect the right of all workers in their jobs - against discrimination, or getting fired for demanding rights or for not having papers.

5. Bring civil rights and peace to border communities.

6. Dismantle the immigration prisons, end detention, and stop the raids.

7. Allow people to come to the U.S. with green cards - visas that afford people rights that are not tied to employment and recruitment by labor brokers.

8. Use reasonable legalization fees to finance job programs in communities with high unemployment.

9. End guest worker programs.

10. Pass legislation to ensure that all immigrants and asylum seekers have access to individualized hearings on the lawfulness, necessity, and appropriateness of detention.

11. Pass legislation to ensure that detention will be used only if the US government demonstrates in each individual case that it is a necessary and proportionate measure. No one should be subject to “mandatory detention.”

12. Immigrants should be advised of the release options available to them and how to access them.

13. The US government should ensure the adoption of enforceable human rights detention standards in all detention facilities that house immigration detainees, either through legislation or through the adoption of enforceable policies and procedures by the Department of Homeland Security.

14. There should be effective independent oversight to ensure compliance with detention standards and accountability for any violations.

Those who say no alternative is possible might remember the "go slow" advice given to young students going to jail in the South in the early 60s. If they'd heeded it, we'd still be waiting for a Voting Rights Act. Dr. King, Rosa Parks, the students in SNCC, and Chicano civil rights leaders like Cesar Chavez, Bert Corona, Dolores Huerta and Ernesto Galarza, asked the country a simple question: Do we believe in equality or not? That's still the choice.

6. KEY ORGANIZATIONS/INDIVIDUALS

Lilleana Cavanaugh - Director

Ohio Commission on Hispanic/Latino Affairs

77 South High St, 18th Floor

Columbus, OH 43215

Phone: 614.466.8333

Email: latinoconnection2005@

Website:

Anthony D. Romero, Executive Director

American Civil Liberties Union of OHIO

Max Wohl Civil Liberties Center

4506 Chester Avenue

Cleveland, OH 44103

Phone: (216) 472-2200

Fax: (216) 472-2210

contact@

Website:

Email: contact@

Ali Noorani, Executive Director

National Immigration Forum

50 F Street NW, Suite 300

Washington, DC 20001

Phone: (202) 347-0040

Fax: (202) 347-0058

Website:

Email: flopez@

Emilio T. Gonzalez, Director

U.S. Citizenship and Immigration Services

National Records Center, FOIA/PA Office

P. O. Box 648010

Lee's Summit, MO 64064-8010

Phone: 816-350-5570

Fax: 816-350-5785

Website:

Email: uscis.foia@

Rebecca McQueen, Business Manager

La Prensa Newspaper

616 Adams Street

P.O. Box 9416

Toledo, Ohio 43697

Phone: (419) 870-6565

Fax: (419) 242-7744

Website:

Email: rico@

Andrea Bazan, Chairwoman of the Board of Directors

National Council of La Raza

Raul Yzaguirre Building

1126 16th Street, NW

Washington, DC 20036

Phone: (202) 785-1670

Fax: (202) 776-1792

Website:

Email: comments@

William Gheen, President

Americans for Legal Immigration PAC (ALIPAC)

Post Office Box 30966

Raleigh, NC 27622-0966

Phone: (919) 787-6009

Toll Free: (866) 703-0864

Website:

Email: williamg@alipac.us

John Vinson, President

American Immigration Control Foundation

222 West Main Street

P. O. Box 525

Monterey, VA 24465

Phone: (540) 468-2022

Fax: (540) 468-2026

Website:

Email: aicfndn@

7. GLOSSARY

MOA (Memorandum of Agreement) - or cooperative agreement is a document written between parties to cooperatively work together on an agreed upon project or meet an agreed upon objective. The purpose of an MOA is to have a written understanding of the agreement between parties.

Immigration - departure from one's native land to settle in another.

Federal immigration laws - refers to federal government policies which control the phenomenon of immigration to their country.

Illegal alien - is a non-citizen who has not been given permission by immigration authorities to reside in the country in which he is living.

Deportation - a federal, statutory process by which a non-citizen is compelled to leave the United States. It is the expulsion of an undesirable alien from a country.

Civil Law - the body of laws of a state or nation dealing with the rights of private citizens. The term is also used to distinguish the law that applies to private rights from the law that applies to criminal matters.

Criminal law - body of law that defines criminal offenses, regulates the apprehension, charging, and trial of suspected offenders, and fixes punishment for convicted persons. Substantive criminal law defines particular crimes, and procedural law establishes rules for the prosecution of crime.

ICE (Immigration and Customs Enforcement) - is responsible for enforcing federal immigration laws as part of its homeland security mission.

LESC (Law Enforcement Support Center) - serves as a national enforcement operations center by providing timely immigration status and identity information to local, state and federal law enforcement agencies on aliens suspected, arrested or convicted of criminal activity.

Enforcement - requirement to obey; implementation of rule(s).

ICE ACCESS (Immigration and Customs Enforcement Agreements of Cooperation in Communities to Enhance Safety and Security) - provides local law enforcement agencies the opportunity to team with ICE to combat specific challenges in their communities.

Poverty - relative measure within a society, being the state of having income and/or wealth so low as to be unable to maintain what is considered a minimum Standard of Living. It is the state of being poor or lack of the means of providing material needs and comfort.

Bill - a proposed law under consideration by a legislature. A bill does not become law until it is passed by the legislature and, in most cases, approved by the executive. Once a bill has been enacted into law, it is called an act or a statute.

Visa backlogs - an accumulation of unfinished visas application. Today Visa backlogs or wait time is more than five years.

Discrimination - treatment or consideration based on class or category rather than individual merit; partiality or prejudice: racial discrimination; discrimination against foreigners.

Human Rights – is the basic rights and freedoms to which all humans are entitled, often held to include the right to life and liberty, freedom of thought and expression, and equality before the law.

Guest worker program - this program permits U.S. employers to sponsor non-U.S. citizens as laborers for approximately three years, to be deported afterwards if they have not yet obtained a green card.

8. BIBLIOGRAPHY

Arpaio, J., & Sherman, L. (2008). Joe's law America's toughest sheriff takes on illegal immigration, drugs, and everything else that threatens America. William Finnegan, Profiles, “Sheriff Joe,” The New Yorker, July 20, 2009, p. 42

Barbour, S. (2010). Does illegal immigration harm society? San Diego, CA: Reference Point Press.

Becker, C. S., & Becker, D. A. (2010). Immigration and illegal aliens: Burden or blessing? (2009th ed.). Detroit: Gale Cengage Learning.

Charles Gordon, Et. Al, Immigration Law and Procedure §72.02[2] [b], at 72-27 (Matthew Bender & Co., Inc. 2000). (Citing Abel v. United States, 362 U.S. 217 (1960);

United States v. Cruz, 559 F.2d 30 (5th Cir. 1977)

Children's Immigration Issues. Denver, Colo.: CLE in Colorado, 2006. Print.

Cramer, Neville W. "Illegal Immigration - A Federal Problem with Local Impact." Immigration Chaos: Solutions to an American Crisis. Scottsdale, AZ: IES Publ., 2007. 206-07. Print.

Delegation of Immigration Authority Section 287(g) Immigration and Nationality Act. . 8 Jan. 2010. Web. 17 Apr. 2010.

Dumbrill, G. C. (2009). Your policies, our children: Messages from refugee parents to child welfare workers and policymakers. Child Welfare, 88(3), 145-168.

Finsterbusch, K. (2010). Taking sides. Clashing views on social issues (15th, expand ed.). Dubuque, Iowa: McGraw Hill.

Lin, Joanne. "End It: 287(g) is Beyond Repair and Harms Local Communities Every Day." web log post. . American Civil Liberties Union, 5 Apr. 2010. Web. 16 Apr. 2010. .

McKenna, G., & Feingold, S. (2010). Taking sides. Clashing views on political issues (16th, expand ed.). Boston, MA: McGraw-Hill Higher Education.

Regan, M. (2010). The death of Josseline: Immigration stories from the Arizona-Mexico borderlands. Boston, Mass.: Beacon Press.

S.B. 35 Bill Summary. (2009). Retrieved April 20, 2010 from

S.B. 150 Bill Summaries. (2009). Retrieved April 20, 2010 from

Seghetti, L. M., Viña, S. R., Ester, K., & Library of Congress. Congressional Research Service. (2004). Enforcing immigration law; the role of state and local law enforcement. [Washington, D.C.]: Congressional Research Service, Library of Congress.

Why Am I Here?: Children in Immigration Detention. New York: Amnesty International USA, 2003. Print.

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