This letter (prepared prior to enactment of HB-1224 - the Colorado Secure and Verifiable Identity Document Act of 2003) documents the legal consequences of accepting non-secure Matricula Consular and other ID cards for illegal aliens, including Federal statutory violation, constitutional grounds, and civil liability exposure. The letter emphasises the following points and references existing case law:
Immigration and Nationality Act
Section 274 of the Immigration and Nationality Act, which provides criminal penalties for any act that "encourages or induces an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law."[2]
"Encourage" and "induce" include actions that permit illegal aliens to be more confident that they could continue to reside with impunity in the United States, or actions that offer illegal aliens "a chance to stand equally with all other American citizens."[3]
To prove that a state or local government agency "encouraged or induced" illegal Mexican aliens, all the government needs to establish is that the agency knowingly helped or advised the aliens, or emboldened them, or made them more confident in their continued illegal residence in the United States.[4]
The courts have held that INA §274 is to be broadly construed both as to those persons subject to criminal liability under the statute,[5] and as to the types of activities covered therein. [6]
Furthermore, Section 401 of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996[7] (as amended by the Illegal Immigration and Immigrant Responsibility Act of 1996)[8] prohibits non-qualified (illegal) aliens from receiving most "Federal public benefits." Any policy that accepts the matricula consular for the purpose of providing city and County services explicitly violates this provision of federal law insofar as the services to illegal aliens are paid for with federal and public funds.
The courts have long recognized that by Article I, Sec. 8 of the U.S. Constitution (the Commerce Clause), Congress has "plenary power" over all aspects of immigration law, including "the right to provide a system of registration and identification" for aliens, because "the entire control of international relations" is invested in the national government.[9]
Courts have repeatedly held that no governmental authority may establish any policy that relates to immigration other than Congress and authorized federal agencies, and that the "(p)ower to regulate immigration is unquestionably exclusively a federal power."[10]
Thus, a local governmental public policy to accept an official foreign national identification document issued to aliens present in the United States in violation of Federal law improperly annexes powers to any public entity that are rightfully those of Congress and the policy is therefore unconstitutional.
In a Supreme Court decision striking down a Pennsylvania alien registration statute, it was held that the "Federal Government...is entrusted with full and exclusive responsibility for the conduct of affairs with foreign sovereignties [, and that o]ur system of government is such that the interest of the cities, counties and states, no less than the interest of the people of the whole nation, imperatively requires that federal power in the field affecting foreign relations be left entirely free from local interference."
The Court ruled that "where the federal government, in the exercise of its superior authority in this field, has enacted a complete scheme of regulation ... states cannot, inconsistently with the purpose of Congress, conflict or interfere with, curtail or complement, the federal law, or enforce additional or auxiliary regulations."[11]
Therefore, no public entity, specifically a City and County, as defined above, may make any rule, regulation or policy that speaks to the presence in the community of foreign nationals, and, thus, a "matricula consular policy" is preempted on constitutional grounds.
A "matricula consular" policy adopted by local governmental authorities has also been determined unconstitutional specifically in relation to public benefits because it violates "the exclusive federal power over the entrance and residence of aliens."[12]
Entering the United States without inspection (illegal entry) is a criminal offense under 8 U.S.C. 1325. Providing public services to such an alien in "knowing and reckless disregard" of the alien's illegal status amounts to aiding and abetting a crime, and is a criminal violation in and of itself. By the INA §274(a) aiding and abetting statute,[13] the distinction is eliminated between principles and accessories in alien smuggling crimes. And courts have held that aiding and abetting also relates to conduct while the illegal alien is in the United States.[14]
Aiding and abetting an illegal entrant in his continued illegal residence in the United States constitutes a dangerous and unreasonable risk to the health and safety of the public, since, among other reasons, unlike legal entrants, an illegal entrant is not subject to a criminal background or health check before entering the United States.
When such aid is administered via official acceptance by any public entity of the matricula consular, by which possession any public entity, or any person acting under the authority of any public entity, would or should have known in the exercise of reasonable care that the person holding the card is an illegal alien, the public entity, or its officers, can be said to be negligent.
For these reasons, official acceptance of the matricula consular by any city or county, and any of its elected or appointed officials (e.g., Mayor, Police Chief, Sheriff, etc.) can be said to be dangerous and negligent, and, therefore, the public entity, and its officers or representatives, may not enjoy sovereign immunity under the Colorado Governmental Immunity Act-especially since the grant of governmental immunity in Colorado is to be strictly construed and its waiver is to be liberally or deferentially construed.[15]
References:
[2] 8 U.S.C. §1324(a)(1)(A)(iv)
[3] U.S. v. Oloyede, 982 F.2d 133 (4th Cir. 1992)
[4] U.S. v. He, No. 00-2574 (7th Cir. Apr. 2, 2001)
[5] U.S. v Zheng, No. 01-15551 (11th Cir. Sept, 2002)
[6] Patel v Ashcroft, No. 01-3365 (3rd Cir. June, 2002)
[7] Public Law 104-193
[8] Public Law 104-208
[9] Fong Yue Ting v. United States, 149 U.S. 698 (1893)
[10] De Canas v. Bica, 424 U.S. 351 (1976)
[11] Hines v. Davidowitz, 312 U.S., at 66 -67
[12] Graham v. Department of Pub. Welfare, 403 U.S. 365 (1971) (USSC+)
[13] 8 U.S.C. 1324(a)(1)(A)(v)(II)
[14] U.S. v. Mussaleen, 35 F.3d 692 (Cir. 2nd (N.Y.),1994.
[15]Springer v. City and County of Denver, 990 P.2d 1092 (Colo. App. 1999), rev'd on other grounds, 13 P.3d 794 (Colo. 2000).