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Letter From Russell PearceChairman of House Appropriations Committee in the Arizona House of Representatives (Received by PUA on 4-5-08)
My good friend thank you, here is a letter I just sent to the Sheriff.
The Sheriff is the "Constitutional" law enforcement authority in
each County and has primary and Constitutional responsibility for all law
enforcement. Yes, by law a city may have their own law enforcement agency, but
that does not limit the Sheriff at all in any manner. In fact when a
city "refuses" to enforce the laws the Sheriff has the
"Constitutional Duty" to enforce the laws and yes that means
anywhere in the county. As is the case with Phoenix, Mesa, Chandler and
others that refuse to "really" enforce the law, it is his duty
to step in. That is why the Sheriff should always be elected as he
has the independence to do the will of the people and accountable to the
people directly (also below the letter is a short brief on the inherent
authority of law enforcing in enforcing federal immigration law).
April
3, 2008 Joe
Arpaio 100
Dear
Sheriff Joe Arpaio, We
want to thank you for honoring your Oath of Office and putting the
Constitutional rights of the citizens you represent above those who have
chosen to violate our laws by entering and remaining in our country illegally.
Also, we would like to commend you for your leadership in standing in stern
opposition to those officials who choose to defend those who break the law.
As you know the illegal alien population has imposed a tremendous economic
burden on taxpayers and contributes to some of the most violent criminal
activity in the state. We know you have been under assault for enforcing
our laws and putting citizens first. Once
again we thank you. Under
the United States Constitution, states are bound under the Supremacy Clause to
enforce federal immigration laws. The statutory law of the Important
amendments to the federal Immigration Reform and Control Act enacted in 1996
demonstrated the clear intent of Congress was to encourage state and local
agencies to enforce civil as well as criminal federal immigration laws by
providing incentives such as reduced liability and specialized training. Law
enforcement can no longer sit on the sidelines and be a spectator to the
destruction of the Rule of Law and the degradation of our streets and our
neighborhoods. By our government officials failing to act they are
demonstrating their complicity for the deaths and maiming of our citizens as
they continue in their refusal to enforce our laws.
In
a recent survey by the Phoenix Law Enforcement Association (representing over
2500 police officers) it was shown that they had overwhelming support, by an 8
to 1 margin, to enforce our immigration laws. How
can we justify simply sitting and waiting for another Chandler serial child
rapist, or another Gilbert mother to be killed, or another Chris Miller to be
killed, or another Officer Erfle, Officer Martin, Officer Atkins to be
murdered? How can we not choose to enforce our laws as our citizens have a
right to expect? Alexander
Hamilton said, “If it be asked, what are the most sacred duty and the
greatest source of security in a Republic? The answer would be an
inviolable respect for the Constitution and Laws”. How far we have
come in forgetting this fact. We
encourage you to continue to enforce the laws and put Sincerely, RUSSELL
PEARCE
MARK State
Representative
State Representative
State Senator District
18
District
18
District 18 CHUCK
GRAY
WARDE NICHOLS
STEVE YARBROUGH State
Senator
State Representative
State Representative District
19
District 21
District 21 ANDY
BIGGS
EDDIE FARNSWORTH
State
Representative
State Representative District
22
District 22
"Law Enforcement’s Inherent Authority to Enforce Immigration Law:"
Congress has firmly established that there is a significant public interest in
the effective enforcement of immigration law. Congress could have chosen to
limit local enforcement pursuant to its plenary power over immigration, but it
has not done so. In the absence of a limitation on local enforcement powers,
the states are bound by the Supremacy Clause of the United ‘States
Constitution to enforce violations of the federal immigration laws. "The
statutory law of the United States is part of the law of each state just as if
it were written into state statutory law."
Often a misunderstanding of the relationship between federal criminal and
immigration law causes one to believe being present in the U.S. In violation
of immigration law is civil and "not a crime" and is clearly wrong.
The enforcement role given to local government by the Constitution and the
Congress is clear. Unsanctioned entry into the United States is a crime.
State and local law enforcement officials have the general power to
investigate and arrest violators of federal immigration statutes without prior
INS knowledge or approval, as long as state law does not restrict such general
power.
The U.S. Has a "compelling interest" in the criminal prosecution of
immigration law violators, which is a part of a comprehensive, essential
sovereign policy of uniform immigration law enforcement.
In Sections 1324 the language that referred to officers "of the United
States" when talking about authority to arrest was stricken from section
1324 by amendment. In People v. Baraja, a California court concluded,
"that change can only mean that the scope of the arrest power under
section 1324 was enlarged; in no way can it mean that the scope of arrest
under the other two sections was restricted. Such an acute non sequitur would
attribute to the Congress both serious inconsistency and profound lack of
logic."
The arrest, detention, or transportation of aliens by local police enforcing
criminal provisions of the INA is not a regulatory "determination"
of the conditions of alien entrance and residency, but merely enforcement of
the previously determined conditions. States can prosecute illegal aliens
under state laws without running afoul of the INA. State and local laws do not
attempt to regulate who may come to and stay in the U.S. , and thus do not
impinge upon the federal government’s exclusive power to regulate
immigration, even if they affect immigrants.
Other important amendments to federal law enacted in 1996 were intended by
Congress to encourage state and local agencies to participate in the process
of enforcing civil as well as criminal federal immigration laws by providing
incentives such as reduced liability and specialized training.
In 1999 a decision in the Tenth Circuit Court of Appeals upheld the
independent authority of local police departments to enforce federal
immigration law, as long as state law prescribing police power of arrest
authorized such an arrest. The U.S. Dept. Of Justice endorsed this doctrine in
April 2002. Under Attorney General Ashcroft, the U.S. Dept. Of Justice took
the position that state and local police have inherent authority to enforce
civil immigration laws.
Assistant Attorney General Kobach explained that the inherent arrest authority
of states arises from their pre-constitutional status as sovereign entities.
The powers retained by the states at the time of ratification proceeded
"not from the people of the United States, but from the people of the
several states," and remain unchanged, except as they have been
"abridged" by the Constitution. The authority of a state to arrest
for violations of federal law is thus not delegated; but "inheres in the
ability of one sovereign to accommodate the interests of another
sovereign." This federalism-based analysis has a strong judicial
pedigree.
The courts also ruled (Miller v. U.S., 357 U.S. 301, 305(1958) that a warrant
less arrest "of an arrest for violation of federal law by state peace
officers, …the lawfulness of the arrest without warrant is to be determined
by reference to state law."
Sanctuary policies are illegal. Local, state, or federal government agencies
that sanction or retaliate against employees or officials who report
immigration law violations to ICE or the Border Patrol can be sued by the
whistleblower under 8 U.S.C. 1373 or 8 U.S.C. 1644 for damages and costs.
Citizens have a constitutional right to expect the protection of federal laws
which prohibit unauthorized activities by non-citizens are denied equal
protection when a police department or magistrate acts in a manner that
encourages or assists persons selected on the basis of nationality or alienage
to engage in such unlawful activities.
Aggrieved residents may sue in state or federal court to block unlawful
municipal passive resistance policies (so called Sanctuary Policies), and may
sue officials and employees in their official or private capacities for
violations of their rights. Local government officials do not possess Eleventh
Amendment immunity or qualified immunity when sued in their official for
prospective injunctive or declaratory relief to end statutory and
constitutional violations.
"Harboring" includes any conduct that tends to substantially help an
alien to remain in the United States unlawfully. Criminal liability for
harboring or sheltering could arise from acceptance of a Mexican matricula
consular – which, presented without proper immigration documents, is prima
facie evidence of illegal alien status – by a local government agency that ,
for example, provide housing or utility assistance, made referrals to a public
or private job assistance program or detained matricula presenters for
violation of city ordinances and release them without verifying their
immigration status with the U.S. Immigration and Customs Enforcement.
No policy or humanitarian argument has been identified by the courts that
would negate the criminal mens rea of reckless disregard for the fact that
aliens are present in the United States in violation of law. Neither sanctuary
nor humanitarian concern is a valid defense to either civil or criminal
violations of the Immigration and Nationality Act. It is illegal for
non-profit, religious, or civic organizations to knowingly assist in the
commission of an alien smuggling felony, regardless of claims that their
member’ convictions may require them to assist aliens. The First Amendment
does not protect actions that aid illegal aliens to remain in the United
States.
Illegal aliens are not a suspect class entitled to Fourteenth Amendment based
strict scrutiny of any discriminatory classification based on that status, nor
are they defined by an immutable characteristic, since their status is the
product of conscious unlawful action.
Every alien who has seen issued a registration document is a required to carry
the document on his or her person. Federal regulations specify the immigration
document that are evidence of alien registration. The U.S. Supreme Court has
held that the unregistered presence of an alien in the U.S. is in itself a
crime. Failure to register is a continuing violation for which there is no
statute of limitations. Other criminal misdemeanors are failure to have a
registration card in personal possession ($100 fine and /or 30 days
imprisonment), and failure to report a change of address ($200 fine and /or 30
days).
A law enforcement officer has probable cause to detain an individual who
admits he or she is an alien (legal or illegal) but is not in possession of
registration documents. This is a crime that a warrant less arrest can be made
in most jurisdictions.
Immigration document fraud is a felony enforceable by local police officers
under 18 U.S.C. 1028. Criminalizes eight types of knowing conduct that relate
to false identification documents.
The Bail Reform Act of 1984 created a powerful detention provision that
authorizes a state of local police officer to arrest any alien other than a
legal permanent resident for a federal "offense," and to request a
local magistrate to temporarily detain the alien for up to ten days without
bail while awaiting transfer into federal custody, so long as the alien is
found to be a "flight risk" or danger to any other person or the
community."
The authority to make arrest for federal offenses under 18 U.S.C. 3041 extends
to state and local law enforcement officers. (U.S. v Bowdach, 561 F.2d 1160,
1168 (5th Cir. 1977) An illegal alien is an inherent flight risk.
Supreme Court Ruling Razes Artificial Fire Wall Between Local Law Enforcement
and Immigration Enforcement (Muehler v. Mena) 9-0 Landmark Decision
(Washington D.C.—April 1, 2005) In its March 22 ruling in the case of
Muehler v. Mena, the Supreme Court removed barriers that prevent local law
enforcement officers from questioning the immigration status of individuals
they suspect to be in the United States illegally. In this groundbreaking
decision, the high Court rejected the claim of Ira Mena, a permanent resident
of the U.S., that police had violated the Fourth Amendment while conducting a
lawful search of her home.
The Fourth Amendment provides protection by establishing that persons be
shielded against unreasonable search and seizure. Mena argued that by
questioning her, and the illegal alien detainees about their immigration
status during a lawful search, officers violated her Fourth Amendment rights.
Mena further claimed that questions asked about her citizenship required
officers to have had independent reasonable suspicion regarding the
unlawfulness of her immigration status.
Calling a decision by the 9th Circuit Court of Appeals "faulty," the
Supreme Court held that "mere police questioning [regarding one’s
immigration status] does not constitute a seizure." The Court continued
its landmark ruling on this issue by stating that "the officers did not
need reasonable suspicion to ask Mena for her name, date of birth, or
immigration status."
"Whatever legal fig leaf many police departments have been using to
justify policies of non-cooperation with federal immigration authorities, has
been stripped away by this landmark Supreme Court decision,"
"If local police are barred from cooperating with federal authorities in
the enforcement of U.S. immigration laws it is purely a political decision on
the part of local politicians and police chiefs. There is no legal barrier to
local police inquiring about a person’s immigration status and then acting
upon the information they gather."
Congress expressly intended for local law enforcement to act in cases in which
officers have reason to believe that an individual is in the country
illegally, even though immigration law enforcement is not their primary
responsibility. In 1996, Congress passed and President Clinton signed
legislation that protects individual officers who act to enforce federal
immigration laws, even if their departments have non-cooperation policies.
"In Muehler v. Mena the Court reinforced the clear intent of Congress in
this matter," said Stein. "Inquiring about an individual’s
immigration status can and should be a routine part of ascertaining
information, no different than asking questions about one’s name, or date
and place of birth. Local police come into contact with people who are
violating federal immigration laws on a daily basis. Freeing local police to
inquire about an individual’s immigration status and allowing them to act is
essential to curbing mass illegal immigration and protecting our homeland
security."
Any decision by law enforcement not to enforce immigration laws is a political
decision by politicians and local police chiefs, not a lack of authority.
A recent Memo by the U.S. Justice Dept. makes it clear local law enforcement
can enforce immigration laws
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