Saturday, February 21, 2009

The arguments of the PRO’s and Plausible Distinction

“Plausible Distinction” is the clause the PRO side uses to argue that legal/illegal status can not be determined by simply looking at a person. Sure, we can use deductive reasoning that they may be foreigners, but we can not determine if they are here legally or not.

Due to this argument, “Plausible Distinction”, the PRO side argues that “All persons within the USA are covered by the Constitution and the Bill of Rights”. To a certain degree that may appear to be true, at least up to the point of determining the legal/illegal status of a person. Once their status has been determined, it limits their coverage. The problem is that the PRO side confuses "Civil Liberties" with "Civil Rights" (see above post). A Citizen is granted full coverage of the Constitution (Civil Liberties and Rights), while a legal immigrant (a person here on a granted visa) does retain some basic liberties from the Constitution and civil rights, they are not granted full liberties. Once a person is determined to be in the USA without a legal granted visa or their visa has expired, they are denied all liberties by our Constitution, however they do retain certain civil rights. The civil rights (14th Amendment Equal Protection Clause) they have at that point are the rights granted to them by being "within the jurisdiction" of the United States, however that does not make them "subject to the jurisdiction of the United States.

The next argument is that all children born in the USA are granted automatic birthright citizenship. This is a perceived notion. The Federal Government does not issue birth certificates, the County Government of the State in which the child was born does. When a child is born, the Hospital issues a Certificate of Live Birth, the parent than fills out a form and submits it along with the Certificate of Live Birth to the local Government which then grants a Birth Certificate. The local Government does not question the status of the parents, thus they grant a Birth Certificate which is than accepted as documented proof of Citizenship for the child. SCOTUS has yet to have a case which determines the legality of this practice or if the State can ask for the parents legal status/documents without having reasonable suspicion and/or plausible distinction.

Let’s move on to law enforcement and the 287(g) Memorandum of Agreement. First, Local officers are limited in their ability to ask the legal status of persons, however they are not denied from asking under certain circumstances. An officer can ask for identification of all persons inside a vehicle or within an investigation, and if no documentation is offered, than due to “reasonable suspicion”, the officer can then proceed to determine the status of the persons in question. If found to be in the USA without proper documentation, can be held until an Immigration Officer picks him/her up from custody. 287(g) takes the “reasonable suspicion” out of the equation, simply because the officer who has 287(g) status is working in conjunction with the Federal Government as a Federal Immigration Officer. The guidelines for the 287(g) Officers grants them the ability to question suspected aliens about their immigration status, and can search them and their homes without warrants , nor do 287(g) officers have to read "aliens" Miranda rights. Arrested immigrants do have the right to a lawyer, but they will need to find and pay for the lawyer themselves.

Now, let’s look at E-Verify, which is 99.6% accurate in determining if a person can legally work within the USA. The PRO’s argue that because it is not 100% accurate it is a failure, but what they fail to accept is that the .4% inaccuracy is simply due to women/men who never changed their names on their Social Security Cards due to either marriage or divorce. This is something easily rectified once brought to the attention of the employee, which then has 90 days in which to resolve the issue. The PRO’s argue that employers should be able to hire whom ever they choose, while that may be good for the employer it is far from fair to the employee which if he/she is undocumented, is usually exploited by not getting company benefits if offered, less pay for the same work, and taken advantage of in ways that a legal worker could not be. We all agree the employers should be held accountable, yet the one tool that would do that, the PRO side does not want used.

Lastly, the claim that the Immigration System we have is unfair and not equitable to all is but another misconceived notion. Every person entering the US must have a Passport or equivalent to include American Citizens returning from abroad, our Government has the attitude that every single person on earth wants to become a Citizen of the US. It is required by every country worldwide now, to have a passport to enter. There are even countries that if you are an American Citizen, you are denied entry or at the very least heavily scrutinized prior to being granted entry. Canadians entering the US fall under the same rules as all others, max stay under 180 days, must present documents at border crossings, and can be denied entry due to many things. Canadians can not come and go as they wish, they are also not part of the Visa Waiver Program. I use Canada simply because the PRO side argues that Canadians have special privileges not granted others, yet Canada and Mexico are allotted the TN visa for which no other nationality can hold. Mexico is also given the highest entry on visa quota to the USA in the world. So I ask, how is our immigration system unfair to Mexicans, or for that matter immigrants in general? Because from what I see, Mexicans are granted privileges no other country in the world is granted, with the exception of Canada being given the same privileges as Mexico.


Alie said...

From Bobo on Hispanic Business Forum:

I believe Mixingitup is mixed up! This describes the 1996 (not 1986) law whereby ICE can delegate immigration enforcement to state and local authorities. Note that unless ICE enters into an agreement with state or local police, they have NO immigration enforcement jurisdiction.

Section 287(g), Immigration and Nationality Act;
Delegation of Immigration Authority
A Law Enforcement Partnership

Terrorism and criminal activity are most effectively combated through a multi-agency/multi-authority approach that encompasses federal, state and local resources, skills and expertise. State and local law enforcement play a critical role in protecting our homeland security because they are often the first responders on the scene when there is an incident or attack against the United States . During the course of daily duties, they will often encounter foreign-born criminals and immigration violators who pose a threat to national security or public safety.
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.
Memorandum of Agreement

The MOA defines the scope and limitations of the authority to be designated. It also establishes the supervisory structure for the officers working under the cross-designation and prescribes the agreed upon complaint process governing officer conduct during the life of the MOA. Under the statute, ICE will supervise all cross-designated officers when they exercise their immigration authorities. Once the scope of limitations of the MOA has been reached, the assistant secretary of ICE, and the governor, a senior political entity, or the head of the local agency may sign the MOA, requesting the cross-designation.

Liquidmicro said...

Note that unless ICE enters into an agreement with state or local police, they have NO immigration enforcement jurisdiction.

What Bob fails to realize or understand is that a Local/State Officer can and do have the jurisdiction to detain and hold persons found to be "Illegal Immigrants" due simply to "Reasonable Suspicion".

Judge dismisses immigrants’ suit

"a 2005 U.S. Supreme Court case found that “an officer did not need independent reasonable suspicion to question an individual about her immigration status during the execution of a search warrant,” and the rule applied in this case as well.

Inquiring about a person’s name, date and place of birth, or immigration status does not constitute unreasonable search and seizure under the Fourth Amendment, she said.

Lisi said the trooper had a right to inquire about immigration status after all but four of the occupants of the van “had failed to provide any identification and Chabot’s suspicions reasonably escalated.”

She said that under two Supreme Court decisions, “It is permissible for officers to inquire into the immigration status of individuals without triggering the Fourth Amendment or requiring independent reasonable suspicion.”

The men in the van said they were going to work in Westerly, and immigration was contacted only after learning that most people in the van lacked documentation."