SB1070 and those who are benevolent

Why is it that Lawyers always think they know everything? Why is it that they fail to actually understand and/or read what they opine about? In a CNN opinion article written by Chandra Bhatnagar, he claims that the Arizona law is in some way violating the ICERD based on an underscore of UN experts writing a letter of discontent.

Mr. Bhatnagar states:

The law flies in the face of Arizona's human rights obligations, particularly the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), which the United States ratified in 1994 and which is binding on all levels of federal, state and local governments, including Arizona Gov. Jan Brewer, who signed the bill.

The problem with his meager claim is two fold; first the Arizona Law is not an immigration law it is a criminal law which is pretty much what is already a law in California, and second the ICERD that Mr. Bhatnagar refers to allows in Article 1.2: Distinctions made on the basis of citizenship (that is, between citizens and non-citizens) are specifically excluded from the definition, as are affirmative action policies and other measures taken to redress imbalances and promote equality.

So then why all the "boycott" of Arizona? Where is the "boycott" of California?

The Significance of Domicile in Interprating Birth Right Citizenship

The Citizenship Clause of the Fourteenth Amendment establishes citizenship as a birthright for all children born in the United States, so long as they are “subject to the jurisdiction thereof.” Territorial birth, “subject to the jurisdiction” requires a mutual consensual relationship between individuals and the U.S. political community; children of undocumented immigrants, lacking such a relationship, are thus putatively precluded from constitutional birthright citizenship.

The 14th Amendment’s Citizenship Clause draws heavily on the text of a similar citizenship provision in the Civil Rights Act of 1866, written by Senator Lyman Trumbull. In a letter to President Andrew Johnson summarizing the draft Act, Trumbull said that birthright citizenship depended on whether the parents of children born in the United States were living permanently, “domiciled,” here.

Domicile had an unambiguous definition in 1866: one acquired domicile in a nation or a particular place by moving there with the intention of making it one’s permanent residence. Only two prerequisites must be satisfied for domicile to exist: “residence; and . . . intention of making it the home of the [person]”.

A person could change domicile by leaving one jurisdiction and settling in another, regardless of whether those jurisdictions were states within a country or separate nations. In certain international contexts (such as neutrality agreements), acquiring domicile resulted in “a national character [being] impressed upon a person, different from that which permanent allegiance gives him”; such a person, though, could easily choose to cast off that “national character” by returning to his or her native country. Domicile and citizenship were thus distinct from one another, and acquiring the former in a new country did not alter the latter.

Now let's discuss allegiance, the “complete, political jurisdiction” over an individual that flows from the individual’s “allegiance to the sovereign.” Allegiance involves renouncing their previous allegiance, or at least formally demonstrating “commitment” to the United States by obtaining permanent resident status and assuming the “contributive responsibilities” of citizens. Further, affiliation must be met with the “reciprocal consent . . . of the nation to [the individual’s] membership.”

Taking domicile to be the birthright citizenship standard may just limit bestowed citizenship upon birth much better than the allegiance argument as used today to interpret the 14th Amendment. First, children born within the territorial boundaries of the United States are U.S. citizens (or not) based on their parents’ domicile, not citizenship or political status. Using domicile as the benchmark also contradicts today's argument that “subject to the jurisdiction” refers not to universally applicable territorial jurisdiction, but a narrower, “political” type. To gain domicile in 1868, one had only to have lived within the territory and planned to permanently remain; one did not need to first transfer one’s sovereign allegiance. Any new “national character” that one took on through acquiring domicile in a new country was merely “adventitious,” and could “be thrown off at pleasure” by leaving the country without intent to return. This is not exactly lasting political affiliation or allegiance.

If domicile is the appropriate standard, individuals born here and subject to our laws would not be “subject to the jurisdiction” for citizenship purposes if their parents were here only temporarily. Using domicile in this way is thus more restrictive than the pure territorial approach: it requires parents to have some meaningful ties to the country in which they are living for children born there to be citizens.

Domicile requires individuals to integrate themselves into a nation’s social fabric through residence such that they consider it their home and have no plans to leave. Beyond residence, it requires that an individual seek, and the country accept, affiliation between the individual and the government of the country. Thus, those here on non-immigrant visas should not have bestowed upon their children born within the boundaries of the United States of America, birthright citizenship, as they themselves are not intending to permanently reside or be domiciled within the USA, and they do not intend to give their "allegiance" to the US Constitution. This should also deny children born to illegal immigration entry violators, birthright citizenship.

The case for Arizona's SB1070

The argument over States Rights and immigration is a fairly new ordeal. The CLEAR Act of 2003 and the Homeland Security Enhancement Act of 2003 has prompted many to question what role state and local law enforcement agencies should have in the enforcement of immigration law. Directly from the CRS Report for Congress; Enforcing Immigration Law: The Role of State and Local Law Enforcement, March 2004.

Congress defined our nation’s immigration laws in the Immigration and Nationality Act (INA) (8 U.S.C. §§1101 et seq.), which contains both criminal and civil enforcement measures. Historically, the authority for state and local law enforcement officials to enforce immigration law has been construed to be limited to the criminal provisions of the INA; by contrast, the enforcement of the civil provisions, which includes apprehension and removal of deportable aliens, has strictly been viewed as a federal responsibility, with states playing an incidental supporting role.

Congress, through various amendments to the INA, has gradually broadened the authority for state and local law enforcement officials to enforce immigration law, and some recent statutes have begun to carve out possible state roles in the enforcement of civil matters. The legislative proposals that have been introduced, however, would appear to expand the role of state and local law enforcement agencies in the civil regulatory aspects of immigration law (i.e., identifying and detaining deportable aliens for purposes of removal).

Alien Criminal Apprehension Program
The Alien Criminal Apprehension Program (ACAP) was established in 1991 by the former INS. Through ACAP, criminal aliens are identified by immigration officials after they have been notified by state and local law enforcement officials. Upon an encounter with an immigrant whose immigration status may be in question, state and local law enforcement officials notify immigration officials, who determine the immigrant’s status and, if applicable, take the immigrant into federal custody.

Although there is quite a bit of debate with respect to state and local law enforcement officers’ authority to enforce immigration law as a matter of practice, it is permissible 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 authority.

For example, when state or local officers question the immigration status of someone they have detained for a state or local violation, they may contact an 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, and solely designed to aid in enforcement of federal immigration laws, may be unlawful.

The power to prescribe rules as to which aliens may enter the U.S. and which aliens may be removed solely resides with the federal government. It has generally been assumed that state and local officers may enforce the criminal provisions of the INA if state law permits them to do so but are assumed to be precluded from directly enforcing the INA’s civil provisions. State enforcement of the criminal provisions of the INA is seen as being consistent with the state’s police power to make arrests for criminal acts and the expectation that states are expected to cooperate in the enforcement of federal criminal laws.

To the degree that it is not preempted, the authority of state and local law enforcement officers to investigate and arrest for violations of federal law is determined by reference to state law. This may be done through express authorization in state law. However, this may not be necessary according to some recent decisions from the Tenth Circuit that appear to suggest that state and local law enforcement officers may possess “inherent authority” within their respective jurisdictions to investigate and make arrests for criminal immigration matters.

However, civil violations of the INA are also found to be within the jurisdictional authority of the state and local law enforcement. In the Tenth Circuit case of United States v. Salinas-Calderon, a state trooper pulled over the defendant for driving erratically but soon found six individuals in the back of the defendant’s truck. The court determined that the trooper had "probable cause" to detain and arrest all the individuals. In United States v. Vasquez-Alvarez, an Oklahoma police officer arrested a Hispanic male suspected of drug dealing because he was an “illegal alien.”

The defendant argued that the state police could only arrest him in accordance with the restrictions detailed in 8 U.S.C. §1252c and since his arrest did not meet the requirements of that provision, it was unauthorized. The Tenth Circuit, however, ultimately concluded that §1252c “does not limit or displace the preexisting general authority of state or local police officers to investigate and make arrests for violations of federal law, including immigration law. Instead, §1252c merely creates an additional vehicle for the enforcement of federal immigration law.”

Clearly preemption does not bar state and local immigration enforcement where Congress has evidenced intent to authorize such enforcement. In exercising its power to regulate immigration, Congress is free to delegate to the states, among other things, the activities of arresting, holding, and transporting aliens. Indeed, Congress already has created avenues for the participation of state and local officers in the enforcement of the federal immigration laws.