Sunday, June 19, 2011

Oklahoma's high court upholds state's anti-illegal immigration bill

The state Supreme Court on Tuesday upheld a lower court's decision that determined virtually all of the state's anti-illegal immigration law is constitutional.

“It is not the place of the Supreme Court or any court to concern itself with a statute's propriety, desirability, wisdom or its practicality as a working proposition,” the 25-page ruling states. “Such questions are plainly and definitely established by fundamental laws as functions of the legislative branch of government.”

Rep. Randy Terrill, the author of House Bill 1804, said he was pleased the high court has validated virtually all of the measure. The law makes it illegal to knowingly transport illegal immigrants, creates state barriers to hiring illegal workers and requires proof of citizenship before a person can receive government benefits.

“For the most part, the multipronged attack that was initiated against House Bill 1804 has failed,” said Terrill, R-Moore. “This Oklahoma Supreme Court opinion has validated virtually all of House Bill 1804 with just a couple of exceptions.”

James C. Thomas, a Tulsa attorney who filed the lawsuit, said he is disappointed with the ruling.

“They still said the Legislature's free to treat people that the Legislature is fearful of in a draconian manner,” said Thomas, who recently retired as a University of Tulsa law professor. “I think it's a political decision and not a legal decision.

“I guess the consequences will be that the Legislature's going to feel free to become even more draconian,” he said. “We close our minds to humanity issues in these kinds of cases; that's what the court has done.”

Key portions of the law were enforceable despite the legal challenge. Enforcement has been sporadic and it's not clear whether that will now change.

What wasn't valid?

The high court in an 8-1 vote did strike down a provision of HB 1804, which took effect in 2007, which denies bail to illegal immigrants arrested on felony counts or driving under the influence complaints.

The Supreme Court ruled it should be left up to the courts to decide on bail.

“Whether a particular defendant is a flight risk is a determination to be made by the trial judge in that case,” the ruling states.

Chief Justice Steven Taylor dissented in that part of the ruling. He said he found HB 1804 “to be constitutional in all respects.”

Terrill said he plans to introduce legislation next year that would address the flight risk issue. He said he is considering seeking a proposed constitutional amendment that would be up to voters to approve that would deny bail for illegal immigrants arrested for misdemeanors, felonies and driving under the influence offenses.

“I'm very concerned that it creates a public safety risk for the citizens and taxpayers of the state of Oklahoma,” he said. “They have very little if any ties to the state of Oklahoma so they have no incentive to remain here. They would therefore, upon being charged with a crime and upon being released, would flee the jurisdiction. So not only does it create the risk that they could commit an additional crime against the citizens and taxpayers of the state of Oklahoma but also that they would never be held accountable for the initial crime for which they were charged.”

What was validated?

Key parts of HB 1804 validated in the ruling, Terrill said, include:

* Illegal immigrants cannot get an official government-issued form of identification, such as a driver's license or occupational license.

* Illegal immigrants are ineligible for most forms of state taxpayer-funded public assistance or entitlement benefits.

* State and local law enforcement officials can cooperatively enforce federal immigration law. They can't decide who gets to come into the U.S. and how long they get to stay.

* The state can require employers to check the legal status of their employees.

Terrill said the opinion cited a recent U.S. Supreme Court ruling that upheld an Arizona law penalizing businesses for hiring illegal immigrants, which is a key provision of HB 1804 that has been tied up in federal court. That ruling says federal immigration law gives states the authority to impose sanctions on employers who hire unauthorized workers.

“This opinion when you couple it with the previous U.S. Supreme Court opinion ... seems to suggest that the state does in fact have a great deal of latitude to further crack down against illegal immigration if it chooses to do so,” Terrill said.

Other measures failed

Terrill and other legislators who tried to pass tougher anti-illegal immigration measures this past session had little success in the Republican-controlled Legislature. Instead, legislative leaders formed a special joint committee to develop a bill that included provisions to bar children of illegal immigrants from receiving tuition assistance for postsecondary education, allow state agencies to report illegal immigrants who apply for state or federal aid, require employers to verify the immigration status of potential employees, outlaw the practice of illegal immigrants seeking work as independent contractors, and making it a crime to pick up illegal immigrants for the purpose of employing them.

The final product ended up targeting human smugglers and others who take advantage of illegal immigrants; it was voted down in the House of Representatives.

The legal challenge to HB 1804 was filed in 2008 by Michael C. Thomas, of Tulsa, who worked for a local mental health association. He filed his lawsuit in Tulsa County District Court against then-Gov. Brad Henry, the state of Oklahoma and Tulsa County's board of county commissioners.

The Supreme Court agreed with the Tulsa County judge's ruling that one part of HB 1804 was unconstitutional because it didn't deal with immigration issues. That section dealt with denying resident tuition for higher education to illegal immigrants who successfully completed the General Education Development test.

Thomas argued in his challenge that the state constitution stipulates that the Legislature cannot appropriate public money to establish a bureau of immigration.

The high court said the constitutional provision written in 1907 prohibited appropriating state money to fund a state bureau of immigration with the purpose of attracting additional people to settle in Oklahoma. In this case, the state is not attempting to regulate immigration, but rather use a federal database to confirm the immigration status of a person accused of a crime, the justices said.

“HB 1804 mandates compliance with federal immigration laws and it seeks to establish cooperation with the federal government,” the opinion states. “States are permitted to enforce immigration laws.”


Big change in Mexican immigration law

The direction of law changes North of their border will obviously not be lost on them so the new move is most obviously to set an example for how they want their own citizens treated in the USA -- but they probably also realize that most illegals are simply in transit North so are not worth any trouble. How Mexican police treat illegals will be another matter of course

Perhaps attempting to persuade its powerful neighbor to the North to do the same, last month, major revisions to Mexico’s immigration laws came into effect.

The law has now become more “humane” and immigrant friendly. Among the changes announced are:

1) Illegal entry into Mexican territory is de-criminalized. This means that it is no longer a criminal offense to enter Mexico illegally, and violators will merely be sent back to where they last came from. Previously, illegal immigration was a felony, punishable by up to two years in prison. Immigrants who were deported and attempted to re-enter Mexico could be imprisoned for 10 years. Visa violators could be sentenced to six-year terms. Mexicans who helped illegal immigrants were also subject to criminal prosecution.

2) Illegal migrants will no longer be jailed. They will be taken to a facility run by the Instituto Nacional de Migracion (INM) where they will be fed, clothed, given medical care and the ability to contact their families in their country of origin.

3) Illegal migrants will have the right to seek political asylum or refuge in Mexico and will have a right to a hearing before a judge.

4) Local police, the military, customs and even the Policia Federal will no longer have the authority to question any foreigner’s migratory status. They no longer have any authority to arrest or detain any person suspected of being in the country illegally. Only officials from the INM can do this.

5) Illegal migrants can be given the opportunity to regularize their status and obtain a work/residence permit.

6) Controls are loosened for citizens/nationals of Belize who find an employment in certain Mexican states (i.e. Quintana Roo) to ease the process of a work/residence permit.

The official line from a Mexican government spokesman that my friend and business partner P.T. Freeman listened to on the radio was that Mexico has amended its immigration law to take into account human rights and refugee rights. However, I don’t believe this is the full story.

I think the real reason that Mexico changed its law was to send a message to the United States. Under federal law, any non-U.S. national who enters or attempts to enter U.S. territory in a manner other than through ordinary channels has committed a crime. Violations are punishable by criminal fines and imprisonment for up to six months. Repeat offenses can bring up to two years in prison.

Numerous states, most notably my home state of Arizona, have attempted to enforce their own immigration laws. The most controversial aspect of the Arizona law – which never came fully into effect due to a successful court challenge – is that state and local police can ask anyone for proof of legal status in the United States. In other words, “your papers, please.”


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