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From Immigration and Customs Enforcement (ICE) Secure Communities (SC) Standard Operating Procedures (SOP)
Use of IDENT/IAFIS for the purposes of racial and/or ethnic profiling or other activity in violation of the Fourth Amendment of the United States Constitution is not permitted and may result in the suspension of the local jurisdiction engaged in the improper activity. ICE reserves the right to take appropriate remedial action if necessary.
IDENT/IAFIS (http://www.globalsecurity.org/security/systems/ident-iafis.htm) is the "interoperability interface" for the domestic intelligence apparatus.
The disclaimer fulfills the legal obligation of the DHS to disavow any codified practice of unlawful targeting of individuals based on their apparent ethnicity. However the practice of the law, under local legislation such as AL HB 56, does not reflect ardor regarding prohibition of race-targeted apprehensions (or reports thereof). The DHS and particularly ICE are remiss in failing to address state policies which concern their jurisdiction; in the case of HB 56, it seems to have fallen to the Department of Justice (under pressure from minority. Immigrant’s rights, and other civil liberty monitors/interest groups) to check Alabama’s overstepping of Constitutionally-enumerated bounds.
Just last week, the DOJ expressed its concern openly in communication with Alabama lawmakers and the enforcement community.
In a correspondence dated December 2, 2011, the US Department of Justice admonished Montgomery County, AL authorities concerning the upholding of Civil Rights protections under Alabama’s new immigration law. The character of the memorandum stops short of being explicitly litigious.
The Civil Rights Division of the Department of Justice is closely monitoring the impact of HB 56 in a number of areas to ensure compliance with applicable civil rights laws, including to ensuree that law enforcement agencies are not implementing the law in a manner that has the purpose or effect of discriminating against the Latino 01' any other community.
We are also very concerned about the impact of HB. 56 on victims of crime, in particular in cases of sexual assault and domestic violence.
As a recipient of federal financial assistance, your agency is required to comply with various non-discrimination requirements under federal statutes and regulations, including Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, and the Omnibus Crime Control and Safe Streets Act of 1968, 42 U.S.C. § 3789d(c) (Safe Streets Act). The federal government may, in some circumstances, terminate federal funds or bring a civil lawsuit in federal court seeking affirmative relief to enforce Title VI, the Safe Streets Act, and their implementing regulations.
The DOJ in fact has brought suit seeking that HB 56 be struck down entirely. While the dialogue among activists and the media has been focused on Civil Rights violations (under any number if protections, from the Civil Rights Act of 1968, to U.S.C. § 1983 (http://www.constitution.org/brief/forsythe_42-1983.htm)to the Fourteenth Amendment to the US Constitution), the Justice Department has invoked the preemptive power of the Supremacy Clause.
The federal government has historically practiced a meat-and-potatoes Articles approach to correcting wrongs prohibited by the 14th Amendment (which is supposed to provide for equal unqualified protection under the law). In order to force intergration on businesses after the passing of the CIvil Rights act in 1968, the Department of Justice resorted to the Interstate Commerce clause
In their complaint filed in The US District Court of Northern District Of Alabama, Southern Division, UNITED STATES OF AMERICA, v. STATE OF ALABAMA & GOVERNOR ROBERT J. BENTLEY, the DOJ outlines a solid prohibition of the implementation of HB 56 policies by virtue of the Constitutional preemption under the Supremacy Clause.
This article paraphrases (except where indicated by quotation or explicit annotation) the enumerated grievances of the Department of Justice regarding Alabama HB 56’s failure to incorporate federal preeminence.
The statutory premise for the DOJ challenge of the law stems from their contention that it obviates the due execution of immigration policy as enacted under federal law and regulation, and as such must be adjudicated as invalid under Article 6 of the US Constitution.
The plaintiff submits that the federal government has preeminent authority to regulate immigration matters which derives from the United States Constitution as well as numerous acts of Congress.
In the undertaking of national immigration policy concerns, there is a wider context of complex national interests and strategies for which Congress has tasked the United States Department of Homeland Security, Department of Justice, Department of State, and other federal agencies with accommodating in their administration of Immigration law. States’ liberty to utilize their police powers in a manner that has an incidental or indirect effect on aliens cannot effect the establishment of a State’s own immigration policy in interference with the above mentioned agencies’ execution of their Article 6 mandate. The government’s text characterizes:
“The Constitution and federal immigration laws do not permit the development of a patchwork of state and local immigration policies throughout the country.”
( see figure based on image (Diana Hubert/The Epoch Times) found http://www.theepochtimes.com/n2/united-states/feds-sue-alabama-over-immigration-59898.html)
The complaint cites an interview with AL state Rep. Mickey Hammon (R) in which he told the New York Times:
“[The goal of HB 56 is] to prevent illegal immigrants from coming to Alabama and to prevent those who are here from putting down roots.” (In Alabama, a Harsh Bill for Residents Here Illegally, New York Times, June 3, 2011. http://www.nytimes.com/2011/06/04/us/04immig.html )
BE SURE TO "MOUSEOVER" THIS PIC.
Always, always classy.
Representative Hammon stated his opinion that the law would make undocumented immigrants’ lives “difficult” and that “they will deport themselves.”
As crops have gone un-harvested and whole businesses have found themselves unstaffed in the wake of an immigrant exodus, thousands (including large numbers of properly documented immigrants) have indeed fled for fear of incarceration, the Governor and other state officials have denied that the law’s motive includes intimidating marginalized ethnicities to seek refuge across Alabama’s borders.
MOUSEOVER. AS A RULE
As passed, the bill’s provisions seek to detect and punish unlawful entry by requiring the ascertainment of immigration status during all lawful stops by any local law enforcement agent, where there is “reasonable suspicion” that an individual is unlawfully present. The bill enacts new state punitive and criminal sanctions against unlawfully present aliens.
The mandate to enforce H.B. 56 to the *fullest extent possible (the complaint addresses this presently in general response to bill’s repeated insistence on “maximum enforcement”) is reinforced by a provision allowing for any legal resident of Alabama to file suit against any state or local authority that “adopt[s] or implement[s] a policy or practice that limits or restricts the enforcement of this act to less than the full extent permitted by this act.”**Ala. H.B. 56 § 6(d).
Any such authority held liable would face civil penalties of between $1,000 and $5,000 “for each day that the practice or policy has remained in effect after the filing of an action” for under-enforcement. Persons working for state or local authorities have an affirmative duty to report violations of H.B. 56 where the person has “reasonable cause to believe”* that H.B. 56 is being violated. A failure to report a violation is a criminal offense. *Ala. H.B. 56 § 6(f).
“Maximum enforcement” as an overriding principle of AL H.B. 56 effects the neglect of established federal immigration policy priorities, and the DOJ submits that this failure to facilitate US national immigration policy focus constitutes sufficient conflict to invoke Constitutional preemption of the AL law. “Even where Alabama appears to pursue one of the goals of the federal system, it does so to the detriment of other federal immigration priorities, thereby disrupting federal immigration enforcement and burdening resources that focus on aliens who pose a threat to national security or public safety.”
This photo is from Occupy Birmingham's road occupation to Columbus and Fort Benning for School of the Americas Watch. (SOAW website http://www.soaw.org/about-the-soawhinsec/what-is-the-soawhinsec)
An interjection seems appropriate that while the DOJ is showing due-diligence in policing their jurisdictional prerogative, egregious human rights crimes are perpetrated in broad daylight within our borders under orders from our defenders.
Justice is adamant that H.B. 56’s enforcement scheme is in conflict with and will undermine the federal government’s “careful balance of immigration enforcement priorities and objectives." The DOJ contends that such will occur through the imposition of detrimental burdens on federal agencies’ Constitutional and Congressional charge to enforce the national immigration scheme; the diversion of resources and distraction from high priority aliens, those assessed as posing a specific national security or public safety threat.
The DOJ predicts that the new guidelines will result in the apprehension of authorized visitors, or citizens not required to carry ID by statute. More, it will “conflict with longstanding federal law governing the registration and employment of aliens. It will also conflict with the administration and enforcement of U.S. education laws. And it will undermine federal law and invade federal authority by imposing punitive sanctions for conduct that falls outside of the state’s police powers and that Congress affirmatively decided should not be subject to such sanctions.”
The DOJ emphasizes that the federal government is not unsympathetic to Alabama’s concerns with the issue of illegal immigration and welcomes further cooperation from state agencies; however, the Supremacy Clause forbids Alabama from “supplanting the federal government’s immigration regime with its own state specific immigration policy.” HB 56 violates the Article 6 provision for federal prerogative and therefore must be struck down.
I just have to get one more look at Bentley....
If you didn't mouseover, it's not too late.