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The absence of leadership from the Bush Administration and the enforcement-only approach taken by the U.S. House of Representatives have emboldened state and local legislators to attempt to enact immigration policies of their own.
Much of the legislation has been restrictive and overwhelmingly negative in scope. It has been opposed vigorously by the Mexican American Legal Defense and Educational Fund and other Latino immigrant rights, religious and labor organizations. As the U.S. Senate begins to take up comprehensive immigration reform, litigators and advocates need to pay close attention to state and local legislatures as well.
Under the U.S. Constitution, the setting of immigration policy belongs under the purview of the federal government. Typically, in cases that interpret the Constitution's Supremacy Clause, the responsibilities to naturalize new citizens, enforce land and sea borders, and grant or deny admission to the United States are deemed to be federal functions.
On that basis, last summer MALDEF successfully helped challenge the actions of two New Hampshire local police chiefs who sought to apply state trespass laws against eight Latinos allegedly in the United States illegally and thus, according to the police, were in their towns without permission.
Had the Hudson and New Ipswich police in New Hampshire prevailed, sheriffs and police chiefs in cities and towns across the country - with no training or understanding of immigration categories or documentation - could have attempted unlawfully attempted to apply similar laws in their jurisdictions.
Local law enforcement of immigration laws by untrained officials can easily lead to racial profiling, with police demanding documentation from individuals they perceive as "looking foreign" regardless of their citizenship or immigration status. This has been the experience with employer sanctions, where, for almost the past two decades, many employers of Latino workers have made excessive requests of documents beyond what the law requires.
A more dangerous consequence of involving local law enforcement in immigration laws is the damage it does to police-community relations. For example, local law enforcement officials are hard pressed to educate and reassure domestic violence victims and their advocates that the same officer who responds to a call for help will not use his new immigration authority to pressure witnesses or family members to cooperate
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