Otero County, New Mexico capitulates to ACLU, MALDEF

The American Civil Liberties Union of New Mexico and the Mexican American Legal Defense and Educational Fund - two groups indirectly linked to the Mexican government - sued New Mexico's Otero County Sheriff's Department over immigration raids that occurred in that county. Based only on a few scanned news reports the raids do sound like they overstepped their bounds.

Thankfully, all is now well, as they've settled the suit and Otero County has completely knuckled under to the demands of the two illegal immigration-supporting groups, establishing sanctuary city-style procedures that are available here:


While some are defensible, Point B contains what is probably a false statement: "A person's presence in the United States without proper documentation or authority, standing alone, is not a criminal violation." In fact, re-entering illegally can be a felony in some cases, and I'd imagine that applies to their presence as well. While some provisions of the agreement may prevent actual abuses, no doubt others will be used to tie their hands and prevent them from reasonable attempts to take a role in immigration enforcement.

UPDATE: Since Findlaw is a reputable site that probably keeps their pages up-to-date, I'm going to assume that this is accurate, meaning that Point B above is misleading:

After an alien has been legally "removed" from the United States, federal criminal law makes it a felony for that alien to reenter (or be found in) the country without approval of the government.

Presumably "legally removed" doesn't apply in many cases, and in any case someone has to decide to prosecute them for the felony; see the cases of the fired U.S. attorneys Paul Charlton and Carol Lam (link).


"A person's presence in the United States without proper documentation or authority, standing alone, is not a criminal violation." Common trick designed to fool laymen. It's played two ways. One is to imply that there is no legal violation at all as if there is some void in law as it relates to mere presence OR they admit to presence being a civil violation but imply that procedural distinction somehow makes the offense of little seriousness, i.e., downplay the offense and say the proper thing for something so minor, a mere CIVIL violation, is a fine and/or something else. Once you do that, you then should be able to stay in the U.S. Anything but deportation. Civil is not a determinant of seriousness--it's what procedural rules apply. In a nutshell, mere presence IS a violation of law*. This ALONE makes a person deportable but the MALDEF types like to create the impression you have to break some non-immigration law. As a bumper sticker says: 'If you're in the country illegally, you're in the country illegally'. You don't have to have some bonus legal violation to be deported. The applicable procedure is civil, not criminal, but the law provides DEPORTATION as the outcome, not fines. It's getting kicked out of the country, not paying a traffic ticket. I'd say getting kicked out of a country is more 'serious' than some criminal penalties. The distinction between criminal and civil is thus a rhetorical ploy. However, there is an important substantive difference as it relates to local police authority to arrest for violations of federal immigration law. It is long standing policy of the Department of Justice that police can arrest for criminal violations of federal immigration law, e.g., reentry, under inherent police power so long as that is allowed by state law. It is much more debatable as to civil law although in 2002 Ashcroft did seem to include that as well. 287(g) specifically did not preempt the inherent police authority but broadened the powers to where local police, in effect, stand in the shoes of ICE. One way of looking at it is you don't have to have a 287(g) set up to arrest. And sanctuary policies like Special Order 40 are merely that, policies/guidelines but not a law or mandate from a judge. You will routinely see Special Order 40 referred to by the press as a law--it is not. This is a pretty confusing area and still being litigated but the one thing which is NOT true is that local police can have no authority as it relates to immigration law. Anyone who tells you that is just BSing or uninformed. Even more liberal litigants and arguments like http://www.migrationpolicy.org/files/authority.pdf admit there is express authority under the INA in the criminal area. Kobach's view: http://www.cairco.org/articles/art2005jul27_testimony_kobach.pdf *Sec. 1227(a)(1)(B): Present in violation of law Any alien who is present in the United States in violation of this chapter or any o

*Sec. 1227(a)(1)(B): Present in violation of law Any alien who is present in the United States in violation of this chapter or any other law of the United States, or whose nonimmigrant visa (or other documentation authorizing admission into the United States as a nonimmigrant) has been revoked under section 1201 (i) of this title, is deportable. http://www.law.cornell.edu/uscode/08/usc_sec_08_00001227----000-.html So if a new law were to classify presence as a crime it would open things up at the state level because 1227(a)(1)(B) encompasses all illegal aliens and could make all of them subject to local enforcement of federal law. If the Sensenbrenner bill would have accomplished that perhaps that is one of the reasons the 'making it a crime' part was so resisted beyond using that angle to motivate participation in the May 1 rally and harshness appeal.

Long article by FAIR attorney on local enforcement of fed law: http://www.irli.org/Chimeraandthecop.pdf

A person's presence is not a criminal violation (although it does make them removable). Illegal entry, without doubt, is a crime . See 8 USC 1325(a)(improper entry by alien)(misdemeanor 6 month maximum sentence). Kevin Bove Attorney at Law 117 N. Broadway Escondido CA 92025 (760) 735-2900 kevinbove@aol.com