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Immigration Reform: Fact or Fiction? Part 1 of 2

Five years ago, if you had asked when we would finally see Comprehensive Immigration Reform (CIR), the answer would have been “any moment now.” Today, however, no one knows, but it will probably not happen anytime soon. Unfortunately, CIR is not a very popular political issue right now. In fact, most Americans seem adamantly opposed to the idea of anything beyond immigration enforcement, and their opposition has turned to what could fairly be described as anger, prejudice, or even hatred.

Contrary to public opinion, simply being present in the United States without authorization is not a federal crime. Rather, it is a civil issue which is addressed through the Immigration Courts, not through criminal courts. The correct description for an “illegal immigrant” is an undocumented alien, a person who entered without inspection, or someone who is out of status. The irony that a nation of immigrants has become intolerant of immigrants cannot be overlooked. I have often stated that if it had been only 5% as difficult to immigrate to this country in the past as it is today, 95% of us would not be here.

Currently, about half of the states have considered or are debating immigration legislation. Arizona, Utah, Indiana, Georgia, Alabama and South Carolina have enacted laws attempting to grant state and local officials the authority to deal with “illegal immigrants” and “enforce” federal immigration laws. Some of these states have attempted to turn the non-criminal act of being undocumented in the United States into one which can be punished criminally at the state level. Some of these state laws also attempt to criminalize actions by U.S. citizens who help, harbor, transport, or provide services to “illegal immigrants.” In fact, these laws could be interpreted to criminalize actions and services provided by civic, social, and religious organizations, or even attorney and his team who provide assistance to “illegal immigrants.”

Fortunately, federal courts are overwhelmingly expressing concerns about these laws and striking down portions of them that conflict with federal immigration authority. In fact, no state anti-immigration law has survived a federal judicial review when challenged. Portions of these new laws in Arizona, Utah, Indiana and Georgia have already been struck down; a federal class action lawsuit against the new Alabama law (which has been described as one of the harshest passed yet) was filed just last week, and South Carolina’s law (the newest one) will surely come under attack soon. These battles are just beginning and unfortunately, many undocumented aliens will be caught in the middle of the fight.

Part 2 of this article will discuss specific immigration reform bills that have been introduced in Congress this year, their prospects for passage, and how the battle between states and the federal government could affect Comprehensive Immigration Reform in the future.

Originally Published: La Costa Latina, August, 2011

The information provided in this column is for general information purposes only, and is not intended to constitute legal advice.
If you have specific legal questions, you are encouraged to contact an attorney