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Immigration bill could bring Indiana into the national spotlight

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On May 9, Indiana was still awaiting word about whether Gov. Mitch Daniels would sign Senate Enrolled Act 590. After a protracted volley between the House and Senate, the bill designed to crack down on illegal immigration passed on April 29, its language considerably altered from the introduced version.

Proponents of the legislation say it’s a reasonable approach to the growing problem of illegal immigration. Those who question SEA 590 single out specific points for scrutiny – such as the language that states a law enforcement officer may arrest someone if an immigration court has issued a removal order for the person.     

Marion County Superior Judge Jose Salinas said that when a removal order is issued, the defendant has the opportunity to appear before the Immigration Court in Chicago to ask to fight deportation. The court may set a new hearing for a future date.

Judge Salinas said he wondered how or when the U.S. Department of Immigration and Naturalization Services would communicate updated information to police. He proposed a hypothetical scenario in which police initiate a late-night traffic stop and run a check on the driver’s name, only to find an active removal order has been issued.

“What does it show on their records when they’re given a future court date?” he said. “How will the police access that information?”

Linton Joaquin, general counsel for the National Immigration Law Center in Los Angeles, said in an email to Indiana Lawyer, “… a police officer in the field would have no way to know whether an immigrant who is subject to a removal order is contesting the order on appeal, or is otherwise not subject to detention by federal immigration officers, such as is the case with noncitizens released under an order of supervision because their removal cannot be effected.”

SEA 590 also authorizes law enforcement to arrest a person named on a detainer or notice of action, which are two distinctly different orders.

Salinas-Jose Jose Salinas is the first Hispanic judge elected to the Marion Superior Court. He has ?held the post since 2007.

Angela Adams, an attorney who specializes in immigration law for Indianapolis firm Lewis & Kappes, said a notice of action is not an arrest warrant. Issued by the U.S. Citizen and Immigration Services, a notice of action could be something as simple as a receipt from the USCIS for filed paperwork. She wonders if police would be able to distinguish between a notice of action and a detainer.

A detainer, she said, means that a person has likely already been detained, and in most cases, is currently in jail. If the person in jail posts bond for a criminal offense, he or she will receive a notice to appear before an immigration judge regarding the detainer. But she wondered if law enforcement could potentially arrest the same person again on the same detainer if police do not have access to the most recent Immigration Court information.

Under provisions of SEA 590, a law enforcement officer may arrest someone due to “probable cause to believe that the person has been indicted for or convicted of one (1) or more aggravated felonies (as defined in 8 U.S.C. 1101(a)(43)).” But, Adams said, “aggravated felony” is a term of art, and difficult to define.

Joaquin said that arresting a person on those grounds would require police officers to make incredibly complicated determinations that even the U.S. Circuit Courts of Appeal often disagree about.

Mistaken identity

In 2007, an Illinois restaurant owner was detained for three days in a Lake County, Ind., jail, after a traffic stop. An officer ran the man’s name – Jose G. Gonzalez – and came up with a “hit.” But the match was for another Jose Gonzalez with the same birth date, but who lived in Georgia and bore no physical resemblance to the restaurateur.

angela adams Angela Adams is an associate for Lewis & Kappes, in Indianapolis, where she serves in the firm’s immigration group.

He was released with no access to his car, wallet, or phone, and was detained again a month later when police ran a check on his car and got the same hit for the other Gonzalez. In the case of Jose Guadalupe Gonzalez v. Lake County, Ind., et al., No. 2:09-CV-091, the plaintiff filed a federal suit seeking damages. The parties have reportedly reached a settlement agreement, which is scheduled to be finalized in June 2011.

Judge Salinas said he was unsure what identifiers police may have access to with regard to people wanted for immigration matters. “In my own family, there’s five Jose Salinases,” he said.

Indiana State Police 1st Sgt. Dave Bursten said no standard exists regarding the number or type of identifiers attached to any name wanted by authorities.

“Sometimes you have a name, aliases, dates of birth, no date of birth, Social Security numbers … the way a hit can come back, there can be minimal or very spot-on information,” he said.

Bursten said that if police initiate a traffic stop, certain factors may lead them to suspect someone is in the country illegally.

“If they don’t read, write, or speak the English language, that would raise suspicion,” he said. And if police suspect an immigration violation, he said, they call Immigrations and Custom Enforcement and wait for ICE to send someone to the scene, in much the way officers wait for K9 units to arrive when they suspect drugs may be hidden in a car.

When asked how long police can detain someone suspected of an immigration violation, Bursten said, “I don’t know if there’s an answer to that.”

An earlier incarnation of SEA 590 contained provisions for law enforcement to receive training under the ICE 287(g) program. Through the program, ICE instructors work with police over the course of four weeks at the Federal Law Enforcement Training Center ICE Academy in Charleston, S.C., in an effort to achieve consistency in immigration enforcement nationwide. That language was dropped, and no funding has been allocated for officer training.

“What we have to do from this point is digest what the law is and figure out how to enforce it,” Bursten said.

The burden of immigration reform

Sen. Phil Boots, R-Crawfordsville, said he believes that the federal government should be responsible for overhauling immigration reform. Adams agrees with him on that point. But Boots, co-author of SEA 590, said that the federal government hasn’t moved quickly enough on the issue.

“We just keep lobbying our legislators to do what they’re obligated to do,” he said. “So all we can do is to keep putting pressure on them to do this. Somewhere along the line, they’ll get the idea that states want this to happen.”

Boots said that his wife is from another country, “and we went through the whole vetting process to get her here.” He said his main concern is that other immigrants do the same and follow proper channels to be in the country legally.

“I’m happy that we’ve moved forward. It might be a baby step that we’re moving along in the enforcement of law in asking people to be here legally,” Boots said. “One of the only ways we can do that as a state is to deny them the jobs that we have here and make sure they go to those people that are here legally.”

SEA 590 demands accountability from employers, like mandating that businesses use the U.S. Department of Homeland Security’s E-Verify system to ensure new hires are authorized to work in Indiana.

Adams’ main complaint about SEA 590 is that it approaches immigration as a matter of enforcement and does not account for the human factor, like creating paths to citizenship for those who want to live here legally.

“The overall goal,” she said, “is to make people leave – and that’s happening already.”•

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  1. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  3. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  4. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  5. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

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