SB 20, the South Carolina version of immigration control, provides that police authorities are allowed to demand papers to show as proof of citizenship or immigration status. The law also provides for police authorities to be allowed to stop individuals based on a reasonable suspicion. The law also criminalizes and kind of interaction with undocumented aliens.

This law was questioned in court for its unconstitutionality, owing to the fact that it allows lawful citizens to be subject to unlawful search and seizures because of the great discretion allowed to police officers. The South Carolina law is still subject to review to determine if the law is compliant with the Bill of Rights.

On another front, the highly controversial Alabama immigration reform law was reviewed and decided upon by US District Judge Sharon Blackburn. Upon the promulgation of her decision, the US Department of Justice and cause-oriented groups appealed the decision to the 11^th Circuit Court of Appeals.

The appeals court initially issued a temporary restraining order on the enforcement of the law. The court needed time to review the Sept 28 decision of Judge Blackburn where she found the constitutionality of parts of the law, such as the reasonable suspicion provision for police officers to detain individuals.  Her decision also allowed the right of the state courts to prevent enforcement of contracts entered into by an illegal immigrant and another individual was not in violation of federal immigration law.

What the appeals court did decide on was the unconstitutionality of the portion of the controversial law to require schools to document the citizenship status of students through birth certificate submission. Also restrained was the power of authorities to charge illegal immigrants with an offense for failure to have alien registration documentation.

The appeals court would still rule on the rest of the subject of the petition for review. The decision is expected to be made in the next several months.

This case is a reiteration of time-honored precept of cruel and unusual punishment as enshrined in the Constitution.

Under current statutes, the Executive Branch of government is required to incarcerate any deportable individual because of the commission of a crime involving moral turpitude or a crime involving a controlled substance. This kind of incarceration is mandatory and does not provide for bail. There is also need for the Government to provide a reason for its action, as for a petition for writ of habeas corpus.

This governmental activity was applied in the case of the detention of Cheikh Diop. In the course of the removal proceedings, Diop was in detention for a total of 1,072 days or two years, eleven months and five days. The District Court upheld the incarceration as lawful under existing statute.

The Supreme Court disagrees with this verdict. Under the Due Process Clause of the Constitution’s Fifth Amendment, there must be justification that must be provided for the continued detention of the individual regardless of the case. To uphold the detention is a violation of the Due Process Clause that applies to all men, regardless of race, color or creed.

Each proceeding in the determination of the propriety of removal of an individual from the country has specific time lines for compliance. In each action, petition, appeal or hearing, there are schedules that need to be complied with to facilitate the administration of justice. In this case, though, the prolonged detention can become an injury if the failure for compliance with such timelines can be blamed on the Government. In this case, a petition for a writ of habeas corpus was the proper vehicle in which this matter could have been dispensed instead of an appeal.

The Government’s argument that the petition has become moot on the part of Diop bears discussion. Mootness is applicable only if the same case is capable of repetition while evading review. In this case, the continued incarceration of Diop is a governmental action that can repeat with each day and the petitioner would be subjected to the same action again. Thus, there is no mootness in this case as clearly, the continued prolonged incarceration is the issue at point.

Sec 236(a) of the IIRIRA which is now known as 8 USC Sec 1226(a) states that “on a warrant issued by the Attorney General, an alien may be arrested and detained pending a decision on whether the alien is to be removed from the United States.” In the same statute, the Attorney General is given the discretion to release aliens on bond except when specifically stated under Subsection (c). Subsection (c) stipulates that aliens who have committed crimes involving moral turpitude or related to a controlled substance shall be taken into custody. This is the justification the government takes in the case of Diop as there were previous convictions for a crime of moral turpitude and a crime involving a controlled substance.

The detention pending adjudication of removal proceedings is what kept Diop behind bars for 1,072. However, the continued incarceration violates the Due Process Clause. Because it is presumed under statutory construction that Congress passes law that are constitutional, then harmonization of the statute with the Constitution is imperative. While the statute allows for the detention for a reasonable amount of time, any prolonged detention must be necessary to fulfill the statute’s purpose in providing assurances that an alien would attend removal proceedings. This release also should not pose a danger to the community. How and when this detention shall be considered as unreasonable is a point of law and would be determined on a case-to-case basis.

In fine, once the detention is considered as unreasonable under the circumstances of the case, the Due Process clause would require a hearing. At the said hearing, the Government must show proof that the continued detention is necessary to fulfill the purposes of the Government’s power to detain aliens.

According to law experts, the Obama administration’s recent move to limit deportation proceedings only for undocumented immigrants with criminal records is unconstitutional.

According to David Rivkin Jr. and Lee A. Casey, prominent constitutionalists, only the Congress of the United States, meaning the Senate and the House of Representatives has the constitutional authority to determine the country’s immigration policy. Thus, the pronouncement encroaches on legislative power making it violative of the rule on separation of powers.

The policy to be followed differs from the law in many fundamental ways. The law provides how immigration enforcement is to be practiced and in limiting the individuals to be covered under immigration enforcement, the President essentially legislates in the enforcement of the law. The program goes beyond proper apportionment of limited immigration enforcement resources as it does suspend the effectivity of the law regarding a specific class of individuals that the law specifically targets.

While it is accepted that apportionment of resources is essentially an executive domain, prosecutorial discretion essentially interprets how the law is to be applied and whom it applies to in general. What the Constitution allows is the individual case discretion as to the enforcement and applicability of the law. With the general sweeping declaration, the law is essentially crippled as the executive, in claimed discretionary power, limits its application.

This goes to the basic tenets of the Constitution. The Constitution requires that the President shall take care that the laws be faithfully executed. History has provided many instances that heads of state being deposed and removed because the faithful execution of the law was suspended by individual declaration. The framers of the Constitution had this in full view and mind when they created the fundamental law of the land. Even the Supreme Court has declared that the power to dispense laws enacted by Congress “has no countenance for its support in any part of the constitution.”

The proper way that the President should act on this matter is not by summary declaration of the enforcement of the law but by convincing Congress to change the law. The latest declaration is clearly a constitutional issue that should not be taken lightly as it allows the opening to draconian and even whimsical application of the law. This is what the Constitution seeks to prevent.

In contrast to the wave of anti-illegal immigrant immigration legislation passed by many states, California has taken its own path by passing its own version of the Dream Act. This piece of legislation would allow illegal immigrants that have attended state high schools for three or more years to apply for state funded college financial age.

There has been more press coverage though for the state laws that aim to crack down on illegal immigration. Without much fanfare, pro-illegal immigrant legislation has also been passed in nine other states. Even a handful have passed their own versions of the Dream Act, with provisions offering state aid to illegal immigrants.

Critics of the California Dream Act have expressed major concerns regarding the wisdom of the statute. Ira Mehlman, spokesman for the Federation for American Immigration Reform criticized the move since the State’s coffers are nearly empty. He added “While billions of dollars are being slashed from needed programs, whole state universities and colleges are cutting programs and admission and while there is an insufficient amount of government aid available to help legal residents to pay for college, the Legislature continues to work overtime to find new benefits they can bestow on illegal aliens.”

The Senate has estimated that the cost of the bill would amount to $40 million each year benefiting about 40,000 undocumented aliens. With this, they are able to attend the state’s higher education system, such as the ten campuses of the University of California, twenty-three campuses of the California State University and over a hundred community colleges.

Pro-immigrant rights groups are elated. These groups are expecting that California’s move would be a beacon for many other states to follow. When the bill passes the California Assembly, the measure would be signed into law as Gov Jerry Brown has made this law part of his list of campaign promises.

The State Senate of California has passed a law that limits the rights of cities of the state to impound cars of individuals caught in DUI dragnets without driver’s license. One particular city affected by the new legislation is the city of Bell. The city has made it a practice to impound vehicles from unlicensed drivers, many of them illegal immigrants. The city then charges high impound fees or sell them and the proceeds would go to the City Treasury.

Under the new law, if a driver is found sober at a sobriety check but without a driver’s license, then the officers need to release the vehicle to a qualified driver who represents the registered owner. If there is no licensed driver available, the car would be released a day later from the impound yard.

Republican lawmakers have raised a howl on AB 353 as this jeopardizes public safety. The bill would go back to the State Assembly for amendments after which the Gov. Jerry Brown would then decide to veto it or sign it into law.

One of the major critics, State Sen. Joel Anderson (R-San Diego) has said “If we lower this standard, what we are doing is encouraging more people without driver’s licenses to be on the roads.” He added, “There is a reason they don’t have a driver’s license. It’s not because they are a good driver.”

Furthermore, the legislation would remove one deterrent to illegal immigrants driving without a license.

Proponents of the law, such as State Senator Pro Tempore Darrell Steinberg (D-Sacramento), said, “What is really going on here is, some local governments, including the city of Bell, are using this impoundment to make money.” He added, “Folks on the other side of aisle who rightfully sometimes rail against government running amuck and hurting people with its police powers ought to recognize for what it is – an abuse.”

After much legal wrangling and posturing, a federal judge has issued the injunction that blocks the enforcement of the much-maligned Alabama law on illegal immigration. The injunction was issued as the judge wanted more time to decide if the said state law was not unconstitutional.

The order was issued by US District Judge Sharon L. Blackburn and would become effective after Thursday. The stay was lauded by Republican leaders as they still are hoping that one of the toughest laws on illegal immigrants would still remain in force and effect after the judicial review.

Judge Blackburn’s order did not say if the law was not unconstitutional nor did she provide a preview as to what aspects of the questioned law would be removed. What her stay order said was that she needed more time to review the petitions filed by the Federal Government through the Justice Department, private interest groups as well as private individuals as to the claims that the law encroaches on federal power. She added that she would provide a ruling by Sept 28 and her order would remain effective until Sept 29.

There are many similar laws passed in other states, such as Arizona, Utah, Indiana and Georgia. When the laws were submitted for judicial review, federal judges have declared the laws or provisions contained therein as unconstitutional.

The Alabama law criminalizes private citizens that assist an illegal immigrant by giving them a ride, a job, a residence or some other form of assistance. This is one part of the law that local church leaders would hamper their public ministry and service. The law further provides that suspected illegal immigrants could be thrown in jail at traffic stops.

As for the petitioners, such as the Hispanic Interest Coalition of Alabama, is happy with the temporary reprieve. They are looking forward that the judge can find favor in their petition and find the said law unconstitutional. Isabel Rubio, executive director for the interest group said, “We are pleased that Judge Blackburn is taking more time to study the case.”

Many immigration lawyers have warned about rumors about a supposed federal government plan designed to dismiss certain deportation cases. According to one source, there were many reports of that this was an amnesty program being implemented by the Obama administration.

The president of the American Immigration Lawyers Association, Crystal Williams has declared, “We want to make clear to people that there is no amnesty.”

To support such declaration, the group has released a fact sheet to explain the Obama administration’s current policy of reviewing 300,000 pending deportation cases. The administration has promised to dismiss low priority cases of illegal immigrants who have no criminal records.

As defined, low priority illegal immigrants are defined as veterans or spouses of veterans, pregnant women, victims of crimes, the sick and elderly and those who entered the country as young children. When their deportation cases are dismissed, they would be able to apply for a permit to work legally in the country, leading to the rumors that there was an amnesty program.

In the lawyer’s group fact sheet, the qualification for a work permit does not equate with a legal residency status. Also, they warned that the review would apply to individuals whose case is already in deportation proceedings.

Arizona Gov Jan Brewer has criticized the policy as “backdoor amnesty”. For its part, the White House director of intergovernmental affairs, Cecilia Munoz, clarified that no group of people are beyond deportation. She clarified that the decision would be made on a case-by-case basis. Those individuals that were apprehended at the border or have been previously deported and try to return would be considered as high-priority deportations.

The confusion still persists in many communities. The new regulation leads many of the young people to believe that because they were brought into the country as illegals, they are “undeportable”.

The Federal Justice Department together with the American Civil Liberties Union both filed separate petitions to invalidate the latest Alabama laws on immigration.

According to the Justice Department, represented by William Orrick, argued that the Alabama law is encroaching on a sphere of governmental activity that exclusively lies with the federal government. If the law were to remain effective, the foreign relations of the United States of America would effectively be hampered together with disruption of existing as well as soon to be formulated national security plans with regards to immigration enforcement.

Orrick further added that a state might not make it impossible to live in this country, as there are many particular provisions of the law affect housing and education.

As for the ACLU, represented by Cecilia Wang, discussed the coverage of the Fourth Amendment and how law enforcement interacts with that. One of the instances that Alabama law penalizes is an individual who has sought adjustment but is awaiting formal documentation. Until such issuance, the individual is deemed an illegal and therefore must be punished under the draconian provisions of the law. The federal processing is no defense as this is state law.

The Court also had a few questions for the Alabama State Attorney General. US District Judge Sharon Lovelace Blackburn sought clarification as to the dynamics of police stops and detention of suspected illegal aliens. She also had a question regarding the right of the state to use birth certificates in the determination of the status of parents of schoolchildren enrolling in the Alabama school system.

One of the proponents of the law, Alabama State Sen. Scott Beason (R-Gardendale) was extremely disappointed with the discussions at court. He was appalled that there was no discussion as to the rights of legal Alabama residents. He said, “I didn’t hear the federal government or the ACLU arguing about the rights of citizens of Alabama who have been displaced from their jobs by these illegal immigrants.”

“Who’s looking out for their rights,” he added.

There is a little known way that illegal immigrants can gain legal residency in the United States. This is known as the “U” visa.

The “U” visa is granted upon individuals without legal residency in the United States who aid in the investigation of crimes or other activities. It also allows victims of violence that cooperate with law enforcement, ranging from providing intelligence information to authorities up until testifying as a witness in court.

Included in the visa is a work permit valid for four years from date of issuance. With this visa, the victim can apply for a green card to allow permanent work status and residency in the United States. These “U” visas are derivative in nature, meaning they can also be extended to their immediate family members. Another similar visa program is the “T” visa or for those who have fallen victim to human trafficking.

This visa program has been in use in the last three years and about 25,000 individual victims and 19,000 of their relatives have been granted. This is one way to counteract the growing fear illegal immigrants have when reporting a crime, namely abuse, exploitation and victimization. Many think that when they report a crime, they themselves would be investigated on and deported because of their illegal status.

Last Thursday, the Obama administration has declared that its agencies would do a case by case review of deportations. The new policy would exempt undocumented aliens without criminal records to remain in the country and even apply for work permits.

Department of Homeland Security Secretary Janet Napolitano would be sending a letter to the US Senate to provide the details on how this announced policy would be operationalized in immigration enforcement. The goal of the new policy is to declog the immigration system through the removal of non-criminal undocumented aliens from the lists.

The first step is the agency would review its caseload of immigration cases and close low-priority cases to allow immigration cases to focus on the most serious ones. These low priority cases can be reopened should the circumstances merit it. From there, immigration enforcement agents would focus on criminals with serious offenses and other high priority undocumented immigrants.

For those undocumented immigrants whose cases are closed, they would be allowed to apply for work permits but they need still to be reviewed before an actual grant is provided.

The policy change is essentially a reaction to appease criticism from the Latino community and immigration reform advocacy groups for the administrations unabashed deportation of undocumented aliens regardless of whether they pose a danger to the community. While the Obama administration insists the focus is to remove the “worst of the worst”, the actions of the immigration agencies are not in congruence with the promise of immigration reform and the alleged focus of the removal proceedings.

In a further public relations move, the White House Director for Intergovernmental Affairs, Cecilia Munoz, said that the statistics bear the weight of the statements by President Obama. More than half of the deportees were people with criminal records. As for the non-criminals, those removed were caught crossing the border and have recently been in the United States or those that had been previously deported. With these statistics, the goal of the DHS is actually being achieved, according to Munoz.