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SB 462 Violates Law, Harms Witness Program

By Greg L | 4 March 2010 | Illegal Aliens, Virginia House, Virginia Senate | 31 Comments

A proposal to shield illegal aliens in some circumstances from being questioned by law enforcement is under consideration by the House Courts of Justice Committee, and recently the Immigration Reform Law Institute was asked by Save The Old Dominion to evaluate the legality of this proposal after consulting with some members of the House of Delegates.  As I suspected, SB 462 does violate federal law, but these attorneys also found that in addition the legislation undermines a federal program designed to protect witnesses in criminal investigations.  It is incredibly unfortunate that the Senate was so incredibly lazy in vetting this bill, but perhaps the House will demonstrate a higher level of legislative professionalism and table this bill before a mistake is enshrined into Virginia law.

Earlier I had suggested that SB 462 would violate the provisions of 8 U.S.C. 1373, and IRLI believes this is indeed the case.

Virginia Senate Bill 462 violates federal law.  Federal law prohibits state governments from “prohibit[ing], or in any way restrict[ing], any government entity or official from sending to, or receiving from the [Department of Homeland Security] information regarding the citizenship or immigration status … of any individual.” 8 U.S.C. § 1373 (emphasis added)  As federal law makes clear, the State of Virginia cannot restrict an officer’s ability to verify the immigration status of any individual.  However, SB 462 expressly restricts an officer’s ability to do just that by prohibiting law enforcement from even asking about the immigration status of individuals, let alone “sending” information about their immigration status to DHS.  As such, SB 462 expressly violates federal law.

If that weren’t enough of a reason to kill this well-meaning but terribly misguided bill, IRLI also points out that the federal government has a “U Visa” that is expressly provided to cooperating witnesses in a criminal investigation, and it is one of the extremely few means by not which an illegal alien can obtain legal status, but also be awarded permanent residency in the United States.  If law enforcement is prevented from learning about the legal status of a witness, they can’t offer to help him or her benefit from the provision of this law and the cooperation of law enforcement is absolutely essential in the application process.  So instead of actually helping a witness or crime victim change their status from illegal alien to lawful visa holder, the secrecy provisions here pretty much shut the door on this exceedingly rare opportunity for illegal aliens.

You’d have never imagined that the illegal alien lobby is actually hostile to the idea of having an illegal alien’s immigration status “adjusted”, or shielding the perpetrators of crime against illegal aliens from cooperative witnesses who might qualify for a “U Visa.”  I suspect this is another case of the persistent ignorance of these folks rather than actual hostility towards illegal aliens, but it wouldn’t be the first time an ethnic lobby acted in ways that actually were detrimental to their constituency.

As IRLI notes, this is about the dumbest thing the illegal alien lobby could be pushing for:

As a result, SB 462 effectively makes it impossible for  these unlawfully present aliens to ever become lawfully present in the United States, because it encourages them to continue to evade immigration authorities and remain in the United States in an unlawful status.

Not one member of the Senate of Virginia bothered to even question the motives, intent or effect of this bill before it sailed out of that body.  Not one Republican, not one Democrat, not even the clerks, the staff, or the attorneys at Legislative Services.  Not one member bothered to ask the Attorney General about the legality and implications of this bill.  The bill sounded sufficiently “hopey-changey” and those Senators terrified of possibly being branded as a “racist” by the perpetual grievance-mongers of the illegal alien lobby must have figured it was a safe vote to make.  It wasn’t.  None of these votes are “safe” enough to warrant the abysmal failure to exercise any degree of due diligence.

The Senate votes on this bill prove that every single member of that body is incompetent and deserve to be voted out of office at the earliest available opportunity.  Some members of the House, to their great credit, have proven they are far more capable in serving the interests of the Commonwealth of Virginia even though they effectively do not have as much legislative power as a Senator.  They’re in good stead to replace these Senators, and they’re eminently more qualified to do the job.

In the meantime, now that some solid legal analysis on this bill is finally available, let’s hope the House Courts of Justice Committee follows through and demonstrates a level of competency that should act as an example for the Senate to follow.

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  1. local gop said on 4 Mar 2010 at 3:34 pm:
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    this again….really?

    like i said earlier….this bill does not violate the section of federal code that you point to.

    i am really starting to doubt your ability to craft an argument because you deliberately left out the part of the federal code which explicitly states that UNLESS A FEDERAL STATE OR LOCAL LAW SAYS OTHERWISE….

    The Senate Bill, once passed by the House and signed by the Governor, will become…you guessed it a STATE LAW. Which would mean that it falls under the exception as the federal code outlines. you got it wrong, again.

    this code is designed to keep an agency policy, department policy, administrator, or bureaucrat from

    1) Sending such information to, or requesting or receiving such information from, the Immigration and Naturalization Service.

    2) Maintaining such information.

    3) Exchanging such information with any other Federal, State, or local government entity.

    Not only does this law not apply because of the exception, it isnt even one of the three things listed above that would be illegal in your warped world.

    The law merely prevents police from asking a victim if they are legal or not. it does not prevent them from sending or receiving immigration information to the INS. it does not interfere with maintaining immigration status information. Nor does it prevent them from exchanging immigration status information between agencies.

    And contrary to some paranoid ranter earlier, it cannot be used as a technicality to overturn a guilty verdict to a ‘illegal alien criminal defendant’ because if they are the defendant, the law doesn’t even apply to them in the first place.

    You are really grasping at straws that dont exist.

  2. Greg L said on 4 Mar 2010 at 3:37 pm:
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    The statute says despite any other state or local law. Look up the term “notwithstanding.” What the heck would the purpose be in passing a federal law that is immediately pre-empted by statute by every law from inferior jurisdictions?

    I’ve got an attorney opinion to back up my argument. What’s backing up yours beside a flawed understanding of the English language?

  3. local gop said on 4 Mar 2010 at 4:37 pm:
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    ok greg, fine, but like i said, this doesnt prevent what the federal statute talks about, at all. this law prevents barriers in communication of immigration status, but the senate bill does not.

  4. local gop said on 4 Mar 2010 at 4:42 pm:
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    “What the heck would the purpose be in passing a federal law that is immediately pre-empted by statute by every law from inferior jurisdictions?”

    I’m dissapointed Greg, I thought you were pro states rights, by your words here seems like you are a nationalist….

    I guess states just have to roll over when healthcare passes, right? Or does this only apply in certain cases? Sounds some what hypocritical.

  5. Greg L said on 4 Mar 2010 at 4:56 pm:
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    Just because state’s rights are enshrined in the 9th and 10th Amendments doesn’t mean that those powers expressly delegated by the Constitution to the federal government elsewhere in that document are in any way invalid. I make arguments based on what the law is, not what some might think it should be.

    Of course, when you can determine where in the Constitution the federal government is granted the power to force people to involuntarily enter into a contract with an insurance company, you let me know.

    Back to the subject at hand, preventing the collection of information about an individual’s immigration status falls under the “in any way restricting” clause of 8 U.S.C. 1373. Prohibiting the collection of information inevitably prevents the transmission of that information. The same argument was made here in PWC to overturn Chief Deane’s secret prohibition of asking illegal aliens about their immigration status who had been arrested on misdemeanor charges. The County Attorney advised the BOS that prohibition was a violation of 8 U.S.C. 1373 and it was rescinded just before the Rule of Law Resolution was presented to the Board. The prohibition then — against asking anyone about immigration status arrested on anything other than a violent felony charge — is legally identical to prohibiting that same question to crime witnesses.

    8 U.S.C. 1373 ensures Law Enforcement officers have the widest latitude to do their jobs in the way the situation warrants, and in cooperation with an important federal law enforcement effort, without running afoul of some state or locality’s sanctuary policy.

    Do me a favor local GOP, and stick to some relatively undemanding undergraduate liberal arts program over there at GMU. You’re definitely not cut out to be a lawyer.

  6. ... said on 4 Mar 2010 at 5:02 pm:
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    “undergraduate liberal arts program”

    What do you do with a degree in art history?

    You get a nose ring, and pour coffee for a living.

  7. Groveton said on 4 Mar 2010 at 5:04 pm:
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    Was this bill a well meaning mistake or some kind of liberal conspiracy? I get the sense it’s more of the former. The Virginia General Assembly is on a bit of a hot streak here. Transportation bill that was quickly ruled unconstitutional, abusive driver fees that were almost immediately repealed. Now we have another well meaning goat rodeo coming up from Richmond? Aren’t many of these Virginia State Senators lawyers? How do they keep passing bills that can’t stand up to legal scrutiny? Or, that violate federal statutes?

    I know most of the people on this blog are ardent Republicans. I am not. I may cast more Republican ballots than Democratic ballots but I seem to cast some for each in most elections. So, I question the focus on the Virginia State Senate. I think the Senate, The House of Delegates and the former governor all bear responsibility for the “amateur hour antics” that seem to regularly occur in Richmond. Gov. McDonnell is off to a good start. I am glad that I voted for him (although Deeds seemed like an honest, hard working guy too). Hopefully, McDonnell can restore some competence to the political process in Richmond.

    Cuccinelli is over-reaching. He should have gone with either the health care fight or the global warming fight - not both. Or, at least, he should have put some time beteen the two initiatives. I think he’s doing a good job but too much too soon will lose credibility.

    Bill Bolling has been a non-event so far.

  8. MPResident said on 4 Mar 2010 at 5:24 pm:
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    I may be the only one on here, but in some cases I would support this law. if I have a family member assaulted, raped or murdered and an illegal alien held the key to identifying the person and/or person responsible, I for one would support them not being questioned about their immigration status.

  9. Jack said on 4 Mar 2010 at 5:25 pm:
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    Until the police start ignoring witness’ involvement in drugs, gangs, prostitution or other illegal activity, they should not be ignoring immigration status. Are they law ENFORCEMENT, or are they are not law enforcement. My understanding is that the law/justice is supposed to be blind. Why are special provisions being made for illegal aliens?

    Will police be banned from asking if witnesses have outstanding warrants or prior records? After all, that information is generally considered to evaluate the credibility of the witness. Similarly, someone who is knowingly in violation of federal law is not likely a prosecutor’s ideal ’star’ witness.

    The illegals could always offer to comply in exchange for leniency, (apparently through a U-Visa, which I was previously unaware of) the same way other criminals do in exchange for testimony or other cooperation.

  10. Greg L said on 4 Mar 2010 at 5:50 pm:
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    MPResident, one problem here is that unless law enforcement is aware of a witness’ legal status, they can’t offer the witness access to the “U Visa”. It’s a powerful tool to help get the cooperation of witnesses, but in order to employ it you have to know whether the witness would be eligible for it.

    Just imagine the impact of police effectively not being able to use the “U Visa” because they can’t determine eligibility. One big federal program that helps solve crimes just gets flushed down the crapper.

  11. local gop said on 4 Mar 2010 at 10:14 pm:
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    try using that argument in court. not being able to collect 1 piece (that is not relevant to the investigation, unless they are being attacked because they are illegal) of information in an isolated specific set of circumstances does not equate to violation of a law that regulates the transmission of similar information. there are other ways of finding out if a person is illegal than asking them. this law prevents a crime victim from being asked 1 specific question that 99% of the time would make no difference to the investigation as a whole. further, after reading the bill again, there is a clause which makes federal law an exception. so obviously it doesnt violate federal laws when it specifically says that an exception to this rule is when it is required by federal law.

    and as to my alleged connections to gmu, at least i can practice basic reading comprehension.

    this bill contains so many loopholes and is so watered down that at the end of the day the officer can probably find an excuse to question said victim about their status and in the end will probably not protect anyone at all.

  12. local gop's hemorrhoid said on 4 Mar 2010 at 10:40 pm:
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    Notwithstanding his demonstrated issues with reading comprehension, local gop can still shuck and jive on another tangential argument of dubious merit as each subsequent argument of his crumbles to dust. Now his argument is that prohibiting the collection of information is not prohibiting the collection of information.

    Bill Clinton couldn’t even pull off such dumbass baloney, and he was actually good at this. Local gop is just a piker.

  13. Local GOP's very small brain said on 4 Mar 2010 at 11:56 pm:
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    It depends on what the definition of “is” is.

  14. NoVA Scout said on 5 Mar 2010 at 9:35 am:
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    Groveton: why would a state attorney general “go with” either a health care fight or a global warming fight? what do those issues have to do with his responsibilities?

  15. Advocator said on 5 Mar 2010 at 10:08 am:
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    Meanwhile, back to HB 737, the E-Verify bill. I go a response from Senator Wagner today to my inquiry about it. Although I am not his constituent, he responded anyway. Wish ole Chuckie was as courteous and responsive:

    Dear Mr. ____:

    Thank you for contacting my office regarding your support for House Bill 737, the “E-Verify” bill, which requires agencies of the Commonwealth and localities to enroll in the E-Verify Program by December 1, 2010, and to use the Program for each newly hired employee who is to perform work within the Commonwealth. HB 737 passed the House 82-13 and was communicated to the Senate for consideration. The bill has been assigned to the Senate Commerce and Labor Committee, on which I serve, and should be on the docket for the March 8, 2010 meeting. This will be the last meeting of Commerce and Labor, as session is scheduled to adjourn on March 13th.

    I agree entirely with your sentiments on this legislation. I will vote for the bill in Commerce and Labor and, if it is reported out of committee, I will vote for the bill on the Senate floor.

    The cornerstone of good government is an informed electorate. I am proud to have constituents who are engaged in the political process. While we might not always agree, I can promise that I will always listen to you and examine both sides of every issue. Constituent input is essential in a well-represented district. As I go about my legislative duties, the people of the 7th District are my first and foremost concern.

    Please feel free to contact me if you need assistance at any time. When session adjourns on March 13th, I can be reached at the district office by calling 757-671-2250 or emailing district07@senate.virginia.gov. If you wish to track an issue or specific bills of interest, please access the Virginia General Assembly website: http://legis.state.va.us. And, look for session updates and other information on my website: www.wagnervasenate.com.

    Again, thank you for your participation in our state government.

    Sincerely yours,

    Frank W. Wagner

  16. Love the U.S.A. said on 5 Mar 2010 at 10:09 am:
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    local gop,
    Are you a Constitutional lawyer? Constitutional lawyers have looked at this bill and agree with Greg. Illegal aliens are afforded protection when victims of a crime in the form of an U visa. Look it up.

    Never before has Virginia restricted a police officers ability to question a victim. This would.

  17. Love the U.S.A. said on 5 Mar 2010 at 11:43 am:
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    HB 737 will be heard on Monday! So all of you need to REALLY contact Colgan and tell him this E-Verify bill is needed in Virginia!
    Email*: district29@senate.virginia.gov
    Phone: (804) 698-7529

  18. Advocator said on 5 Mar 2010 at 12:10 pm:
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    Corey Stewart is on WAMU now.

  19. local gop said on 5 Mar 2010 at 5:22 pm:
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    what lawyer? you can’t seriously be referring to the political interest group that paid a lawyer to give them an opinion that they agreed with, are you??

  20. local gop's hemorrhoid said on 5 Mar 2010 at 5:41 pm:
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    Notwithstanding local gop’s utter failure to advance a non-laughable argument concerning the law, he now resorts to attacking the messenger who has demolished his argument. A tried and true methodology of the left.

    Maybe we should stack up local gop’s credentials against the attorney who wrote the opinion. Let’s see now, undergraduate art history vs. juris doctor … how does one choose?

  21. Freedom said on 6 Mar 2010 at 8:19 am:
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    Hmmmmmm, having read his entries, it seems to me that “local gop” needs to find a class in remedial English grammar while he’s at GMU. :(

  22. DPortM said on 6 Mar 2010 at 9:51 am:
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    It seems to me that local gop and Senator McCain have a lot in common. Not really Republicans, not at all conservative, and both should not consider themselves members of the GOP.

    It is because of people like local gop, and Senator McCain having the GOP presidential nomination, that our country is in the situation it is today.

  23. babe said on 6 Mar 2010 at 10:07 am:
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    Not sure that Local GOP is either local or GOP. More like a grammatically challenged Jiffy Lube drop out blogging from mommy’s basement. Or maybe be an ACORN drone getting paid to trash discussion threads. Probably not a bad way to worm your way through school. Beats working for a living.

  24. Freedom said on 6 Mar 2010 at 10:39 am:
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    Wait a minute folks, if you keep slamming “local gop,” I’m afraid he’ll get angry and won’t come back!!!

  25. local gop said on 6 Mar 2010 at 12:41 pm:
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    at some point or another, arguing with ideological wack nuts gets really old. no, i’ll let you go back in your hole and cling to your guns and religion (oh wait unless that’s ‘offensive’) and live out your lives as the ‘real americans.’ while you’re at it i’m sure you will find the time to pay homage to your leader papa cooch; i hear he’s picking fights with gays now….

  26. Kevin C said on 6 Mar 2010 at 1:03 pm:
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    babe said on 6 Mar 2010 at 10:07 am: “More like a grammatically challenged Jiffy Lube drop out blogging from mommy’s basement.”

    That pretty much covers ALL left wing, whacked out Liberal NUT JOBS with a MENTAL DISORDER !!!

    They want to BAN plastic bags but it’s O.K. to FLUSH a BABY down the TOILET !!!!!

  27. local gop's hemorrhoid said on 6 Mar 2010 at 1:35 pm:
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    Notwithstanding local gop’s attacks on constitutionally protected liberties and the Christian faith, I’m sure he’s just a fine fellow.

    He probably hangs out with Russ Potts and John Chichester while they bemoan the birth of Ronald Reagan while pushing copies of the Federalist Papers into a wood chipper. Potts and Chichester are probably the only two “Republicans” who would consistently agree with him and still play “pitcher” to his pustule-laden butt.

    Hey local gop, isn’t there an American flag somewhere you should be setting fire to?

  28. Groveton said on 6 Mar 2010 at 1:45 pm:
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    NoVa Scout:

    Half of what Cuccinelli is doing is a legitimate effort to check federal over-reach. The Tenth Amendment is pretty clear:

    “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”.

    The federal government has no power to force people into contracts with private concerns. That power is not granted in the constitution. Yet, some iterations of the health care bill would require that. Cuccinelli is saying that only the states have that right since it is not specifically defined in the constitution and the Tenth Amendment gives “everything else” to the states.

    His stance on global warming / climate change is a bit harder to fathom. I think he’s saying that he thinks the science is faulty. He contends that his undergraduate engineering degree makes him well suited for that complaint. That seems like a reach to me. The EPA has been in existence since the Nixon Administration (yes, it was created by a Republican Administration). I am not sure how Virginia will successfully challenge environmental legislation.

    Finally, his publicity stunt in sending a letter to colleges and universities informing them that they lack the right to forbid discrimination based on sexual preference was just silly. While he is technically correct it’s very hard to see what he can do about it.

    I think the fame of becoming AG has gone to Ken Cuccinelli’s head. That’s too bad since some of his ideas about preserving the balance of power defined by the constitution are good ideas.

  29. DPortM said on 9 Mar 2010 at 12:50 pm:
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    Excellent news - this bill was killed in Committee.

  30. NoVA Scout said on 10 Mar 2010 at 4:43 am:
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    Groveton - thanks for that. re health care, I think the 10th amendment argument is a reach, but, in any event, my question is why is the AG raising that? I think he probably has just decided it’s a way to raise his personal profile. Until there is some legislation on the federal level and we know exactly what its final contents are, there’s no point in even talking about it other than on the goofy cable channels that masquerade as “news” outlets these days.

  31. Cynic said on 10 Mar 2010 at 2:53 pm:
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    DPortM said on 9 Mar 2010 at 12:50 pm:
    Excellent news - this bill was killed in Committee.

    Interesting. Wonder how many of those who sponsored this Bill knew that it would be killed in Committee?

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