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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