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Immigration bill ignores legal reality

April 9, 2011

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Now that Indiana's House of Representatives is back in session, a House hearing is likely on Senate Bill 590, the anti-immigration proposal. While Hoosiers prepare for the battle lines to be drawn anew, perhaps we can agree on one basic point. The foreign invasion must stop. But who is contributing to the problem? And how can it be effectively addressed?

At the Senate Committee hearing on SB 590, out-of-state witnesses spoke at length in support of the bill. Each thanked Sen. Mike Delph, R-Carmel, for his invitation to speak in favor of yet another of his anti-immigration bills. They painted a bleak picture of America and pointed their collective finger at immigrants. According to our guests, illegal immigrants bear complete responsibility for U.S. economic woes, crime rates, drug addiction, educational failings and health-care deficiencies.

Whatever part immigrants may play in contributing to these problems, SB 590 is no solution. Its key measures require Indiana police to request valid photo identification from any individual in the course of a "lawful stop" if the police have "reasonable suspicion" that the individual is "not lawfully present."

Like Arizona's law, Indiana's SB 590 ignores the legal reality. Millions of aliens lawfully present in the United States are not legally entitled to photo identification from any federal or state agency while their immigration claims are pending. Such individuals include asylum applicants, victims of U.S. crimes who assist law enforcement, and survivors of domestic violence committed by their U.S. or lawful permanent resident spouses.

Ironically, Michael Cutler, a former immigration agent who spoke in favor of SB 590, recognized the invaluable service these victims provide. Sadly, he failed to recognize that aliens will not report crimes or otherwise come forward if so doing would subject them to arrest.

Tourists in the United States by virtue of our Visa Waiver Program may also be subject to arrest under SB 590's identification provisions. In 2009, more than 14 million visitors enjoyed legal admission to the United States without having to obtain a visa. Hailing from more than 30 countries with strong economies and U.S. relations, such visitors, who spend lavishly while they are here, are likely to not come.

SB 590 also directs the police to arrest any individual who is believed to be "subject to a removal order issued by an immigration court" or has been "indicted or convicted of one or more aggravated felonies" as defined by federal law. If an individual is suspected of committing a crime, he should be arrested, detained and prosecuted pursuant to our criminal laws. State Police cannot afford to waste scarce resources debating federal terms such as "removal order" and "aggravated felon."

As judges repeatedly recognize, the labyrinth design of U.S. immigration law is more difficult to navigate than the U.S. tax code. Again enjoining similar provisions of Arizona's illegal immigration law, the federal court foresaw that its implementation would result in the wrongful arrest of lawful permanent residents. The interpretation of such immigration terms is also constitutionally pre-empted by the authority of federal courts.

The desire to "do something" in response to U.S. immigration failings is understood. But the response must be considered measures, not invited hysteria. That is the rule of law.

Hill is M. Dale Palmer Professor of Law and Immigration Clinic director of the Indiana University School of Law-Indianapolis.

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