Category: Montana

After all the anti-immigrant bills being proposed by Montana legislators this year, Christine Kaufmann’s SD413 is a welcome change.  Senator Kaufmann is to be applauded for sponsoring a bill that would send a clear message that Montana welcomes immigrants to its borders, and will not be consumed by the “nativist” hatred sweeping many parts of the country.Senator Kaufmann’s bill would have three important effects:  (1) it would create an advisory council is to advise and inform public entities and officials of effective and efficient approaches to promote the integration of immigrants into the state and its communities; (2) it would prohibit the word “illegal” from being used by a state agency or official in any official document of the state to modify the word “alien” because the term is inaccurate and pejorative; and (3) it would provide that employees of local and state agencies, law enforcement officers, and all public officials shall, when carrying out their duties, take steps to recognize and protect the human rights of immigrants, prevent disparate treatment, and deter racial profiling.

That immigrants have made economic, social, and intellectual contributions to enrich our community, and that integration and broader civic participation by immigrant communities is an important and mutually beneficial goal.  Too often, people look upon immigrants as an invading force that steal our jobs and dilute our culture.  This bill recognizes that immigrants have played an important role in Montana’s history, and that our society is better off as a result.  The vitality of our country depends upon the import of new perspectives and ideas.  Many of our greatest achievements in the United States were made possible by immigrants.  That the state has an interest in supporting and encouraging immigrants to obtain legal immigration status and, if they choose, citizenship.  We are a nation of immigrants, despite the fact that “nativist” groups would like to close the door behind them.   The growth of our economy depends upon immigrants, who open new businesses, create jobs, and provide much needed service and labor.That immigrants are often driven to the United States without documented status due to social, political, and economic conditions beyond their control.  For people who live in many countries, escape to the United States isn’t a choice.  It’s a necessity.  I have represented many immigrants who fled from their home countries to escape persecution on account of their race, religion, and political beliefs.  These clients literally faced torture and death in their home countries.  Economic conditions can compel immigration just as much as any political or social influences, because when someone can’t feed themselves of their family, they must look for somewhere that they can survive.  Human rights conditions are responsible for forcibly displacing immigrants, and our dialogue about immigration needs to reflect this reality.  That the Constitution of the State of Montana prohibits disparate treatment of immigrants through xenophobia, discrimination, harassment, or racial profiling, and that these activities create serious and lasting divisions that threaten to segregate our immigrant communities.  As a society, we cannot support laws that are based on racism and xenophobia towards immigrant visitors and residents.  Nor can we implement laws that require racial profiling in their implementation.  Such policies run contrary to our fundamental ideals as a state and as a country.  Senator Kaufmann deserves our admiration and support for bravely stepping forward and proposing this bill.  Click here to send a message to Montana Legislators that you welcome immigrants to Montana and oppose any laws founded upon racism, xenophobia, or racial profiling.Note:  In the interest of full disclosure, I am proud to have helped in drafting this bill.  

On this blog, we have been discussing anti-immigrant bills proposed by Montana legislators.   One of the most shocking bill draft requests is LC0559, which would target immigrant youth who are in shelter care facilities.  The bill’s stated purpose is to verify the alien status of prisoners, but in actuality it does much more than that.  The law would require youth probation officers to inform the Department of Homeland Security of any children who don’t have documents to prove lawful status.  Upon request, the officers would turn the youth over to the federal authorities to initiate removal proceedings.

In its beginning provisions, the bill requires law enforcement to contact the Department of Homeland Security and check into the immigration status of anyone in temporary custody who is charged with a felony or for driving under the influence, “if the lawful alienage of the inmate cannot be determined from documents in the possession of the inmate at the time of the arrest or while incarcerated.”

Law enforcement would be required to contact the Department of Homeland Security “within 48 hours of the beginning of confinement, or a shorter period of time before the inmate is released pending initial appearance, hearing, or trial . . . ”  If an inmate is determined to lack lawful status, they are to be turned over to the federal authorities.

Contrary to federal law, the proposed bill would create a presumption that an alien who is not lawfully present in the United States is a risk of flight.  Therefore, it would make it extremely difficult for the individual to be released on bond.  Under federal law, an alien “generally is not and should not be detained or required to post bond” unless it is determined that the individual is a threat to national security or is likely to abscond.  See Matter of Patel, 15 I&N Dec. 666 (BIA 1976); Matter of Daryoush, 18 I&N Dec. 352 (BIA 1982).

As discussed above, however, the most objectionable part of this bill is the fact that it specifically targets immigrant children for removal.

The law states that all youth who cannot provide documentation of lawful status must be reported to the Department of Homeland Security regardless of whether any offense has been committed.  This makes the law relating to immigrant youth even more harsh than that applied to adults.

Let us be clear that the bill does not only target youth who are involved in delinquent behavior.  The bill requires a youth probation officer to check into the immigration status of any youth who is in a “detention center, youth assessment center, or shelter care facility.”  Shelter care facilities include “youth foster homes, kinship foster homes, youth group homes, youth shelter care facilities, child-care agencies, transitional living programs, and youth assessment centers.”  MCA §§ 52-2-602(11); 41-5-103(40); 41-5-347.

This means that children in foster care will be reported to the authorities and potentially deported, without having ever committed any kind of crime.  Youth are typically placed in foster care when they have no one else to care for them.  Deporting children to the custody and care of other countries, to be dependent upon the potentially inadequate care of the social programs in these countries, should not be a high priority for the state.

Strangely, the law prohibits the Department of Justice from implementing the regulations relating to youth, leaving implementation solely to youth probation officers.  Perhaps Mr. Perry is attempting to take authority away from the Department of Justice because  these provisions conflict with existing laws regarding treatment of youth in custody.  See MCA §§ 41-5-331; 41-5-322; 41-5-323.

The presumption that would limit the availability of bond appears to be applied to youth as well.  Therefore, this statute changes current law on release of youth offenders.  Present law states that “[w]henever a peace officer believes, on reasonable grounds, that a youth can be released to a responsible person, the peace officer may release the youth to that person upon receiving a written promise from the person to bring the youth before the probation officer at a time and place specified in the written promise, or a peace officer may release the youth under any other reasonable circumstances.”   See MCA §§ 41-5-322, 41-5-323.

This bill imposes a presumption that anyone whose immigration status doesn’t check out is a risk of flight.  That would potentially take discretion away from a peace officer to make his or her own determination regarding bond.

It is shocking that Mr. Perry has sponsored a bill that specifically targets children for removal.

I urge you to contact your local representatives, as well as Mr. Perry, and voice your opposition to this bill.  

As discussed in previous posts, Montana legislators have proposed a number of anti-immigrant bills that would require the state to step into the shoes of the federal government and enforce immigration laws.  One of the most pointless bill draft requests is LC0514, which is being sponsored by Gary MacLaren.  This bill would make it a felony for a non-citizen to register to vote in a state election

If a non-citizen registers to vote in an election, the court could sentence the individual for a “term not to exceed 10 years in the state prison or may fine the offender in an amount not to exceed $50,000 or may impose both such fine and imprisonment.”  MCA § 46-18-213.

The severe punishment imposed by this law is simply not warranted.  The proponents of this bill cannot point to any instances of voter fraud by non-citizens in the state of Montana that would justify imposing such a law. The Secretary of State has not spoken out in support of this bill, and I am not aware of any state or county election official who has stated that this law is necessary.

There are already harsh federal sanctions for any alien who makes a false claim to citizenship.  These sanctions are more than sufficient to deter a non-citizen from voting in a state election.

Under INA §237(a)(6) and INA § 212(a)(10)(D), an alien who unlawfully votes in any state, federal, or local election is removable from the country and barred from being admitted into the country. The only exception is where the alien’s parents were U.S. citizens, the person resided in the U.S. before age 16, and the person mistakenly believed that he or she was a U.S. citizen.  This is an extremely narrow exception designed to prevent unfair punishment of someone without wrongful intent.

In addition, under INA § 212(a)(6)(C)(ii) and INA §237(a)(3)(D), any alien who falsely claims to be a U.S. citizen is removable from the country and barred from being admitted into the country.  Only U.S. citizens are allowed to vote, and under federal law an alien who votes in an election could be deemed to have made a false claim to U.S. citizenship.

This law unfairly singles out non-citizens who register to vote, while providing no criminal sanctions for other individuals who may not be qualified to vote.  If the sanctity of state elections requires criminal punishment for improper registration, then it should also be a felony if a person under the age of 18 registers to vote.

There appears to be no legitimate purpose to this bill, other than to further demonize non-citizens who reside in the state.

I urge you to contact your local representatives, as well as Mr. MacLaren, and voice your opposition to this absurd bill.

When you think of states embroiled in deep controversies relating to their large immigrant populations, Montana isn’t the first one to come to mind.  Perhaps this is because Montana has one of the smallest percentages of foreign-born residents in the entire United States.  This hasn’t stopped Montana legislators from proposing twenty-six different bills this legislative session that are intended to regulate immigration – a field traditionally occupied, and in many cases preempted, by federal law.  At least four of the proposed bills have text available for review.

Gary L. Perry of Manhattan, Montana has sponsored three of these bills (LC0557, LC0558, and LC0560), and David Howard has sponsored one of them (LC1909).  Each of these bills threaten to create serious and lasting divisions that would segregate and disenfranchise members of our immigrant communities.  Over the next few days, I will be discussing each of these proposed bills.  LC0558, which is sponsored by Gary L. Perry, would make it a misdemeanor or felony to transport, move, conceal, harbor, or shield any alien that you know to be undocumented.  It would also make it a misdemeanor or felony to encourage an undocumented alien to enter or remain in the state without status.  The bill would also provide for forfeiture of property belonging to anyone convicted of any of those offenses.  The intent of this legislation is to deter legal residents from interacting with individuals who they might know or suspect to be an undocumented alien, for fear of being subjected to criminal penalties and forfeiture of property.

The undocumented immigrants living in Montana are already marginalized and victimized by those who prey upon their inability to report abuses to the authorities.  This legislation would only make matters worse by making legal residents more unwilling to come to the assistance of their immigrant neighbors.This bill is modeled after the pre-existing federal statute at 8 U.S.C. § 1324.  In other words, this is already federal law, and is being enforced by Immigration and Customs Enforcement (ICE).

Mr. Perry apparently doesn’t believe the federal government is doing a good enough job and wants to expend state money and resources to enforce these laws as well.  Besides being a waste of our taxpayer dollars and limited law enforcement resources, this legislation is pre-empted by federal law.  The federal government has created a comprehensive scheme for enforcement of such immigration penalties, and states may not enter the field and impose their own regulations and penalties.

It is also worth noting that the proposed legislation changes the language of the federal legislation it is modeled after, and creates a presumption that an alien is undocumented as along as the “United States government” says so.  Of course, the United States government is comprised of many different agencies, most of which have no authority to determine the immigration status of an individual.  Perhaps this broad language is intended to allow the Social Security Administration to determine an immigrant’s status simply by running the individual’s social security number through their system.

This concept has been unilaterally rejected by the Ninth Circuit Court of Appeals, because it is highly inaccurate and unreliable.  I urge each and every reader to inform their local representatives that they oppose this legislation, and any other attempt by the state to regulate immigration.  Efforts such as these are not productive in reducing undocumented immigration, but only serve to further disenfranchise our immigrant populations, many of whom are already heavily segregated from our communities.

Posts analyzing the other anti-immigrant bills being proposed this legislative session will be forthcoming.

Today I had the honor of presenting my views about immigrant rights as a human rights issue.  I spoke at a fundraising event hosted by the Montana Human Rights Network, which was held at the Myrna Loy in Helena, Montana.

I believe that too often, people tend to view immigration as a purely legal issue, and are quick to classify undocumented immigrants as no different from “criminals” who violate the law.  This simplistic view of immigration fails to take into account the human rights conditions that forcibly displace immigrants and compel them to come to the United States, with or without lawful status.  Individuals who come to the United States under these conditions are not criminals and should not be treated as such.My presentation makes the argument that human rights exist apart from the law, and are not constrained by the law as it stands at any given moment.  Further, because human rights conditions often compel undocumented immigration, the treatment of undocumented immigrants in the United States is also a human rights issue.