Texas immigration bill is likely unconstitutional, would make …

On April 12, Texas legislators will consider a bill to make it a state felony to cross the southern border without documents, imposing a prison sentence of up to 10 years and no less than £10,000 in fines. House Bill 20[1] would also create a new Border Protection Unit to detain and deport noncitizens, which could deputize any private citizen without a felony conviction to carry out the law.

Not only is HB 20 likely unconstitutional under the U.S. Supreme Court's 2012 decision in Arizona vs. United States[2], which held local law enforcement cannot impinge on the federal government's immigration authority by arresting undocumented immigrants and charging them with state crimes, but HB 20 would not be good for Texans.

1.

HB 20 would increase racial profiling and discrimination against American citizens

By creating a unit of state and local officers who can arrest anyone they suspect of being in Texas without legal status -- whether along the border or in central and northern towns like Austin and Dallas -- our community will be divided into two classes of people: those who look Hispanic and those who don't.

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Our many neighbors who are American citizens or have legal status, like permanent residents and DACA youth, who look Hispanic will live in constant fear of being targeted. They will have to carry identification documents around at all times just as if they lived in a police state, always having to watch over their shoulders. This will make it impossible for them to live a normal life.

2.

HB 20 would make our communities less safe

People in our community that look Hispanic will become increasingly hesitant to reach out to law enforcement to report armed assaults, robberies and other crimes out of fear that they will then face issues with the police because of their appearance. Even where the police act ethically, the fear will be paralyzing, preventing law enforcement from catching criminals and ultimately making our communities less safe.

In fact, to understand this problem for undocumented immigrants, Congress created the U-visa program[3] to encourage cooperation with law enforcement. I have spoken with many U-visa clients who have confirmed this fear of coming forward.

HB 20 would expand this fear from those without legal status to affect anyone who looks Hispanic.

These new Border Protection Unit officers would be immune from civil and criminal liability, making them unaccountable, further eroding public trust in law enforcement. They would work under a "unit chief" who is appointed by and answers to the governor, a political position.

3. HB 20 would undermine transparency and accountability

Having the unit chief only answerable to the governor, and not the public, is not how law enforcement is supposed to work.

Law enforcement is not meant to be political.

While HB 20 would set up a Legislative Border Safety Oversight Committee, which would provide oversight and border safety policy recommendations, it is unclear what the extent of these oversight powers would be and whether or not the committee would have any authority to correct excesses, beyond issuing recommendations which could be ignored by the political establishment. It is also unclear how members of this committee would be selected, what expertise they would have, or whether any reporting would be made available to the public for an independent analysis.

4. HB 20 would set the stage for abuse by creating a vigilante police force

HB 20 would allow the state to authorize individuals with no law enforcement experience or training to "arrest, detain and deter" undocumented immigrants.

This blanket permission given to private citizens to act as police would be unprecedented. It doesn't take much to imagine how an angry person might "deter" an immigrant, actions for which they would have immunity under HB 20.

While HB 20 foresees some training before authorizing regular citizens to make arrests, it is unclear whether that training would be on par with what police receive. Even with training, there would be no system for supervision, much less tracking of actions taken by private actors.

Providing pervasive and wide-reaching authority to arrest -- with no protections for https://statutes.capitol.texas.gov/Docs/CR/htm/CR.14.htm, etc. -- and to detain -- with no requirements for conditions of confinement, etc. -- could easily lead to one citizen throwing another into the back of their truck, dumping them in an outbuilding without food or water, and doing who knows what else.

HB 20 effectively would turn our protections against kidnapping, unauthorized restraint and other laws like assault and terrorist threats on their heads.

5. HB 20 would mislead the public by politicizing a humanitarian issue

Claiming that the constitutional exception giving states extra powers when facing invasion and imminent danger applies to the situation at our border is not only inaccurate but is dangerous fearmongering. Texas is not experiencing an invasion in any sense of the word.

An invasion is the "act of an army entering another country by force in order to take control of it[4]." In the context of immigration at our border, there is neither the intent to attack the U.S. nor is there a coordinated group doing so, much less by force.

Immigrants are individual people, sometimes small families, presenting at the port of entry or crossing the Rio Grande depending on their options (largely decided by U.S. immigration policy and smuggler networks).

Having worked in the Rio Grande Valley and the San Antonio area for over 10 years with thousands of immigrants who have recently crossed the border, "invasion" does not reflect what I experience every day at work. Individuals come to the U.S. for all sorts of reasons, some fleeing religious or political persecution, others fleeing gang violence, and still others looking for better economic opportunities or to reunify with family in the U.S.

They are not here to attack us, and most turn themselves into immigration officials and are released after biometrics prove they have zero criminal history, to pursue cases for legal status in federal immigration court.

Creating the false perception that we are being invaded has real consequences. For example, language such as "invasion" has been used by individuals to attack Hispanics[5] -- immigrants and nonimmigrants alike -- such as the North Texas man who drove to El Paso and killed 23 people in a racially motivated rampage[6].

6.

HB 20 would increase the nonviolent incarcerated population

Many individuals are coming to the U.S. to seek asylum, a lawful reason for entry even if not at an established port of entry. According to TRAC, a database that provides immigration statistics from government sources, 60.5% of people in Immigration and Customs Enforcement detention have no criminal history[7], and the vast majority otherwise have only minor criminal history such as simple marijuana possession. Under Operation Lone Star, only 6.41% of arrests were criminal[8], according to state data.

Most drugs do not enter the U.S. with border crossers, but rather through our ports of entry (90%[9]) with U.S. citizens (86.3%[10]) and lawful permanent residents. Since 2012, I have spent thousands of hours interviewing recent arrivals.

They are not involved with the cartels but rather are often the cartels' victims, the majority fleeing to escape forced recruitment, extortion and rape.

Taking police resources away from investigating violent crimes in our communities to arrest, charge, prosecute and jail nonviolent individuals with no criminal history is not a good use of Texans' taxpayer dollars.

The Legislature has until the end of May to make a decision on HB 20. It should scrap the bill and instead work on providing the humanitarian support to those seeking safety.

Sara Ramey is an immigration attorney and executive director of the Migrant Center for Human Rights. She wrote this column for The Dallas Morning News.

We welcome your thoughts in a letter to the editor.

See the guidelines and submit your letter here.[11]

References

1. ^ House Bill 20 (capitol.texas.gov)
2. ^ Arizona vs.

   United States (www.oyez.org)

3. ^ U-visa program (www.uscis.gov)
4. ^ act of an army entering another country by force in order to take control of it (www.oxfordlearnersdictionaries.com)
5. ^ ndividuals to attack Hispanics (statutes.capitol.texas.gov)
6. ^ racially motivated rampage (www.justice.gov)
7. ^ According to TRAC, a database that provides immigration statistics from government sources, 60.5% of people in Immigration and Customs Enforcement detention have no criminal history (trac.syr.edu)
8. ^ 6.41% of arrests were criminal (gov.texas.gov)
9. ^ 90% (www.cato.org)
10. ^ 86.3% (www.cato.org)
11. ^ submit your letter here (www.dallasnews.com)