MALDEF Wrong on the Mexican Consular ID:

Acceptance of the Card Violates Federal Statutes,
Threatens National Security, and Poses a Liability Hazard

 

            In an effort to persuade U.S. banks and public entities to circumvent U.S. immigration law through acceptance of the matricula consular card, an ID for illegal aliens in the United States, the Mexican American Legal Defense and Educational Fund (MALDEF) prepared what they termed a “summary of law” to attack the Friends of Immigration Law Enforcement (FILE), and FILE's legal arguments against acceptance of the card by U.S. institutions.[1] FILE has argued that public entities and financial corporations that accept the matricula consular ID card for identification purposes expose themselves to liability and violate U.S. immigration law.   FILE also has argued that the matricula ID is an unreliable form of identification that poses a threat to national security.  As is fairly evident to anyone who has read the document, MALDEF does not succeed in its attempt to invalidate the arguments made by FILE in its legal analysis.[2]  Even so, FILE has determined it appropriate to respond to MALDEF’s assertions in order to clear up any confusion MALDEF may have created.

            One opening remark must be made, however:  FILE is not, as MALDEF claims, "anti-immigrant." Rather, FILE opposes illegal immigration.  Like many legal immigrants, FILE simply demands that immigration laws be enforced, and MALDEF's repeated characterization of FILE as "anti-immigrant" is insulting, misleading, and a demonstration of MALDEF's underlying bias.

In the following memorandum, FILE will show that acceptance of the matricula ID violates U.S. immigration law, threatens national security, and opens the door to liability concerns for public and private entities.  This summary of the law will examine each of the claims MALDEF put forth in its white paper attacking FILE and explain why those claims are baseless.  Based on this analysis, the only conclusion that can be reached is that it is irresponsible for any U.S. institution to accept a foreign-issued, unverifiable form of identification like the Mexican matricula consular card.

 

MALDEF Claim – Acceptance of the Mexican consular ID is not illegal – in fact it is currently permitted by the U.S. Treasury under the Patriot Act

 

MALDEF argues that the consular ID should be accepted because of “the rulings to date of Treasury, well-established law, the logic of the need to identify all persons within our borders, and the fact that the matricula is a better, more fraud-proof form of ID than any U.S. government-issued identification document.”[3]  Unfortunately for MALDEF, each one of these arguments is invalid.

The Treasury Department has not as of yet “ruled” on the acceptance of the matricula consular.  In its discussion of the most recent regulations (April 29, 2003), the Treasury Department stated, “the final rule neither endorses nor prohibits bank acceptance…of identification documents issued by foreign governments.”[4]  Far from endorsing the matricula, Treasury lamented the fact that there is no reliable system for verifying the identity of undocumented aliens, and that until a reliable system is established, the matricula may be the only option.[5]  Thus, contrary to MALDEF’s claims, Treasury hardly endorses the use of the matricula consular as stand-alone proof of identity.  MALDEF bases almost it's entire legal analysis on this alleged acceptance of the matricula consular by the Treasury Department; thus, it is important to note, the fact that the Treasury Department does not, in fact, endorse the matricula card almost, by itself, invalidates MALDEF's entire attack on FILE. 

Furthermore, the matricula ID is not sufficient to meet the demands imposed by the new regulations.  Treasury now requires banks to establish customer identification procedures that “enable the bank to form a reasonable belief that it knows the true identity of each customer.”[6] 

In order to obtain a matricula ID, all that an applicant must produce to verify identity is a Mexican birth certificate, which is easy to copy or obtain fraudulently.  Procurement of the card being very susceptible to fraud renders the ID unreliable, particularly because no U.S. authorities have any means by which to verify the card's veracity.  No bank, therefore, accepting the matricula ID can have a “reasonable belief” that the identity of the presenter is established.  Indeed, border patrol agents have said that they find “many” illegal aliens with multiple matricula cards, each showing the alien’s picture but containing different names.  John Marlborough, a US Border Patrol Officer said, “the [matricula] card is a worthless form of ID that is being used by criminals to hide their true identities.”  Marlborough found one illegal with seven matricula cards, each with a different name but the same picture.[7]  Scott Weber, deputy director for the Immigration and Naturalization Service in Denver stated, “One guy we arrested recently had three different matriculas with three different names. It was his picture, issued through the consulate.  Our one worry is that this gives someone whose intentions are bad one genuine piece of identification.”[8]  Therefore, since a person can easily obtain a matricula consular card that shows a bogus, or someone else's, identity, banks may not rely on the matricula card in order to meet the Treasury’s new regulations.

MALDEF also argues that there is well-established law supporting the acceptance of the matricula, yet fails to mention even one statute evidencing that assertion.  In fact, the General Services Administration (GSA) has withdrawn support for the matricula, saying that, pending further study, it will no longer be accepted for admittance to federal facilities.[9]  Rather than showing the presence of any well-established law, this decision illustrates that the federal government has serious concerns about the acceptance of the matricula.

 

MALDEF Claim – Acceptance of the matricula is not a violation of 8 U.S.C. § 1324[10].

 

MALDEF argues that accepting the matricula ID is not a violation of 8 USC § 1324 for “aiding and abetting illegal immigration.”  Because banks and government officials are accepting the cards from persons who already reside in the United States, MALDEF's argument goes, “acceptance of the ID is not encouraging or inducing anyone to ‘come into, enter, or reside in the U.S.’”[11] However, the Fourth Circuit refuted this exact argument in U.S. v. Oloyede saying, “appellants maintain that § 1324 (a) (1) (D) is solely directed to acts bringing aliens into the country. However, the plain language states ‘knowing that [the illegal alien’s] residence is or will be in violation of the law.’ Because the use of the verb ‘is’ clearly connotes the present status of the illegal alien’s residence within the U.S., it can only be understood to apply to actions directed towards illegal aliens already in this country.”[12]

Furthermore, MALDEF chooses to ignore that acceptance of the matricula card will “encourage or induce” further illegal immigration, which is also a clear violation of § 1324. Acceptance by U.S. financial corporations of the matricula consular card, while profitable, makes an attempt to cross our dangerous borders even more enticing to desperately poor foreigners. Thus, acceptance of the card does "encourage" or "induce" further illegal immigration.

 

MALDEF Claim – Acceptance of the matricula is not a violation of the RICO Act.

 

MALDEF casually glosses over the potential liability that banks will face under the Racketeering Influenced and Corrupt Organization Act (RICO) for unlawful competitive advantage.  By accepting the matricula ID, a bank violates INA § 274 by “encouraging” illegal aliens to remain in the United States.  This violation serves as a predicate act for racketeering under RICO.[13]  Thus, the bank accepting the card can be held criminally and civilly liable under RICO because the bank gains financially through a pattern of racketeering.[14] 

A bank that does not accept the matricula consular, competing with a bank that does accept the card, would have standing to seek damages under RICO.  In a recent RICO case, which also turned on a violation of immigration law, the Second Circuit, in finding for the plaintiff, held that “[i]n order to bring suit under § 1964(c), a plaintiff must plead (1) the defendant's violation of § 1962, (2) injury to the plaintiff’s business or property; and (3) causation of the injury by the defendant’s violation.”[15]  As previously stated, acceptance of the matricula ID is a violation of INA § 274, which is a violation of § 1962 of RICO.  The competitor bank can show injury resulting from the increase in business the violating bank gains from acceptance of the matricula ID, thereby putting its more scrupulous competitors at an unfair disadvantage.  Causation can be shown since there will be a direct nexus between the racketeering activity and the competitive disadvantage suffered by the bank operating lawfully.  Thus, the bank accepting the matricula ID would likely be held liable under RICO.  Under the damages provision of RICO, the successful plaintiff is entitled to recover treble damages, including all costs and reasonable attorney’s fees.[16]

FILE believes MALDEF’s attempt to reassure banks that they face no liability under RICO is irresponsible and poorly argued.  Those banks relying on MALDEF’s very brief and insufficient analysis take a tremendous and unnecessary risk of future RICO liability.

 

MALDEF Claim – Threats of civil liability are arbitrary, capricious and without legal merit.

 

MALDEF cavalierly shrugs off the very real threat of liability that banks and entities that accept the matricula ID face.  Since the matricula ID does not show immigration status, MALDEF asserts that no civil claim can be established because damages are not foreseeable.  However, MALDEF’s reasoning is based on two fundamentally flawed premises – 1) that the federal government sanctions the use of the matricula, which has already been shown to be false, and 2) that the matricula does not indicate immigration status, so a bank would not have cause to assume that the person was an illegal alien.  While the card itself does not mention status, the fact that the holder is unable to produce any other ID and so must rely on the matricula card is, as any reasonable person would conclude, strong evidence that the presenter is illegally in the U.S.  (All legal immigrants and visitors have access to some form of identification provided by U.S. authorities, so only illegal aliens have need of the matricula.) 

While it is hard to predict how any given jurisdiction will determine foreseeability, in a case where a bank criminally encourages an illegal alien to remain in the U.S. illegally, and that alien, by his very illegal presence, causes injury to another, it can be safely assumed that some, if not many, jurisdictions will certainly find the resulting injury foreseeable, especially since illegal immigrants do not undergo the same precautionary criminal and health background checks in their home countries that legal immigrants do.  Therefore, some damages may be foreseeable, and any entity accepting the card can be held civilly liable.  A bank that relies on MALDEF’s thin argument that the foreseeability issue protects the bank from liability is taking an unnecessary, and potentially very costly, risk

 

MALDEF Claim – Since the federal government is responsible for enforcing immigration laws, local governments and banks cannot be held liable for failure to enforce immigration laws.

 

No one is arguing that banks or public entities are responsible for enforcing immigration law.  What is obvious, however, is that neither banks nor public local entities may subvert or violate national immigration law.  It is illogical for MALDEF to say that a lack of responsibility to enforce a law equates to a right to violate that law. Based on MALDEF’s logic, a bank could violate federal antitrust laws since they do not have to enforce them.

Furthermore, while MALDEF correctly states that the federal government has plenary power to legislate immigration policy and that state and local governments can make policy that mirrors federal policy, MALDEF inaccurately concludes that a local government policy permitting acceptance of the matricula ID mirrors federal immigration policy.[17]  MALDEF, again, relies for this argument on Treasury Department regulations, but this reliance is improper for two reasons.  First, Treasury's regulations do not, as has already been shown, support, or endorse, the use of the matricula consular.  Second, even if Treasury did support the card, it is irrelevant because immigration policy is not within the jurisdiction of the Treasury Department.  Rather, Congress has sole federal jurisdiction over immigration policy, and the only congressional legislation to date that addresses the present issue is that previously cited against MALDEF's claims, 8 USC § 1324.   Indeed, even supposing a federal agency could stand in for, or overshadow, Congress' plenary powers over all immigration policy, the appropriate agency to look to for guidance in matters of immigration law would be that agency charged with enforcing it, the Department of Homeland Security (DHS). The DHS, which is certainly more closely tied to matters of immigration policy than the Treasury Department, is opposed to the use of the matricula ID. 

MALDEF falsely claims that statements made by Asa Hutchinson, the Undersecretary for Border and Transportation Security at the Department of Homeland Security, support its arguments for accepting the illegal alien ID card.[18]  It is impossible to imagine how MALDEF can conclude from Undersecretary Hutchinson’s remarks that he supports acceptance of the matricula ID.  In testimony given to a House subcommittee on April 10, 2003, Undersecretary Hutchinson testified that acceptance of the matricula ID makes it more difficult to enforce U.S. immigration laws when the ID “can be used to get benefits or services or access to facilities they would not otherwise have.”  He urged banks not to allow someone who is here illegally to reap a benefit they would not otherwise be entitled to by using the matricula ID. [19]

For this, and the reasons above, acceptance of the matricula ID by local and state governments hardly mirrors federal policy. 

 

MALDEF claim – International law requires recognition of the matricula

           

MALDEF claims that since Mexico, as a sovereign state, has the right to issue the matricula, the U.S. must accept it.  No principle of international law suggests this.  MALDEF relies on the principles of consular relations to make its case, but the U.S. satisfies the requirements of the Vienna Convention on Consular Relations, to which both the United States and Mexico are signatories, by accepting Mexican passports, as Mexico accepts U.S. passports.[20]  MALDEF implies that the U.S., under international law, is bound to accept any identification issued by a foreign state.  Under this logic, every foreign state with consular relations would have to accept any U.S. government issued ID, such as a driver’s license or student ID from a public school, and clearly this is not the case.  MALDEF warns that under the international law principle of reciprocity, Mexico would refuse to honor U.S. passports if the U.S. fails to accept the matricula.  This is a false analogy.  The proper analogy under reciprocity would be if the U.S. were to refuse to honor Mexican passports; however, the matricula is not equivalent to a passport.

 

MALDEF Claim – Local governments and banks are prohibited from discriminating based on immigration status.

 

            Again, MALDEF misstates the law.  Refusing to accept the matricula ID is not discrimination based on immigration status.  The decision not to accept the card is wholly a function of the unreliability of the card, the fact that it poses a threat to national security, and because it encourages illegal immigration in contravention of federal law.  By MALDEF’s logic, a bank that refused to accept a college ID to open a checking account would be discriminating against college students.  Clearly, this does not fit within the definition of discrimination. 

Furthermore, everyone is aware that the federal government has made it unlawful to employ illegal aliens; thus, the government is expressly sanctioning the refusal to afford the same rights to illegal aliens that are enjoyed by U.S. citizens.  In fact, the Fourth Circuit in US v. Oloyede said that 8 USC § 1324 is violated when anyone offers illegal aliens "a chance to stand equally with all other American citizens.”[21]   Clearly, the federal courts do not support MALDEF’s assertion that refusing to accept a matricula ID held by an illegal alien is discrimination.

            Interestingly, MALDEF is essentially refuting one of its own arguments here.  MALDEF first asserts that the matricula ID provides no evidence of immigration status, yet then asserts that failure to accept the ID is discrimination based on immigration status.  If the ID does not show immigration status, then how can an entity discriminate based on immigration status by failing to accept it?  Conversely, if the refusal to accept the card is discrimination based on immigration status, then doesn't use of the card show the immigration status of the holder?

 

MALDEF Claim – Acceptance of the matricula increases public safety, national security and our economic competitiveness by enabling the reliable identification of millions of Mexicans living and working in the U.S.

 

The matricula ID is not reliable and poses a serious threat to U.S. national security.  The Mexican consulates issue the cards without any background check of the applicant; the consulate does not check the legal status of the applicant, whether the applicant has any criminal history, or whether the applicant has been issued a matricula before.  Additionally, it is very easy to fraudulently obtain the card, as has been previously noted.  Therefore, the matricula ID does not provide reliable identification, and so it decreases, rather than increases, public safety.

Furthermore, when the police stop a U.S. citizen, the person must provide valid identification, such as a driver’s license or passport.  The officer can then use the ID to check the criminal status of the individual.  However, since the matricula is not tied into any database accessible to U.S. authorities, the officer cannot gather the same information on the illegal alien.  This means that the scrutiny undergone by U.S. citizens is absent for illegal immigrants presenting a matricula card, which, beyond refuting another of MALDEF's arguments, raises by itself equal protection issues.

            Also, acceptance of the matricula can lead to extremely dangerous consequences.  If accepted by a state, the card could be used by the illegal immigrant to obtain a driver’s license, giving him access to all manner of federal and state buildings and to airplanes.  Most of the 9/11 hijackers fraudulently obtained driver’s licenses, which they used to board the planes that killed three thousand innocent people.   Widespread acceptance of the matricula would make it even easier for a terrorist to take advantage of our free and open society.  It would be incredibly irresponsible and dangerous for any entity to make it easier for terrorists to subvert the federal government’s attempts to protect the homeland.

This is not to suggest that all illegal immigrants from Mexico are terrorists, only that the matricula ID facilitates the ability of terrorists to remain illegally in this country and threaten American lives.  On April 4, 2003, Kathryn Lee Holloman of the North Carolina Banking Institute argued that banks should not accept the matricula ID due to the national security threat such action imposed. “The decision to accept the matricula consular acts as a back door for terrorists.  That is, the relaxed identification requirements allow terrorists to more easily incorporate themselves into American financial institutions.  In essence, the decision aids money laundering and terrorism financing.  It undermines the very underpinnings of the PATRIOT Act’s anti-money laundering and anti-terrorism initiatives, and accordingly should be expressly prohibited.  The decision to acknowledge the matricula consular as a primary from of identification for opening bank accounts poses a serious threat to the United States.”[22]

Similarly, New York City and New York State recently decided not to accept the matricula ID.  “Citing security concerns, Police Department officials said they had rejected requests from the consulate to accept the new ‘matricula consular,’ or consular ID card, as proof of identity for Mexican immigrants.  The State Department of Motor Vehicles also has refused to recognize the consular card…to its list of approved identity documents for obtaining a driver's license.”[23]

Ron Wilson, president and CEO of Desert Community Bank, decided against acceptance of the matricula as a means for opening a bank account.  He reasoned that the matricula is an unreliable form of identification because “it is too easy to get.”  As mentioned before, little is required to gain a matricula card, and it is very easy for illegal immigrants to obtain multiple cards with different names on them; MALDEF's claims are wholly inaccurate.

 

MALDEF Claim – The only alternative to acceptance of the matricula ID is to legalize all illegal immigrants currently in the US

 

            MALDEF finally emerges from the fog of empty rhetoric and inaccurate legal analysis to show its true goal – a massive blanket amnesty for illegal aliens.  As MALDEF is well aware, massive amnesties only encourage even more illegal immigration, as a 1999 U.S. government study showed.[24]

Perhaps MALDEF wants to encourage further illegal immigration so it can increase its political power by enlarging its constituency, but the American people overwhelmingly oppose MALDEF’s agenda.  In a recent Roper poll, 75% of Americans polled stated that a person should not be able to open a bank account without first verifying that they are in the United States legally.[25] 

There is an alternative solution to mass amnesties that will protect lives and curb the danger of illegal immigration.  The solution is to enforce existing immigration laws and help those who would blatantly disregard U.S. law by entering the country illegally return to their homes.  Such firm, but humane, enforcement will discourage further illegal immigration, thus saving the lives of hundreds f foreigners who die crossing the dangerous borders every year.

 

Conclusion

 

            MALDEF has failed to offer any valid argument to support its position that the matricula ID should be accepted as a valid form of identification in the United States.  The matricula ID is an unreliable form of identification that is far too easy to obtain fraudulently.  Widespread acceptance of the matricula ID poses a serious threat to national security, undermines the ongoing war against terrorism, and encourages illegal immigration.

Any U.S. bank that accepts the matricula ID may be held both criminally and civilly liable under existing U.S. law if it chooses to accept the matricula ID.  Thus, banks would be well advised to declare that presentation of the matricula ID alone is not sufficient to open a bank account.

Similarly, local and state governments should refuse to accept the matricula ID as a valid form of identification.  Cities and states that do encourage illegal aliens to remain in this country through use of the matricula ID face civil liability for injuries caused by those illegal aliens.  Furthermore, the decision to accept the matricula ID is an unconstitutional intrusion on the federal government’s plenary power to legislate immigration policy, and a violation of 8 USC § 1324.

            MALDEF is actively encouraging criminal violation of U.S. law and supporting a position that threatens the lives and future of American citizens.  Additionally, MALDEF, while claiming to be an organization that improves the lives of Mexicans, is advocating a position that threatens the lives of Mexican nationals.  By supporting the matricula ID, MALDEF is encouraging Mexicans to risk their lives by crossing the dangerous U.S.-Mexico border.  In addition to the serious legal and liability concerns, this threat to Mexican lives, as well as the threat to American lives, indicates that the acceptance of the matricula ID is unsound and MALDEF's memorandum should be ignored.

 

Micah King

mck25@law.georgetown.edu

May 27, 2003


[1] MALDEF White Paper, Acceptance of the Mexican Consular IDs is not only Legal – It Improves Public Safety and Enhances the Economy, at http://143.231.169.144/pdf/MOLDEF%20White%20Paper.pdf.

[2] FILE Letter to Banks, Foreign Issued Identification Cards and U.S. Financial Institutions – Legal Considerations, at http://www.fileus.com/dept/id/matricula/bank-letter-02-12-04.html.

[3] MALDEF White Paper, page 5.

[4] Footnote 25 to 31 C.F.R. § 103

[5] Dept. of Treasury, Press Release PO-3263, Treasury and Federal Financial Regulators Issue PATRIOT Act Regulations on Customer Identification, July 17, 2002.

[6] 31 C.F.R. § 103.121 (b) (2) (2003)

[7] Stephen Wall, Disputed ID Card in Limbo, San Bernardino County Sun, May 22, 2003.

[8] Michael Riley, Mexican ID Cards Caught in Growing Debate: Federal Authorities Warn that “Matriculas” are Not Reliable, Denver Post, Oct. 10, 2002.

[9] Jerry Seper, GSA Bars Mexican ID Cards, Washington Times, Jan. 22, 2003.

[10] § 1324. Bringing in and harboring certain aliens

(a) Criminal penalties

(1)(A) Any person who--

(i) knowing that a person is an alien, brings to or attempts to bring to the United States in any manner whatsoever such person at a place other than a designated port of entry or place other than as designated by the Commissioner, regardless of whether such alien has received prior official authorization to come to, enter, or reside in the United States and regardless of any future official action which may be taken with respect to such alien;

(ii) knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, transports, or moves or attempts to transport or move such alien within the United States by means of transportation or otherwise, in furtherance of such violation of law;

(iii) knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, conceals, harbors, or shields from detection, or attempts to conceal, harbor, or shield from detection, such alien in any place, including any building or any means of transportation;

(iv) encourages or induces an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law; or

(v)(I) engages in any conspiracy to commit any of the preceding acts, or

(II) aids or abets the commission of any of the preceding acts, shall be punished as provided in subparagraph (B)

[11] MALDEF White Paper, page 6.

[12] U.S. v. Oloyede, 982 F.2d 133, 136 (4th Cir. 1992).

[13] 18 U.S.C. § 1961 (2003)

(1) "racketeering activity" means

(F) any act which is indictable under the Immigration and Nationality Act, section 274

[14] 18 U.S.C. § 1963 (2003) – Criminal Penalties; 18 U.S.C. 1964 (2003) – Civil Remedies

[15] Commercial Cleaning Servs.  v. Colin Serv. Sys., 271 F.3d 374, 380 (2nd Cir. 2001)

[16] 18 U.S.C. § 1964 (c) (2003)

[17] MALDEF White Paper, page 10.

[18] MALDEF White Paper, page 12.

[19] House Committee on the Judiciary: Subcommittee on Immigration, Borders and Claims Hearing on Homeland Security: Immigration, Apr. 10, 2003.

[20] Vienna Convention on Consular Relations, Apr. 24, 1963, 21 U.S.T. 77

[21] U.S. v. Oloyede, 982 F.2d 133, 136 (4th Cir. 1992).

[22] Kathryn Lee Holloman, The New Identity Crises: USA PATRIOT Act Customer Identification Programs and the Matricula Consular as Primary Identity Verification for Mexican Nationals, 7 North Carolina Banking Institute 125-54 (2003).

[23] Susan Sachs, "Citing Security, New York Rejects Mexican ID Cards," New York Times, Dec. 28, 2002.

[24] U.S. Department of Justice and U.S. Department of Labor, The Triennial Comprehensive Report on Immigration (Washington: U.S. Department of Justice 1999), at http://www.immigration.gov/graphics/aboutus/repsstudies/addition.html

[25] RoperASW, March, 2003, (Nationally representative survey of 1,012 American adults (18+) who live in the continental United States, taken March 7-9, 2003).