Legal Objections To Acceptance by U.S. Institutions
of the Matricula Consular and Other
Foreign-Issued Consular Identification Cards

Micah King

Friends of Immigration Law Enforcement

Washington, DC, June 16, 2003

INDEX

Authorities Cited		ii
Questions Presented		1
Statement of Facts		1
Summary of Argument		2
Argument:
	I. ACCEPTANCE OF THE MATRICULA CONSULAR BY PUBLIC AND PRIVATE ENTITIES IS A CRIMINAL VIOLATION OF THE IMMIGRATION AND NATIONALITY ACT.	4
	II. PUBLIC AND PRIVATE ENTITIES MAY BE HELD CIVILLY LIABLE FOR INJURIES TO U.S. CITIZENS CAUSED BY ILLEGAL ALIENS WHO REMAIN IN THE U.S. ILLEGALLY DUE TO ACCEPTANCE OF THE MATRICULA CONSULAR.	6
	III. BANKS ACCEPTING THE MATRICULA CONSULAR CAN BE HELD LIABLE UNDER THE RICO ACT FOR GAINING FINANCIALLY FROM CRIMINAL ACTIVITY AT THE EXPENSE OF COMPETITORS.	8
	IV. PUBLIC AND PRIVATE ENTITIES ARE PRECLUDED FROM ENACTING POLICIES PERMITTING ACCEPTANCE OF THE MATRICULA BECAUSE SUCH POLICIES INFRINGE ON THE FEDERAL GOVERNMENT'S PLENARY POWER TO SET IMMIGRATION POLICY.	11
	V. NO TREATY TO WHICH THE U.S. IS A SIGNATORY, NOR ANY PRINCIPLE OF INTERNATIONAL LAW, REQUIRES THE U.S. TO ACCEPT THE MATRICULA CONSULAR.	13
Conclusion		15
Appendix		a

AUTHORITIES CITED

CASES:
	Boos v. Berry, 108 S.Ct. 1157 (1988)	14-15
	Breard v. Greene, 118 S.Ct. 1352 (1998)	14
	Celotex Corp. v. Catrett, 477 U.S. 317 (1986)	8
	Commercial Cleaning Servs.. v. Colin Serv. Sys., Inc., 271 F.3d 374 (2nd Cir. 2001)	11
	Maneth v. Tucker, 34 S.W.3d 755 (Ark. Ct. App. 2000)	8
	Mendoza v. Zirkle Fruit Co., 301 F.3d 1163 (9th Cir. 2002)	9-10
	Miller v. Grants Pass Irr. Dist., 686 P.2d 324 (Or. 1984)	7-8
	Robinson v. May Dept. Stores Co., 246 F.Supp.2d 440 (E.D. Pa. 2003)	6
	Toll v. Moreno, 458 U.S. 1 (1982)	12
	U.S. v. Anaya, 509 F.Supp. 289 (D.C. Fla. 1980)	6
	U.S. v. He, 245 F.3d 954 (7th Cir. 2001)	5
	U.S. v. Oloyede, 982 F.2d 133 (4th Cir. 1992)	4-5
STATUTES:
	Immigration and Nationality Act, 8 U.S.C. § 1182-1324 (2003)
	8 U.S.C. § 1182 (a)(2)(i)	6
	8 U.S.C. § 1227 (a)(2)	6
	8 U.S.C. § 1324(a) (1) (A) (iv)	4
	8 U.S.C. § 1324(a) (1) (B)	4
	Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961-1964 (2003)
	18 U.S.C. § 1961(1) (F)	9
	18 U.S.C. § 1961(5)	9
	18 U.S.C. § 1962	9
	18 U.S.C. § 1963(a)	11
	18 U.S.C. § 1964(a)	11
	18 U.S.C. § 1964(c)	11
MISCELLANEOUS:
	8 C.F.R. § 2.1 (2003)	13
	31 C.F.R. § 103.121 (b) (2) (2003)	13
	31 C.F.R. § 103 n.25 (2003)	12-13
	BLACK'S LAW DICTIONARY 1276 (7th ed. 1999)	14
	Department of Homeland Security Transition: Hearings Before the Subcomm. On Immigration, Borders and Claims of the House Comm. on the Judiciary, 108th Cong. 41-42 (2003).	13
	Michael Riley, Mexican ID Cards Caught in Growing Debate, Denver Post, Oct.10, 2002.	2
	RESTATEMENT (SECOND) OF TORTS § 286 (1965)	6, 7
	U.S. Const. Art. VI, cl. 2	12
	Vienna Convention on Consular Relations, Apr. 24, 1963, 21 U.S.T. 77, Article 5(d)	14
	Article 55(1)	15

QUESTIONS PRESENTED

I.            Whether banks and public entities can be held criminally liable under the Immigration and Nationality Act for "aiding and abetting illegal immigration" by accepting the matricula consular ID card, an unreliable form of identification needed only by illegal aliens.

II.             Whether banks and public entities that accept the matricula consular can be held civilly liable for injuries sustained by U.S. citizens caused by the illegal aliens who unlawfully remain in this country due to the benefits provided by the matricula ID.

III.             Whether banks can be held liable under the Racketeer Influenced and Corrupt Organizations Act (RICO) for gaining financially from criminal violations of the Immigration and Nationality Act at the expense of law-abiding competitors.

IV.             Whether state and local officials and U.S. citizens may establish policies permitting acceptance of the matricula ID even though, constitutionally, the federal government has plenary power over immigration policy.

V.             Whether acceptance of the matricula ID is required by the provisions of the Vienna Convention on Consular Relations or by the international law principle of reciprocity.

 

STATEMENT OF FACTS

The matricula consular is an identification card similar in appearance to a state-issued driver's license that contains a person's name, address, photo, date and place of birth, and identification number.  The card is issued by Mexican consulate offices located in the United States.  All that is required to obtain the card is presentment of a Mexican birth certificate, $29, and, Mexico now claims, a second photo ID.  The consulates do not conduct any criminal background check of the applicant, nor do the consulates maintain a central database of issued cards.

While the card does contain various safeguards to prevent fraudulent duplication, the card is easy to obtain fraudulently.  In fact, the card is so easy to obtain fraudulently that border patrol agents say the card is unreliable, and that they routinely find illegal aliens carrying more than one card containing the alien's picture but different fictitious names.  See, e.g., Michael Riley, Mexican ID Cards Caught in Growing Debate, Denver Post, Oct.10, 2002.  Also, since the consulates do not maintain a central database of issued cards, neither Mexican nor U.S. officials have the ability to see whether the applicant has previously obtained a card from another consular office.

In addition to the card's unreliability, its use is unnecessary by all but illegal aliens.  Permanent residents and visitors are issued identification papers, such as a green card, visa, or other U.S.-issued stamp or document.  Thus, only illegal aliens would need to rely on the matricula ID as the sole method for establishing identity.

 

SUMMARY OF ARGUMENT

Acceptance of the matricula consular by public and private entities for identification purposes exposes those entities to criminal and civil liability.  Entities that do establish policies permitting acceptance of the matricula violate federal statutes pertaining to immigration.  Additionally, these policies illegally infringe on the federal government's plenary power over immigration policy and are thus preempted due to the supremacy clause.  Furthermore, no treaty to which the United States is a signatory, n6r any principle of international law, requires the federal or state governments to accept the matricula ID.

Acceptance of the matricula consular by both public and private entities is a criminal violation of 8 U.S.C. 1324.  The statute makes it a crime to knowingly "encourage or induce an alien to come to, enter, or reside in the United States."  Entities that accept the matricula consular do "encourage" and "induce" illegal aliens to reside in the United States because those entities confer benefits to illegal aliens that allow them to stand equally with U.S. citizens.  The requisite mental state of "knowingly" encouraging or inducing is met by virtue of the fact that only illegal aliens must rely on the matricula ID because U.S. citizens, legal immigrants, and visitors have access to identification documents provided by the U.S. government.  Thus, an entity accepting the card from a person who has no other form of valid identification would have constructive knowledge that the person is likely to be an illegal alien, and that such acceptance violates 8 U.S.C. 1324.

In addition to criminal liability, these entities may be held civilly liable for damages caused by illegal aliens who remain in this country as a result of the card's acceptance.  Acceptance of the matricula ID, a violation of 8 U.S.C. 1324, is a breach of duty to the American public, so a plaintiff need only prove causation to get the case to a jury.  If the matricula ID is not accepted, then illegal aliens will have a more difficult time remaining in this country undetected.  By accepting the card, entities encourage these illegal aliens to remain.  Thus, in some cases, acceptance of the card will be a "but for" cause of the continued unlawful presence of the illegal alien.  In such a case, if that alien then injures a U.S. citizen, the entity that encouraged the alien's illegal presence could be held liable.

Since acceptance of the matricula consular is a violation of 8 U.S.C. § 1324, a bank accepting the card is liable under the Racketeer and Corrupt Organizations Act (RICO) for damages caused to the bank's competitors by the illegal activity.  A violation of the INA is a predicate offense under RICO.  Continuing acceptance of the card establishes a pattern of racketeering activity.  To succeed in a RICO suit, a plaintiff competitor must show that an injury was suffered and that the criminal activity was the cause of the injury.  A competitor of a bank accepting the matricula ID will be able to make such a showing.  By unlawfully accepting the matricula ID, a bank is gaining additional customers and revenue not available to the law-abiding competitor.  Since, under proposed new Treasury regulations, it will be easy to document the number of customers that open accounts with a matricula ID alone, the damages to the competitor will not be too speculative to determine.  This documentation will also show causation, since it will indicate the amount of illegal business gained at the expense of competitors.

Even if liability is not established, both public and private entities are precluded from establishing policies permitting acceptance of the matricula consular because the federal government has plenary power over immigration policy by virtue of the commerce clause.  While local and state governments can establish policies that mirror federal immigration policy, they are precluded from undermining the federal government's authority.  The Department of Homeland Security, the executive department charged with formulating and enforcing immigration policy, is opposed to acceptance of the matricula ID.  Thus, any policy by public and private entities that authorizes acceptance of the card undermines or conflicts with, rather than mirrors, federal policy, and is, therefore, unconstitutional.

While treaties can require federal and state governments to enact certain policies, no existing treaty or principle of international law requires acceptance of the matricula consular by any U.S. entity. The Vienna Convention on Consular Relations, to which both the United States and Mexico are signatories, is inapplicable to the issue of internal domestic acceptance of consular ID cards.  While this convention does govern a sovereign's ability to issue passports or other travel documents, it does not require a signatory to accept any foreign-issued identification document, especially one issued with insufficient anti-fraud and security protections.  Likewise, any fear of reciprocal action from Mexico in response to the decision by the United States not to accept the matricula is unfounded. 

While the matricula consular is the focus of the following argument, the arguments contained herein apply equally to any consular-issued identification card.

 

ARGUMENT

 

I.             ACCEPTANCE OF THE MATRICULA CONSULAR BY PUBLIC AND PRIVATE ENTITIES IS A CRIMINAL VIOLATION OF THE IMMIGRATION AND NATIONALITY ACT.

 

Anyone who accepts the matricula "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," a criminal violation of the Immigration and Nationality Act (INA).  8 U.S.C. § 1324(a)(1)(A)(iv) (2003).  By accepting the matricula consular, public and private entities are encouraging illegal aliens already in the United States to remain.  As such, violators face prison terms of up to five years, or ten years if the violation was committed for financial gain.  8 U.S.C. § 1324(a)(1)(B) (2003).

The Fourth Circuit has held that the INA applies to actions directed at aliens already in this country or those contemplating illegal entry.  U.S. v. Oloyede, 982 F.2d 133, 136 (4th Cir. 1992).  The Fourth Circuit also held that "'encouraging' is not limited to bringing in, transporting or concealing illegal aliens.  Rather, 'encouraging' relates to actions taken to convince the illegal alien to come to this country or to stay in this country."  Id. at 137.  In Oloyede, the defendant was found guilty of violating the INA for providing false identification documents to illegal aliens residing in the United States.  The Court stated that the defendant's actions did "encourage" illegal immigration because the aliens were provided with all the benefits of citizenship, including no fear of deportation and the ability to gain work.  Id.

Similarly, acceptance of the matricula by U.S. institutions provides the benefits of citizenship to illegal aliens.  Some banks allow illegal aliens to open checking accounts upon presentment of the matricula.  This permits illegal aliens to obtain the benefits of the U.S. banking system.  Some municipalities allow illegal aliens to establish identity by presenting the card when stopped by police. This allows illegal aliens to escape detention and deportation, which they might have faced otherwise because they would have had no identity documents on their persons.  Some states and municipalities allow illegal aliens to access public services with the matricula consular card, services for which illegal aliens may be ineligible.  Because the matricula provides the same benefits of citizenship as those produced by the defendant's actions in Oloyede, acceptance of the matricula encourages those illegal aliens present in the United States to remain.

Those accepting the matricula raise the confidence of illegal aliens present in the United States that they can remain with impunity.  The Seventh Circuit upheld a jury instruction that used Black's Law Dictionary to define "encourage" as "to give courage to; to inspirit; to embolden; to raise confidence."  U.S. v. He, 245 F.3d 954, 960 (7th Cir. 2001).  Acceptance of the matricula raises the confidence of illegal aliens and emboldens them to remain unlawfully in the United States because the card gives them access to most of the benefits of U.S. citizenship.

Supporters of U.S. acceptance of the matricula incorrectly assert that no INA violation can be sustained because the knowledge requirement is not present.  They argue that since the card does not indicate the immigration status of the presenter, the person accepting the card does not know that the presenter is an illegal alien.  However, as previously mentioned, only illegal aliens have need of the matricula as a form of identification; thus, the person accepting the card would have constructive knowledge that the presenter is an illegal alien due to the fact that the matricula is being relied upon for identification.  

 

II.            PUBLIC AND PRIVATE ENTITIES MAY BE HELD CIVILLY LIABLE FOR INJURIES TO U.S. CITIZENS CAUSED BY ILLEGAL ALIENS WHO REMAIN IN THE U.S. ILLEGALLY DUE TO ACCEPTANCE OF THE MATRICULA CONSULAR.

 

U.S. citizens who suffer injury at the hands of illegal aliens may be able to sustain a negligence claim against those entities that encouraged the alien's unlawful presence through acceptance of the matricula.  Generally, to prove negligence, a plaintiff must show that: 1) a duty of care was owed by defendant to plaintiff; (2) the defendant's conduct fell below the applicable standard of care, which amounts to a breach of that duty; (3) the defendant's conduct was an actual and proximate cause of plaintiff's injury; and (4) the plaintiff did suffer actual loss or injury.  E.g., Robinson v. May Dept. Stores Co., 246 F.Supp.2d 440, 445 (E.D. Pa. 2003). 

The INA imposes upon all U.S. citizens the duty to refrain from encouraging illegal immigration.  A criminal statute can be used to establish the appropriate standard of care if the statute is found to protect from the particular harm caused by the defendant the class of persons to which the plaintiff belongs.  RESTATEMENT (SECOND) OF TORTS: EXCUSED VIOLATIONS § 286 (1965).   "In enacting the Immigration Act [INA], Congress intended to encourage aliens to enter this country in an orderly fashion, within the guidelines of immigration procedures."  U.S. v. Anaya, 509 F.Supp. 289, 298 (D.C. Fla. 1980).  A major component of immigration procedures is a criminal background check of the immigrant, which is conducted to protect the American population from dangerous immigrants by making them inadmissible.  8 U.S.C. § 1182 (a)(2)(i) (2003).  Thus, the INA is partly designed to protect U.S. citizens from the criminal behavior of foreign nationals attempting to enter the United States.  Moreover, aliens with serious criminal records are deportable.  8 U.S.C. § 1227 (a)(2) (2003).  Therefore, the provisions of the INA can be used by the plaintiff, a U.S. citizen, or person legally present in the country, to establish the appropriate standard of care owed by the defendant.

            Entities that accept the matricula breach their duty to U.S. citizens.  As mentioned, acceptance of the matricula is a violation of the INA; this indicates that a4n entity accepting the card has breached its legal duty to the plaintiff, a U.S. citizen or legal permanent resident.  The defendant may assert that acceptance of the matricula is an exercise of reasonable care, thus the statutory violation should be excused.  However, this excuse is valid only if the defendant is "unable after reasonable diligence or care to comply."  RESTATEMENT (SECOND) OF TORTS: EXCUSED VIOLATIONS § 286 (1965).  Compliance with the INA is not difficult; simply requiring applicants for services to produce U.S.-issued documents satisfies the statute, so acceptance of the matricula cannot amount to a reasonable attempt to comply.  This is analogous to a driver who chooses to exceed the posted speed limit; adherence to the limit is not difficult, and the failure to do so is merely a choice, not a legal excuse.  Thus, the unexcused statutory violation satisfies the element of breach of duty.

  With duty and breach of duty established as a matter of law, the facts of each particular case will determine whether causation is present.  There will be many instances where this element may be met.  One example is where a local or state police officer stops an individual and that individual produces a matricula to establish identity.  If the officer accepts the card alone as evidence of identity, then the illegal alien is not detained.  If the officer requires the illegal alien to produce another form of identification, and the alien cannot do so, then he or she normally would be detained until identity and immigration status can be determined.  Aliens determined to be here illegally then can be turned over to federal authorities for removal.  Thus, an officer that accepts the card prevents what is mandated by law - deportation.  This acceptance is a "but for" cause of the illegal alien's continued unlawful presence - but for the acceptance of the card, the illegal alien would no longer be in the United States.  Therefore, if the alien later injures or kills a U.S. citizen or legal permanent resident, the officer's acceptance of the card is a cause of the injury or wrongful death.

The public entity that, by policy, permitted the officer to accept the card may claim that it is immune from suit under discretionary function immunity.  This doctrine precludes suits against a government or government official for public policy decisions made by a government entity that has the authority to do so.  However, this immunity will not apply in these negligence cases.  A government has no discretion to disregard a legal duty it has under tort law.  Miller v. Grants Pass Irr. Dist., 686 P.2d 324, 330 (Or. 1984).  In Miller, the Court held that immunity did not apply to a decision by the government not to post warning signs at a dam because the government had a tort duty to warn.  Id.  As noted, public entities have a duty to adhere to the INA, and failure to so adhere is a breach of duty under tort law.  Public entities have no discretion to enact policies that disregard the duty established in the INA, so discretionary function immunity does not apply to a decision to accept the matricula.

            Another example where causation may be found is a case in which a bank allows an illegal alien to open an account using a matricula.  If that illegal alien then uses the account to launder money or fund criminal activity, then the bank's actions would be a cause of the crime.  Though the bank may argue that criminal activity is not foreseeable, a court will likely find that allowing an illegal alien to open an account by accepting an unreliable form of identification was a substantial factor of the resulting injury.  Courts typically use the substantial factor test when numerous events combine to cause the injury.  E.g., Maneth v. Tucker, 34 S.W.3d 755, 758 (Ark. Ct. App. 2000).  Had the bank refused to allow the illegal alien to open the account with the matricula alone, then the criminal activity would likely have been prevented, thus acceptance of the card is a substantial factor of the criminal behavior.

For the foregoing reasons, many plaintiffs will likely be able to survive motions to dismiss and get such negligence claims to a jury.  Since duty and breach of duty are established in all cases by virtue of the INA violation, the plaintiff must only assert causation and injury to bring the case to trial.  This is even more likely given that, in any motion for summary judgment or dismissal, all facts are viewed in a light most favorable to the plaintiff, and the burden rests on the defendant to prove that there are no genuine issues of material fact.  E.g., Celotex Corp. v. Catrett, 477 U.S. 317 (1986).  While it is unclear what findings a jury will make in these cases, many jurors will likely be sympathetic to a U.S. citizen who is killed or injured by an illegal alien, especially when that illegal alien is present in the country due to the illegal policies of a bank, a state, or a municipality.

 

III.            BANKS ACCEPTING THE MATRICULA CONSULAR CAN BE HELD LIABLE UNDER THE RICO ACT FOR GAINING FINANCIALLY FROM CRIMINAL ACTIVITY AT THE EXPENSE OF COMPETITORS.

 

A bank that lawfully abides by the INA and refuses to accept the matricula from illegal aliens attempting to open an account has standing under 18 U.S.C. § 1961, the Racketeer Influenced and Corrupt Organizations (RICO) Act, to sue a competitor bank that illegally accepts the matricula.  By accepting the matricula on more than one occasion, the defendant bank engages in a pattern of racketeering activity.  The plaintiff bank suffers lost market share and competitive disadvantage as a direct result of the defendant bank's illegal activity.  Additionally, the potential barriers to this kind of suit, such as improper plaintiff, lack of causation, or risk of multiple liability, do not apply here.

Banks that permit illegal aliens to open accounts by presenting the matricula gain financially from illegal activity, a clear violation of RICO.  "Under RICO, 'any person injured in his business or property by reason of a violation of section 1962 of this chapter may sue therefore in any appropriate United States district court' for civil damages."    Mendoza v. Zirkle Fruit Co., 301 F.3d 1163, 1168 (9th Cir. 2002).  A competitor bank that does not accept the matricula may be able to plead and prove a RICO violation.

As noted above, acceptance of the matricula is a violation of the INA, so a bank that accepts the card violates Section 1962 of the RICO Act.  The RICO Act states that "'racketeering activity' means any act which is indictable under the Immigration and Nationality Act, Section 274 [8 USCS § 1324]."  18 U.S.C. § 1961(1)(F) (2003).  Since acceptance of the matricula is a violation of the INA, its unlawful acceptance by banks is "racketeering activity."  The RICO Act is violated if the defendant engages in a pattern of racketeering activity, defined as "at least two acts of racketeering activity."  18 U.S.C. § 1961(5) (2003).  Thus, Section 1962 is violated by a bank that has accepted the matricula for financial gain on more than one occasion.

The plaintiff bank that abides by the INA and refuses to accept the matricula suffers injury to its business in the form of relatively diminished market share and competitive disadvantage due to the illegal actions of the defendant.  The plaintiff has standing to recover if the injury was caused by the defendant's illegal actions, "a requirement the Supreme Court has interpreted to encompass proximate as well as factual causation."  Mendoza, 301 F.3d. at 1168.  In Mendoza, the Ninth Circuit enumerated three factors used to determine whether causation exists: 1) whether there are more direct victims of the defendant's wrongful conduct that should bring suit, 2) whether the plaintiff's damages will be difficult to ascertain, and 3) whether the court will have difficulty apportioning damages in a way that lessens the risk of multiple recoveries.  Id. at 1169.  An analysis of these factors indicates that the plaintiff bank will have standing.

There is no other victim of the defendant's unlawful conduct that is better able to bring a RICO suit than a competitor bank.  In Mendoza, documented workers sued a competitor fruit grower for depressing wages by hiring undocumented workers in violation of the INA.  The Ninth Circuit held that the documented workers were the direct victims because the defendant's "alleged scheme here was intended to give the growers a contract advantage at the expense of the documented workers, a direct rather than a pass-through injury."  Id. at 1170.  An INA-violating defendant bank causes direct injury to a plaintiff bank because the defendant gains a competitive advantage by having more money available for loans and investments, illegally strengthening its market position at the expense of the plaintiff.  Furthermore, no victim suffers a more direct injury than the plaintiff bank, and there is no other victim better able to bring suit.  Thus, a competitor bank is the proper entity to bring suit.

The plaintiff bank's damages will not be difficult to ascertain.  In Mendoza, the Ninth Circuit disagreed with the District Court's determination that damages would be too speculative.  Id. at 1171.  While the District Court argued that numerous factors could have contributed to the suppression of wages, the Court of Appeals stated that the plaintiff should have the opportunity at trial to present expert testimony to establish its claim that the defendant's illegal actions caused the suppression.  "It is inappropriate at this stage to substitute speculation for the complaint's allegations of causation."  Id.  Thus, as long as the plaintiff alleges direct causation and asserts how the damage occurred, the defendant will not be able to dismiss prior to trial.

The plaintiff bank will be able to prove direct causation and establish damages.  The defendant bank's unlawful conduct is a "but for" cause of the injury - but for the defendant's illegal acceptance of the matricula, accounts would not have been opened by illegal aliens, so the defendant would not have gained an unfair competitive advantage.  This unfair advantage directly injures law-abiding banks in the market.  Damages will not be difficult to ascertain because the number and value of the illegal accounts can be documented, and simple calculations will show what profits and income the defendant bank made as a result of those accounts. 

The court will not have a difficult time fashioning an appropriate remedy.  The Second Circuit clarified this factor as being concerned with compensation paid to both first tier and second tier plaintiffs when damages paid only to first tier plaintiffs would "cure the harm to the second tier plaintiffs."  Commercial Cleaning Servs.. v. Colin Serv. Sys., Inc., 271 F.3d 374, 383 (2nd Cir. 2001).  In Commercial Cleaning, the Second Circuit held that the plaintiff, who claimed lost business due to the defendant's ability to underbid contracts as a result of hiring undocumented workers, was the only plaintiff injured, so there was no risk of "second-tier" plaintiffs.  Id. at 384.  Similarly, the plaintiff bank in the present case is the only direct victim, so there is no concern over multiple recoveries.  The fact that multiple banks may be injured and seek compensation is not relevant because "compensating [them] would not overcompensate any plaintiff," which is the main concern of this part of the analysis.  Id.  Thus, there is no risk of overcompensation to any single plaintiff, so there is no concern with judicial administration.

A successful plaintiff in a RICO suit is entitled to recover "threefold the damages he sustains and the cost of the suit, including a reasonable attorney's fee."  18 U.S.C. § 1964(c) (2003).  Additionally, the defendant may be forced to divest itself of part or all of its enterprise and may be enjoined from engaging in any "future investments or activities" the court sees fit.  18 U.S.C. § 1964(a) (2003).  The Attorney General of the United States also has the ability to bring criminal charges against the defendant, where the court can impose a sentence of up to twenty years in prison and fine the defendant up to twice the amount of the gross profits gained from the illegal activity.  18 U.S.C. § 1963(a) (2003).

 

IV.            PUBLIC AND PRIVATE ENTITIES ARE PRECLUDED FROM ENACTING POLICIES PERMITTING ACCEPTANCE OF THE MATRICULA BECAUSE SUCH POLICIES INFRINGE ON THE FEDERAL GOVERNMENT'S PLENARY POWER TO SET IMMIGRATION POLICY.

 

The federal government has plenary power over immigration policy, and the supremacy clause of the U.S. Constitution precludes both public and private entities from enacting policies that conflict with federal immigration law.  U.S. Const. Art. VI, cl. 2.  "Our cases have long recognized the preeminent role of the Federal Government with respect to the regulation of aliens within our borders [citations omitted].  Federal authority to regulate the status of aliens derives from various sources, including the Federal Government's power '[t]o establish [a] uniform Rule of Naturalization,' U.S. Const., Art. I § 8, cl. 4, its power '[t]o regulate Commerce with foreign Nations', Id. cl. 3, and its broad authority over foreign affairs."  Toll v. Moreno, 458 U.S. 1, 10 (1982).  "Under the Constitution the states are granted no such powers; they can neither add to nor take from the conditions lawfully imposed by Congress upon admission, naturalization and residence of aliens in the United States or the several states."  Id. at 11.  Thus, policies that permit acceptance of the matricula are unconstitutional because they alter the conditions of residence of illegal aliens

In Toll, the Supreme Court held that a state policy denying in-state tuition status to children whose parents had nonimmigrant alien visas violated the supremacy clause.  Id. at 17.  The Court stated that since the federal government had enacted policies that governed the tax liabilities of this class of aliens, a state policy that established a penalty for the nonpayment of those taxes frustrated federal policy.  Id.  Policies permitting acceptance of the matricula also frustrate federal policy.  By accepting the matricula, public and private entities alter the benefits and advantages that a particular class of aliens - illegal ones - can obtain.  This frustrates the provisions of the INA that govern employment of illegal aliens, immigration procedures, and security precautions.

Supporters of the card argue that the federal government sanctions the use of the matricula, but this argument is invalid.  The supporters rely on recent regulations proposed by the Treasury Department regarding the acceptance of the matricula to open bank accounts.  First, these regulations do not support the use of the matricula; they merely fail to discourage its use.  A footnote to the regulations states, "the final rule neither endorses nor prohibits bank acceptance.of identification documents issued by foreign governments."  31 C.F.R. § 103 n.25 (2003).  Additionally, the matricula ID is not sufficient to meet the demands imposed by Treasury's new regulations.  Treasury 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."  31 C.F.R. § 103.121(b)(2) (2003).  As previously shown, the matricula ID is not a reliable form of identification; thus, a bank accepting the matricula ID cannot have a "reasonable belief" that the identity of the presenter is established.  Furthermore, there is no way for bank officers or law enforcement officials to verify the document.  Indeed, the matricula is so unreliable that banks in Mexico do not accept it to open accounts.

 Regardless, the Treasury Department does not have authority over immigration policy - such power belongs to the Department of Homeland Security (DHS).   "All authorities and functions of the Department of Homeland Security to administer and enforce the immigration laws are vested in the Secretary of Homeland Security."  8 C.F.R. 2.1 (2003).  While DHS has not issued regulations governing use of the matricula specifically, it certainly has not authorized its use.  Furthermore, DHS officials have indicated that they do not support acceptance of the matricula.  On April 10, 2003, Asa Hutchinson, Undersecretary for Border and Transportation Security at DHS, testified to a House subcommittee 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.  Department of Homeland Transition: Hearings Before the Subcomm. on Immigration, Borders and Claims of the House Comm. on the Judiciary, 108th Cong. 41-42 (2003).

Since federal law is frustrated by policies that permit acceptance of the matricula, the policies are unconstitutional under the supremacy clause. 

 

V.        NO TREATY TO WHICH THE U.S. IS A SIGNATORY, NOR ANY PRINCIPLE OF INTERNATIONAL LAW, REQUIRES THE U.S. OR U.S. INSTITUTIONS TO ACCEPT THE MATRICULA CONSULAR.

 

Supporters of the matricula assert that the Vienna Convention on Consular Relations (VCCR) and the principle of reciprocity require the United States to accept the matricula, but this assertion is incorrect.  While the United States is a signatory to the VCCR, its provisions do not require a receiving state to accept any and all identification documents issued by a foreign state with which it has diplomatic relations.  While reciprocity is a strong principle of international law, it does not apply to this situation.

The VCCR establishes rules of diplomatic relations primarily in the form of protections for the consulate officers of a sending state.  The vast majority of the convention protects consulate officials from lawsuits, taxation, and immigration procedures, and a small portion lists certain powers of a consulate office.  One power enumerated is the right of the consulates in a foreign country to issue "passports and travel documents to nationals of the sending State, and visas or appropriate documents to persons wishing to travel to the sending State."  Vienna Convention on Consular Relations, Apr. 24, 1963, art. 5(d), 21 U.S.T. 77.  While this certainly allows the consulate to issue the matricula and accept it at its offices to assist Mexican nationals, no provision of the treaty requires the United States to accept it for identification purposes.  In fact, the only requirement placed on the receiving state is to honor the aforementioned immunities granted to consulate officials. 

Furthermore, the VCCR is subject to the laws of the United States.  "This proposition is embodied in the Vienna Convention itself, which provides that the rights expressed in the Convention 'shall be exercised in conformity with the laws and regulations of the receiving State [Article 36(2), 21 U.S. T., at 101].'"  Breard v. Greene, 118 S.Ct. 1352, 1355 (1998).  Since the Mexican government issues the matricula to Mexican nationals without regard to their legal status in the United States, Mexican consulates should not insist the United States accept or recognize an unreliable form of identification merely because it has the right to issue the ID. 

Neither can the consulates rely on the principle of reciprocity.  Reciprocity is defined as "the mutual concession of advantage or privileges for purposes of commercial or diplomatic relations."  BLACK'S LAW DICTIONARY 1276 (7th ed. 1999).  Under international law, this principle is usually applied to the recognition of the judgment of foreign courts, where a U.S. court accepts the judgment so that decisions of U.S. courts will be accepted in other countries.  E.g., Boos v. Berry, 108 S.Ct. 1157, 1165 (1988).  Supporters of the matricula argue that the U.S. must accept the matricula or else Mexico will take reciprocal action to deny the rights of U.S. consulate officials in Mexico.  However, by refusing to accept the matricula, the United States is not refusing to honor any privilege that it asserts in Mexico. 

The United States does not demand that Mexico accept a consulate-issued document, so Mexico cannot demand the reciprocal.  Reciprocity would apply if, hypothetically, the United States refused to honor Mexican passports; Mexico would then be justified in refusing to honor U.S. passports.  However, the matricula is not a passport.  The matricula is more akin to a college or work ID, and no reasonable person would assert that a sovereign government must accept these forms of identification. 

Neither the VCCR nor reciprocity requires the United States to accept the matricula.  Indeed, such a requirement would violate a fundamental principle of international law - state sovereignty.  By seeking to require the United States to accept the matricula, Mexico would be invading the right of the United States to protect its territory and people.  As mentioned, those charged with enforcing immigration law see the matricula as a threat to national security.

If there is any violation of international law present, the violation is being committed by the Mexican consulates.  The VCCR states that diplomats and consulate officials "have a duty not to interfere in the internal affairs of that [receiving] state."   Vienna Convention on Consular Relations, Apr. 24, 1963, art. 55(1), 21 U.S.T. 77.  As has been widely documented, Mexican diplomats have actively lobbied both public and private entities to accept the matricula; this is interference in the internal affairs of the United States in violation of the VCCR.  Thus, rather than requiring the United States to accept the matricula, the VCCR requires Mexican diplomats to cease their unlawful interference in domestic U.S. political affairs.

 

CONCLUSION

Public and private entities that accept the matricula consular, an unreliable form of identification, expose themselves to criminal and civil liability and violate the U.S. Constitution. By accepting the matricula, those entities encourage and induce illegal immigration, a criminal violation of the INA. This violation not only warrants criminal penalties for those entities, it also may serve as a breach of duty for a negligence claim and a predicate offense under the RICO Act.

In addition to exposing themselves to liability, those entities enacting policies permitting acceptance of the matricula violate the U.S. Constitution. The federal government has plenary power over all aspects of immigration law. Policies permitting acceptance of the matricula conflict with federal immigration laws and undermine the federal government's ability to establish and enforce immigration policy; thus they are precluded by the supremacy clause.

The United States is not bound by any treaty or principle of international law to accept the matricula. The VCCR is not applicable. Since the United States does not request Mexico to accept an unreliable form of identification issued by U.S. consular offices in Mexico, Mexico cannot rest on the principle of reciprocity to pressure the United States to accept the matricula. Furthermore, international law prohibits Mexico from interfering in the internal affairs of the United States, and Mexican officials are currently doing just that by lobbying both public and private entities to accept the matricula in violation of U.S. law.

APPENDIX