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Even
as Congress continues to focus on the threat to national security of unsecured
and fraudulent documentation, some financial institutions in the United States
have begun recognizing, or are planning to recognize, identification cards
issued by non-U.S. authorities.
Specifically, a growing number of financial institutions now authorize,
utilize, recognize, or incorporate (hereinafter, "accept") the matricula
consular—an identification card issued by the government of Mexico to
Mexican nationals illegally residing in the United States.
After
careful consideration, it is our legal opinion that acceptance by financial
institutions of the matricula consular
Federal Statutory Violation
Acceptance of the matricula consular by any financial institution enables Mexican nationals illegally residing in the United States to open bank accounts, among other things.[1]
Since only illegal aliens have need of the matricula
consular to open a bank account (all legal residents having the right to
official U.S. identification), any financial institution that accepts the matricula
consular is in likely violation of Section 274 of the Immigration and
Nationality Act, which provides criminal penalties for any act that
"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."[2]
The courts have long recognized that by Article I, Sec. 8 of the U.S. Constitution (the Commerce Clause), Congress has "plenary power" over all aspects of immigration law, including "the right to provide a system of registration and identification" for aliens, because "the entire control of international relations" is invested in the national government.[3]
An
official policy to accept an official foreign national identification document
issued to aliens present in the United States in violation of Federal law
improperly annexes powers to a financial institution that are rightfully
Congress' and the policy might therefore be challenged on constitutional
grounds.
In
a Supreme Court decision striking down a Pennsylvania alien registration
statute, it was held that the "Federal Government...is entrusted with full
and exclusive responsibility for the conduct of affairs with foreign
sovereignties[, and that o]ur system of government is such that the interest of
the cities, counties and states, no less than the interest of the people of the
whole nation, imperatively requires that federal power in the field affecting
foreign relations be left entirely free from local interference.[4]
Therefore,
no public institution except the Federal Government may make any policy that
conflicts with Federal immigration policy.
Civil
Liability and Personal Injury Lawsuits
Entering
the United States without inspection (illegal entry) is a criminal offense
under 8 U.S.C. 1325. Providing services
to an alien so entered in "knowing and reckless disregard" of the
alien's illegal status amounts to aiding and abetting a crime, and, insofar as
it encourages the alien to remain illegally in the United States, is a criminal
violation in and of itself.
Aiding
an illegal entrant in his continued illegal residence in the United States
constitutes a dangerous and unreasonable risk to the health and safety of the
public, since, among other reasons, unlike legal entrants, an illegal entrant
is not subject to a criminal background or health check before entering the
United States.
Furthermore,
when such aid or encouragement is administered via official acceptance by any
financial institution of the matricula consular, by which possession any
financial institution, or any person acting under the authority of any
financial institution, would or should have known in the exercise of reasonable
care that the person holding the card is an illegal alien, the financial
institution, or its officers, can be said to be negligent.
If any illegal entrant, whose illegal presence in the United States can be shown to have been encouraged, induced and/or aided by any public entity or financial institution, commits a crime, during the commission of which an American citizen suffers personal injury, Friends of Immigration Law Enforcement (FILE) has determined that the public entity or financial institution bears civil liability. FILE will attempt to help any injured party that seeks help bring a personal injury suit against the public entity or financial institution so liable, and, to the extent allowed by law, against its officers, individually and severally, for damages.
Racketeering Influenced
and Corrupt Organization Act (RICO)
Encouraging
an illegal alien to remain illegally in the United States is a criminal offense
indictable under the Racketeering Influenced and Corrupt Organization Act
(RICO), if the act indictable under such section [274] of such [Immigration and
Nationality] Act was committed for the purpose of financial gain.[5]
Acceptance
by any public entity or financial institution of the matricula consular
is for the purpose of financial gain.
A
RICO defendant has violated Section 274 of the Immigration and Nationality Act
if the defendant "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."[6]
"Encouraging"
includes actions that permit illegal aliens to be more confident that they
could continue to reside with impunity in the United States, or actions that
offer illegal aliens "a chance to stand equally with all other American
citizens."[7]
Under
RICO, encouraging for financial gain an illegal alien to remain illegally in
the country constitutes a predicate act of "racketeering," and a
"pattern of racketeering activity" has been established if there are
at least two separate predicate acts of racketeering activity.[8]
Under RICO, any person injured in his
business or property by reason of a violation of RICO statutes may sue therefor
and may claim treble damages, costs, attorney's fees and injunctions.[9]
Class
actions are permissible under RICO through the Federal Rules for Civil Procedure,
Rule 23 when plaintiffs have individual standing under RICO statutes.[10]
Thus,
we draw the reasonable conclusions and express the carefully considered legal
opinions that:
The
ability by an illegal alien to open a bank account in the United States, or
otherwise enter into a commercial arrangement in the United States, encourages
and facilitates residence in the United States by illegal aliens.
By
accepting the matricula consular or any other foreign, non-U.S.
verified identification, a financial institution encourages Mexican
nationals illegally residing in the United States to remain illegally in the
United States and induces others to come illegally to the United States.
Any
financial institution that recognizes the matricula consular, etc. is
complicit in a pattern of corruption and is in violation of the Immigration and
Nationality Act.
And
while we fully acknowledge no court of law has yet determined such, we believe,
therefore, and for the reasons stated above, any financial institution that
accepts the matricula consular is indictable under the Racketeering
Influenced and Corrupt Organization Act.
It
is our opinion, furthermore, and we are convinced the general public will
agree,[11]
that the growing acceptance of the matricula consular by various public
entities and institutions in the United States constitutes a "stealth
amnesty" for illegal aliens.
Indeed, reports indicate that officials in the Mexican government openly
assert that the growing acceptance by U.S. institutions and political units of
the matricula consular is essentially an "amnesty" for Mexican
nationals illegally residing in the United States.[12]
We
believe this de facto amnesty is illegal, generates more illegal immigration,
decreases the ability of U.S. authorities to maintain a system of secure
identification,[13] is not
supported by the people of the United States, and "threaten(s) the
domestic security, and undermine(s) the general welfare of the Nation and its citizens"[14]
[1] This is common and public knowledge. Cf., e.g., "A Card Allows U.S. Financial institutions to Aid Mexican Immigrants," New York Times, July 6, 2002 & "Using a Bottom-Up Approach, Mexico Pushes ID for Migrants," The Wall Street Journal, October 25, 2002
[2] 8 U.S.C. §1324(a)(1)(A)(iv)
[3] (Fong Yue Ting v. United States, 149 U.S. 698 (1893))
[4] Hines v. Davidowitz, 312 U.S., at 66 –67 (1941)
[5] 18 U.S.C. §1961(1)(F)
[6] 8 U.S.C. §1324(a)(1)(A)(iv)
[7] U.S. v. Oloyede, 982 F.2d 133 (4th Cir. 1992)
[8] 18 U.S.C §1961(1) and (5)
[9] 18 U.S.C §1964(c)
[10] N.O.W. v. Scheidler (92-780), 510 U.S. 249 (1994)
[11] Americans oppose amnesty for illegal aliens by 60 percent to 29 percent, Harris Poll, August 15 - August 22, 2001
[12] "Using a Bottom-Up Approach, Mexico Pushes ID for Migrants," The Wall Street Journal, October 25, 2002
[13] " Mexican ID cards caught in growing debate; Federal authorities warn that 'matriculas' are not reliable," The Denver Post, October 10, 2002
[14] Title IX of the Organized Crime Control Act of 1970