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Notice of Legal Concerns & Possible Liability on the Acceptance by Public Entities of a Foreign Government Issued Identification Card

The following shall serve as legal notice to any public entity that has decided to honor, will likely soon honor, or has under consideration a plan to honor, the matricula consular (an identification card issued by the Mexican government to persons in the United States) as a suitable form of identification for the disbursement of services—including law enforcement services—by agencies.

As is well known, and as has been widely reported, the matricula consular is an identification card issued by the Government of Mexico, through its consulates, to Mexican nationals illegally residing in the United States.

Friends of Immigration Law Enforcement (FILE), and a variety of legal experts, are of the opinion that no state, county, city and county, incorporated city or town, school district, special improvement district, or any other kind of district, agency, instrumentality, or political subdivision of a state organized pursuant to law (hereinafter, "any public entity") may adopt any policy that authorizes, utilizes, recognizes, or incorporates (hereinafter, "accepts") the matricula consular.

After careful consideration, FILE has determined that any such policy 1) is illegal, 2) is unconstitutional, 3) exposes the public entity to civil liability, and 4) is irresponsible public policy.

Federal Statutory Violation

Since only illegal aliens have need of the matricula consular for identification purposes or to access city services (all legal residents having the right to official U.S. identification), any public entity or its representative that accepts the matricula consular is in 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."[1]

"Encourage" and "induce" include 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."[2] To prove that a state or local government agency "encouraged or induced" illegal Mexican aliens, all the government needs to establish is that the agency knowingly helped or advised the aliens, or emboldened them, or made them more confident in their continued illegal residence in the United States.[3]

The courts have held that INA §274 is to be broadly construed both as to the those persons subject to criminal liability under the statute,[4] and as to the types of activities covered therein. [5]

Furthermore, Section 401 of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996[6] (as amended by the Illegal Immigration and Immigrant Responsibility Act of 1996)[7] prohibits non-qualified (illegal) aliens from receiving most "Federal public benefits." Any policy that accepts the matricula consular for the purpose of doling out city services explicitly violates this provision of federal law insofar as the services to illegal aliens are paid for with federal funds.

Preempted on Constitutional Grounds

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.[8] Courts have repeatedly held that no governmental authority may establish any policy that relates to immigration other than Congress and authorized federal agencies, and that the "(p)ower to regulate immigration is unquestionably exclusively a federal power."[9]

Thus, an official local 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 any public entity that are rightfully Congress' and the policy is therefore unconstitutional.

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. The Court ruled that "where the federal government, in the exercise of its superior authority in this field, has enacted a complete scheme of regulation . . . states cannot, inconsistently with the purpose of Congress, conflict or interfere with, curtail or complement, the federal law, or enforce additional or auxiliary regulations."[10]

Therefore, no public entity as defined above may make any rule, regulation or policy that conflicts with Federal immigration policy, and, thus, a "matricula consular policy" is preempted on constitutional grounds.

Furthermore, such a policy has also been determined unconstitutional specifically in relation to public benefits because it violates "the exclusive federal power over the entrance and residence of aliens."[11]

Civil Liability Exposure

Entering the United States without inspection (illegal entry) is a criminal offense under 8 U.S.C. 1325. Providing public services to such an alien in "knowing and reckless disregard" of the alien's illegal status amounts to aiding and abetting a crime, and is a criminal violation in and of itself. By the INA §274(a) aiding and abetting statute,[12] the distinction is eliminated between principles and accessories in alien smuggling crimes. And courts have held that aiding and abetting also relates to conduct while the illegal alien is in the United States.[13]

Furthermore, aiding and abetting 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.

Moreover, when such aid is administered via official acceptance by any public entity of the matricula consular, by which possession any public entity, or any person acting under the authority of any public entity, would or should have known in the exercise of reasonable care that the person holding the card is an illegal alien, the public entity, or its officers, can be said to be negligent.

For these reasons, official acceptance of the matricula consular by any public entity can be said to be conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results, and, therefore, the public entity, and its officers or representatives, may not enjoy sovereign immunity under the state's immunity statutes.

Consequently:

If any illegal entrant, whose illegal presence in the United States can be shown to have been encouraged, induced, harbored, and/or aided by any public entity, commits a crime while illegally present in the United States, during the commission of which an American citizen suffers personal injury, FILE will attempt to help the injured party bring a personal injury suit against the public entity, and, to the extent allowed by law, against its officers, individually and severally, for damages.

Irresponsible and Unpopular

The growing acceptance of the matricula consular by various institutions in the United States constitutes a "stealth amnesty" for illegal aliens. FILE believes this de facto amnesty 1) is illegal, 2) generates more illegal immigration, 3) provides a magnet that lures Mexican nationals illegally to cross the dangerous U.S./Mexican border—often with fatal results, 4) is not supported by the people of Indiana or of the United States, and 5) threatens the domestic security, and undermines the general welfare of the Nation and its citizens.

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.[14] The Mexican government has undertaken as a matter of policy an aggressive campaign to press American political entities and other institutions into recognizing this card. Any public entity or institution that submits to the demands of the Mexican government is aiding a foreign government's subversion of American law and a foreign government's improper interference in domestic politics—a clear violation of the principle of national sovereignty, of the constitutional prohibitions summarized above, and of the democratic wishes of the American people, who oppose amnesty by wide margins.[15]

We insist that any public entity that currently accepts the matricula consular cease and desist forthwith. And, in all good faith, we caution any public entity that is considering acceptance of the card that there are serious legal concerns and liability issues attached to such acceptance.

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

[3] U.S. v. He, No. 00-2574 (7th Cir. Apr. 2, 2001)

[4] U.S. v Zheng, No. 01-15551 (11th Cir. Sept, 2002)

[5] Patel v Ashcroft, No. 01-3365 (3rd Cir. June, 2002)

[8] Fong Yue Ting v. United States, 149 U.S. 698 (1893)

[10] Hines v. Davidowitz, 312 U.S., at 66 –67

[11] Graham v. Department of Pub. Welfare, 403 U.S. 365 (1971) (USSC+)

[13] U.S. v. Mussaleen, 35 F.3d 692 (Cir. 2nd (N.Y.),1994.

[14] Using a Bottom-Up Approach, Mexico Pushes ID for Migrants, The Wall Street Journal, October 25, 2002

[15] 60 percent to 29 percent, Harris Poll, August 15 - August 22, 2001