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Federal Law Does Not Have All The Power On Immigration

wait-1052487_640The US Supreme Court has ruled that “Foreign policy and related matters such as immigration are one of the few enumerated powers the federal government has.” This may lead people to believe that only federal law applies to immigration, but that isn’t always the case.

Texas Deputy Attorney General Brantley Starr told a House State Affairs committee that they do have options to enforce the State’s will in some areas.

“You have the ability to create state-level offenses that have an immigration element to them as long as they are sufficiently unique,” he said, citing House Bill 11 as an example, which is the Legislature’s 2015 omnibus border security bill.

This bill makes it a state felony to smuggle someone into the country for pay. Starr said that he believed a court challenge to the bill on Constitutional grounds would not succeed because, “there are new state-level elements to that offense. The addition of that new state-level element makes it sufficiently unique to survive an attempt to strike it down.”

Texas Department of Public Safety Director Steve McCraw told the committee that the new law was already helping state police apprehend offenders that federal agents might otherwise have let go. He quoted a stash house for undocumented immigrants where eight people were being held against their will as an example. Because the state had jurisdiction in its own right, state police could make the arrests. “It might have been below the US Attorney’s office’s threshold, but the state was able to go to the district attorney and get the case taken up.”

Starr also mentioned Arizona law, SB 1070, which allows police to ask someone if they are in the country legally and to produce their papers.  This law leaves the decision on whether or not to deport the person to the federal government.  The fact that this law is not trying to pre-empt an area of law already under the control of the federal government is what prevented it from ultimately being struck down.

This guidance comes in the wake of accusations by Republican lawmakers that the Obama administration is failing to take adequate steps to secure US borders.

Immigration to the United States is a complicated issue and does not become easier with the passage of time. If you would like legal consultation and advice from someone who understands your situation, please get in touch with Lyttle Law Firm for assistance. Feel free to send an inquiry through the website or simply call 512-215-5225.

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