CALIFORNIA IMMIGRATION LAW – SAME AS ARIZONA? YES, AND NO.

CALIFORNIA IMMIGRATION LAW – SAME AS ARIZONA?  WELL YES, AND NO.

I keep hearing that California has the same immigration law asArizona.  It came up again recently when Pat and I were walking our neighborhood with a petition that would require State and local law enforcement officers to enforce Federal law and deny driver’s licenses to undocumented immigrants.

One neighbor said it was similar to existing law and referred me to California code 834b and Google found it as follows:

SearchCAL.PEN. CODE § 834b :CaliforniaCode – Section 834b

(a)Every law enforcement agency in California shall fully cooperate with the United States Immigration and Naturalization Service regarding any person who is arrested if he or she is suspected of being present in theUnited Statesin violation of federal immigration laws.

(b)With respect to any such person who is arrested, and suspected of being present in the United States in violation of federal immigration laws, every law enforcement agency shall do the following:

(1)Attempt to verify the legal status of such person as a citizen of the United States, an alien lawfully admitted as a permanent resident, an alien lawfully admitted for a temporary period of time or as an alien who is present in theUnited States in violation of immigration laws. The verification process may include, but shall not be limited to, questioning the person regarding his or her date and place of birth, and entry into the United States, and demanding documentation to indicate his or her legal status.

(2)Notify the person of his or her apparent status as an alien who is present in the United States in violation of federal immigration laws and inform him or her that, apart from any criminal justice proceedings, he or she must either obtain legal status or leave theUnited States.

(3)Notify the Attorney General of California and the United States Immigration and Naturalization Service of the apparent illegal status and provide any additional information that may be requested by any other public entity.

(c)Any legislative, administrative, or other action by a city, county, or other legally authorized local governmental entity with jurisdictional boundaries, or by a law enforcement agency, to prevent or limit the cooperation required by subdivision (a) is expressly prohibited.

But here’s the problem!  Penal code 834b was part of California’s 1994 Proposition 187 which was overwhelmingly passed by voters only to be found unconstitutional in California Federal District court.  The reasoning was that it was preempted by Federal law.  So, while 834b remains in theCalifornia penal code to this day, it is not enforceable.

But wait!  In 1996, Federal Immigration 8 USC 1373 was passed as part of the Illegal Immigration Reform and Immigrant Responsibility ActThis law gives local police the discretion to communicate with the Immigration and Naturalization Service, now Immigration and Customs Enforcement (ICE), to check someone’s immigration status.   

Unless something has changed that I can’t find, this would appear to change the playing field.   (It also raises the question as to why the Justice Department has suedArizona over their Immigration Law but that’s another article.)

So let’s go back to the “Stop Crime Petition”, mentioned above, which would require State and local law enforcement officers to enforce federal immigration law and deny driver’s licenses to undocumented immigrants.   If enough valid signatures are gathered to get it on the ballot and voters approve, it might just pass Constitutional muster when challenged.   And it will be challenged.

So if someone asks you to sign this petition, you know what to do.  (I have petitions.)

Sources:  FindLaw for legal professionals re: 834b; The Washington Times, May 23,2010, by Kerry Picket re: history and info on 834b and 8 USC 1373; Cornell University Law School Legal Information Institute re: confirmation of 8 USC 1373 and its origin.

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About allenlphillips

Fiscal conservative turned activist, blissfully married to a very supportive woman, small business owner, traveler, Christian.
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