If passed, SB-1 will potentially set into motion additional anti-immigrant sentiment and actions in our state population that will negatively impact the immigrant community in the numerous ways discussed below. Additionally, SB-1 will further set back efforts to build support for pro-immigration legislation and policies in our communities. SB-1 has the potential to create a very hostile, anti-immigrant environment that could have repercussions for all immigrants and their families for years to come. Specifically, SB-1 will likely lead to the arrest and deportation of thousands of additional immigrants. Practically, it could actively turn thousands of KY residents against immigrants, making as many as possible defacto ICE agents who report any suspected “illegals” to the local, county and state police, and other public employees charged with “supporting the enforcement of our federal immigration laws.” And because SB-1 specifically authorizes legal action against local, county and state officials who do not “use their best efforts….to support the enforcement of federal immigration law", they will be pressured to act on reports of all “illegals” in their respective jurisdictions. Reactionary politicians will most assuredly jump on board to "out-do the other" in efforts to rid our communities of “illegals” whom they will claim traffic in drugs and engage in cartel violence. Reactionary politicians are already using the recent Courier Journal article on the drug trafficking and related cartel violence of “El Mencho” and his associates as reason we all must be afraid and rid our communities of the scourge of “illegals” that threatens our safety and decency. Little concern is given to the fact that the recent arrivals into the U.S are in most cases women and children who are actual victims or potential victims of the most vicious, shocking and inhumane cartel violence in their own communities.
Below are some of the most egregious aspects of the SB-1:
1. Certain large municipalities and smaller jurisdictions could face injunctions for failure to support enforcement of federal immigration laws. Some jurisdictions have policies, written or otherwise, that do not authorize the arrest of undocumented individuals which law enforcement officers encounter on a daily basis, including those cited for minor traffic violations such as speeding or failure to stop at a stop sign. Under current policy under some jurisdictions, as long as a person has an ID issued by a government entity, even a foreign entity, the person stopped will be given a ticket and allowed to proceed. The person stopped is not asked to produce documentation to verify legal status, and the police officer is not authorized to contact ICE, or told to act as a defacto ICE officer and arrest the person for not having authorization to remain in the U.S. Under SB-1 these jurisdictions would likely be sued for not promoting the ”enforcement of federal immigration law.” Already overburdened courts and jails would be forced to spend time and resources enforcing immigration laws.
2. Undocumented parents applying for legally authorized benefits for their US citizen children could face arrest and detention on notification to ICE by agency employees. This provision of SB-1 will enable state, county, and local agency employees to contact ICE regarding a suspected undocumented parent who applies on behalf of a U.S. citizen child to obtain legally guaranteed benefits under state or national law. An agency employee could potentially identify parents who are likely undocumented by the information provided on the forms, or who verbally provide information to an agency employee indicating they are undocumented. In the past certain agency employees have created obstacles by obfuscation, noncooperation, even using threats to report an undocumented parent who seeks to secure certain legally guaranteed benefits for their U.S. citizen children. SB-1 will allow these individuals to legally report to ICE suspected undocumented parents who appear before an agency. This will have a chilling effect on undocumented parents who could face arrest if they are reported to authorities. Further, their children would be unable to secure the needed benefit, even benefits required for the heath and continuing life of the child. I personally have had clients who encountered such agency employees who tried to stop parents of U.S. citizens from obtaining these benefits through threats and other unlawful actions. Under SB-1, such acts would no longer be unlawful. They would be protected and encouraged.
3. Passage of SB-1 will very likely unleash pent-up resentment and hatred of some Kentucky residents toward undocumented immigrants. Even today there are individuals in our state who see it as their responsibility to report to police individuals in their community who they suspect are undocumented. In a number of cases involving former clients, they were told that a person in the community contacted the local police, who arrested/detained them, which led to their arrest by ICE. Having practiced immigration law for over 31 years I’m sure this or similar fact patterns has led to arrests of many other undocumented individuals. SB-1 will unleash a racially charged and hyper-nationalistic atmosphere where suspected undocumented individuals could be “informed on,” leading to many more arrests of undocumented individuals and their families. SB-1 could also promote the wholesale targeting of primarily immigrant neighborhoods and communities by a small number of resentful and hateful citizens wanting to support “enforcement of our immigration laws” by calling their local officials to contact ICE and have suspected undocumented individuals arrested and removed from the U.S. to “protect our communities.” The irony of this demand is that in many cases forcing these individuals to return to their communities from which they fled would amount to a death sentence, as they fled due to threats from gangs and cartels that would seek revenge for ignoring their demands. An atmosphere of turning on one's neighbors is likely, similar to that encouraged in Nazi Germany to arrest Jews and other “undesirables." Or the atmosphere in the U.S. when African American supporters of Reconstruction were called out, arrested and murdered for encouraging the right to vote and running for office.
4. The regimen allowed under SB-1 could lead to the unlawful arrest of individuals merely on suspicion of undocumented status, including those who have authorization to remain in the U.S. SB-1 allows a state agency employee to “use their best efforts to support the enforcement of immigration laws.” What does that actually mean? What "best effort" actions are agency employees allowed to undertake under the law? Contacting ICE on their own? Will an agency be required to set up procedures for employees to contact ICE? Will they try to ascertain the person’s unauthorized status before contacting ICE? How is unauthorized status determined by the agency employee? If the employee assumes unauthorized status, will the suspected unauthorized individual be required or told to wait until a police officer or ICE officer arrives? What if the person refuses to do so? Can the agency employee take steps to stop the person from leaving, such as locking a door to restrict movement, or make threats against their safety? Could the agency employee physically stop the person from leaving? Make a citizen arrest? SB-1 opens a Pandora's box of potential previously unlawful and even dangerous activity. Considering our ever-expanding open carry laws in certain public locations, the possibilities are absolutely frightening.
5. Those seeking to arrest and detain individuals for suspected undocumented status, including law enforcement officers and others, are clearly unqualified to make a determination about unlawful status. According to legal scholars, immigration law is one of the complicated areas of U.S. law, with many thousands of pages of statutes, regulations, agency written policies and procedures stemming from each of the three major government agencies (USCIS, CBP and ICE) tasked with interpreting, applying and enforcing immigration law. Enforcing immigration law requires a thorough knowledge not only of immigration law, but also understanding how immigration law intersects with and is impacted by numerous other areas of law, such as criminal law, constitutional law and administrative agency law. Further, enforcing immigration laws require an understanding of relevant interpretations of immigration laws and regulations, issued by U.S. District Courts, U.S. Circuit Courts and the U.S. Supreme Court. What this means is that making a decision to determine whether a person should be arrested, detained and given over to ICE for detention and possible removal, is a very complicated one. Consequently, giving authority to a person who has a mere suspicion or scant knowledge of a person’s status, or acts without a legal understanding of a person's status, is profoundly reckless.
6. If SB-1 becomes law, it is very likely that individuals who are legally authorized to remain in the U.S., including Permanent Residents and US citizens, will be unlawfully detained, arrested, and possibly deported. Appearance and lack of English fluency are often assumed indicators of an undocumented person by those unfamiliar with the immigrant community and immigration laws. However, naturalized citizens are not required to carry any documentation to indicate their citizenship. And naturalized citizens are not required to maintain even minimal English fluency. Some naturalized citizens who were Permanent Residents for 15-20 years or more are not even required to learn English to pass the naturalization test. And many citizens who are born in the U.S. do not learn English sufficiently, nor are they required to do so. Consequently, this has led to a number of U.S citizens being mistakenly deported to their assumed country of birth by ICE. Additionally, while Permanent Residents are required by law to carry proof of their status, this is not true of those who have entered the U.S. lawfully in one of the many immigrant visa statuses, and remain lawfully for many years in that status.
7. Under SB-1 many undocumented individuals who are authorized to remain in the U.S. could mistakenly face arrest, detention, and possible removal. Many people are lawfully present in the U.S. even though they have entered without inspection. For example, individuals in immigration court proceedings, who previously entered without inspection, are allowed to remain in the U.S. while their proceedings continue, and longer, if appeal is filed with the BIA or US Circuit Court of Appeals. Others who are out of status but have filed an application for extension of current visa status, or filed for asylum, TPS, or any other status for which they were eligible and remain waiting for adjudication, are very likely lawfully present in the U.S. ICE of the USCIS may have granted qualified undocumented individuals a “humanitarian” stay of removal for reasons based on family hardship, or likely persecution, if returned to their home country. Some undocumented individuals are considered “stateless" and unable to return to any country to live. In other cases individuals are lawfully present under a rule or policy issued by the Attorney General or a surrogate. Some of the above individuals may have proof in their possession of their lawful authorization to remain in the U.S. Others may not. In some cases the proof of authorization to remain may appear confusing or unclear. But an agency employee or police officer is very likely without knowledge of the intricacies of immigration law to make a proper decision regarding a person’s authorization to remain in the US. Without that knowledge the suspected unauthorized individual will likely suffer unlawful arrest, detention and, in the worst case, improper removal from the U.S. Those removed will lose their jobs, contact with friends, family and children in the U.S. Many will face living in a country for which they have been absent from for many years, or have no discernible memory of ever living there. In the worst case they could suffer removal to a country where they fear for their safety and even their lives. Academic scholars have reported that people living in the U.S. for many years when returning home face immediate targeting by gangs and cartels who assume they have money for extortion. Or they have useful skills gangs and cartels could use in their illegal activity. They are forced to join or face death.
8. SB-1 will likely lead to numerous suits filed on behalf of those unlawfully arrested, detained and possibly removed from the U.S. Many years ago ICE initiated the 287(g) program (under 237(g) of the INA). This program allowed the brief “training” of police officers in certain communities to enforce immigration laws. As a result of many abuses made by of these officers, primarily due to insufficient training and supervision, the program was plagued with charges of racial profiling and civil rights violations. Localities were sued and very large legal settlements were won, incurring significant taxpayer loses. Eventually 237(g) was significantly curtailed during the Obama Administration, but it was revived by the Trump Administration. SB-1 will likely produce worse results considering the lack of training of those encouraged to support enforcement of federal immigration laws. This reckless bill could repeat the same mistakes of ICE’s 287(g) program with localities forced to pay large sums for violating the constitutional rights of immigrants.
9. SB-1 is so provocative and reckless that it will likely increase racial and national hatred and further divisiveness among Kentucky residents. SB-1 could appropriately be labeled the “KY Hate Your Neighbor Bill” or “KY Turn in Your Neighbor Bill.” SB-1 may rank as one of the more provocative of any immigration bill filed in a state legislature in the past couple of decades. Therefore, it deserves a label defining the actual purpose and inevitable consequence of the legislation. A number of years ago we organized a large, statewide coalition to defeat SB-6, at that time the most egregious and reactionary piece of legislation proposed in any state. It was worse than the infamous Arizona “Show Me Your Papers Bill.” And it rivaled the more infamous Alabama anti-immigration bill. This bill intends a similar (disastrous) outcome.
— Contributed by Ron Russell