The Honorable Judge Bruce J. Einhorn (Ret.): Secure Communities Flies in the Face of US and International Law

Judge Bruce Einhorn served as a Federal Immigration Judge for 17 years before retiring in 2007. He is currently an Adjunct Professor of Law at Pepperdine University School of Law as well as the Director of the Law School’s Asylum Clinic

The Tenth Amendment to the U.S. Constitution reserves a number of powers to the states that are not specifically designated the constitutional responsibility of our national government (e.g., immigration).  Since police powers are among those reserved for the states, the requirement that those states assist in the federal government’s Secure Communities program poses profound constitutional problems.  At a minimum, states should be fully allowed to opt out of the Secure Communities program.  The Anti-Defamation League, a national and non-partisan human relations organization of which I am a national Commissioner, supports this “opt-out” authority.

In my personal judgment, the Secure Communities juggernaut flies in the face of much international and U.S. law to which the United States is bound.  Much of this law provides measures designed to treat certain foreign-born individuals with compassionate restraint by very well-trained immigration professionals.  For example, the apprehension and detention of minors has been greatly limited in the U.S. by the Stipulated Settlement Agreement in Flores v. Reno, Case No. CV85-4544-RJK (C.D.Cal. 1996).  Additionally, the United States is a signatory United Nations Protocol Relating to the Status of Refugees, 19 U.S.T. 6223, T.I.A.S. No. 6577.  That Protocol, upon which the language of the modern U.S. law of asylum (found in part at 8 U.S.C. §§ 1101(a)(42) and 1158), specifically prohibits signatory states from restricting the movements (and thus the freedom) of asylum seekers (and not merely asylum grantees) “other than those which are necessary.”  Finally, the U.S. Torture Victims Protection Act allows for lawful immigration status to foreign-born persons subject to human trafficking in foreign lands.  It would be most inconsistent with these international and national guarantees for state and local law enforcement, ill-or-untrained in immigration matters, to stop, arrest, and confine the tens of thousands of minors and victims of persecution and torture for whom legal status in the U.S. is a very real possibility or probability.  Indeed, such resulting arrests and detentions would be rendered “arbitrary” under international law pursuant to Article 9 of the U.N. Universal Declaration of Human Rights and Article 9(4) of the International Protocol on Civil and Political Rights, both of which the United States has signed.  It is black-letter law that the U.S. must treat international law as at least very persuasive and at most binding authority.  See Khulumani v. Barclay Nat’l Bank, Ltd., 504 F.3d 254 (2d Cir. 2007) (“[I]t is a “settled proposition that federal common law incorporates international law”).

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