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The Intersection Between The State Of Oregon And Federal Immigration Laws

A Take On Why To Vote “No” On Oregon’s Ballot Measure 105

Preamble: On November 6, 2018, Oregonians will see Measure 1051 on the ballot. If Measure 105 prevails, it will repeal Oregon Revised Statute 181A.8202. This Oregon statute forbids state agencies, including law enforcement, from using state or local resources or personnel to detect or apprehend persons whose only violation of the law is that they are in the United States unlawfully or otherwise enforce federal immigration laws. States that have enacted a similar statute are called “sanctuary states”. Hence, why Oregon is called a sanctuary state.

By way of background: ORS 181A.820 took effect in Oregon in 1987. It is rooted in the entanglement of Oregon state law enforcement and federal immigration, and in the Oregon state law enforcement racially profiling community members. On January 9, 1977, at Hi-Ho Restaurant in Independence, Oregon, acting under the supervision or with the authorization of more than five Immigration and Naturalization Service3 (“INS”) agents, four Polk County Sheriffs, without identifying themselves, approached Delmiro Trevino; a United States Citizen of Mexican descent. The Sheriffs then proceeded to publicly interrogate Mr. Trevino, and the other three Chicanos seated with him, about his citizenship status. After one of the Sheriffs identified Mr. Trevino as a long-time resident of Independence, they ceased their public interrogation. Later, however, when Mr. Trevino arrived at his father-in-law’s home, the same Sheriffs, without a warrant, were checking the outside of the house with flashlights, and again asked Mr. Trevino for his citizenship papers. Ultimately, Mr. Trevino produced his Oregon driver’s license, whereby he was then allowed to leave.

Analysis: ORS 181A.820 is a valid execution of the power given to the states by the Constitution of the United States. Under the Constitution, the Tenth Amendment establishes that the federal government may not compel or coerce states into participating in a federal regulatory program. While President Trump’s executive order penalized Oregon, thereby making Oregon ineligible, the government may, however, use conditional spending grants to pressure sanctuary cities. Henceforth, on January 25, 2017, when President Trump signed the executive order Enhancing Public Safety In The Interior Of The United States4, it was a ruse when he stated, “Sanctuary jurisdictions across the United States willfully violate Federal law in an attempt to shield aliens from removal from the United States” (emphasis added) because Oregon, just like any other state, may resist requests by federal authorities to detain members of the community for transfer to ICE or otherwise do the federal government’s bidding.5

It is important to note that voting “no” on Measure 105 will not protect undocumented persons who have committed crimes, that which are unrelated to their mere presence in the United States. Many groups in Oregon who encourage voters to vote6 “yes” on Measure 105 do so via the following rhetoric: (1) illegal aliens can and do harm American citizens, or (2) illegal aliens are more likely to commit crimes. This hate speech is premised on assumptions and generalizations. Remember, voting “no” on Measure 105 will not prevent state agencies, including law enforcement from assisting the federal government in determining the legal status of someone who has committed a crime other than their illegal presence in the United States. Again, voting “no” on Measure 105 will prevent state law enforcement from assisting the federal government in detaining persons who are living in the United States unlawfully and have committed no other crime.

Post-repealed Measure 105: The Fourth Amendment7 of the Constitution may secure your one-way ticket back to your country of citizenship. The Fourth Amendment protects individuals against random and arbitrary stops by of law enforcement.8 However, a law enforcement office can stop, pat down, and question any member of the community, so long as the officer is able to point to specific and articulable facts, which produce a rational inference that a crime has been or is in the process of being committed. Legally, the name for this standard is “reasonable suspicion”. In other words, if a police officer can support the notion that you have committed a crime or may be committing a crime, they can stop you. This is commonly known as a “Stop and Frisk” or, in the legal realm, a “Terry Stop”.9 Now put that in the context of state law enforcement and federal immigration. This may give rise to a series of incidental situations. For example, if Measure 105 passes, will the Fourth Amendment allow a police offer to deduce a rational inference that someone is living in the United States unlawfully on account of that person’s race or for simply speaking a language other than English?10 Or, similarly, would an unsupported statement of someone’s immigration status based on a racial prejudice give law enforcement the reasonable inference they need to check your immigration status and hand you over to ICE? It is not out of the realm of contemplation that the Trump Administration may puppeteer local state law enforcement in using this practice and tactic to aid federal government in determining people’s immigration status. Ultimately, while such inferences of incidental consequences of repealing, i.e. voting “no”, Measure 105 cannot be determined with any certainty, it is worth thinking about when voting this November.

How can I protect myself? Other than voting “no” on Measure 105, regardless if you are in the custody of law enforcement or not, you can always call or request an attorney. That is your right under the Fifth Amendment11 of the United States Constitution. The Fifth Amendment further allows protection against an individual from self-incriminating himself or herself. In simpler terms, you have a right not to admit or deny any criminal offense or any offense that may lead to a criminal charge against you. Or call an attorney.

Here at the Law Offices of Lourdes Sánchez, P.C. we oppose the repeal, i.e. voting “no”, of Measure 105 because we believe in fairness, justice, and equal protection under the law.

To learn more on Measure 105, a recording12 of a debate that took place on September 14, 2018 at the City Club of Eugene is available on KLCC.

  1. Formerly known as initiative proposition 22.
  2. https://www.oregonlaws.org/ors/181A.820.
  3. As of March 2003, INS ceased to exist under that name and most of its functions have been transferred to the three entities: U.S. Citizenship and Immigration Services (“USCIS”), U.S. Immigration and Customs Enforcement (“ICE”), and U.S. Customs and Border Protection (“CBP”).
  4. https://www.whitehouse.gov/presidential-actions/executive-order-enhancing-public-safety-interior-united-states/. (Citing Section 1)
  5. Christopher N. Lasch et. al., Understanding “Sanctuary Cities”, 59 B.C. L. Rev. 1703 (2018).
  6. For information on voting in Oregon visit https://sos.oregon.gov/voting/pages/voteinor.aspx. Note, you must be a U.S. Citizen to vote. Legal permanent residents are not U.S. Citizens.
  7. Generally, the Fourth Amendment prevents the state from unreasonable searches and seizures absent consent or a valid warrant.
  8. According to the government, the Fourth Amendment does not fully apply within the “100-mile border zone” around the entire United States, including Alaska and Hawaii. For more information see https://www.aclu.org/other/constitution-100-mile-border-zone
  9. The name derives from Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
  10. Border patrol agent stops two women simply for speaking Spanish. https://wgntv.com/2018/05/21/two-u-s-citizens-spoke-spanish-at-a-gas-station-then-a-border-patrol-agent-asked-for-their-papers/
  11. One aspect of the Fifth Amendment most notably encompasses “Miranda Warnings”, whereby, when in custodial interrogation by law enforcement, you have the right to: remain silent, right to an attorney, or, if you cannot afford an attorney, one will be appointed to you, and anything you say can, and will be, used against you.
  12. http://www.klcc.org/post/city-club-eugene-measure-105-repeal-oregons-state-sanctuary-law.

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