Testimony

June 19, 2003

Subcommittee on Immigration, Border Security, and Claims

Mr. John N. Hostettler, Chairman

by

Craig Nelsen, Executive Director

Friends of Immigration Law Enforcement

Mr. Chairman, members of the subcommittee:

Thank you for this opportunity to address the very important issue of whether U.S. institutions should be accepting or recognizing identification cards issued by foreign governments to their nationals illegally residing in the United States.

It is the opinion of Friends of Immigration Law Enforcement that no American public entity or government agency should accept any foreign- or consular-issued ID card for the purpose of disbursing public services normally reserved to American citizens, or those legally present in the country. Nor should any private institution establish any commercial relationship with foreign nationals based in whole or in part on the information contained on such cards.

The reasons U.S. institutions should not accept foreign consular or similar ID cards fall into two categories: First, there are serious legal objections to their acceptance; second, there are serious political objections to their acceptance. While these legal and political objections hold true for all foreign-issued ID cards, hereafter, I will speak specifically of the Mexican matricula consular card, because Mexico has been by far the most aggressive foreign nation in issuing the card to its nationals living illegally in the United States, and in pressuring local U.S. governments to accept its ID card as a way to provide illegal aliens access to public services.

There are three legal objections to any policy that sanctions acceptance by U.S. institutions of the matricula consular in the United States: Such a policy is a violation of the Constitution, it is a statutory offense, and it exposes public entities and private institutions to civil liability risks.

First, since the Constitution gives absolute power to Congress over all immigration matters, it is unconstitutional for any local or state entity to put itself above Congressional prerogatives by adopting its own matricula policy.

Second, by Section 274 of the Immigration and Nationality Act, it is a federal crime to encourage an illegal alien to reside illegally in the United States. We think most Americans would agree that a local or private policy that explicitly recognizes an identification card carried by illegal aliens-especially for the disbursement of public services, or for financial gain-manifestly violates that law.

Third, it is our opinion that a public entity exposes itself to civil liability suits if it adopts a policy to accept the card. Imagine a scenario in which, say, an illegal alien is stopped by a police officer in a city or state that by policy recognizes the Mexican illegal alien ID card. Imagine that the alien presents the card, but, rather than delivered to the proper immigration authorities, is subsequently released back into the general public. Imagine the illegal alien then commits a violent crime against a resident of that jurisdiction. We believe the victim of the crime will have grounds to sue the city or state for knowingly, and with reckless disregard for the illegal status of the criminal, contributing to a dangerous situation. We believe a jury would probably award damages to such a plaintiff.

In the case of a bank, or other commercial enterprise that profits by accepting a matricula card, the enterprise is liable under the Racketeer and Corrupt Organizations Act (RICO) for damages caused to the bank’s competitors by the illegal activity. A violation of the INA is a predicate offense under RICO. Continuing acceptance of the card establishes a pattern of racketeering activity. To succeed in a RICO suit, a plaintiff competitor must show that an injury was suffered and that the criminal activity was the cause of the injury. A competitor of a bank accepting the matricula ID will be able to make such a showing. By unlawfully accepting the matricula ID, a bank is gaining additional customers and revenue not available to the law-abiding competitor. Since, under proposed new Treasury regulations, it will be easy to document the number of customers that open accounts with a matricula ID alone, the damages to the competitor will not be too speculative to determine. This documentation will also show causation, since it will indicate the amount of illegal business gained at the expense of competitors.

Furthermore, aside from these serious legal concerns, acceptance of the matricula card is simply irresponsible policy because it reinforces widespread flouting of U.S. immigration laws, since, as has been openly admitted by all sides, only illegal aliens have need of the card.

In a world in which there are nearly five billion people living in countries poorer than Mexico, the United States simply must become serious about enforcing immigration laws. Rather than encouraging foreign nationals to remain illegally in the United States, we should be humanely, but firmly, helping them return to their home countries.

If illegal aliens from Mexico are allowed to use Mexican-issued ID cards in the United States, it is not hard to predict that other countries will soon follow Mexico's example. Indeed, we have included in our packet for today's hearing a copy of a memo from the government of Nicaragua to our State Department asking State to help Nicaragua set up its own matricula policy. The Nicaraguan memo explicitly states that it is of no concern to the government of Nicaragua whether those receiving the card are illegal aliens. In other words, Nicaragua is asking our government to help Nicaraguans break our laws. American policy-makers need to think carefully about where this slippery slope is leading us. If U.S. entities accept Mexican ID cards from Mexican nationals illegally in the United States, why not Nicaragua? Or Peru, for that matter? Or Iraq? Or China? Or Saudi Arabia? We Americans need to ask ourselves what, ultimately, we are to become as a nation: A huge, overcrowded, balkanized aggregate of strangers? A free-for-all of foreigners? A huge, cheap labor camp divided into large, unassimilated communities literally identifying with foreign, often hostile, nations?

Mexico deserves special censure for the aggressive way in which it has pushed local governments into accepting its illegal alien ID card. Mexico, like the United States, is a signatory to the Vienna Convention on Consular Relations, and as such, has promised not to interfere with the internal political affairs of the United States. But, Mexico has openly boasted that its well-coordinated campaign to achieve widespread acceptance in the United States of the matricula card was a "bottom up" way to do an "end run" around the Congress of the United States, subvert the laws of the American people, and achieve a massive de facto amnesty for millions of their citizens illegally residing in the United States.

We Americans want our immigration laws enforced. A recent Roper Poll found that nearly 9 out of 10 Americans want local police to enforce immigration laws. Seventy-five percent of us believe persons who open bank accounts in the United States should be required to show legal presence. It is unbelievable that, contrary to the overwhelming desire of the American people, 800 police departments in the United States now accept foreign issued ID cards from illegal aliens, rather than enforce immigration law, and our banking industry is rushing to open bank accounts for them.

Proposed Treasury regulations recently issued are another affront to the American people. The regulations, if they are allowed to stand, will permit U.S. banking corporations to put profit above the public good and open bank accounts for illegal aliens. If these regulations go into full effect, we will be faced with the remarkable spectacle of having a government in which one agency, the Department of Homeland Security, is charged with deporting illegal aliens, while another, the Treasury Department, is allowing them to open bank accounts.

Furthermore, as was demonstrated all too clearly on September 11, 2001, inattention to U.S. immigration laws can have devastating consequences. It is simply a betrayal of the public trust for any Federal agency, or public official, to take any action that makes it easier for foreign nationals, terrorists, or "garden variety" criminals to operate more easily in the United States.

In closing, while Mexico, Nicaragua, Syria, China, and Pakistan have every right to issue whatever cards they want to their nationals, there is no reason the U.S. government needs to recognize them. In fact, recognition of illegal alien ID cards by U.S. entities is both legally impermissible, and extremely reckless and irresponsible public policy.