There is a bill currently pending before Florida Senate that seeks to increase the maximum punishment for certain crimes committed by “illegal immigrants.” You can read the text of Senate Bill 150 here:
Thankfully, there is no companion bill in the House. At first glance, many Floridians may think, “good, if someone is here illegally and commits a crime, they should face higher penalties.” But that gut reaction is wrong in this case, as the devil is always in the details. If you know anything about immigration law or have been following the protracted fights between the Obama administration and the federal courts over immigration, you know that the Federal Government and Federal Courts have a hard time interpreting and administering federal immigration laws themselves. What this bill proposes to do is to impose upon the Florida courts, prosecutors and criminal defense attorneys the additional time, financial and legal burden of determining the immigration status of a person before, during and after they commit a crime. This is much easier said then done.
When I worked for U.S. Immigration and Customs Enforcement (ICE) we were trained and reminded on a daily basis that all people, U.S. citizens or not, are protected by our federal privacy laws. Even if state prosecutors would ask us, we could not disclose a person’s immigration status without that person’s written consent. State law enforcement and prosecutors do not have access to federal immigration databases to determine on their own who is here legally or not. This then begs the question, how are the Florida Courts to determine who is an “illegal immigrant” for sentencing enhancement purposes if ICE cannot tell them and they do not have access to that information on their own?
The second glaring problem-assuming our criminal justice system can get past the first gigantic and insurmountable hurdle-is how would Florida law define, “illegal immigrant.” I looked, there is no definition within the bill of this crucial term, there is no other bill that purports to define this term and Florida law does not already define “illegal immigrant.” This is important because, as discussed above, the Federal Courts, the Obama administration and the agencies charged with enforcing and decided federal immigration laws struggle every day to determine who is here illegally and who is not.
Is an “illegal immigrant” someone who entered illegally and has no lawful immigration status? Would it cover people who came legally and overstayed their visas, even if by one day? What about people who have no status but are granted deferred action or DACA (Deferred Action for Childhood Arrivals) or TPS (Temporary Protected Status). Are those individuals illegal, even though they are allowed to legally stay? Would a person have to know they were here illegally to be subject to this enhanced penalty? This seems like a silly question, but there are thousands of immigrants in the U.S. right now who have pending applications for immigration relief or benefits that have been denied and they don’t know it. There are also thousands more who think they have lawful status but have actually been ordered deported without even knowing it. What about people who have applied for immigration benefits or relief, but their cases or applications are stilling pending, are they “illegal” even though at any moment the federal government may make them “legal”?
Hopefully this misguided bill will never come close to becoming law and it is just one Senator’s effort to look tough on immigrant criminals. Florida Courts should focus on enforcing Florida laws and not try to conflate the extremely complicated arena of federal immigration law with criminal prosecutions. This will lead to more time and money spent by the Florida criminal justice system as they spin their wheels and waste tax payer money trying to determine someone’s immigration status in a misguided effort to punish them for something that is often times, beyond their immediate knowledge and control.
John Gihon is a Florida Bar Board Certified expert in Immigration and Nationality Law and a Crimmigration Consultant.