State & Local Police Enforcement of Federal Immigration Law

8/14/2019 State & Local Police Enforcement of Federal Immigration Law

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STATE AND LOCAL PO LICE ENFORCEMENT OFFEDERAL IMMIGRATION LAW:FEDERAL LAWS RE GARD ING STATEAND LOCAL ENFORCEMENT OFIMMIGRATION LAWS

1996, Illegal Immigration and Immigrant Responsibility Act (IIRIRA):o Sec. 287(g) of the Immigration and Nationality Act (INA), 8 USC sec.1357(g). States can enter into a Memorandum of Understanding with federalgovernment to investigate, apprehend and detain non-citizens.o Sec. 103(a) of the INA, 8 USC 1103(a)(8): in case of mass influx, federalgovernment can authorize state and local law enforcement to enforce federalimmigration laws.

1996, Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA): State andlocal law enforcement can arrest persons unlawfully present in US who have beenconvicted of a felony and previously deported, but only after have confirmed person'sstatus with the Immigration and Naturalization Service (INS).1999, INS Quick Response Teams (QRTs): Omnibus Consolidated and EmergencySupplemental Appropriations Act, 1999 (PL 105-277). QRTs were made up offederal, state and local law enforcement and operated when state and local officialsthought they had undocumented person in custody.

PROPO SED FEDERA L LEGISLATION: NOT THE LAWClear Law Enforcement for Alien Removal(CLEAR)Act of 2005 (HR 3137) andHomeland Security Enhancement Act (HSEA) (S. 1362): affirms "inherent authority"of state and local authorities to enforce federal immigration law. Bills did not passeither House or the Senate.Border Protection, Antiterrorism and Illegal Immigration Control Act of 2005 (HR4437): affirms "inherent authority" of state and local authorities to enforce federalimmigration law. Bill passed the House, Dec. 2005.Comprehensive Immigration Reform Act of 2006 (S. 261 1) af f ms state's inherentauthority to enforce criminal immigration law provisions. Bill passed the Senate,May 2006.Department of Homeland Security @HS) appropriations bill and various other billsthat would withhold federal funds from states and localities that have policy orpractice that prohibits law enforcement officers from assisting or cooperating withfederal immigration law enforcement in violation of 8 USC sec. 1373(a) and 1644.


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OFFICE OF LEGAL COU NSEL OPINIONS1996,Office of Legal Council Opinion: State and local police have authority toenforce criminal, but not civil provisions of immigration law.

2002, Office of Legal Counsel opinion: State and local law enforcement have"inherent authority" to enforce civil and criminal provisions of federal immigrationlaw.The 2002 Office of Legal Counsel opinion directly conflicts with the 1996 opinion,and its validity has been strongly refuted. Seehttp://www.a~lu.or~/imigr&t~/~edl9902res20050906.htm~ut even though it hasbeen discredited, the 2002 opinion has been repeatedly used to argue that the policealready have authority to enforce immigration law.

FEDERAL ENFORCEMENT INITIATIVES1991:Alien Criminal Apprehension Program: INS program. "Criminal aliens" areidentified by INS after notified by state and local law enforcement and then may betaken into federal custody2001 and 2002: Absconder Apprehension Initiative: information regarding personswho violated civil or criminal provisions of immigration law would be put in NationalCrime Information Center database (NCIC)http://www.ice.p;ov/pi/dro/index.htm2002: National Fugitives Operations Program: targets immigrants with removalorders. htt~://www.ice.aov/pi/news/factsheets/NFOPS.htm2005: Secure Border Initiative:http://www,dhs.aov/dhspublic/interapp/press releaselpress release 0794.xml

o expansion of expedited removal (where immigrants are deported without acourt hearing) and detention capacityo Interior Enforcement Strategy:

Workplace enforcement: implement an employer self-complianceprogram and strengthen regulations to compel employers to makeinquiries on information suggesting employee is not authorized toworkState and local partnerships: using a Memorandum of Understandingunder sec. 287(g) of the INA as a "force multiplier in fugitiveoperations."Fugitive operations: expand national fugitive operations program sothat the "fugitive absconder population" can be eliminated.


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2006: Interior Enforcement Strategyo (2ndphase of Secure Border Initiative)

"identify and remove criminal aliens, fugitives and other immigrationviolators:" remove noncitizens after they complete criminal sentences;locate and remove noncitizens with removal orders ("immigrationfugitives"); remove visa violators; remove non-citizens who posecriminaVnationa1 security threat; expand Law Enforcement SupportCenter (LESC) to support federal, state and local law enforcement."build strong worksite enforcement and compliance programs to deterillegal employment:" punish employers of persons not authorized towork; eliminate "Social Security abuses" such as no-matches or use of000-00-0000 as an SSN; give ICE access to Social Security data"uproot the criminal infrastructure that supports illegal immigration:"dismantle smuggling operations; investigate and prosecute incidents ofdocument and benefits fraud.

2006: Operation Return to Sender: ICE works with state and local authorities to arrestpeople for immigration violations.

HOW STATE ANDLOCAL ENFORCEMENT OF FEDERAL IMMIGRATIONLAWS WORKS IN PRACTICE

Most cooperation between state and local law enforcement and federal immigrationauthorities is outside this legal structure. For example,o Police call Immigration and Customs Enforcement (ICE) when they believe

that someone they encounter -- a criminal suspect, witness or other person- sundocumented.o Police and ICE carry out a joint operation. This has happened with worksiteenforcement or in arresting people when they apply for driver's licenses.

Few states and local governments have signed MOUs with the federal government toenforce immigration laws:o Florida: 2002, part of Florida's Regional Domestic Security Task Forceo Alabama: 2003, Alabama Department of Public Safetyo Los Angeles County Sheriffs Department: 2005, operates in county jailso Arizona, 2005: Arizona Department of Corrections, authorizes certain

correctional officers to carry out immigration functionso Others: Mecklenburg County, NC; San Bernardino, CAo Other states and local governments are reportedly considering or pursuingMOUs.

Stopping people for minor driving offenses is often the pretext or excuse for checkingthe immigration status of drivers or passengers.


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The National Crime Information Center (NCIC) database is a critical tool forinvolving the police in immigration enforcement.

o The NCIC is the automated system that police officers use when they want toknow whether the person they've just stopped or arrested is wanted for crimesor terrorism.

o In 2002, the federal government began putting civil immigration information- uch as the names of people with removal orders -- into the NCIC criminaldatabase.o Lawsuit challenging placement of immigration information into NCICdatabase: National Council of La Raza, et a1 v. Ashcroft, et al, No. CV 03-6324 (E.D.N.Y., filed Dec. 17,2003). Government's motion to dismiss wasargued and submitted Oct 2004, but Judge has not yet ruled. This has stoppedthe lawsuit in its tracks.o If local police get an NCIC "hit," they call the Law Enforcement SupportCenter (LESC) for confirmation of the hit; if the hit is confirmed, LESC issuesa detainer and requests arrest (if person not already in custody) and detentionon detainer. In a FOIA lawsuit for LESC data last year, DHS stated in astipulation that approximately99% of confirmed calls in the sample periodresulted in immediate issuance of a detainer.

ICE is often contacted because people admit they are undocumented when they areinterrogated or detained by police.It is difficult to track how police are cooperating with federal immigration authorities:

o Immigrants end up in immigration custody, with little access to lawyers orability to legally challenge what happened to them

o They are often held in immigration jails far fiom where they were arrestedo Immigrants often do not know how they ended up in immigration custody orwhat agency the arresting officer is with.

Police involvement in immigration enforcement depends on racial profiling:o People who look or sound foreign are questioned about their immigration

statuso Minor criminal offenses are often used as a pretext for stopping andquestioning people who look or sound foreign

The answers to legal questions are often unclear:o when can police question the driver of a car about immigration statuso when can police question passengers about immigration statuso when can police question people on the street about immigration statusLawsuits against police involvement in immigration enforcement are difficult:

o Lawsuits can be very slow, cumbersome and expensive


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o Police have lega l protections fiom lawsuits, especially where the answers tolegal questions are not clear.POSSIBLEADVOCACY STRATEGIES

Document what is really happeningo What are the police doingo How do immigrants end up in ICE custody

Know your righ ts presentations: what to do when stopped by th e police.State or local laws o r resolutions limiting police involvement in enforcingimmigration law. See httv://ww.ni1c.or~irnmlawpolicy/LocalLaw/index.htmRequire com plaint procedure for violations of these law s and resolutions, and thenuse the com plaint procedu re.Require public reporting of complaints and results of inves tigations of complaints.Enlist police op position: see Major Cities Chiefs Statement on Imm igration.http://www.houstontx.aov/volice/nr/2006/060806-1.htrnState and Local Police Enforcement of Federal Immigration Laws: A Toolkit forAdvocates (AILA, MALDEF, NCLR, NIF, NILC).

Oppose states or localities entering into MOU with federal government.Consider lawsuits. Look out for cases where:

o There is a pattern o f racial profilingo Citizens and immigrants with legal status are detained because police believethey are undocumentedo Police take away imm igration (or other) documents because they wronglybelieve the docum ents are false

Documents

State & Local Police Enforcement of Federal Immigration Law