State and Local
In the midst of a
war against Islamist terrorists, the United States remains woefully —and
frighteningly— at risk. Even with the enactment of new laws such as the USA
Patriot Act and the Enhanced Border Security and Visa Entry Reform Act and the
reorganization of major parts of the federal government into a cabinet-level
Department of Homeland Security, the American homeland is not secure.
Not only are the borders themselves still porous, frequently crossed by
criminals, smugglers, terrorists, and other lawbreakers, but the interior has
very little federal enforcement presence. The federal immigration service has
just 2,000 investigators (the agents engaged in enforcement) out of its 37,000
employees. The Border Patrol is deployed almost exclusively along the border.
And the Clinton administration’s implicit policy of “we’ll make it a little
tougher for you to sneak across the border, but once inside our country, we
won’t touch you” remains in force.
Therefore, while the borders get some attention, the country’s interior is its
exposed, soft underbelly. Untold hundreds of thousands of illegal aliens live,
travel, and quietly undermine U.S. national and economic security within our
borders every day.
Among the rogues in the gallery of criminal illegal aliens are Ingmar Guandique,
the suspected killer of Chandra Levy; Lee Malvo, the suspected Washington, D.C.,
sniper; four homeless Mexicans accused of brutally gang-raping a woman in New
York last December; Rafael Resendez Ramirez, the serial “Railroad Killer;” and
Mohammed Salameh, one of the 1993 World Trade Center conspirator/bombers. Other
illegal aliens provide the infrastructure by which the worst ones go about
undetected, like the Latin American illegal aliens who assisted some of the
September 11 hijackers to exploit loopholes and fraudulently obtain driver’s
Yet, hundreds of thousands of law enforcement officers patrol every community,
every mile of road, 24 hours every day. They know their area and can spot
people, things, and behavior that are out of the ordinary. But when it comes to
enforcing immigration laws, these lawmen largely remain an untapped human
This Backgrounder examines the role that state and local law enforcement plays
—or does not play— in the enforcement of immigration laws, and its potential for
enhancing homeland security. First, it considers the present level of
involvement of local police officers in immigration enforcement. Second, the
legal authority to enforce federal immigration law is discussed. Finally, a
number of recommendations are offered concerning how to improve the part that
state and local law enforcement plays in immigration enforcement, were this
untapped resource to be made an effective component in homeland security.
State and Local Role
U.S. Attorney General John Ashcroft has called for America’s police officers to
help secure the homeland. In a speech on October 8, 2002, to the International
Association of Chiefs of Police, Mr. Ashcroft pledged that federal agents would
respond when local officers notify them of immigration violators in local
custody. “We must use all lawful means to prevent terrorism,” he said. “There
are no second chances.”1
Indeed, this is the most sensible next step in enforcing immigration laws, not
only against Islamist terrorists and their immigrant sympathizers, but
concerning immigration lawbreakers of every sort. After all, about 96 percent of
all U.S. law enforcement officers work for state and local departments.2
In 1999, there were about 678,000 state and local police, according to the
Justice Department. Their involvement in immigration enforcement would be a
tremendous force multiplier.
Frequent Contact. Furthermore, state and local police often come into
contact with illegal aliens as officers go about their duties. For example,
September 11 ringleader Mohammed Atta, while guilty of overstaying an expired
visa, was ticketed in Broward County, Fla., in the spring of 2001 for driving
without a license. His accomplice, Ziad Samir Jarrah, received a speeding ticket
from a Maryland state trooper two days before the terrorist attack.3
And such encounters are an everyday occurrence involving illegal aliens not
belonging to Al Qaeda. For instance, a sheriff’s deputy in Tulsa, Okla., stopped
a van on Interstate 244 the night of July 17, 2002, because it was missing a
taillight. The deputy found 18 Mexican illegal aliens in the van.4
Police in New York pulled over a battered van on the Manhattan side of the
Brooklyn Battery Tunnel the Friday of Memorial Day weekend 2002, just as the
Office of Homeland Security issued a terrorism alert. They found seven illegal
aliens from the Middle East, with a host of identification documents — one was a
fake card obtained in Times Square, another a phony passport.5
Highway patrolmen in Rogers County, Okla., arrested seven Latino illegal aliens
August 5, 2002, on alcohol and drug misdemeanors. They had taken an illegal
Thus, because local police officers routinely encounter illegal aliens of all
types, to involve local lawmen in keeping a lookout for immigration violations
within U.S. borders makes common sense.
However, three general, practical problems limit the degree to which state and
local police authorities are involved in enforcing immigration law. An
additional barrier has more to do with attitude than practicality.
Generally, police at the local level often lack clarity about the extent of
their authority concerning immigration law. Also, police officers on the beat
lack timely access to specific information about aliens with whom they come into
contact —revealing whether or not they have a lawbreaker on their hands. And
then there is the practical constraint of limited resources —jail space,
sufficient funds to hold aliens or transport them to the immigration service,
and so forth.
Confused About Authority
Though state and local police officers have the legal authority to enforce
federal immigration laws (this is explored more fully in the following section),
officers may not realize this. Some people have tried to create a perception of
an arbitrary distinction between immigration and other federal laws, and local
officers may be uncertain whether the law or the Constitution grants them
authority regarding immigration offenses; however, police at the local level
often make arrests for other federal offenses.
They may not know whether an illegal alien has committed a criminal immigration
offense or not, but most immigration offenses, such as entry without inspection,
fraud, and alien smuggling, are felonies. Gray areas exist, however. For
example, to enter the country by sneaking across the border is punishable under
the federal criminal code (INA Sec. 275), while overstaying a temporary visa is
but a deportable offense (INA Sec. 237(a)(1)(C)(i)).
Police officers also may hesitate to scrutinize a suspect too closely for fear
of being charged with racial or ethnic discrimination. Such lawsuits as that won
against Chandler, Ariz., in 1997, when police questioned about 400 people for
proof of citizenship, can have a chilling effect on local law enforcement’s
getting involved in immigration matters.7
Federal authorities do not help the situation any when they add to the
confusion. For example, an INS deputy district director in Georgia was quoted,
“It’s not a crime to be in the U.S. illegally. It’s a violation of civil law.”8
An INS spokesman in California referred to aliens unlawfully present as
“law-abiding citizens” (they are neither).9 Such statements, though
clearly wrong, serve to muddle local law enforcement’s understanding of what the
immigration code says and how they should handle suspected violations.
activists, such as the American Civil Liberties Union, and other
high-immigration advocacy groups employ intimidation tactics to dampen local law
enforcement’s inclination to exercise its authority in immigration matters. For
example, the ACLU promptly used this tactic when a Stratford, Wis., policeman
arrested an erratic driver who was a Mexican alien. This led to the officer’s
discovery of five other illegal aliens, whom the policeman questioned about
their immigration status, resulting in four being removed from the country.10
All told, such a situation causes many local law enforcement agents to forego,
or at least second-guess, their authority over immigration violations.
Information Is Empowering
Police officers on the beat must have timely information about lawbreakers and
fugitives to enforce the law effectively. To help them, the National Crime
Information Center (NCIC), maintained by the Department of Justice, lists such
information as outstanding warrants and fugitives. This powerful source supplies
law officers with ready access to information in a quick, single inquiry and has
become part of standard police procedure and Information Age crime-fighting
Unfortunately, NCIC contains few records pertaining to immigration offenses.
Only in 2002 did the Department of Justice begin listing absconders on NCIC.
Absconders, those who have not left the country under final order of removal,
make up an estimated 314,000 of the eight to 10 million illegal aliens. Only a
fraction of the total number of absconders has yet been entered on the NCIC
database, beginning with Middle Easterners.11
The Bureau of Immigration and Customs Enforcement (BICE, formerly the INS)
operates the Law Enforcement Support Center (LESC) to assist local law officers.
The LESC provides local police with access to BICE data on immigration
violators. However, accessing LESC requires a secondary contact in addition to
NCIC. LESC checks take much longer to get an answer, perhaps two or more hours (BICE
claims most are answered within 20 minutes). It hasn’t been available to police
in all 50 states and is not part of the law enforcement culture.
Post-September 11, though, information-sharing is on the rise. State and local
law enforcement — among the “first responders” — are being brought increasingly
into the picture of homeland security. The State Department is making available
to local law enforcers its database of sensitive information about overseas
applicants for American visas. This database contains records on some 50 million
visa applicants and has 20 million photographs.12 Yet, as useful as
this move is in providing detectives nationwide with this investigative tool, it
will not be as useful to the officer on the beat for getting quick answers.
More Resources Needed
As with most government agencies, state and local law enforcement departments
must cope with limited resources. Most police agencies could always do with more
money, more personnel, more equipment, more jail space, and so forth. The same
holds when it comes to immigration enforcement.
Local jails may serve as detention space for holding illegal aliens. This gives
the BICE additional bedspace where illegal immigrants may be kept following the
time local police have captured them and until immigration officers take
custody. This short-term custody of illegal aliens is a built-in stopgap
But detaining illegal aliens, even for only a short time, can become costly. And
the cost is borne principally at the local level. A 2001 study by the
U.S./Mexico Border Counties Coalition estimated the annual cost of law
enforcement and criminal justice associated with illegal immigration in those
Southwest counties alone at $108.2 million in 1999, or 12 percent of the cost of
these counties’ related expenditures.13
The State Criminal Alien Assistance Program (SCAAP), through which the federal
government reimburses a portion of the cost of locally detaining illegal aliens,
does not come close to the full amount. One Arizona sheriff said SCAAP pays 23
cents for every dollar an illegal immigrant imposes on his county jail. And Sen.
Jon Kyl, (R-Ariz.), said his state spent $305 million housing illegal aliens in
2002, while the federal reimbursement was only $24 million.14 SCAAP
received just $585 million in total funding in 2002, and Congress appropriated
just $250 million in the new 2003 spending bill.
Similarly, the costs that aliens impose on American prisons are high. A private
analysis found the cost of incarcerating aliens in state and federal facilities
was $849.1 million in 1999. It said 54 percent of federal inmates were aliens,
while about 5 percent of state inmates were immigrants. The North Carolina
legislature has passed a new law allowing alien prisoners to be transferred to
their home country’s prison, which could save state taxpayers an estimated $3.55
million each year.15
Other Burdens. In addition to the financial burden that jailing aliens
places on state and local detention facilities, other burdens exist that serve
to exclude many local jails from being used at all. According to congressional
research, BICE regulations require that any county or municipal jail where
aliens are detained must meet absurd, unreasonable standards. These requirements
make little sense in most American counties and far exceed the American
Correctional Association standards, which 21,000 jail facilities meet.
BICE standards say aliens must have access to law books in their own language.
Activist lawyers and advocacy groups must have access to inform detainees about
U.S. immigration law and procedures. The BICE rules dictate two hot meals per
day, micromanage the contents of cold meals, and demand consideration of
detainees’ ethnicity in meal planning. Further, the standards require detainee
access to resources, services, instruction, and counseling in their religion.
The intent of such requirements is to diminish the use of local jails for
detaining illegal aliens.
Though the Immigration and Nationality Act provides for civil penalties to be
assessed against illegal aliens for many offenses, the general practice of the
federal government is to forego assessing fines. That is, the lawbreaker
receives virtually no punishment for getting caught for his crime. This means
that if an illegal alien is caught, the worst that he or she receives is free
The net effects of all this are that lawbreakers suffer no consequences and
state and local police are burdened with heavy costs and regulations.
Ultimately, state and local taxpayers bear the heaviest costs associated with
taking immigration lawbreakers off their streets. Whereas with enforcing drug
laws local law enforcement may gain resources — such as the forfeited assets of
drug dealers — local police usually get nothing for helping in immigration
Attitude Is Everything
Little or No Help.
Very Few Officers.
Perhaps most detrimental to keeping state and local police sidelined in the
battle to secure the homeland is attitude. Some localities adopt policies that
constrain police from enforcing immigration law (more on this in the following
section). The attitude is, immigration is the federal government’s job, not
ours. Still, those localities that do wish to exercise their authority in this
arena are often met with what appears a lackadaisical, uncooperative attitude
The perception among many in law enforcement is that the INS, now BICE, lacks
the will to help them enforce immigration law. After Attorney General Ashcroft’s
appeal for the help of local police regarding aliens, Billings, Mont., Police
Chief Ron Tussing’s response was not atypical: “Tussing said his past experience
with immigration agents makes him skeptical of the new program. Before he was
chief of police in Billings, Tussing was superintendent of the Nebraska State
Police where officers often encountered illegal immigrants.
“‘We’d call them (INS) up and they’d say let them go, we’re too busy,’ Tussing
said.”16 Indeed, the two instances of Oklahoma officers encountering
illegal aliens in traffic stops in the summer of 2002, as well as the New York
encounter with illegal aliens before Memorial Day 2002, each involved local law
enforcement contacting INS and being told INS could not come take custody of the
aliens. Similarly, INS officers in Dallas released 25 illegal aliens into the
United States after they were caught being smuggled into this country in a
The perception INS has created has sparked indignation among many officials,
including members of Congress. For example, U.S. Rep. John Sullivan (R-Okla.)
met with INS seeking greater support for local law enforcement in such
instances.18 Kittery, Maine, Police Chief Edward Strong became
concerned when his department stopped Bulgarian and Colombian visa overstayers,
contacted the INS, and was told to release them. Strong held a press conference
on October 30, 2002, at which he said “his department often arrests illegal
immigrants at the outlet malls for shoplifting and other offenses. These people
are turned over to INS, but only to be released.”19
Little or No Help. Northampton County,
Pa., District Attorney John M. Morganelli has cited the INS as being grossly
uncooperative in going after immigration violators. “Unfortunately, while the
influx of illegal aliens continues at full throttle, as a local prosecutor I can
honestly say that there is little to no help from the federal government
concerning this issue,” Morganelli said. He told of a case involving 12 illegal
aliens committing identity fraud using Social Security numbers. Yet immigration
agents “discourage this type of investigation,” he said.20
One of the most prominent cases that further cemented INS’s poor reputation was
that of Lee Malvo, who was arrested in the Washington, D.C., sniper case. An
illegal alien from Jamaica, Malvo and his mother — also an illegal alien — were
encountered by local police in December 2001. Uma Sceon James and John Mohammed
were disputing who had custody of Malvo. Police called the Border Patrol, whose
agents in Bellingham, Wash., arrested the illegal aliens. The Border Patrol
handed James and Malvo over to INS with the understanding INS would hold them in
detention until removal, which is what the law requires. However, the INS
violated the law and regulations and released the illegal alien pair, who indeed
The INS has consistently fallen behind in its enforcement mission, borne out
systematically as well as illustrated in anecdotal evidence. The Justice
Department Inspector General recently examined how well INS had improved its
performance removing aliens under final order of removal (formerly deportation)
and found that the INS had made virtually no progress. Of aliens under final
order of removal whom the INS held in detention, the removal rate was 94 percent
in 1996 and 92 percent in 2001 (though the fall might possibly be explained by a
small sample size). But of aliens under final order of removal who were not
detained, the INS removed only 13 percent in 2001 (11 percent in 1996).22
Within specific categories of aliens, the Inspector General found INS removed
only 6 percent of nondetained aliens from nations that sponsor terrorism. Only
35 percent of nondetained criminal aliens — a class the INS claimed was its
first priority for removal — actually got removed. INS failed to remove 97
percent of non-detained removable aliens whose asylum claims were denied,
including terrorists and other criminals, such as Hesham Mohamed Hadayet, the
Los Angeles Airport gunner of July 4, 2002, Sheik Omar Abdel Rahman, a leader in
the 1993 World Trade Center bombing, and Ramzi Yousef, the 1993 World Trade
Very Few Officers. As much as INS has
contributed to its own disrepute, the agency is not entirely to blame. For one
thing, the understaffed enforcement side (now combined with Customs and other
federal law enforcers in the new Department of Homeland Security) has very few
officers to deploy — only about 2,000 for the entire nation. And those are
mostly investigators, skilled agents who concentrate on complex cases, such as
alien smuggling rings, fraud schemes, and the like. From the standpoint of the
best use of limited resources, it does not make sense to pull the equivalent of
a detective off his investigation in order to drive across the state and take
custody of what may appear to be plain old illegal aliens.
INS has been cooperative with local law enforcement when it has special
resources available. For example, the late 1990s saw the development and
congressional funding of Quick Response Teams (QRTs). The job of QRTs is to
assist state and local law enforcement agencies in immigration cases. This has
been a welcome addition to interior enforcement.
And the Atlanta District INS office established a partnership with law
enforcement in Dalton, Ga., in 1995. It successfully coordinated investigations,
arrests, and removals of illegal aliens and disrupted the criminal and
documentation counterfeiting enterprises that facilitated illegal immigration in
Part of the INS problem is the continuation of Clinton-era policies that
undermine any rigorous enforcement of immigration law. Then-INS Commissioner
Doris Meissner, in a November 17, 2000, memorandum that established a lax
policy, defined “prosecutorial discretion” in such a way that district personnel
were discouraged from being tough on immigration crimes. The memo laid out a
game plan for deciding not to proceed at every step in the process. It reads, in
“In the immigration context, the term [prosecutorial discretion] applies not
only to the decision to issue, serve, or file a Notice to Appear (NTA), but also
to a broad range of other discretionary enforcement decisions, including among
others: Focusing investigative resources on particular offenses or conduct;
deciding whom to stop, question, and arrest; maintaining an alien in custody;
seeking expedited removal or other forms of removal by means other than a
removal proceeding; settling or dismissing a proceeding; granting deferred
action or staying a final order; agreeing to voluntary departure, withdrawal of
an application for admission, or other action in lieu of removing the alien;
pursuing an appeal; and executing a removal order.
“As a general matter, INS officers may decline to prosecute a legally sufficient
immigration case if the Federal immigration enforcement interest that would be
served by prosecution is not substantial. [emphasis in original] . . . A
[district director’s] or [chief patrol agent’s] exercise of prosecutorial
discretion will not normally be reviewed by Regional or Headquarters authority.
[I]mmigration violations are continuing offenses that, as a general principle of
immigration law, continue to make an alien legally removable regardless of a
decision not to pursue removal on a previous occasion. An alien may come to the
attention of the INS in the future through seeking admission or in other ways.
An INS office should abide by a favorable prosecutorial decision taken by
another office as a matter of INS policy, absent new facts or changed
circumstances. However, if a removal proceeding is transferred from one INS
district to another, the district assuming responsibility for the case is not
bound by the charging district’s decision to proceed with an NTA, if the facts
and circumstances at a latter stage suggest that a favorable exercise of
prosecutorial discretion is appropriate.”25
In other words, the Meissner doctrine sought to undercut congressional intent in
the landmark 1996 immigration reform law. The memo provided a plethora of ways
and opportunities for immigration field officers not to pursue illegal aliens,
signaled that they should exercise “prosecutorial discretion” freely, and
directed that prior decisions not to prosecute an alien further insulate that
alien from future prosecution.
And, of course, the government is overwhelmed by the sheer volume of aliens,
legal and illegal, present in the United States. Numbering in the tens of
millions, lawful permanent residents, legal temporary visitors, and illegal
aliens of every kind far exceed the government’s ability to ensure that they
abide by the law and their visa terms, and otherwise pose no threat.
State, county, and municipal law enforcement officers are sworn to uphold the
law. This includes upholding the U.S. Constitution and implies federal laws. As
a 1996 Department of Justice legal opinion put it, “It is well-settled that
state law enforcement officers are permitted to enforce federal statutes where
such enforcement activities do not impair federal regulatory interests.”26
The current Justice Department Office of Legal Counsel has reportedly read the
law and the Constitution even more in accord with the Founding Fathers.
It is important
to keep in mind that the states “may be regarded as constituent and essential
parts of the federal government,” Madison wrote in Federalist 45. The states
“retain under the proposed [and adopted] Constitution a very extensive portion
of active sovereignty.” Federalist 39 makes clear that the U.S. Constitution
established a federal, not a national, government.
This element of
original intent is essential to understanding the fact that states remain
sovereign entities. These sovereigns have broad jurisdiction they may freely
exercise. It is worth reviewing the Ninth and Tenth Amendments to the U.S.
Constitution, which read, respectively:
“The enumeration in the Constitution, of certain rights, shall not be
construed to deny or disparage others retained by the people.
“The powers not delegated to the United States by the Constitution, nor
prohibited by it to the States, are reserved to the States respectively, or to
In other words, the sovereign states may exercise their active sovereignty.
expressly prohibited from exercising certain powers, the “permission” the
Clinton Justice Department’s legal opinion mentions that local police have
derives from the Constitution itself. States, as federal constituents, retain
police powers apart from what any federal statute may designate. This is basic
In April 2002,
news reports told of a draft legal opinion under consideration by the Bush
Justice Department, apparently premised on this standard reading of the
Constitution. The New York Times reported that, “The legal counsel’s opinion
says that states and localities, as ‘sovereign entities,’ have the ‘inherent
authority to enforce civil as well as criminal violations of federal immigration
law,’ according to officials who have read it.”27 DOJ will not make
the opinion available, so it is impossible to know exactly how the opinion is
reasoned. Unknown remain the rationale, the argument, the cases and authorities,
and what constitutes the draft. However, the Attorney General seems to have been
advancing the conclusions of the opinion in such things as his 2002 speech to
the police chiefs convention.
Post erroneously reported that the draft opinion “would give state and local
police agencies the power to enforce immigration laws,” a power they inherently
possess under a proper understanding of the relation of state to federal
government and of the U.S. Constitution.28 The Justice Department
seems to be simply (and properly) recognizing this fact.
the 2002 draft opinion has not been published, as a practical matter the
published 1996 opinion remains the operative policy until it is superseded by
the new one. Of course, states and localities may certainly exercise their
authority absent the new opinion’s publication, as the Clinton administration’s
legal opinion does not supplant the Constitution. But bureaucrats and government
lawyers aren’t known for relying on the actual Constitution when some recent
court opinion or policy statement runs to the contrary.
In contrast to
the 2002 draft DOJ opinion, the 1996 DOJ legal opinion narrowly read the legal
authority of state and local law enforcement as it pertains to federal
immigration laws. It said that state and local police “may constitutionally
detain or arrest aliens for violating the criminal provisions of the Immigration
and Naturalization [sic] Act,” but not “solely on suspicion of civil
deportability” and could hold criminal alien suspects “for periods as long as 45
to 60 minutes” to allow Border Patrol to arrive.29
The Clinton-era DOJ opinion relied heavily on Ninth Circuit decisions.
Nevertheless, the opinion did recognize that certain violations in the INA are
in fact criminal violations. It further argued that illegal entry may not be a
continuing offense (meaning that, once inside the United States, the offending
alien has completed his crime, a misdemeanor under INA Sec. 275). This point was
based on a Supreme Court case, INS v. Lopez-Mendoza (468 U.S. 1032 (1984)). In
that case, the Court chose not to address the question of whether the presence
of an illegal alien who illicitly crossed the border “is a continuing or
completed crime.” In addition, DOJ specified that “federal law does not require
state law enforcement agencies to assist in enforcing the INA.”30
Two Recent Rulings. Whereas the Ninth
Circuit Court of Appeals is not known for sound opinions that respect the rule
of law or the Constitution, at least two recent decisions in the Tenth Circuit
strengthen the hand of local law enforcement. The U.S. Supreme Court declined to
hear an appeal of one of those cases.
In February 1998,
an INS agent observed what appeared to be a drug deal outside a restaurant in
Edmund, Okla. He called a local police officer and told him what he had seen, as
well as suspicion about the immigration status of one of the men. The officer
investigated, then arrested the Hispanic suspect, a restaurant employee, because
of his being an illegal alien. Later on, the officer learned that the alien “had
a history of prior criminal convictions and deportations.”31
The appellate court ruled in U.S. v. Vasquez-Alvarez that “statute authorizing
state and local law enforcement officials to arrest and detain aliens in certain
circumstances if aliens had been deported or had left United States after
previous felony conviction did not limit or displace preexisting general
authority of state or local police officers to investigate and make arrests of
criminal illegal aliens.”32 The court noted Oklahoma’s state law as
permitting local police to enforce federal law, including immigration law. The
Supreme Court denied a writ of certiorari. Thus, while the court rightly
affirmed the legal authority of state and local police to arrest and detain
immigration violators, it relied on state statute exercising this power
explicitly, as well as limiting jurisdiction to criminal violations. Therefore,
this decision was in the right direction, but fell short of the vigorous
“inherent authority” where civil immigration violations are concerned.
A second case recognized that local police may arrest suspected immigration
violators with probable cause of immigration violations. In 2001, the Tenth
Circuit held in U.S. v. Santana-Garcia that a Utah state patrolman had such
probable cause. The officer stopped a vehicle for a traffic violation. The
driver, who did not speak English, had no driver’s license. In talking with an
English-speaking passenger, the officer learned that the two aliens were
traveling from Mexico to Colorado. The state trooper asked if the men were
legally in the country, and both admitted they were not.
The appellate court said that the officer had probable cause to hold the aliens
based on the exchange about their international travel and admission of being
illegally present. The court cited the Utah peace officer statute, which grants
authority for warrantless arrest for “any public offense.”33 Here
again, this court affirmed a state’s right to empower its law officers
concerning federal immigration laws. But it remains unclear how the court might
have ruled absent the traffic violations and related facts.
Deputizing Local Police. One
provision of federal law expands the role of local and state law officers by
allowing them to be deputized as federal immigration agents. Section 133 of the
1996 Illegal Immigration Reform and Immigrant Responsibility Act (INA Sec.
287(g)) is in addition to any inherent or existing state statutory authority
over immigration matters. Section 133 allows states or localities and the U.S.
Attorney General to enter an agreement. Under such an agreement, a cadre of
local or state officers is trained as immigration specialists. That is, the
police officers become more or less deputized as immigration officers after
undergoing intensive special training.
Florida entered a Section 133 agreement with the Justice Department in 2002.
South Carolina and Alabama number among other states that have expressed
interest in a similar agreement. Florida trained 35 officers in order that they
may work on regional security task forces around the state.34 In any
event, Section 133 arrangements are specialized, rather than general usage of
state and local police to enforce immigration laws in the course of their
carrying out their duties.
Additionally, Section 372 of IIRIRA grants the Attorney General the authority to
call upon state and local police in an immigration emergency. In case “an actual
or imminent mass influx of aliens arriving off the coast of the United States,
or near a land border, presents urgent circumstances requiring an immediate
Federal response,” state or local law officers could be granted “any of the
powers, privileges, or duties” of a federal immigration officer (INA Sec.
103(a)(8)). The Justice Department has recently changed the rule that implements
this provision, waiving or lowering onerous training requirements in certain
extreme emergency situations.35
Prohibiting Cooperation. Finally,
whereas states have the power inherently under the Constitution to enforce
federal immigration laws, states and localities sometimes adopt policies that
limit their own officers’ authority in this area. A number of places have
enacted such policies. However, to do so violates 1996 federal laws intended to
ensure that state and local government personnel assist immigration authorities.36
For example, New
York City has such a sanctuary policy. Then-Mayor Edward Koch issued an
executive order (E.O. 124) in 1989 that prohibited city employees from reporting
illegal aliens to the INS. The policy was continued under his successors,
including Rudy Giuliani and Michael Bloomberg post-September 11. This despite
federal court rulings against the city’s policy.37 At a recent House
hearing, a witness from the New York City government claimed the city now is in
compliance with federal immigration laws. He repeatedly asserted that though the
law “forbids state and local governments from prohibiting or placing
restrictions on the reporting of immigration status information to the INS, it
does not . . . [impose] an affirmative duty on police officers to report.”38
The Seattle City Council recently adopted a policy restricting city police and
employees from questioning anyone about immigration status. This ordinance
appears to violate federal immigration and welfare laws; it prohibits city
workers from “engag[ing] in activities designed to ascertain the immigration
status of any person.” However, police officers may inquire about “immigration
status if they have ‘reasonable suspicion’ to believe the person has previously
been deported and has committed a felony” and may help the immigration service
as the law requires.39 This exception has yet to play out in
practical terms. This policy follows such localities as Chicago, San Francisco,
Los Angeles, and Houston.40
Some local law
enforcement officials keep their officers from enforcing immigration violations
that are not connected to another crime. For instance, Denver has such a policy.41
St. George, Utah, and San Diego and Stockton, Calif., police officials also
demand that their police officers not enforce the law regarding immigration
Thus, the Constitution reserves to the states the right to enforce federal laws,
including immigration laws, within their jurisdictions. Federal laws enacted in
1996 limit state and local power to restrict immigration enforcement. While
courts have generally upheld state prerogative to engage actively in immigration
enforcement, additional tools such as Section 133 give even greater abilities
for states and localities to become more involved in this area. Though some law
enforcement authorities and local politicians have shirked their responsibility
regarding immigration law, and the Clinton Justice Department policy statement
sought to minimize state and local involvement, this strain runs counter to the
facts. The Ashcroft Justice Department has rightfully recognized this and
appears to be taking steps to set the matter right. It remains to be seen
whether the new Department of Homeland Security follows suit or falls into the
Clintonian model of wink-and-nod “enforcement.”
Federal agents and state and local police must cooperate with one
another if the tremendous loopholes that exist are to be plugged. Those
loopholes frustrate the rigorous enforcement of immigration law violations. The
solution dovetails with the main sources of the problem. A seamless system for
immigration enforcement will address authority, information, and resources.
Authority. There should be no question in anybody’s mind that authority exists
for state and local law officers to enforce federal immigration laws, criminal
and civil. The Justice Department has made a valuable contribution with the
development of its “inherent authority” theory. It should publish this opinion
without delay and supersede the former, narrow interpretation from the previous
administrations change, it is not sufficient to rely on a DOJ legal opinion or
to place faith in the courts. A clear, statutory statement in federal law should
affirm that state and local law enforcement have authority to enforce
immigration laws — not in the sense of a special cadre of deputized immigration
agents, but in the sense of every police officer while carrying out his normal
duties. Also, states should be urged to grant explicit authority to enforce
immigration laws in their peace officer statutes.
Information. Second, the police officer on the beat must have access to
information about immigration violators. The most practical measure would be to
build on the current system. Therefore, all available files on immigration
violators should be placed in the NCIC system. The addition of absconders should
be completed as quickly as possible, with other immigration offenders added
after that. This measure would get the information in officers’ hands quickly
and would not necessitate a secondary inquiry to a totally different system.
could be to require “no bail” status be placed on every immigrant offender’s
record. Illegal aliens should be viewed as flight risks because of the nature of
their offense. “No bail” status would alert local police of the risk of flight
and keep the person from posting bail and disappearing.
Information-sharing works best when it goes in both directions. Even if a state
or locality does not have its officers enforcing immigration violations apart
from other offenses, every police agency should report to the federal government
its officers’ encounters with illegal aliens. Such reporting would create a
record to help track illegal aliens and to unveil patterns of travel,
trafficking, and operations.
Resources. Resources must be provided to fund this enhanced activity at the
state, local, and federal levels. The best place to look for money would be
illegal aliens themselves. A system of fines and penalties would hold
individuals personally responsible for their lawbreaking. Fines that exist in
current law should be imposed routinely and waived rarely. Individual
responsibility would restore meaningful consequences to the breaking of U.S.
immigration laws. The worst offenders should face the forfeiture of their
such as the State Criminal Alien Assistance Program, whose funding was halved in
the latest federal budget for fiscal year 2003, should instead be raised to at
least $1.5 billion per year (the approximate cost of detaining criminal aliens)
and steadily increased from there.
In addition to clear authority, information, and resources, several more changes
must be enacted for a smooth, efficient system. First, every type of immigration
violation must be considered a criminal violation. Arcane distinctions and
discrepancies in the law create gray areas, cause uncertainty in the minds of
law enforcers, and dampen the inclination to enforce the law.
means of detention, processing, and taking custody are necessary. While
immigration investigators should not be pulled off their important work, there
still needs to be some way to get captured illegal aliens into the hands of
federal immigration authorities. A separate force of, say, uniformed BICE
officers charged with detention and removal in cooperation with and response to
local law enforcement would be one solution. Simplifying detention standards and
making greater use of local jail space for alien detention would be another
solution. Establishing a circuit-riding system, whereby federal officers
regularly come by and take illegal aliens off the hands of local police, might
be another. Yet another approach is to contract out the transportation of
illegal aliens to private security or corrections firms, or for the federal
government to contract with sheriff’s departments, the U.S. Marshals Service, or
the Federal Bureau of Prisons to transport illegal aliens. Perhaps a combination
of all these solutions could be used, depending on which works best in a given
area of the country.
Improved use of
technology, such as videoconferences to remote areas for expansion of the
Institutional Removal Program or mobile access to databases such as the IDENT
system, would enhance local immigration enforcement in an effective manner.
Creation and deployment into interior states of additional Quick Response Teams
would boost needed human resources that have proven effective.
government must change its policies so as to encourage, not discourage,
immigration enforcement. Authorities should only release an alien if there are
extenuating circumstances, as used to be the standard practice, not
automatically release unless concerns exist. This will require better usage of
local jails, perhaps detaining illegals on military bases, and contracting out
to private prison companies. The government must inculcate a culture of
enforcement among its people and creatively address the needs so the new culture
and procedures succeed.
Finally, a system by which federal enforcement agencies can be held accountable
is necessary. Bureaucracies respond best when their funding is at stake. A means
to ensure that federal agencies are enforcing immigration laws vigorously and
cooperating with states and localities is essential.
State and local law enforcement belong on the team fighting
immigration crimes. They must become engaged in immigration enforcement if the
country is serious about achieving homeland security. State and local police
officers are the eyes and ears on the home front. They know their territory.
They should be enforcing immigration laws, just as they go after those who
violate other laws.
Equally, America must begin to view immigration offenses as “precursor crimes.”
For that is what they often are. Illegal entry precedes unlawful employment in
the United States, for instance, which distorts the economy and disadvantages
the law-abiding. Overstaying a visa precedes and gives rise to the commission of
such offenses as benefit or document fraud. Failing to depart the country
following an order of removal sends an alien into an underworld of false
identification, illegal employment, and the like.
immigration and its accompanying criminal enterprises have fostered foreign
terrorist cells within America, smuggling rings that combine drug and alien
trafficking, money laundering operations that support al Qaeda and Hamas, drug
gangs, and identity fraud schemes. The Washington Post several years ago
reported the dangers of laxity in immigration enforcement, particularly in the
interior: “‘[A]lien criminals and terrorists manipulate the [immigration]
benefit application process to facilitate expansion of their illegal activities,
such as crimes of violence, narcotics trafficking, terrorism and entitlement
fraud.’ For example, Mir Aimal Kansi, a Pakistani terrorist wanted for fatally
shooting two CIA employees outside the agency’s headquarters in 1993, had
obtained two green cards, one through a political asylum application and the
other through the amnesty program.”43 This criminal infrastructure,
combined with a mythologized view that projects on illegal immigrants pure
motives, love of liberty, and commitment to working hard and making it in
America, puts every single American at risk.
Some claim that
involving state and local law enforcement in immigration matters would set up a
police state. But the alternative to local police enforcing immigration law
comes much closer to that outcome. A distinction between citizens and aliens
exists, and aliens should face greater scrutiny. Otherwise, citizens as well as
aliens would have to submit to increased security requirements at every turn.
Better to preserve liberty for our citizens by demanding more of the foreigners
within our midst.
Others claim that
localized immigration enforcement would curb cooperation by ethnic communities.
If police took on immigration enforcement, illegal aliens would not report
crimes and police departments would lose their trust, they say. However, no one
contemplates police rounding up illegal aliens or mass deportations. Rather,
what is proposed here envisions local officers, as they come into contact with
suspects in their daily routines, pursuing immigration-related indicators during
traffic stops or other normal encounters. Besides, there are some circumstances
in which an officer might decide not to ask about immigration status, such as
when someone calls for help in an emergency. But police should be able to
exercise authority in immigration matters when circumstances dictate.
of confusion over whether authority exists for local police to enforce
immigration law, lack of timely access to information and incomplete records,
strained resources at all levels, and an overwhelmed immigration agency that has
given the impression of indolence and uncooperativeness, all told, have resulted
in a major security threat.
enforcement’s involvement in enforcing immigration violations would increase
homeland security. It would raise the stakes of illegal immigration. It would
increase the chances of an illegal alien getting caught. And it would help
protect public safety at all levels.
James R. Edwards, Jr., is coauthor of The Congressional Politics of
Immigration Reform and an adjunct fellow with Hudson Institute.
1 Greg Tuttle, “Tussing Skeptical as Ashcroft Woos City Cops,” Billings
Gazette, October 8, 2002. <
2 “Local Cops and Visa-Violators,” Christian Science Monitor, April
30, 2002. < www.csmonitor.com/2002/0430/p10s02-comv.html >.
3 Steven A. Camarota, The Open Door: How Militant Islamic Terrorists
Entered and Remained in the United States, 1993-2001. Washington, D.C.: Center
for Immigration Studies, May 2002, p. 51. <
4 Associated Press, “Immigrants Freed in Tulsa at Feds’ Request,”
NewsOK.com, July 18, 2002.
Brian Blomquist and Murray Weiss, “Ashcroft: We’ll Probe Released-Alien
Debacle,” NYPost.com, June 1, 2002.
6 Linda Martin, “5 Illegal Aliens Post Bail; INS Was Unable to
Arrange for Deportation, Local Law Officers Told,” Tulsa World, Aug. 7, 2002.
7 “Local Cops,” Christian Science Monitor.
8 Michelle Malkin, Invasion: How America Still Welcomes Terrorists,
Criminals, and Other Foreign Menaces to Our Shores. Washington, D.C.: Regnery,
2002, p. 31.
9 Malkin, Invasion, p. 41.
10 Associated Press, “ACLU Looks into Stratford Police Role in
Deportations,” Milwaukee Journal Sentinel, Feb. 1, 2003. < www.jsonline.com/news/State/feb03/115231.asp >.
11 Dan Eggen, “U.S. Search Finds 585 Deportee ‘Absconders’,”
Washington Post, May 30, 2002.
12 Jennifer Lee, “State Department Link Will Open Visa Database to
Police Officers,” New York Times, Jan. 31, 2003.
13 Tanis J. Salant, Christine Brenner, Nadia Rubaii-Barrett, and John
R. Weeks, Illegal Immigrants in U.S./Mexico Border Counties: The Costs of Law
Enforcement, Criminal Justice, and Emergency Medical Services (Executive
Summary). U.S./Mexico Border Counties Coalition, Feb. 2001, p. 42. <
14 Bill Hess, “Dever: Pay in Full,” Sierra Vista, Ariz., Herald
Review, Jan. 26, 2003. > www.freerepublic.com/focus/news/829876.posts >.
15 Thomasi McDonald, “Convict Transfer to Save Millions,” Raleigh,
N.C., News & Observer, Jan. 21, 2003. <
Tuttle, “Tussing Skeptical.”
17 Frank Trejo, “Immigrants from Rig Released; All 25 Found at Dallas
Stop Can Stay Until INS Rules on Their Cases,” Dallas Morning News, Aug. 7,
2002. < www.dallasnews.com/local/news/stories/080702dnmetimmigrants.675a2.html
18 Martin, “5 Illegal Aliens.”
19 Amy Wallace, “Shackles on INS Alienate Kittery Chief,” Portsmouth,
N.H., Herald, Oct. 31, 2002.<
20 Tyra Braden, “District Attorney Seeks to Crack Down on Illegal
Immigrants; Northampton County Prosecutor Blames INS for Problems,” Allentown,
Pa., Morning Call, Nov. 14, 2002.
21 Michelle Malkin, “Who Let Lee Malvo Loose?” National Review
Online, Oct. 25, 2002. < www.nationalreview.com/comment/comment-malkin102502.asp
> Jerry Seper and Guy Taylor, “INS Decided Not to Deport Malvo,” Washington
Times, Oct. 29, 2002.
22 U.S. Department of Justice, Office of the Inspector General, The
Immigration and Naturalization Service’s Removal of Aliens Issued Final Orders,
Feb. 2003 (DOJIG Report No. I-2003-004), pp. i-iii. <
23 U.S. Department of Justice Inspector General’s report, Feb. 2003,
pp. i-iii; James R. Edwards, Jr., “Homeland Security in Knots,” Washington
Times, Sept. 4, 2002, p. A14.
24 James D. Chadwick and Bart G. Szafnicki, “The Power of
Partnership; INS and Local Law Enforcement Join Forces to Stop Criminal Illegal
Aliens,” Police Chief, Aug. 1999, pp. 46-51; James D. Chadwick, Bart G.
Szafnicki, and William F. Riley, “Partnership Between INS and Local Law
Enforcement,” Eighteen Eleven, Sept. 1999, Vol. 121, No. 5, pp. 1, 25.
25 Doris Meissner, INS memorandum re: “Exercising Prosecutorial
Discretion,” Nov. 17, 2000. Also, see Terence P. Jeffrey, “Meissner’s Gift to
Criminal Aliens,” Human Events, Jan. 27, 2003, Vol. 59, No. 4, pp. 1, 8.
26 U.S. Department of Justice, “Assistance by State and Local Police
in Apprehending Illegal Aliens,” Memorandum Opinion for the U.S. Attorney,
Southern District of California, Feb. 5, 1996, p. 4.<
27 Eric Schmitt, “Administration Split on Local Role in Terror
Fight,” New York Times, April 29, 2002, pp. A1, A21.
28 Cheryl W. Thompson, “INS role for Police Considered; U.S. Eyes
State, Local Help in Enforcing Immigration Laws,” Washington Post, April 4,
29 Department of Justice, Memorandum Opinion, Feb. 5, 1996, p. 1.
30 Department of Justice, Memorandum Opinion, Feb. 5, 1996, p. 4.
31 U.S. Tenth Circuit Court of Appeals, U.S. v. Vasquez-Alvarez, May
11, 1999 (176 F.3d 1294), p. 1296. <
32 U.S. v. Vasquez-Alvarez, p. 1294.
33 U.S. Tenth Circuit Court of Appeals, U.S. v. Santana-Garcia, Sept.
5, 2001 (264 F.3d 1188), p. 1194. <
34 “Fla. Officers to Enforce U.S. Immigration Laws,” Washington Post,
July 20, 2002; Susan Sachs, “A Nation Challenged: Illegal Immigrants; Long
Resistant, Police Start Embracing Immigration Duties,” New York Times, March 15,
35 Rules and Regulations, “Abbreviation or Waiver of Training for
State or Local Law Enforcement Officers Authorized To Enforce Immigration Law
During a Mass Influx of Aliens,” Federal Register, Feb. 26, 2003 (INS No.
2241-02; AG Order No. 2659-2003) Vol. 68, No. 38, pp. 8820-8822.
36 Malkin, Invasion, p. 48.
37 Malkin, Invasion, pp. 47-49; Bill O’Reilly, “To Protect and
Serve,” townhall.com, Jan. 11, 2003. <
38 John Feinblatt, testimony at an oversight hearing of the House
Immigration Subcommittee on “New York’s ‘Sanctuary’ Policy and the Effect of
Such Policies on Public Safety, Law Enforcement, and Immigration,” Feb. 27,
2003. < http://www.house.gov/judiciary/feinblatt022703.htm >.
39 Jim Brunner, “Immigration Status: City Employees Cannot Ask,”
Seattle Times, Jan. 28, 2003.
40 O’Reilly, “To Protect and Serve.” Also, see the testimony of John
Nickell, a Houston police officer, before the House Immigration Subcommittee
Feb. 27, 2003. Officer Nickell is challenging his department’s “noncooperation”
policy that effectively keeps local police from enforcing immigration
violations. < http://www.house.gov/judiciary/nickell022703.htm >.
41 Michael Riley, “Immigration Bill Has Police Uneasy; Officials Say
They’re Unprepared to Add INS Cases,” Denver Post, April 22, 2002.
42 Tim Sullivan, “Should Police, Deputies Help INS Enforce the Law?”
Salt Lake Tribune, Aug. 26, 2002 www.sltrib.com/08262002/utah/765255.htm; Kris
Axtman, “Police Can Now Be Drafted to Enforce Immigration Law,” Christian
Science Monitor, Aug. 19, 2002 www.csmonitor.com/2002/0819/p02s02-usju.html;
Michael Fitzgerald, “Should Cops Have to Do INS’ Work?” recordnet.com, June 7,
< www.recordnet.com/daily/columnists/fitzgerald/fitz060702.html >.
43 William Branigan, “Immigration Fraud Schemes Proliferating Inside
U.S.; With INS Focused on the Borders, Illegal Aliens Who Get Across Are ‘Home
Free,’ Officials Say,” Washington Post, May 19, 1997, p. A4.
[MFS note: works of several of the
cited authors are available on the "Sustainability Authors" page here.]
Courtesy of the Center for Immigration
Center for Immigration Studies
Mark Krikorian, Executive Director
1522 K Street N.W., Suite 820
Washington, DC 20005
See original at < http://www.cis.org/articles/poverty_study/ >.