By Craig E. Ferrell Jr. ince September 11, 2001, the war on terror has taken many twists and turns. And one of the most vexing problems has been the role local law enforcement should play in dealing with illegal immigrants who are found within U.S. borders. The federal government, since the horrendous events of that terrible day, has been placing notices of administrative warrants for removal and civil detainer notices for deportable felons on the NCIC criminal database.
Local police officers have the established authority to enforce against criminal violations; but these administrative warrants and detainer notices are civil in nature, because they resulted from civil immigration proceedings. Local officers’ authority to make civil arrests for immigration violations is less clearly established under federal law, and their authority to make civil arrests under state and local law also varies from one jurisdiction to the next.
Nevertheless, the federal government has asked local law enforcement agencies to help arrest persons who are subject to these civil administrative warrants and detainers. In response, the Houston Police Department, the International Association of Chiefs of Police, and the Major Cities Chiefs Association (MCC) have asked the federal government to stop putting civil warrants into a national criminal database and instead charge the suspects criminally. Unfortunately, the federal government has not done so.
This simple change in policy would allow local police officers to use their clear criminal enforcement authority to arrest and detain these persons. Until recently, the federal government had not taken the steps necessary that would allow local police officers to exercise their criminal enforcement authority to arrest persons who have been ordered deported or considered deportable.
U.S. Attorney in Houston to Charge Deportable Persons with Criminal Violation
The Houston Police Department has been engaged in continuing and ongoing discussions with local representatives of the U.S. Department of Justice and U.S. Immigration and Customs Enforcement (ICE) for the last year to increase and strengthen cooperation between our respective agencies on enforcement of criminal matters of mutual concern. These discussions have involved Ed Gallagher, deputy criminal chief in the U.S. Attorney’s Office for the Southern District of Texas, and Robert P. Rutt, special agent in charge of Immigration and Customs Enforcement in Houston. As a result of these discussions, we believe we have developed a workable framework through which we will be able to help the federal government with the individuals who are subject to warrants and detainers noted in the NCIC.
Although the warrants and detainers in question are civil, criminal charges and sanctions against them are authorized under Sections 1253 and 1326 of Title 8 of the U.S. Code. The U.S. attorney for the Southern District of Texas has agreed to consider for prosecution any such case that is presented to him and to prosecute all prosecutable cases against previously deported aggravated felons that are presented.
This sufficiently links these individuals to a crime and to a potential criminal proceeding that local law enforcement agencies can legally hold these individuals until the federal authorities take custody of them. Houston ICE officials, in turn, have agreed to take custody of these individuals within 24 hours, based on the outstanding administrative or civil warrant or detainer.
Based on this agreement with U.S. Attorney Donald J. DeGabrielle and Special Agent Rutt, Houston police officers are now authorized to arrest and detain persons who are noted on the NCIC system to have an administrative warrant of removal or a deportable felon detainer or both.
This agreement is believed to make Houston the first major metropolitan region in the United States whose U.S. attorney’s office on a consistent basis will seek criminal charges and sanctions against persons who are subject to deportation.
Criminal Charges for Firearms Possession, Illegal Reentry
It should also be noted that undocumented aliens are prohibited from possessing firearms and can be charged federally with a felony pursuant to 18 U.S.C. 922(g)(5). A conviction for this felony carries a sentence of up to 10 years’ imprisonment and is considered an aggravated felony under the Immigration and Nationality Act. Upon release from prison, these aliens are subject to administrative removal and are not entitled to a hearing before an immigration judge.
Should the alien return to the United States illegally, he could be prosecuted for illegal reentry after deportation and be subject to a sentence of up to 20 years. The Harris County District Attorney’s Office in Texas has agreed to refer these prosecutions to the U.S. Attorney’s Office for the Southern District of Texas for prosecution.
How Houston Police Officers Will Comply with the Agreement
Officers will confirm the identity of the person who is subject to the warrant or detainer by calling, or by having the dispatcher call, the appropriate federal agency at telephone numbers provided in the NCIC. Officers can call the ICE Law Enforcement Support Center (LESC) at a toll-free number, and ICE will advise them of the NCIC information hit. Once officers have confirmed the identity of the person and confirmed the warrant or detainer, officers will ask for ICE acceptance of a criminal hold on the suspect. In Houston, LESC will fax an immigration detainer to the city’s jail division, where, with authority from ICE officials, Houston officials will stamp the detainer Criminal.
The arrested suspect will be transported to the city’s jail and held for up to 24 hours. ICE agents take custody of suspect within 12 hours in most cases. Once in custody, ICE will make a criminal case presentation to the U.S. attorney for anyone whose immigration detainers were placed based on an NCIC hit confirmation. If the suspect has not been picked up by ICE within 24 hours, the suspect will either be released or processed on any other local charges that may have been filed simultaneously with the arrest.
Does the Houston Agreement Solve the Problem?
The Houston solution—that is, the Houston Police Department’s agreement with the U.S. attorney’s office and ICE—solves the major obstacles local police have encountered when helping the federal government locate, apprehend, charge, or remove previously deported felons who reenter the country and suspects who illegally enter and are given a court date but do not appear for their hearings.
Houston officials believe this approach could be a model for nonfederal police departments in other jurisdictions that seek to provide this kind of assistance without taking over the federal government’s responsibility for enforcing the immigration laws.
Local police departments should continue to arrest anyone who violates the criminal laws of their jurisdictions, regardless of the immigration status of the perpetrator. Those immigrants, documented or undocumented, who commit criminal acts will find no safe harbor or sanctuary from their criminal violations of the law in any city but will instead face the full force of criminal prosecution.