By Craig E. Ferrell Jr., Deputy Director and Administration General Counsel, Chief's Command Legal Services, Houston Police Department
After the horrendous terror attacks against the United States on September 11, 2001, U.S. federal agencies scrambled to identify and find the thousands of absconders and other persons who had overstayed visas or remained in the United States without legal sanction. The federal agencies attempted to enlist the help of local law enforcement by placing civil absconder warrants in the NCIC system that had been used previously only to notify law enforcement of criminal warrants. The move sparked renewed debate about what role state and local police should play in enforcing immigration laws has grown. In a Chief's Counsel column for the October 2002 issue of the Police Chief, I addressed the federal government's so-called absconder initiative and outlined the reasons why the enforcement of immigration laws by local police agencies would undermine their efforts to fight crime in their communities.
In the January 2004 President's Message, IACP President Joseph M. Polisar called upon the IACP Division of State Associations of Chiefs of Police and the Division of State and Provincial Police to work with their constituents in developing IACP's response.1 President Polisar made clear that a consensus on this issue would be difficult.
Argument: Local Police Should Enforce Immigration Laws
Those who want state and local police to play an active role in immigration enforcement recognize the limits on the federal government's ability to address the immigration enforcement. The federal government has struggled to secure the borders, deter illegal immigration, or track down those who overstay temporary visas. With an estimated 7-10 million undocumented immigrants in the country and only a few thousand federal immigration officers assigned to police the interior of the country, the federal government appears ill equipped to tackle illegal immigration. Some see it as only logical that the hundreds of thousands of local law enforcement officers be recruited to address the problem.
Many local law enforcement executives can support this position because persons who are in the country illegally have violated the law and should be treated in the same fashion as other criminals.
Argument: Local Police Shouldn't Enforcement Immigration Laws
There are a number of compelling reasons why local law enforcement executives should resist the temptation to make state and local police agencies the frontline enforcers of federal immigration laws. These reasons take into the account the primary responsibility of local law enforcement, which is to fight crime at the local level. They also reflect the reality that immigrants both legal and undocumented have become a large part of our communities.
State and local police should enforce criminal law because it is what police do best and what the local communities expect of the officers first and foremost. The taxpayers in their respective communities expect the local police department to use the community's resources to address burglaries, robberies, assaults, rapes, murders, and even traffic violations occurring in the communities rather than spend those resources addressing the massive national problem of illegal immigration. The local citizen is concerned about his or her immediate safety and quality of life.
Immigration laws differ from the criminal laws local police officers deal with most regularly in that immigration laws contain both civil and criminal aspects. An illegal entrant into the United States has committed a federal felony violation, and state and local law enforcement officers are legally empowered to arrest and detain the individual. But legally admitted aliens overstaying their visas have committed a civil violation, and state and local police have no authority to arrest and detain them. Some observers fear that immigration enforcement by state and local police could lead the government to burden state and local agencies with enforcement of still other federal civil violations.
Applicable Court Decisions
Fourth Amendment: The U.S. Supreme Court has said in U.S. v. Brignoni-Ponce that the protections of the Fourth Amendment still apply to situations where police detain an individual for investigation of immigration violations.2 The Court stated,
Although we may assume for purposes of this case that the broad congressional power over immigration [citation omitted] authorizes Congress to admit aliens on condition that they will submit to reasonable questioning about their right to be and remain in the country, this power cannot diminish the Fourth Amendment rights of citizens who may be mistaken for aliens. For the same reasons that the Fourth Amendment forbids stopping vehicles at random to inquire if they are carrying aliens who are illegally in the country, it also forbids stopping or detaining persons for questions about their citizenship on less than reasonable suspicion that they may be aliens.3
In other words, the Fourth Amendment prohibits police officers from stopping or detaining a person on less than reasonable suspicion even when the suspected violation relates to illegal immigration.
Immigration Regulation Is a Federal Power: State and local police are not required to enforce federal immigration laws. The federal government and its agencies are the authorities responsible for enforcement of immigration law. "The power to regulate immigration is unquestionably a federal power."4 With such power, the federal government has enacted laws, such as the Immigration and Naturalization Act (INA), that regulate a person's entry into the United States, his or her ability to remain in the country, and numerous other aspects of immigration. But these federal laws do not contain any provisions that "require state law enforcement agencies to assist in enforcing the INA." This was the conclusion of a memorandum of opinion by the U.S. attorney for the Southern District of California dated February 5, 1996. Even where Congress has the authority under the Constitution to pass laws requiring or prohibiting certain acts, it lacks the power directly to compel the state to require or prohibit those acts.5 Congress "may not directly force states to assume enforcement of administrative responsibilities constitutionally vested in the federal government."6 Therefore, federal law does not require state agencies to assist the federal government in enforcement of immigration laws.
Immigration Law Changing
Federal immigration laws are complicated, and they are not static but are subject to change. According to Westlaw, a computer-assisted legal research service, approximately 96 proposed changes to the immigration code are still pending in Congress for 2003.
Federal laws and regulations concerning immigration include both criminal and civil aspects. This mixing of civil with criminal violations is a major issue for local law enforcement. Under federal immigration laws, a person who enters the country illegally can be charged and prosecuted by the U.S. attorney for a misdemeanor in the first illegal entry and a felony for subsequent entries under Article 8, Sections 1325 or1326 of the United States Code. But most persons who are detained for illegal entry do not face criminal sanctions but instead go through a civil deportation process.7 This civil process allows the illegal immigrant to assert that he or she should be admitted to the country.8 The civil deportation process even allows them to avoid formal deportation by agreeing to leave voluntarily under certain circumstances.9 This civil deportation process highlights the fact that the primary method of addressing illegal immigration is to return the illegal immigrant to their country rather than by criminal conviction for illegal entry.
Division of Responsibilities
Currently, state and local police do not have the training or expertise to enforce immigration laws, and in this time of shrinking local budgets many executives feel they do not have the resources to tackle this additional federal issue. There are federal agencies specifically charged with the enforcement and application of the complex immigration laws and regulations. These agents do not handle street disorder, robberies, murders, traffic problems, and a host of other issues facing state and local officers. These federal agencies are designed, and their agents are specifically trained, to enforce these immigration laws.
Addressing immigration violations such as illegal entry or remaining in the country without legal sanction would require specialized knowledge of the suspect's status and visa history and the complex civil and criminal aspects of the federal immigration law and their administration. This is different from identifying someone suspected of the type of criminal behavior that local officers are trained to detect. Whether or not a person is in fact remaining in the country in violation of federal civil regulations or criminal provisions is a determination best left to these agencies and the courts designed specifically to apply these laws and make such determinations after appropriate hearings and procedures. The local patrol officer is not in the best position to make these complex legal determinations.
When local police have waded into immigration enforcement, it has often come with disastrous and expensive consequences. In 1994 the police in Katy, Texas, conducted raids in search of illegal immigrants. More than 80 of those persons temporarily detained were Hispanics who were either U. S. citizens or foreign nationals who were in the country legally. The Katy Police Department faced a hailstorm of lawsuits and quickly realized civil immigration law enforcement is best left to the federal agencies who are better able to navigate and apply these complicated laws.
Limitations on Arrest without a Warrant
Local police agencies must also comply with the laws of their own states. These laws may limit their ability and authority to detain and arrest persons on suspicion of being in the country in violation of federal laws. These limitations may have little to do with immigration specifically but more general police powers, such as the power to arrest without a warrant. For example, Texas peace officers are limited in their ability to arrest persons without a warrant and can only do so under certain circumstances, such as when the alleged crime is a felony or the crime occurs in the officer's presence.10
A July 1977 opinion issued by the Texas attorney general interpreted these statutes to prohibit a Texas peace officer from arresting "an individual soley upon suspicion that he has previously entered the country illegally."11 The fact that state law may not authorize local police to detain persons for illegal immigration is recognized by the federal agencies as shown by the language of some of the civil detention notices currently being placed on the NCIC system. These notices to detain include the qualifiers "If permitted by state and local law" and "If permitted in your jurisdiction." Federal immigration officers do not face such restrictions, because the federal immigration laws allow them to detain and interrogate a person as to their right to be or remain in the United States without a warrant.12
Chilling Effects on Immigrant Cooperation
Immigration enforcement by state and local police could have a chilling effect in immigrant communities and could limit cooperation with police by members of those communities. Local police agencies depend on the cooperation of immigrants, legal and illegal, in solving all sorts of crimes and in the maintenance of public order. Without assurances that they will not be subject to an immigration investigation and possible deportation, many immigrants with critical information would not come forward, even when heinous crimes are committed against them or their families. Because many families with undocumented family members also include legal immigrant members, this would drive a potential wedge between police and huge portions of the legal immigrant community as well.
This will be felt most immediately in situations of domestic violence. In Houston, for example, the police department has been addressing the difficult issues related to domestic abuse and the reluctance of some victims to contact the police. This barrier is heightened when the victim is an immigrant and rightly or wrongly perceives her tormentor to wield the power to control her ability to stay in the country. The word will get out quickly that contacting the local police can lead to deportation or being separated by a border from one's children. Should local police begin enforcing immigration laws, more women and children struggling with domestic violence will avoid police intervention and help.
Continue Local Cooperation with Federal Agencies
State and local police agencies should continue to focus on their primary responsibility to their jurisdictions while also continuing to cooperate with the federal government. If the immigration service wants local assistance in picking up a specific suspect who is the subject of a criminal warrant, the local police should and now do assist in such efforts. If there is a criminal warrant out for a suspect local police come across in the course of normal law enforcement duties, the local officers should and now do detain that suspect for their federal colleagues. If the federal agencies have decided to deport someone and that person fails to leave, the federal government should charge that person with a crime and issue a criminal warrant that local agencies can easily and gladly enforce.
Local law enforcement faces the same budgetary and resource constraints that face cities, states, and the federal government in the current economic climate. If the federal government wants to increase the manpower and resources of the federal immigration services, that is another solution to the illegal immigration problem. But adding the federal responsibility of enforcing immigration laws to the job duties of local police officers would be imprudent and hinder their crime fighting at the local level. The federal government should address the real threats the nation faces and the issue of illegal immigration without making the job of state and local police more difficult.
1 Joseph M. Polisar, "President's Message: State and Local Law Enforcement's Role in Immigration Enforcement," The Police Chief 71 (January 2004): 8.
2 U.S. v. Brignoni-Ponce, 422 U.S. 873, 844(1975).
4 DeCannas v. Bica, 424 U.S. 351, 96 S. Ct. 933 (1976).
5 City of New York v. The United States of America, 179 F.3d 29, 2nd Cir. N.Y. (1999).
6 Id. at 34.
7 8 U.S.C. 1229.
8 8 U.S.C. 1229(a).
9 8 U.S.C. 1229(c).
10 Tex. Code Crim. Proc. 14.01, 14.03, 14.04.
11 A.G. Opinion No. H-1029.
12 8 U.S.C. 1357.