Cite as "AILA InfoNet Doc. No. 02040937 (posted Apr. 9, 2002)"
“Posted on AILA InfoNet, Doc. No. 02040937
(April 09, 2002
STATEMENT OF THE AMERICAN
IMMIGRATION LAWYERS ASSOCIATION
DOJ Opinion on State and Local
Police Enforcing Immigration Laws Bodes Ill for Law Enforcement and Communities
The Department of Justice appears poised to issue a legal opinion that states
and localities, as sovereign entities have the inherent authority to enforce
federal immigration laws. Such an
opinion conflicts with long-standing legal tradition that immigration is a
federal matter. It also will encourage state and local law enforcement, with
little or no training and stretched resources, to attempt to enforce laws about
which they have little understanding. States
and localities are ill served when their police attempt to enforce immigration
Federal immigration law is a complicated body of law that requires
extensive training and expertise to properly enforce.
There are many different ways for people to be lawfully present in the
United States, and the INS issues many different types of documents that entitle
someone to be in the United States legally.
Local law enforcement officials do not have the training and expertise
that is required to determine who is allowed to be in the United States and who
Community-based policing is
one of the most powerful law enforcement tools available. By developing strong ties with local communities, police
departments are able to obtain valuable information that helps them fight crime.
The development of community-based policing has been widely recognized as
an effective tool for keeping kids off drugs, combating gang violence, and
reducing crime rates in neighborhoods around the country.
Immigration enforcement by local police undermines community-policing
efforts. Immigrants who live
in tightly-knit communities often have information about the people around them
that police want. A local
police department that begins to enforce immigration laws will lose the trust of
the community it serves and protects. In communities where people are afraid to
talk to local police, more crimes go unreported, fewer witnesses come forth, and
people are less likely to report suspicious activity. Many immigrants come from
countries where people are afraid of the police, and police nationwide have
spent years building trust that will be destroyed by asking local police to do
the job of a federal agency.
Communities around the country struggle every year to provide enough
money and resources to meet their law enforcement needs.
In many communities, response times to 911 calls are dangerously slow and
police are no longer able to even investigate certain crimes.
Law enforcement officials in these communities need to spend more time
enforcing laws that only they can enforce, and need more resources to protect
the neighborhoods in which they live and work.
Cooperation agreements with the federal government have never involved
federal dollars, and asking these local agencies to begin enforcing federal
immigration law is a disservice to the communities they serve.
In 1997, local authorities in Chandler, Arizona conducted a
series of roundups to help Border Patrol agents find violators of federal
immigration laws. Widespread
complaints by local residents, including U.S. citizens
and at least one local elected official who were stopped during the operations,
led to an investigation by the Arizona Attorney General. The official report on
the investigation concluded that police stopped Hispanics without probable cause, bullied
women and children suspected of being illegal immigrants and made late-night
entries into homes of suspected illegal immigrants, among other violations.
In 1999, the Chandler City Council unanimously approved a $400,000
settlement of a lawsuit stemming from police roles in the roundup.
Mayors from cities across the country, including New York,
Los Angeles, San Francisco, and Chicago, have opposed local police becoming
immigration agents for the reasons articulated above: state and local police do
not understand immigration law and would thus do a bad job of enforcing laws
that are not-well understood, important community relationships that are
essential to fighting crime would be damaged, state and local resources would be
strained and drained, and states and localities would have to deal with the many
negative consequences that would result from poorly conceived attempts to
enforce federal immigration laws.
The Department of Justice reportedly cites
as justification for this legal opinion a 1984 Tenth Circuit case, United
States vs. Salinas-Calderon. However,
Salinas-Calderon doesn't support a state law enforcement officer's power
to enforce immigration laws, particularly where the immigration laws are not criminal in nature (and most immigration laws are NOT criminal in
nature). Rather, Salinas-Calderon
deals with the narrow, criminal issue of whether a state trooper had probable
cause under the 4th Amendment make an arrest after having lawfully stopped and
questioned a person (for possible criminal violations).
The case does not address whether state law enforcement officials may
detain and interrogate individuals in an effort to enforce federal law.
The state trooper in this particular case did not set out to enforce
federal immigration law, and in fact didn't even suspect an immigration
violation until after he stopped the car (he originally stopped the car because
he believed that "the driver of the vehicle might be under the influence of
alcohol or perhaps just drowsy”).