Justice Dept. Contemplates Extending Immigration Enforcement Responsibilities to State and Local Agencies

IMMIGRATION LAW & POLICY

Arrest and Detention

JUSTICE DEPT. CONTEMPLATES EXTENDING IMMIGRATION ENFORCEMENT RESPONSIBILITIES TO STATE AND LOCAL AGENCIES
Immigrants' Rights Update, Vol. 16, No. 2, April 12, 2002

According to press reports, the U.S. Dept. of Justice may be planning to take the unprecedented position that state and local law enforcement officers have authority to enforce civil federal immigration laws. In an Apr. 3, 2002, article, the San Diego Union-Tribune reported that the DOJ was about to release a legal opinion concluding that state and local officers have "inherent authority" to enforce immigration laws. This report sparked substantial major critical reaction, not only from immigrant communities but also from local law enforcement officials concerned with the impact such a policy would have on their efforts to build trust and work with immigrant communities in order to improve the reporting of crimes. In the wake of this reaction, the DOJ delayed release of the opinion and at this issue's press time has not acted on it.

The proposed new DOJ position apparently is intended to circumvent section 287(g) of the Immigration and Nationality Act, which Congress enacted as part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). Section 287(g) allows the attorney general to enter written agreements with states or local jurisdictions under which state and local officers can be deputized to serve under the direction and supervision of the attorney general for immigration enforcement purposes. However, the statute requires that such officers receive "adequate training regarding the enforcement of relevant Federal immigration laws," and for liability purposes they are to be considered "acting under color of Federal authority." Prior to this enactment, courts generally held that state and local officers could not make arrests based on civil immigration provisions, although depending on state law restrictions they might have authority to make arrests for federal criminal immigration violations and to cooperate with or provide other assistance to INS enforcement efforts. See generally, Hawley, D.L., "The Powers of Local Law Enforcement to Enforce Immigration Laws," Immigration Briefings , June 1999.

Since the enactment of this provision in 1996, no state or local government has entered into such an agreement. In 1998, the police chief of Salt Lake City, Utah, proposed entering such an agreement, but the city council ultimately rejected the proposal in the face of strong criticism. Subsequently, until this year, no state or local jurisdiction has seriously proposed such a step. In the wake of the attacks of Sept. 11, 2001, however, some states have begun considering entering such agreements, and in March 2002 it was reported that Florida is negotiating an agreement with DOJ to deputize 35 state troopers, sheriff's deputies, and city police officers to make immigration arrests. However, to date no agreement has been finalized.

The proposed new DOJ position apparently would allow state and local law enforcement officers to make immigration arrests without having agreements ensuring their training and federal supervision. Such a position would constitute a stark reversal of the agency's position in recent years. The concerns being raised by local law enforcement officers in reaction to press reports of the new position center on their fears that it will undo the progress they have made in developing trust in new immigrant communities to come forward and report crimes to the police. See "Police Want No Part in Enforcing Immigration Law," Los Angeles Times, Apr. 5, 2002.