Policies to Permit Police to Enforce Immigration Law Could Undermine Public Safety, Violate Civil Rights

IMMIGRATION LAW & POLICY

Arrest and Detention

POLICIES TO PERMIT POLICE TO ENFORCE IMMIGRATION LAW COULD UNDERMINE PUBLIC SAFETY, VIOLATE CIVIL RIGHTS
Immigrants' Rights Update, Vol. 16, No. 7, November 22, 2002

Enforcement of civil immigration law has historically been a federal obligation considered off-limits to state and local law enforcement. But since Sept. 11, 2001, Attorney General John Ashcroft and other Bush administration officials have issued a series of sometimes contradictory announcements that reverse this policy and blur the critical difference between noncitizens and terrorists. The federal government has also entered into the first formal agreement with a state to permit the state's enforcement of immigration laws under section 287 of the Immigration and Nationality Act. And it has issued regulations allowing state and local police agencies to enforce immigration laws when there is an emergency due to a mass influx of noncitizens.

The National Crime Information Center. The government appears to be using the National Crime Information Center (NCIC) as the vehicle for state and local authorities to enforce immigration laws. According to the Dept. of Justice, the NCIC is the nation's principal automated information-sharing tool for law enforcement and provides on-the-street information to over 650,000 local, state, and federal officials. With the exception of domestic violence civil orders, the information stored in the NCIC databases has principally involved criminal arrests and convictions.

The historic policy that treats the enforcement of immigration laws as strictly a federal responsibility is reflected in a 1996 DOJ Office of Legal Counsel opinion, which held that state and local police lack recognized legal authority to enforce the civil provisions of immigration law. The first step towards changing this view came in Dec. 2001 when Immigration and Naturalization Service Commissioner James Ziglar announced that the INS had begun sending the names of more than 300,000 noncitizens to the NCIC for inclusion in its database. These were individuals who had remained in the U.S. despite having a deportation or removal order issued against them. This new INS program was later named the Absconder Apprehension Initiative. In Mar. 2002 Commissioner Ziglar announced that under the program, the names of all noncitizens who violated criminal law by failing to depart as ordered would be entered in the NCIC database. Furthermore, state and local police were authorized to detain these individuals—non–U.S. citizens who committed a federal crime. In Apr. 2002 the AG announced that the names, photos, and other identifying data of all known or suspected terrorists would also be entered into the NCIC database.

In June 2002 the AG announced the National Security Entrance and Exit Registration System (NSEERS) program, purportedly to track nonimmigrants deemed to be national security risks. Nonimmigrants from Iraq, Iran, Libya, and Sudan (Syria was later added) would be fingerprinted and photographed as they entered the country and required to report to the INS both 30 days and one year later. These individuals would also be permitted to leave the country only from certain specified places. Identifying information about those who violated these requirements would be entered into the NCIC database. According to the AG, "[W]hen federal, state and local law enforcement officers encounter an alien of national security concern who has been listed on the NCIC for violating immigration law, federal law permits them to arrest that person and transfer him to the custody of the INS. The Justice Dept.'s Office of Legal Counsel has concluded that this narrow, limited mission that we are asking state and local police to undertake voluntarily—arresting aliens who have violated criminal provisions of the Immigration and Nationality Act or civil provisions that render an alien deportable, and who are listed on the NCIC—is within the inherent authority of states."

But that legal opinion has never been made public. The Justice Dept. refused to disclose it when immigrants' and civil rights groups sought its release under a Freedom of Information Act (FOIA) request, whose refusal is now on appeal. In late June 2002 White House counsel Alberto Gonzalez wrote to the Migration Policy Institute (which had inquired about the new policy) that only information about high risk aliens who fit a terrorist profile would be placed in the NCIC. Gonzalez's view seems to be at odds with the policy enunciations of INS Commissioner Ziglar and the AG.

In late Sept. 2002, a confidential memo issued by the attorney general on Sept. 5 was published in the immigration law journal Interpreter Releases. This memo gives immigration inspectors broad authority to subject a wide variety of nonimmigrants entering the U.S. to registration requirements. On Nov. 5, 2002, the DOJ expanded the NSEERS program to include males 16 years of age and older from the countries listed above who entered before the earlier registration requirement went into effect. It is completely unclear which types of information regarding immigration matters are actually entered in the NCIC databases. The National Immigration Law Center filed a FOIA request with the Federal Bureau of Investigation (FBI) in order to find out. On Oct. 28, 2002, the FBI advised NILC that the attorney general had declared the NCIC to be exempt from the Privacy Act, thereby precluding NILC's FOIA request. In a subsequent telephone call, the FBI recanted that across-the-board position but has not yet provided any of the information requested by NILC.

Agreement between Florida and the DOJ. The first formal agreement between the federal government and a state to permit the state's enforcement of immigration laws under section 287 of the INA came in a Memorandum of Understanding (MOU) signed by Florida and the U.S. in mid-2002. This is a pilot project authorizing 35 state and local enforcement officers working as part of Florida's Regional Domestic Security Task Force to perform certain immigration enforcement functions, including arresting, detaining and questioning noncitizens. The MOU states that its focus is on counter-terrorism and domestic security goals. The Florida Dept. of Law Enforcement reported in a press release that training of the 35 officers was completed in Aug. 2002. NILC has filed a request under Florida public records procedures for information about the training received by the officers, the program's operations, and any procedures for filing complaints against actions carried out under the MOU, but has not yet received a response.

Local Law Enforcement and Mass Influxes. On July 24, 2002, the DOJ issued regulations under section 103(a)(8) of the INA deputizing state and local police to enforce immigration laws if the attorney general declares an emergency due to a mass influx of aliens.

Effects of State and Local Law Enforcement of Immigration Laws. The government may be entering information about noncitizens with final removal orders in a database for criminal and terrorism-related information. This action paints with a broad brush, grouping noncitizens with criminals and terrorists, and diverts attention from the real threats to public safety and national security. The NCIC database would have entered into it information from the INS, which is notoriously unreliable and inefficient. For example, when the attorney general announced rigorous enforcement of the requirement that noncitizens notify the INS of a change of address within ten days of the change, the INS was unable to process in a timely fashion the thousands of notices that were filed. Many people who appear to have a final order of deportation may not have been notified of hearings or may have adjusted their status in other ways.

The task that the AG entrusted to state and local authorities is by no means a "narrow, limited mission," since it requires untrained authorities to determine violations of complex immigration law. No oversight or audit mechanism exists to monitor or limit the reporting of information to the NCIC database or the NSEERS program. Mechanisms to ensure that information sent to the NCIC is correct and that incorrect information can be removed also do not exist. The federal government's contradictory statements about which kinds of information will be entered and the situations in which state and local authorities can enforce immigration laws will likely bring about uneven and error-ridden enforcement. The system also encourages racial and ethnic profiling and discrimination, since only those who appear foreign will be subject to local enforcement of immigration laws.

The ways in which immigration issues and imperatives of local law enforcement can collide, and the tenuous connection of recent policies to domestic security are made clear in two recent events. In the recent spate of sniper killings in Washington, D.C., two undocumented immigrants, one from Mexico and the other from Guatemala, were arrested and then turned over to the INS. They had the misfortune to stop at a pay phone that had been placed under surveillance because of its possible connection to the shootings. Those arrests generated fear in the immigrant community. In response, INS Commissioner Ziglar announced that the INS would not inquire about the immigration status of noncitizens who provided information relevant to the sniper investigation. In fact, Ziglar stated, the agency would look favorably on giving a special visa to anyone who materially helped the investigation. Likewise, on Oct. 22, 2002, the Montgomery County Police Dept. issued a plea to the Latino community to come forward with information relevant to the shootings, assuring that law enforcement officials would not ask about immigration status.

In Oct. 2002 the Florida Dept. of Law Enforcement Region 6 Domestic Security Task Force, the INS, the Collier County Sheriff's Office, and other state law enforcement agencies carried out a driver's license sting operation and arrested 19 noncitizens (7 from Mexico, 5 from Guatemala, and 7 from Turkey) and 1 U.S. citizen for allegedly trying to buy Florida driver's licenses. Although the arrests were portrayed as a major domestic security operation, none of these countries is in the list of nations subject to the NSEERS. Moreover, it is not clear whether this operation was carried out by the state and local officers trained under the MOU.

The National Immigration Forum has accumulated dozens of condemnations by high ranking officials in police departments and associations of the effort to have state and local police enforce immigration laws. (These can be viewed on the Forum's Web site at www.immigrationforum.org/currentissues/articles/100102_quotes.htm.) These officials recognize that the ability of police to prevent and solve crimes is compromised if noncitizens fear police due to their enforcement of immigration laws. The Forum is also gathering stories of local police enforcement and the impact on immigrant communities. These may be sent to ltramonte@immigrationforum.org.

The federal government has yet to indicate how it will resolve the inherent conflict between, on the one hand, enhancing public safety so that everyone—citizen and noncitizen alike—feels protected by law enforcement and, on the other hand, assuaging the immigrant community's fear that state and local law officers will enforce immigration laws against them.