Alabama State Troopers Said To Receive "Clear Authority" In Civil Immigration Enforcement

IMMIGRATION LAW & POLICY

Arrest and Detention

ALABAMA STATE TROOPERS SAID TO RECEIVE "CLEAR AUTHORITY" IN CIVIL IMMIGRATION ENFORCEMENT
Immigrants' Rights Update, Vol. 17, No. 7, November 24, 2003

Alabama has become the second state in the U.S. with state or local police who have "clear authority," under a memorandum of understanding (MOU) signed by Gov. Bob Riley and U.S. Undersecretary of Border and Transportation Security Asa Hutchinson, to detain and arrest non-U.S. citizens suspected of being illegally in the U.S., and to transport them to federal custody. Twenty-one state troopers received that authority on Oct. 3, 2003, when they graduated from a five-week training program conducted by U.S. Immigration and Customs Enforcement (ICE) at the federal government's Center for Domestic Preparedness in Anniston, Alabama.

Last year, Florida became the first state to enter into such an MOU under a provision of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) that allows the federal government to enter into written agreements with any state or political subdivision to permit the state or locality's officers to perform immigration functions. (For more on the INS-Florida MOU, see "INS and Florida Enter MOU to Allow State Officers to Enforce Immigration Law," IMMIGRANTS' RIGHTS UPDATE, Sept. 10, 2002, p. 3.) The original Florida MOU was effective until September of this year, and Florida has renewed it.

The 21 Alabama state troopers received training in immigration law, civil rights, intercultural issues, public complaint procedures, and anti-racial profiling, according to Col. Mike Coppage, director of the Alabama Dept. of Public Safety. Coppage said that the troopers will engage in immigration law enforcement activity only when occasions to do so arise during the course of performing their normal duties as troopers. "[T]hey will not take part in 'sweep' searches for illegal aliens," he said.

Despite these assurances, leaders of Alabama's Latino community expressed deep concern that troopers are likely to abuse their new powers. "We are definitely afraid that people out there will be pulled over or stopped for driving while Latino," Isabel Rubio, executive director of the Hispanic Interest Coalition of Alabama, told the University of Alabama's student newspaper. In a letter to Jeff Sessions, U.S. senator from Alabama and one of the MOU's main boosters, Reinaldo Ramos Jr., a Presbyterian minister and head of the Hispanic Business Council, wrote, "Enabling state troopers to become enforcement agents opens the door for the violation of civil rights through the use of racial profiling." The letter to Sessions, which was signed by about a dozen mostly Latino groups, was sent to the senator before the MOU took effect and was quoted in the Alabama State Trooper Association's online newsletter.

That the MOU and the troopers' completion of the prescribed training endows them with "clear authority to arrest illegal aliens" is a claim expressed in an Oct. 3, 2003, news release from Sessions's office. Presumably, the inclusion of the term "clear" in that phrase is meant to imply that the senator believes state and local police already possess such authority, even without the benefit of an MOU. Whether they do or not is a question that the Bush administration appears to want to leave without a clear answer. Under a Feb. 5, 1996, legal opinion published by the U.S. Justice Dept.'s Office of Legal Counsel (OLC):

Subject to the provisions of state law, state and local police may constitutionally detain or arrest aliens for violating the criminal provisions of the Immigration and Naturalization Act [sic].

State and local police lack recognized legal authority to stop and detain an alien solely on suspicion of civil deportability, as opposed to a criminal violation of the immigration laws or other laws [emphasis added].

This clear statement of the federal position vis-à-vis the authority (or, rather, the lack thereof) of state and local police over civil immigration matters has been obscured by reports leaked from the Justice Dept. in Apr. 2002 that, under Attorney General John Ashcroft, the OLC had reversed the above opinion. To date, however, the Justice Dept. has refused to release its analysis to the public, despite the fact that the opinion/policy reversal was widely reported on when it was first leaked.

The issue of how much authority state and local law enforcement agencies have to enforce civil immigration law has been further confused by other policies that the Bush administration has instituted since the attacks of Sept. 11, 2001. For example, since late 2001 it has been the Justice Dept.'s policy to enter the names of persons who have outstanding deportation orders into the National Crime Information Center (NCIC) database. This database is accessible to state and local law enforcement officers so they can check, for example, to see if someone they have pulled over during a traffic stop is a criminal wanted in some other jurisdiction. However, many non-U.S. citizens whose names appear in the NCIC database either have never received a deportation hearing notice or have obtained some form of temporary relief from deportation. The inclusion of their names in this database of wanted criminals implies that the federal government expects local law enforcement officers who happen to stop them to detain them, despite the fact that they may actually be in legal status and not have committed any criminal offense.

The National Security Entry-Exit Registration System (NSEERS) also relies on entering the names of certain non-U.S. citizens into the NCIC database, with the expectation that if state or local law enforcement officers encounter these people during the course of their regular work, the officers will arrest them. Under NSEERS, persons from countries deemed by the Bush administration to be suspect because of ties to terrorist organizations must register-i.e., be fingerprinted, photographed, etc.-and reregister periodically with immigration authorities. The names of those who violate the terms of the registration program, including those who violate the terms of their visas, are entered into the NCIC database. In announcing the NSEERS in June 2002, Ashcroft said, "The Justice Department'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 the states."

That same month, White House General Counsel Alberto Gonzales, in a letter addressed to the Migration Policy Institute, wrote that "state and local police have inherent authority to arrest and detain persons who are in violation of immigration laws and whose names have been placed in the National Crime Information Center (NCIC)" (emphasis in the original). Rather than clarifying anything, Gonzales's letter created more confusion by implying that states' and localities' "inherent authority" over civil immigration matters extends only to those involving people whose names appear in the NCIC database, a position that contradicts the attorney general's apparent position that their inherent authority in this area is more expansive.

When these policies and statements and agreements to enter into MOUs are considered collectively, it is possible to conclude that, though the Bush administration would like to, in effect, deputize all state and local law enforcement agencies to help enforce civil immigration law, it may be reluctant to alienate local jurisdictions by insisting that they participate in such activity. If this is indeed the case, its reluctance could be a result of the stiff resistance many local jurisdictions-including many police departments-have expressed against suggestions by hardcore immigration restrictionists that they take on the role of immigration agents. Local agencies resist such suggestions, in most cases, on the ground that taking on such a role would undermine whatever trust they enjoy from the immigrant communities among which they work and thus make their regular law enforcement duties much harder to perform.

Rubio, the executive director of the Hispanic Interest Coalition of Alabama, articulated this concern from the standpoint of an advocate when she pointed out that many in Alabama's Latino immigrant community are already reluctant, due to having had bad experiences with law enforcement authorities in their native countries, to report crimes or call police when they need help. She expressed concern that this distrust is only likely to deepen as Alabama state troopers begin to detain and arrest people they suspect of being undocumented.

(For more detailed information and analysis regarding the issue of state and local police authority over civil immigration matters, see the National Immigration Forum's "Backgrounder: Immigration Law Enforcement by State and Local Police," at www.immigrationforum.org/currentissues/articles/ Backgrounder_SLPolice.pdf. Past IMMIGRANTS' RIGHTS UPDATE articles that have dealt with this issue include "Sweeping Legislation Introduced to Require Local Police to Enforce Immigration Law" (Sept. 4, 2003, p. 1, or www.nilc.org/immlawpolicy/arrestdet/ad070.htm), "Justice Department Order Exempts Crime Database from Accuracy Requirement" (June 3, 2003, p. 6, or www.nilc.org/immlawpolicy/arrestdet/ad066.htm), and "Policies to Permit Police to Enforce Immigration Law Could Undermine Public Safety, Violate Civil Rights" (Nov. 22, 2002, p. 4, or www.nilc.org/immlawpolicy/arrestdet/ad059.htm).