After the terrorist attacks on 11th September 2001, considerable attention has been given to immigration laws. Some experts think that the federal government is not very well equipped in enforcing immigration laws and that the local and state law enforcement agencies should be involved in this regard. In this context, several proposals were initiated in Congress in enhancing the role played by local and state for the enforcing of immigration laws. But many persist in questioning the validity of the local and state enforcement machinery especially in the context of these agencies having very limited knowledge and experience in such exercises. Local and state authorities are accountable for the maintenance of law and order and the prosecution of criminal activities. However, they may be required to play a larger role in enforcing federal laws as and when the need may arise. Immigration laws have provisions for punishments for criminal activities such as smuggling as also for civil violations such as illegal residency which leads to deportation through the legal system. Conventionally the local and state authorities have been primarily engaged in enforcing the criminal provisions under the law while enforcing civil provisions has always been believed to be a federal duty with state authorities being required to play a supporting role. This paper will examine the issue of whether state and local peace officers should engage in enforcing the federal immigration laws. The effects of the involvement of the state and local officers in enforcing immigration laws will be also examined as they relate to the immigrant communities. An analysis will be made of the impact that the local enforcement officers have on the public due to their lack of willingness to enforce immigration laws.
There are currently limited options available for enforcement by the state regarding the civil and criminal provisions relating to immigration laws. There has been the introduction of some legislative proposals in this regard but they are more like expanding the role of the local and state enforcement authorities in terms of the civil aspects of the immigration laws. If the local and state agencies are required to enforce the civil immigration laws, they may find the missions difficult given their unfamiliarity with the rules. This issue has triggered several debates regarding the legal sanctity with which the local and state authorities can enforce the immigration laws, more specifically the enforcement of civil procedures. Hence it becomes essential to examine the role of local and state agencies in detaining, arresting, investigating, and enforcing the law against those who breach immigration laws.
There has been a lot of controversy about the implementation of immigration regulations within the country. Customarily, the debates in this regard have focused on the concern about the increasing number of lawbreakers and illegal aliens who considerably reduce the prevailing wages, as against the belief that labor from foreign countries is beneficial for the country’s economy in promoting harmonious relations with such countries. However, after the attack of 11th September 2001, there has been immense concern about the sufficiency of measures to enforce immigration laws, more specifically regarding the resourcefulness of the federal government. The former Immigration and Naturalization Service (INS) was merged with the Bureau of Immigration and Customs Enforcement (ICE) which enabled the availability of a larger number of immigration agents to enforce the immigration laws (Cassandra Q. Butts, 2006).
Despite the increase in the number of enforcement officers, it is still believed that more agents are needed to effectively curb the malpractices. Although there has been a consolidation of the force, enforcement officers have been entrusted with additional jobs such as curbing the flows of illicit drugs, discouraging money laundering, and enforcement of immigration laws within the interior of the country. Enforcing the immigration laws within the country also requires that enforcement agents investigate violators of the Immigration and Nationality Act (INA) and other connected laws. Before the terrorist attacks on 11th September 2001, the enforcement of immigration law was related to the investigation of crimes committed by immigrants, any activities considered to be deceptive, trafficking of humans, and violations at the work sites. Such activities mainly targeted aliens who work illegally and were knowingly hired by employers. However, after the terrorist attack of 11th September, ICE has begun to focus on putting to an end all the activities that have any detrimental effect on national security.
Presently there is a specific provision in the federal law that provides for local and state law enforcement authorities to help and support federal agents in the enforcement of immigration laws under particular situations. These provisions were included in the official framework of the law in 1996 under the Antiterrorism and Effective Death Penalty Act and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. Additionally, the Department of Homeland Security (DHS) has several arrangements with local and state law enforcement authorities to help in the investigations, arrests, and apprehension of nationals of other countries who violate the immigration laws. The Alien Criminal Apprehension Program (ACAP) empowers local and state enforcement officials to identify criminal activities of immigrants and such information is passed on to the federal authorities who after ascertaining the status of such immigrants, take them into custody. The Absconder Apprehension Initiative authorizes states to arrest and deport absconders who have been found by immigration courts as being criminal aliens. In most jurisdictions, local and state enforcement agents can question the immigration status of foreigners if they have been included in any criminal investigation or connected issues.
Although a considerable amount of debating has been done regarding the authority of local and state enforcement officials, they are expected to enquire into the antecedents of immigrants while performing their normal duties in enforcing local and state laws. The prevailing practices permit them to indirectly involve themselves in such activities which are related to their authority. For instance, when an immigrant is detained for questioning in the matter of local or state violation, they are expected to inform the federal agents at the Law Enforcement Support Center (LESC) so that necessary opportunity is provided in ascertaining his identity. However, the state machinery does not actively engage in such practices since it is considered to be illegal in detaining the suspect over and above the need of local law enforcement. There have been instances when a lot of controversies have arisen when state and local authorities detain immigrants for traffic and similar offenses on the pretext of verifying their antecedents with immigration establishments. However such instances have often led to embarrassing moments for the state when decrees have been passed by courts in limiting the authority of states in the enforcing of immigration laws. States also feel that if they overstretch their efforts in the enforcement of immigration laws, community cooperation may be adversely affected in curtailing criminal activities (CRS, 2009).
The sole authority to lay down rules and regulations by which immigrants can be allowed to enter the country or be asked to leave, rests with the federal government, specifically with Congress. Setting the rules in this regard is arguably a federal power in maintaining uniformity and in the exercise of its sovereign authority, which implies that it is not expected of states to enforce them. The federal government cannot oblige the state to enforce the laws of federal immigration or to direct it to move in its implementation in a particular manner. From the perspective of states, the exclusive authority of the federal government does not imply that they cannot move in maintaining law and order by taking action against aliens. Criminal provisions of the law in this regard are within the purview of the local and state governments. Although the view in this regard is gradually changing it is still widely believed that the states are required to assist in the enforcement of law about criminal acts but the enforcement of civil immigration law is firmly federal accountability. The distinctions placed between criminal and civil violation by the INA is suggestive of a differentiated role for localities and states. The law does not empower the local and state governments to arrest an immigrant pre-empting deportation due to being illegally present, simply because it is viewed as a civil violation. They can however arrest somebody who has entered the country by adopting illegal means (Michael Birzer, 2006).
However, the local and state law enforcement authorities can be directed to enforce immigration laws where Congress feels it to be necessary. Congress can delegate powers to states regarding the arrest and transport of illegal immigrants. But a major issue in this regard arises when allegations are made about violation of human and civil rights. All people are vested with some civil rights as per the Fifth Amendment which provides that no individual will be divested of life, liberties, and properties without undergoing the due process of the prevalent laws. A state cannot deny within its jurisdiction the provision of equal rights for the protection of each individual (Ruben Navarrette Jr, 2007). The courts have also time and again prohibited states from unreasonable instances of search and seizure. Unauthorized immigrants usually belong to minority groups and local and state authorities face a lot of difficulties in avoiding discriminatory practices based on ethnicity. Hence, if state and the local police are to engage in the enforcement of immigration laws they have to be exhaustively trained in this regard since there is a significant risk of suspects becoming victims of racial profiling. The law enforcement agencies that enforce immigration laws mustn’t alienate themselves from the immigrant communities. They must avoid using such practices to improve their effectiveness and rapport with the communities.
Law enforcement officers are not in one opinion regarding the role of the police in enforcing immigration laws. Most police chiefs feel that police officer should be dissuaded from enforcing immigration laws. They are more concerned about not becoming agents of the federal government primarily due to the considerable dependency they have on all citizens including unlawful immigrants for solving crimes. If such illegal immigrants are targeted by the police they will refrain from coming forward in providing leads about criminal activities and would also not testify in courts. The public too is not in favor of the police questioning about status of immigrants. Hospitals in several cities have declared that they would not make the status of immigrants public (John Pomfret et al, 2006).
- Butts Cassandra Q, Immigration Enforcement: A Federal Matter, 2006, Center for American Progress
- CRS, Should state or local governments enforce immigration laws? Web.
- Michael Birzer, Cliff Roberson, Policing Today and Tomorrow, 2006, Prentice Hall
- Pomfret John and Sonya Geis, One Sheriff Sees Immigration Answer as Simple, 2006, The Washington Post
- Ruben Navarrette Jr, Commentary: Local police shouldn’t enforce immigration law, 2007.