From Community Policing to Community Profiling: The Justice Department's Proposal to Have Local Police Enforce Immigration Laws
In April 2002, word circulated in the press that the Department of Justice was considering a legal opinion that would give state and local law enforcement agencies the legal authority to arrest and detain people for violations of federal immigration laws. This would mark the reversal of long-standing federal policy, in which immigration laws and criminal laws are enforced separately. The new policy might be viewed as a hastily-devised tactic to increase the federal government's resources for apprehending foreigners who the government wants removed from the country. For a variety of reasons, however, this tactic is likely to backfire. By early May 2002, with the announcement yet to be made by the Justice Department, police departments across the country have derided the idea as contrary to their hard work in building trust in immigrant communities. These police departments fear that if local police are viewed in immigrant communities as enforcers of immigration laws, immigrants will be deterred from reporting real crimes or coming forward as witnesses to crimes.
In addition to being an impediment to the enforcement of criminal laws, the new Justice Department legal opinion will likely lead to more lawsuits stemming from incidents of civil rights abuses against U.S. citizens and Legal Permanent Residents, as police untrained in immigration enforcement target people based on ethnicity, language, and accent. More broadly, a policy that is seen as an attack on immigrant communities may well have political consequences for local, state, or national officials who embrace this policy.
This backgrounder addresses the some of the practical and political consequences that will likely flow from a decision to allow local police to enforce immigration laws.
Experienced State and Local Police Balk at this Proposal
Since news of the Justice Department's policy switch was leaked in April, more than 25 police departments have come out against the policy. They know that questioning immigrants about their immigration status will create distrust of the police, and make the job of protecting public safety much more difficult.
The Community Policing Consortium, an association of national police organizations, notes that, "Without trust between police and citizens, effective policing is impossible." Once trust is established, police can count on the victims of crime to step forward and report the crime, and witnesses to step forward and offer information to solve the crime.
In immigrant communities, building the relationships that are the foundations of successful policing is particularly difficult. For one thing, many immigrants come from countries where they are afraid of police, who may be corrupt or even violent. Secondly, undocumented immigrants, or even legal immigrants who may live in mixed status households, fear being turned over to the immigration authorities to be deported or exposing their family members to this risk. Thirdly, immigration law is extremely complicated, always changing, and is the subject of frequent rumors in immigrant communities. Even legal immigrants worry that they could be deported for reasons they don't understand. Finally, even naturalized and natural-born citizens of certain ethnic backgrounds may tend to avoid the police because they fear being asked for "papers" or being mistaken for being in the country illegally. Successful efforts to gain the trust of immigrant communities often involve explicit statements from local authorities that the police will not report immigrants to the Immigration and Naturalization Service (INS).
Because police departments must work so hard to build trust with immigrant communities, many have shunned enforcement of federal immigration laws. The efforts made by police in the last decade to gain the trust of immigrant communities appear to have made a difference. As an example, a Justice Department report released on April 7, 2002, found that violent crime against Latinos dropped 56% in the 1990s. The President of the National Latino Peace Officers Association attributed the improved crime statistics to better police/community relations. As a consequence of the Justice Department's new policy, progress the police have made in reducing crime in the past decade may well be reversed.
Smart police agencies are already lining up against the new authority
With no more than a leak of the Justice Department's pending announcement, police departments across the country are already lining up against the idea.
(For quotes from these police departments and police associations, as well as from elected and appointed officials, community leaders and advocates, and newspaper editorial boards, see the Forum's website at www.immigrationforum.org.)
Legal and Political Fallout Will Hit Local Communities Hardest
The new Justice Department legal opinion will free local police to enforce immigration laws without the cumbersome process of formal agreements established in a 1996 immigration law. That law includes a provision where local law enforcement agencies can enter into agreements with the Justice Department specifying what training local police must have and what will be the respective responsibilities of the local police and the INS. The new policy will not require special training. The Department can then wash its hands of the fallout, which will land on local communities hardest.
Agencies that have tried to enforce immigration laws in the past have done so at great cost
Without extensive training in immigration law enforcement, some police may target people for immigration enforcement by their looks, language, or accent, or by the biases of enforcement officers. However, in multi-ethnic America, it is often difficult to tell who is an authorized immigrant, who is not authorized, and even who is a U.S. citizen. (Citizens are not required to carry proof of citizenship.) Targeting people by ethnicity has repeatedly led to serious violations of the rights of U.S. citizens and Lawful Permanent Residents.
The results, for communities whose police engage in such tactics, can be disastrous. In Chandler, Arizona, for example, a joint INS/police sweep through the city's Latino neighborhoods in 1997 resulted in individuals being repeatedly stopped for questioning, and sometimes verbally or even physically abused. An investigation concluded that police stopped and interrogated individuals based on their skin color or use of Spanish, and even forced their way into homes without a warrant. The operation cost the city the trust of its Hispanic residents, as well as $400,000 dollars in the settlement of lawsuits brought by victims of the operation.
Enforcement of immigration law by local police will cause an outcry in immigrant communities
The issue of police enforcement of immigration laws is being followed closely by news outlets catering to immigrant and ethnic communities. Those in a position to stand up for their rights can only be angered by this attack on their communities that such a drastic policy change signals. Claiming that the change in policy is merely a "new interpretation of law" will not persuade immigrant and ethnic communities. It is, rather, a recipe for alienating a segment of our population that is demonstrating its increasing political clout.
Enforcement of Criminal and Immigration Law Have Been Kept Separate
As recently as 1996, the same Justice Department Office of Legal Counsel concluded that "state and local police lack recognized legal authority to stop and detain an alien solely on suspicion of civil deportability, as opposed to criminal violation of the immigration laws or other laws." This opinion followed one issued in 1989, and statements going back to 1978, making similar distinctions between enforcement of civil immigration law and criminal law. The new opinion reverses these previous opinions and statements.
Among the reasons for keeping the enforcement of criminal and immigration laws separate is that enforcement of immigration law and enforcement of criminal law requires very different training and procedures. Prospective immigration agents undergo a 17-week training course that includes, among other things, immigration law, fraudulent document detection, INS statutory authorities, civil liberties and liabilities, and Spanish language learning. Immigration law itself is very complicated, and is being constantly amended by Congress. There are a bewildering number of temporary and permanent statuses in which foreigners are permitted to stay in the U.S., and without special training an enforcement officer is highly likely to make mistakes and detain someone who is legally entitled to be in the U.S.
To put things in perspective, what we are talking about in a practical sense when someone is violating immigration law is that they are working or living with a close family member without the proper permission to be in the U.S. While there is a lot of rhetoric and hysterics about those who violate the immigration laws, working or being with a family member without the proper papers is not in the same category of crime as murder or robbery. People who are caught breaking immigration laws are put into special administrative law proceedings outside of the criminal justice system.
There is no new legal development, or new law that requires a reversal of the well established practice of separating criminal and immigration law enforcement
There is nothing new in the law that justifies a complete reversal in practice. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 contained a section that gave the Attorney General the authority to enter into agreements with local police agencies to enforce immigration laws. These agreements would specify under what conditions and with what training local officers would enforce immigration laws. No such agreement has ever been entered into, either because of lack of interest by local agencies, or because of political opposition generated when local agencies began negotiating agreements with the Justice Department. For example, an agreement being negotiated between the Salt Lake City, Utah, police department and the INS was rejected when the Salt Lake City Council voted against it in 1998.
Since September 11, 2001, there has been a renewed interest in these agreements, known as Memorandums of Understanding or MOUs. In early 2002, the state of Florida was negotiating an agreement whereby 35 officers statewide would receive immigration enforcement training, and they would be linked to seven anti-terrorist task forces. While the MOUs carefully circumscribe the authority of local police in enforcing immigration law, the new Justice Department opinion would absolve local agencies from these formal agreements (and thus from any requirement for specific training). With its new legal opinion, not only would the Justice Department be reversing its own previous legal opinions, but it would appear to be circumventing Congressional intent by removing the safeguards built into the 1996 law.
The New Policy Will Not Make Us Safer From Terrorism
The reversal in policy by the Justice Department comes in the wake of the terrorist attacks of September 11, 2001, which highlighted our government's inability to carefully track foreigners in this country. There are an estimated 8 million undocumented immigrants in the U.S., with approximately 2,000 interior enforcement immigration officers nationwide charged with tracking them down and removing them.
It appears that the Justice Department hopes that enforcement of immigration law by state and local police will be one more tool in the fight against terrorism. In fact, this proposal is more likely to hinder their efforts. The chances of actually apprehending a potential terrorist simply by arresting persons suspected of immigration violations is very small. The chances of arresting a gardener, restaurant worker, or some otherwise law-abiding immigrant is much greater. In effect, law enforcement resources will be focused on removing undocumented workers, and diverted from tracking down terrorists. After all, foreigners planning on committing terrorist acts can avoid the dragnet altogether by making sure their papers are in order. If our intelligence agencies don't alert us, sophisticated Al-Qaeda terrorists certainly have the resources and legal guidance to ensure they maintain proper immigration status. Most of the September 11th terrorists kept their immigration status current. Had local police been able to stop and detain foreigners for immigration law violations, 16 of the 19 hijackers, having the proper papers, would have been free to continue their plot.
The cost of this policy, instead, will be to dry up a very valuable source of tips about suspicious behavior that might actually lead to the arrest of a terrorist. If immigrants feel that by cooperating with the police they put themselves or their family members in jeopardy, they will more likely keep silent, even if they know something that might be valuable to the police. In fact, terrorists or other criminals who sense immigrants' fear of the police might use this to their advantage, knowing their secrets will be safe as long as potential tipsters fear deportation if they speak out.
Fundamentally the failures that lead to the events of September 11th are about intelligence and information sharing. To prevent a repeat of those failures, our intelligence and enforcement agencies must cultivate every source that might lead them to uncover a terrorist plot. At a local level, the police will have a greater likelihood of learning about trouble if members of the community feel safe to come forward with important information. If the U.S. government wants to use local law enforcement agencies as a source of information on the operations of potential terrorists, a better approach would be to let the local police continue to build trust with their local communities, and to strengthen information sharing between local police and federal agencies. With the local police having gained the trust of immigrant communities, they are in a better position to serve as an information link between immigrant communities and the federal agencies that are in a better position to evaluate and act on the information. The Justice Department's new legal opinion instead threatens to cut this valuable link, denying the government a valuable source of information.
About The Author
The preceding is a statement by the National Immigration Forum, the nation's leading pro-immigrant policy group. The purpose of the National Immigration Forum is to embrace and uphold America's tradition as a nation of immigrants. The Forum advocates and builds public support for public policies that welcome immigrants and refugees and that are fair and supportive to newcomers in our country.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.