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Power Play? Attorney General Gives Immigration Enforcement to FBI

by Maurice Belanger of the National Immigration Forum

On March 1, enforcement of immigration laws was transferred from the Justice Department to the Department of Homeland Security (DHS). Until recently, enforcement of civil immigration laws was left to trained officers of the Immigration and Naturalization Service. (Those officers are now split between the Bureau of Immigration and Customs Enforcement and the Bureau of Customs and Border Protection, both located in the DHS.) In April of last year, press reports indicated that the Justice Department had changed a long-standing policy reserving enforcement of immigration laws for INS agents, and would declare that local and state law enforcement agencies had the "inherent authority" to enforce immigration laws. That proposal did not go over so well with the enforcement agencies having jurisdiction over large populations of immigrants. (The policy still has not been released publicly.)

Now press reports indicate that in mid-December, the Attorney General issued an order to get the FBI and U.S. Marshals into the immigration enforcement business. The order went into effect, according to press reports, on February 28, the day before the transfer of the immigration service out of the Justice Department. The order authorizes "special agents of the FBI to exercise the functions of immigration officers for the purpose of...investigating, determining the location of and apprehending any alien who is in the United States in violation of the Immigration and Nationality Act."

According to press reports, the FBI has drafted guidelines to ensure that the new authority is used "only in appropriate situations," such as when the public safety must be protected. Justice Department and FBI sources said they intend to use the new powers only in counterterrorism cases. However, the order itself is broad.

Advocates have not obtained a copy of the order. This expansion of powers is very worrisome, as FBI agents do not have, and would not be required to have, training in immigration law enforcement. The order complicates the already complicated task of coordinating immigration policy and enforcement. Advocates have already raised concerns that the structure of the Department of Homeland Security does not facilitate strong coordination among the three Bureaus within the Department of Homeland Security charged with immigration enforcement and services. Now the Justice Department will also be enforcing immigration laws, making the coordination task more daunting (if it is even attempted).

About The Author

Maurice Belanger is a senior policy associate at National Immigration Forum.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.