Statement of James R. Edwards, Jr. Adjunct Fellow, Hudson Institute Author, Center for Immigration Studies Backgrounder, Officers Need Backup: The Role of State and Local Police in Immigration Law Enforcement, April 2003
at the hearing of the House Judiciary Subcommittee on Immigration, Border Security, and Claims on H.R. 2671, the Clear Law Enforcement for Criminal Alien Removal Act
October 1, 2003
Mr. Chairman and members of the subcommittee, thank you for the honor of testifying before this subcommittee. I commend you for holding this important hearing on this outstanding legislation. I approach today’s topic from the perspective of someone who, as legislative director for a former United States Attorney, Rep. Ed Bryant of Tennessee, became closely attuned to the issues before his two subcommittee assignments, the Immigration and the Crime Subcommittees.
Mr. Chairman, a very common complaint of state and local law enforcement is that they get very little cooperation from federal immigration authorities.
The problem has occurred time and time again from shore to shore. And the scenario is generally the same: In the normal course of his duties, a police officer encounters an immigration violator (or several of them). He contacts federal immigration authorities; in most parts of the country, they are located many miles away. The policeman is told that no federal agent is coming to get the illegal or criminal alien, so let him go.
This “let them go” pattern was well established before September 11, 2001. Troublingly, it remains common since September 11. Billings, Montana, Police Chief Ron Tussing responded with well-founded skepticism, as reported in the Billings Gazette last year, after U.S. Attorney General John Ashcroft asked a convention of police chiefs to help secure the homeland by calling federal agents whenever local police take immigration violators into custody. Chief Tussing said, “We’d call them (INS) up and they’d say let them go, we’re too busy.”
In a post-September 11 world, “let them go” is unacceptable.
A 29-year veteran assistant chief with the Border Patrol characterized the problem of illegal immigration to me as “worse than epidemic.” He said the practice of the Immigration Service has changed – but for the worse, now actually aiding and abetting more and more illegal immigration. This agent said the Immigration and Naturalization Service practice when he started out was to detain all illegal aliens; the only aliens INS released before deportation had extraordinary extenuating circumstances. But now, aliens are routinely released; the only ones held in custody are those with unusual circumstances.
These “let them go” policies and practices have real-world consequences. “Let them go” policies apparently contributed to the year-long rape rampage of Reynaldo Elias Rapalo, the recently apprehended illegal criminal alien from Honduras who is suspected in seven rapes in Miami. Local law enforcement arrested him for “lewd and lascivious” molestation in October 2002, after his visa had expired. But he wasn’t removed from the country.
“Let them go” contributed to the rape of two nuns and the murder of one nun last year in Oregon. El Salvadoran illegal alien Maximiliano Silerio Esparza, who has been indicted in these crimes, had been caught and let go by the Border Patrol, despite his prior criminal record and an outstanding warrant for his arrest.
“Let them go” put Jamaican illegal alien Lee Malvo back on America’s streets after police captured him in Washington State. This occurred just months before the Washington, D.C., sniper shootings of 2002, in which Malvo is a suspect.
“Let them go” incidents happened this past summer in the subcommittee chairman’s district. In one incident, Indiana State Troopers stopped a van with 15 people in it — one of whom was a drug trafficker. ICE reportedly let them go. In another subcommittee member’s district, local police in Greensburg, Pennsylvania, caught seven illegal aliens this past spring, but ICE told the police to release them.
These are only a handful of examples of the sorts of violators our state and local police officers encounter every day while on the beat, yet federal officials, for whatever reason, don’t think they pose a threat to the domestic tranquility, the general welfare, or the blessings of liberty of American citizens.
The veteran immigration enforcer I mentioned earlier, and others with whom I have spoken, say there are many good, dedicated people in the immigration service. I believe that to be true. And there are valid reasons to explain why local INS offices – now Bureau of Immigration and Customs Enforcement – do not presently dispatch officers to respond to every call from a sheriff’s deputy or state trooper who has illegal or criminal aliens in custody. But, again, it should be clear to everyone that “let them go” isn’t good enough. More than terrorism threatens the homeland in these cases.
Immigration enforcers are outmanned. We have only 2,000 immigration investigators to cover the whole nation. Interior states may have just one or two ICE enforcement officers stationed there. For all the tough talk about securing our borders (which remain as leaky as a sieve), we have virtually abandoned interior enforcement. A witness from the General Accounting Office told this subcommittee on April 10 that we spend one-fifth the money on interior enforcement that goes to border enforcement.
These immigration enforcement officers who are charged with interior enforcement are trained investigators. They work diligently to crack alien smuggling rings, ID and benefits fraud schemes, and other immigration-related criminal enterprises. Understandably, it would be hard to do the good work that these dedicated officers do if they constantly were having to drop everything, drive a couple of hours to a county jail, take custody of routine immigration lawbreakers, drive back, and process them for removal. From a resource-allocation standpoint, this wouldn’t be the best use of their time and talents. But, once again, while this situation is understandable, that does not justify “let them go” policies or mean that the situation should continue uncorrected in post-September 11 America.
The “let them go” culture of federal immigration authorities has real-world consequences. First, this response has won the federal immigration agency a low reputation in the minds of state and local police. It has developed and ensconced the perception of the INS (now ICE) as unwilling to cooperate, lax in its attitude toward enforcing immigration violations, and unresponsive. “Let them go” has left a bad taste in the mouth of state and local law enforcement. From the perspective of state and local police agencies, they are trying to do their duty and help enforce the very laws that are the federal agency’s prime responsibility to enforce, so why would ICE not act responsibly and responsively in these cases where cooperation is key?
In addition to dismaying our nation’s law officers, “let them go” sends a clear signal to the at least 8 million illegal aliens already in this country – as well as to the untold millions of would-be illegal aliens – that breaking our law is of no consequence. Our lack of enforcing many of our immigration laws leads illegal and criminal aliens to believe there is no down side for them; even if they get caught, chances are authorities will set them free and put them back on the streets of America. At worst, they will get a free trip home, from where they can quickly return, perhaps through one of the alien smuggling rings that have proliferated and operate unthreatened across our country. This is a dangerous message to send in a post-September 11 world.
We know that smuggling rings have become big business on the black market. We also know that among them are those who smuggle into the United States Middle Easterners. There have been reports of finding Islamic prayer rugs in the desert Southwest. Smuggler George Tajirian from Iraq is said to have snuck in more than 1,000 illegal aliens from the Middle East. And alien smugglers mix trafficking in persons with trafficking in narcotics. We know 18-wheeler trucks are becoming the vehicle of choice for these criminal enterprises. Foreign and ethnic gangs, such as the Salvadoran MS-13, are on the rise across America. All of this is abetted by a lack of taking basic illegal immigration violations seriously and giving federal cooperation and support to the state and local police who run across alien lawbreakers.
As a practical matter, there are several more aspects to the problem. State and local law officers may be unclear about their legal authority to enforce immigration laws. Regrettably, activist judges, INS officials, and the Clinton Justice Department have clouded the issue. But even the Clinton Justice Department acknowledged, “It is well-settled that state law enforcement officers are permitted to enforce federal statutes where such enforcement activities do not impair federal regulatory interests.” James Madison, who knew a little bit about our Constitution and state sovereignty under it, said in Federalist 45 that states retain “a very extensive portion of active sovereignty.”
As you know from a hearing earlier this year, some big cities have “sanctuary” policies that prohibit police cooperation with federal immigration authorities and coddle immigration lawbreakers. Such policies directly and flagrantly violate federal law. This subcommittee’s hearing highlighted New York City’s sanctuary policy and the unintended but not unforeseeable consequence of a gang rape by illegal immigrants, about half of whom had prior criminal records and should have been removed.
Another practical problem relates to information-sharing. The cop on the beat routinely uses the National Crime Information Center to check for outstanding warrants and fugitives. NCIC gives quick responses. It is ingrained in the modern police culture. But NCIC contains virtually no immigration violation records. The Justice Department has begun listing absconders — aliens under final order of removal — in NCIC, but is far from having all of the nearly 400,000 absconders in the system. And the immigration-violation database, housed in the DHS Law Enforcement Support Center, requires a secondary, slower, more onerous check — one from which an officer on the side of the highway on a traffic stop doesn’t have time to wait for an answer.
At a hearing last week of the Senate Judiciary Immigration Subcommittee regarding information-sharing, several Senators expressed how vital it is that information about alien threats be available to state and local police officers. One Senator observed that having 8 to 10 million illegal aliens in our country is itself a homeland security issue. Yet, that hearing confirmed that records about such offenses as visa overstay and absconding under final order of removal still remain largely inaccessible to “the average state trooper.”
A third practical problem has to do with resources. It takes resources to hold illegal and criminal aliens in detention, to process, and to transport them. The State Criminal Alien Assistance Program is woefully underfunded, dropping from $585 million in FY 2002 to $250 million in FY 2003. A strong argument can be made that a good portion of the resources that police and ICE need for enforcement should come from the lawbreakers themselves, as restitution to society. At present, things are backwards. State and local law enforcers and taxpayers incur the costs of enforcing immigration violations, while the lawbreakers suffer practically nothing. Immigration crime presently pays for the lawbreakers while the public bears the costs. The incentives should be the other way around. Immigrant criminals should incur the costs, and police who catch them (and taxpayers) should reap rewards.
One more thing bears mention. We know that holding immigrant lawbreakers in custody greatly improves the chances of their removal from our country — that is, if we “let them go,” they almost uniformly don’t comply with the law and disappear into the woodwork within our nation. The Department of Justice Inspector General in 1996 and 2003, as well as a 1998 GAO study, confirms that aliens who are detained get removed, while those not held in custody get away and stay here. The IG’s report last February found that INS removed 92 percent of detained aliens, but only 13 percent of nondetained aliens in 2000 and 2001. Of INS’s top priority, criminal aliens, just 35 percent of nondetained aliens were removed. A mere 3 percent of nondetained aliens from terrorist-sponsoring countries and 6 percent of nondetained asylum seekers who received final orders of removal — including “potential terrorists” — were removed. These reports confirm the obvious.
There is a solution to this dangerous predicament, and the CLEAR Act (H.R. 2671) goes to it exactly. Every day, nearly 700,000 state and local police officers patrol our nation’s communities, our highways and streets. And every day, state and local police officers going about their normal duties encounter immigration violators.
Rather than putting immigration violators back on the streets of America, law enforcement authorities should apply the “broken windows” theory of policing to immigration enforcement. This is a critical component to securing the homeland.
“Broken windows” policing refers to a model developed by James Q. Wilson and George Kelling more than 20 years ago. It maintains that by enforcing laws against relatively minor offenses, more serious crimes will be reduced, as well. In other words, society sends a signal that it means business about law and order, and thus that it will not tolerate signs of disorder – property crimes such as breaking windows, graffiti, and shoplifting, “quality of life” offenses such as panhandling, prostitution, and public urination.
In the immigration context, alien smuggling rings, traffickers, immigration benefits frauds, counterfeit document producers and sellers, ID theft and fraud enterprises, and so forth are serious, more complex crimes and deserve the attention of ICE investigators. This is not even to mention the identification of terrorist cells and arrest of terrorist sleepers who use our immigration system to prosecute a war against the United States from within our borders. But it must be recognized and acknowledged that allowing the presence of at least 8 million illegal aliens in our midst – in fact, with some politicians even seeking to reward their illegality with green cards or in-state college tuition or valid driver’s licenses – is the equivalent of tolerating graffiti, broken windows, and other so-called “minor” crimes in our cities.
One thing we know: “Broken windows” policing works. For example, research from the Manhattan Institute found that Mayor Rudy Giuliani’s application of “broken windows” policing in New York City led to falling crime rates. “Broken-windows policing significantly and strongly associates with sharp reductions in violent crime; in fact, we estimate that it prevented at least 60,000 violent crimes in New York between 1989 and 1998,” the Manhattan Institute reported in Winter 2002. Studies such as those by the National Bureau of Economic Research and the California Institute for County Government also confirm the validity of the “broken windows” model.
We have indications that the same approach, enhanced by using the vast number of state and local law enforcement personnel as force multipliers in immigration enforcement, would reduce the incidence of both “low-level” illegal immigration and the kinds of offenses ICE agents are investigating.
The National Security Entry-Exit Registration System, or NSEERS, went into effect this past year. It required nonimmigrant males from 25 terrorist-sponsoring nations to register with the INS. Lack of immigration enforcement had become so bad, many illegal aliens walked into INS offices to register expecting no adverse consequences. When INS actually detained these lawbreakers and word got around in immigrant communities, the next round of news reports told how many illegal aliens began to self-deport. Rather than register with NSEERS and risk being caught and removed, lawbreakers on their own fled to Canada or elsewhere outside this country. About 82,000 aliens registered with NSEERS; 13,000 were illegal aliens. An estimated 26,000 Pakistanis illegally resided in the United States in 2000; the Pakistani embassy has said 15,000 of its illegal aliens have left since September 11, 2001.
The link between run-of-the-mill illegal immigration and more serious immigration violations must be acknowledged. In many instances, sneaking across the border is a precursor crime. It is inexorably linked to illicitly holding a job in America, acquiring and using false documents or valid ID documents fraudulently obtained, aiding and abetting fellow illegal and criminal aliens, harboring fugitive illegal aliens, involvement with smuggling rings, and so forth. And most instances of illegal immigration — simply staying in this country — are continuing offenses.
Not enforcing the laws against the seemingly low-level immigration violators is the same as not going after the graffiti artist, the trespasser, the loiterer, the panhandler, the window breaker. It sends a message that they can get away with this lawbreaking, so they can get away with breaking other laws. Acting on this belief is how the initial crime of illegally crossing our border becomes a precursor crime to larger offenses.
Columnist Rich Lowry wrote, “In the post-Sept. 11 environment, it is no longer possible to shrug your shoulders and ask, ‘What harm can one illegal immigrant do?’” We have 8 million illegal immigrants within our borders, and that number grows by upwards of a half-million each year. It is extremely difficult to pick out the few terrorists from such a huge crowd. But by implication, it should be easier to identify the millions of people who have committed precursor crimes of the immigration sort.
Taking advantage of the vast ranks of local and state police officers and the law enforcement duties they are already doing every day makes common sense. Border and Transportation Security Undersecretary Asa Hutchinson acknowledged at an April 10, 2003, hearing of this subcommittee that routine traffic stops and other routine law enforcement encounters present good opportunities to capture illegal aliens. These officers would not be taking on extra duties; rather, the federal government would simply take advantage of current, daily encounters as these officers go about their duty when they happen to come into contact with an illegal alien. This would be maximizing the available human resources to help enforce the laws already on the books and to hold the lawbreakers accountable.
To do so will require clarifying legal authority. It will require two-way information sharing. It will require additional resources. It will require creative ways to maximize existing resources, such as use of new technology to conduct removal proceedings across long distances. It will require deriving resources from the lawbreakers; that is, immigration lawbreakers must be held accountable. And it will require flexibility so localities can come up with the most practicable means of detaining, transporting, and handing federal authorities custody of illegal criminal aliens.
The CLEAR Act
H.R. 2671 contains the solution that would close the gap. The bill would do so in exactly the ways just outlined and suggested in my Center for Immigration Studies report. Whenever state or local police come into contact with illegal or criminal aliens as the officers carry out their regular duties, the response from the federal side would no longer be “let them go.” This is the glaring problem. The CLEAR Act would fix it by providing practical means for federal and state or local law enforcement to work together in the apprehension, detention, transportation, processing, and removal of immigration lawbreakers.
First, the CLEAR Act clarifies the legal authority question in federal law. It encourages states to do so, too. The bill’s approach does this in a way that respects the Founding Fathers’ principle of federalism. States and localities retain the freedom to decide the extent of their law enforcement officers’ involvement in enforcing immigration violations. H.R. 2671 contains no unfunded federal mandates. It merely empowers those states and localities that wish to have their police officers on the front lines of homeland security.
Second, H.R. 2671 enhances two-way information sharing. The saying is that “information is power,” and two-way communication of intelligence is vital to any effort’s success, from the battlefield to counterterrorism to crime fighting. This legislation puts information about immigration violators into the hands of the cop on the beat in the most practical way possible, through the most established tool of information sharing in law enforcement, NCIC. It provides a system for state and local jurisdictions to collect and send information to the Justice Department about their encounters with immigration lawbreakers. And the bill provides additional resources to help offset the cost.
This is ground-level intelligence that will yield a wealth of valuable data. From it can be gleaned patterns and trends in illegal immigration and specific information about individual immigration lawbreakers. With such two-way information sharing, law enforcement at all levels can make more informed improvements in strategy and tactics, coordination and implementation. With this kind of data, those aliens who threaten our homeland’s security may be able to run, but they cannot hide.
Third, the CLEAR Act provides additional resources to bring “broken windows” policing to immigration violations. It does this in a very responsible, practical way. It doesn’t look primarily to additional federal spending, in terms of very heavily tapping the federal treasury. It does increase the SCAAP authorization and creates a new grant program, but at realistic levels. It looks as well to the ill-gotten gains of immigration lawbreakers as a source of revenue. This follows the model we use with respect to other crimes, where the assets of lawbreakers help fund law enforcement efforts, federal and state and local.
The bill provides financial incentives to the states and localities that choose to become more involved in this aspect of securing the homeland. It contemplates applying resources to all the major elements of the process, from apprehension to removal from the country. These include police training, detention, transportation, administrative or criminal proceedings, exchange of custody, and removal. And H.R. 2671 builds on existing resources, maximizing their use. For instance, the bill makes the existing Institutional Removal Program and Internet training programs more widely accessible to state and local law enforcement.
Importantly, H.R. 2671 allows for the flexibility of the states to be “the laboratories of democracy” in this area. States and localities would be the drivers in creatively solving the challenges of detention, transportation, and so forth. That is, the CLEAR Act refrains from dictating a “one-size-fits-all,” Washington “solution.” Rather, states and localities would determine the best way to address each specific thing. For example, one city may be close to an ICE office, so the best way to hand over custody of illegal criminal aliens to federal authorities would be for ICE to establish a circuit-riding system. The local police and county sheriff in that area would know that every Tuesday morning at 11, the ICE van would come to the courthouse square for alien pickup. In another locality, it may make more sense for the county sheriff’s department to contract with the federal government to transport the aliens itself. In another place, perhaps contracting with a private security firm to transport apprehended aliens to a federal detention facility would work best. CLEAR provides such practicality and flexibility.
Also of importance, H.R. 2671 includes measures to end federal noncooperation and the nonresponse of “let them go.” Nothing works as well to rectify a problem as sunlight and accountability. These are the principles the CLEAR Act applies. State or local law enforcement agencies could hold uncooperative or unresponsive federal agencies accountable through a limited administrative appeals process.
Finally, H.R. 2671 would ensure that the civil rights of aliens are safeguarded and that jail facilities used for detention meet federal standards. The bill strikes the right balance to ensure that police agencies do not take license, but remain accountable. It preserves police officers’ discretion with respect to crime victims, witnesses, and tipsters. It only involves police officers in immigration law enforcement to the extent they encounter illegal and criminal aliens in the course of the officers’ normal duties.
All told, the CLEAR Act would have a deterrent effect on illegal immigration. By its force-multiplication through state and local police, it increases the chances that an immigration lawbreaker will get caught, that he will be held in custody, that he will face being identified through fingerprinting and the creation of a record, that he will forcibly leave the country, that he will leave behind his ill-gotten gains acquired from having broken our nation’s laws, and that if he re-enters the United States then he will be recaptured and suffer even greater consequences.
By holding lawbreakers accountable, individual immigration violators will get the message that America is no longer turning a blind eye to their offenses. That message also goes out to would-be lawbreakers. Such “broken windows” policing can be expected to reduce the number of new illegal immigrants, lead at least some current illegal immigrants to self-deport, and have the spillover effect of curbing some of the bigger immigration crimes. It starts to “drain the swamp,” as in the Weed and Seed program. These beneficial effects would occur at a manageable rate. Thus, there would not be the severe impact of mass deportations or huge raids. Suddenly burdening the law enforcement and criminal justice and immigration enforcement systems with great numbers of people — much like the deleterious effect on the immigration backlogs of amnesties such as the LIFE Act’s 245(i) extension or the gross expansion of legal immigration as through the 1990 Immigration Act’s multiplication of legal immigration categories and quotas — would be counterproductive, overwhelm the system, and possibly cause the economy some harm.
This bill’s approach would change the dynamics of the war on crime and terrorism. It would change the mindset of no fear of capture or punishment among immigration lawbreakers. It would restore confidence in federal immigration agencies. It would empower state and local police to finish the job, rather than saddle them with the demoralizing knowledge that they are putting lawbreakers right back on the street.
This common-sense solution of law enforcement cooperation has been recommended by the National Taxpayers Union Foundation. In its recent report Borderline Infraction: Unsafe Borders, Complacent Government?, NTU identified the need for the Department of Homeland Security immigration agencies to “collaborate with law enforcement on the local, state, and federal levels that are monitoring or assisting in the apprehension of illegal immigrants” and “work more aggressively to root out fraudulent benefit payments to illegal immigrants.” NTU notes how such reforms would save taxpayers billions of dollars.
The American public overwhelmingly supports such an approach. A RoperASW poll this past spring found 85 percent in support of “requiring state and local government agencies, and law enforcement agencies, to apprehend and turn over to the INS illegal immigrants with whom they come in contact.” Sixty-two percent of respondents “strongly” agreed. Eighty-three percent support “mandatory detention and forfeiture of property” for illegal aliens. Seventy percent favor mandatory prison sentences, in addition to asset forfeiture and removal, for immigration law violations.
Encouraging and enabling federal cooperation to those state and local police who are already trying to do their part in immigration enforcement would vastly help to secure our homeland. What would our nation have been spared had we applied “broken windows” enforcement to immigration violations prior to September 11? Of course, we will never know. However, the fact that three of the terrorists – Hani Hanjour, Ziad Jarrah, and Mohammed Atta – were stopped by state or local police prior to that fateful date chillingly illustrates that opportunity exists for state and local law enforcement to play a vital role on this front. The stakes are too high for America’s well-being not to pursue this avenue.
In conclusion, I believe H.R. 2671, the CLEAR Act, would be the most appropriate next step toward securing our borders, tackling illegal immigration, and restoring the rule of law in an area in which we have far too long been derelict. It addresses the problem areas relating to authority, information, and resources. And it does so in a very practicable, effective manner. Our nation would benefit tremendously from the provisions of the CLEAR Act.
Mr. Chairman, I am submitting along with this testimony my CIS backgrounder for inclusion in the record. It elaborates on many topics I have merely highlighted here. I am now pleased to take questions from the subcommittee. Thank you.
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