May 27, 2005 – Last week, the House of Representatives passed legislation that would strengthen the power of local police officers to arrest undocumented immigrants whose only offense is their unauthorized status -- an authority that has historically resided with only with the federal government.
Arriving in the midst of a major congressional push for immigration reform and closely following the passage of a ban on driver?s licenses for undocumented immigrants, the proposed law enforcement policy reflects both the legislature?s growing opposition to illegal immigration and a trend toward expanding federal influence over local jurisdictions.
Provisions embedded in the Homeland Security Authorization Act for Fiscal Year 2006, based on the controversial CLEAR Act introduced in 2003, encourage local law enforcement to cooperate with the Department of Homeland Security in enforcing immigration law. The main provision, initiated by Representative George Norwood (R-Georgia) and passed by a 242-185 margin with little debate, defines the power of local and state police "to apprehend, detain, or remove aliens" and to transfer immigrants to federal detention centers. While the language stops short of compelling local police to track down and arrest undocumented immigrants, it "affirms" that officers already have implicit authority to do so. A separate amendment, introduced by Representative Christopher Cox (R-California), authorizes the creation of a "training manual and pocket guide" that police can use in place of formal training on immigration law.
Entangling federal and local enforcement responsibilities could solidify barriers of mistrust
In attempting to bring legal clarity to the gray area of federal-local collaboration on immigration policy, the provisions have generated new questions and fresh fears among immigrant communities and civil liberties advocates, who say that entangling federal and local enforcement responsibilities could solidify barriers of mistrust.
Critics Fear Wall of Silence
Rep. Norwood celebrated his amendment as a codification of what he believes are inherent rights and responsibilities of local police in protecting national security. "This shuts up the anti-American crowd who have tried to scam the public into believing local police can?t enforce immigration law," he said in a press statement following the House vote.
The immigrant advocacy community, meanwhile, worries that the proposed rules might silence more than critics. Civil rights activists, as well as those who simply believe in a more scaled-back approach to community policing, predict that the proposed legislation would greatly increase the likelihood that an undocumented immigrant who comes into contact with the police, even as a victim or a witness, could be be arrested and reported to immigration officials -- and the fear of this possibility could resonate even more widely.
Michele Waslin, director of immigration policy research at the National Council of La Raza, an advocacy organization representing Latino communities, cautioned that the powers delineated in the bill could deter both documented and undocumented immigrants from aiding police investigations.
Critics of CLEAR contend that the practice of rooting out undocumented immigrants by definition involves racial or ethnic profiling.
"If they don?t want to come forward and report a crime because they think they?re going to get deported, or their family members will get deported," she said, "that makes everybody in the community less safe."
In general, immigration law enforcement by local police has historically been limited to more serious "criminal" violations, like violent acts, as opposed to "civil" violations, such as overstaying a visa. A framework for broadening local police jurisdiction in this field is already in place under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. But this law requires that individual states negotiate a formal "Memorandum of Understanding" (MOU) with the federal government, which entails special training and clearly specifies the new authorities granted. To date, only a handful of jurisdictions have obtained MOUs.
Supposedly, the provisions in the Homeland Security bill would facilitate orderly federal-local cooperation by granting localities the go-ahead to enforce immigration law without first obtaining a formal MOU.
John Stone, a spokesperson for Rep. Norwood?s office, argued that as the federal government works to overhaul the overall immigration structure, broadening enforcement on a local level "will gradually let us regain control of an out-of-control system." Stone added that opponents of these measures were essentially "telling people that it?s perfectly okay to violate the law in this country and have no fear of enforcement whatsoever."
Some local governments have tried to cultivate the trust of immigrants with so-called ?sanctuary? policies, which bar police from reporting immigration violations of those who assist law enforcement.
But according to Arnoldo Garcia, coordinator of the Enforcement and Justice Program at the National Network on Immigration and Refugee Rights, a California-based activist coalition, CLEAR and similar initiatives would actually threaten public security. "It?s not going to work," he said, "and it?s going to be at the cost of a lot of people losing their rights."
Ben Allen, a spokesperson for Representative José Serrano?s office (D-New York), which represents a heavily Latino urban community, told The NewStandard, "There are already so many problems with trying to collect law enforcement information from immigrants? and we?re concerned that this amendment will exacerbate the situation and make intelligence gathering on a local level more difficult than ever before."
Civil liberties advocates view the bill?s CLEAR-related provisions as part of a trend toward tightening government control over immigration by collapsing divisions between federal and local agencies and developing national systems to track immigrants.
Local officers currently have access to immigration data through the Law Enforcement Support Center, a division of US Immigration and Customs Enforcement, but police generally use this database to supplement investigations of immigrants already apprehended on criminal charges, not to provide an initial basis for arrest.
The difference under Norwood?s proposal is that simply lacking proof of legal status could trigger police action against an otherwise law-abiding immigrant. The CLEAR Act would have gone even further in helping police pursue undocumented immigrants by integrating immigration violation records into a national electronic crime database.
Activists point out that if police are allowed to blur the line between a federal immigration offense and an ordinary infraction, for an immigrant whose name turns up in an immigration database query, a broken tail light could mean a trip to a federal detention center.
"The police would be acting as immigration agents, indirectly," said Waslin.
Community Policing in an Age of Counter-terrorism
The CLEAR Act and its pared-down incarnation in the Homeland Security bill reveal how the convergence of national security interests and immigration policy is rippling through communities. The September 11 terrorist attacks precipitated a dramatic expansion of federal immigration law enforcement under the purview of the Department of Homeland Security, and the alliance between federal and local agencies simultaneously intensified.
In California, for example, community activists say that post-9/11 security tensions have colored police activity in immigrant-heavy areas, in the form of both official police and federal collaboration on "counter-terrorism" sweeps, as well as more subtle types of cooperation.
Recalling that Southern California police worked with the federal Border Patrol to apprehend hundreds undocumented immigrants in 2004, Garcia said that the main public safety impact of these collaborative crackdowns has been that "communities get destabilized, and families get shattered."
Critics of CLEAR also contend that the practice of rooting out undocumented immigrants by definition involves racial or ethnic profiling. Joan Friedland, an attorney with the National Immigration Law Center, a legal advocacy organization, predicted that police would have to target people who "look foreign or sound foreign -- because how else would you be asking them to prove what their status is?"
Basic capacity issues also factor into criticisms of the CLEAR-based policies. Opponents fear that police simply lack the resources to responsibly enforce immigration law, especially since both the CLEAR Act and the Homeland Security bill offer local police little direct financial assistance.
The nuances of immigration law, argued Friedland, are "not pocket-card material," and the bill?s minimal provisions for police training would pave the way for mistreatment and civil liberties violations.
Waslin warned that with an undocumented immigrant population estimated to exceed 9 million, a concerted police effort to pursue minor immigration violations could "completely overwhelm our entire corrections system and judicial system."
Local Police Hesitate to Enter Gray Area of Immigration Law
Law enforcement organizations across the country have opposed the CLEAR Act out of both ethical and pragmatic concerns, arguing that diverting police resources toward handling undocumented immigrants would only undermine the more pressing mission of dealing with other crimes, including those that actually involve victims.
Greg Simons, a program director for the Coalition for Humane Immigrant Rights of Los Angeles, an immigrant and refugee advocacy group, said many police understand that cooperation from the immigrant community is crucial to fighting crime, and that "the community will feel more comfortable if the immigration question doesn?t even come into play on a local level."
Counteracting federal pressures, some local governments have tried to cultivate the trust of immigrants with so-called "sanctuary" policies, which bar police from reporting immigration violations of those who assist law enforcement.
The Los Angeles Police Department, for example, has enacted a non-disclosure policy to help maintain communication between law enforcement and the immigrants who make up about 40 percent of the city?s population. According to LAPD spokesperson Catherine Plow, "undocumented alien status in and of itself is not a matter for police action," and officers are bound " to equal enforcement of the law and services regardless of anyone?s immigration status."
Less stringent than the CLEAR Act, the Homeland Security bill provisions would not explicitly bind police to comply, but detractors believe this flexibility may carry additional pitfalls. Countering the argument that the legislation "clarifies" the scope of police power, opponents claim it increases ambiguity; the extent to which police act to enforce immigration law could depend on the locality, the precinct or even the individual officer.
"The problem," Friedland explained, "is that people won?t know who they?re dealing with when they?re dealing with the police. ? The normal reaction would be to be fearful of law enforcement, because you don?t know who will put you at risk."
