June 14, 2003

Let The Police Enforce The (Immigration) Law!

By James R. Edwards Jr.

Also by James R. Edwards Jr.: Whatever Happened To Deporting Immigrants As A Public Charge?

Imagine a would-be serial killer ready to terrorize innocent Americans, gunning down strangers simply for the thrill of watching them die. Picture the police capturing him on some unrelated offense, holding him, coming tantalizingly close to saving countless innocents from death—then letting him go. Cutting him loose because of technical incompetence and political squeamishness, to go off and kill. Does that sound like a plot point in a cheap made-for-TV movie?

Actually, it’s close to what happened last year in the case of the D.C.-area sniper—an illegal immigrant whom cops arrested before his killing spree and turned over to the INS, which promptly let him go. A Jamaican illegal, Malvo and his mother — also an illegal alien — were encountered by local police in December 2001. Uma Sceon James and John Mohammed were disputing who had custody of Malvo. Police called the Border Patrol, whose agents in Bellingham, Wash., arrested the illegal aliens. The Border Patrol handed James and Malvo over to INS with the understanding INS would hold them in detention until removal, which is what the law requires. However, the INS violated the law and regulations and released the illegal alien pair, who indeed fled.

I wish this were an isolated, grotesque incident; in fact, it is an illustration of how the system usually works. Lee Malvo would have walked free to kill in almost every state or municipality in the country.

Thus Northampton County, Pa., District Attorney John M. Morganelli has cited the INS as being grossly uncooperative in going after immigration violators. “Unfortunately, while the influx of illegal aliens continues at full throttle, as a local prosecutor I can honestly say that there is little to no help from the federal government concerning this issue,” Morganelli said. He told of a case involving 12 illegal aliens committing identity fraud using Social Security numbers. Yet immigration agents “discourage this type of investigation,” he said.

A new backgrounder I've written for the Center for Immigration Studies ["Officers Need Backup: The Role of State and Local Police in Immigration Law Enforcement”] points out the problems and offers some solutions. The bottom line: greater use of state and local police officers in enforcing immigration laws.

While the borders themselves get lots of lip service, they remain porous to criminals, smugglers, terrorists and other lawbreakers.

But the nation's interior is the soft underbelly.

The interior has very little federal enforcement presence. The federal immigration service has just 2,000 agents engaged in enforcement for the whole country. And the Clinton administration’s implicit policy of nonenforcement remains in force.

But about 700,000 law enforcement officers patrol every American community, every mile of road, 24 hours a day. They know their area and can spot people, things and behavior that are out of the ordinary. But these lawmen largely remain an untapped human resource in immigration law enforcement.

Three main factors cause this situation:

1) Lack of Clarity

 Many people who should know better are confused about the legal authority of local cops over immigration violations. The Bush Justice Department, in a draft legal opinion leaked to the press last year, argues that states as sovereign entities inherently possess authority to enforce federal immigration laws, both civil and criminal.

This reading of the Constitution and the law makes the most sense. Madison in Federalist 45 makes plain that states “retain under the proposed Constitution a very extensive portion of active sovereignty.” And a plain reading of the Ninth and Tenth Amendments bears out this principle.

Attorney General John Ashcroft has based his enforcement decisions on this sovereignty principle where states and localities are concerned. Local cops have been brought into immigration enforcement under Ashcroft’s leadership in renewed ways.

At least in the Tenth Circuit, the courts have borne out the authority of local and state police to enforce immigration laws. But this is based more on state peace officer statutes than the U.S. Constitution.

Liberal lawyers and special interests throw up roadblocks. Some localities such as New York City and Seattle have adopted policies that prohibit local bureaucrats and cops from cooperating with federal immigration authorities.

2) Lack of Information

Cops on the beat don’t have timely, user-friendly access to information about immigration violators. The current system requires cops, who may be standing on the roadside with a carload of illegal aliens, to make an additional inquiry which may take hours, even a day or more, to get an answer.

But the information is out there—and available in a centralized repository, the NCIC database. Cops need to know that they’re supposed to use it—even when enforcing our nation’s neglected immigration laws. Efficient information flow is essential if these “first responders” are truly to help secure the homeland.

3) Lack of Cash

It takes resources to enforce the law. Police departments need a way to transport captured illegal aliens and other immigration violators into federal custody. The lack of resources for jail space, alien transportation and the like deprives states and localities from playing a larger role in immigration enforcement.

The solution: hold immigration violators accountable for their actions - and turn that accountability into resources for law enforcement. This principle would have the added benefit of a deterrent effect—if chances improve that an immigration violator will be caught, will be processed, will be sent home, will suffer consequences, then the price of breaking the law just went up. Fewer people would then be willing to take a chance.

Most local police forces want to do the right thing. But they get frustrated when they face barriers at every turn—mixed signals about their legal authority, scant access to information, resources stretched too thin.

The key is to empower local and state police with clear authority, information and more resources. Local, state and federal enforcers must all start treating an immigration violation as a “precursor crime”—because that’s usually what it is.

This criminal infrastructure, combined with the media’s mythologized image of the virtuous illegal – mere “Mexican gardeners” doing “jobs Americans won’t do” etc. - puts all of us at risk.