Close
About
FAQ
Home
Collections
Login
USC Login
Register
0
Selected
Invert selection
Deselect all
Deselect all
Click here to refresh results
Click here to refresh results
USC
/
Digital Library
/
University of Southern California Dissertations and Theses
/
Where there is discretion, should law enforcement officers at the local level be involved in enforcing federal immigration law? a study for consideration
(USC Thesis Other)
Where there is discretion, should law enforcement officers at the local level be involved in enforcing federal immigration law? a study for consideration
PDF
Download
Share
Open document
Flip pages
Contact Us
Contact Us
Copy asset link
Request this asset
Transcript (if available)
Content
WHERE THERE IS DISCRETION, SHOULD LAW ENFORCEMENT OFFICERS AT
THE LOCAL LEVEL BE INVOLVED IN ENFORCING FEDERAL IMMIGRATION
LAW? A STUDY FOR CONSIDERATION
by
Irma Becerra
A Dissertation Project Presented to the
FACULTY OF THE USC SOL PRICE SCHOOL OF PUBLIC POLICY
UNIVERSITY OF SOUTHERN CALIFORNIA
In Partial Fulfillment of the
Requirements for the Degree
DOCTOR OF POLICY, PLANNING, AND DEVELOPMENT
May 2015
Copyright 2015 Irma Becerra
ii
Epigraph
“The more I live, the more I learn. The more I learn, the more I realize, the less I know.”
Michael Legrand
iii
Acknowledgements
First and foremost, I would like to acknowledge the person who has most inspired
me in life, and from whom I have inherited a passion for learning, a drive to work hard,
and the energy with which to complete every task I attempt to the best of my ability.
Although she left many years ago, her influence on my life is eternal. She was the most
intelligent person I have ever known. She was creative and artistic in many ways, and I
lived believing there was nothing in the world she could not do. If there was a problem,
she could always figure out a solution. It is her energy, which has inspired me to reach
for the next rung in the ladder and accomplish even those things I never dreamed I could
do. That person was Isidra Ramos—my mother.
Secondly, I would like to acknowledge Dr. Jeffrey Wigintton—valued friend and
fellow USC Executive Master’s In Leadership cohort member. I am able to bring this
endeavor to a successful completion as a result of his constant support, encouragement,
and advice. It is with great honor that I acknowledge Dr. Wigintton for helping me with
this huge accomplishment.
Additionally, I would like to thank the members of my doctoral committee, USC
Professors—Drs. James Moore, Grace Dyrness, and Lavonna Blair Lewis—for their
patience, assistance, and leadership. I thank and appreciate the guidance of Professor
Roberto Suro, who got me started on this project. His guidance is truly appreciated. I am
especially grateful to my former colleague and friend—Los Angeles County Sheriff’s
Department Assistant Sheriff, Michael J. Rothans. I am humbled by his sense of integrity
and high moral values. I cannot thank him enough for agreeing to participate as a
committee member even with his many executive responsibilities and obligations.
iv
Finally, I would like to acknowledge my children—Salvador Jr., Daniel, and
Caroline—who have always been the drive and inspiration for everything I have
accomplished in my life despite the challenges along the way.
v
Table of Contents
Epigraph
.................................................................................................................................
ii
Acknowledgements
................................................................................................................
iii
Abstract
................................................................................................................................
vii
Executive Summary
.............................................................................................................
viii
Chapter 1: Introduction
.........................................................................................................
1
Background of the Problem
........................................................................................................
1
Statement of the Problem
............................................................................................................
2
Purpose of the Study
...................................................................................................................
4
Significance of the Study
.............................................................................................................
4
Organization of the Study
...........................................................................................................
5
Chapter 2: Evolution of Federal Preeminence Over Immigration Regulation
......................
7
Supremacy Clause
......................................................................................................................
7
Preemption
..................................................................................................................................
8
The Chinese Exclusion Case – Establishment of Federal Immigration Preeminence
................
8
Arizona Senate Bill 1070—Support Our Law Enforcement and Safe Neighborhoods Act
.......
10
Chapter 3: Statutory Background and Tools for Local Law Enforcement
..........................
22
Section 287(g)
...........................................................................................................................
23
Criticism of 287(g)
....................................................................................................................
28
Secure Communities
.................................................................................................................
29
Chapter 4: Key Post 9/11 Policy Changes and Statutes
........................................................
34
Creation of Department of Homeland Security
........................................................................
34
USA Patriot Act
........................................................................................................................
39
Chapter 5: Current Policies and Practices of States and Local Agencies
.............................
42
States and Local Agencies’ Withdrawal From Secure Communities
........................................
43
Racial Profiling – Maywood Police Department
......................................................................
46
Other Restrictionist Policies Post Arizona v. United States Decision
......................................
48
Summary
...................................................................................................................................
48
Chapter 6: Discretion of Enforcement
.................................................................................
50
Fourteenth Amendment and Due Process Clause
.....................................................................
50
Prosecutorial Discretion
...........................................................................................................
51
Proportionality – Crime vs. Punishment
...................................................................................
56
Whether the Punishment Fits the Crime
...................................................................................
60
Chapter 7: Policy Choices for the Next Los Angeles County Sheriff
...................................
63
Chapter 8: Conclusion and Recommendations
....................................................................
66
Cost of Deportation and Detention
...........................................................................................
67
Inconsistencies in ICE Policy
...................................................................................................
68
Recommendations
.....................................................................................................................
70
Glossary of Terms
................................................................................................................
81
References
............................................................................................................................
83
Appendix A: Writers of Amicus Brief on Behalf of Respondent
..........................................
91
Appendix B: 287(g) Results and Participating Entities
........................................................
94
Appendix C: DHS Organizational Chart
.............................................................................
97
Appendix D: Overview of Significant Immigration Bills in the House of Representatives
..
98
vi
Appendix E: Map of U.S. States That Enacted Immigration Related Laws
......................
100
Appendix F: Factors to Consider When Exercising Prosecutorial Discretion
...................
101
Appendix G: Special Order 40
...........................................................................................
103
Appendix H: Memo From Chief Gates
..............................................................................
104
Appendix I: Illegal Alien Removals - Chart
.......................................................................
107
Appendix J: ICE Arrest Statistics
......................................................................................
108
vii
Abstract
This research study critically examined the topic involvement of sub-federal law
enforcement in the enforcement of federal immigration law. Accordingly, the purpose of
policy analysis was to evaluate the following research question: where there is discretion,
should local law enforcement officers be involved in enforcing federal immigration law.
In an effort to illuminate relevant information for proper evaluation of the research
question, this project evaluated available policies on sub-federal law enforcement and
their involvement in enforcing federal immigration law. Though policies obtained for this
paper cover the United States broadly, the focus of the analysis of these policies was to
generate relevant and useful information for the new Los Angeles County Sheriff. Los
Angeles is considered an immigrant metropolis and warrants becoming a lead on the
topic of this investigation—involvement of sub-federal law enforcement in the
enforcement of federal immigration law. The analysis suggests that each agency should
perform the duties and responsibilities they were sworn to do. Until federal law and
federal agencies and agents can better delineate detention and arrest guidelines, state and
local enforcement agencies should not have to do the job that federal agencies are
required to do.
viii
Executive Summary
By discussing the participation of local law enforcement in enforcing federal
immigration law, it is hoped a dialogue might be stimulated about the benefits and
drawbacks of local/federal partnership. The procedure presently used by those who are
involved in a working agreement with Immigration and Customs Enforcement (ICE) in
order to enforce federal immigration law is vague and leaves much of the decision
making to the individual officer in deciding to release someone or to hold them for
deportation, decisions which are subject to bias and human error.
The main research question of this paper asks whether law enforcement personnel
at the state and local level should be involved in the enforcement of federal immigration
law and whether they should be given discretion to enforce federal law in the first place.
Because “12 of the 48 Islamic terrorists” of the September 11, events had been in the
U.S. for ten years illegally,” the focus of Immigration and Customs Enforcement (ICE)
shifted to targeting undocumented criminal immigrants (Camarota, 2002, p.1). However,
in order to carry out its mission, ICE has sought to recruit the involvement of local law
enforcement agencies nationwide. The justification for this effort is not only due to the
illegal residency status of past terrorists, but also because of ICE’s “limited resources”
being inadequately insufficient to find every single terrorist and criminal alien who might
be lingering among the illegal immigrant population (Department of Homeland Security
[DHS], 2014).
The result of such local and federal partnerships has been to shift the focus from
criminals to ordinary undocumented immigrants. One of the reasons for this might be
because ICE’s current policy lacks appropriate supervision and uniformity of
ix
implementation. The definition of a criminal deportable undocumented immigrant, as
provided in ICE’s fact sheet, is so broad that it facilitates the inclusion of non-criminal
immigrants under the same deportation umbrella as felonious criminals resulting in
thousands of immigrants who do not fall within the definition of violent criminals having
been deported. A fairer and legal means of enforcing this policy is to go by the guidelines
of the Federal Bureau of Investigation’s (FBI) Uniform Reporting Code (UCR), which
enumerates specific crimes considered to be part I crimes (Federal Bureau of
Investigation, 2009). Part I crimes are listed by seriousness of offense and include
murder, manslaughter, rape, robbery, aggravated assault, arson, burglary, robbery and
larceny/theft. While some property crimes are excluded from the hierarchy rule, another
consideration for inclusion might be if a crime is committed under special circumstances
such as with the use of a knife or gun.
Subsequently, while it may not be possible to modify ICE’s policy, what is
possible is the development of a policy, which has specific step-by-step criteria to take
into consideration when determining the immigration status of an inmate. Such procedure
might be implemented by providing a list of specific crimes listed on the FBI’s Uniform
Crime Reporting (UCR) index, which catalogues Part I crimes by seriousness of offense.
As to the justification for recruitment of officers from local agencies nationwide
because of ICE’s limited resources, it is important to point out that traditionally local law
enforcement agencies have even less resources given their many demands for public
service, and they do not have the capabilities to add more responsibilities to their
workload. The idea that local police officers may do the job that federal agents are
x
responsible for carrying out is tantamount to giving away assets that are better dispensed
at the community level.
At issue in a local/federal partnership is the fact that ICE’s policy or deportation
states its focus is centered on two primary goals which are “removal of criminal aliens”
and removal of undocumented immigrants apprehended in the interior of the U.S. (DHS,
2014). The problem is that the term criminal alien is so broad that it delegates
prosecutorial discretion – whether to cite and release or hold for deportation - to
individual officers at the point of contact with an immigrant on the street and to custody
assistants at county jails. Important to point out that custody assistants who perform this
task have limited training as they attend a nine-week local law academy and four weeks
at a federal training facility. The initial discretion to speak to an alleged undocumented
inmate is up to the individual custody assistant at a county jail or a patrol officer on the
street, but the ultimate decision to hold someone for deportation is up to immigration
agents.
The state of California has long been a beacon for undocumented immigrants, and
while it may have at one time been ground zero, the number of undocumented
immigrants has dwindled considerably, but not so much as to ignore their existence. Los
Angeles County is home to approximately 3.5 million immigrants (Paral & Associates,
2011) and one third of the state’s illegal immigrant population (Johnson & Hill, 2006).
California was at one time considered ground zero for immigrants, but that is no longer
the case, as illegal crossings at the border have all but disappeared (Myers, 2012).
However, the state continues to have illegal immigrant figures almost two times the
xi
national average and the county of Los Angeles in particular, is estimated to have one
third of the state’s share of undocumented immigrants (Johnson & Hill, 2006).
Los Angeles Sheriff’s Department does not have authority to change immigration
policy, but they do have the ability to set the specifics for policy implementation.
Consequently, it might be a good idea to either suspend or reconsider any cooperation
with federal authorities as other agencies have done. Past local/ federal partnerships have
concerned police executives and sheriffs to the point of causing some to pull out of
existing agreements and create non-cooperation policies with federal immigration
authorities in this mission.
If a partnership between the Los Angeles County Sheriff’s Department or any
other sheriff’s departments in the state with ICE is to continue, it should take place only
after broad categories are replaced with clear and specific criteria which targets only
those who have been tried and convicted of crimes enumerated in a specific list of part I
crimes, as opposed to ICE’s Level I umbrella of violations.
The Los Angeles County Sheriff’s Department might also consider shaping an
immigrant arrest policy that reflects the fundamental basics of the City of Los Angeles’
Special Order 40, a policy which has survived challenges since its implementation in
1979 and specifically prohibits an officer from arresting a person for the sole reason of
being undocumented.
Some of the reasons why some of the listed recommendations have not been taken
may be due to political pressure from constituents, the need to get re-elected and ensure
the public trusts them to do the right thing. The right thing however, may be one thing to
one person and mean another to somebody else. For example, when Los Angeles
xii
Supervisor Michael Antonovich decided to provide revenue to fund the hiring of four
custody assistants to flag for deportation undocumented immigrants in county jails, his
decision could have been based on his own ideology, or on pressure from certain
members of the community.
The Sheriff’s Department on the other hand, who while not subordinate to the
Board of Supervisors, does have to maintain a positive working relationship with all
members because they approve the budget for the Sheriff’s Department and are quite
influential as to which programs they fund and which they do not. Consequently, the
Sheriff’s Department might at one time have had no choice but to comply with mandates
such as these.
Past agreements of cooperation with ICE have proved financially beneficial to the
Sheriff’s Department such as the contract to administrate an immigrant detention center
in Lancaster, California. The Los Angeles Sheriff’s Department oversaw that facility for
ten years at a cost of $27 million dollars per year for approximately 980 detainees.
Because such a partnership proved profitable to the Sheriff’s Department it explains why
the Sheriff’s Department expanded cooperation with ICE and its participation in the
Section 287(g) and Secure Communities programs in the County of Los Angeles.
1
Chapter 1: Introduction
Without a doubt, the events of September 11, 2001 profoundly changed the course
of history for the United States and its people. The federal government responded to
those attacks on the United States with intentional and forceful initiatives directed at
noncitizens and their communities. While some of these initiatives have faded away into
the background or have ceased to exist, there is one that continues to gain momentum and
attention: the effort to enlist local law enforcement agents in the routine enforcement of
federal immigration laws. Traditionally, the responsibility of enforcing federal
immigration laws falls in the hands of federal agents, while the policing of local priorities
rests upon the shoulders of local officers. On occasion, local law enforcement agencies
have been involved with federal immigration enforcement. However, enlisting local law
enforcement personnel in the enforcement of federal immigration laws only became a
favored federal strategy after September 11, 2001. Accordingly, the federal government’s
effort to enlist local law enforcement agents in routine enforcement of federal
immigration laws has prompted increased scrutiny.
Background of the Problem
The enforcement of immigration law has historically been considered a plenary
power of the federal government, and the responsibility of federal immigration
authorities. In fact, the Chinese Exclusion Case (1889) was the first case to hold that the
federal power to exclude non-citizens is an incident of national sovereignty. The Court
reasoned that every national government has the inherent authority to protect the national
public interest. Simply put, this case, effectively and for the first time in United States
history, delineated the federal and sub-federal roles: it is the role of the federal
2
government to oversee matters of national concern, while it is the province of the states to
govern local matters. In this manner, the Court found that the inherent sovereign power to
regulate immigration clearly resides in the federal government. Subsequent cases
reinforced national sovereignty as the source of federal power to control immigration and
consistently reasserted the plenary and unqualified scope of this power. Thus, the Chinese
Exclusion Case firmly established the doctrine of federal preeminence in immigration
policy.
The doctrine of federal preeminence in immigration policy went largely
unchallenged until the 1990s. During the 1980s, illegal immigration and border security
became the chief issues in the immigration debate. In 1986, Congress granted additional
powers to law enforcement agencies to allow for the punishment of persons who aided or
facilitated illegal immigration. As state and local law enforcement agents become
increasingly involved in the enforcement of immigration law, directly or indirectly,
pursuant to federal grants of authority or otherwise, more jurisprudential challenges arise
concerning to the criminalization of immigration law.
Statement of the Problem
Immigration issues and immigration laws continue to be the center of current
political, cultural, and societal debates, especially in the post-9/11 America. A theory of
action for partnering state and local law enforcement officers with federal agents is if
there are more officers on the street, then it is more likely that future acts of terrorism
might be prevented (Rodriguez, Christi, Capps, & St. John, 2010). State and local law
enforcement officers have the authority to arrest violators of criminal law such as human
smuggling, drug trafficking, or undocumented immigrants when it involves the
3
commission of a crime in violation of a state law by someone who has an existing
removal order. The intent behind the recruitment of local law enforcement officers is to
encourage participation in the arrest and removal of convicted criminals who may pose a
threat to national security or who, in addition to being serious criminals, may already
have a prior removal order.
However, the involvement of local law enforcement officers raises critical
concerns that continue to be unresolved. For one, the process of arresting undocumented
immigrants is laden with violations of established civil rights normally afforded each
citizen or legal resident. Additionally, there is a lack of adequate measures to deter rights
violations when sub-federal agents enforce federal immigration law; as such, it raises
questions concerning the relationship between criminal and immigration law and the
importance of deterring civil rights violations such as racial profiling, in immigration
enforcement. Moreover, when police officers do not perform the duties for which they
were hired and focus instead on arresting someone for a violation of immigration law, it
presents unintended windows of opportunities for non-motivated officers to make easy to
find arrests by targeting areas populated by immigrants. By making these arrests, these
officers give their superiors the impression they are actually fighting crime and keeping a
community safe (Anonymous, personal communication, September 8, 2014). Most
critically, the federal government has been criticized for its lack of financial support of
local law enforcement agencies in exchange for increased responsibilities, especially
when these responsibilities have been under the purview of federal law enforcement
organizations.
4
Purpose of the Study
The purpose of this paper was to critically examine the topic of sub-federal law
enforcement involvement in the enforcement of federal immigration law. Specifically,
this project evaluated the following research question: where there is discretion, should
local law enforcement officers be involved in enforcing federal immigration law. In an
effort to illuminate relevant information for proper evaluation of the research question, a
policy analysis was conducted. Although the policies obtained for analysis cover the
United States broadly, the focus of the analysis was to analyze the policy choices
available to the new Los Angeles County Sheriff. In addition, because Los Angeles is
also considered an immigrant metropolis, it should take lead on the topic of sub-federal
law enforcement involvement in the implementation of federal immigration laws.
Accordingly, the present study illuminates the benefits and drawbacks of the possible use
of local enforcement agencies in federal immigration law enforcement as well as
workable and practical recommendations for Los Angeles County and other generalizable
localities with similar characteristics.
Significance of the Study
The topic involving sub-federal law enforcement agencies in the implementation
of federal immigration law continues to be on its crescendo as evidenced by its placement
on the list of high priority issues by the national government. Both major political parties
continue their attempts of advancing policies that best serve their respective constituents.
Undeniably, because Los Angeles County is considered a popular destination for
immigrants, the new Los Angeles County Sheriff will have to confront this issue. Thus,
the information generated from this policy analysis is critical for the Sheriff’s decision-
5
making purposes, especially when the decisions have the potential to negatively impact
his personnel and the communities they serve.
Los Angeles County is a large metropolis that has among its population, a large
percentage of undocumented immigrants. The county of Los Angeles alone has 140
unincorporated community areas and 88 cities, many of which have their own police
departments. The Los Angeles Sheriff’s Department has a contract with 42 contract cities
to provide law enforcement services, and among these cities are communities which are
known to have large immigrant populations such as Pico Rivera, Cudahy, Hawaiian
Gardens, Maywood, and Compton. In one way or another, residents of these communities
are associated with one or more undocumented immigrants. In sum, because of the
above-mentioned factors, it warrants that the new Los Angeles County Sheriff be
appropriately informed of this hugely scrutinized issue: involvement of sub-federal law
enforcement officers in the enforcement of federal immigration law.
Organization of the Study
This policy analysis attempts to answer the research question: should sub-federal
law enforcement agencies be involved in the enforcement of federal immigration law. To
that end, Chapter 1 established the background of the problem, statement of the problem,
purpose of the study, and significance of the study. Chapter 2 provides a discussion on
the evolution of federal preeminence over immigration regulations. Chapter 3 connects
the statutory background and tools for local law enforcement. Adding onto Chapter 3,
Chapter 4 discusses key post 9/11 policy changes and statutes. Current policies and
practices of states and local agencies are detailed in Chapter 5. Chapter 6 provides
information related to discretion of enforcement. Chapter 7 provides policy options and
6
their benefits and disadvantages for the next Los Angeles County Sheriff. Then, finally,
Chapter 8 concludes the study with recommendations that emerged from the policy
analysis.
7
Chapter 2: Evolution of Federal Preeminence Over Immigration Regulation
A comprehensive examination of the topic of sub-federal law enforcement
involvement in federal immigration law warrants an understanding of the evolution of the
development of federal preeminence in federal immigration. The following section
provides background to the development of federal preeminence on immigration
regulation and how it has been applied. As such, this discussion in this section also
details notable cases in which federal preeminence on immigration regulation has been
challenged and reaffirmed.
Supremacy Clause
The Supremacy Clause (Article VI) of the United States Constitution states that
federal laws are to be treated as “the supreme law of the land” regardless of what state
laws may authorize (U.S. Const. art VI, § 2). Essentially, within the scope of its
preemptive authority, Congress has the power to invalidate any state law, especially when
conflict exists between federal and state or local law. Further, Congress can enact a law
expressly prohibiting a state or locality from imposing any regulation or law.
Despite the efforts of some states, even today, to "nullify" federal laws they
disapprove of, few things in constitutional law are any clearer than the fact that any such
efforts are grossly unconstitutional. In the important 1958 case of Cooper v. Aaron, the
United States Supreme Court considered the efforts of state authorities to block
integration of Little Rock's Central High School and unanimously declared, "No state
legislator or executive or judicial official can war against the Constitution without
violating his undertaking to support it.” However, what remains a much more difficult
8
question under Article VI is when a state law or action is at least arguably consistent with
federal law that it creates sufficient conflict so as to justify finding it "preempted."
Preemption
The preemption doctrine derived from the Supremacy Clause of the Constitution.
The preemption doctrine means that any federal law (even a regulation of a federal
agency) trumps any conflicting state law. Preemption can be either expressed or implied.
When Congress chooses to expressly preempt state law, the determining factor is in
whether the challenged state law is one that the federal law is intended to preempt.
Implied preemption involves more difficult issues, especially when the state law in
question does not directly conflict with federal law. When it is a question of implied
preemption, the Court looks beyond the expressed language of federal statutes. The
determining factors include: whether Congress has "occupied the field" in which the state
is attempting to regulate, or whether a state law directly diverges with federal law, or
whether enforcement of the state law might diminish federal purposes. Federal
"occupation of the field" occurs, according to the Court in Pennsylvania v. Nelson (1956),
when there is "no room" left for state regulation. Courts are to look to the pervasiveness
of the federal scheme of regulation, the federal interest at stake, and the danger of
frustration of federal goals in making the determination as to whether a challenged state
law can stand.
The Chinese Exclusion Case – Establishment of Federal Immigration Preeminence
The Chinese Exclusion Case (1889) was the first case to articulate that Congress
has plenary power to regulate immigration. In the early immigration cases, prior to the
Chinese Exclusion Case, the Supreme Court faced the problem of identifying the source
9
of the federal government's exclusive and plenary power over immigration. The Chinese
Exclusion Case clearly established an absolute and largely unreviewable federal authority
to enact through Congress, and enforce through the executive branch, the nation’s
immigration laws. In the period that followed, even state statutory schemes that did not
expressly conflict with congressional enactments were deemed preempted where they
sought to regulate an area (e.g., alien registration) for which Congress had already
developed a comprehensive statutory framework. As a result, although states may pass
laws to regulate the entry, removal, and residency of unauthorized immigrants within
their boundaries, this authority is significantly limited by the preemptive effect of federal
law. The authority to regulate immigration law and the power to remove immigrants are
exclusively within federal responsibility.
As a result of the Chinese Exclusion Case, the Supreme Court of the United States
articulated a strong foundation for federal primacy on the topic of immigration
regulation. Accordingly, the Court effectively imposed significant limits on state
authority. The statutory framework that was established in the late 19
th
century went
largely unchallenged until the 1990’s. Over the past several decades, the Court has
acknowledged some limited spaces for state and local involvement in immigration
enforcement. Most notably, the very controversial and highly publicized case, Arizona v.
United States, was the Supreme Court’s most consequential immigration preemption
decision in decades. The next section discusses more completely the Arizona v. United
States case.
10
Arizona Senate Bill 1070—Support Our Law Enforcement and Safe Neighborhoods
Act
Until 2011, the Supreme Court had not decided a case about state or local
immigration regulation for more than twenty-five years. The last decision addressing a
sub-federal immigration law was issued in 1984 and the last immigration Supremacy
Clause ruling was in 1982. During the almost three decades that followed, the Court often
addressed federalism and preemption outside the immigration context and decided many
cases involving immigration law and the rights of non-citizens. The Court did not,
however, address immigration federalism. By comparison, in the period before 1984, the
Court decided more than a dozen cases challenging state or local laws and regulations
that singled out immigrants or imposed sub-federal immigration restrictions.
In 2010, Arizona enacted the Arizona Senate Bill 1070 (Arizona SB 1070)—
Support Our Law Enforcement and Safe Neighborhoods Act—popularly known as S.B.
1070. The purpose of SB 1070 was expressly set forth in Section 1:
The legislature declares that the intent of this act is to make attrition through
enforcement the public policy of all state and local government agencies in
Arizona. The provisions of this act are intended to work together to discourage
and deter the unlawful entry and presence of aliens and economic activity by
persons unlawfully present in the United States.
The key substantive provisions included creating new state immigration crimes,
authorizing state law enforcement officers to make certain immigration-related arrests,
and requiring state officers to ask suspected unauthorized noncitizens to present
immigration papers during police stops.
11
SB 1070 was signed into law April 23, 2010. Immediate pre-enforcement legal
challenges followed. SB 1070 faced challenges from a coalition of civil rights
organization and from the United States. Both sought to enjoin SB 1070 in its entirety
and specific provisions under the Supremacy Clause. Additionally, the civil rights case
raised claims under the Fourth Amendment, Due Process, Equal Protection and right to
travel guarantees.
At the injunction hearing, the district court made clear it would examine each
section or subsection of SB 1070, singularly. The court acknowledged the legislative
purpose announced in Section 1, but did not consider a comprehensive challenge to the
law as a whole. Accordingly, on July 28, 2010, U.S. District Judge Susan Bolton issued a
decision only in the United States case and enjoined four sections of SB 1070: Section
2(B) requires police to check the immigration status of persons whom they detain before
releasing them and allows police to stop and detain anyone suspected of being an
undocumented immigrant. Section 3 makes it a state crime for someone to be in the
United States without proper authorization. Section 5(C) makes it a state crime for
undocumented immigrants to apply for a job or work in Arizona. Section 6 authorizes
state law enforcement officials to arrest without a warrant any individual otherwise
lawfully in the country, if they have probable cause to believe that the individual has
committed a deportable offense. The state of Arizona appealed, but the United States did
not cross-appeal. On April 11, 2011, the Ninth Circuit U.S. Court upheld the district
court’s decision and issued a temporary injunction against the above-mentioned four
sections of SB 1070. Specifically, the Ninth Circuit unanimously enjoined the two state
12
crimes and by a divided vote, enjoined the warrantless arrest and verification
requirements.
Consequently, the state of Arizona sought certiorari. The case presented only the
validity of the injunction against the four provisions based on the United States facial pre-
enforcement challenge on Supremacy Clause grounds. In its Writ of Certiorari to the
United States Court of Appeals for the Ninth District, the state of Arizona alleged that
illegal immigrants were imminently overrunning the state (Arizona v. United States,
2012). Specifically, its 370-mile border was a conduit not only for immigrants, but also
for human smugglers to a point “unparalleled in any other state” (Arizona v. United
States, 2012). Arizona also asserted that the influx of immigrants has not only affected
public safety issues, but it has caused “economic strains” to the point of creating an
immigration emergency. The writ emphasized that Arizona was experiencing an increase
in kidnappings, which was unequaled in any other state (United States of America v.
State of Arizona, 2010). Another reason that warranted the enactment of SB 1070 was the
U.S. government’s perceived neglect. States like Arizona asserted the federal government
did not appropriately address the flood of unlawful migrants crossing over its border. The
influx of immigrants generated increased cases of victimization and a trail of trash and
destruction as these individuals trespass through public and private property. Critically,
the state of Arizona believed that SB 1070 paralleled the principal federal immigration
statutes—Immigration and Nationality Act and the Illegal Immigration Reform and
Immigrant Responsibility Act (IIRIRA)—which set the terms and conditions of
admission and treatment of aliens into the country (Arizona v. United States, 2012).
13
Arizona v. United States
On August 10, 2011, supporters of SB 1070 took the matter to the U.S. Supreme
Court and filed suit. The specific provisions of SB 1070 that were presented before the
United States Supreme Court were the four section enjoined by the Ninth Circuit: Section
2B, the so-called “show me your papers” verification provision requiring police to detain
and verify a person’s immigration status who is otherwise stopped by the police if the
officer has reasonable suspicion to believe the person is an alien “unlawfully present” in
the United States; Section 3, making it a state crime to violate the federal alien
registration law; Section 5C, making it a state crime for an alien to seek or engage in
unauthorized work; and Section 6, authorizing police officers in Arizona to make
warrantless arrests of persons who are suspected of having committed a public offense
that renders them removable.
On behalf of the respondents and the petitioners, amicus briefs were presented to
the United States Supreme Court on the Arizona v. United States case on the behalf of the
respondents and the petitioners, respectively. The briefs are discussed in the next two
sections, accordingly.
Two former attorneys general of the state of Arizona and forty-two attorneys
general of several states wrote the amicus brief on behalf of the respondents. These
individuals stated unequivocally that the provisions of SB 1070 would interfere with and
undermine the efforts of law enforcement officials because it turns them into immigration
officers (Arizona v. United States, 2012). As such, victims would hesitate to call law
enforcement when needed for fear of being deported and witnesses might not come
forward or be willing to testify for the same reason. The 42 high-ranking prosecutors
14
from 27 other states were individuals with many years of experience connected to the
issue of immigration. These individuals were former attorneys general, governors,
lieutenant governors, and U.S. attorneys and considered to be familiar with all aspects of
the immigration debate (see Appendix A for a complete list of these individuals who took
part in writing the amicus brief on behalf of the respondents). Thus, their participation
along with the former Arizona State Attorneys General in an amicus brief on behalf of
Respondent (the U.S. federal government) was significant.
Regardless of how much proponents of SB 1070 may argue to justify its
enforcement, the law leaves much leeway for abuse. Additionally, SB 1070 attempts to
commingle the responsibilities and control that fall under the purview of the federal
government. SB 1070 attempts to control who can enter and remain in the U.S.
Furthermore, SB 1070 lacks clarity as to how officers go about determining whether the
person they detain or arrest may be undocumented. The inherent subjectivity leaves room
for the officers to potentially exercise racial profiling. A large contingency of police and
sheriff agencies balk at the possible participation in the above-mentioned activities under
SB 1070. These law enforcement personnel are in favor of leaving the enforcement of
federal immigration law to the federal government and the enforcement of public safety
laws to state and local police. The focus of opponents of SB 1070 is to develop and
maintain trust between the police and the community.
On the other hand, the amicus brief on behalf of the state of Arizona—the
petitioner—presented on February 13, 2012 focused on a line-by-line explanation of a
section of State Statute Section 2(B). The impetus for this strategy was to show how both
the District Court and the Ninth Circuit Court of Appeals erroneously interpreted the
15
wording of the statute. The aim was to highlight that the lower courts, “Disregarded not
only the plain meaning of Section 2(B), but the Legislature’s expressed statement that the
provision be implemented ‘in a manner consistent with federal laws regulating
immigration” (Arizona v. United States, 2012). The preparers of the Amicus Curiae Brief
reasoned that the Arizona State Legislature passed SB 1070 to address the unreasonable
economic and public safety costs incurred as a result of the many challenges
undocumented immigrants represented to the state. The justification for the
implementation of SB 1070, as stated in the brief was because it mirrored federal law and
because it called for collaboration with the federal government (Arizona v. United States,
2012). To that, the argument presented in the Amicus Curiae Brief was by working in
cooperation with the federal government, the state would be able to address the
challenges brought about by illegal immigrants. The preparers of the Amicus Curiae
Brief argued that both the Circuit Court and the Ninth Circuit Court of Appeals ignored
precedent and claimed preemption by pointing out conflict between state and federal
regulation where it does not exist (Arizona v. United States, 2012). Section 2(B) is the
focus of the brief and subject to much interpretation and disagreement.
Furthermore, the Ninth Circuit Court’s allegation that sections of 2(B) created
confusion because it mandated not only that verification of immigration status should be
verified with the federal government, but also that 2(B) “provide(d) a presumption of
lawful presence” when a person presents an acceptable form of identification. It was
posited in the Amicus Curiae Brief both courts did not apply “normal principles of
statutory construction” because the Constitution’s structure does not favor the preemption
of state laws. The State of Arizona’s interpretation of Section 2(B) differed significantly
16
from that of both courts. For one, the first sentence stated where an officer makes a
lawful stop, detention, or arrest for any violation, including a city ordinance and the
officer suspects reasonably that the person may be illegal, that officer shall determine the
immigration status of the person. Also, before any person is released from custody, their
immigration status shall be verified (8 U.S.C § 1373[c]). Race, skin color, or national
origin shall not be a determining factor in the initial reason for contact. A person may
prove legal status by presenting a driver’s license or identification, any tribal
identification document, or identification issued by the federal government or any U.S.
state. The lower courts interpreted this section to mean that the law requires all persons
stopped to be subject to immigration status checks without exception. In another
sentence, it stated that an officer shall make an immigration status check when he or she
has a reasonable suspicion that a person may be illegal.
The Amicus Curiae Brief also addressed the Ninth Circuit Court’s erroneous
interpretation of the intent of SB 1070. The Ninth Circuit Court thought the intent SB
1070 was to make attrition through enforcement a public policy of the state to deter
illegal immigrants from coming into the state and encourage those already here to leave.
The state’s Amicus Curiae Brief argued that both courts over-focused on the issue of
attrition through enforcement and fail to pay closer attention at the passage that reads
Arizona’s “primary purpose was ‘cooperative enforcement of federal immigration laws.”’
The preparers of the Amicus Curiae Brief further added that the courts should have
focused more intently on the effects of the law and not the intent. Arizona emphasized
that SB 1070 would not preempt federal law and instead acted in accordance with it
17
(Arizona v. United States, 2012). Arizona concluded that the Ninth Circuit Court
misinterpreted Arizona law and for this reason, its decision should be reversed.
Ten months later, the U.S. Supreme Court rendered a decision upholding the
provision that authorizes officers to verify the immigration status of anyone they detain,
arrest, or suspect of being undocumented—the show me your papers provision. The other
three parts of the law were struck down on the basis that they interfered with the federal
government in setting and enforcing immigration policy. The following details the
decision offered by the Supreme Court of the United States, including the majority and
dissenting opinions.
The Supreme Court invalidated three of the four provisions. Justice Kennedy
wrote for the majority, which was comprised of five justices—the Chief Justice and
Justices Ginsburg, Breyer, and Sotomayor, with Justice Kagan, recused. The majority
struck down Section 3: the state registration crime; Section 5(C): the state unauthorized
work crime; and Section 6: the warrantless arrest authority. The majority rejected the
lower court’s decision on Section 2(B): the show me your papers requirement. Justice
Alito wrote separately and would have struck down only Section 3, the state registration
crime. Justices Scalia and Thomas each dissented and would have upheld all of the
challenged sections. Overall, six Justices agreed that the failure-to-register crime was
preempted and five Justices held two additional provisions preempted: the unauthorized
work crime and the warrantless arrest authority. None of the eight participating Justices
found Section 2(B), the show me your papers provision invalid on its face, though their
reasoning diverged in various respects.
18
The Supreme Court provided the following reasoning(s) to justify their decision
on each of the four provisions of SB 1070.
The Court struck down Section 3 (failing to register crime) because as a result of
Hines v. Davidowitz (1941), Congress had enacted an “all-embracing system” and had
found “field preemption.” The state of Arizona argued and the Supreme Court rejected
that Arizona be allowed to use SB 1070 to complement or supplement the federal
framework even if it had similar intent as the federal law and adopted the same
substantive guidelines.
Section 5(C) (criminal penalty for seeking or engaging in unauthorized
employment) was also invalidated because it was in conflict with Congress’s decision to
impose penalties on employers but not employees. As per the enactment of the 1986
Immigration Reform and Control Act, the Court recognized the extensive amendments
regulating employment of unauthorized aliens. The Court also concluded that the
provisions of SB 1070 that were under review, would negatively impact the delicate
balance Congress struck previously with respect to unauthorized employment of aliens.
In regards to Section 6 (authorization of state law enforcement officers to engage
in warrantless arrests of aliens for whom there is probable cause to believe they have
committed a “removable” public offense), the Court also found it preempted by federal
law. By allowing state police to engage in the manner suggested in Section 6, SB 1070
would be in conflict with the Immigration and Nationality Act’s arrest provisions.
Essentially, it would give more authority to police than federal law gives to federal agents
and authorize state police to act without any input from the federal government.
19
Decision on Section 2(B) encountered the most disagreement among the justices
of the Court. Ultimately, the Court rejected the facial preemption challenge to Section
2(B)’s mandate requiring state police to detain and verify with the Department of
Homeland Security the immigration status of a person they stop or arrest, if the police
officer has “reasonable suspicion” the individual may be “unlawfully present in the
United States.” The Court noted that Congress had specifically provided a mechanism for
law enforcement to verify an individual’s immigration status with federal immigration
authorities. The majority reasoned that Section 2(B) could be construed in a manner that
would not run afoul of the Immigration and Nationality Act. The Court, however, did
leave open the possibility of re-consideration of other preemption and constitutional
challenges once the law has been implemented.
Although the above discussion provided details to the decision of the majority on
the case, there were other opinions to the decision. The next section accounts the Court’s
dissenting opinion offered by Justice Antonin Scalia.
Justices Antonin Scalia, Clarence Thomas, and Samuel A. Alito disagreed with
the majority opinion, but Justice Scalia’s dissenting opinion offered the most stringent
criticism of the decision. Justice Antonin Scalia disagreed with the Court on the basis that
states have had the power to control immigration since the passage of the Alien and
Sedition Acts (1798), which stated in part, “all regulation of immigration was done by the
states.” This regulation excluded certain categories of individuals, such as convicted
criminals and paupers. Justice Scalia stated that part of his disagreement was due to the
fact that Arizona was a sovereign state and as such “has a right to keep out people who
aren’t supposed to be in this country, much less in Arizona, and SB 1070 only applied to
20
people who aren’t supposed to be here at all” (Howe, 2012, p.1). Justice Scalia added that
the states’ ability and power to control immigration within their borders was, if not
written, “reflected” in some parts of the Constitution as well as in the provision that
conferred upon states “privileges and immunities” granted to them by the Articles of
Confederation” (The Avalon Project, 1927). Although this was later revised on the idea
that citizens of one state could impose their immigration policies on other states, Justice
Scalia argued, states had federal power to enforce immigration because the authority
came from the fundamental aspect of sovereignty, which gives states power to exclude
unwanted persons from their boundaries. With regards to the question whether any
federal law forbids Arizona from enforcing immigration on its own, in view of the federal
government’s inaction, unwillingness, or refusal to enforce immigration in the state,
Justice Scalia stated, “There is no unequivocal congressional prohibition of what Arizona
has done” and there is no federal law stating particular states cannot establish their own
immigration law, as long as that law does not conflict with federal law (Arizona v. United
States, 2012). He added in part, what Arizona had done was merely to attach stricter
consequences to violations of federal law. Justice Scalia explained, with regards to SB
1070, “Arizona is merely seeking to enforce the very registration requirements that
Congress created” (Arizona v. United States, 2012). He criticized the government’s claim
that it was prevented from distributing more assistance to the state of Arizona due to
scarce resources. Justice Scalia posited just because federal immigration resources were
focused on other states (e.g., Texas and California) at the expense of Arizona, it should
not mean that Arizona could not “allocate its own resources to (combat) illegal
immigration in the state (Arizona v. United States, 2012).
Justice Scalia was very critical
21
of President Obama for the implementation of a program that excluded 1.4 million
immigrant youth from deportation. He added that the administration of that program
would require considerable revenue to implement. Thus, it contradicted the government’s
claim of using scarce resources as an excuse not to enforce immigration laws more
stringently. He further noted the Court justices’ decision in their ruling on this case was
contrary to the intent of the Constitution that “if any limitations to control immigration
within a state had been included in the initial draft, states would not have joined the
Union” (Arizona v. United States, 2012).
22
Chapter 3: Statutory Background and Tools for Local Law Enforcement
As evidenced from the previous chapter, the removal of criminal aliens has
become a policy priority for both the federal and local governments. Moreover, based on
a perceived need for increased internal measures to enforce immigration law, the federal
government has increasingly delegated indirect and direct power to sub-federal agents to
engage in the policing of immigration law. The most significant changes representing the
trend towards internal policing of immigration law by sub-federal agents occurred
beginning in 1996, with the passage of the Illegal Immigration and Immigrant
Responsibility Act (IIRIRA). IIRAIRA represents an effort by Congress to strengthen
and streamline U.S. immigration laws. The Act was designed to improve border control
by imposing criminal penalties for racketeering, alien smuggling and the use or creation
of fraudulent immigration-related documents and increasing interior enforcement by
agencies charged with monitoring visa applications and visa abusers.
Since 1996, there has been a drastic increase in programs, policies, and state or
municipal laws allowing for participation of sub-federal agents in the enforcement of
immigration law. Agreements pursuant to 287(g), Secure Communities, and state laws
and municipal regulations have all contributed to an environment of expanding sub-
federal involvement in the enforcement of immigration law despite the federal
government’s historic plenary power over immigration. This chapter examines federal
efforts to enlist sub-federal law enforcement agencies as partners in immigration
enforcement. Specifically, the discussion will focus on two collaboration policies
significant to the topic of sub-federal involvement in enforcing federal immigration law:
287(g) and Secure Communities.
23
Section 287(g)
As a part of IIRIRA, the United States Immigration and Customs Enforcement
(ICE) agency created ICE Agreements of Cooperation in Communities to Enhance Safety
and Security (ICE ACCESS) measures intended to enhance cooperation between federal
and sub-federal agents. Agreements generated as a result of the Immigration and
Nationality Act (INA) Section 287(g) are part of the ICE ACCESS programs. The
Section 287(g) agreements permit state and local law enforcement agencies to enter into
an agreement with ICE whereby officers at the state and local level were authorized to
cooperate with federal authorities in the enforcement of immigration law. The programs
involve the participation of thousands of non-federal officers and agencies (i.e., state,
local, and tribal jurisdictions). Under these programs, federal agents delegate power to
local police to carry out responsibilities, which have traditionally been the purview of
federal personnel. Further, these programs allow 287(g) participants in jail settings to
“identify, interview, and process removable aliens and are considered a force multiplier
for” ICE agents (Office of the Inspector General, 2012, p. 4). This is possible by means
of Memorandums of Agreement (MOAs) between ICE and local police and sheriff
agencies, and in some cases, an entire state. The MOAs establish a scope of authority
delegated to sub-federal agents and training protocols. Also part of the MOAs is the
understanding that ICE agents are responsible for supervising local law enforcement
agents as they help to carry out immigration enforcement duties.
There are three basic models of Section 287(g) agreements: jail model, the task
force model, and the hybrid—a combination of the jail model and the task force model.
The hybrid model allows certain agencies to implement the enforcement of immigration
24
law both within the jails by custody assistants and on the street level by officers on
patrol. The most common type of agreements is the Section 287(g) jail enforcement
agreements. The Section 287(g) jail enforcement agreements authorize local law
enforcement agents within jails (not necessarily patrol officers) to determine an inmate’s
immigration status, communicate that information to ICE, issue detainers to hold
noncitizens for ICE, and transfer individuals to ICE custody. After transfer, ICE may
issue a Notice to Appear (NTA), commencing immigration removal proceedings.
The local agent is empowered to determine that an individual may be
undocumented and communicate that information to ICE. The local agent may determine
that an individual is undocumented based on answers to questions about the arrestee’s
national origin or citizenship. An officer is not prohibited from presuming that an
individual is foreign-born based on factors such as appearance or ethnicity. The local
agent or ICE agents may then check the Department of Homeland Security (DHS)
database, conduct an interview with the detainee at the jail, issue a detainer permitting a
48-hour ICE hold before they are transferred to ICE custody, and issue the NTA. Either
DHS or local agents at the jail may conduct any or all of these steps.
The partnership approach between federal and local agencies helps to combat
crime and maintain public safety. As stated in ICE’s fact sheet, the Section 287(g)
program and the ICE ACCESS programs are among the available tools used to pursue
immigration enforcement. ICE ACCESS measures were created to assist local law
enforcement. The fact sheet indicates, “terrorism and criminal activity are most
effectively combated through a multi-agency/multi-authority approach that encompasses
25
federal, state and local resources, skills and expertise” (Department of Homeland
Security [DHS], 2014).
However, police chiefs and law enforcement executives have not been very
enthusiastic about these programs because to them, the programs destroy the trust
between police and the community. Immigrants who may not have documents or who
have family members who are undocumented may hesitate to report a crime for fear of
being turned over to ICE. For this reason, the recruitment process started at a very slow
pace. Accordingly, as of 2006, only eight agencies had signed up to participate. At the
time, the Section 287(g) program was “credited with identifying more than 309,284
potentially removable aliens – mostly at local jails” (DHS, 2014). However, as the
program became more known and gained more momentum, additional agencies have
partnered with ICE. As of 2013, 37 memoranda of agreement spread across 18 states
were in existence between federal and state agents in this regard (see Appendix B).
As of January 2008, DHS granted permission to ICE to investigate and disrupt
any terrorism related activities. DHS stated, a “mission of ICE is [not only] to investigate
possible violations of U.S. customs and immigration law,” but also, “to identify any
suspicious activities and relationships among non-obvious individuals and organizations”
(DHS, 2014). The expressed goal was to prevent any future acts of terrorism. In addition,
one of the stated goals of 287(g) is to increase the safety and security of communities by
apprehending and removing undocumented criminal aliens who are involved in violent
and serious crimes. A way to accomplish this goal is by having local sheriff deputies and
police officers work with ICE to identify, locate, and apprehend these dangerous people
(U.S. Congress, 2009).
26
According to ICE, it had only 6,000 agents and 6,000 detention and removal
officers for the entire nation and foreign government agencies. To that reason, its
resources were stretched thin” (U.S. Congress, 2009). The participation of officers from
local levels allow ICE to utilize the services of state and local officers as force
multipliers; thus, effectively increasing the number of personnel available to enforce
immigration laws.
In a hearing before the House of Representatives in 2009, the Office of Inspector
General conducted a review of Section 287(g) policies and ICE’s performance and
delegation of authority (U.S. Congress, 2009). Since the audit was performed, ICE asked
all partnering agencies to review and sign a new and revised memorandum of agreement,
which called for closer supervision and stricter oversight. ICE’s focus continues to be the
prioritization of going after violent criminal aliens. The concern was that ICE does not
have a mechanism in place to ensure only violent criminal felons are deported, and it has
no statistics to prevent the minor violator from being caught up in the same net of
deportation procedures as those who have committed serious violent crimes. One of
ICE’s stated goals is to apprehend the worst of the worst, but it is difficult to prove that
this happened as a result of the partnerships. The consequence of this cooperation
between federal and state/local agencies is that it has resulted in blanket deportations of a
mass group of people, most of whom have only committed minor offenses (i.e., traffic
violations or infractions) and are not considered violent criminals.
In light of the size of the budget, one concern of the program is whether there is sufficient
supervision and oversight of the officers (custody assistants) who have been asked to
implement the 287(g) program. Though the budget has grown substantially from $5
27
million in 2006 to $68 million in 2013, the question remains whether it is enough for the
task (DHS, 2014).
However, it should be noted, even though DHS may enter into agreements with
local entities to request cooperation in the enforcement of immigration law, when no
MOA exists between federal and state agencies, there is nothing to stop an officer to
work in cooperation with immigration agents during an investigation. Nothing stops the
local officers from consulting federal personnel or contacting them to inquire about the
immigration status of a person if there is reasonable suspicion the person may be
undocumented.
After the events of September 11, 2001, the pressure to apprehend any
prospective terrorist gave the law enforcement community more urgency to prevent
another such attack. Shortly after the events of September 11, 2011, the first Memoranda
of Agreement was executed between the federal government and the state of Florida. The
intent was to partner with the state to combat terrorism (Rodriguez et al., 2010, p. 6).
Moreover, ICE was very specific in stressing that the program was not intended to
address minor issues such as code violations, day labor activities, or minor traffic
violations.
ICE’s website clearly indicates the focus would continue to aim towards the
apprehension of criminals and anyone presumed to pose a threat to national security.
Deputy Assistant Director of ICE’s Office of Investigations testified before DHS’s
Subcommittee on Management, Integration, and Oversight that the aim of the federal-
state-local partnership was to go after “criminal aliens….not the landscaping type, in
order to make the most out of limited resources” (Rodriguez et al., 2010, p. 6). However,
28
it has been clear that the focus of federal immigration enforcement has gradually and
systematically moved away from the initial intent of ICE. As more and more jurisdictions
engaged with immigration enforcement, adequate oversight became nearly impossible.
By 2008, the MOAs included instructions to LEAs to process all immigration violators
regardless of the seriousness of the alleged crime (DHS, 2014).
Criticism of 287(g)
Cooperation, however, has not been without controversy. Section 287(g)
mandates local law enforcement officers to be trained at the federal training facility and
to work under strict supervision of immigration agents. However, this is impractical and
unreasonable because federal agents are not physically present at each and every facility
where the local law enforcement officers work. It is also questionable whether officers at
the local level are prioritizing the implementation of this program, which is to go after
serious and dangerous criminals. Moreover, because of the lack of federal supervision or
training, the local law enforcement officers are acting as federal ICE agents in order to go
after as many undocumented immigrants as possible.
Among the criticisms of Section 287(g) universal model are claims that the
program is flawed because it has resulted in deportation of thousands of non-violent and
non-serious undocumented immigrants. Additionally, Section 287(g) has received
negative reception in many jurisdictions because it impacts the community by eroding
trust between law enforcement and the general public who may hesitate to call the police
to report a crime, especially if deportation is a possibility. Additionally, it is argued that
the program creates incentives for officers on the street to engage in racial profiling under
the umbrella of enforcing immigration law, looking for absconders.
29
Secure Communities
Unlike Section 287(g), the Department of Homeland Security created Secure
Communities in 2008 as an enforcement policy. ICE’s stated goal in creating Secure
Communities was to “improve public safety by identifying, detaining, and removing
dangerous criminal aliens” (U.S. Immigration and Customs Enforcement, 2010, cover
page). Both 287(g) and Secure Communities are mechanisms meant to allow law
enforcement agencies (LEAs) to partner with federal immigration agents in the
deportation of dangerous criminals. According to a 2011 memo from ICE Director John
Morton, the enforcement priorities of ICE are to remove criminal aliens “who pose a
threat to public safety, prioritizing their crime, criminal history, and other factors (U. S.
Immigration and Customs Enforcement, 2014). Enforcement priorities also apply to
individuals who have repeatedly violated immigration laws and who have been charged
with or convicted of the most serious of crimes (U.S. Immigration and Customs
Enforcement, 2010).
Secure Communities had its origin in a Texas jurisdiction in 2008. It called for
reclassifying the commission of multiple misdemeanors and labeled them aggravated
felonies. The reclassification abolished the statute of limitations as it applied to illegal
immigration. In other words, an immigrant who might have committed a misdemeanor
years earlier would have that conviction on his or her record twenty years later; thus, the
immigrant would be subject to deportation on that charge alone (The Economist, 2014).
Secure Communities is an information sharing mechanism whereby ICE works
closely with local law enforcement in sharing biometric information obtained during the
booking process – and not upon being charged or convicted. This information, which
30
includes immigration status, is sent to the FBI who forwards it to DHS’s ICE agents who
will decide whether to issue a notice to appear (NTA) or a detainer pending deportation.
If a detainer is issued, ICE requests the local agency for notification when the person’s
case is either adjudicated or dismissed.
Unlike § 287(g), participation of local law enforcement in Secure Communities
program is possible through a Memorandum of Agreement (MOA) between ICE and the
state agency responsible for criminal information systems that link to the FBI’s National
Crime Information Center (NCIC) Automated Fingerprint Identification System (IAFIS)
(Kohli & Varma, 2011). Once an agreement has been approved, ICE has access to all
local law enforcement booking information obtained at the time of arrest. This
information sharing mechanism makes it possible for ICE to proceed to use the three-
tiered system in deciding what action to take with regards to the undocumented
immigrant. The following describes the type of crime committed at each of the three
levels in the three-tiered system: level one applies to serious and violent criminals; level
two applies to an immigrant who has committed multiple (more than three)
misdemeanors; and level three to person who have committed very minor infractions,
such as driving without a license, or no violations at all.
Although ICE’s stated goal is to remove the worst criminals, its data reports that
60 percent of those removed for deportation have been people with no criminal record or
low-level offenders (Rodriguez et al., 2011). Under Secure Communities, the FBI sends
fingerprints to DHS of all arrestees to determine if they are in the U.S. illegally. If it is
determined that they are undocumented, have a criminal record, or have prior removal
orders, ICE moves forward to prioritize them for deportation. This prioritization scheme
31
takes into consideration the seriousness of the crime and the possible additional burdens
to local law enforcement in the decision-making process. This information sharing
system is similar to when law enforcement agencies share criminal record information
between agencies, but impose no new responsibilities or burdens on the LEA.
Implications of Section 287(g) and Secure Communities
In the past two decades, grounds of removability have drastically expanded. As a
result, once data is shared with ICE (as pursuant to Secure Communities), initiation of
removal proceedings for unauthorized migrants has increasingly been more likely. DHS
has indicated that the goal of Secure Communities is to target noncitizens with
convictions for serious or violent crimes deemed to pose a threat to the community or
national security or the “most dangerous and violent.” However, there are indications that
the implementation of Secure Communities has resulted in arrests for minor alleged
criminal and traffic violations. Critics suggest that Secure Communities has resulted in
initiation of removal proceedings against significant numbers of unauthorized migrants
who are not dangerous or serious criminals. Moreover, local law enforcement agents have
stated that the application of Secure Communities has interfered with legitimate law
enforcement goals. Additionally, there are indications that in some jurisdictions lacking
287(g) agreements, sub-federal agents have cooperated with ICE in enforcing
immigration law by checking the immigration status of individuals detained for
nonimmigrant infractions.
By their nature and design, 287(g) agreements and Secure Communities empower
sub-federal agents to participate in identifying potentially unauthorized migrants. Due to
the fact that an arrest under Secure Communities automatically exposes any arrestee to
32
the possibility of identification by federal immigration authorities, it could incentivize
some state and local law enforcement agents to use criminal law violations as a pretext to
enforce immigration law. Sub-federal agents have significant power in this immigration
criminalization equation, in large part because of their discretion to make arrests.
One of the main reasons why practice is deviating from ICE policy with regard to
deportation of arrestees is due to the exercise of discretion on the part of the officer who
makes the initial contact with an immigrant arrestee. Officers are trained and proficient in
enforcing state laws, but the complexity of federal immigration law adds another level of
decision making and is subject to the training of each individual officer.
Additionally the level of supervision required to make sound immigration related
decisions is lacking. ICE agents are not physically present at all sheriff’s stations and
deputy sheriffs who encounter someone in patrol do not have immediate access to a
federal agent, such as having a patrol sergeant who is available for consultation at all
times. Consequently, the initial decision to delve further into the immigration status of a
person they stop is up to their knowledge base of immigration law and its collateral
issues, such as the validity of a visa, recognizing whether a green card [which may
actually be blue] is legitimate as well as the various levels of residency status, i.e.,
visitor’s permit; student visa; or even a work permit.
Although any officer who authorized to enforce immigration law is required to
attend a four week academy at the federal training facility in Georgia, the fact is that it is
impossible for the Sheriff’s Department to send all deputy sheriffs assigned to patrol, to
the federal training center for several reasons, among which is the impracticability of
33
such enterprise as well as the expense of having to hire an officer to cover behind him or
her while away at training.
Practice may be deviating from ICE policy as well because the policy states one
thing, but the act of implementation is another. For instance, ICE policy specifically
states its goal is to apprehend and deport only violent and serious criminal undocumented
immigrants, or those who pose a serious risk to public safety, but the fact is that the
policy is not being adhered to because it is too broad and it facilitates the inclusion of low
level offenders. ICE’s own statistics report that more than 50 percent of those deported as
a result of sub-federal involvement has committed only minor offenses or traffic
violations (U.S. Department of Homeland Security, 2011). The reason why this is
allowed to occur is because of the lack of specificity of crime categories.
34
Chapter 4: Key Post 9/11 Policy Changes and Statutes
After the terrorist acts of September 11, 2001, an increased awareness of the
vulnerability of the United States became quite evident. Accordingly, there was extreme
urgency to enforce immigration law and develop key policy changes to prevent future
attacks. The Immigration and Customs Enforcement (ICE) agency began to seek more
resources and turned toward recruiting local law enforcement to assist with measures to
control illegal immigration. Key policy changes relevant to the topic of sub-federal law
enforcement agencies in the enforcement of federal immigration law, after the events of
September 11, 2001, included the creation of the Department of Homeland Security and
the Patriot Act aside from Section 287(g) and Secure Communities, which were
discussed in the previous chapter. Accordingly, the following discussions will focus on
the creation of the Department of Homeland Security, which was established by the
Homeland Security Act of 2002 and the Patriot Act (U.S. Department of Homeland
Security, 2014).
Creation of Department of Homeland Security
The terrorist attacks of September 11, 2001 (9/11) changed the ordinary lives of
millions of people, to include the way Americans travel to how immigration related laws
are enforced in the United States. The most significant change in the Post 9/11 policy and
procedures was the creation of the Department of Homeland Security (DHS) in 2003,
which centralized the leadership of 22 federal agencies under one single cabinet-level
department (U.S. Department of Homeland Security, 2014) (see Appendix C).
Strengthening homeland security by creating information sharing tools, which did
not exist prior to 9/11, was a significant change for law enforcement. The newly created
35
information sharing tools included “72 fusion centers throughout the country, which
serve as focal points for the receipt, analysis, gathering, and sharing of threat-related
information between federal government, and state, local, tribal, territorial and private
sector partners” (U.S. Department of Homeland Security, 2011b, p. 1). Inclusion of local
law enforcement in maintaining the safety and security of the nation was deemed critical
because local law enforcement are in the front line of police work and are the eyes and
ears of the community. For this reason, they are better positioned to see when a possible
terrorist attack might take place. Consequently, the Post 9/11 Commission considered it
important to include local law enforcement in all efforts to successfully maintain
homeland security (U.S. Department of Homeland Security, 2011b). To assist with
maintaining homeland security, the following programs were also implemented: the
Nationwide Suspicious Activity Reporting Initiative, the National Terrorism Advisory
System, the “If You See Something, Say Something” campaign, airline pre-screening
procedures, and the deployment of the flight deck officer program. Additionally, the DHS
was also created. Moreover, although other initiatives were implemented, the most
relevant to immigration enforcement was the action taken to bolster the security of
United States borders at all ports of entry. The 2011 Post 9/11 Progress report stated,
“Protecting the nation’s borders – land, air, and sea – from illegal entry of people,
weapons, drugs, and contraband was vital to security of the homeland” (U.S. Department
of Homeland Security, 2011b, p. 1). In order to do so, it was necessary to significantly
increase technology and resources to deploy unprecedented levels of personnel, including
all law enforcement in this mission. The responsibility of protecting the homeland does
36
not lie on the shoulders of the federal government alone; homeland security begins with
hometown security (U.S. Department of Homeland Security, 2011b, p. 11).
Improved cooperation between the United States with nations on its Northern and
Southern borders is critical for homeland security. Consequently, DHS (then) Secretary
Janet Napolitano and her Mexican counterparts signed unprecedented bilateral
agreements calling for more cooperation in information sharing and trade along the
Southwest border (U.S. Department of Homeland Security, 2011b, p. 60). The
agreements also included a Criminal Information Sharing Arrangement in which ICE
“provides serious felony conviction information” on Mexican immigrants deported back
to Mexico.
Security at the Northern border calls for a strong partnership with Canada and a
shared understanding of the responsibilities necessary to maintain security. Accordingly,
security at the Northern border requires the cooperation and involvement of border patrol,
ICE, United States Coast Guard (USCG), and Canadian law enforcement to identify and
pursue any activity that may represent a threat to national security. DHS increased patrol
agents at the rate of 500 percent since 9/11. As of 2011, approximately 3,700 customs
and border patrol agents manage the flow of people at Canadian ports of entry (U.S.
Department of Homeland Security, 2011b, p. 61).
The collaboration of local law enforcement is critical to the safety and security of
the interior of the nation. Programs, in various forms, have been initiated towards the
fulfillment of this goal. In order to enhance law enforcement presence along the
Southwest border and deter criminal activity (e.g., illegal drug and human trafficking),
DHS has initiated two very effective tools that include sharing of information –
37
Operation Stonegarden and Alliance to Combat National Threats. Operation Stonegarden
is designed to strengthen law enforcement cooperation along the border. On the other
hand, the Alliance to Combat National Threats uses the collaboration of DHS and over 60
law enforcement agencies in the state of Arizona and the country of Mexico (U.S.
Department of Homeland Security, 2011b, p. 59). Federal agency cooperation also
involves the Joint Harbor Operations Center at the USCG center in San Diego. Unified
command for the Joint Harbor Operations Center included representatives from agencies
like the USCG, CBP, ICES, the United States Navy, Joint Task Force-North, the
California National Guard, and various local law enforcement” (U.S. Department of
Homeland Security, 2011b, p. 59).
The newly established policies required more focus on border control with both
Canada and Mexico. As a result, there was an increase in budget and resources as well as
recruitment of local, state, and tribal law enforcement agencies to work closely with ICE
in immigration enforcement. In order for these partnerships to run efficiently and
smoothly, ICE policy required each officer from participating agencies to receive training
at the Federal Law Enforcement Training Center in order to learn the specific guidelines
for enforcing federal immigration law (U.S. Immigration and Customs Enforcement,
2014a). Additionally, the officers had to work not only closely with but also under the
close supervision of immigration agents. These added guidelines were operationalized to
“ensure law enforcement agencies (LEAs) adhered to specified objectives and allowed
agents to exercise close control of the enforcement operations of jurisdictions in which
police on patrol and deputies in custody facilities are authorized to perform immigration
functions” (U.S. Immigration and Customs Enforcement, 2014a, p.4).
38
Since the formation of DHS, twenty-two federal agencies have been
encompassed. Thus, there was a need for a larger operating budget and larger allocation
because of the inclusion of additional agencies. The urgency to address immigration
related concerns is evidenced by the amount of funding siphoned into agencies such as
DHS. As a result of the Post 9/11 changes, “America now spends more money on
immigration enforcement than on all the other main federal law-enforcement agencies
combined” (The Economist, 2014, p. 23).
The annual budget of Customs and Border Protection (CBP), which includes
border patrol, increased significantly from $5.9 billion to $11.9 billion in fiscal
year 2013. The interior enforcement branch of ICE, a counterpart of CBP grew by
73 percent from $3.3 billion to $5.9 billion in 2013, while the budget for
Enforcement and Removal Operations (ERO) increased from $3.3 billion in FY
2005 to $5.9 billion in FY 2013. (Ewing, 2014, p. 3).
Consequently, as budgets increased, so did the number of agents available to
enforce immigration laws and to apprehend violators not only at borders, but also in the
interior of the country. From 2003 to fiscal year 2012, the number of patrol agents nearly
doubled from 10,717 to 21,394, while the number of agents increased both at ports of
entry and those assigned to Enforcement and Removal Operations (ERO) (Ewing, 2014).
The figures increased from 17,279 to 21, 423 and 2,710 to 6,338 respectively, raising the
total number of agents to 49,000 (Ewing, 2014).
In addition, ICE, being a branch of the DHS, sought to increase the personnel
pool by recruiting and deputizing thousands of officers at state and local levels to work
cooperatively with them in the enforcement of immigration law. The increase in budget
39
and personnel facilitated the creation of several immigration related programs intended to
increase the intensity with which undocumented immigrants can be apprehended (e.g.,
Secure Communities, which was discussed in the previous chapter).
USA Patriot Act
In effort to remedy possible potential acts of terrorism similar to the events of
September 11, 2001, Congressed passed the USA Patriot Act (also referred to as Uniting
and Strengthening America by Providing Appropriate Tools Required to Intercept and
Obstruct Terrorism). Although efforts to pass the USA Patriot Act began in January
2003, it was not officially passed until May 11, 2011, thereby providing the framework
for incremental changes. The USA Patriot Act significantly enhanced domestic security
and strengthened asset allocation for law enforcement to fight crime and terrorism more
successfully. The passage of the USA Patriot Act provided the Immigration and
Naturalization Service (INS) agency and CBP with $50 million each. In addition, the
Patriot Act allowed sharing of information among federal agencies to investigate acts of
terrorism against Americans in the United States and abroad. Furthermore, among other
functions, law enforcement was able to use surveillance capabilities against terrorism
related crimes and drug and passport crimes.
The USA Patriot Act produced tools such as enhanced surveillance capabilities,
technology to facilitate interception of electronic communication (e.g., voice mail) and
roving wiretaps, which involves the continuous and uninterrupted surveillance of a
suspect even when that person moves from one location to the next or changes means of
communication. The USA Patriot Act allowed agents to “seek court permission to use the
same techniques in national security investigations to track terrorists” (U.S. Department
40
of Justice, 2001, p. 1). Prior to the USA Patriot Act, search warrants were required for the
district where a search was to be conducted, which could be a complex and time
consuming process.
Aside from the increased capabilities discussed above, the USA Patriot Act placed
computer hackers in the same category as home burglars because they are considered to
have entered a person’s home illegally (albeit, electronically). Penalties for terrorism
related activities were expanded to include persons who harbor or support terrorists or
terrorist activity, including destruction of national defense materials, arson, and even
interference with aviation staff (Ewing, 2014, p. 2).
Under the USA Patriot Act, Congress eliminated the statute of limitations for acts
of terrorism in order to enhance the “ability to prevent, investigate, and prosecute acts of
terror” (Ewing, 2014, p. 2). It was claimed that the events of 9/11 were carried out
because of a lack of cooperation and communication between intelligence and federal
agencies and analysts (Best, 2007). The intelligence and federal agencies tended to keep
information from each other as to not jeopardize any potential investigation: “Information
was not only, not sufficiently shared between different Intelligence Community agencies,
but also within individual agencies, and between the intelligence and law enforcement
agencies” (U.S. Congress, 2002). The National Commission on Terrorist Attacks upon
the United States (The 9/11 Commission) listed lack of information sharing among
agencies and offices of the Department of Justice as a possible cause of the events of 9/11
(National Commission on Terrorist Attacks Upon the United States, 2004). Consequently
almost immediately following the terrorist attacks, Congress agreed that in order to fight
terrorism, information would have to be shared. Further, this effort would have to involve
41
all “parts of the U.S. Government, including law enforcement and the Intelligence
Community” (U.S. Department of Justice, 2001, p. 13).
The intelligence and law enforcement agencies were reluctant to share
information in order to protect American citizens and to prevent eavesdropping on
ordinary citizens. However, the USA Patriot Act removed barriers that previously
prevented agencies, law enforcement, intelligence organizations, and national defense
from communicating with each other in order to “protect the American people” (U.S.
Department of Justice, 2001, p. 2).
42
Chapter 5: Current Policies and Practices of States and Local Agencies
As stated in the previous section, the involvement of state and local agencies adds
an element of complexity to federal immigration law enforcement. Already, local and
state criminal law is complex and requires training, education, and discretionary action.
There may be times when an officer has to make a split second decision. At all times,
officers at state and local levels must be knowledgeable of the laws they are charged to
enforce as well as to the possible consequences of their actions. They are subject to
liability for erroneous arrests, incidents of use of force, and over detention of persons
they arrest. When state and local officers are involved in the enforcement of federal
immigration law, they also expose themselves to additional potential liabilities (e.g., civil
lawsuits) (Grenwald, 2011). The participation of state or local law enforcement in the
enforcement of federal immigration law is under the discretion of either the chief of
police or sheriff of a particular jurisdiction. For this reason, there are some state and local
agencies that participate in the enforcement of federal immigration law, while others
choose not to participate.
The following sections provide the varying perspectives of state and local
agencies with regards to their involvement in enforcing federal immigration law.
Specifically, focusing on the actions by sub-federal governments, the following sections
will include why some state and local agencies have taken actions to insulate
unauthorized immigrants from federal law enforcement (e.g., states pulling out of Secure
Communities and states implementing such policies as the CA Trust Act) and why other
states have pursued aggressive policies post Arizona v. United States decision.
43
States and Local Agencies’ Withdrawal From Secure Communities
The Immigration and Customs Enforcement (ICE) agency stated the highest
priority of Secure Communities is to improve the ability to identify and remove
“convicted criminal aliens from the United States” and to protect the community (U. S.
Immigration and Customs Enforcement, 2014b). Its goal is to prioritize the removal of
criminal aliens; at the top of the list of priorities is the removal of “those who pose a
threat to public safety, and repeat immigration violators” (U. S. Immigration and
Customs Enforcement, 2014b). This is to be accomplished through an existing system
that contains criminal information about people who have been arrested. Using the
system, the agents are able to compare information on fingerprints and share other
relevant information for purposes of local, state, and federal law enforcement. The
information sharing system was designed to help determine who fits the criteria of a
deportable immigrant—those who have been convicted of serious or violent crimes. The
issue is a number of immigrants fall within the category of deportable even though they
may not have committed a serious or violent crime. These individuals may have had
charges dropped or may even be legal. Moreover, in practice, the Secure Communities
program shifts the burden of federal immigration enforcement onto local law
enforcement without providing reimbursement for the cost of detention, administration,
and tracking of immigration detainers (U. S. Immigration and Customs Enforcement,
2014b).
Yolo (California) County Sheriff Ed Prieto agreed to participate in Secure
Communities because he believed the goal of ICE was to remove violent criminals.
However, when Sheriff Prieto discovered a large majority of people who were being
44
turned over to ICE for deportation were immigrants who had committed no crime, had
committed a minor offense, or had charges dropped against them, he withdrew his
support. Although there was overwhelming support for removing dangerous and violent
criminals, there was also strong reluctance to participate. Reluctance to participate stem
from the fact that as law enforcement casted a wide net to ameliorate the high number of
illegal immigrants, many non-criminals and ordinary undocumented immigrants became
unintended targets of deportation. Accordingly, this resulted in fear within the
community and distrust of law enforcement because witnesses and victims were afraid to
come forward with information regarding the commission of a crime. As a result, Sheriff
Prieto instructed his staff to notify ICE only when an undocumented immigrant has been
convicted of a violent and serious crime.
San Francisco County Sheriff Michael Hennessey also followed suit by drafting
policies instructing his deputies not to notify ICE when someone charged with infractions
or low-level misdemeanors have been detained (U. S. Immigration and Customs
Enforcement, 2014b). Anyone arrested for these minor reasons are to be “cited and
released” (Grenwald, 2011). However, the policies drafted by Sheriff Hennessey did ask
for his staff to continue to work with ICE in cases involving domestic abuse, two or more
serious misdemeanors, a prior felony, or protective order violations.
California’s Sonoma County Sheriff Steve Freitas also sent notice to ICE that his
sheriff’s office would no longer honor any detention holds for ICE absent a probable
cause or an arrest warrant (Espinoza, 2014). However, similar to other law enforcement
executives who have opted out of Secure Communities, he stated he would continue to
45
hold for ICE undocumented immigrant suspects who have been convicted of a violent
felony.
Illinois Governor Patrick Quinn was among those who terminated their state’s
participation in Secure Communities. Illinois felt that Secure Communities hindered law
enforcement’s ability to fight crime and conduct investigations. Other law enforcement
executives who opposed the program were retired Sacramento Police Chief Arturo
Venegas Jr. and Sheriff Patrick Perez of Kane County, Illinois. As more and more
agencies opted out of Secure Communities, citing the reason for the decision to terminate
was the mismatch between the stated and realized ICE policy “goal of removing those
who pose the greatest danger to public safety” (Keene, 2011, p. 1).
The State Legislature of California passed into law Assembly Bill 1081 (AB
1081) in 2012, which prohibits law enforcement officials from detaining an individual on
an immigration hold after that person has been deemed eligible for release. The reasons
cited in AB 1081 center on a common theme listed by law enforcement executives. The
reasons included: erosion of trust between law enforcement and the immigrant
community, shift of burden from federal to local enforcement of immigration law, and
the potential that people who have been acquitted of a low-level crime or who have had
no charges filed against them are deported instead of being released as mandated by local
law. The bill, however, does not prohibit holding an undocumented immigrant for ICE
when that person has been convicted of or served time for a serious or violent crime.
Further insulating unauthorized immigrants from federal law enforcement,
California Governor Jerry Brown signed into law, Assembly Bill 4 (Trust Act) in 2013.
46
The Trust Act limits cooperation between local law enforcement and federal immigration
officials to only suspects arrested on charges of serious and violent crimes.
Racial Profiling – Maywood Police Department
At the other end of the spectrum, restrictionist jurisdictions have pursued more
aggressive policies in regards to immigration related enforcement. An example is what
happened in the city of Maywood whose population is estimated at approximately
28,381(U.S. Census Bureau, 2007). Of the total population, 97 percent is of Hispanic
descent. It is also believed, although difficult to ascertain according to 2010 Census,
additional 20,000 or more persons of Hispanic descent may be residing within the city.
That amounts to a city population of approximately 49,000, with 40 percent believed to
be undocumented.
Pursuant to California Vehicle Code Section 14607.6 (c)1, officers may impound
a vehicle if a driver is unable to produce proof of a valid driver’s license, unless the
officer is able to verify that the driver is licensed. Although officers had discretion on
whether or not to impound a vehicle (e.g., when it could be parked safely without
creating a hazard, or when it could be released to a licensed driver), Maywood officers
were also encouraged (by their superiors) to tow at least two vehicles per shift, if not
more. In addition to stopping and citing drivers, officers were also implicitly asked to
impound vehicles for a mandatory of 30 days. In order to reclaim their vehicles, drivers
must pay a fee of approximately $1,200 to $1,500, which was sometimes more than what
the vehicle was worth.
The towing and vehicle storage facility, which contracted with the city for towing
services, paid $200 per vehicle to the city. These towing services providers also sent
47
notices to the registered owners, informing them that if they do not claim their vehicles
within 30 days, they would be auctioned. Many of the drivers whose vehicle was taken
did not speak English or understand the content of the notice and sometimes did not
claim the vehicle due to lack of knowledge of the laws, distrust of the police, fear of
deportation, or simply decided it was better to write the loss off as one of the
consequences of being in the United States because the fee was more than the vehicle
was worth.
When the local law enforcement agency of Maywood faced scrutiny over possible
racial profiling, officers claimed that they were claimed they were justified pursuant to
the vehicle code. However, due to the number of undocumented people living and
working within the city, the likelihood that they might be unlicensed, uninsured, and
driving an unregistered vehicle was highly probable. A report from the California State
Attorney General’s office stated there was sufficient “circumstantial evidence to support
that Maywood police officers engaged in a pattern of conduct which violated” the
constitutional standard of reasonable suspicion that a traffic or criminal violation has
occurred when conducting a traffic stop as well as the practice of impounding vehicles in
violation of a person’s constitutional right against unreasonable seizures including the
impounding of a vehicle (State of California Department of Justice, 2009, p. 15).
Although this is just one example of what could happen if officers are given
authority to enforce immigration law, the possibility that it may occur in other
jurisdictions is quite real and a consequence of officers losing sight of the primary
responsibility of their law enforcement duties – which is to protect life and property,
prevent crime and provide a semblance of safety to the communities which have
48
entrusted them to do so. In spite of the controversy whether to cooperate with federal
agents in the enforcement of immigration law or not, there is much discrepancy in the
approach toward undocumented immigrants, with some wanting them to self-deport and
others choosing to shield them from deportation. As a result some states have attempted
to pass pro-immigrant legislation while others have chosen to take a more restrictive
approach in their efforts to pass immigration related bills in the House of Representatives
(see Appendix D).
Other Restrictionist Policies Post Arizona v. United States Decision
Other states have followed the Arizona SB 1070 example and implemented their
own “attrition by enforcement” policies in order to encourage undocumented immigrants
to leave or self-deport. Both Alabama and South Carolina had policies in place similar to
Arizona’s SB 1070 in the hope that by making life difficult for undocumented
immigrants, they would self deport. Passed in 2011, Alabama’s HB 56 was designed to
force undocumented immigrants, many of whom came to the state in recent years for
work in agriculture and meatpacking, to leave by blocking their ability to work, do
business with the state, and even accept a ride in a car. In South Carolina, the program is
run by the Mecklenburg County Sheriff’s Office and allows law enforcement officers to
perform the same duties as ICE agents. States that have implemented immigration related
laws are shown in Appendix E.
Summary
As evidenced from the above discussion, there are some jurisdictions that have
chosen to insulate immigrants and some that have chosen more restrictionist policies to
ameliorate the immigration issue. Each state and local agency is afforded the option to
49
implement what best suits their jurisdiction. More information for consideration is
offered in the next chapter, which discusses what can happen if discretion is left to local
law enforcement agencies and their agents.
50
Chapter 6: Discretion of Enforcement
As officials from state and local jurisdictions think about participating in the
enforcement of federal immigration laws, it is important to understand what may happen
if state and local officers are given discretion to enforce federal law and the possible
conflicting federal laws should they choose to participate. Specific to immigration, the
following sections provides details on the Fourteenth Amendment and the Due Process
Clause, prosecutorial discretion, proportionality (balance between crime and
punishment).
Fourteenth Amendment and Due Process Clause
The Fourteenth Amendment of the Constitution’s Equal Protection Clause states
that no state shall “deny any person within its jurisdiction the equal protection of the
laws.” One of the drawbacks of being afforded discretion to enforce federal immigration
law lies in the subjectivity of the enforcement process. It is highly possible that persons
detained during a traffic stop may be delayed unreasonably while an immigration
investigation is conducted. As a consequence, the persons might be denied equal
protection. It is quite possible that persons detained during a legal traffic stop could be
detained more than the time required to conduct the required activity related to the stop
based on the fact that the officer may suspect a person might be illegal based on certain
criteria, such as deficiency in English language speaking ability, lack of driver’s license,
or even physical appearance and demeanor. Such a person could be subjected to being
transported to a precinct or police station on the pretense or belief that further
investigation is conducted. Most times detainees are denied access to a lawyer on the
claim that they are not entitled to equal protection rights due to the fact that they are not
51
U.S. citizens. The United States Supreme Court Justice Bradley said in 1897, “While it
was clear that certain legislatures were granted discretion,” use of discretion was
acceptable as long as it was exercised reasonably, “But clear and hostile discrimination
against particular persons and classes, especially such as are of an unusual character,
unknown to the practice of our governments, might be obnoxious to the constitutional
prohibition” (Bell’s Gap R. Co. v. Pennsylvania, 1890).
Prosecutorial Discretion
Prosecutorial discretion refers to the decision to enforce or not enforce a law
against someone. Specific to immigration related enforcement, prosecutorial discretion
can also refer to the decision to issue a notice to appear, to initiate deportation
proceedings, or to appropriate investigative resources in furtherance of immigration
related cases. It also references factors to consider in making the decision to stop and
question someone on the basis of their immigration status, or whether to take no action or
be guided by a humanitarian approach, as in the case of a nursing mother, an elderly
person or a minor. Because Immigration and Customs Enforcement (ICE) has limited
resources and is not expected to arrest and deport every undocumented immigrant,
discretion is allowed to set priorities in order to meet the goals of ICE, which are
“protecting public safety, promoting integrity of the legal immigration system, and
deterring violations of the immigration law” (U.S. Department of Justice, 2000, p. 2).
Additionally, discretion is encouraged in order “to maximize the likelihood that serious
offenders will be identified” (U.S. Department of Justice, 2000, p. 5) for removal.
Federal immigration officers are not only authorized by law, but are “expected to
exercise discretion in a judicious manner at all stages of the enforcement process” (U.S.
52
Department of Justice, 2000, p. 5). To that end, officers may avail themselves of a list of
factors to be considered in reaching any such decision under each individual
circumstance and time frame. In the case of a favorable discretion, officers are authorized
to NOT make a decision to use the full force of immigration law (U.S. Department of
Justice, 2000) (see Appendix F). However, such discretion does not apply in instances
where the law has been violated, nor does it apply in cases requiring approval for a
naturalization application.
The relevance of prosecutorial discretion in the context of this paper is that while
it may not be exercised to the extent of deciding to enforce or not federal immigration
law, police officers and deputies at the state and local level exercise discretion on a
regular basis when it comes to stopping a person for a local violation, and exercise
discretion whether or not to pursue an investigation into the immigration status of a
person they stop – where they are not prohibited by their agency’s policies from doing so.
The policy of prosecutorial discretion [10072.1] is fiscally associated with the
federal government’s limited resources as well with enforcement of ICE’s three highest
priorities, which are the removal of undocumented immigrants who pose a threat to
national security or public safety; immigrants who are active gang members and over 16
years of age and; immigrants who have an extensive criminal record and have been
convicted of violent crimes; and undocumented immigrants who have outstanding
criminal warrants (U.S. Immigration and Customs Enforcement, 2011a). Other priorities
include removal of recent undocumented entrants, stricter border control and points of
entry, and removal of fugitive immigrants who have a previous order of deportation.
Although the three highest priorities involve the above-stated criteria, a memo by former
53
director of Immigration and Customs Enforcement John Morton states that the
“apprehension, detention, and removal of any alien unlawfully in the U.S. is not
discouraged.”
The implementation of this policy of prosecutorial discretion results in bypassing
several layers of federal law enforcement and related costs, which include the need for a
facility to detain a prospective undocumented immigrant, the necessity to wait for a court
appearance, and the time and resources needed to bring a detainee before an immigration
judge (U.S. Immigration and Customs Enforcement, 2011a). In 2013 alone, a “record
363,000 or 83% of deportations were carried out without appearing before a judge” either
through an expedited removal order or a previous order of removal (Gonzalez-Barrera &
Krogstad, 2014, p. 1).
Prosecutorial discretion by definition is the authority to decide how much of the
law to enforce against a particular individual. In the context of immigration law, this
discretion is exercised in order to prioritize the use of ICE resources as well as to
consider the seriousness or the triviality of the offense leading to initial contact with
authorities. Some of the decisions which can be made only by ICE agents include the
decision “to issue or cancel a notice of detainer, to file a notice to appear, to focus strictly
on violations of particular seriousness,” discretion of whom to detain or release on their
own recognizance or bond, or to seek expedited removal without the need to bring an
undocumented immigrant detainee before an immigration magistrate (U.S. Immigration
and Customs Enforcement, 2011a, p. 2). The exercise of prosecutorial discretion at the
level of a patrol officer or a custody assistant begins at the point of contact with an
54
alleged undocumented immigrant. However, the ultimate decision as to what outcome to
seek is up to ICE agents.
Discretion is exercised in accordance with ICE’s enforcement priorities, which
are the furtherance of national security, public safety, and border security (Morton, 2011).
The persons authorized to exercise such discretion involve “officers, agents, and their
respective supervisors” with authority to engage in immigration law enforcement and
who have power to begin removal proceedings.
While the policy [10072.1] grants an officer the ability to decide whom to stop,
question, and deport, it also indirectly affords him or her the discretion to take into
consideration humanitarian conditions such as when and how long the detainee has been
gainfully employed, whether he or she has dependents, or whether the removal will cause
undue hardship not only to the individual but to the family as well (Morton, 2011).
Taking these circumstances into consideration and applying discretion in this manner is
tantamount to exercising authority to the extent that it could be deemed a form of
deportation deferment.
Some factors which may be taken into consideration when leaning towards a
favorable outcome for the immigrant are whether the immigrant is a U.S veteran or has
served in combat, “long-time lawful permanent residents, whether the immigrant is a
minor or an elderly individual, present in the U.S. since childhood, pregnant or nursing,
victim of domestic violence, trafficking or serious crimes, or serious health conditions or
who suffer from serious mental or physical disabilities” (U.S. Immigration and Customs
Enforcement, 2011a, p. 2).
55
In comparison with the criminal aspect of prosecutorial discretion as it pertains to
the decision a prosecutor has to make to proceed in a criminal case, the prosecutor takes
into consideration the seriousness of the offense, the strength of the evidence, and the
probability that the circumstances presented will lead to a successful outcome,
conviction, or a plea bargain whereby the defendant pleads to a lesser included offense.
In the case of immigration related cases, prosecutorial discretion grants considerable
flexibility and less work is required to dispose of a case in immigration court due to lack
of incentives (Wadhia, 2010, p. 245).
Prosecutorial discretion policy is often exercised as well by immigration judges
“in determining which undocumented immigrants should be singled out for deportation
proceedings and which should be permitted to remain, for how long and under what
conditions” (Wadhia, 2010, p. 278). Important to note that the impact of this exercise of
discretion in the realm of immigration law affects not only the undocumented immigrant
but the family as well due to the prospect of separation and in some cases by the
deportation of a head of household and main income earner in some cases, whereas in
criminal proceedings the impact is felt primarily by the defendant who is afforded the
luxury of legal representation and exercise of constitutional rights.
Furthermore, the policy of prosecutorial discretion means that deportations can be
carried out as a result of an expedited removal order, which is usually issued by an
immigration agent after being notified by an officer on patrol or a custody assistant at a
county jail that they are holding a potentially deportable immigrant. This is sometimes
based on the existence of a previous order of deportation, or a reinstatement of final order
of removal. With regards to this policy being implemented by sub-federal officers, the
56
exercise of prosecutorial discretion leaves the initial decision making in the hands of
officers who may or may not be equipped with a complete understanding of the
complexities of immigration law, but who have been given authority to hold an
immigrant pending issuance of an immigration hold. On the other hand, prosecutorial
discretion also affords a local officer discretion to be guided by humanitarian values
taking into consideration the seriousness of an offense in deciding whether to cite and
release the arrestee and bypassing the need to take the detainee before a magistrate.
Proportionality – Crime vs. Punishment
Undocumented immigrants who get caught up in the process of deportation are
frequently handed an extreme penalty, namely deportation for a minor violation, which
under different circumstances would amount to only a citation or a fine. Aside from
denial of due process, those who do proceed through the immigration justice system are
often recipients of excessive fines and punishment (e.g., unreasonable and extended
detention often disproportionate to the initial crime or violation).
The Eighth Amendment and the due process clause solidly postures its stand on
prohibition against unusual punishment and excessive fines. Presently, immigration
judges do not consider the seriousness of a crime or whether it is a minor misdemeanor or
a felony in deciding whether a person is deported or not. The Supreme Court delineates
sentencing guidelines in title 18 U.S. C. § 1353(a) to aid courts in determining an
appropriate sentence to fit the crime: “Title 18 U.S.C. § 3553(a) contains an overarching
instruction to impose a ‘sentence sufficient, but not greater than necessary’ to accomplish
the sentencing goals” (Kimbrough v. United States, 2007).
57
The subjectivity of discretion is quite evident in the decision to pursue an
investigation for immigration related purposes because it requires detention beyond the
time it would normally take were the issue of immigration not present. As is most typical
of immigration related investigations, additional time is required to transport the person
to a station, contact an immigration agent to verify the status of the detainee, and to place
a federal hold, if the person turns out to be undocumented. The immigrant’s status as
undocumented does not in itself justify indefinite detention. For “once a person enters the
country, the legal circumstance changes…the Due Process Clause applies to all persons
within the United States, including aliens, whether their presence is lawful, temporary or
permanent” (Shaughnessy v. United States, 1953).
Code of Federal Regulation title 8, Section 287.7(a) states that a local, state, or
tribal jurisdiction officer may perform immigration related enforcement duties and is
authorized to issue a detainer by this authority. The person may be detained for up to 48
hours, excluding weekends and holidays during which ICE may either arrange
transportation for the detainee. If ICE does not place a hold on the person, after 48 hours
have expired, the person is to be released if no criminal charges are filed. However, some
officers who may either be misinformed or lack understanding of immigration law
sometimes keep the individual in custody even if ICE does not take custody (Immigration
Policy Center, 2010).
Immigration detainees have to be either released to immigration agents or brought
before an immigration judge within 48 hours, excluding weekends and holidays, which
means that it is possible when a person is detained on a Thursday, he may or may not see
a judge the following day, nor appear before one over the weekend. In the meantime
58
agents can show up at the station and remove the immigrant for deportation or
transportation to an immigrant detention facility regardless of whether the process
required additional time in detention or whether the person was denied of rights afforded
to all people living on American soil. Under the Fourteenth Amendment all persons “in
the United States are entitled to equal protection, including aliens” (Yule, 2010, p. 1).
The fact is that a large number of immigrants who are deported do not have an
opportunity to appear before an immigration judge since most are arrested, detained, and
summarily deported by the Department of Homeland Security (DHS). This is usually
done in one of two ways, expedited removal and reinstatement removal. An expedited
removal is one whereby immigrants are turned back at the border if they lack proper
documentation. The reinstatement of removal refers to a previously deported immigrant
who returns to the U.S. and is deported.
In both of these situations, a DHS officer who typically lacks formal legal training
makes a quick decision about whether a person will be deported without any
hearing or any meaningful opportunity for that person to contest their deportation.
Noncitizens deported by either of these two means have very few legal rights and
very little chance of having their deportation halted. (American Immigration
Council, 2014, p. 1).
The use of both systems of deportation, expedited and reinstatement, is done
without any consideration of due process consistent not only with the justice system, but
with American values. Most immigrants who are detained prior to deportation are rarely
if ever given the opportunity to appear before a judge and those who do, do not always
have an opportunity to post bond or consult an attorney – even if it is at their own
59
expense. ICE statistics point in this direction, according to their own records, 368,644
people were deported in fiscal year 2013 (American Immigration Council, 2014). Of that
figure, 27 percent, or 101,000 were removed via the expedited process and 43 percent or
159,624 via the reinstatement of removal. In other words, seven out of every 10 people
deported never appeared before an immigration judge.” The previous year, “419,000
people were deported, and of that figure 30 percent or 163,000 were removed via
expedited method while 36 percent or 149,000 via the reinstatement” format without any
due process.
The Due Process Clause which both the Fifth and Fourteenth Amendments
contain, have been recognized by the Supreme Court as applying to all persons living
within the United States, including aliens, “whether their presence in the U.S. is lawful,
unlawful, temporary or permanent” (Zadvydas v. Davis, 1981).
The conclusion to be made from the figures cited above is that of due process is
not afforded to all persons who live within the United States, and when it comes to
immigrants who are out of status these rights are not only disregarded, but are actually
denied to a majority of deportees. This leads to the assumption that a person is more
likely to be afforded basic legal rights when charged with a criminal offense as opposed
to a civil immigration violation. Although the requirements for due process tend to
depend on particular circumstances at the time of arrest, “states and localities must
nevertheless provide persons with some type of process to contest the deprivation of a
protected interest,” such as liberty and “appearance before an impartial tribunal,” which
may or may not always be the case (Yule, 2010, p. 263).
60
The basic requirements of due process mandate, at minimum, the opportunity to
appear before an impartial judge, the right to confront and cross examine witnesses, to be
able to present evidence and be afforded the right to counsel, basic rights which tend to
be disregarded in the immigrant detention and deportation process (Shaughnessy v.
United States, 1953). Prosecutorial discretion affords the hearing officer the ability to
decide whether a person is to be deported based on the status of the detainee’s
immigration and not the seriousness of the crime leading to the arrest and detention.
However, “A grim reality of the U.S. immigration system is that the majority of
immigrants deported from the country do not have the opportunity to plead their case
before an immigration judge. Instead, DHS unilaterally and summarily orders most
individuals deported” (American Immigration Council, 2014).
Whether the Punishment Fits the Crime
The question is whether punishment fits the crime as it relates to deportation – or
exile – for an act which is not criminal, but a civil violation of immigration law (e.g.,
being present without legal immigration documents). The fundamental rights as stated in
the Eighth Amendment to the U.S. Constitution postures “Excessive bail shall not be
required, nor excessive fines imposed, nor cruel and unusual punishments inflicted” (U.S.
Government Printing Office, 2002, p1597). Applying this logic to the status of
immigrants who have no proof of legal residency leads to the idea that deportation, which
can be constituted as banishment, can be seen as excessive for a civil violation absent a
serious criminal charge. United States Supreme Court Justice Field argued in O’Neill v.
Vermont (1892), “in addition to prohibiting punishments deemed barbarous and
inhumane, the Eighth Amendment also condemned all punishments which by their
61
excessive length or severity are greatly disproportionate to the offenses charged.”
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual
punishments inflicted.
In criminal cases, there is the existence of due process, which involves
representation by counsel, the right to face and cross-examine witnesses at trial, and even
the possibility of a reduction in sentence due to plea-bargaining. The prosecutor has the
discretion to file a case in the first place, based on the availability of evidence and
witnesses as well as the strength of a case. In many cases if one or more of these factors
are absent, the case is not prosecuted and the suspect goes free. Whereas in civil
immigration law, not only is an undocumented immigrant not afforded due process rights,
but most times not able to contact a lawyer and even possibly subject to over-detention
beyond the 48 hour hold specified in ICE policy (U.S. Immigration and Customs
Enforcement, 2011b). Additionally, when an undocumented immigrant is detained, there
is a strong possibility he or she might be subject to expedited deportation. Immigrants, in
numerous cases, may not be aware that legal assistance may help them and consequently,
they navigate the deportation process on their own. This is due to the fact that the
majority of immigrants who are undocumented tend to be unsophisticated, may not speak
English well and might not have the capacity to understand what is communicated to
them.
The complexity of federal immigration law is the sole responsibility of federal
agencies and its enforcement should be left to those who have extensive expertise. In
spite of ICE’s mission to remove only criminal immigrants the fact is that its ICE policy
62
is not being implemented as stated due in large part to the exercise of discretion by local
officers.
A more conceivable partnership might be between ICE and state prisons because
by the time a criminal ends up in state prison it is likely that he or she has not only
committed a very serious [Part I] crime, but also that other means of diversion often
afforded to criminals have been exhausted, such as plea bargaining to a lesser included
offense, house arrest or even parole. Plus, mainly hardened and violent criminals who
have committed serious felonies such as murder, rape and aggravated assault crimes and
sentenced to more than one year are sent to state prisons. Those criminals who actually
end up in state prisons are most likely to have committed crimes listed in the list of Part I
crimes in accordance to the FBI’s Uniform Reporting Code.
63
Chapter 7: Policy Choices for the Next Los Angeles County Sheriff
In considering what actions the next Los Angeles County Sheriff should take in
regards to immigration enforcement in Los Angeles County, it is important to examine
what is currently available and the benefits and disadvantages of what is available for
implementation.
The Los Angeles County Sheriff’s Department has been an official participant in
Secure Communities and the Section 287(g) programs since 2005. This combined
program is administered in the custody division of the department and is performed
primarily by custody assistants assigned to identify and interview inmates who they
suspect might be undocumented. The goal of their assignment is to acquire information in
order to pass them along to authorities at the Immigration and Customs Enforcement
agency prior to the release of the inmates. Secure Communities and the Section 287 (g)
programs.
However, the program has many flaws, which put the department at risk of being
sued for over detention and for deporting people who do not fall under the deportable
category. Thus, while the Section 287(g) agreement stipulates that the focus of the
program is to identify and deport only serious and violent felons, actual practices as
evidenced by statistics generated by ICE indicate that less than one third of
undocumented immigrants flagged for deportation are actually serious or violent
offenders (U.S. Immigration and Customs Enforcement, 2014b). Additionally, the Los
Angeles Sheriff’s Department absorbs most of the expenses used to assist ICE agents in
the tasks of identification, verification, and deportation. Where resources are scarce and
64
budget to operate county jails is insufficient, it warrants an evaluation of the appropriate
use of available resources for federal immigration enforcement purposes.
Moreover, critical to the decision to participant in the enforcement of federal
immigration law is cost of detention of immigration detainees while in the custody of
local and state agencies. In 2008 alone, with a budget of $40 million, the Section 287(g)
program affirmed the deportation of 29,000 immigrants. Whether these immigrants were
all dangerous criminals or civil violators was not revealed nor is that specific information
delineated in ICE statistics (U.S. Congress, 2009). Based on this budget and the number
of people deported the cost for each deported immigrant amounted to $13,793.31.
Although incarceration is not a term associated with undocumented immigrants
detained for a civil violation, for all intents and purposes, they are incarcerated. The only
difference is the term used to refer to them, which is not inmates but detainees. While
costs may vary from jurisdiction to jurisdiction, one example is the Mira Loma Detention
Facility in Lancaster, California, which was maintained by the Los Angeles Sheriff’s
Department under contract with Immigration and Customs Enforcement (ICE). The cost
to house and care for 980 detainees in 2006 was $27 million, which when broken down
per detainee, amounted to $25,510 (Captain Rod Penner, personal communication,
September 15, 2014).
Another drawback of participation in the Section 287(g) program and Secure
Communities is that the programs are susceptible to the exercise of racial profiling and
civil rights abuses, which in some instances have resulted in American citizens being
erroneously deported and caught in the quagmire of immigration law. Among the
consequences of changing this policy within the Sheriff’s Department is reluctance to
65
adhere to a new policy and procedure, especially from officers who might harbor bias
against ethnic groups different than themselves. In the early 1990s when the Los Angeles
Sheriff’s Department instituted a cultural diversity policy, it required every single
member of the Sheriff’s Department to attend diversity training. At the time, there was
not only criticism of the policy, but resistance as well. However, attendance and
compliance with the policy was not an option, but mandatory. In the same manner that
cultural diversity awareness became mandatory, compliance with a new immigration
enforcement policy can be done, one person and one class at a time until the message is
received and is well established enough to become part of the Sheriff’s department
culture.
The benefit of adopting this policy is that it has already been tried and worked at
law enforcement agency, which is well known and respected worldwide and it will leave
law enforcement resources where they should be in the community where they were
entrusted to protect and to serve.
66
Chapter 8: Conclusion and Recommendations
Whether law enforcement officers at state and local levels should be involved in
enforcing federal immigration law is a germane question on a current high priority topic.
For one thing, local police and deputy sheriffs already possess the authority to arrest
those whom they suspect of being involved in criminal activity and as a matter of practice
actually notify ICE when a criminal is suspected of being undocumented, and may even
hold them for deportation, but it should be noted that the policy of most police agencies is
not to arrest persons solely for the only reason of being undocumented.
The federal government justifies their efforts to recruit state and local law
enforcement agencies in the enforcement of federal immigration law with two reasons.
The federal government reasoned that to prevent another terrorist attack, it was essential
to capture would be perpetrators who have immersed themselves into the immigrant
population. Another reason for increased local law enforcement involvement was to do
something about the increasing number of undocumented immigrants in the United
States.
Though as long as there have been new waves of immigrants, there has also been
resistance to their existence in the United States. What is different now is the demand
from states for the federal government to come up with some sort of comprehensive
immigration reform or manner of reimbursement to the states for costs incurred as a
result of the influx of undocumented immigrants. On this topic, opinions span both ends
of the spectrum: some individuals demand everyone (illegal), deported; while others,
support a path towards citizenship for the 12 million undocumented immigrants who are
living among the citizens of the American society (Gonzalez-Barrera & Krogstad, 2014).
67
Illegal immigration was an issue in the earlier part of the twentieth century, and it is an
issue now.
The incessant influx of immigrants, the continual drain on the state and local
economy, and the federal government’s inaction or inability to either reimburse the states
or come up with a comprehensive plan to deal with undocumented immigrants have
resulted in some states taking the matter into their own hands. As a result, there has been
a rise in state policies (e.g., Arizona’s SB 1070) in an attempt to respond to the
immigration issue. Until a reasonable and workable policy is developed, the dilemma of
what to do about illegal immigration will continue to be an on-going concern.
The federal government’s approach to handling the large numbers of
undocumented immigrants is to increase enforcement and to do so by increasing the
number of agents available. To this purpose, the answer was to do so by recruiting from
law enforcement agencies at state and local levels nationwide. However, there are critical
considerations for state and local law enforcement agencies as they consider participation
in the enforcement of federal immigration law.
Cost of Deportation and Detention
One consideration for state and local law enforcement agencies’ participation in
enforcing federal immigration law is whether it is cost effective. Data show that in 2008
alone, when its budget was $40 million, the Section 287(g) program affirmed the
deportation of 29,000 immigrants. Whether they were all dangerous criminals or civil
violators was not revealed, nor was that specific information delineated in Immigration
and Customs Enforcement (ICE) statistics (U.S. Congress, 2009). Based on this budget
and the number of people deported, the cost for each deported individual was
68
approximately $13,793.31. Another example that highlights the cost of detention is the
Mira Loma Detention Facility in Lancaster, California, which was maintained by the Los
Angeles County Sheriff’s Department under contract with ICE until 2011. The cost to
house and care for 980 detainees in 2006 was $27 million, which when broken down per
individual, amounted to costing ICE $25,510 per immigrant per year (Captain Rod
Penner, personal communication, September 15, 2014).
Inconsistencies in ICE Policy
Among the major concerns police chiefs and sheriffs have, which leads to
reluctance to partnering with ICE, are the inconsistencies in ICE policy implementation.
For one, the policy has not adhered to its stated goal of removing only violent and serious
criminal immigrants, or those who pose a serious risk to public safety. Instead, it has
focused on and as result, deported mainly low-level offenders such as gardeners on their
way to work, who happen to have a broken taillight, or who, as a result of an infraction,
are determined to be unlicensed drivers. According to ICE’s statistics, more than 50
percent of those immigrants deported through the involvement of sub-federal agencies
had committed only traffic or very minor offenses (U.S. Department of Homeland
Security, 2011a).
The training of local officers to implement ICE guidelines is also cause for
concern. The practice of immigration law has become a highly specialized area due to the
complexity of the laws and regulations (Kohli et al., 2011). Critics have scrutinized the
training that custody assistants receive in preparation for implementation and feel that it
may not be enough. After the four-week training and the limited nine-week sheriff’s
academy, custody assistants are not only expected to know the intricacies of immigration
69
law, but have been handed enormous responsibility in determining who may or may not
be turned over to ICE for deportation upon completion of a sentence in county jail.
As to officers on patrol who are selected for this purpose, they attend the same
four-week training at the Federal Law Enforcement Training Center. In addition to their
day-to-day responsibilities, these officers are forced to be judge and jury when they
exercise discretion in determining whom to detain for deportation purposes.
ICE Policy mandates that all officers from agencies that have an existing
memorandum of agreement and that are current partners with ICE in the enforcement of
immigration law must be trained at the federal training center. However, the number of
agents (officers) from such participating agencies is limited and does not involve every
single sworn member of an agency. Aside from the financial burden and impracticability
of such scenario, sending each and every officer to the law enforcement training facility
would mean they would be removed from patrol duty. Once back at their unit of
assignment, these officers might divert their law enforcement attention from the
community in favor of enforcement of federal immigration law.
Another inconsistency involves claims of a timely response by agents at the
Federal Law Enforcement Support Center (FLESC) to inquiries by state and local law
enforcement. ICE’s fact sheet states that the FLESC maintains a 24-hour, seven-days-a-
week facility not only to train state and local officers in immigration enforcement, but
also to reply to all inquiries in a timely manner. The average response time has been
about 45 minutes, which is a long time in an officer’s day to wait for a determination of
someone’s immigration status.
70
Recommendations
In light of the discussion above and in response to whether sub-federal law
enforcement agents should participate in the enforcement of federal immigration law,
what follows are some recommendations for the next Los Angeles County Sheriff that
have emerged from this policy analysis:
A more cautious approach by the Los Angeles Sheriff’s Department (LASD)
might be in order with regards to any involvement in the enforcement of immigration
law. Consider following the practice of the Los Angeles Police Department (LAPD),
which since 1979 has had a policy in place Special Order 40 (see Appendices G and H)
which prohibits officers from arresting a person for the sole reason of being
undocumented.
The leadership of LASD might consider developing policy, which sets specific
guidelines for supervisors to ensure all arrests are for legitimate purposes and not an
immigration related pre-textual arrest. In other words, the arrest is due to the actual
commission [or suspicion] of a crime and if a suspect is identified as possibly being
undocumented, then information should be forwarded to a unit in the detective bureau
assigned the task to review the legitimacy of the arrest. Presently when an arrest is made,
a deputy sheriff is required to run the arrest by a watch sergeant stating the facts that led
to the observation or report of the commission of a crime. The watch sergeant has
authority to approve or deny the arrest. If a person is deemed to be undocumented,
procedure calls for a telephone inquiry be made to ICE agents to ascertain the person’s
immigration status even if the original reason for arrest is minor. This procedure might be
changed to a policy which requires that a person who is arrested for a minor violation be
71
released pending a court appearance without taking into consideration the immigration
status of the individual since it is not the sheriff’s responsibility to enforce federal
immigration law.
Based on the above, the Los Angeles Sheriff’s Department might refrain from
deporting inmates who have not been convicted of a serious crime, who have not
appeared before a magistrate, who have not been sentenced, or who have not completed
their sentence. The Los Angeles Sheriff’s Department would do well to consider
refraining from expending custody and patrol resources on people who are deemed or
suspected of being guilty only of infractions or minor misdemeanors (such as
shoplifting). Additionally it is recommended Secure Communities be suspended until a
complete overhaul of the detention and arrest guidelines as they pertain to immigration
holds are clarified and modified to ensure only convicted felons and those who have
previous removal orders are flagged for deportation.
What the partnership with federal authorities in implementing Section 287(g) and
Secure Communities comes down to is giving in to politicians’ demands to do something
about the illegal immigrant issue in particular communities. Because they in turn are
accountable to their constituents they have to show that they are taking action to reduce
the number of undocumented immigrants in the county.
Keeping in mind the importance of maintaining a working relationship with the
Board of Supervisors, if one of the members were to provide funds specifically for the
implementation of Section 287(g) at the jails, one mechanism for complying with that
request [mandate] would be by setting up and adhering to very specific criteria for the
process. That would mean that undocumented immigrants were actually flagged for ICE
72
agents, but that it would be done step-by-step via a simple check-off or process of
elimination. In other words, any inmate believed to be undocumented should first have
been not just arrested but actually convicted of a specific crime indexed in the FBI’s Part
I uniform reporting code. If the particular inmate’s crime is determined to be on that list,
then the custody assistant could proceed to the next step, which would be to interview the
inmate further and notify ICE agents who would have the ultimate authority to issue an
immigration hold. This process would ensure that the revenue provided by any member
of the Board of Supervisors was actually being used for the purpose for which they were
intended, which is to pay for a custody assistant to identify convicted unauthorized
inmates for this purpose.
When Los Angeles Supervisor Member Michael Antonovich took one million
dollars out of his discretionary funds to pay for four custody assistants to flag and
identify undocumented immigrants in the jails, it is possible he may have done so out of
pressure from his constituents. However, proceeding in the manner just mentioned would
ensure that convicted inmates who have committed specific crimes are being targeted and
deported as opposed to an undocumented inmate who might be in jail for an unpaid
traffic warrant or a misdemeanor not meeting the criteria of the uniform reporting code
hierarchy rule. This would not only ensure that Supervisor Antonovich’s instructions are
followed, but it would also protect minor level unauthorized inmates from being
deported.
The logical mechanism for implementing these recommendations is twofold: The
simplest and most straightforward manner is to develop policy which mirrors the LAPD’s
Special Order 40, and secondly to make familiarity of the policy and training mandatory.
73
This might be done through recurrent training methods via Sheriff’s Department’s
Intranet, by means of a training video holding the viewer to pass an exam and sign off.
Additionally the idea of sending a legislative analyst to the State Capitol to
request legislation which would prohibit Los Angeles County deputy sheriffs from
arresting someone for the sole reason of being undocumented and enforcing federal
immigration law is sound and would further cement the City and County of Los
Angeles’s role as effective and responsible leaders setting an example for the rest of the
nation.
The complexity of federal immigration law is the sole responsibility of federal
agencies and its enforcement should be left to those who have extensive expertise. In
spite of ICE’s mission to remove only criminal immigrants, the fact is that its ICE policy
is not being implemented as stated due in large part to the exercise of discretion by local
officers.
A more conceivable partnership might be between ICE and state prisons because
by the time a criminal ends up in state prison, it is likely that he or she has not only
committed a very serious [Part I] crime, but also that other means of diversion often
afforded to criminals have been exhausted, such as plea bargaining to a lesser included
offense, house arrest, or even parole. Plus, mainly hardened and violent criminals who
have committed serious felonies such as murder, rape, and aggravated assault crimes and
sentenced to more than one year are sent to state prisons. Those criminals who actually
end up in state prisons are most likely to have committed crimes listed in the list of Part I
crimes in accordance to the FBI’s Uniform Reporting Code.
74
Finally, it is recommended a section within the Risk Management Bureau be
established to ensure that the rights of undocumented immigrants are not violated and to
ensure that American citizens and legal residents are not deported erroneously, as failure
to do so might subject the Department to liability.
LASD might consider following the example of more than 50 cities and states,
which have adopted policies that prohibit officers from asking the immigration status of
people who are not under arrest, but which allow actual foreign born criminals to be
deported (National Immigration Law Center, 2008). By joining the numerous cities and
police agencies which have chosen to halt further cooperation with immigration officials,
LASD does not only offer the hand of solidarity but also sets the pace for other similar-
sized law enforcement organizations to follow.
The County of Los Angeles is among the State of California and the country’s
most populated counties having reached a milestone figure that surpassed 10 million
residents in 2013, [10,019,365] and which includes undocumented immigrants (Gazzar,
2013). As of 2013, the state of California’s population was reported to be over 38,332,52
(U.S. Census Bureau, 2014), 2.6 million of whom were reportedly undocumented
immigrants (Pastor, Marcelli, Carter, & Sanchez, 2013). This is significant because
immigrants are but one component of the population and account for a percentage of the
increase. Additionally, this segment of the population and its collateral citizenry can be a
political powerhouse (Pastor et al., 2013) due to the political pressure, which tends to
influence a law enforcement agency’s role. For example if an influential political figure
were to provide funding for officers to identify and interview inmates suspected of being
undocumented and flag them for deportation prior to release, this would be possible
75
because a partnership with federal immigration agents was believed to be sound on the
fact that this would provide public safety tool which would benefit local public safety,
when in fact it is a tool to control immigration and the benefits of this cooperation would
affect ICE.
Los Angeles might be considered ground zero in this realm of law enforcement
because in and of itself it is a popular destination for visitors and prospective residents.
This might be attributable to natural resources [mountains and beaches] and man-made
assets such as Hollywood and Disneyland. Additionally, Los Angeles has long been
considered a desirable destination for immigrants due to proximity with a land port of
entry as well as numerous ethnic enclaves, which are home to an estimated 900,000
undocumented immigrants [one in ten residents] (Pastor et al., 2013).
For the reasons stated above, it is advised that law enforcement leaders in Los
Angeles join the number of police and sheriffs in large cities who have opted out of
cooperating with ICE and institute policies which promote cooperation with the
community while focusing on protecting life and property. Because of the large
immigrant population in Los Angeles County, it is incumbent upon the Sheriff and Chiefs
of police of independent cities to set the example by emphasizing that when it comes to
fighting crime they take the job very seriously, but with regard to enforcing immigration,
that might be better left to ICE agents who have not only the expertise but considerably
more resources with which to enforce federal immigration law.
The LASD might work more towards fostering a partnership within the
community by removing fear of the police and the fear that any contact with law
enforcement might result in deportation. By ensuring that deputies represent safety and
76
security, immigrant victims and witnesses might be more willing to assist in solving
crimes. Among those who support this policy is the International Association of Chiefs of
Police (IACP), which strongly supports fostering the cooperation of immigrants, legal or
otherwise in maintaining public order and safety.
The LASD would do well to set policy in place, which encourages officers to
promote “taking the fear out of being illegal” by promoting more community policing
and encouraging officers to attend culturally and ethnically diverse events in immigrant
enclave areas where immigrants tend to settle with in-kind groups such as Japanese,
Chinese, Indian, Vietnamese, Thai, and Latin, among others. While the argument may be
that there are not sufficient officers available to attend such events, while valid in some
instances, is further reason to keep local officers involved in local enforcement and away
from federal immigration participation.
It is recommended that policy be established whereby when undocumented
immigrants come forward as victims or witnesses, their immigration status is kept
confidential. Furthermore, any policy of confidentiality might be communicated to the
community by means of multi-lingual media. Law enforcement relies on the community
being a partner in maintaining public safety by being the eyes and ears of public safety
and by ensuring confidentiality with regards residency status they might be more willing
to come forward. One example of the importance of fostering cooperation among
immigrants and law enforcement is the 2002 sniper rampage in Maryland. Police Chief
Charles Moose reached out with a plea to the community asking people to report
anything they might have seen related to the sniper shootings. Evidently, the fear of
77
deportation was much stronger than the fear of a sniper, which kept immigrants from
coming forward with information (Gettleman, 2002).
To further work towards removing the fear of being illegal and because the LASD
has been an active participant in Section 287(g) enforcement and Secure Communities,
an outreach campaign might be launched to encourage immigrants to come forward and
report crimes with the assurance that doing so will not result in deportation proceedings
for themselves.
Taking these recommendations one step further, LASD might consider re-
evaluating current policy by making it quite clear that deputies should focus on criminals
who represent a threat rather than immigrants who have committed minor violations but
who happen to be undocumented. This can be done through intranet training bulletins as
well as via reminders of the Core Values of the Sheriff’s Department which stresses
among other things, that “we shall honorably perform our duties with respect for the
dignity of all people, integrity to do right and fight wrongs, wisdom to apply common
sense, fairness in all we do and courage to stand against racism, anti-Semitism,
homophobia and bigotry in all its forms” (http://sheriff.lacounty.gov/wps/portal/lasd).
A further recommendation is to establish an Ethnically Diverse Advisory
Committee composed of at least two volunteer members of the most ethnically
represented groups in the county, to act as liaison between law enforcement and the
immigrant community. The goal of this committee would not only be to foster a working
relationship between the Sheriff’s Department and the community, but also to work
towards a common goal of promoting goodwill between immigrants and sheriff deputies.
The Ethnically Diverse Advisory Committee members might serve on a rotating two-year
78
term basis to allow others to step forward and participate, thus cementing and increasing
the community-law enforcement bond. By communicating with the community and
relaying the message that deputies are not immigration agents, it would serve to bolster
the immigrant community’s sense of safety and security. Policies such as LAPD’s
Special Order 40, which has been in place since 1979 is considered a tool in fighting
crime and has worked well because it reassures immigrants that contact with law
enforcement should not be feared.
Although the recommendations stated here encourage community policing and
refraining from making immigration related pre-textual arrests for low level crimes, it is
important to stress that when it comes to enforcing criminal law involving serious
offenders, officers at all levels are encouraged and expected to arrest people who commit
serious and violent crimes regardless of immigration status. It goes without saying that a
policy of confidentiality is not geared to shelter immigrant criminals and if
undocumented immigrants commit a serious crime, they will be deported.
With regards to the number of undocumented immigrants in the U.S., which was
at one time estimated to be around 12 million seems to have levelled off on a national
level (see Appendix I). As of 2009, it was reported there were about one million less
undocumented immigrants in the U.S. (Passel & Cohn, 2014). It is also reported that
during the present presidential administration, more undocumented immigrants have been
deported than under any other administration in history, and the Department of Homeland
Security data reports that increased enforcement has resulted in bringing the total of
deportations to 2 million, 438,421 of which were deported in 2013 alone (Gonzalez-
Barrera & Krogstad, 2014). By the process of deduction alone, this has had an effect on
79
the estimated 12 million initially reported to be in the nation resulting in a lower total of
undocumented immigrants (see Appendix J).
Increased enforcement both at the interior of the country and at land ports of entry
coupled with the recent recession, which weakened the availability of jobs for
immigrants, is one of the reasons for the decrease in numbers.
The president’s executive action in June 2012 – Deferred Action for Childhood
Arrivals (DACA) – granted a shield from deportation, the ability to attend U.S. schools
and two-year work permits to immigrants who were brought to the U.S. as children
without residency documents. This affected an approximate 1.2 million young
undocumented immigrants, 700,000 of whom applied for relief. While this executive
action did not result in changing their status to legal resident, or make them eligible for
citizenship, the President’s most recent announcement which is intended to shield a
portion of the undocumented immigrant population will most likely result in diminishing
the numbers of illegal immigrants further (Gonzalez-Barrera & Krogstad, 2014).
The Migration Policy Institute reports that the overall estimated figures of
unauthorized population might decline further because “approximately 770,000
unauthorized immigrants” would be eligible due to marriage to a U.S. citizen and another
“560,000 unauthorized immigrants would be eligible” if they are parents of a U.S. citizen
21 years or older (Capps & Rosenblum, 2004, p. 6). These figures mean that the
estimated undocumented immigrant population would decline by approximately 1.3
million bringing the total down to about eight million.
In sum, on the topic of sub-federal involvement in the enforcement of federal
immigration law, each agency should perform the duties and responsibilities they were
80
sworn to do. Until federal immigration law is clarified and federal agencies and agents
can better delineate detention and arrest guidelines, state and local enforcement agencies
should not have to do the job that federal agencies are required to do. As to the question
whether when there is discretion officers at the street level should be involved in
enforcing federal immigration law, the recommendation is that they should not be
involved.
81
Glossary of Terms
ACCESS – Agreements of Cooperation in Communities to Enhance Safety and Security
AEDPA - Antiterrorism and Effective Death Penalty Act
AEA – Alien Exclusionary Act
ATF – Alcohol Tobacco and Firearms
CAP – Criminal Apprehension Program
CBP – Customs and Border Protection
CLEAR – Criminal Alien Removal Act
DEA – Drug Enforcement Administration
DHS – Department of Homeland Security
DOJ – Department of Justice
DOL – Department of Labor
ERO - Enforcement and Removal Operations
FBI – Federal Bureau of Investigation
FLETC – Federal Law Enforcement Training Center
GOP – Grand Old Party
ICE – Immigration and Customs Enforcement
INA – Immigration and Naturalization Agency
82
INA – Immigration and Naturalization Act
INS – Immigration and Naturalization Service
IIRIRA – Illegal Immigration Reform and Responsibility Act
LEAs – Law Enforcement Agencies
LESC – Law Enforcement Support Center
MOA – Memorandum of Agreement
NCSL – National Council of State Legislatures
SB [as in SB 1070] – Senate Bill
SBI – Secure Border Initiative
UCR – Uniform Crime Report
USACE – United States Army Corps of Engineers
USA PATRIOT ACT – Uniting and Strengthening America by Providing
Appropriate Tools to Intercept and Obstruct Terrorism
U.S.C. – United States Code
USCG – United States Coast Guard
USCGC – United States Coast Guard Center
9/11 Commission – National Commission on Terrorist Attacks Upon the United States
83
References
AB-1081 State Government: Federal Immigration Policy Enforcement. (2012). California
Legislative Information. Retrieved from
http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201120120AB1081
Alien and Sedition Acts. (2014). Retrieved from
http://www.loc.gov/rr/program/bib/ourdocs/Alien.html
American Immigration Council. (2014). Recent Report on Deportation Misses the Big Picture.
Retrieved from Immigration Impact Web site:
http://immigrationimpact.com/2014/02/24/recent-report-on-deportation-misses-the-big-
picture/#sthash.lp6CRy7w.CBeof4g0.dpuf
Arizona v. United States, 567 U.S. ___ (2012). Retrieved from
http://www.supremecourt.gov/opinions/11pdf/11-182(B)5e1.pdf
Arizona v. United States, 641 F. 3d 339 (2012). Retrieved from
http://www.law.cornell.edu/supremecourt/text/11-182
Bell’s Gap R. Co. v. Pennsylvania, 134 U.S. 232 10 (1890).
Best, R. A., Jr. (2007, February 13). Sharing law: Enforcement and intelligence information:
The Congressional role (Congressional Report No. RL33873). Washington DC: Library
of Congress Congressional Research Service. Retrieved from
http://fas.org/sgp/crs/intel/RL33873.pdf
Brief for the State of Arizona as Amici Curiae Supporting Petitioners, Arizona v. United States,
567 U.S. ___ (2012) (no. 11-182).
Brief for United States as Amici Curiae Supporting Respondents, Arizona v. United States,
567 U.S. ___ (2012) (no. 11-182).
California TRUST Act (AB 4). (2013). Retrieved from http://www.catrustact.org/
Camarota, S. A. (2002). How the Terrorists Get In. Center for Immigration Studies: Low-
immigration, Pro immigrant. Retrieved from http://cis.org/HowTerroristsGetIn
84
Capps, R., & Rosenblum, M. R. (2014, September). Executive Action for Unauthorized
Immigrants: Estimates of the Populations that Could Receive Relief. Retrieved from
Migration Policy Institute Web site: http://www.migrationpolicy.org/research/executive-
action-unauthorized-immigrants-estimates-populations-could-receive-relief
Chacón, J. M. (2012). The Transformation of Immigration Federalism. William & Mary Bill of
Rights Journal, 21(2), 2013-92.
Committee on Homeland Security. (2009). Examining 287(G): The Role of State and Local Law
Enforcement in Immigration law [House Hearing, 111 Congress]. U.S. Government
Printing Office. Retrieved from http://www.gpo.gov/fdsys/pkg/CHRG-
111hhrg49374/html/CHRG-111hhrg49374.htm
Espinoza, M. (2014, May 11). Sheriff Steve Freitas Moves to Limit Immigration Detainers. The
Press Democrat. Retrieved from
http://www.pressdemocrat.com/csp/mediapool/sites/PressDemocrat/News/story.csp?cid=
1862574&sid=555&fid=181
Ewing, W. A. (2014). The Growth of the U.S. Deportation Machine. Immigration Policy Center:
American Immigration Council. Retrieved from http://www.immigrationpolicy.org/just-
facts/growth-us-deportation-machine
Federal Bureau of Investigation. (2009). Uniform Crime Reporting Frequently Asked Questions.
Retrieved December 5, 2014 from http://www2.fbi.gov/ucr/ucr_general.html
Gettleman, J. (2002, October 22). The Hunt for a Sniper: Richmond is Jolted by a Sniper’s
Attack and the Aftermath as Well. The New York Times. Retrieved from
http://query.nytimes.com/gst/fullpage.html?res=9A03E2D6163CF931A15753C1A9649C
8B63&sec=&spon=&pagewanted=all
Gonzalez-Barrera, A., & Krogstad, J. M. (2014, October). U.S. Deportations of Immigrants
Reach Record High in 2013. Retrieved from Pew Research Center Web site:
85
http://www.pewresearch.org/fact-tank/2014/10/02/u-s-deportations-of-immigrants-reach-
record-high-in-2013/
Grenwald, D. M. (2011, May 26). Sheriff Prieto Seeks to Get Out of Federal Immigration
Program. The People’s Vanguard of Davis. Retrieved from
http://www.davisvanguard.org/sheriff-prieto-seeks-to-get-out-of-federal-immigration-
program/comment-page-1/
Howe, A. (2012). S.B. 1070: In Plain English. Retrieved from
http://www.scotusblog.com/2012/06/s-b-1070-in-plain-english/
Immigration Policy Center. (2010). Immigration Detainers: A Comprehensive Look. Retrieved
from American Immigration Council Web site: http://immigrationpolicy.org/just-
facts/immigration-detainers-comprehensive-look
Immigration Policy Center. (2011). Arizona SB 1070 , Legal Challenges and Economic Realities.
Retrieved from http://www.immigrationpolicy.org/clearinghouse/litigation-issue-
pages/arizona-sb-1070%E2%80%8E-legal-challenges-and-economic-realities
Johnson, H. P., & Hill, L. (2006). Illegal immigration. Public Policy Institute of California.
Retrieved from http://www.ppic.org/content/pubs/atissue/ai_711hjai.pdf
Keene, L. (2011, May 26). Yolo Sheriff Speaks Out on Federal Immigration Program. The
Davis Enterprise. Retrieved from http://www.davisenterprise.com/local-news/yolo-
sheriff-criticizes-federal-immigration-program/
Kimbrough v. United States, 552 U.S. 85, 111 (2007).
Kohli, A., Markowitz, P. L., & Chavez, L. (2011). Secure Communities by the Numbers: An
Analysis of Demographics and Due Process. Berkeley, CA: Chief Justice Earl Warren.
Institute on Law and Social Policy. Retrieved from:
https://www.law.berkeley.edu/files/Secure_Communities_by_the_Numbers.pdf
Kohli, A., & Varma, D. (2011). Borders, Jails, and Jobsites: An Overview of Federal
Immigration Enforcement Programs in the U.S. Berkeley, CA: Berkeley Law Center
86
for Research and Administration. Retrieved from
http://www.law.berkeley.edu/files/WI_Enforcement_Paper_final_web.pdf
Myers, D. (2012). The Next Immigration Challenge. New York Times - Op Ed. Retrieved from
http://www.nytimes.com/2012/01/12/opinion/the-next-immigration-challenge.html?_r=0
National Commission on Terrorist Attacks Upon the United States. (2004). The 9/11 Commission
Report. Washington DC: Government Printing Office. Retrieved from http://www.9-
11commission.gov/report/911Report.pdf
O'Neil v. Vermont, 144 U.S. 323 (1892).
Paral, R., & Associates. (2011, June). Measures of Immigrant Integration Los Angeles County.
USC - Center of the Study of Immigration Integration. Retrieved from
http://dornsife.usc.edu/assets/sites/731/docs/RPA_measures_immigrant_integration_web.
pdf
Passel J. S., & Cohn, V. (2014). Unauthorized Immigrant Totals rise in 7 states, Fall in 14. Pew
Research Hispanic Trends Project. Retrieved from
http://www.pewhispanic.org/2014/11/18/unauthorized-immigrant-totals-rise-in-7-states-
fall-in-14/
Pastor, M., Marcelli, E., Carter, V., & Sanchez, J. (2013). What’s at Stake for the State:
Undocumented Californians, Immigration Reform, and Our Future Together. University
of Southern California: Center for the Study of Immigrant Integration. Retrieved from
http://dornsife.usc.edu/csii/undocumentedca/
Policy Center in Administration, Border, Courts, Department of Homeland Security, Deportation,
Due Process, Immigration and Customs Enforcement. (2014, February 24). Recent
Report on Deportation Misses the Big Picture. American Immigration Council. Retrieved
from http://immigrationimpact.com/2014/02/24/recent-report-on-deportation-misses-the-
big-picture/#sthash.lp6CRy7w.CBeof4g0.dpuf
87
Rodríguez, C., Chishti, M., Capps, R., & St. John, L. (2010). A Program in Flux: NewPriorities
and Implementation Challenges for 287(g). Washington, DC: Migration Policy Institute.
Retrieved fromhttp://www.migrationpolicy.org/research/program-flux-new-priorities-
and-implementation-challenges-287g
Rosenbaum, C. (2014). Sub-Federal Enforcement of Immigration Law: An Introduction to the
Problem of Pretextual Enforcement and Inadequate Remedies. Laws, 3(1), 61-84.
Retrieved from http://www.mdpi.com/2075-471X/3/1/61
Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206 [Case Brief Summary]. (1953).
Accessed from Law School Case Briefs Web site:
http://www.lawschoolcasebriefs.net/2013/11/shaughnessy-v-united-states-ex-rel.html
State of California Department of Justice. Office of the Attorney General. (2009, March). In the
Matter of The Investigation of the City of Maywood Police Department [Attorney
General’s Final Report]. Retrieved from
http://oag.ca.gov/system/files/attachments/press_releases/n1722_maywoodreport.pdf
The Avalon Project – Documents in Law, History and Diplomacy. (1927). Articles of
Confederation. New Haven, CT: Yale Law School – Lillian Goldman Law Library.
Retrieved from http://avalon.law.yale.edu/18th_century/artconf.asp
The Economist. (2014, February 8). America’s Deportation Machine: The Great Expulsion.
Retrieved from http://www.economist.com/news/briefing/21595892-barack-obama-has-
presided-over-one-largest-peacetime-outflows-people-americas
United States Census Bureau. (2014). State & County Quick Facts. Retrieved from U.S.
Department of Commerce Web site: http://quickfacts.census.gov/qfd/states/06000.html
United States Congress, House of Representatives, Committee on Homeland Security. (2009).
Examining 287(G): The Role of State and Local Law Enforcement in Immigration law
[House Hearing, 111th Congress]. Washington DC: Government Printing Office.
88
Retrieved from http://www.gpo.gov/fdsys/pkg/CHRG-111hhrg49374/html/CHRG-
111hhrg49374.htm
United States Congress, House of Representatives, Permanent Select Committee on Intelligence.
(2002). Joint Inquiry into Intelligence Community Activities Before and After the
Terrorist Attacks of September 11, 2001. Washington DC: Government Printing Office.
Retrieved from https://www.fas.org/irp/congress/2002_rpt/911rept.pdf
United States Department of Justice, Immigration and Naturalization, Office of the
Commissioner. (2000). Memorandum to Regional Directors, Chief Patrol Agents,
Regional and District Counsel: Exercising Prosecutorial Discretion. Washington DC:
Legal Action Center. Retrieved from
http://www.legalactioncenter.org/sites/default/files/docs/lac/Meissner-2000-memo.pdf
United States of America v. State of Arizona, 11 F 9d 182 (2010). Retrieved from
http://www.immigrationpolicy.org/clearinghouse/litigation-issue-pages/arizona-sb-
1070%E2%80%8E-legal-challenges-and-economic-realities
Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and
Obstruct Terrorism (USA PATRIOT Act) Act of 2001, Pub. L. No. 107 –56. 115 Stat.272
(2001). Retrieved from http://www.gpo.gov/fdsys/pkg/PLAW-107publ56/pdf/PLAW-
107publ56.pdf
U.S. Census Bureau. (2007, April 6). Population Estimates Historical Data. Retrieved April 5,
2014 from http://www.census.gov/popest/cities/tables/SUB_EST2007-04-06.xls
U.S. Const. art VI, § 2.
U.S. Const. art XIV, § 1.
U.S. Department of Homeland Security. (2011a). F act Sheet: Smart, Effective Border Security
and Immigration Enforcement. Office Website of the Department of Homeland Security.
Retrieved from http://www.dhs.gov/news/2011/10/04/fact-sheet-smart-effective-border-
security-and-immigration-enforcement
89
U.S. Department of Homeland Security. (2011b). U.S. Department of Homeland Security:
Implementing 9/11 Commission Recommendations. Retrieved from
http://www.dhs.gov/xlibrary/assets/implementing-9-11-commission-report-progress-
2011.pdf
U.S. Department of Homeland Security. (2014). Who Joined DHS. Official Website ofthe
Department of Homeland Security. Retrieved from http://www.dhs.gov/who-joined-dhs
U.S. Department of Justice. (2001). The USA PATRIOT Act: Preserving Life and Liberty (Uniting
and Strengthening America by Providing Appropriate Tools Required to Intercept and
Obstruct Terrorism). Retrieved from http://www.justice.gov/archive/ll/highlights.htm
U.S. Government Printing office. (2002). Eighth Amendment. Retrieved from
http://www.gpo.gov/fdsys/pkg/GPO-CONAN-2002/pdf/GPO-CONAN-2002-9-9.pdf
U.S. Immigration and Customs Enforcement. (2010). Secure Communities: A Modernized
Approach to Identifying and Removing Criminal Aliens [Brochure]. Washington, DC:
Department of Homeland Security. Retrieved from
http://www.ice.gov/doclib/secure-communities/pdf/sc-brochure.pdf
U.S. Immigration and Customs Enforcement. (2011a). Civil Immigration Enforcement:
Priorities for the Apprehension, Detention, and Removal of Aliens [Press Release].
Washington, DC: U.S. Department of Homeland Security, Office of the Director.
Retrieved from https://www.ice.gov/doclib/news/releases/2011/110302washingtondc.pdf
U.S. Immigration and Customs Enforcement. (2011b). ICE Detainers: Frequently Asked
Questions. Official Website of the Department of Homeland Security. Retrieved from
http://www.ice.gov/news/library/factsheets/detainer-faqs.htm
U.S. Immigration and Customs Enforcement. (2014a). Delegation of Immigration Authority
Section 287(g) Immigration and Nationality Act Fact Sheet. Official Website of the
Department of Homeland Security. Retrieved from http://www.ice.gov/factsheets/287g
90
U. S. Immigration and Customs Enforcement. (2014b). FY 2014 ICE Immigration Removals.
Official Website of the Department of Homeland Security. Retrieved from
http://www.ice.gov/removal-statistics
U. S. Immigration and Customs Enforcement. (2014bc). Immigration Enforcment: Secure
Communities. Official Website of the Department of Homeland Security. Retrieved from
http://www.ice.gov/secure-communities
Wadhia, S. S. (2010). The Role of Prosecutorial Discretion in Immigration Law. Scholarly Works
[Paper 17]. Retrieved from http://elibrary.law.psu.edu/fac_works/17
Weissbrodt, D., & Danielson, L. (2004). Chapter 2: The Source and Scope of the Federal Power
to Regulate Immigration and Naturalization. University of Minnesota Human Rights
Library. Retrieved from http://www1.umn.edu/humanrts/immigrationlaw/chapter2.html
Yule, K. (2010). The Limits of State and Local Immigration Enforcement and Regulation. Alb.
Gov't L. Review, 3, 242-270. Retrieved from
http://www.albanygovernmentlawreview.org/Articles/Vol03_1/3.1.242-Kim.pdf
Zadvydas v. Davis, 533 U.S. 678 (2001).
91
Appendix A: Writers of Amicus Brief on Behalf of Respondent
Name State Title Dates of Employment
Robert Abrams New York Attorney General 1979-1993
Bruce Babbit Arizona Attorney General –
Governor –
U.S. Secretary of the Interior
1975-1978
1978-1987
1993-2001
William Baxley Alabama Attorney General
Lieutenant Governor
1971-1979
1983-1987
Richard H. Bryan Nevada Attorney General
Governor
1979-1983
1983-1989
Robert A. Butterworth Florida Attorney General 1986-2002
Bonnie Campbell Iowa Attorney General
Dir. U.S. Dept. on Violence vs.
Women
1991-1994
1995-2001
Pamela Carter Indiana Attorney General 1993-1997
Steve Clark Arkansas Attorney General 1979-1990
J. Joseph Curran Jr. Maryland Attorney General
Lieutenant Governor
1987-2007
1983-1987
Frankie Sue Del Papa Nevada Attorney General 1991-2003
Robert J. Del Tufo New Jersey Attorney General 1990-1993
James Doyle Wisconsin Attorney General
Governor
1991-2003
2003-2011
W.A. Drew
Edmondson
Oklahoma Attorney General
District Attorney for Muskegee Count
1995-2011
1983-1995
Lee Fisher Ohio Attorney General 1991-1995
David B. Frohnmayer Oregon Attorney General 1981-1991
Jan Graham Utah Attorney General 1993-2001
92
Name State Title Dates of Employment
Jennifer Granholm Michigan Attorney General
Governor
1999-2003
2003-2011
Scott Harshbarger Massachusetts Attorney General
District Attorney of Middlesex County
1991-1999
1983-1991
Peter Harvey New Jersey Attorney General
former Assistant U.S. Attorney
2003-2006
Andrew Ketterer Maine Attorney General 1995-2001
G. Oliver Koppell New York Attorney General 1994
Peg Lautenschlager Wisconsin Attorney General
Winnebago District Attorney
U.S. Attorney Western District of
Wisconsin
2003-2007
1985-1988
1993-2001
Patrick C. Lynch Rhode Island Attorney General 2003-2011
J.D. MacFarlane Colorado Attorney General
Denver city and County Manager of
Safety &
Ex Officio Sheriff
1975-1983
1985-1987
Patricia Madrid New Mexico Attorney General 1999-2007
Janet T.Mills Maine Attorney General 2009-2011
Jeffrey A. Modesett Indiana Attorney General
Marion County Prosecuting Attorney
1996-2000
1991-1994
Mike Moore Mississippi Attorney General 1988-2004
Hardy Myers Oregon Attorney General 1997-2009
Edwin Pittman Mississippi Attorney General
Mississippi Supreme Court Chief
Justice
1984-1988
2001-2004
93
Name State Title Dates of Employment
Dennis J. Roberts Rhode Island Attorney General 1979-1985
Steve Rowe Maine Attorney General 2001-2009
Steve Six Kansas Attorney General 2008-2011
Gregory H. Smith New
Hampshire
Attorney General 1980-1984
Robert Spagnoletti D.C. Attorney General
Assistant U.S. Attorney
2004-2006
1990-2003
Robert Stephan Kansas Attorney General 1979-1995
Mary Sue Terry Virginia Attorney General 1985-1993
Anthony F. Troy Virginia Attorney General 1977-1978
James Tierney Maine Attorney General 1980-1990
R. Paul Van Dam Utah Attorney General
Salt Lake County District Attorney
1989-1993
1975-1979
John Van de Kamp California Attorney General
U.S. Attorney Central District of
California
Los Angeles County District Attorney
1983-1991
1966-1967
1975-1983
Mark White Texas Attorney General
Governor
1979-1983
1983-1987
94
Appendix B: 287(g) Results and Participating Entities
Currently, ICE has 287(g) agreements with 37 law enforcement agencies in 18 states.
Since January 2006, the Section 287(g) program is credited with identifying more than
309,283 potentially removable aliens, mostly at local jails. ICE has trained and certified
more than 1,300 state and local officers to enforce immigration law. The following lists
the 36 mutually signed agreements signed as of August 7, 2013.
State Law Enforcement Agency Support Type
Dates
Signed
MOA
ALABAMA
Etowah County Sheriff's
Office
JAIL
ENFORCEMENT
2013-06-28
ARIZONA
Arizona Department of
Corrections
JAIL
ENFORCEMENT
2013-09-26
ARIZONA
City of Mesa Police
Department
JAIL
ENFORCEMENT
2013-06-28
ARIZONA Pinal County Sheriff's Office
JAIL
ENFORCEMENT
2013-06-28
ARIZONA
Yavapai County Sheriff's
Office
JAIL
ENFORCEMENT
2013-08-15
ARKANSAS
Benton County Sheriff's
Office
JAIL
ENFORCEMENT
2013-06-28
ARKANSAS
Washington County Sheriff's
Office
JAIL
ENFORCEMENT
2013-07-03
CALIFORNIA
Los Angeles County Sheriff's
Office
JAIL
ENFORCEMENT
2005-02-01
CALIFORNIA
Orange County Sheriff's
Office
JAIL
ENFORCEMENT
2006-11-02
CALIFORNIA San Bernardino County
Sheriff's Office
Addendum
JAIL
ENFORCEMENT
2013-10-11
COLORADO
El Paso County Sheriff's
Office
JAIL
ENFORCEMENT
2013-07-09
FLORIDA Collier County Sheriff's Office
JAIL
ENFORCEMENT
2013-06-28
FLORIDA Jacksonville Sheriff's Office
JAIL
ENFORCEMENT
2013-06-28
GEORGIA Cobb County Sheriff's Office JAIL 2013-06-27
95
State Law Enforcement Agency Support Type
Dates
Signed
MOA
ENFORCEMENT
GEORGIA
Gwinnett County Sheriff's
Office
JAIL
ENFORCEMENT
2013-06-28
GEORGIA Hall County Sheriff's Office
JAIL
ENFORCEMENT
2013-06-28
GEORGIA
Whitfield County Sheriff's
Office
JAIL
ENFORCEMENT
2013-06-27
MARYLAND
Frederick County Sheriff's
Office
JAIL
ENFORCEMENT
2013-06-28
MASSACHUSETTS
Massachusetts Department of
Correction
JAIL
ENFORCEMENT
2007-03-26
NEVADA
Las Vegas Metropolitan Police
Department
JAIL
ENFORCEMENT
2013-06-28
NEW JERSEY
Hudson County Department of
Corrections
JAIL
ENFORCEMENT
2013-06-28
NEW JERSEY
Monmouth County Sheriff's
Office
JAIL
ENFORCEMENT
2013-06-28
NORTH
CAROLINA
Cabarrus County Sheriff's
Office
JAIL
ENFORCEMENT
2013-06-28
NORTH
CAROLINA
Gaston County Sheriff's
Office
JAIL
ENFORCEMENT
2013-06-28
NORTH
CAROLINA
Henderson County Sheriff's
Office
JAIL
ENFORCEMENT
2013-06-28
NORTH
CAROLINA
Mecklenburg County Sheriff's
Office
JAIL
ENFORCEMENT
2013-12-30
NORTH
CAROLINA
Wake County Sheriff's Office
JAIL
ENFORCEMENT
2013-06-28
OHIO Butler County Sheriff's Office
JAIL
ENFORCEMENT
2013-06-28
OKLAHOMA Tulsa County Sheriff's Office
JAIL
ENFORCEMENT
2013-06-28
SOUTH
CAROLINA
Charleston County Sheriff's
Office
JAIL
ENFORCEMENT
2013-06-28
96
State Law Enforcement Agency Support Type
Dates
Signed
MOA
SOUTH
CAROLINA
Lexington County Sheriff's
Office
JAIL
ENFORCEMENT
2013-07-30
SOUTH
CAROLINA
York County Sheriff's Office
JAIL
ENFORCEMENT
2013-06-28
TEXAS Carrollton Police Department
JAIL
ENFORCEMENT
2013-06-28
TEXAS Harris County Sheriff's Office
JAIL
ENFORCEMENT
2013-11-04
UTAH Weber County Sheriff's Office
JAIL
ENFORCEMENT
2013-06-27
VIRGINIA
Prince William-Manassas
Regional Adult Detention
Center
JAIL
ENFORCEMENT
2013-06-28
VIRGINIA
Shenandoah County Sheriff's
Office
JAIL
ENFORCEMENT
2013-06-28
97
Appendix C: DHS Organizational Chart
98
Appendix D: Overview of Significant Immigration Bills in the House of
Representatives
Four bills voted out of the Judiciary Committee along party lines:
H.R. 2278: the
Strengthen and
Fortify Enforcement
Act (SAFE Act)
Introduced by Judiciary
Chairman Goodlatte (R-VA),
Immigration Subcommittee
Chairman Gowdy (R-SC).
Passed Committee with vote of
20 to 15 on June 18, 2013.
Interior enforcement bill that expands
enforcement at state and local levels,
criminalizes unlawful presence and imposes jail
time, and significantly increases mandatory
detention of immigrants. CBO estimate of
implementation cost: $22.9 billion for 2014-
2018 period.
H.R. 2131, the
Supplying
Knowledge-based
Immigrants and
Lifting Levels of
STEM Visas Act
(SKILLS Visa Act)
Introduced by Darrell Issa (R-
CA). Passed Committee on June
27, 2013 by a vote of 20 to 14.
Higher-skilled immigration bill that increases
immigrant and non-immigrant employment-
based visas for skilled immigrants,
entrepreneurs, and STEM graduates, while
decreasing family-based immigration and
eliminating the diversity visa program. CBO
cost estimate: the bill would increase revenues
by $118 billion over the 2014-2024 period.
H.R. 1773, the
Agricultural
Guestworker Act
Introduced by Judiciary
Chairman Goodlatte (R-VA).
Passed Committee with a vote
of 20 to 16 on June 19, 2013.
Agricultural worker bill that simplifies and
expands visa programs for agricultural
employers while lowering worker wages and
reducing worker protections.
H.R. 1772, the Legal
Workforce Act
Introduced by Lamar Smith (R-
TX). Voted out of Committee
by a vote of 22 to 9 on June 26,
2013.
Establishes national electronic employment
eligibility verification system that all employers
would be required to use within two years.
One bill voted out of Homeland Security Committee unanimously:
H.R. 1417, the
Border Security
Results Act
Introduced by Representative
McCaul (R-TX). Passed by the
Committee by unanimous voice
vote on May 15, 2013.
Requires control of the southwestern border
within 5 years and emphasizes measurable
metrics and independent verification of results.
Independently introduced bills involving immigration reform:
H.R. 15, the Border
Security, Economic
Opportunity, and
Immigration
Modernization Act
Introduced on October 2, 2013
by Representative Garcia (D-
FL). As of March 2014 H.R. 15
had 199 co-sponsors, including
Republicans Jeff Denham (R-
CA), Ileana Ros-Lehtinen (R-
FL), and David Valadao (R-
CA).
A modified version of S. 744, a major
immigration bill passed by the Senate on June
27, 2013, H.R. 15 is a comprehensive bill
addressing border security, a path to citizenship
for the undocumented, interior enforcement,
visa backlogs, higher and lower skilled work
visas, visa backlog reduction, family visas, and
the immigration courts, among other issues. See
Guide to H.R. 15.
H.R. 3431, the
American Families
United Act
Introduced on October 30, 2013,
by Reps. Pearce (R-NM) and
O’Rourke (D-TX). Co-sponsors
include Reps. Costa (D-CA) and
McGovern (D-MA).
Amends the current immigration system to
allow legalization of some of the undocumented
and address the separation of immigrants from
U.S. family members. No new paths to legal
status are created.
H.R. 3163, the
Comprehensive
Immigration Reform
for America’s
Security and
Prosperity Act of
Introduced by Reps. Grijalva
(D-AZ) and Vela (D-TX) on
September 20, 2013. 37
Democrats are co-sponsors.
A comprehensive bill addressing border
security, enforcement, employment verification,
visa backlog reduction, STEM visa increases,
and citizenship for the undocumented, among
other issues, with more generous benefits and
fewer punitive proposals.
99
2013 (CIR ASAP)
H.R. 435, the
Military Enlistment
Opportunity Act of
2013
Introduced by Rep. Coffman
(R-CO) on January 29, 2013,
with 16 co-sponsors.
Would allow certain undocumented immigrants
to obtain legal status through military service,
including beneficiaries of the Deferred Action
for Childhood Arrivals (DACA) program.
H.R. 714, the Startup
Act 3.0
Introduced by Rep. Grimm (R-
NY) on February 14, 2013. 14
Republican and Democratic co-
sponsors as of April 2014.
Provides additional green cards for immigrants
with advanced degrees in STEM fields and
certain immigrant entrepreneurs. Per-country
quotas for employment-based visas are
eliminated.
H.R. 2377, the
Encourage New
Legalized
Immigrants to Start
Training Act
(ENLIST Act)
Introduced by Rep. Denham (R-
CA) on June 14, 2013. 48
Republican and Democratic co-
sponsors as of April 2014.
Would allow certain undocumented immigrants
who entered the U.S. as children to obtain legal
status through military service.
H.R. 4178, the
American
Entrepreneurship and
Investment Act of
2014
Introduced by Reps. Polis (D-
CO), Salmon (R-AZ), Garcia
(D-FL), and Amodei (R-NV) on
March 6, 2014.
Makes the EB-5 immigrant investor program
permanent, streamlines procedures, tightens
requirements and oversight, and includes the
Commerce Department in the regulation of the
program.
H.R. 4303, the
Border Enforcement
Accountability,
Oversight, and
Community
Engagement Act of
2014
Introduced by Rep. O’Rourke
(D-TX), co-sponsored by Pearce
(R-NM) and Filemon (D-TX)
on March 26, 2014.
Establishes a border oversight commission and
border ombudsman charged with overseeing
border enforcement and protecting human
rights.
100
Appendix E: Map of U.S. States That Enacted Immigration Related Laws
101
Appendix F: Factors to Consider When Exercising Prosecutorial Discretion
There is no precise formula for identifying which cases warrant a favorable exercise of
discretion. Factors that should be taken into account in deciding whether to exercise
prosecutorial discretion include, but are not limited to, the following:
• Immigration status: Lawful permanent residents generally warrant greater
consideration. However, other removable aliens may also warrant the favorable
exercise of discretion, depending on all the relevant circumstances.
• Length of residence in the United States: The longer an alien has lived in the
United States, particularly in legal status, the more this factor may be considered a
positive equity.
• Criminal history: Officers should take into account the nature and severity of any
criminal conduct, as well as the time elapsed since the offense occurred and
evidence of rehabilitation. It is appropriate to take into account the actual
sentence or fine that was imposed, as an indicator of the seriousness attributed to
the conduct by the court. Other factors relevant to assessing criminal history
include the alien’s age at the time the crime was committed and whether or not he
or she is a repeat offender.
• Humanitarian concerns: Relevant humanitarian concerns include, but are not
limited to, family ties in the United States; medical conditions affecting the alien
or the alien’s family; the fact that an alien entered the United States at a very
young age; ties to one’s home country (e.g., whether the alien speaks the language
or has relatives in the home country); extreme youth or advanced age; and home
country conditions.
• Immigration history: Aliens without a past history of violating the immigration
laws (particularly violations such as reentering after removal, failing to appear at
hearing, or resisting arrest that show heightened disregard for the legal process)
warrant favorable consideration to a greater extent than those with such a history.
The seriousness of any such violations should also be taken into account.
• Likelihood of ultimately removing the alien: Whether a removal proceeding
would have a reasonable likelihood of ultimately achieving its intended effect, in
light of the case circumstances such as the alien’s nationality, is a factor that
should be considered.
• Likelihood of achieving enforcement goal by other means: In many cases, the
alien’s departure from the United States may be achieved more expeditiously and
economically by means other than removal, such as voluntary return, withdrawal
of an application for admission, or voluntary departure.
102
• Whether the alien is eligible or is likely to become eligible for other relief:
Although not determinative on its own, it is relevant to consider whether there is a
legal avenue for the alien to regularize his or her status if not removed from the
United States. The fact that the Service cannot confer complete or permanent
relief, however, does not mean that discretion should not be exercised favorably if
warranted by other factors.
• Effect of action on future admissibility: The effect an action such as removal may
have on an alien can vary–for example, a time-limited as opposed to an indefinite
bar to future admissibility–and these effects may be considered.
• Current or past cooperation with law enforcement authorities: Current or past
cooperation with the INS or other law enforcement authorities, such as the U.S.
Attorneys, the Department of Labor, or National Labor Relations Board, among
others, weighs in favor of discretion.
• Honorable U.S. military service: Military service with an honorable discharge
should be considered as a favorable factor. See Standard Operating Procedures
Part V.D.8 (issuing an NTA against current or former member of armed forces
requires advance approval of Regional Director).
• Community attention: Expressions of opinion, in favor of or in opposition to
removal, may be considered, particularly for relevant facts or perspectives on the
case that may not have been known to or considered by the INS. Public opinion or
publicity (including media or congressional attention) should not, however, be
used to justify a decision that cannot be supported on other grounds. Public and
professional responsibility will sometimes require the choice of an unpopular
course.
• Resources available to the INS: As in planning operations, the resources available
to the INS to take enforcement action in the case, compared with other uses of the
resources to fulfill national or regional priorities, are an appropriate factor to
consider, but it should not be determinative. For example, when prosecutorial
discretion should be favorably exercised under these factors in a particular case,
that decision should prevail even if there is detention space available.
103
Appendix G: Special Order 40
264.50 ENFORCEMENT OF UNITED STATES IMMIGRATION LAWS.
Officers shall not initiate police action where the objective is to discover the alien status
of a person. Officers shall neither arrest nor book persons for violation of Title 8, Section
1325 of the United States Immigration Code (LAPD Manual, Volume 4).
390. UNDOCUMENTED ALIENS.
Undocumented alien status in itself is not a matter for police action. It is, therefore,
incumbent upon all employees of this Department to make a personal commitment to
equal enforcement of the law and service to the public regardless of alien status. In
addition, the Department will provide special assistance to persons, groups, communities
and businesses who, by the nature of the crimes being committed upon them, require
individualized services. Since undocumented aliens, because of their status, are often
more vulnerable to victimization, crime prevention assistance will be offered to assist
them in safeguarding their property and to lessen their potential to be crime victims.
Police service will be readily available to all persons, including the undocumented alien,
to ensure a safe and tranquil environment. Participation and involvement of the
undocumented alien community in police activities will increase the Department's ability
to protect and to serve the entire community (LAPD Manual, Volume 1).
Source: LAPD online. Manual section 264.50: Enforcemet of United States Immigation
Laws and section 390: Undocumented Aliens.
104
Appendix H: Memo From Chief Gates
Los Angeles Police Department
Office of the Chief of Police
Special Order No. 40
November 27, 1979
Subject: Undocumented Aliens
Purpose: The Los Angeles community has become significantly more diverse during the
past several years with substantial numbers of people from different ethnic and
sociological backgrounds migrating to this city. Many aliens, whether from Latin
American, African, Asian or European countries, are legal residents. Others are
undocumented and are residing in the city without legal sanction.
On March 20, 1979, the Board of Police Commissioners adopted a policy statement
concerning undocumented aliens. This order incorporates the policy into The
Department Manual and amends related Manual provisions.
POLICY: The Department is sensitive to the principle that effective law enforcement
depends on a high degree of cooperation between the Department and the public it serves.
The Department also recognizes that the Constitution of the United States guarantees
equal protection to all persons within its jurisdiction. In view of those principles, it is the
policy of the Los Angeles Police Department that undocumented status in itself is not a
matter for police action. It is, therefore, incumbent upon all employees of this
Department to make a personal commitment to equal enforcement of the law and service
to the public, regardless of alien status.
The Department acknowledges the existence of social issues involving problems of
health, welfare, education, housing and employment which are related to the assimilation
of large numbers of persons with varied cultural heritages. Further, as the Department
identifies and distinguishes police problems from social problems, it will continue to
cooperate with those persons and agencies responsible for resolving these social issues.
In fulfilling its obligations, the Department will provide courteous and professional
service to any person in Los Angeles, while taking positive enforcement action against all
individuals who commit criminal offenses, whether they are citizens, permanent legal
residents or undocumented aliens. In addition, the Department will provide special
assistance to persons, groups, communities and businesses who, by nature of the crimes
being committed upon them, require individualized services. Since undocumented aliens,
because of their status, are often more vulnerable to victimization, crime prevention
assistance will be offered to assist them in safeguarding their property and to lessen their
potential to be crime victims. to ensure that these principles can be effective, the
Department will encourage the willing cooperation of all persons in programs designed to
enhance community-police cooperation. Police service will be readily available to all
105
persons, including the undocumented alien, to ensure a safe and tranquil environment.
Participation and involvement of the undocumented alien community in police activities
will increase the Department’s ability to protect and to serve the entire community.
PROCEDURE:
I. ENFORCEMENT OF UNITED STATES IMMIGRATION LAWS.
Officers shall not initiate police action with the objective of discovering the
alien status of a person.
Officers shall not arrest nor book persons for violation of title 8, Section 1325
of the United States Immigration Code (Illegal Entry).
II. ALIEN ARREST INFORMATION – NOTIFICATION. When; an
undocumented alien is booked for multiple misdemeanor offenses, a high
grade misdemeanor or a felony offense, or has been previously arrested for a
similar offense, the arresting officer shall:
• Telephonically notify the Headquarters Section Desk Officer,
Detective headquarters Division, of the arrest, the arrestee’s name,
booking number, charge and location booked.
• Mark the arrest face sheet “Undocumented Alien.”
DISTRIBUTION “A”
III. DETECTIVE HEADQUARTERS DIVISION. HEADQUARTERS
SECTION – RESPONSIBILITIES. The Headquarters Section Desk Officer,
Detective headquarters Division, upon notification that an undocumented
alien has been arrested for multiple misdemeanor offenses, a high grade
misdemeanor or a felony offense, or has been arrested for the same offense a
second time, shall:
• Record the information provided in the DHD Undocumented Alien
Log.
• Notify the United States Immigration and naturalization Service via
teletype of the arrest of the individual.
• Forward daily all Arrest Reports marked “Undocumented Alien” to the
United States Immigration and Naturalization Service.
IV. AREA/DIVISION RECORDS UNIT – RESPONSIBILITY. Area/division
records clerks shall forward one copy of each Arrest Report marked
“Undocumented Alien” to Detective Headquarters Division.
106
AMENDMENTS:
This order adds Section 1/390; amends Sections 4/264.50, 4/264.53, and 5/5.2-86;
and deletes Sections 4/264.57 and 4/264.60 from The Department Manual.
AUDIT RESPONSIBILITY:
Detective Headquarters Division shall monitor compliance with procedural
portions of this directive, in accordance with the provisions of Department
Manual Section 0/080.30.
Signed by:
DARYL F. GATES, CHIEF OF POLICE
Source: LAPD online. Chief of Police Daryl F. Gates memo dated November 27,
1979.
107
Appendix I: Illegal Alien Removals - Chart
108
Appendix J: ICE Arrest Statistics
Approximately 3,600 United States citizens have been arrested by ICE
through the Secure Communities program;
• More than one-third (39%) of individuals arrested through Secure
Communities report that they have a U.S. citizen spouse or child, meaning
that approximately
88,000 families with U.S. citizen members have been impacted by Secure
Communities;
• Latinos comprise 93% of individuals arrested through Secure Communities
though they only comprise 77% of the undocumented population
in the United States;
• Only 52% of individuals arrested through Secure Communities are slated
to have a hearing before an immigration judge;
• Only 24% of individuals arrested through Secure Communities and who
had immigration hearings had an attorney compared to 41% of all
immigration court respondents who have counsel;
• Only 2% of non-citizens arrested through Secure Communities are granted
relief from deportation by an immigration judge as compared to 14% of all
immigration court respondents who are granted relief;
• A large majority (83%) of people arrested through Secure Communities is
placed in ICE detention as compared with an overall DHS immigration
detention rate of 62%, and ICE does not appear to be exercising discretion
based on its own prioritization system when deciding whether or not to
detain an individual.
Abstract (if available)
Abstract
This research study critically examined the topic involvement of sub‐federal law enforcement in the enforcement of federal immigration law. Accordingly, the purpose of policy analysis was to evaluate the following research question: where there is discretion, should local law enforcement officers be involved in enforcing federal immigration law. In an effort to illuminate relevant information for proper evaluation of the research question, this project evaluated available policies on sub‐federal law enforcement and their involvement in enforcing federal immigration law. Though policies obtained for this paper cover the United States broadly, the focus of the analysis of these policies was to generate relevant and useful information for the new Los Angeles County Sheriff. Los Angeles is considered an immigrant metropolis and warrants becoming a lead on the topic of this investigation—involvement of sub‐federal law enforcement in the enforcement of federal immigration law. The analysis suggests that each agency should perform the duties and responsibilities they were sworn to do. Until federal law and federal agencies and agents can better delineate detention and arrest guidelines, state and local enforcement agencies should not have to do the job that federal agencies are required to do.
Linked assets
University of Southern California Dissertations and Theses
Conceptually similar
PDF
Building spiritual capital in religious communities: how and why?
PDF
Improvement of health care delivery in America: medical office compliance certification system implementation
PDF
Research to develop a manual for parents, caregivers, and volunteers to teach children from birth to five years of age with intellectual disability living in rural communities in the Dominican Re...
PDF
A framework for evaluating urban policy and its impact on social determinants of health (SDoH)
PDF
Intradepartmental collaboration in the public organizations: implications to practice in an era of resource scarcity and economic uncertainty
PDF
Essays examining nutrition behavior and policy in California
PDF
Satisfaction with local "public goods" and services: the effects of household income and privatization in southern California
PDF
A better method for measuring housing affordability and the role that affordability played in the mobility outcomes of Latino-immigrants following the Great Recession
PDF
Civic associations, local governance and conflict prevention in Indonesia
PDF
Urban universities' campus expansion projects in the 21st century: a case study of the University of Southern Calfornia's "Village at USC" project and its potential economic and social impacts on...
PDF
A framework for good local governance: achieving prosperity in an increasingly complex environment
PDF
Health impact assessment, the concept, science, and application in China
PDF
Who learns where: understanding the equity implications of charter school reform in the District of Columbia
PDF
The built environment, tour complexity, and active travel
PDF
Talent migration: does urban density matter?
PDF
Foreign-related activities of the Chinese local governments and agents of globalization: a case study of 31 provinces in mainland China
PDF
Life without nuclear power: a nuclear plant retirement formulation model and guide based on economics: San Onofre nuclear generating station case: economic impacts and reliability considerations ...
PDF
A miracle or a mirage? A study to evaluate the impacts of microfinance
PDF
Evergreen economies: institutions, industries and issues in the green economy
PDF
Recent experience in the utilization of private finance for American toll road development
Asset Metadata
Creator
Becerra, Irma
(author)
Core Title
Where there is discretion, should law enforcement officers at the local level be involved in enforcing federal immigration law? a study for consideration
School
School of Policy, Planning and Development
Degree
Doctor of Policy, Planning & Development
Degree Program
Public Policy / Planning
Publication Date
02/18/2015
Defense Date
02/18/2015
Publisher
University of Southern California
(original),
University of Southern California. Libraries
(digital)
Tag
federal immigration law enforcement,immigration,Law enforcement,local level,OAI-PMH Harvest
Format
application/pdf
(imt)
Language
English
Contributor
Electronically uploaded by the author
(provenance)
Advisor
Moore, James Elliott, II (
committee chair
), Dyrness, Grace (
committee member
), Lewis, LaVonna Blair (
committee member
), Rothans, Michael J. (
committee member
)
Creator Email
ibecerra@usc.edu,irmn8r@ca.rr.com
Permanent Link (DOI)
https://doi.org/10.25549/usctheses-c3-534087
Unique identifier
UC11297709
Identifier
etd-BecerraIrm-3197.pdf (filename),usctheses-c3-534087 (legacy record id)
Legacy Identifier
etd-BecerraIrm-3197.pdf
Dmrecord
534087
Document Type
Dissertation
Format
application/pdf (imt)
Rights
Becerra, Irma
Type
texts
Source
University of Southern California
(contributing entity),
University of Southern California Dissertations and Theses
(collection)
Access Conditions
The author retains rights to his/her dissertation, thesis or other graduate work according to U.S. copyright law. Electronic access is being provided by the USC Libraries in agreement with the a...
Repository Name
University of Southern California Digital Library
Repository Location
USC Digital Library, University of Southern California, University Park Campus MC 2810, 3434 South Grand Avenue, 2nd Floor, Los Angeles, California 90089-2810, USA
Tags
federal immigration law enforcement
local level