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July 30, 2010

Congress has already passed a law allowing state and local law enforcement to enforce immigration

This morning I published a piece in US News & World Report about the controversy over Arizona’s immigration law and the fight between the federal and state governments. The federal government asserts that Arizona is usurping the exclusive authority of the federal government to enforce immigration law.

To me, what has been curiously missing from the debate is that back in 1996 Congress passed a federal law  giving state and local governments (and their law enforcement organizations) the right to enforce immigration law.

On the one hand the federal government is suing Arizona for authorizing local law enforcement to coordinate with federal authorities regarding illegal immigration; on the other hand, the federal government is simultaneously requesting such assistance from local governments.

Below is a brief excerpt. To read the full article, go to: Congress Passed an Arizona-Like Immigration Law in 1996 – Chris Battle (usnews.com)

Back in 1996 it was time to get tough on immigration, and an interesting little law known as 287g was passed. This federal law deemed it appropriate for state and local law enforcement to enforce immigration law.

Want to know what 287g says? Well, just read the law in Arizona. Yes, that law. The one causing protests in the streets of Phoenix, hysteria on cable talk shows and confusion in the courts. The one that empowers state and local law enforcement to enforce immigration law.

Chris Battle founded Security Debrief as a forum for the homeland security community to discuss pressing issues and current debates in national security, counter-terrorism and law enforcement. After a long fight against kidney cancer, Chris passed in August 2013. Read More
  • Randy Beardsworth

    Chris, nice article. You are close to center on explaining the issue. I am also close to center but on the other side of the line.

    What your article doesn’t emphasize is that immigration laws are extremely complex and that 287(g) programs require extensive training on determining alienage. During my apprenticeship in the old INS, an old Border Patrol agent who became a deportation office explained to me that next to denying someone’s life, denying someone’s liberty was the harshest tool the government could exercise against an individual and that when an officer chooses to arrest or detain an individual, it’s a huge deal. We need to make sure we get it right, hence the need for professionals to determine alienage AND to determine if detention or arrest is appropriate. I support 287(g) because it is a controlled program with professional training in the field and because it can be tailored to target the highest priority illegal aliens.

    This brings me to the second point to which you allude but don’t flesh out – the issue of priorities. If I recall the numbers correctly, there are about 600k foreign-born criminals in our large state and federal jails and penitentiaries. Essentially, every time we process an illegal farmhand, we are not processing a rapist or gangbanger. ICE won’t fully cooperate in Arizona, not because it shirks its duties, but because it has a clear(er) eyed sense of priorities.

    Finally, you gave little if any attention to the constitutional issue. 287(g) was a method to leverage ICE (old INS), federal and constitutionally derived authorities without compromising the longstanding principle (and case law) that established immigration enforcement as a federal responsibility, much like foreign policy and common defense.

    Randy Beardsworth

    • Chris Battle

      Randy,

      You raise excellent points. Maybe I can address them one by one.

      As for the complexity of the law and the need for training, I do agree with that completely. However, I would say that critics of the idea of allowing local law enforcement to enforce immigration law will not be impressed. They would (and do) oppose any tactic of allowing state/local involvement – regardless of the amount of training involved to protect civil liberties and avoid profiling. As you may recall, implementation of 287g were often met with the same protests with which the Arizona law is being met – that it would inevitably lead to profiling and abuse of civil liberties.

      On the second point, I certainly hope you didn’t read my post as suggesting that ICE was shirking its duties. Just the opposite: My point was that ICE isn’t given anywhere near the resources necessary to do its job that Congress has demanded that it do. Prioritizing is a must. However, this doesn’t address the fact that Congress passed a law making a farmhand who illegally crossed the border as much an illegal immigrant as a gangbanger. A violent gangbanger should take priority, but if we are to say that the illegal farmhand should be ignored outright, as a standard operating procedure, then shouldn’t we revise the law? It seems misguided to have a law asserting that anybody who crosses the border without going through the proper channels is illegal while at the same time telling law enforcement to ignore that illegality. It is unfair to our immigration agents, and it undermines the integrity of the legal system. (I say this as one who believes our immigration process is a disaster that leads to outrageous delays and restricts too many immigrants from being allowed to take jobs in the United States when those jobs need to be filled. )

      Regarding the constitutionality of the Arizona law: Judge Bolton argues that by allowing state/local law enforcement to request documentation from individuals who have given a reasonable suspicion that they may be in the country illegally, then we are unconstitutionally burdening potential individuals who are in the country lawfully – that is, invading their privacy. If this is true, then the federal law must also be unconstitutional because the same kind of burden will occur. It seems contradictory to say that local law enforcement cannot risk such a burden but for some reason federal law enforcement can.

      Thanks for reading my post and offering such thoughtful analysis.

      Best,
      Chris

  • Anonymous

    But 287(g) only comes into play when DHS has certified local law enforcement officers as qualified to enforce immigration law. DHS also has to train 287(g) certified officers. Rather than using 287(g), what Arizona did was authorize every Arizona law enforcement officer–whether trained or certified by the Federal government or not–to enforce the immigration laws. It seems to me that there is a big difference.

    The 287(g) law is pretty well known, and there is a government website that shows which states and localities are partnering with the Federal Government. In fact, 287(g) is one of the reasons why the Federal Judge in Arizona struck down parts of Arizona's law–she said that Congress had already legislated the way that Arizona law enforcement could enforce immigration laws, and Arizona was therefore “preempted” from trying to do things a different way.

    Arizona has always had the ability to use 287(g) to enforce federal immigration law.

  • Observer

    I just read your article on the Immigration fiasco in AZ. I used to work for a Surety company that wrote immigration bonds. The biggest problem with immigration in the US falls in the court system and DHS ICE. Many times my company was ordered to produce an alien for deportation, an order given by an Immigration Judge, many times we would produce the alien at the Deportation Centers only to be told they could not take the alien? We would argue back and forth asking why then the order to bring them in if your not going to take them? The problem in immigration is not the laws but the people not following the laws, ICE!

    If you or I were to not follow the order of a judge, we would be held in contempt, why don't they start charging these Deportation Officers with contempt for not following a judges order? This happens more than a person thinks and I am sure the public has no idea. I would venture to say not a lot of people know this. If they would just deport the ones they are able to deport that 10 to 12 million number would start to decrease.