Authority of local police to enforce immigration laws.
Under court order, the Department of Justice (DOJ) has finally released a legal opinion that generated considerable controversy among state and local police since its existence was leaked in 2002.
The memo, written by the DOJ’s Office of Legal Counsel (OLC), asserts that state and local police have the “inherent authority” to enforce all federal laws, including civil immigration laws. This one memo reversed decades of law enforcement policy and practice, including previous DOJ legal opinions (issued in 1996 and 1989) that held police could assist in criminal enforcement, but not in the enforcement of civil immigration laws.
In recent years there have been numerous attempts by Congress and the Bush Administration to involve state and local police agencies in the enforcement of federal civil immigration law. Many individuals and organizations—including law enforcement officials—have opposed these proposals. Their primary mission is public safety, and they know that local enforcement of federal immigration laws destroys relationships between immigrant communities and police. Immigrants are less likely to report crimes or suspicious activity to police if they fear their immigration status or that of a loved one could become known. Local enforcement of federal immigration laws is bad public policy and would divert scarce resources away from necessary law enforcement priorities, place a tremendous financial burden on states and localities, and result in racial profiling, discrimination, and as a result, costly litigation.
To help fight these proposals, law enforcement agencies, members of Congress, and immigrant advocates have tried for three years to obtain a copy of the legal rationale behind this radical policy shift at DOJ. It took a lawsuit brought by the American Civil Liberties Union (ACLU) on behalf of the National Council of La Raza, New York Immigration Coalition, American Immigration Lawyers Association, National Immigration Law Center, National Immigration Forum, National Immigration Project of the National Lawyers Guild, Massachusetts Immigrant and Refugee Advocacy Coalition, and National Employment Law Project to pry the legal opinion from DOJ’s secret files. Now we know why the Department guarded its legal analysis so closely.
The 2002 OLC opinion on police authority to enforce immigration laws is a conclusion in search of a basis. We are pleased to make this legal analysis available to the public, so that all can see its shoddy reasoning and glaring omissions. In short, the opinion:
1) Selectively reads case law, incomprehensively arguing that the federal government has not preempted local authority to enforce complicated, multi-layered immigration laws.
2) Misconstrues decisions in cases where police assisted in criminal enforcement to extend them authority to enforce civil laws as well.
3) Repeatedly ignores instances in which Congress authorized authority for police to assist in immigration enforcement under specific situations, even when the Congressional Record reflects the fact that lawmakers intended such provisions to grant new authority that police did not already possess.
The now-public version of the 2002 legal memo (redacted in part by DOJ) can be found at http://www.aclu.org/ImmigrantsRights/ImmigrantsRights.cfm?ID=19039&c=22. A detailed refutation of its findings (written by ACLU lawyers) can be found at http://www.aclu.org/ImmigrantsRights/ImmigrantsRights.cfm?ID=19045&c=22. One previous OLC memorandum on the topic (from 1996) is available by contacting the National Immigration Forum (obtaining access to the 1989 opinion is the subject of yet another FOIA suit). A legal opinion from the Migration Policy Institute supporting the DOJ’s 1996 conclusion is available at http://www.migrationpolicy.org/files/authority.pdf.
It is important to note that absent the new authority “justified” in this flawed opinion, police departments have the authority to notify federal immigration authorities if they have a criminal in custody who is also an immigrant, and do so regularly. They routinely assist in the transfer to federal custody of convicts who are also immigration violators, and work hand in glove with federal agents on task forces targeting terrorists, gangs, and smugglers. However, treating all immigration violators—students who fall short of necessary credits, persons who fail to comply with change-of-address requirements—like hardened criminals would be a tremendous misuse of law enforcement resources and would undermine the relationships necessary for community policing.
It is clear that the current immigration system is broken and in need of fundamental reform. Millions of people who live in the United States have committed civil immigration law violations. Federal immigration enforcement resources will never be able to search out and find them all. But enforcing the current laws is not the solution; new laws are needed that are in tune with U.S. social and economic realities. Within a new legal immigration system in which everyone has incentive to abide by the law, law enforcement can devote their resources to truly egregious and dangerous criminal behavior.
Only by enacting comprehensive immigration reform, including a reasonable accounting of undocumented immigrants living and working here, will we restore control to the immigration system. Scattershot policies like encouraging local enforcement of immigration laws, especially when supported by faulty legal reasoning and veiled in secrecy, are simply not the answer.
ASSOCIATED PRESS: ACLU: Govt. memo exaggerates police rights
By Michael Weissenstein
Associated Press
September 7, 2005
NEW YORK – The Justice Department believes state and local police have the right to enforce federal immigration laws, according to a government memo released Wednesday by the American Civil Liberties Union.
The ACLU said the Justice Department opinion makes the “sweeping and unprecedented” legal argument that state and local law enforcement officers can arrest anyone who violates a federal law.
“We therefore do not believe that the authority of state police to make arrests for violation of federal law is limited to those instances in which they are exercising delegated federal power,” the memo says.
A Justice Department spokesman had no immediate comment.
A coalition of civil and immigrants’ rights groups received the memo under court order in July after suing under the Freedom of Information Act.
Then-Attorney General John Ashcroft and his staff had repeatedly used the memo to justify a decision to start letting local police arrest people after traffic stops and other encounters if they were found to have committed civil immigration violations, such as overstaying a visa.
The ACLU said the memo, by then-Assistant Attorney General Jay S. Bybee, stretched the definition of local law enforcers’ roles so far that it could be used to justify giving them the right to enforce the U.S. tax code, environmental rules and other federal laws.
“That result is simply absurd,” the group said in a statement released with a government-redacted copy of the memo.
The 2002 opinion reversed a 1996 letter of advice from the Justice Department’s Office of Legal Counsel, which said that state and local police could enforce only criminal immigration violations such as sneaking across a border.
Bybee wrote Ashcroft three years ago that the Office of Legal Counsel had determined that its initial decision was wrong. It was based on three state and federal appeals court rulings, a federal law and a previous internal opinion.
“We believe that the authorities we cited in the 1996 OLC opinion provide no support for our opinion,” that state police could not enforce civil immigration laws, wrote Bybee, who later became a federal judge.
Bybee made headlines around the world by arguing in a Jan. 22, 2002, memo that the president has the power to issue orders that violate the Geneva Conventions and international and U.S. laws prohibiting torture.
The government argued that the Justice Department was not required to release Bybee’s immigration memo because it had not formally adopted the document and because of attorney-client privilege.
An appeals court rejected both arguments, saying it could not let the government “make public use of the memorandum when it serves the department’s ends but claim the attorney-client privilege when it does not.”
The court noted that Ashcroft and his representatives used the memorandum to justify and explain the department’s policy of expanded local immigration powers.