Copland and Brenner

Table of Contents

1. Papieren, Bitte: All Enforcement, All the Time

1. Papieren, Bitte: All Enforcement, All the Time

   An April 9 editorial in The New York Times states that, “[n]ot content to botch immigration policy all by itself, Congress has handed large parts of the job to others to mishandle. It gave the homeland security czar the czarist powers to overturn any law and ignore any court to seal the border. Now Michael Chertoff is clear-cutting a forest of regulations to wall out Mexico by the end of the year. And through the program known as 287(g), his agency is parceling out duties to a growing number of local police and sheriff’s departments, raising an army of junior deputies in the war on illegal immigrants.”

   Section 287(g) of the Immigration and Nationality Act was enacted as Section 133 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, and was titled “Acceptance of State Services to Carry out Immigration Enforcement.” The provision was effective upon enactment; i.e. , September 30, 1996. INA Section 287(g) states that: “Notwithstanding section 1342 of title 31, United States Code, the Attorney General may enter into a written agreement with a State, or any political subdivision of a State, pursuant to which an officer or employee of the State or subdivision, who is determined by the Attorney General to be qualified to perform a function of an immigration officer in relation to the investigation, apprehension or detention of aliens in the United States (including the transportation of such aliens across State lines to detention centers), may carry out such function at the expense of the State or political subdivision and to extent consistent with State and local law.”

   It should be noted that Title 31, Section 1342 of the U.S. Code (Limitation on voluntary services) reads as follows: “An officer or employee of the United States Government or of the District of Columbia government may not accept voluntary services for either government or employ personal services exceeding that authorized by law except for emergencies involving the safety of human life or the protection of property….As used in this section, the term ‘emergencies involving the safety of human life or the protection of property’ does not include ongoing, regular functions of government the suspension of which would not imminently threaten the safety of human life or the protection of property.”

   Efforts to enforce immigration laws under Section 287(g) – and outside it - are varied, and occur nationwide. For example, on August 22, 2007, New Jersey Attorney General Anne Milgram issued a Law Enforcement Directive with guidelines to “establish the manner in which local, county, and State law enforcement agencies and officers shall interact with federal immigration authorities.” The Directive states that “[w]hile enforcement of immigration laws is primarily a federal responsibility, State, county, and local law enforcement agencies necessarily and appropriately should inquire about a person’s immigration status under certain circumstances.” Such circumstances include “serious” violations of state criminal law, where “the individual’s immigration status is relevant to his or her ties to the community, the likelihood that he or she will appear at future court proceedings to answer State law charges, and the interest of the federal government in considering immigration enforcement proceedings. ” (emphasis added)

   Under the Directive, whenever any New Jersey officer - not just those authorized under Section 287(g) - "makes an arrest for any indictable crime, or for driving while intoxicated," an officer "shall inquire about the arrestee's citizenship, nationality and immigration status," with notice of any person believed to be unlawfully present to be provided to U.S. Immigration and Customs Enforcement. In turn, New Jersey officers who are authorized under Section 287(g) may exercise federal authority after the arrest of a person for any indictable offense or driving while intoxicated, as well as for any undocumented immigrant detained in a county jail or state prison. Therefore, while the Directive ostensibly distinguishes between activities "applicable to all agencies and officers" and those "applicable only to Section 287(g) agencies and officers," it implicitly engages all state and local law officers in the coordinated enforcement of federal immigration laws.

   In a March 23 New York Times article that is largely a critique of the New Jersey Directive, Scott Weber, the field office director for the U.S. Immigration and Customs Enforcement office in Newark, is described as saying "that in roughly a third of the cases, his agency would file a detainer or immigration charges; another third involved individuals who could be deported after their court cases; and the rest might be United States citizens or legal residents. " (emphasis added)

   In contrast, on April 28, 2008 Arizona Governor Janet Napolitano vetoed House Bill 2807, which would have mandated federal immigration law enforcement by local authorities. The bill stated that "[100]ounty sheriffs and police departments of cities and towns shall implement a program to address violations of federal immigration laws by training peace officers or detention officers, embedding United States U.S. Immigration and Customs Enforcement agents within the agency, or establishing operational relationships with the United States Immigration and Customs Enforcement to implement the provisions of this section. Any training provided pursuant to this section shall be funded by any source of federal funding or by the state if federal funding is unavailable. Peace officer and detention officer training shall be provided by an authorized federal entity or an entity authorized by the federal government to provide training on federal immigration laws." (emphasis added)

   In her veto letter, Governor Napolitano noted that "nothing in current law prevents Arizona's sheriffs and police departments from entering into agreements with federal immigration authorities to enforce federal immigration laws, provided they are given proper training." She stated that Section 287(g) gives the Department of Homeland Security "the ability to train local law officers in the enforcement of federal immigration laws," but that the impediment to such cross training "is the federal government's inability to meet the demand for training opportunities." Along these lines, she noted that "Congress appropriated only $5.5 million in 2008 to maintain the entire nation-wide program." Since the bill required "the Arizona general fund to pay the training costs for all local law enforcement (not just for the Department of Public Safety) if federal funding is not available, Arizona tax payers would be required to pay an approximately $100 million bill at a time we are facing significant budget shortfalls." The veto was on fiscal grounds, therefore; a veto nonetheless.

   An April 30 editorial in The New York Times stated that "Governor Napolitano's veto of this repugnant bill will surely lead the Minutemen and their allies to denounce her again. She is standing up for what is right for her state and for what is right. The search for a rational immigration system will not be resolved by simplistic, predatory enforcement schemes." Nonetheless, even municipalities draft their own rules regarding immigration-related issues. For example, a Tulsa, Oklahoma resolution "requires police officers to determine immigration status of 'all suspected illegal aliens' encountered in the course of their regular duties." This is described as representing "the chaotic fallout of a federal framework that neither prevents illegal immigrants from entering the U.S. to work nor provides a way for them to gain legal status. That Catch -22 has forced local jurisdictions like Tulsa to seek their own solutions to the explosive and complex issue." The full article is online at http://www.msnbc.msn.com/id/19466978/.

   With federal implementation of existing immigration laws in a shambles, it is not only state and local law enforcement authorities that are getting involved. The responsibility is also being foisted upon U.S. businesses to a greater extent than ever. On March 26, the Department of Homeland Security published a supplemental proposed rule regarding so-called "no match" Social Security Administration letters, in which it sought to overcome issues raised by a preliminary injunction issued by the U.S. District Court for the Northern District of California regarding an earlier version of the rule. In the analysis of the American Immigration Lawyers Association, the supplemental proposed rule is essentially unchanged from the initial proposal. The DHS appears to concur; the Supplementary Information to the rule states that "DHS continues its defense of the case" and that it "is not a concession of any issue pending in the litigation."

   As a March 27 New York Times editorial noted, "[t]he Social Security Administration was set up to administer benefits, not to enforce immigration laws. There are many illegal immigrants who use fake IDs, but the sheer abundance of errors - the result of name changes, misspellings and other mix-ups - preclude their use for an immigration crackdown. Native-born workers will pay the price for these mistakes, but the foreign born also will suffer, because they are especially at risk of errors from inconsistent spellings, mistranslations and other language issues."

   As if this is not enough, private organizations and individuals are also on the immigration enforcement bandwagon. There are the TechnoPatriots, who "utilize technology, cameras, other wireless electronics, and computers for remote monitoring of highly navigated remote rural areas of the U.S. / Mexican border." TechnoPatriots seeks volunteers "to monitor cameras and report border intruders from the comfort of their own homes." Volunteers may also go to the border "for special training and field operations." There are the Minutemen, a self-described "National Citizens Neighborhood Watch," whose mission is "to secure United States borders and coastal boundaries against unlawful and unauthorized entry of all individuals, contraband, and foreign military." It is questionable how these efforts square with the Title 31, Section 1342 bar against "voluntary services" and the written agreements required of states or their subdivisions under 287(g).

   The march toward localized, even individual, efforts to enforce immigration laws - as well as documentation that establishes identity and immigration status - appears inexorable. As we reported last month, a recent rule under the Western Hemisphere Travel Initiative and one earlier this year concerning the REAL ID Act indicate that there is a clear path toward state driver licenses and IDs that will somehow distinguish between holders who are U.S. citizens and those who are not.

   On April 28, the Supreme Court affirmed the judgment of the Seventh Circuit Court of Appeals, upholding an Indiana election law requiring citizens voting in person to present government-issued photo identification. The Court found that the burden on voters is offset by the benefit of reducing the risk of fraud. According to a New York Times article the following day, "[t]wenty-five states require identification at the polls for all voters, including seven that require or can request photo ID. This year, Texas and at least nine other states, including California, Illinois, New Mexico and Virginia, have considered photo ID measures." The article states that the "ruling is likely to set off fierce debates where illegal immigration is a hot issue."

   Meanwhile, May Day parades and rallies have been planned in many cities across the country but low turnout is generally expected. Reasons include concerns about immigration enforcement activities and the lack of a singular galvanizing issue as existed in 2006, when some marches involved hundreds of thousands of people. An April 29 New York Times article states that "[o]rganizers say this year's efforts are focused less on protests and more on voter registration and setting an agenda for the next president. At least two major national organizations that traditionally have rallied large numbers of immigrants on May 1, National Council of La Raza and Service Employees International Union, have purposely put less energy into the marches." Since the issue resonating with most voters is the poor economy, and with immigration a contentious topic, those who support comprehensive immigration reform are decidedly not optimistic.