cjus 4901.001 research paper

State and Local Law Enforcement:

Policy of Illegal Immigration

Jonathan Bell & Aaron Hanna

University of North Texas

CJUS 4901.001

Senior Seminar: Criminal Justice Public Policy

5W2 2013

STATE AND LOCAL LAW ENFORCEMENT

Abstract

In recent years, our nation’s immigration laws have been receiving large amounts of

attention; primarily after the terrorist attacks of September 11, 2001 were carried out. It’s

debated that, since the spike of attention on illegal immigration, the federal government

does not exhibit the capability of effectively enforcing illegal immigration. If state and local

law enforcement does get involved it could divert their economic resources that’s typically

directed toward basic law enforcement responsibilities. While most of us agree that our

local safely should not be limited; government, state and local law enforcement is joining

forces to develop ideas on how to effectively combat illegal immigration. In this paper, we

examined policies and studies involving immigration within the United States emphasizing

on how state and local law enforcement agencies can effectively fight to stop illegal

immigration and possible problems they may encounter while enforcing immigration laws.


State and Local Law Enforcement: Policy of Illegal Immigration

Immigration has been part of the United States since the first English colony started

in Jamestown, Virginia in 1607. An Immigrant is a person who migrates to another country

seeking permanent residence. The first immigrants to settle in the United States were

British, French, Spanish, and Portuguese; with majority consisting of British. Over the next

four centuries, the United States would experience four great waves: the colonial period,

mid-nineteenth century, beginning of the twentieth century, and post 1965. This brought

many new races and ethnicities to the United States. On March 2, 1819, Congress passed its

first immigration law called Steerage Act, which regulated passenger ships and vessels

entering the United States by certain standards. Problems with illegal immigration did not

start to begin until after the passage of the 1921 Emergency Quota Law and the 1924

Immigration Act; limiting immigration as a set quota system according to nationality. This

led to a rise of illegal immigration resulting with the formation of the U.S. Border Patrol on

May 28, 1924. In recent years our nation’s Immigration laws has been receiving large

amounts of attention; originating from the terrorist attacks of September 11, 2001. It’s been

debated that the federal government doesn’t have the means to affectively enforce

immigration laws and that this should be a responsibility of the state and local law

enforcement agencies. In result, many local law enforcement agencies have been tasked

with enforcing immigration laws, but it’s being argued that these local law enforcement

agencies lack the economic resources and training to combat illegal immigration

effectively. How do local law enforcement agencies effectively fight to stop illegal

immigration and what are possible problems they encounter while enforcing immigration

laws? With better understanding of these problems in addition to the implementation of an

effective policy aimed toward illegal immigration, encountered by the state and local law


enforcement agencies, the number of illegal immigrants residing inside the United States

should begin to decrease.

Literature Review

Legal Immigrant - Illegal Migration

On March 1, 2003, the U.S. Immigration and Naturalization Service (INS) was

divided from the Department of Justice into three groups: U.S. Customs and Border

Protection (CBP), U.S. Immigration and Customs Enforcement (ICE), and U.S. Citizenship

and Immigration Services (USCIS); operating under the new Department of Homeland

Security. Currently, DHS has a yearly budget of ninety-nine billion and does joint

operations with local and state law enforcement agencies. According to studies by the

Urban Institute in Washington, D.C., four out of ten immigrant’s daily crosses the southern

border illegally, while others enter the United States legally through airports or at the

Canadian border. Eighty-five percent of the CBP resources are exercised at the U.S. -

Mexico border to prevent illegal immigrants from coming into the United States. With that

being said, how are illegal immigrants migrating into our country? Republican Candice

Miller states that over forty percent of all illegal immigrants in the United States are here on

either an expired I-94 form or visa (Jimenez, 2000).

Fake Identification

Immigration policies have certain roles between federal, state and local law

enforcement in policing violations of immigration law: federal law enforcement agencies

enforce both criminal and civil violations of the immigration law, although state and local

law enforcement agencies are only capable of enforcing criminal violations of immigration

laws. Thus, entering the United States illegally is a federal violation of civil law but not


criminal law. State and local law enforcement agencies mostly encounter immigration

violations that fall outside their legal jurisdiction, civil violations, whereas they continue to

maintain the capability of enforcing all criminal violations associated with immigration

laws (Creek & Yoder 2012).

What happens when state and local law enforcement arrests an illegal immigrant for

committing a criminal violation? State and local law enforcement have expressed problems

in regards to the common practice of state and federal prosecutors dismissing criminal

cases if the illegal immigrant agrees to voluntary removal. This action allows the illegal

immigrant to get off with a clean record, and a free ticket back home at the expense of the

taxpayers. Illegal immigrants committing crimes within America’s borders know the

system and how it operates. An example of this was conveyed by Sheriff Pendergraph with

the National Sheriff’s Association. “The first week we were processing, we came across an

individual who had been removed from this country 22 times. His last deportation was from

the Arizona Department of Corrections back to Mexico, and he was arrested a short time

later in Charlotte for trafficking methamphetamines.” (Hoops, Summerill, Goodwin, &

Henning 2009)

In 2005, the Real I.D. Act was passed setting national standards for driver’s

licenses and non-driver identification cards. This Act allowed immigrant to receive a

driver’s license and I.D. card by showing a minimum requirement of a lawful status. The

Real I.D. Act was design to restrict illegal immigrant’s abilities to function in society by

restricting their ability to get a driver’s license to obtain employment. Going back to what

Republican Miller stated, over forty percent of all illegal immigrants in the United States

entered the country legally. This is a major problem for state and local law enforcement

agencies; who is legal and who is not? (Newton, 2012)


State and Local Law Enforcement: Enforcing Immigration

The federal government has approximately 2,000 federal agents and is unable to

effectively enforce the federal immigration laws. It is estimated that there are between eight

to twelve million illegal immigrants living in the United States, with a rising number of

eight-hundred thousand joining yearly. Out of all of the illegal immigrants, four-hundred

thousand are estimated to be immigrant absconders: illegal immigrants that have been

issued a deportation order, but have did not show up to their hearing. With that said, it is

estimated that eighty-six thousand of these illegal immigrants have been convicted of

multiple deportable crimes (Booth, 2006).

The number of illegal immigrants in the United Stated outweighs federal agents by

five-thousand to one. The government expects their federal agents to find all them within

our borders? The federal government clearly does not have the manpower to enforce

immigration laws. It is the goal of the federal government to enforce the immigration laws

by requesting state and local law enforcement’s aid in the efforts against illegal

immigration. This is expected to be accomplished by conjoining federal immigration agents

with the participating state and local law enforcement agencies, thus resulting with an

effective force to uphold all immigration laws (Booth, 2006).

What could happen if the state and local law enforcement agencies got involved

with a federal obligation? If the state and local law enforcement decides to aid the federal

government, it would divert limited state and local police resources to the federal

government and it would leave fewer for typical law enforcement abilities such as

protecting facilities and serving as first responders. Requiring state and local law

enforcement to enforce immigration laws may even play a toll with the relationships that

the agencies have developed with other immigrants in their communities; making it less


likely, due to the fear of deportation, to report crimes. This is defiantly problematic

involving crimes such as domestic abuse and sexual assault (Booth, 2006).

On June 30, 2005, The Clear Act of 2005 was passed, stating that states and local

law enforcement personnel “have the inherent authority of a sovereign entity to investigate,

identify, apprehend, arrest, detain, or transfer to federal custody of illegal immigrants in the

United States; the purpose of assisting in the enforcement of the immigration laws of the

United States,” and that any state that “has in effect a statute, policy, or practice that

prohibits law enforcement officers from assisting or cooperating with federal immigration

law enforcement” shall not receive certain federal funding (Booth, 2006).

Collaboration with State and Local Law Enforcement

State and local law enforcement have begun to play a larger role in the fight against

illegal immigration into the United States. In previous years this was an issue solely

handled by the federal government not local law enforcement. Illegal immigration had

never been a direct responsibility of any state or local law enforcement unless it was

somehow linked into an ongoing investigation. The distance between federal agencies

tasked with illegal immigration, Immigration and Customs Enforcement (ICE), and state or

local law enforcement has begun to progressively shrink. States dealing with heavy

amounts of illegal immigration face issues involving: drug and violent crime as a result of

cartels, money in relation to benefits being used such as Medicaid, and the overwhelming

toll it has taken on the state’s law enforcement entities. The Federal government’s first big

step toward implementing state and local law enforcement in the fight against illegal

immigration was with the passing of the Illegal Immigration Reform and Immigrant

Responsibility Act (IIRIRA). IIRIRA amended the Immigration and Nationality Act of


1952; thus implementing Section 287(g), Congress’ plan to aid the federal immigration

system (Hoops, Summerill, Goodwin & Henning, 2009).

Section 287(g) allows the Department of Homeland Security, more specifically

Immigration and Customs Enforcement, to deputize state and local law enforcement

officers. The importance of these officers being deputized under Section 287(g) is to legally

allow them to enforce federal immigration laws. ICE was given the discretionary powers to

specify what the duty of these newly deputized officers would be, how these officers would

be supervised by ICE, and how long their authority as a deputy could last (Hoops,

Summerill, Goodwin & Henning, 2009). For participation in the Section 287(g) program

Sheriffs were required to submit a Memorandum of Understanding with ICE (McKain &

McKain, 2007). The MOU was created to outline each deputy’s level of authority and their

responsibilities when executing any federal immigration policies. In addition, the MOU

contains the structure in which ICE agents will be supervising the deputies, as well as

clarifying that each aspect of Section 287(g) is being carried out within the department

(Hoops, Summerill, Goodwin & Henning, 2009).

Upon qualification for the Section 287(g) program the deputies are typically

required to take part in ACCESS, Agreements of Cooperation in Communities to Enhance

Safety and Security, training at the Federal Law Enforcement Training Center in South

Carolina (Hoops, Summerill, Goodwin & Henning, 2009). Deputies that become ACCESS

certified are then qualified to act as an ICE agent, thus giving them the capability to combat

felony crimes such as: human and drug trafficking, gang activity, and violent crime (Hoops,

Summerill, Goodwin & Henning, 2009). Another large benefit to local law enforcement

agencies upon adopting this program is gaining direct access to ICE databases. By allowing


access to these databases, local departments are able to quickly identify and obtain the

immigration status of the suspects in custody (McKain & McKain, 2007). Since this

program is federally funded, and deputies have the authority to transfer illegal aliens to ICE

incarceration facilities, it help to alleviate the state and local jails of any additional costs

associated with detaining the overabundance of aliens in their jurisdictions (Hoops,

Summerill, Goodwin & Henning, 2009). There has been a strong correlation between this

program and the number of deportations since its implementation. By 2011, it was recorded

that 186,000 immigrants were identified for removal based on the program; of these

186,000 immigrants, 126,000 voluntarily deported (Parrado, 2012).

Section 287(g), like all legislation, was not exempt from government criticism.

Critics claim that this program promotes racial profiling of Hispanics, and a clear violation

of human rights. The Government Accountability Office conducted a review of the

program to speculate what changes could be made to significantly improve the system. This

review brought up issues concerning a lack of ICE supervision over the consistency of

authority displayed by participants, the structure of ICE agents supervising tactics, and ICE

had not expressed any clear direction in reference to what information they are obligated to

obtain (Hoops, Summerill, Goodwin & Henning, 2009). Their report concluded that ICE

should clearly state the specific authority given to participants, provide detailed reporting

guidelines as well as guidelines on how supervision of participants should be successfully

conducted, and finally to create an action plan aimed toward rectifying these issues (Hoops,

Summerill, Goodwin & Henning, 2009). In response to this report ICE began developing a

strategic plan to create a universal template allowing for each agency to operate in a


uniform fashion, as well as introducing Standard Operating Procedures distinct to each

participating agency (Hoops, Summerill, Goodwin & Henning, 2009).

State and Local Law Enforcement: On the Frontlines

Agencies tasked with enforcing federal immigration laws have helped lead to the

deportation of a large amount of illegal immigrants. These state and local law enforcement

agencies continue to encounter numerous situations involving human and drug trafficking,

gang activity, and violent acts of crime on a daily basis. Departments in some cases have

banned patrol to certain areas within their jurisdictions due to an increased threat level set

forth by dangerous suspects illegally entering the United States. In Phoenix, Arizona the

Sheriff Department has been actively enforcing all federal, state, and local immigration

policies while patrolling their beats. Upon apprehension and being placed in jail, every

suspect is subject to investigation by detention officers to determine each individual’s

immigration status (Allen & Sousa, 2011). The suspects, once it’s determined they are in

America illegally, are documented with an immigration hold and immediately deported

upon the completion of their criminal case (Allen & Sousa, 2011). Officers within this

department claim to be specifically trained in identifying indicators that an individual could

possibly be in the country illegally, while maintaining their constitutional rights. To execute

such a questioning the deputies must have strong probable cause before inquiring whether

or not an individual is illegally within the United States (Allen & Sousa, 2011). In crime

ridden areas along the border it is common for local law enforcement to receive a typical

disturbance call, and upon arrival at the scene be presented with a human trafficking

situation. It’s these types of situations that are ultimately affecting everyday law

enforcement activities; they draw attention away from their jurisdiction’s domestic issues


and focus it mostly on problems caused by illegal immigration (McKain & McKain, 2007).

Some departments involved in Section 287(g), or that have their own state’s laws

permitting the policing of illegal immigration laws, have created specific units with the sole

purpose of combating aspects of illegal immigration. Maricopa County Sheriff’s Office

created a unit with the objective of combating human trafficking called the Human

Smuggling Unit (HSU) (Allen & Sousa, 2011). This unit is just one example of this type of

task force that is popping up throughout the country to more effectively fight illegal

immigration.

Conclusion

The United States was founded solely based upon immigration. Our country has

commonly been referred to as a “Melting Pot” of different races, ethnicities, and cultures.

It’s because of this fact that over time we had begun to introduce legislation regulating

different aspects of immigration. Two key pieces of legislation, 1921 Emergency Quota

Law and the 1924 Immigration Act, kick started the illegal immigration process. It was by

these policies that the country began to limit the amount of individuals immigrating to the

United States based on their nationality. Upon the rise of illegal immigration the United

States formed the U.S. Border Patrol with the sole purpose of policing our borders and the

individuals wishing to cross over them. There has always been a continuous problems

brought on by illegal immigration throughout our country’s history. Although in recent

years, following the terrorist attacks of September 11, 2001, immigration has once again

become a large focal point. It has been speculated that the federal government, since the

spike of attention on illegal immigration, does not exhibit the capability of effectively

controlling illegal immigration. Based on these speculations, an idea arose stating that state


and local law enforcement agencies should be indirectly responsible, under federal

supervision, for enforcing immigration laws within their jurisdictions (McKain & McKain,

2007). In result, these agencies have now become tasked with enforcing immigration laws

in addition to their existing responsibilities. How do local law enforcement agencies

effectively fight to stop illegal immigration and what are possible problems they encounter

while enforcing immigration laws? There are many problems associated with illegal

immigration, but certain issues hold higher concern. Immigrants are finding ways to

circumvent immigration policies by entering America legally, with I-94 forms or visas, then

deciding to never leave upon the expiration date of their documentation (Jimenez, 2000).

Individuals that fall into this category become increasingly difficult to apprehend once they

no longer hold an active citizenship status. In response to illegal immigration becoming an

increasing large problem for states like Arizona, state and local governments have created

their own immigration laws to enforce alongside the preexisting federal immigration laws

(Allen & Sousa, 2011). Many departments while dealing with serious illegal immigration

problems face multiple complications against their efforts to contain this issue. Levels of

illegal immigration were becoming overwhelmingly high, so much so that state and local

law enforcement greatly lacked the amount of resources necessary to effectively fight the

problem (McKain & McKain, 2007). These departments did not have the monetary

resources, manpower, training, or equipment needed to effectively enforce the immigration

laws within their areas. The Illegal Immigration Reform and Immigrant Responsibility Act

(IIRIRA) amended the Immigration and Nationality Act of 1952, thus implementing the

Section 287(g) program (Hoops, Summerill, Goodwin & Henning, 2009). It was through

this program that allowed the Immigration and Customs Enforcement agency to authorize

state and local law enforcement agencies the power to enforce federal immigration laws. By


taking part in this program it helped to provide the state and local law enforcement agencies

with federal funding and access to ICE’s collective information (Hoops, Summerill,

Goodwin & Henning, 2009). Section 287(g) and other systems like it have shown to be

very effective. Studies have shown that by 2011 there had been 186,000 immigrants

identified for deportation, and of these 186,000 immigrants 126,000 voluntarily deported

(Parrado, 2012). After analyzing all the information it appears obvious that the efforts to

include state and local law enforcement has helped to lower the number of illegal

immigrants making their way into the United States. The routes taken by the government to

ultimately stop this problem display more advantages than disadvantages.


References

Allen, L., & Sousa, J. (2011). Maricopa county sheriff Joe Arpaio's fight on illegal

immigration. Sheriff, 63(2), 24-26. Retrieved from

http://libproxy.library.unt.edu:2055/docview/862093984?accountid=7113

Booth, D. (2006). Federalism on ice: State and local enforcement of federal immigration

law. Harvard Journal Of Law & Public Policy, 29(3), 1063-1083.

Creek, H. M., & Yoder, S. (2012). With a little help from our feds: Understanding state

immigration enforcement policy adoption in american federalism. Policy Studies

Journal, 40(4), 674-697. doi:10.1111/j.1541-0072.2012.00469.x

Eastman, J. C. (2012). Papers, please: Does the constitution permit the states a role in

immigration enforcement?. Harvard Journal of Law & Public Policy, 35(3), 569-

592.

Hoops, R., Summerill, J., Goodwin, D., & Henning, P. (2009). Immigration and custom

enforcement's 287(g) program: Empowering sheriffs to address illegal immigration.

Sheriff, 61(4), 30-33. Retrieved from


Jimenez, M. (2000). The U.S-Mexico Border: A Strategy of Low-Intensity Conflict Social

Justice, 27(4), 32-36.

McKain, G., & McKain, D. (2007). Empowering local law enforcement to combat illegal

immigration. Sheriff, 59(2), 11-12. Retrieved from


Newton, L. (2012). Policy innovation or vertical integration? a view of immigration

federalism from the states. Law & Policy, 34(2), 113-137. doi:10.1111/j.1467-

9930.2011.00360.x


Parrado, E. A. (2012). Immigration enforcement policies, the economic recession, and the

size of local mexican immigrant populations. Annals of The American Academy of

Political & Social Science, 641(1), 16-37. doi:10.1177/0002716211435353

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