Gavin Howe
Immigration law has long been a federal concern, but the involvement of state and local police in enforcing these laws has been a point of contention. While critics argue that state involvement should be limited to express congressional indication, others contend that state and local officers may enforce the criminal provisions of immigration law if state law permits. This has led to varying approaches, with some states like Florida authorizing selected officers to enforce immigration laws after completing mandatory training, while others maintain a strict division between federal and state authority on immigration. The debate centers on concerns about civil rights abuses, racial profiling, and the potential overload of the immigration system if local police are tasked with enforcing immigration laws.
| Characteristics | Values |
|---|---|
| Can police officers enforce immigration law? | In the US, state and local police generally cannot arrest people solely for being in the country illegally. |
| Who enforces immigration law? | The Justice Department. |
| Can police officers enforce immigration law in specific circumstances? | Yes, federal law authorizes state and local enforcement of immigration laws in specific circumstances. |
| Can police officers enforce civil provisions of the INA? | It is unclear if state and local police officers can enforce civil provisions of the INA. |
| Can police officers enforce criminal provisions of the INA? | State and local officers may enforce the criminal provisions of the INA if state law permits them to do so. |
| Can police officers in Florida enforce immigration laws? | Yes, under Florida's renewed MOA with DHS, selected officers are authorized to enforce immigration laws and policies upon successful completion of mandatory training provided by DHS instructors. |
| Can police officers communicate directly with ICE agents? | Yes, police officers can communicate directly with ICE agents and report suspicious activity to DHS’s Homeland Security Investigations (HSI) through a system called the FALCON Tipline (FALCON-TL). |
| Can police officers share fingerprints with ICE? | Yes, through a program called Secure Communities (“S-Comm”), which is the information-sharing component of ICE’s detainer practice. |
| Can police officers detain people for ICE? | Yes, through Inter-Governmental Service Agreements (IGSAs), local agencies agree to provide bed space in their jails or prisons to detain people during their immigration removal proceedings. |
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What You'll Learn
Police cooperation with ICE
In recent years, ICE has quietly expanded its operations with local law enforcement agencies across the nation, moving beyond jails and prisons and into street-level enforcement. The Florida Highway Patrol was the first agency to enter into a street-level deportation enforcement agreement with ICE, and several other agencies in Florida and other states have followed suit. These agreements authorise local officers to interrogate and detain individuals suspected of immigration violations, even during routine traffic stops.
The collaboration between local law enforcement and ICE takes various forms, including supporting deportation raids and sharing information about non-citizens in jails. While some agencies actively cooperate with ICE, others choose not to due to concerns about the impact on community policing and trust. For example, the Beloit Police Department in Wisconsin stated that it would not enter into contracts with ICE or conduct immigration-related investigations, as it conflicts with their community policing philosophy. They will only cooperate with ICE in cases of suspected terrorism, gang activity, or violent felonies.
The Trump administration has sought to incentivise agencies to participate in immigration enforcement, threatening to withhold federal funds or revoke access to key federal databases for non-compliance. However, these actions have faced legal challenges from immigrant advocates and concerns have been raised about the potential for racial profiling and civil liberties violations.
Despite the expansion of ICE operations with local law enforcement, there are still limitations to the authority of state and local officers in enforcing immigration laws. Federal law authorises their involvement only in specific circumstances, and the distinction between criminal and non-criminal enforcement remains a critical factor in determining the scope of their involvement.
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State vs federal enforcement
Immigration law is a federal power, and some argue that uniformity in enforcing these rules is critical to the exercise of sovereign authority. However, the federal government does not have the power to compel states to enforce federal immigration law. While states and localities have traditionally only been permitted to enforce certain criminal provisions that fall under their jurisdictions, the enforcement of civil provisions, such as the apprehension and removal of deportable aliens, has been viewed as a federal responsibility.
The Immigration and Nationality Act (INA) currently provides limited avenues for state enforcement of both civil and criminal provisions. Several jurisdictions have signed agreements with the federal government to allow their state and local law enforcement agencies to perform new, limited duties relating to immigration law enforcement. For example, under Florida's renewed agreement with the Department of Homeland Security (DHS), selected officers are authorized to enforce immigration laws and policies upon successful completion of mandatory training provided by DHS instructors.
However, the enforcement of immigration laws by state and local officials has sparked debates and concerns over proper training, finite resources at the local level, possible civil rights violations, and the impact on communities. Critics argue that a "patchwork" of different immigration laws will not fix the country's immigration system and may have unintended consequences. Civil liberties groups and immigrant rights groups often challenge state laws affecting immigration, particularly those requiring proof of citizenship or legal residence, as they can lead to racial profiling.
While states have the primary responsibility for defining and prosecuting crimes, the involvement of state and local law enforcement in immigration law enforcement remains a complex and evolving issue, with ongoing discussions about the appropriate balance between federal and state authority.
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Civil vs criminal provisions
Immigration law is a federal concern, and federal law dictates that state and local enforcement of immigration laws are only permitted in specific circumstances. For example, state and local officers may enforce the criminal provisions of the INA (Immigration and Nationality Act) if state law permits them to do so. However, they are generally precluded from directly enforcing the INA's civil provisions.
The distinction between civil and criminal provisions is critical. A civil violation, such as being physically present in the United States without authorization, is not a criminal offense. In such cases, the Department of Homeland Security (DHS) can place a person in removal or deportation proceedings and may require the payment of a fine. On the other hand, criminal provisions under Title 8 of the U.S. Code include "Illegal Entry" (misdemeanor), which is when individuals unlawfully enter the United States without proper inspection, avoid examination, or make false statements. Criminal violations can result in incarceration in federal prison, impacting future migration attempts and asylum-seeking.
Despite this distinction, critics argue that the Santana-Garcia court failed to differentiate between civil and criminal violations of the INA. This case involved a civil violation (illegal presence) but relied on authorities and arrests related to criminal matters. This blurs the line between civil and criminal enforcement, and the extent to which state and local police officers can enforce civil provisions remains uncertain.
To address this complexity, some states, like Florida, have entered into agreements with DHS. Under these agreements, selected officers undergo mandatory training to enforce immigration laws effectively. This includes understanding the scope of their authority, cross-cultural issues, and the proper use of force. By participating in such programs, officers gain the knowledge and skills necessary to navigate the intricacies of civil versus criminal provisions in immigration law enforcement.
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Local police involvement
The involvement of local police in enforcing immigration laws is a contentious issue. While some argue that local police should not be involved in immigration enforcement, which is seen as a federal concern, others contend that their involvement is necessary to support federal efforts and prevent illegal immigration.
Local law enforcement officers have been criticised for their cooperation with federal immigration authorities, such as Immigration and Customs Enforcement (ICE) and the Department of Homeland Security (DHS). This cooperation includes information sharing through databases, facial recognition technologies, and informal communication channels like the FALCON Tipline. For example, local police may contact ICE if they suspect a driver stopped for a traffic violation is not authorised to be in the country. Such practices have been criticised for leading to racial profiling and civil rights abuses, with a disproportionate impact on communities of colour.
In certain states, like Florida, selected local officers are authorised to enforce immigration laws under specific programmes or agreements with the Department of Homeland Security (DHS). These officers undergo mandatory training provided by DHS instructors and are required to meet certain criteria, including US citizenship, a minimum of three years as a sworn officer, and an Associate Degree. However, critics argue that involving local police in immigration enforcement can divert resources from other pressing crime-fighting duties and harm relationships with immigrant communities.
To address these concerns, some have suggested limiting state involvement in immigration law enforcement to express congressional indication for participation. Additionally, it has been proposed that state and local officials should end their cooperation with ICE, refraining from transferring immigrants deemed eligible for release from local custody to immigration detention. Instead, immigrants who have completed their sentences or been granted release by a judge should be allowed to return to their communities.
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Detainers and civil rights
Detainers, also known as "immigration holds", are a key tool used by US Immigration and Customs Enforcement (ICE) to apprehend individuals who come into contact with local and state law enforcement agencies and put them into the federal deportation system. An ICE detainer is a written request that a local jail or other law enforcement agency detain an individual for an additional 48 hours after their release date, to provide ICE agents with extra time to decide whether to take the individual into federal custody for removal purposes.
ICE lodges immigration detainers after officers or agents establish probable cause to believe that an alien is removable—typically after a court has convicted them of one or more crimes. When jails, prisons, or other confinement facilities agree to honour immigration detainers, ICE officers can take custody of removable aliens in a safe, controlled environment instead of at-large in the community. At-large arrests are unpredictable and can be dangerous to the public, aliens, and federal law enforcement officers.
ICE's use of detainers to imprison people without due process and, in many cases, without any charges pending or probable cause of any violation has raised serious constitutional concerns. Local law enforcement agencies run the risk of litigation and damages liability when they honour ICE detainer requests. For example, a deported immigrant received a $145,000 settlement with the City of New York after being held longer than 48 hours on two separate occasions.
Compliance with ICE detainer requests is voluntary, and several communities have taken steps to define or limit the involvement of local authorities in the implementation of immigration law. Hundreds of local jurisdictions have passed policies limiting their cooperation with ICE and their responses to detainers.
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Frequently asked questions
Immigration law is a federal concern, and state involvement should be limited to express congressional indication. State and local police generally cannot arrest people solely for being in the country illegally. However, under specific programs like Florida's MOA with DHS, selected officers can enforce immigration laws after completing mandatory training.
Critics argue that immigrant control policies leading to detentions and deportations can destabilize communities, breed fear and mistrust of law enforcement, and harm relations with immigrants. There is also a risk of racial profiling and civil rights abuses, and it could divert police resources from other pressing duties.
Yes, local law enforcement officers communicate and share information with ICE agents. For example, police may contact ICE if they suspect a driver stopped for a traffic violation is not authorized to be in the US. They can also report suspicious activity to DHS's Homeland Security Investigations (HSI) through the FALCON Tipline.
IGSAs are contracts between the federal government and state or local governments, where local agencies agree to provide bed space in jails or prisons to detain people during immigration removal proceedings. IGSAs increase ICE's detention capacity and can create financial incentives for local police to execute detainers, potentially leading to racial profiling.
Yes, ICE detainers are not judicial warrants, and there is no legal requirement for local agencies to respond to them. Courts have found that ICE and local law enforcement agencies violate the Fourth Amendment when they enforce detainers without adequate "probable cause."
