April 3, 2002
Police may gain power to enforce immigration Plan has local officers, rights groups on edge
COPLEY NEWS SERVICE and
WASHINGTON – In a move certain to spark controversy, the
Justice Department is poised to reverse a long-standing legal
tradition and declare that state and local police have the power
to enforce the nation's immigration laws.
The Justice Department Office of Legal Counsel has decided that
states and localities, as "sovereign entities," have the "inherent
authority" to enforce immigration laws, according to Justice
But the still-unreleased Justice Department opinion flies in the
face of a long legal tradition that holds that immigration
enforcement is a federal matter. It is likely to draw opposition
from Latino political groups and mixed reviews from law
enforcement officials and community groups nationwide.
In San Diego, local law enforcement authorities yesterday raised
concerns about costs, and Latino activists expressed alarm over
possible racial profiling. Both warned that police could be
distracted from their primary duties.
A 1996 immigration law authorized the attorney general to
deputize state and local police during an immigration
emergency and also allowed the attorney general to enter into
agreements with states and localities permitting them to enforce immigration laws on a routine basis.
Salt Lake City in 1998 aborted an effort to fashion such an
agreement after fierce public opposition from Latino activists.
Florida is attempting to negotiate such an agreement with the
The lack of a consummated agreement in six years since the law
was enacted has frustrated proponents of an expanded
enforcement role for state and local police. If police have
inherent authority, as the Justice opinion concludes,
congressional roadblocks and restrictions could be removed.
Attorney General John Ashcroft had planned to unveil the
policy today, but the announcement was delayed late yesterday,
according to sources. It was unclear what caused the delay or
how long it will be.
Timothy Edgar, the legislative council for the American Civil
Liberties Union, said yesterday such a policy shift would be "a
disaster" and could undermine compromises in the 1996 law
requiring police to be trained before enforcing immigration
In its opinion, the Justice Department Office of Legal Counsel
cites a 1984 10th Circuit Court of Appeals ruling – United States
vs. Salinas-Calderon – that a state trooper had the "general
investigative authority" to explore possible immigration
Justice officials refused to comment yesterday.
"As a general policy, OLC (Office of Legal Counsel) decisions are
not discussed publicly," said Justice spokesman Dan Nelson.
But the development had San Diego law enforcement officials on
"Our policy has been and continues to be that we are not federal
immigration officers, and our department guidelines for dealing
with undocumented persons are very strict and are unlikely to
change," said Dave Cohen, a spokesman for the San Diego Police Department. "Officers are not allowed to stop people just
because they suspect they are undocumented. We stop people
when officers have a reasonable suspicion that they have
engaged in illegal activity unrelated to their immigrant status."
Cohen added that if such a proposal were made, "I'm sure the
(Police) Department would consider it. ... However, if we devote
more time to immigration matters, it would impact the already
significant number of calls for service that we get now. We would have to reserve judgment until we hear a proposal."
Ron Van Raaphorst, a spokesman for the Sheriff's Department,
said: "We would have to look at just what the proposal is before
we respond. We would want to know if the federal government is going to be providing more funding to hire more deputy sheriffs.
"Obviously the issue of cost is a concern for us," Van Raaphorst
said. "Already, prior to this, we have a tremendous
responsibility within the unincorporated area of San Diego
County, to the courts and jails, and to nine contract cities as
well. Would we be expected to put undocumented persons into a county jail? We would certainly want to see the proposal before making any definitive comments on how it might affect us."
Spokesmen for two Latino rights groups expressed alarm that
such a proposal was being seriously considered.
"We are very concerned about racial profiling occurring by local
law enforcement," said Christian Ramirez, a spokesman with the
American Friends Service Committee, an immigrants' rights
group in San Diego. "We also feel it could put public safety in
jeopardy, because members of immigrant communities, and
those of Latino descent, might stop cooperating with law
enforcement out of fear for friends and family, and out of fear
that they themselves might be detained by local police based on
Ben Prado, a spokesman with the Raza Rights Coalition based in
the San Diego community of Logan Heights, asked, "What criteria would police use for arresting people? We fear it would increase the use of racial profiling, with arrests being made based on a person's appearance."
In Washington, some immigration experts doubted whether a
policy shift by the Justice Department would have much impact
"In some ways it's a fairly meaningless exercise because the
chances the INS will have the ability, the resources, the will to
actually pick people up are pretty remote," said Susan Martin of
the Georgetown University Center for International Migration
Studies. "Some police will look at this and say, 'Forget it.' ...
Others might be gung-ho and say, 'We're going to do this to fight terrorism.' "
In the past, state and local authorities have made arrests based
on racial profiling and even, in some cases, reflected ignorance
of immigration laws, warned University of Virginia law professor
One case frequently cited is a July 1997 immigration sweep by
the Chandler, Ariz., Police Department that resulted in a
scathing 34-page report by the state's attorney general. The
report found that "Operation Restoration" and its 432 arrests
were replete with civil rights abuses against U.S. citizens of
"It's clearly a good idea and wise policy to provide careful
training for the local authorities if you do this," said Martin, who
served as general counsel at the Immigration and Naturalization
Service from 1995 to 1998.