Police-immigration enforcement update
From National immigration Forum

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1) Congressional Update

On Lou Dobbs Moneyline (CNN) earlier this week, Dobbs said that the House Judiciary Committee plans to mark up the CLEAR Act before August. This was also reported in an Arizona paper a couple weeks ago and was attributed to a majority staffer. The rumor of a CLEAR Act mark-up in the full Judiciary Committee of the House has spread to public channels (i.e. the press), and we need to be prepared. However, there are no official communications about a mark-up, which means we still have time to show the chair that this bill is too controversial and has too much reasoned opposition, and therefore should not be brought up.

It is critical that constituents whose representatives sit on the House Judiciary Committee weigh in soon. It is also important to send letters to Chairman Sensenbrenner (R-WI) (http://www.house.gov/sensenbrenner/) asking him not to bring the bill up for a vote. Please use the various resources available below and on our web site (particularly quotes from police, state/local government, and conservative allies) in making the case to Chairman Sensenbrenner.

To see if your representative is on the House Judiciary Committee, visit: http://www.house.gov/judiciary/members.htm.

In particular, there are at least five members of the committee about whom we do not know their positions on this bill. They are Hyde (R-6th/Addison, IL), Coble (R-6th/Greensboro/High Point/Salisbury, NC), Boucher (D-9th/Abingdon/Pulaski, VA), Weiner (D-9th/NY), and Schiff (D-29th/Pasadena, CA). If you are a constituent of these five members, your voice is needed quickly to try to influence them to vote against the bill, should it come up.

On the Senate side, we have not heard about plans for a future mark-up of the bill since last week's Immigration Subcommittee hearing. However, during the hearing some senators said that the Senate version of the CLEAR Act is milder and is not opposed by the vast coalition that opposes the House bill. Obviously this is not true, because the Senate version does not mitigate any of our concerns and in fact places new burdens on state governments with the driver's license standards. We encourage you to include the "Homeland Security Enhancement Act (S. 1906)" in your communications about the CLEAR Act/police enforcement of immigration laws, so that it is clear we are opposed to both pieces of legislation.

2) Conservatives Condemn CLEAR

Two conservative activists have recently written articles denouncing the CLEAR Act (and by extension, the Homeland Security Enhancement Act). See the "Fax on Immigration" below for quotes and the complete articles from James Jay Carafano, in a paper published by The Heritage Foundation, and Republican and former U.S. Representative from Georgia Bob Barr, in an op-ed distributed by UPI.

The Fax on Immigration (delivered via e-mail) April 30, 2004

Contact Lynn Tramonte 202.383.5993
Vol. 5, No. 4
Conservatives and Cops Agree: The CLEAR Act and Its Senate Companion Are Bad Public Policy

Opposition to the Clear Law Enforcement for Criminal Alien Removal (CLEAR) Act and its Senate companion, the Homeland Security Enhancement Act (HSEA), continues to mount. A wide range of opponents from local police and governments, to crime victim advocates, to conservative pundits, continue to express vociferous opposition to legislation that would compel state and local police to become federal immigration agents.

These bills coerce state and local police into enforcing federal immigration laws by threatening current federal reimbursements if they don't take on these additional duties. The Senate bill goes even further, by imposing new driver's license requirements on state departments of motor vehicles, once again tying federal funding states currently receive to compliance with these new requirements.

Countless police departments and local governments around the nation have gone to great lengths to encourage immigrants to approach local law enforcement with information on crimes or suspicious activity. To police, the CLEAR Act and HSEA threaten the relationships they have built with these communities, and will hurt their ability to investigate and solve crimes. That is why so many state and local police officers have asked the White House and Congress not to enact such policies.
Recently, two respected conservatives published articles outlining problems with this legislation.

Writes James Jay Carafano, in a paper published by The Heritage Foundation (April 21, 2004):
"The act has the potential to shift police priorities so that officers spend their time tracking down immigration violators instead of solving and preventing crimes within their communities. It could also undermine immigrant communities' trust and confidence in law enforcement. Fear of deportation may make immigrants and aliens less likely to report crimes and suspicious activity. Furthermore, foreign nationals may refuse to assist in security investigations because of concerns about the immigration consequences. . . .

"The proposed legislation is unnecessary. Police already have the authority to arrest aliens who commit crimes, and state and local authorities can help fight terrorism using already established statutory tools."

Writes former Georgia Representative Bob Barr, in an op-ed distributed by UPI (Outside View: Clear as mud, United Press International, April 30, 2004):
"[I]n the mid-1990s, Congress authorized the attorney general to enter into cooperative agreements with state and local law enforcement officers to allow the latter to serve as immigration officers. Respectful of the principles of federalism and separation of powers between federal and state interests, however, such power was and is strictly voluntary and limited. These precedents, and others, reflect the proper role of the federal government-to enforce federal laws-and the proper responsibility of state and local governments-not to enforce federal laws. The CLEAR Act would throw this important principle out the window in the name of 'fighting the war against illegal immigration.' While this war may be worthwhile, the means of achieving it proposed in the CLEAR Act is not. . . .

"Even though, on the surface, and in the words of its sponsors, participation by state and local law enforcement under the CLEAR Act would be 'voluntary,' this is more a semantic distinction than a factual reality. . . .

"As a practical matter, forcing local law enforcement to pick up the slack for the federal government's abject failure to use its powers and resources to enforce federal immigration laws, will simply afford the feds another excuse for not doing what they are supposed to have been doing all along. The United States has never before stood for a national police force. Now is not the time to take the first tangible steps in that direction; no matter how appealing the reason."

See No Need for the CLEAR Act: Building Capacity for Immigration Counterterrorism Investigations, by James Jay Carafano, Ph.D., published by The Heritage Foundation (4/21/04) at http://www.heritage.org/Research/HomelandDefense/loader.cfm?url=/commonspot/security/getfile.cfm&PageID=62225

The entire text of the Barr op-ed follows.
For quotes from police departments and other officials opposed to the legislation, bill summaries, and background materials visit: http://www.immigrationforum.org/currentissues/clear.htm

Outside View: Clear as mud
UNITED PRESS INTERNATIONAL
By Bob Barr
WASHINGTON, April 30

If I had a buck for every idea that "sounded good," I'd be rich enough to have my own narcissistic reality show like a certain funky-haired business tycoon we all know in New York.

Every year, the congressional hopper into which new bills are dropped, is chock full of legislative proposals that "sounded good at the time," but in fact were really bad ideas. Remember "Campaign Finance Reform," one of Arizona GOP Sen. John McCain's "visions?" What's it "reformed?" Absolutely nothing, except perhaps gutting the First Amendment. Who can forget the so-called "assault weapons ban" of 1994? How much safer have its Second Amendment-infringing provisions kept us safer? Not one whit. But, these and other "reforms" sure sounded great to their sponsors at the time.

No matter how many of these "feel good" bills are introduced in any given year, the number always increases during a national election cycle. This cycle is no exception. We've got the "Federal Marriage Amendment," the "Continuity of Government Amendment," the "Victims Rights Amendment," and now the "CLEAR Act." Not familiar with it? Don't feel ignorant, few people are; yet it is working its way through the Congress of the United States.

Short for the "Clear Law Enforcement for Criminal Alien Removal Act," it was introduced last year by my former congressional colleague, Rep. Charlie Norwood, R-Ga., and, to date, has the support of a little more than one-fourth of House members. It sounds real good on the surface; so good it may actually pass the Congress.

Scratch the surface, however, and its much-touted benefits are CLEAR as mud.

The problem CLEAR purports to address is a real problem -- the huge and growing number of illegal aliens (yes, "illegal aliens," not "undocumented workers") running around the United States, and what seems to be the utter inability of our federal agencies tasked with enforcing -- and paid to enforce -- our laws against illegal immigration.

The solution proposed by CLEAR has surface appeal -- enlist the hundreds of thousands of local and state law enforcement officers to help our federal immigration officials. Before you shout, "Go for it!" however, let's consider what's being proposed here and where it will likely lead us.

Conservatives especially, who profess support for a reduced role for the federal government and a respect for principles of federalism, ought to consider where the precedent that would be established by the CLEAR Act would lead us. While there are long-standing precedents whereby federal and state or local law enforcement work together to solve problems of criminal activity in our communities, the CLEAR Act would move us to a new and different level.

Consider cooperation in enforcing anti-drug laws. During the years I served as the U.S. Attorney for North Georgia (1986 - 1990), for example, we witnessed consistent and major victories against major drug traffickers and money launderers, through the organized and cooperative efforts of federal, state and local law enforcement agencies.

Importantly, however, this effort was voluntary in every respect. Local law enforcement agents could -- and still can -- be sworn in as special federal agents in order to participate in federal drug cases; but such authority is strictly limited in scope and duration. There were and are no penalties if a local or state agency elects not to participate.

Similarly, regarding enforcement of federal immigration laws, in the mid-1990s, Congress authorized the attorney general to enter into cooperative agreements with state and local law enforcement to allow the latter to serve as immigration officers. Respectful of the principles of federalism and separation of powers between federal and state interests, however, such power was and is strictly voluntary and limited.

These precedents, and others, reflect the proper role of the federal government -- to enforce federal laws -- and the proper responsibility of state and local governments -- not to enforce federal laws. The CLEAR Act would throw this important principle out the window in the name of "fighting the war against illegal immigration." While this war may be worthwhile, the means of achieving it proposed in the CLEAR Act is not.

Even though, on the surface, and in the words of its sponsors, participation by state and local law enforcement under the CLEAR Act would be "voluntary," this is more a semantic distinction than a factual reality.

Consider what the act does, as opposed to what its advocates say:

-- Unless a state or local agency agrees to pay its officers to spend their time enforcing federal immigration laws, it will lose vital federal funds (which, it is worth recalling, come originally from those communities).

-- State and local agencies would be required to provide information to the federal government regarding immigration matters.

-- State and local law enforcement would receive immunity for any acts carried out pursuant to their enforcement of immigration laws.

-- And, perhaps most chillingly, the authorities granted under the act to local law enforcement are not limited but would continue permanently.

As a practical matter, forcing local law enforcement to pick up the slack for the federal government's abject failure to use its powers and resources to enforce federal immigration laws, will simply afford the feds another excuse for not doing what they are supposed to have been doing all along.

The United States has never before stood for a national police force. Now is not the time to take the first tangible steps in that direction; no matter how appealing the reason.

(Bob Barr, a former U.S. attorney in Georgia, was a member of Congress from 1995 to 2003.)

(United Press International's "Outside View" commentaries are written by outside contributors who specialize in a variety of issues. The views expressed do not necessarily reflect those of United Press International. In the interests of creating an open forum, original submissions are invited)

3) CO bill defeated

Bill Defeated by Colorado Advocates
On April 23rd, Colorado advocates were successful in defeating legislation on the state Senate floor that would authorize state and local agencies to enter into MOUs with DHS to enforce immigration laws. I understand that a large coalition of groups were responsible for this victory, including Rights for All People - Derechos Para Todos, Justice Information Center, Colorado Chapter of AILA, Colorado ACLU, Colorado Coalition Against Domestic Violence, and American Friends Service Committee. I apologize to those that I left out. Congratulations to all!

4) MOU signed in VA

Virginia Police To Take on New Immigration Duties
A recent Washington Post story indicates that the Virginia State Police have signed an MOU with DHS to enforce immigration laws. Coupled with the new law in that state allowing police to make warrantless arrests of certain immigrants, this is a dramatic change in the legal authority of Virginia police to make immigration status inquiries. Advocates in VA are organizing themselves; if you want to get tapped into those efforts, contact Tahirih Justice Center or any one of many other Virginia-based immigrant advocacy groups. See the Washington Post story below for more information.

Va. Seeks New Role Against Illegals
Police to Enforce Immigration Law
WASHINGTON POST
Saturday, April 24, 2004
By Mary Beth Sheridan
Washington Post Staff Writer

The federal government will soon grant a group of Virginia State Police officers the power to enforce immigration law, making the state the third in the country to adopt the practice since the attacks of Sept. 11, 2001, local officials said.

The tentative agreement between the U.S. Department of Homeland Security and the Virginia State Police, permissible under a 1996 law, is part of a movement across the country to grant local law enforcement officials more authority to detain illegal immigrants.

Proponents say the expanded powers will give police more tools to combat terrorism, gang violence and other crimes. But immigrant advocates counter that the practice could lead to ethnic profiling. And some police officials, including D.C. Police Chief Charles H. Ramsey, are openly opposed to the idea and say it could discourage immigrants from reporting crimes.

The debate illustrates the complexity of improving security in a country that is home to an estimated 8 million or more illegal immigrants. Three of the 19 hijackers in the Sept. 11 attacks were part of that underground population, but so are millions of workers and families in communities across America. Homeland Security, which enforces immigration laws, acknowledges that it does not have enough agents to track down all those undocumented immigrants.

Virginia officials decided to seek extra immigration powers for some state police officers after participating in local and federal task forces on terrorism and gang violence.

"We had this recurring discussion about our inability at some times to deal with illegal immigrants when we were involved in other types of investigations," said Col. Steven Flaherty, superintendent of Virginia's state police. While the police had worked with federal immigration authorities over the years, he said, "their resources are limited as well. So you don't always have them available to you."

Until recently, local and state police could not make arrests on civil immigration violations, although they could detain immigrants for criminal offenses and sometimes helped federal immigration authorities with transportation or security.

But a provision of a 1996 law allows federal authorities to "deputize" local or state police to enforce immigration law. Flaherty said he and other officials discovered that two other states -- Florida and Alabama -- had sent dozens of state police officers to be trained in immigration enforcement under the federal program since the Sept. 11 attacks. Virginia then contacted Homeland Security to do the same.

Michael J. Garcia, who oversees immigration enforcement for Homeland Security, said federal authorities were not urging state police to receive the training but were happy to provide it if asked. So far, he said, the program has worked well.

"If you look at our resources, we are limited. It's been, I think, helpful to have additional people out there who are skilled in it and who can do the enforcement" of immigration law, he said. "Obviously, we watch to see that's being done appropriately."

Under the agreement being negotiated, about 50 Virginia state police officers would be able to enforce federal immigration law in addition to their other responsibilities, Flaherty said. The officers would be stationed throughout the state, with one attached to each of the 24 drug task forces in Virginia, he said. They would be under the supervision of federal authorities when carrying out immigration enforcement.

Flaherty said the officers, who may begin training as early as next month, would use their immigration authority only in special cases. "We're not going to plan any sweeps of illegal immigrants and whatnot. We just want this tool to use in other cases," he said.
In addition to participating in the Homeland Security program, Virginia recently passed a law that would permit state and local police to arrest immigrants who were back in the country after having been convicted of felonies and deported.

The sponsor of the House measure, Del. David B. Albo (R-Fairfax), said that fighting terrorism was "the original motivation" for introducing the legislation but that it might ultimately be more useful in combating gang violence.
Both the new law and the Homeland Security program for state police will likely result in only a small number of arrests. But immigrant advocates are concerned that the measures could lead to officers mistakenly detaining people who are here legally.

"Quite frankly, immigration law is pretty complicated," said Judy Golub of the American Immigration Lawyers Association, noting that there are myriad visas and permits allowing people to stay in the country.

She pointed to a case that occurred in 1997 when immigration agents and local police arrested more than 400 people in Chandler, Ariz., in an operation targeting illegal immigrants. Some of those detained turned out to be legal residents. The Arizona attorney general's office later concluded that the sweep violated residents' civil rights, and the city settled two lawsuits for more than $500,000.

Jorge Figueredo, executive director of the Hispanic Committee of Virginia, a community-service organization based in Falls Church, said he was especially worried about the state law that allows police to arrest immigrant felons who have reentered the country after deportation.

"The most important question is, how are they going to do it?" he asked. "How are they going to know" who fits those qualifications?

Albo agreed that the law would be difficult to enforce, noting that police cannot directly access the relevant immigration information because it is spread among various federal databases. But he said he hoped that police officers could eventually call up such data on the computers in their patrol cars, allowing them to enforce immigration law in the course of their work.

The Virginia law follows a legal tradition in which states could authorize their police to enforce criminal -- rather than civil -- immigration violations, said Bo Cooper, former general counsel of the immigration service who now works at Paul, Hastings, Janofsky & Walker. Such violations include reentering the country after being deported.

The movement to expand police authority to combat illegal immigration goes beyond a handful of states.

In Congress, Rep. Charles Whitlow Norwood Jr. (R-Ga.) has introduced the Clear Act, which would give state and local law enforcement authorities the power to routinely enforce federal immigration laws. The bill has 120 co-sponsors; a similar measure has been introduced in the Senate.

Police and local officials nationwide have been sharply divided over the idea.

Ramsey called a news conference in July to affirm that District police would continue their longtime policy of not asking people about their immigration status unless they were suspected of crimes.

And Montgomery County Executive Douglas M. Duncan (D) wrote to Sen. Barbara A. Mikulski (D-Md.) last fall to urge her to oppose the Clear Act.

"A troubling consequence of this legislation is that it could cause members of certain groups not to report crimes or to come forward with information about crimes for fear of being deported," he wrote.

Some authorities have also said that their police departments do not have the resources to take on immigration responsibilities.

"Nobody expects federal immigration officers to make drunken-driving stops, so they shouldn't expect local police to make federal immigration stops," said Duncan's spokesman, David Weaver.

5) Dearborn, MI Mayor Opposes CLEAR Act
(quoting American-Arab Anti-Discrimination Committee, Michigan) ADC Michigan Welcomes Mayor's Guido Opinion on CLEAR Act

"On Thursday, April 22, 2004 the City of Dearborn joined many other cities across the nation in publicly opposing the CLEAR Act, which requires local police officers to enforce immigration laws and regulations. "The CLEAR Act is a bad piece of legislation on every front," said Mayor Michael A. Guido, who is also the chair of the Homeland Security Working Group for the National League of Cities. "It burdens our already hard working police with tedious reporting requirements, and it does not prepare our officers to deal with the complexities of immigration law. Most importantly, it threatens the positive relationships that the Dearborn Police has fostered with our residents. It puts our officers in a difficult position of suspecting people they encounter in all sorts of harmless situations of being illegal immigrants - and to arrest them."

"ADC Michigan commends Mayor Guido on the initiative that Dearborn has taken in joining many other municipalities in the rejection of this anticipated legislation," stated ADC Regional Director Imad Hamad. In a letter of appreciation to the Mayor, ADC also pointed out that it hopes that the City of Dearborn will join the over 250 communities in the U.S that have already requested that Congress review certain provisions of the US Patriot Act, specifically Section 215. Michigan cities that have passed resolutions in this regard include Detroit, Kalamazoo, Ann Arbor and Traverse City. For more information on the CLEAR Act, visit http://capwiz.com/adc/issues/alert/?alertid=3353601&type=CO."

6) Police Executive Research Forum Issues New Report

PERF, a member of the Community Policing Consortium, recently issued a new white paper entitled "Protecting Your Community From Terrorism: Strategies for Local Law Enforcement; Volume 2: Working with Diverse Communities" Many of the issues it covers are relevant to our anti-CLEAR, pro-public safety work.

To read the 80 page report (require PDF reader), please go to the following link