Only feds may enforce immigration law
By Ouisa D. Davis / Guest columnist
Article Launched: 09/21/2007 12:00:00 AM MDT
http://www.elpasotimes.com/opinion/ci_6953256


It is a reality -- local law-enforcement officers have no authority to enforce immigration law.
State and local police and sheriff's deputies' jurisdiction extends only to enforcement of state and municipal violations. Enforcement of immigration law is preempted by the federal government.

It is also a reality that the military, including the National Guard, has no criminal enforcement authority absent federal executive orders during time of war, civil strife or national emergency.

The obligation to make and enforce immigration laws lies squarely upon the shoulders of the federal government and is financed by federal appropriations. The Department of Homeland Security, the immigration enforcement agency, has two "police" departments -- Border Patrol, focusing on border enforcement, and Immigration & Customs Enforcement, whose jurisdiction extends throughout the country.

Local enforcement agencies and their controlling municipal governments are empowered to enforce laws dealing with the health, welfare and safety of the public, providing enforcement and crime victim services to all residents within their respective jurisdictions. An officer may only detain a person when there is probable cause to believe that a state criminal statute or municipal ordinance has been violated. They cannot fabricate probable cause to inquire into a person's immigration status.

You see, undocumented status, inside the borders, is not a crime. It is not illegal to live in the country


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without immigration status. It is a crime to enter the country without proper inspection and documentation, but apprehension must be made at the time of entry into the U.S.
Immigration law is a strange animal -- quasi-criminal, governed by federal civil administrative regulations and procedures. The Immigration & Nationality Act is a body of civil laws, the violation of which results primarily in the denial of an immigration benefit and/or removal (deportation) from the U.S.

Criminal penalties are attached to few provisions -- illegal entry, employment of unauthorized persons, etc.

The federal government faces a quandary; how to enforce immigration law with relatively few enforcement officers. Although they have funding to increase their ranks, recruitment levels remain stale. So, the federal government attempts to circumvent the U.S. Constitution by funding local and state law enforcement agencies to "assist" in the enforcement of immigration laws -- which violates civil rights.

Yes, it is a civil-rights violation for local law enforcement agencies to enforce immigration law. Once in the U.S., immigrants -- documented or otherwise -- enjoy many of the same constitutional protections provided to U.S. citizens. And taxpayers will be responsible for payment of any judgment recovered in favor of those wrongfully questioned or detained.

The answer is not to provide the "carrot" of funding to local agencies along with the "stick" of activity which violates civil rights. Local law enforcement officers cannot lawfully detain an individual on behalf of federal officers because they believe that person is undocumented. They have no authority to do so.

You cannot change this reality by passing a state law or municipal ordinance -- as has become quite clear in communities such as Farmers Branch, Texas and Riverside, N.J. Immigration is purely a federal issue, completely preempted by the federal government under the U.S. Constitution.

This type of activity will not solve the problem. On the other hand, reparative legislation to reinstate immigration benefits decimated by political agendas will go a long way to address it.

Ouisa D. Davis is an attorney at law in El Paso.