Calling the Cops
arlos Rodriguez already had served two jail terms when he pleaded guilty to attempted assault after New York City police accused him of abducting a woman and locking her in a basement. He and an accomplice, Armando Juvenal, were later arrested for threatening another woman with a steak knife. Again, both men pleaded guilty.
In the two years since he came to America illegally from Mexico, Rodriguez was arrested four times by New York City police. Juvenal, an Ecuadorian, also came to this country illegally and spent seven months in a New York City jail. Their friend Jose Hernandez was arrested six times on charges such as grand larceny and possession of stolen property the year after he illegally sneaked into the country from Mexico.
In December 2002, the three men were living in makeshift shacks in a barren park near Shea Stadium and the Long Island Rail Road station. On December 19, 2002, they committed a horrific crime. The victim wrote that they attacked her like "a pack of wild wolves in search of prey," in a letter to the judge overseeing the men's trials. "They savagely dragged me like an animal, like a piece of furniture, and took me to a secluded area of the park, a hut, a foul place that smelled so bad that not even animals should be made to be there, where I was brutally and repeatedly raped." The woman's name has not been released because she is a victim of sexual assault. The three men pleaded guilty to rape last year.
Rep. John Hostettler, R-Ind., was shocked that these three men still were in the United States to carry out the attack. The Immigration and Naturalization Service had always made a point of focusing its efforts on finding and deporting illegal aliens who commit violent crimes. But New York City never turned the men over to the INS for deportation, even after two of them served jail sentences. Last year, Hostettler, who is chairman of the House Judiciary Immigration, Border Security, and Claims Subcommittee, held a hearing to examine a New York City policy that discourages police officers from contacting federal immigration agents, who are now part of the Immigration and Customs Enforcement bureau of the Homeland Security Department since the INS was abolished last year.
New York is one of many big cities with so-called sanctuary policies. These policies are common where immigrant communities are large and form powerful voting blocks. In those cities, police worry that if they are seen enforcing immigration laws, they will garner little cooperation among immigrants when investigating other, more serious crimes. Federal law encourages-but does not require-local and state police to report immigration violators to federal agents, and police are not obliged to inquire about the immigration status of suspected criminals.
Law-and-order conservatives in Congress long have opposed sanctuary policies, but their efforts to put pressure on cities to cooperate have been turned back over the years by immigrant rights advocates and business lobbyists, who tend to favor more liberal immigration policies. But, since Sept. 11, more voices have joined the chorus favoring state and local cooperation with federal immigration officials.
The Justice Department in 2002 reversed years of policy with a legal argument justifying local and state police enforcement of both criminal and civil immigration violations. The Justice opinion said that police had the authority to make arrests for any immigration violation listed in the National Crime Information Center, the database police use to check whether suspects have arrest warrants.
Promptly, Justice began entering into the NCIC the names of aliens who absconded after facing a final order of deportation. "It is our hope and belief that this narrow authority . . . will not undermine in any way the relationship between state and local police and immigrant communities," White House counsel Alberto Gonzalez wrote in a letter explaining the decision.
The new policy was a major change. Previously, the department held that police did not have authority to enforce civil violations of immigration law-such as overstaying a visa-since that was the exclusive province of the INS. Likewise, the names of immigration violators previously had been kept not in NCIC, but in a separate INS database that police could not easily access.
Members of Congress, too, have begun pressing the sanctuary issue. Late last year, Rep. Charlie Norwood, R-Ga., and Sens. Zell Miller, D-Ga., and Jeff Sessions, R-Ala., introduced legislation to penalize states that don't cooperate with federal immigration agents and to provide financial enticements for states that do. The House bill is called the Clear Law Enforcement and Alien Removal (CLEAR) Act, while the Senate bill is the Homeland Security Enhancement Act. Both likely will be considered this year.
And for the first time, two states-Florida and Alabama-have volunteered the services of state troopers to boost immigration enforcement. In Florida, 35 state troopers underwent training in immigration law and were deputized as immigration agents in 2002. The program recently was extended for another year. In Alabama, 21 state troopers underwent similar training and were authorized to enforce immigration laws beginning last October.
NO MORE MOHAMMED ATTAS
In his office in Tallahassee, Fla., Tim Moore was hundreds of miles from the sites where the hijacked jet liners crashed on Sept. 11. But as commissioner of the Florida Department of Law Enforcement, Moore soon learned that most of the hijackers had lived in his state for at least part of the time during which they planned the attacks.
One hijacker even had run-ins with local police. Five months before, driving through Tamarac, Fla., Mohammed Atta, who since has been pegged by government officials as the Sept. 11 ringleader, was pulled over by Broward County sheriff's deputies who were randomly checking drivers' licenses and registrations. Atta was not carrying a license and was ticketed. About a month later, on May 28, he skipped a court date and a warrant was issued for his arrest. On July 5, a Delray Beach, Fla., police officer stopped Atta for speeding but gave him only a warning. The arrest warrant apparently had not been entered into the state's database.
Neither of the officers who stopped Atta checked his immigration status, a cumbersome process that would have involved calling the Law Enforcement Support Center in Burlington, Vt., which then was part of the INS. If they had called and waited for a response, they might also have learned that Atta had overstayed a visa.
After Sept. 11, Moore wanted to do something to help prevent illegal aliens in Florida from plotting terrorist attacks. He contacted James Goldman, then the INS special-agent-in-charge responsible for policing immigration violators in the state. Moore told Goldman that police should be able to run immigration checks on anyone they pulled over. Goldman wanted to go further by assigning an INS special agent to each of the seven domestic security task forces Moore had created. In addition, Goldman said, "You and I will go out and identify 35 top cops and split them up geographically. We'll send them to the INS academy and make them INS agents."
Then-INS Commissioner James Ziglar signed off on the agreement, and Florida state troopers became the first in the country to directly assist in investigations of employee citizenship status at nuclear power plants, airports, shipping terminals and other elements of critical infrastructure. More than 150 aliens were removed from their jobs. "It was a tremendous force multiplier," says Goldman, who had struggled to police the state's interior with only a handful of federal agents. "I've always said, during 25 years at INS, that state and local law enforcement officers should be able to enforce the full spectrum of immigration law."
Moore and Goldman's agreement was the first of its kind, but it wasn't the last. Alabama reached a similar agreement with INS' successor, the Immigration and Customs Enforcement bureau of Homeland Security, in September 2003. "Illegal immigration isn't just a federal problem," explains ICE spokesman Garrison Courtney. The agency is talking with several other states and localities about expanding the program. ICE has taken some steps to publicize the availability of immigration training for local and state police, but states have to ask for the training.
BRINGING IN REINFORCEMENTS
For years, immigration enforcement in the nation's interior has been badly underfunded and understaffed. Today, only about 2,000 federal agents enforce immigration law in the interior, while 9,000 agents guard the borders. There are an estimated 8 million to 9 million illegal immigrants in the country, according to the Census Bureau. About 80,000 are convicted criminals, some of whom have served time in jail, and more than 300,000 have absconded after facing a final order of deportation, according to ICE. Enlisting the nation's 600,000 state and local police officers in enforcing immigration law would tremendously increase the number of officers working to root out immigrant criminals as well as terrorist cells.
Goldman now is vice president for law enforcement initiatives at Seisint Inc., a data collection firm in Boca Raton, Fla. He says Florida's program was not intended to enlist police in "arresting tomato pickers and restaurant dishwashers"-in other words, illegal immigrants who otherwise abide by the law. The program has focused exclusively on national security investigations. Alabama goes a step further. Its 21 state troopers trained by Homeland Security now can inquire about the immigration status of any suspect, whether that person is a suspected terrorist, violent criminal or simply someone driving too fast.
Since launching the program last October, Alabama officers have arrested a Thai woman and a Korean man for attempting to obtain driver's licenses with fake documents; 13 illegal immigrants traveling through the state in a van that was stopped for speeding; and an illegal immigrant who was pulled over for driving on the wrong side of the road. As in Florida, the Alabama state troopers are required to turn suspected immigration violators over to Homeland Security. "Most likely, these arrests would not have been made" if Alabama had not volunteered for the immigration training, says Martha Earnhardt, director of public information for the Alabama Department of Public Safety. The Alabama and Florida programs may be the first of many such cooperative agreements. Phoenix, Idaho, North Carolina, Los Angeles County and other city, state and local governments are considering applying for immigration training, says ICE's Courtney.
Still, there are serious questions about local involvement in immigration enforcement. Doris Meissner, who headed the INS during the Clinton administration and now is a senior fellow at the Migration Policy Institute, nonpartisan Washington think tank. She says national security concerns may make programs like Florida's worthwhile. But she opposes the type of blanket authority given to Alabama state troopers. "Law enforcement fundamentally depends on building trust in the communities that police agencies serve," she says. That trust will be eroded, she adds, if immigrants fear that by reporting crimes or serving as witnesses they may find themselves charged with immigration violations.
Immigrant advocates cite cases like that of Danny Sigui in opposing cooperation between federal immigration agents and local police. In December 2001, Sigui, an illegal alien who'd come to the United States from Guatemala in 1989, was working on his Jeep Cherokee sport utility vehicle near his home in Central Falls, R.I., when he witnessed a fight that ended in murder. Sigui's testimony last June sent a man to prison for the killing. But Sigui let slip his immigration status while cooperating with the local authorities. Despite his cooperation, he was reported to federal immigration agents. In October, he was deported, causing outrage in the local immigrant community.
Immigrant rights groups also fear police will begin immigrant profiling. "We think there's a very good chance that these policies will lead to stops based on people's appearance or clothing. Then there is a potential for civil rights violations," says Michele Waslin, a senior immigration policy analyst at the National Council of La Raza. A coalition of immigrant rights groups led by the council, which is an organization supporting Hispanic causes, has sued the Justice Department over its move to add immigration violators to the NCIC database.
Organizations lobbying for local governments oppose the move to enlist their officers, fearing the cost. The National League of Cities and National Association of Counties are opposing the CLEAR Act, arguing that it would put undue financial burdens on cash-strapped governments and harm relations between local police and immigrant communities.
The bill, which has garnered 112 House co-sponsors, would make civil immigration violations, such as overstaying a visa, a crime. All such violations would be added to the NCIC database, and states that fail to cooperate in pursuing violators might sacrifice federal funding currently dedicated to assisting them with the costs of holding illegal immigrants who've committed crimes. The federal government also would reward states that participate, allowing local and state police departments to seize assets from illegal immigrants.
Despite increased federal pressure to report immigration violators, cities continue to buck Homeland Security, just as they bucked the INS. In October 2003, Philadelphia became the latest city to order its police officers not to assist federal immigration agents. Under the policy, a city employee may disclose information about a person's immigration status to the federal government only if the immigrant "is suspected of engaging in illegal activity, other than mere status as an undocumented alien . . . or if such disclosure is necessary in the furtherance of an investigation of potential terrorist activity."
Likewise, New York Mayor Michael Bloomberg-after taking steps in May 2003 to rescind a city policy restricting cooperation between local police and federal immigration agents-redrafted the policy to limit cooperation after his initial decision was met with vocal opposition from immigrant advocates.
Last summer, Rep. Tom Tancredo, R-Colo., introduced an amendment to strip sanctuary cities of their Justice Department funding. The effort failed, but about a quarter of House members backed it. At the same time, Friends of Immigration Law Enforcement, a Washington-based advocacy group, has sent letters to mayors, including Bloomberg, threatening to sue the cities on behalf of anyone injured or killed in a crime committed by an illegal alien. Craig Nelsen, the group's director, says he sent the letters to "inform these cities of their violation of the law and their liability." The New York Post reported in January that the victim in the Shea Stadium rape case has filed a $50 million lawsuit against New York City.
MANY DEMANDS, FEW RESOURCES
But even if many more states agree to join the fight against illegal immigration, or Congress passes the CLEAR Act this year, it's doubtful that better enforcement would result. That is, unless Congress agrees to increase the funding going to immigration enforcement in the nation's interior. Homeland Security would not be able to respond to an upsurge in calls from state and local police without more federal immigration agents in the interior of the country. Indeed, federal agents still would have to pick up and hold illegal immigrants even if local and state police arrest them. The INS was notoriously unresponsive to calls from state and local law enforcement officers and Homeland Security faces the same lack of resources that hobbled the INS.
John Feinblatt, criminal justice coordinator for Mayor Bloomberg, testified before Hostettler's committee in February aboutthe Shea Stadium rape case. He said it wasn't New York's so-called sanctuary policy that had hindered communication between city and federal officials so much as the INS' unresponsiveness. "It is our experience in New York City, and I think the experience of law enforcement throughout the country, that when INS responds, it only will respond in the most serious, the most notorious, the most heinous cases," he said.
Much of that unresponsiveness stemmed from resource problems that have continued to mount even after the INS was abolished and folded into DHS last year. Between 1994 and 2003, the number of people held by the federal government while they awaited the results of deportation proceedings more than tripled. In recent years, the government has spent hundreds of millions of dollars building immigrant detention facilities and renting space in local and state prisons.
What's more, the State Criminal Alien Assistance Program, a federal fund that reimburses state and local governments for costs they incur detaining illegal immigrants, consistently has failed to cover states' costs. Congress recently reduced funding for reimbursements from $585 million in 2002 to $250 million in 2003, giving further ammunition to those who criticize the CLEAR Act as an unfunded federal mandate. "There is a real disconnect between what we hear politicians and others demand, and the resources made available to do that kind of work," former INS chief Meissner observes.