State and Local Police Enforcement of Immigration Laws

Abstract

Federal law enforcement agencies responded to the attacks of September 11, 2001, with forceful initiatives directed at noncitizens and their communities. In the years since the September 11 attacks, some of these initiatives have waned, but one that may come to rank among the most dangerous and enduring has seemingly gathered steam: the effort to enlist state and local police in the routine enforcement of federal immigration laws. Over the past century, individual police departments have occasionally participated in federal immigration enforcement, but the strategy rapidly became central to the federal government's post September 11 "war on terror" in a series of law enforcement initiatives.Together, these initiatives mark a sea change in the traditional understanding that federal immigration laws are enforced exclusively by federal agents, with local policing priorities set principally by local officials. The federal effort to enlist, or even conscript, state and local police in routine immigration enforcement has also prompted numerous policy criticisms. This Article first considers the validity and implications of the administration's determination that state and local police possess the "inherent authority" under federal law to make immigration arrests. Part II examines the lawfulness of a chief FBI method adopted to encourage such arrests, namely the use of its NCIC database to disseminate immigration status information to state and local police. Part III analyzes some of the implications of state and local immigration enforcement for racial profiling and selective enforcement.

Keywords: immigration, police, NCIC, federalism, preemption, criminal law