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Immigration Federalism: Which Policy Prevails?

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Immigration Federalism: Which Policy Prevails?

In July 2012, Maricopa Country (AZ) Sheriff Joe Arpaio first appeared in court in a civil-rights trial that would determine whether his deputies engaged in racial profiling by detaining people solely on the suspicion they were unauthorized immigrants. The case raises some of the key issues regarding non-federal involvement in the complex U.S. immigration enforcement and policymaking system. (Photo courtesy of Gage Skidmore)

In the lead-up to the 2012 U.S. presidential election, a major point of contention between Republican and Democratic candidates has been the division of responsibility for immigration policy and enforcement between the federal government and states. This is not surprising. When viewed through the local law enforcement lens, the current arrangement looks more like a patchwork of overlapping and potentially conflicting authorities than a systematic nation-wide approach to immigration enforcement. This article examines the challenges resulting from these recent trends in immigration enforcement, based on two national surveys, one of city police chiefs and one of county sheriffs, and three case studies (Mesa, AZ; New Haven, CT; and Raleigh, NC). The article provides data on the impact of devolution of immigration powers to the local level and the growing involvement of local police in immigration enforcement. Ultimately, it argues that a multilayered jurisdictional patchwork has emerged, in which overlapping and neighboring jurisdictions can, and do, adopt conflicting policies and practices vis-à-vis their immigrant populations.

Enforcement of the nation’s immigration laws was once firmly under federal control, with local law enforcement playing an occasional supportive role upon request. That has changed. The federal government began to devolve enforcement power to the local level in 1996, offering to train officers in police departments and other local law enforcement agencies to arrest and screen suspected unauthorized immigrants. More recently, state laws have been adopted that require local police to assist in immigration enforcement. The U.S. Supreme Court recently examined one of these laws, Arizona’s SB1070, declaring some elements of the law beyond the state’s power to enact, but leaving in place the section mandating that officers, while enforcing other laws, question the immigration status of those they suspect are in the country illegally. The situation has grown more complicated with the nearly completed rollout of Secure Communities, which links local jails to federal immigration databases to facilitate the identification of people in the country illegally.

Devolution became federal policy in the 1996 Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), which included a clause known as section 287(g) that invited state, county, and city law enforcement agencies to sign partnerships with the federal government to enforce civil violations of federal immigration law. There were no 287(g) agreements signed prior to the 9/11 attacks, but currently 63 agencies, at various levels, participate in the program, which has trained approximately 1,300 officers to enforce immigration law. This represents only a tiny portion of local police and sheriffs departments in the country, a reminder that under the Constitution, federal authorities can only invite, not mandate, new law enforcement duties at the state and local level.

The Complex Patchwork of Enforcement Efforts: Which Policy Prevails?

The debate over how to engage with the federal immigration enforcement effort is being conducted with widely variable outcomes. Many large cities, for example, oppose enforcement partnerships with the federal government, but they operate within a jurisdictional network that subordinates their policymaking powers to the state. Sheriffs, who exercise considerable power over their entire county, add additional complexity. Due to a lack of coordination between the various policymaking bodies, immigration enforcement has the potential for cross-jurisdictional conflict and overlap, resulting in uncertainty among immigrants about which policy prevails. Overlapping enforcement authority also constrains localities as they seek to balance enforcement options against commitment to community policing. These factors provide individual officers with substantial discretion. We dub this outcome a "multilayered jurisdictional patchwork" (MJP) of enforcement authority: a confusing and often contradictory geography of immigration enforcement in the United States.

The trend toward devolution of central authority to the local level is a product, among other things, of illegal immigration flows that increased rapidly during the 1990s and early 2000s, and the national government’s limited capacity to control these flows. Thus, the trend toward shared responsibility is not surprising: federalism is a familiar solution to the problem of limited governing capacity. The three levels of government cooperate on a variety of issues to achieve broad goals. For a long time, however, immigration policy did not follow this shared governance pattern.

The recent emergence of immigration federalism raises concerns that are absent in other shared governance areas. The devolution of immigration enforcement from federal to local authorities threatens to disrupt fragile trust, nurtured over the years, between local law enforcement and immigrant communities. Overlapping, independent local law enforcement agencies create other hazards for federal policymakers.

Immigration federalism, defined as the role of the states and localities in making and implementing immigration law and policy, has become an increasingly relevant issue. Contemporary scholarship explores two emerging dynamics: (1) the devolution of immigration authority to subnational jurisdictions, authorized in 1996 by IIRIRA and the 1996 welfare reform law formally known as the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA), and (2) the recent explosion of grassroots immigration policies and enforcement practices.

Legal scholars are divided between those arguing for and against the constitutionality and desirability of immigration federalism. Peter Spiro, an early proponent of immigration federalism, argued for "steam valve federalism" in immigration policymaking, and also supported state-level immigration policy activism. Under steam valve federalism, the pressure on the federal government to pass a potentially undesirable national-level policy is lowered by allowing localities to determine their own enforcement approach. Some scholars suggest that immigration policymaking at subnational levels will not necessarily be hostile to immigrants, while others view the devolution of immigration policing authority as a crucial force multiplier in the war on terror, because only roughly 2,000 U.S. Immigration and Customs Enforcement (ICE) agents were assigned to interior enforcement as of 2009.

Other scholars are principally concerned that devolution and grassroots immigration policy activism together have opened the door to discrimination against noncitizens. They view the devolution of federal authority as an erosion of the traditional barrier, imposed by the 14th Amendment, against state and local discrimination on the basis of national origin. Under immigration federalism, immigrants are much more at the mercy of the discriminatory powers of the local state.

Survey Responses on Immigrant Community Members
Sheriffs and city police chiefs respond differently to questions related to immigrant community members. Whereas more than half of city police chiefs (52 percent) agree or strongly agree that "gaining the trust of unauthorized immigrants is a priority in my department," only 31 percent of sheriffs agree with this statement. Similarly, more city police chiefs agree that that "victimization of immigrants is considered a significant problem in my department" (30 percent) than do sheriffs (20 percent). Of course, contextual factors, such as the local crime rate or the socioeconomic status of local immigrants, may account for these differences.

Evidence of Immigration Federalism from Two National Surveys

We draw upon data from two surveys of local law enforcement executives: police chiefs from large and medium-sized cities in 2007–08 and county sheriffs surveyed in 2009–10. The city survey was sent to 452 police chiefs in cities listed in the 2005 American Community Survey as having 65,000 or more residents. These 452 represented the universe of chiefs in cities of this size that have their own police departments. We ultimately secured a 52.4 percent response rate (237 cities).

We surveyed sheriffs in counties that met two criteria: (1) at least 6 percent of the population was foreign-born, as of the 2000 Census, and (2) the county contained at least 20,000 total residents. We added seven counties that were slightly below the 6 percent threshold but had at least 25,000 foreign-born residents as of 2000. Of the 449 counties selected (roughly the same number as big-city chiefs), 252 provided usable responses, a response rate of 56.1 percent.

County sheriffs are unique because they are both administrators (as head of a county agency) and politicians (since 97 percent in our survey are directly elected). Ninety-one percent of county sheriffs surveyed say that they engage in patrols and investigations in unincorporated areas, and sometimes within incorporated cities; 83 percent also run the county jail system. In our sample, 78 percent handle both functions. County sheriffs are also more likely to formally cooperate with federal authorities, partly because of their jail supervisory responsibilities. Even before the advent of Secure Communities, many county jails routinely asked about immigration status at the time of booking. Thirty-six percent of the sheriffs surveyed have memoranda of understanding (MOUs) with ICE to help manage unauthorized incarcerated immigrant detainees. The corresponding percentage for municipal police departments is 3 percent. Fifteen percent of sheriffs provide for federal training of local law enforcement personnel to cooperate in making investigations or arrests for civil immigration violations. The comparable percentage of city police departments is 3 percent. Twenty percent of sheriffs report that they have ICE officers embedded in one or more of their units, compared to 7 percent of cities surveyed.

Further Survey Findings
The costs of detaining unauthorized immigrants also bring sheriffs into cooperative, although sometimes controversial, relationships with federal officials. Many counties (and state prison systems) complain that immigration detention expenses amount to an unfunded federal mandate. But the arrangement can be mutually beneficial. For counties with excess jail capacity, housing federal immigration detainees provides significant revenue. Among our responding sheriffs who operate jails, 60 percent receive at least some reimbursement from the federal government; for 21 percent, such reimbursements cover most or all of the county's costs. These factors clarify why 41 percent of responding sheriffs deemed federal officials "influential" or "very influential" in shaping their offices' immigration-enforcement practices and policies, while only 21 percent said the same of their county governing board.

Our survey provided an indirect indication of differences in actual practices between sheriff’s deputies and city police officers. We asked both groups: "Regardless of what officers [deputies] are instructed to do or are supposed to do, what typically happens when officers in your department encounter individuals who might be unauthorized immigrants in each of the following situations." We then listed common situations where officers might encounter an unauthorized immigrant, ranging from violent crime arrests to interviews of victims and witnesses. Table 1 shows the share of chiefs and sheriffs who said their officers would attempt to check the person’s immigration status, report the person to ICE, or both. For both types of departments, this percentage varies depending on the severity of the offense or situation. Sheriffs were more likely to report an enforcement-oriented approach in each situation. The consistency of this finding indicates that there are significant differences in the field.

How do officers determine what to do when interacting with a potential unauthorized immigrant? It is likely that individual officers are either forced to develop their own standard operating procedures or will absorb an unofficial norm from their colleagues and superiors. Only 39 percent of chiefs and 33 percent of sheriffs have written policies on this topic. As a result, unauthorized immigrants are treated quite disparately, depending on where they encounter law enforcement. The confusion is particularly acute for newly arrived immigrants, who may not understand the nuances of law enforcement‘s multijurisdictional character. Unpleasant experiences with police forces in one jurisdiction affect immigrants’ reactions to police in other jurisdictions, regardless of policies. Fear of one particular police force thus acts as a contagion affecting other nearby communities. The sheriff department’s authority to check the immigration status of all suspects transferred to its jail facility also can result in a heightened sense of threat among unauthorized immigrants throughout the county.

Table 1: Percentage of Departments that Would Check Immigration Status and/or Report to ICE when Encountering Suspected Unauthorized Immigrants in Various Situations
Situation Large-city police County sheriffs
Arrested for a violent crime 87% 89%
Detained for parole violation or failure to appear in court 69% 80%
Arrested for domestic violence 64% 81%
Interviewed as possible victim of human trafficking 59% 59%
Arrested for a non-violent crime, with no prior record 51% 67%
Stopped for a traffic violation 21% 27%
Interviewed as crime victim, complainant, or witness 15% 20%
 

Case Studies

The case studies that follow illustrate the variations in law enforcement approaches to immigration enforcement, even within particular cities and metropolitan areas. We grouped cities in terms of their responses to questions regarding immigration enforcement policies, and selected typical instances for case study analysis to illustrate the MJP and its troubling contradictions, particularly for immigrant communities.

Mesa, AZ: The Struggle to Maintain Balance between Enforcement and Policing

Mesa is a city of over 463,000 people within the Phoenix metropolitan area and is located in one of the nation’s most populous counties, Maricopa County. Mesa’s demographics are a distinguishing feature. Twenty-six percent of the population was Latino and 15 percent were foreign born at the time of the 2007 American Community Survey. Latinos, despite their numbers, have historically lacked political power in Mesa. Members of the Mormon religion have exerted influence disproportionate to their numbers, while the opposite has been true of Latinos. Nonetheless, the population’s diversity has encouraged city leaders to define a measured approach to immigration enforcement. Under Chief George Gascón’s leadership from 2006 to 2009, the police department increased its investment in community policing and crime rates fell. This effort involved the creation and implementation of a written policy regarding officer inquiries into immigration status and detailing when to report suspected unauthorized immigrants to federal authorities. The city also applied for a 287(g) agreement to manage its incarcerated population.

Maintaining a balance between immigration enforcement and community policing was supported by city officials and two local fraternal police organizations, but opposed by Maricopa County Sheriff Joe Arpaio. The depth of this conflict was highlighted during an October 2008 midnight raid. Sheriff’s deputies searched for unauthorized custodial personnel employed by a city government contractor. Mesa authorities received no prior notice of the raid, and the deputies arrived at a city park and then entered city buildings, creating potential for a lethal misunderstanding between police agencies. The sheriff was acting under federal authority of a 287(g) agreement that provided for immigration enforcement training for 160 deputies by federal authorities.

City officials were outraged at Sheriff Arpaio’s action. To calm the situation the sheriff promised that he would announce future raids beforehand. Nevertheless, for those who lack legal status or have status issues, the situation remains perilous, as residents complain of racial profiling and pretextual arrests. Formal complaints and litigation over Sheriff Arpaio’s policies prompted the Department of Homeland Security to withdraw Maricopa County’s 287(g) authorities. Local critics have also sought to make the sheriff accountable for the costs of his policies through lobbying and litigation. The sheriff, however, remains firmly set on his course, claiming inherent authority to make arrests based on illegal status. The section of Arizona’s SB 1070 law, which among other things allowed officers to arrest individuals based on suspicion that they are unauthorized immigrants, was intended to make this authority explicit. Although the Supreme Court upheld this part of the Arizona statute, it did so with caveats against racial profiling and prolonged detention, a result that is likely to result in further litigation by Arizona residents.

The conflict in Mesa was essentially between levels of government, with the county sheriff asserting his jurisdiction to patrol the entire county as he sees fit, regardless of city policies within the county. In other parts of the country, such conflicts are avoided through comity, a principal of reciprocal respect by which one jurisdiction extends certain courtesies to others by recognizing their laws and decisions. Federal devolution does not address the question of comity to avoid disputes between overlapping jurisdictions, which means that cities like Mesa cannot implement their own approach to community safety. It is unclear whether any political authority can control sheriffs’ immigration-enforcement decisions, given their relative political independence. This also means that under current policy the federal government cannot be sure how its enforcement authority will be exercised. The problem is serious and pervasive. A 2010 study by the Migration Policy Institute questions ICE’s ability to ensure that its priority of targeting serious criminal offenses will be honored at the local level.

New Haven, CT: Innovative Policies, Still Tensions with Federal Government

New Haven is a city of 124,000 people (21.4 percent Latino and 11.6 percent foreign born) in southern Connecticut. New Haven is one of the most innovative cities in the United States when it comes to immigrant integration strategies. A general order prevents police officers from inquiring about immigration status or acting upon a National Crime Information Center (NCIC) "hit" for immigration violations, except when investigating criminal activity. Moreover, the city adopted a municipal identification card, which can be obtained by any city resident regardless of immigration status and is accepted by local government entities and businesses as valid identification. Both initiatives emerged out of the efforts of a diverse coalition of interests, acting on a growing awareness that immigrants in New Haven were being victimized because they lacked valid forms of identification. Connecticut law prevented noncitizens from obtaining drivers’ licenses.

Like unauthorized immigrants around the country without valid identification, immigrants in New Haven could not open bank accounts and thus kept their money at home or on their person in cash. Some immigrants reported being robbed and assaulted by criminals who saw them as "walking ATMs." At that time distrust of the New Haven police in the immigrant community meant that these crimes went unreported. The situation provoked ULA (Unidad Latina en Acción) and JUNTA (Junta for Progressive Action, Inc.) to commission a report, "A City to Model," for city leaders to consider. The report presented six proposals to foster immigrant integration and safety, out of which emerged the general order and the municipal identification cards policy.

While there are no counties or sheriffs in Connecticut, and no discernible tension between the city and state, there have been tensions between the federal government and New Haven. Within 36 hours of the passage of the municipal ID legislation, ICE conducted an immigration raid in the city — the first ever, not only in New Haven, but also in Connecticut. ICE agents approached individuals’ homes directly, thus exploiting the trust between New Haven city police and immigrants. Thirty-two people were arrested. Most observers were convinced that the raid was retaliation against the city’s newly adopted municipal ID card. A federal lawsuit, claiming that ICE agents violated the constitutional rights of those arrested, was settled by the agency in February 2012, with a $350,000 settlement and deportation halt for the 11 plaintiffs.

New Haven has also found itself at odds with the neighboring municipality of East Haven, with which it shares a border. In contrast to New Haven’s policy, East Haven police officers regularly call ICE when they are holding a suspected unauthorized immigrant and often pull Latinos over on what critics charge are pretextual grounds. A third source of conflict is internal. Some members of the New Haven police force have been opposed to the general order, believing that it violates federal law.

The potential for conflict from a variety of sources is evident in communities such as New Haven that prioritize community policing goals over immigration enforcement. This is another way in which the MJP created by devolution of federal authority limits local political authority without clarifying the federal government’s role.

Raleigh, NC: "Dual Deniability" in Enforcement Policy

Raleigh, with a population of 284,507, is located in Wake County, NC. Hispanics make up about 9.3 percent of the population and foreign-born make up about 13 percent. These numbers have grown dramatically over the past two decades, largely in response to the demand for labor in the construction and agricultural sectors. Neither Raleigh nor its police department have a policy concerning immigration enforcement, but the Wake County Sheriff’s Department, which encompasses Raleigh, entered into a 287(g) agreement in 2008 to provide more authority for the identification (and potential deportation by ICE) of unauthorized immigrants. The lack of policies at the city level and a 287(g) agreement for jail identification at the county level permits wide individual officer discretion when responding to suspected unauthorized immigrants. Any police officer in the county can arrest and bring in suspects, knowing that arrestees will have their immigration status checked. Yet the sheriff can correctly claim that his officers do not make most of the arrests. Both city and county police agencies thus achieve "dual deniability" regarding enforcement policy.

Latino residents do not necessarily distinguish between enforcement agencies, nor does it matter in terms of one’s likelihood of deportation. Therefore, many in the Hispanic community are fearful of all law enforcement and government officials. A sheriff’s office representative argued that there is no discriminatory intent involved.

Community groups claim that Raleigh’s policing practices, particularly the sheriff’s 287(g) agreement, have led immigrants to forego driving to their jobs and other destinations, because they mistrust law enforcement. They claim that immigrants are less willing to serve as witnesses or report instances of victimization because of deportation fears. These groups see a sharp decline in the area’s initial support for immigrants. Recent community group efforts to reach out to law enforcement and increase communication have been unsuccessful.. A MJP has developed in Raleigh because of the mixed message that the 287(g) agreement creates in a locality that was once more welcoming toward immigrants, regardless of their legal status.

Immigration Federalism: Beneficial or a "No-Policy Policy"?

Devolution of governmental authority creates variation in local policy regimes that is often celebrated as a way to better reflect the needs and preferences of local residents, or as a way to experiment with new and different ways of carrying out public services. Those who argue for devolution of immigration enforcement authority stress these qualities, suggesting that devolution reduces pressure on the central government in a hotly contested policy area. Such variation is certainly apparent in our surveys, and has various implications for local governments and immigrants.

Immigration enforcement, however, cannot be grouped with policy domains such as education or employment training. Immigration enforcement can be described as "intermestic" policy, standing at the juncture of foreign and domestic policy. The implications of enforcement are significant for both individuals and communities, raising fundamental issues about who belongs. Enforcement decisions can also have international ramifications. This is a complex area of law, and the standards are not even entirely clear to legal scholars, who remain sharply divided over whether local police can legitimately enforce civil immigration violations.

Nor does immigration federalism fit the usual model of "cooperative federalism," because it bypasses the traditional role of the state government in policy implementation in favor of local governments, where coordination among neighboring jurisdictions is lacking. Municipal police departments and sheriffs often act in isolation, without considering policies in nearby areas, as they decide whether and how to participate in enforcement. The decisions localities make are influenced by local political dynamics, and there is no effort to achieve consensus among law enforcement leaders.

The implications of the trend toward more formal local engagement in immigration enforcement are significant. Approximately 4 percent of the U.S. population lacks legal status. Enforcement efforts that target unauthorized immigrants can also draw U.S. citizens and legal permanent residents into intrusive contacts with the police. The enforcement effort may be perceived as racist or haphazard because there is discretion at the individual level and because police departments may operate in overlapping jurisdictions. A 2007 Pew Hispanic Center report noted that over half of all Latinos in the United States fear that they, or someone close to them, may be deported. The MJP means that no local government can allay that fear, and the federal government cannot ensure that enforcement will protect the civil rights and liberties of American citizens and legal residents.

The federal government has remained largely silent regarding alleged abuses by local law enforcement when it has partnered to deport residents, though certainly the Justice Department has closely monitored developments in Maricopa County and the Department of Homeland Security ended 287(g) authorities there. It has at times responded aggressively to local policies of non-enforcement, as the New Haven case illustrates. The devolution of immigration enforcement, combined with the absence of a consistent federal policy, has created a "no-policy policy" where enforcement programs and practices vary from jurisdiction to jurisdiction. The federal government has extended its reach, even as it has reduced its oversight.

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A longer version of this article was originally published in the April 2012 special issue of Law & Policy, (vol. 34:2) as one of five articles on issues associated with local-level enforcement of immigration law.