Saturday, October 18, 2014
Abstract: Recent immigration scholarship has identified two features of current immigration enforcement: the “federalization” of immigration law – meaning the growing participation of state and local police in immigration enforcement – and “crimmigration – the increasing use of immigration law as a strategy for crime control. Scholars argue that these trends are new and that they have had a negative effect on immigration regulation. By contrast, supporters of state and local immigration enforcement point out that police officers can serve as a powerful “force multiplier” by funneling the highest priority illegal aliens – criminal aliens – into the federal immigration system. They argue that this won’t change the shape of ordinary law enforcement. Neither side is correct. On the one hand, neither of these features is particularly new. For decades, federal immigration officials have been partnering with state and local officials and for nearly 100 years federal law has provided for deportation based on conviction of certain crimes. What is new is that enhanced funding and expanded programing has enlarged the scope of state and local participation and thrust it into public view. On the other hand, proponents of state and local police as “force multipliers” underestimate the extent to which this increased participation distorts both federal immigration enforcement policy and state and local law enforcement policy. These distortions result primarily from one salient feature of the merged system: the fact that state and local police involved in immigration enforcement make front-end law enforcement decisions in light of the promise of back-end immigration enforcement. This has led to the use of pre-textual stops and arrests ostensibly for traffic violations or minor crimes but actually for the purpose of feeding suspected illegal aliens into the immigration enforcement system. This article demonstrates how pre-textual enforcement actions distort federal and state/local enforcement priorities and undermine political accountability. They also lead, almost inevitably, to racial profiling that is largely impervious to legal and constitutional challenge. Assuming, as I do, that immigration policing and crimmigration are here to stay, the challenge is to harness the “force multiplier” of state and local enforcement without creating the dysfunction that can accompany it. The key is to find ways to decouple state and local law enforcement decisions from the promise of immigration enforcement. This article identifies some promising responses in this direction by ICE and state and local law enforcement agencies. While these early efforts are inadequate, they may point the way forward in a world in which immigration federalism and crimmigration are here to stay.