When We All Become the Immigration Police

By Helen B. Marrow, TuftsUniversity

In July 2011, Governor of Alabama Robert Bentley signed into law a sweeping new anti-immigration bill.  Hailed by Republican lawmakers as the “harshest” in the country, House Bill 56 went far beyondArizona’s Senate Bill 1070, which had made national headlines in 2010.

But on September 28, 2011, U.S. District Court Judge Sharon Blackburn blocked the first six provisions in the bill, including ones that made it a state crime for unauthorized immigrants to apply for or solicit work, made it unlawful to conceal, harbor, shield, or transport unauthorized immigrants, and prohibited unauthorized immigrant students from attending public colleges.  Two of the most controversial of the remaining provisions were later enjoined by the U.S. Court of Appeals for the Eleventh Circuit – one that required public schools to track the immigration status of students, and the other that allowed the state to charge someone who fails to produce proof of legal status with a misdemeanor criminal offense.

But the appellate court left in place the remaining provisions.  The ninth provision – unofficially referred to as the “papers please” clause, because it allows state and local police to inquire into the immigration status of anyone stopped or arrested if an officer has a “reasonable” suspicion” that the person is unauthorized – remains controversial because an injunction against its counterpart in Arizona’s SB 1070 was previously upheld by the U.S. Court of Appeals for the Ninth Circuit, and is now heading to the U.S. Supreme Court.

The tenth and eleventh provisions – the former denying unauthorized immigrations access to the courts to enforce contracts, and the latter making it a felony for unauthorized immigrants to enter or attempt to enter into business transactions with state or local governments – are even more controversial.  They effectively expand the range of what is considered “illegal” behavior, not just by unauthorized immigrants by alsoU.S.citizens, into new territory.

As Joan Friedland (2011) notes, according to the tenth provision (Section 27), an unauthorized immigrant can enter into a contract but have no legal means to enforce it – if, for instance, an employer fails to pay for work accomplished or overtime completed, or if a landlord fails to keep a rental property in working condition. Likewise, aU.S. citizen landlord can enter into a contract with an unauthorized immigrant but have no legal means to enforce it – if, for instance, the immigrant fails to pay rent or adhere to the provisions of a lease.

According to the eleventh provision (Section 30), an unauthorized immigrant can neither enter nor even attempt to enter into business transactions with state or local governments.  And while U.S. District Court Judge Sharon Blackburn defined a “business transaction” more narrowly to include only licensing and commercial activities, the provision itself defines it more broadly – as “any transaction between a person and the state or a political subdivision of the state”.  Indeed, some local governments have already applied the law to all dealings with state and local government entities, and others have decided that the law limits their provision of public services such as utilities.  The town of Allgood, Alabama has interpreted HB 56 to require all water customers to provide an Alabama’s driver’s license or an Alabama picture ID in order to keep their current water service.  Jefferson County, Alabama has also interpreted the law to require proof of lawful presence for registering a mobile home, including for obtaining the decal proof of payment of property tax.  This provision is so controversial that just this week U.S. District Court Judge Myron Thompson temporarily enjoined its enforcement regarding mobile home owners, arguing that it violates the Fair Housing Act (Hoy 2011).

Whatever happens to the legal fates of Arizona SB 1070 and Alabama HB 56, they highlight a dangerous new trend of what I call bureaucratic and civil cross-deputization.

What do I mean by this?  On its own, “cross-deputization” is the official term used to describe what is happening under law enforcement provisions like the ninth one in HB 56, when state and local police become authorized to engage in activities related to federal immigration enforcement. For much of the last two centuries, state and local policing has been considered as separate from our federal immigration regime. But beginning in 1996, the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) added Section 287(g) to the Immigration and Nationality Act, vertically integrating the project of immigration enforcement.  Section 287(g) authorized U.S. Immigration and Customs Enforcement (ICE) to enter into memoranda of agreement with state and local law enforcement agencies to train selected state and local officers to perform certain functions of immigration officers, at their own cost and under the supervision of federal ICE officers. Functions include searching selected federal databases and conducting interviews to assist in identifying those individuals who are in the country illegally.

Thus, under 287(g) memoranda of agreement, an increasing number of state and local law enforcement officers have become cross-deputized as federal immigration agents:  they now have direct access to ICE databases and can act in the stead of ICE agencies by processing aliens for removal, which goes beyond their previous ability to communicate indirectly with ICE regarding the immigration status of individuals, or to otherwise cooperate indirectly with ICE in identification and removal of aliens not lawfully present in the United States.  Moreover, the 287(g) program is just one of 14 covered by the umbrella of ICE’s Agreements of Cooperation in Communities to Enhance Safety and Security.  In fact, a new ICE Secure Communities plan, which is intended to take advantage of the “full interoperability” of the federal government’s biometric identification systems to identify and remove “criminal illegal aliens”, is projected to be made available to all of the nation’s 1,200 state and federal prisons and 3,100 local jails by the end of 2013 (Rodríguez et al. 2010). Under this plan, state and local law enforcement officers will become even more strongly cross-deputized with the powers of federal immigration agents:  they will be able to check all detainees’ fingerprints, and thereby their immigration status and prior immigration violations, against FBI and DHS records as part of routine booking processes.

Nonetheless, the ninth provision of Alabama HB’s 56 is just one of many.   Looking at HB 56’s provisions in their entirety, and comparing them to those in anti-immigrant provisions and bills passed in other states and localities nationwide, suggests a broader trend toward cross-deputization afoot.  This trend involves not only law enforcement officers, who are indeed uniquely authorized among public workers to employ the state’s coercive power.  It also involves a range of the kinds of other “street-level bureaucrats” – such teachers, school and university administrators, healthcare providers, social welfare workers, court officials, and municipal service providers.

For example, it is school teachers and university administrators who find themselves on the front line of immigration policing when local ordinances prohibit unauthorized immigrant students from attending public colleges, or when state bills require public schools to track the immigration status of their students (which, by the way, is not just for “fiscal analysis” purposes only, but rather for an ultimate purpose of trying to prove that their enrollment is an economic burden on U.S. students and taxpayers, so that Plyler v. Doe can be re-challenged in court).  Likewise, it is healthcare providers who find themselves on the front line of immigration policing when local ordinances – like the one passed by Alamance County Commissioners in North Carolina in 2008 – prohibit them from offering nonemergency services to all unauthorized immigrants. And it is court personnel and municipal service providers, respectively, who find themselves on the front line of immigration policing when state bills such as Alabama HB 56 deny courts the ability to enforce contracts involving unauthorized immigrants, or turn business transactions between unauthorized immigrants and state or local government entities into a felony.

In fact, on the ground level it is precisely these kinds of street-level bureaucrats who are resisting politicians’ efforts to cross-deputize their work and roles vis-à-vis immigrants. Sure, some welcome and enforce such efforts.  But by and large, my research in rural North Carolina finds that street-level bureaucrats are more likely to resist bureaucratic cross-deputization than to embrace it.  We can see elements of this resistance elsewhere in the country, too.  Alabama school superintendents and principals issued public service announcements and hosted community forums following the two court rulings around HB 56, in order to try and reassure anxious parents that they and their children would not be reported to immigration officials for having unauthorized status if the kids attended school (Chishti and Bergeron 2011).  In 2006, the Police Chiefs of major U.S. cities issued a set of public recommendations regarding local police involvement in federal immigration policing, arguing that they should focus their efforts on the service-oriented mission of community policing rather than on the regulatory-oriented mission of immigration enforcement (MCC 2006). And healthcare professionals inNorth Carolina fought againstAlamanceCounty’s restrictions, emphasizing the confidentiality of medical records as a central tenet of health care providers’ code of ethics, and the importance of serving unauthorized immigrants to improving total community health.

For many of these street-level bureaucrats, the professional mission of improving a community’s health and well-being encourages service provision, not regulation.  Similarly, the definition of their client bases often extends to all residents in the “local community”, regardless of citizenship or legal status.  For others, sheer discomfort over the complex moral dilemmas raised by having to carry out the job of immigration enforcement becomes too strong.

But it isn’t just street-level bureaucrats, as the public arms of the state, who have become implicated in this new trend toward cross-deputization.  The first five provisions of HB 56 actually targeted employers, including private ones, as well as all state residents, regardless of their occupations.  In this sense, the trend toward cross-deputization evident in HB 56 is not just bureaucratic but also civil.  In other words, I argue that it is intended to turn all members of the surrounding civil society, not just local and state law enforcement officers or other public bureaucrats, into the immigration police.  Perhaps this is why HB 56’s fifth provision – that which made it unlawful to conceal, harbor, shield, or transport unauthorized immigrants – strikes so many of us as problematic, and why it garnered so much opposition, especially from religious leaders (who, not coincidentally, consider “harboring” and “shielding” their flocks from harm to be a positive part of their personal and professional calling).  Often the very civilians who support immigration enforcement in the abstract, as political scientist Antje Ellerman has shown inGermany, struggle much more visibly when they have to become physical witness to it.

Recovering some historical memory would be extremely helpful to combating this trend.  Before the mid-1970s, sociologist Cybelle Fox shows us that unauthorized immigrants were not automatically rendered ineligible for federally-funded public health insurance and social welfare programs.  Before 1986, sociologist Douglas Massey and his colleagues remind us that it was not illegal for employers, whether private or public, to hire unauthorized immigrants.  And before the 1990s and 2000s (by most state laws) and 2005 (via the REAL ID Act of 2005), it was not illegal to issue driver’s licenses to unauthorized immigrants.

We have come a long way, then, in making life hell not only for unauthorized immigrants, but also for ourselves – as the collective range of employers, street-level bureaucrats, and everyday citizens who must now bear witness to immigrants’ struggles in the face of ever-restrictive policies like Arizona’s SB 1070 and Alabama’s HB 56.  Bureaucratic and civil cross-deputization is dangerous not only because it puts unauthorized immigrants at risk of destitute poverty, family dissolution, and political disenfranchisement.  It also puts the rest of us on the verge of becoming active “police agents” in a country that increasingly resembles a police state to immigrants and their families.

This is not a hopeful vision.  We would do well to have a serious discussion about the host of ethical and pragmatic questions this trend raises before we continue moving down this path.

Helen B. Marrow, Ph.D. is an Assistant Professor in the Departments of Sociology and Latin American Studies at Tufts University. She is winner of the 2008 Best Dissertation Award from the American Sociological Association and author of New Destination Dreaming:  Immigration, Race, and Legal Status in the Rural American South (Stanford University Press, 2011)


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