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Cops and Immigration
Meaghan E. Tuohey-Kay
By Meaghan E. Tuohey-Kay, Esq.
Member League Immigration Task Force

workers picking green peppers in a field

The topic is debated on cable television, on the op-ed pages of every newspaper, and in local coffee shops across the country; everyone, it seems, has an opinion on immigration. Long-time residents may see rowdy backyard volleyball games and men looking for work in parking lots as diminishing the quality of life in beloved hometowns; while newer residents may take pride in revitalized downtowns and intriguing new ethnic restaurants.

Either way, most towns in New Jersey are dealing with an increasingly diverse population and the growing pains that come with it. While Congress debates comprehensive immigration reform, local municipalities are seeking solutions on their own. However, these local solutions often face court challenges, local opposition and logistical obstacles.

The first problem for municipalities that choose to address immigration issues is one of preemption. Immigration is an area historically reserved for the federal government and Congress alone has the power to determine how many people may immigrate each year, what procedures are used and the penalties, if any, for violating immigration laws. When Congress chooses to legislate in a certain area, states are generally preempted from creating laws that conflict or supersede Congress’s action.

Additionally, violations of immigration laws are civil in nature, similar to a parking ticket, and violators are subject to financial penalties not jail time. Local attempts to regulate immigration can run afoul of the law by attempting to criminalize actions the federal government has already determined are civil in nature.

Immigration Ordinances
Despite the risk of court challenges however, many municipalities are choosing to blaze new trails by passing local ordinances directed at undocumented immigrants. For example, officials in Riverside passed an ordinance sanctioning employers and landlords who employ or rent to undocumented immigrants. The law is currently being challenged in federal and state courts.

In Hazelton, Pennsylvania, officials passed a local ordinance sanctioning employers and landlords who employ or rent to undocumented immigrants. In addition, renters must register with the city hall to confirm their legal status. This law, known as the Illegal Immigration Relief Act, is currently being challenged in federal court on constitutional grounds.

Other cities, such as Danbury, Connecticut; Valley Park, Missouri; and Farmers Branch, Texas have enacted variations of the Riverside and Hazelton laws. Most are currently under court review and have not yet been enforced. Some towns that originally passed ordinances have abandoned them in the face of costly legal challenges.

In addition to laws targeting landlords and employers, some towns have tightened anti-loitering laws to address day laborers congregating on local streets. Enforcement of these laws is difficult without creating the perception of discrimination and some towns such as Freehold have been forced to pay hundreds of thousands of dollars to settle lawsuits.

It’s not just towns that are taking matters into their own hands, states too are looking for solutions. The state of Georgia enacted a law requiring that contractors doing business with the state to verify the employment eligibility of all employees. Likewise, Colorado enacted a law requiring contractors doing business with the state to join the Department of Homeland Security’s Basic Pilot Program (a computerized system for verification of social security numbers) and to verify the employment eligibility of all employees. A companion statute imposes sanctions on employers employing people not authorized to work.

Along with costly legal challenges to local and state laws, municipalities that are perceived as coming down harshly on some residents run the risk of bad publicity and loss of revenue. If a large number of residents move, local businesses can suffer and tax revenue may fall. Additionally, a mixed-bag of state and local immigration laws make compliance very difficult for companies trying to deal with a patchwork of obligations, thereby forcing large companies to avoid those areas.

Law Enforcement Options
In conjunction with housing and employment laws, some towns are looking at law enforcement options. The Department of Homeland Security has recently published a program whereby they will train and certify local police officers to identify and arrest undocumented individuals.

Morristown is currently in the application process for this program, awaiting approval from Immigration and Customs Enforcement (“ICE”). While this program at first glance appears to be a legal and efficient way to enforce immigration laws on the street level, the implementation could prove extremely difficult.

First, as mentioned above, the act of being undocumented is not a criminal act. Involving police officers in civil matters could create due process and other procedural Gordian knots that are expensive and time-consuming to sort out. For example when would Miranda rights need to be read or how would the search and seizure rules apply?

Identifying Illegal Aliens
It may seem like a simple concept—someone is either here legally or not. However, there are dozens of types of immigration statuses, each with multiple forms of proof. For example, a Legal Permanent Resident may have a “green card” (of which there are numerous different versions currently in circulation) or may just have a stamp in their foreign passport. Also, someone with a pending application for a green card may have permission to be here, but their only proof would be a filing receipt notice.

Additionally, it is impossible to determine a person’s immigration status by looking at them or through casual conversations. Many citizens speak Spanish or have non-local accents and some immigrants have no accent at all, such as Canadians. To avoid racial profiling towns will almost have to institute ID checkpoints for everyone.

Finally, towns that seek a law enforcement solution to a perceived problem with undocumented residents run the risk of damaging the excellent reputations their police officers strive hard to maintain in diverse communities. Immigrants and non-English speakers are already at risk from criminals who believe their victims can’t or won’t report crimes to authorities. Anything that erodes the public’s ability to seek assistance only emboldens the criminals and endangers the community as a whole. Many police departments have already spoken out against this program as a corrosion of their community-based policing efforts.

In sum, while dramatic population increases coupled with old-fashion cultural clashes can cause tensions to boil over, town leaders must find innovative ways to integrate new residents into local culture while introducing long-time residents to the invigorating benefits of newly arrived.


This article appeared in the June 2007 issue of New Jersey Municipalities magazine.

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