Immigration and National Security A Pathfinder. By: Ben McMillen . Introduction: Is immigration a national security issue?.
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“We know that in the 1990s, terrorists exploited the U.S. immigration system to enter and stay in the United States. “Interior enforcement”… is governed by a set of extraordinarily complex laws, rules and regulations that are adjudicated in its own administrative court system. The law and the procedures governing these courts were geared toward giving the benefit of the doubt to the alien…. Aliens were granted multiple hearings, often resulting in lengthy delays. This system was easy to exploit…. Terrorists knew they could beat the system—and, as we have seen, they often did.”
THE 9-11 COMMISSION REPORT: FINAL REPORT OF THE NATIONAL COMMISSION ON TERRORIST ATTACKS UPON THE UNITED STATES at 95 (2004)
The idea of local law enforcement participating in the detection and apprehension of illegal immigrants seems logical to some. However, others maintain not only objections to the legality of the practice, but to its effectiveness as well. These objections are manifested in certain localities in what more commonly referred to as “sanctuary cities.” A sanctuary city is essentially one that either prohibits local police from inquiring into immigration status, and/or reporting such information to federal immigration authorities. Roughly 23 states and multiple cities presently have either enacted laws, or have legislation pending, limiting the type of information that may be requested by police concerning the legality of an individual’s presence in the country. Among these cities are Detroit, Denver, Los Angeles, and New York, to name a few.
 Jesse McKinley Immigrant Protection Rule Draws Fire, New York Times, Nov. 12, 2008
A. The Clear Law Enforcement for Alien Removal (CLEAR) Act of 2005 (HR 3137).
In an attempt to prevent future mishaps by local police similar to those described above, congress proposed CLEAR Act of 2005. This bill essentially would have encouraged local police to take a more active role in immigration enforcement. Specifically, the bill stipulated that no federal funds allocated under the Immigration and Nationality Act would be given to any state or locality that “has as a statute, policy, or practice that prohibits law enforcement officers form cooperating with Federal immigration law enforcement.”
The bill also required the insertion of certain immigration data into the National Criminal Information Center, and further required local entities to participate in the Institutional Removal program. What’s more, this Act would have provided for increased federal detention space, training for state and local law enforcement, and provided broad immunity to state and local law enforcement officers.
Ultimately, the CLEAR Act of 2005 failed to receive even enough support to be voted upon. However, this did not serve to deter a second attempt to pass it into law. On February 6, 2007, The CLEAR Act of 2007 (HR 842) was referred to the House Judiciary Sub-Committee on Immigration.
In Muehler, the Supreme Court dealt with a situation in which a local police officer in Arizona was called to a residency in response to a domestic dispute. The officer discovered four occupants and proceeded to ask them each a series of questions, including each individual’s immigration status. While the 9th Circuit held that the inquiry violated the plaintiffs’ Fourth Amendment rights, the Supreme Court overturned the decision.
Specifically, the Court held that no “independent reasonable suspicion” was necessary to authorize the officer’s questioning. The Court also cited long standing precedent supporting their claim that “mere police questioning does not constitute a seizure”, and further explained that even when officers “have no specific basis for suspecting a particular individual, they may generally ask questions of that individual.”
United States v. Tehrani, 49 F.3d 54 (2nd Cir. 1995)
In Tehrani, the defendant was convicted after pleading guilty to aiding and abetting possession of counterfeit credit cards with intent to defraud bythe United States District Court for the District of Vermont and subsequently appealed partial denial of his motion to suppress.
The Court of Appeals held that the arresting officer did have reasonable suspicion to make the investigative stop based on defendant’s connection to his traveling companion. The court also held that the scope and duration of the investigation did not constitute an illegal arrest.
That is, if an officer becomes suspicious after questioning, he may detain the alien for a reasonable amount of time in order to determine whether that alien is legally present within the United States.
In Sharpe, the defendants were convicted in the United States District Court for the District of South Carolina for possession of a controlled substance with intent to distribute.
On appeal, the Fourth Circuit reversed the convictions in light of the supposedly “unreasonable” investigative tactics used by police.
The Supreme Court ultimately reversed the Fourth Circuit decision and held that where a DEA agent diligently pursued his investigation and no unnecessary delay was involved, the detention was not unreasonable.
The Court declared in the opinion that it is of critical importance “whether police pursue a means of investigation that is likely to conform or dispel their suspicions quickly.”
This procedural safeguard provides adequate protection to suspected illegal aliens during an immigration status inquiry.
Kris Kobach, The Quintessential Force Multiplier: The Inherent Authority of State and Local Police to Make Immigration Arrests, 69 Alb. L. Rev. 179 (2005)
This article provides a detailed history of several 9/11 hijackers and their ability to successfully allude immigration authority in the days leading up to the attack. Specifically, this article discusses certain traffic stops made by local police while these individuals were in the country illegally.
This article also makes a compelling argument for the inherent authority possessed by local police with regards to making immigration arrests. The author further argues that the National Security Exit Entry Registration System should be used by local police in reporting and identifying dangerous illegal aliens. A detailed analysis of federal pre-emption in immigration cases is also provided. In addition, the author points out that most immigration offenses are Civil and do not provide the Constitutional safeguards provided to criminal offenders.
David A. Harris The War on Terror, Local Police, and Immigration Enforcement: A Curious Tale of Police Power in Post – 9/11 America.. 38 RULJ 1 ( 2006)
This article provides a critical analysis of local police involvement in immigration enforcement. The author primarily argues that requiring local law enforcement to inquire into immigration status would be detrimental to the primary purpose of local police – maintaining law and order.
M. Isabel Medina. Immigrants and the Governments War on Terrorism, 6The New Centennial Review 225-238 (2006)
This article provides a critical analysis of immigration as a national security issue in general.
The author criticizes the Supreme Court’s holding that a removal or deportation is a civil proceeding, thus not providing most protections afforded persons under the Fourth, Fifth, Sixth, and Eighth Amendments (including the right to counsel).
The author further argues that in using removal as a tool to fight terrorism, the government is attempting to remove immigrants for offenses that, when committed, did not render the immigrant deportable.
Consequently, immigrants have been severely affected by the government’s use of immigration law to battle terrorism.
Finally, the author argues that making immigration a national security issue unfairly subjects immigrants to undeserved suspicion and racial profiling.
This website provides a broad scope of information pertaining to multiple U.S. Department of Justice topics. These topics include combating terrorism, upholding civil rights and liberties, combating gang violence, immigration, and various others. Specifically, the website provides a concise “Criminal Resource Manual 1918” that deals with the arrest of illegal aliens by state and local police. The link to the manual is:
This is the official website for the U.S. Immigration and Customs Enforcement Agency. Included in the page are various articles, a mission statement, news releases, career information, and links to various laws and regulations. The site provides detailed, comprehensive information for anyone seeking to gain a better understanding of our illegal immigration policy. Specifically, the site contains a very helpful link to a chart containing pertinent Federal Register notices. The link to this chart is:
This is the official website of the Department of Homeland Security. The site contains information for citizens, businesses, government agencies, and job seekers. Once entering the main page, it is useful to type “immigration” into the search bar provided in the top right hand corner. This leads to a comprehensive page detailing the departments role in dealing with immigration including how to become a citizen, the “Secure Border Initiative”, various statistics, and general immigration policy. Clicking on the link to the “Secure Border Initiative” leads to a concise summary of the departments plans to deal with illegal aliens at our borders. That link, along with an additional link to the U.S. Customs and Border Protection page, is provided below.