Legal Issues: Illegal Immigrant, Research Paper Example

Abstract

In the scenario to be addressed, a sheriff must determine how to apply a new law permitting his officers to question anyone they suspect to be an illegal immigrant.  In addition to the concerns inherent within this scenario, another, equally problematic issue is at play; the police department in question is suffering under severe budget cuts, and this must translate to a limited police force.  That the sheriff is conflicted in how to proceed is unsurprising, as myriad, and generally unfavorable, potential developments of this new law are apparent.  Ultimately, given the likelihood of both extreme backlash to the legalized procedures and the limitations within the department, this is a case wherein a better ethical course is dictated by realistic constraints.  The law, which bestows only permission, must be virtually ignored by the officers, as other avenues to curb illegal immigration are explored.

Introduction

The situation faced by the sheriff is something of a classic conundrum. His superiors, under extreme public pressure, are demanding tangible results from his department in regard to stemming illegal immigration, or at least in apprehending illegal aliens.  Simultaneously, any progress made by his force in this area must translate to the use of additional manpower and supplies, which budgets cuts render unobtainable.  As the circumstance exists, the sheriff has complied with the law, in that he has acquainted the police officers in his charge of it.  He has also informed them that current funding does not allow for overtime, new hires, or any other extraneous expenses.

In a sense, this dual information may serve to ease the sheriff’s problem; his officers may feel obligated to perform their duty to meet the full expectations of the law, but they also are working people with a presumably realistic awareness of what their schedules and department can bear.  It is, consequently, probable that the officers will not evince an especially aggressive attitude in enforcing the new law.  As the law itself is somewhat indistinct in its parameters, it is as well legitimate to suppose that a lack of effort from them in this arena could not be a source for reprimands.

Unfortunately, the onus of the sheriff’s position requires that he assert a more definitive stance with his force.  He and his teams are as intent on alleviating the problems of illegal immigration as the region they protect and serve.  Illegal immigration is objectionable to the general public for a wide variety of reasons, but it also creates an undesirable mode of living for the immigrants themselves. They have no choice but to take low wages and work in unfavorable, and often illegal and unhealthy conditions, as they must live in depressed neighborhoods. The  new law is no real solution to the problem of illegal immigration; it is, in fact, a trap lying in wait for officers. The sheriff is best advised to completely bypass it, which the wording of the law permits.  Then, he should instruct his officers to ethically pursue illegal immigrants through the non-racial elements of employment and living conditions.

Background and Overview

For the sheriff to make an informed decision, he must first understand the enormity and complexity of the problem of illegal immigration itself.  More precisely, he must comprehend how divisively it has been viewed in modern society.  An awareness of what may result from full compliance with the law, for example, can only aid in his decision-making process.

Immigration as a politically-driven issue is most certainly not a creation of the terrorist attacks of September, 2011.  While those events did indeed bring about a national focus on the dangers inherent in unrestricted immigration, and one at least temporarily reflective of a public support for intense government responses, illegal immigration has been a controversial matter for decades, coming to prominence in the early 1970s (Ueda, 2006,  p. 25).  Moreover, as may be expected, it is a most heated debate in those states wherein access from other nations is most easily achieved; Florida, for example, may be directly reached from Cuba by water, and Texas, New Mexico, and Arizona border the wide range of upper Mexico.

However, while those particular states remain the chief ports of entry for illegal immigration, the immigrants themselves often seek better shelter or anonymity, as well as a means of securing income, by moving deeper into the nation where jobs are more plentiful.   The tides of movement  are indisputable; in the 1990s, for example, more jobs were available in the mountain states of the American Northwest, as well as in the Southeast, and both these regions saw a proportionate rise in illegal immigrant populations then (Hanson, 2007, p. 12).  Consequently, illegal immigration is a truly national concern, and one driven by that greatest of all influences, economic factors.

What 9/11 actually serves to illustrate, in regard to the larger issue of immigration, is that now the threat of terrorism as enabled through illegal immigration, and  is added to existing concerns. The events of 2011 infused a distinctly threatening component to the undesirability of illegal immigrants within the country. Before the attacks, the society was divided by several aspects to the problem, typically becoming centered in concerns over Americans losing jobs to immigrants willing to work for less, and the concomitant and contrary element of the nation’s traditional role as a haven for those fleeing difficult homelands. As that debate continued to rage, more immediate fears for national security exponentially raised the public’s aversion to immigration in any form.

In every state, various efforts continue to be made to thwart illegal immigration, and seemingly prompted by both the more “old-fashioned” objections to it and the fears for security set in motion by 911. For example, in Phoenix, Arizona, a state prosecutor successfully reinterpreted a statute designed to address smuggling as applying to illegal or undocumented presence, while in 2006 Pennsylvania’s Hazelton City Council set into law its Illegal Immigration Relief Act, which severely restricts municipal services to immigrants (Olivas, 2007, p. 33).  Scrutiny, and on a national level, is more intense than ever before.

The sheriff is, of course, sensible of this. He must also be more familiar than the general public with how this cultural view of suspicion presents enormous difficulties for law enforcement.  That is to say, no degree of public support for stringent police measures in investigating suspected illegal immigration activity may shield the police so involved from charges of profiling, ignoring civil rights, and even violating the law.  Organizations of all kinds, and as powerful as the American Civil Liberties Union (ACLU), are honed to watch for potential abuses, and the sheriff must be aware of the risks entailed in his ordering his force to fully comply with the new law.

For example, in 2006, Rhode Island state trooper Thomas Cabot, noting a failure to signal a lane change, pulled over a van containing fifteen people, all Guatemalan in origin. The driver had proper identification; the passengers did not, and all fourteen were charged with immigration violations. The ACLU responded in litigious outrage, claiming that Cabot, racially profiling the passengers, had detained them during the stop unlawfully.  A 2010 ruling from the federal appeals court, however, upheld the trooper’s actions, citing ‘that a police officer does not need independent reasonable suspicion to question an individual about…immigration status’” (Vaughn, 2010).  Notably, the officer did indeed follow correct procedure, as obtaining identification is standard practice in such circumstances.

What is telling is the anticipation of profiling which sensationalized the episode and led to the appeals.  It seems evident that certain sectors of the public are very much on the alert for signs of racial identifying techniques, so much so that what was, in fact, a routine procedure from a traffic officer was interpreted as profiling.  Even more unsettling, however, was the verdict of the court.  It seems more reasonable that it would have merely validated the officer’s actions as standard, in his requiring identification of the passengers because of the size of the group, rather than tread the dangerous ground of granting arbitrary authority to him.  In a very real sense, this ruling exonerating Cabot did no service to the police, as it suggests an alarming enabling of autonomous power to him.

The sheriff would do well to consider this case, for variations of it are probable if his officers enact the new law.  Moreover, as the law vaguely permits police discretion, it virtually invites strenuous opposition, and with possibly disastrous consequences for the officers simply attempting to abide by it.   Given this enormous likelihood, the sheriff must acknowledge, and be prepared to assert as contributing factor influencing his decision, the greatest dilemma within the entire issue of how the police may investigate illegal immigrants: that of the government’s persistent unwillingness to defend racial profiling as the expedient policy it is.

Ethical Concerns and Profiling

Racial profiling is a procedure far from limited to illegal immigration.  The African American Community has long pointed to evidence of it as a breach of civil rights, wherein black citizens are isolated as potential criminal suspects by virtue of nothing more than their race. Both sides of the issue are exceedingly familiar to the public: people of color are disproportionately pulled over or stopped by the police, in comparison to to whites, because people of color are disproportionately active in criminal activity. “The obvious tautology of the argument, however, is rarely engaged – the criminal justice system looks the way it does because of racialized law enforcement” (Glover, 2009, p. 43).   The battle remains very much an insoluble one, as each side may present equally persuasive evidence.

What is perhaps less agreeable to note, and what the sheriff must bear in mind as he contemplates his position, is that the tautology is specious in regard to any assumption that targeting suspects by racial factors inherently obviates a contrary reality. That is, to assert that the majority of convicted criminals – as must be true of illegal immigrants, as well – are predominantly of minority races only because white criminals are not being so profiled is irrational.  For good or for ill, profiling does not manufacture the criminal or the illegal immigrant, and it is unreasonable to suppose that a criminal justice system as expansive as that of the United States could, for centuries, ignore an equally vast criminal element because it does not fit into established racial profiling concerns.

This is the difficulty at the heart of the sheriff’s problem, as it remains the core of national unrest and debate.  A reality is extant: individuals of certain minorities are statistically more likely to engage in crime or be illegally present, and minority individuals typically manifest their race in appearance.  This is a reality the government usually does not wish to acknowledge, in terms of legislature.  If a police officer knows as an indisputable fact that, in his city, African Americans comprise over seventy percent of the prison population convicted on drug charges, it is blatantly unreasonable to expect him to disregard this knowledge when performing his duties.  When he acts upon it, however, he is open to charges of racist profiling.  More precisely, and going to the heart of the issue in regard to any manner of illegality, the question becomes: when does the applying of empirical evidence somehow become a violation of civil rights?

It does not.  Regrettably, this is a reality which does not avail the police officer, as the recognition of it is vehemently opposed by those committed to civil liberties, who then vastly influence the government.  In a sense, the police officer who conducts racial profiling is being burdened with responsibilities not within his power to address.  It is probable that varieties of long-held discrimination and racism have created conditions for minorities which render crime more likely.  Economic oppression invariably leads to it, and there can be no ethical justification for this.  Nonetheless, none of this is within the police officer’s purview.  The job is to prevent crime and apprehend suspects of it, and employing documented evidence of the likelihood of the minority individual’s being a suspect is, if unfortunate, rational and ethical.

As may be expected, the same elements exist in the arena of illegal immigration, if not more markedly so.  As noted, the Southern border states front Mexico, and Mexicans are usually identifiable by appearance.  Many are legal citizens, certainly, but, as with the criminality component within the African American population, the probability that an illegal immigrant will be Mexican is far greater than that of other races.  This is a reality actually addressed in statute, which is itself rather remarkable, given the government’s understandable reluctance to confront racial factors in legislation:  “In United States v. Brignoni-Ponce, 422 U.S. 873, 886-87 (1975),  the Supreme Court stated that ‘[t]he likelihood that any given person of Mexican ancestry is an alien is high enough to make Mexican appearance a relevant factor,’ to the Border Patrol in making an immigration stop” (Johnson, 2001, p. 66).

It is cynical, perhaps, but nonetheless essential to note that it is as well likely that any such ruling regarding African Americans and other forms of crime could not possibly be made.  As noted, the facts maintain that the far greater majority of criminal offenders incorporated are black; however, as this population is a segment of an equally large African American population within the nation, the inescapable conclusion is that no similar decision could be rendered because the ensuing response would be devastating.  As before, it appears that the courts are willing to admit to a racial component as being valuable in police work only up to a point, or a safety margin.  Ethically, this is invalid.  Moreover, it renders the policeman’s job virtually impossible, as the language of these statutes, as above, is ordinarily presented in too vague a manner to protect the police from charges.

Realistic Consequences and Impediments

The sheriff must plainly see, as he suspects already, that complying with the law in this case opens the doors for extraordinary repercussions to the department.  For one thing, even the relatively common perception among the public that Mexicans do not, by virtue of numbers alone, merit consideration as do African Americans and other populations is not merely unethical in itself, but also no guarantee of safety from prosecution.  The Mexican government is by no means a passive voice or force in the U.S. handling of suspected illegal immigrants.  In 2005, the Mexican Consul in Detroit made its extreme displeasure known to an Ohio sheriff, whose force was trained in recognizing fraudulent identifications carried by illegal aliens (Krikorian, 2008, p. 85).  Here, again, a police procedure set in motion by established facts and patterns, once  addressed by the highest officials, is rendered an unacceptable form of racism.

If, in fact, the sheriff turns to documented cases to inform his decision, he will confront only contradictions, generated by specific and contrary circumstances and locations.  This may be seen by noting the 1996 landmark case of Whren v. United States, wherein racial profiling of illegal immigrants is clearly also concerned, the policy received high court approval of a kind (Cornell University Law School).  Justice Scalia did not deem it improper that plain clothes police officers in Washington, D.C., stopped two black men ostensibly for minor traffic violations, and then took the opportunity to search the car for drugs.  The court’s decision was, in fact, unanimously in favor of the police action, despite the fact that local regulations prohibit such stops unless public safety is threatened.  As far as the court was concerned, the standard of “reasonable suspicion” had been met, in that the traffic violation constituted a legal basis for a search (Stone, 2010).  That large quantities of illegal drugs were in fact in the vehicle, however, most certainly influenced the ruling, and this, again, points to the vulnerability of the police.  Had there been no contraband, it is reasonable to suppose that the officers would have faced charges.

Then, it must be noted by the sheriff that a single abuse in cases of illegal immigration may create enormous difficulties down the road.  In 2001, an Ethiopian immigrant named Sirak Gebremichael was arrested because he had overstayed his visa and, while Gebremichael did not challenge deportation, he was instead imprisoned.  The Massachusetts immigration court in question ruled that, as a warrant charging him with “annoying a person of the opposite sex” had been filed, Gebremichael was a danger to the community.  He had not been convicted of any felony or misdemeanor, but he was detained in prison for three years. Finally, in 2004, Magistrate Judge Robert Lovegreen ordered his release,  “…calling the case “nothing short of Kafkaesque.” In his written opinion, Lovegreen noted: ‘To have a man without a criminal history…languishing in jail in a foreign country, imprisoned by a system he does not understand, disadvantaged by language difficulties, and apparently guilty of nothing more than overstaying his visa, is unconscionable’” (ACLU).  This regrettable case, as must all such abuses, inevitably fueled a regard for civil liberties in the area that may well have hampered immigration investigations.  Police officers, as noted, are citizens within the community as well, and few wish to dangerously and unnecessarily risk their careers and livelihoods.

Alternatives

It appears evident that the sheriff must rely only ion his own wisdom in deciding how his department should respond to the new law.  However, he may be effectively guided by one other statute: in 2010, the Arizona State legislature enacted SB1070, a law requiring police officers to detain those who present a “reasonable suspicion” of being an illegal alien.  An officer in Phoenix, David Salgado, challenged the ruling and asserted that it was both untenable and inapplicable; in complying, he would himself be subject to charges of racial profiling, as his refusal to cooperate would result in sanctions against him at his job, including the possibility of termination. The law was blocked by intervention from the national government but not, interestingly, due to the profiling considerations.  Rather, the law was denied because it sought to exert authority in immigration affairs reserved for the national government (Janda, Berry, Goldman, & Hula, 2011, p. 82).

The actions of Salgado were, essentially, proactive and sensible.  He perceived a no-win scenario and sought to avert it from the start, and this is what the sheriff must do.  As was stated, the law permits officers to act on “reasonable suspicion”, if they believe they have encountered an illegal immigrant.   As that phrase so empowers the officers, it also, and blatantly, constrains them, as it clearly implies that they will be compelled to explain what constituted their suspicions.  It is difficult to conceive of a circumstance wherein the explanations may not be interpreted as racist, so the wisest avenue for the department is to not take advantage of so perilously phrased a law.

In advising his officers to not act upon the law, the sheriff is not violating it, nor are his officers; it is, again, a permission, not a mandate., and the sheriff’s primary responsibility is ensuring the welfare of his officers, and in every respect.  Plainly, they cannot perform their service to the public if they are faced with prosecution.  Moreover, the sheriff must understand that his department is rendered far less effective in the face of controversy and/or public disapproval, which will likely result from an active compliance with the new law.

In order, then, to address the problem of illegal immigration, the sheriff should instruct his officers to seek it not by racial identifiers, but by the economically related ones manifested by the type of employment illegal immigrants invariably may obtain.  A great incentive for illegal immigrants is that unscrupulous employers seek them to work at substandard wages  (Hankin, 2005,  p. 69).  Consequently, officers may investigate factories, restaurants, and other places of employment to identify illegal workers by virtue of the work being done.  It is not profiling, by any means, to ascertain that jobs requiring manual labor and few skills are typically the lowest paid; pursuing this line of reasoning, an officer may inquire for identification without evincing any regard for race.  Moreover, such a strategy is likely to promote the interests of the immigrants themselves, in that police authority is exposing substandard wages and illegal working conditions.

As with the employment arena, the sheriff has other avenues in which to investigate and curtail illegal immigration equally free from potential profiling accusations.  Low incomes translate to poor neighborhoods, and this may be turned to as a viable cause for suspicion, regardless of the racial component of the residents.  Ultimately, immigrants take the drastic step of illegal entry for economic reasons.  These financially based motivations and consequences are what the police may employ, then, in properly identifying them, and the entire issue of race may, in fact, be consequently avoided as the job continues to get done.

Conclusion

The sheriff, placed unconscionably in a dire situation, has recourse, and it is that of common sense.  He must preserve the integrity and effectiveness of his force, as he must acknowledge that even no outcry against his officers in complying with the new law would not provide the means necessary to arrest and house all the potential suspects.

Illegal immigration is objectionable to the general public for many reasons, but it is also a less than ideal mode of living for the immigrants. They are compelled to take low wages and work in unfavorable, and even unhealthy conditions, as they have no choice but to live in depressed neighborhoods.  The  new law is no real solution to the problem of illegal immigration; it is, in fact, a trap for officers.  The sheriff is best advised to completely bypass it, and to inform his officers to ethically pursue illegal immigrants through the non-racial elements of employment and living conditions.

References

American Civil Liberties Union (ACLU). (2004.)  “ACLU Defends Immigrant Imprisoned for Three Years While Awaiting Deportation.”  Retrieved from http://www.riaclu.org/News/Releases/20040614.html

Cornell University Law School. “Michael A. Whren and James L. Brown Petitioners v. United States.”  Retrieved from http://www.law.cornell.edu/supct/html/95-5841.ZO.html

Glover, K. S. (2009.)  Racial Profiling: Research, Racism, and Resistance. Lanham, MD: Rowman & Littlefield Publishers, Inc.

Hankin, H.  (2005.)  The New Workforce: Five Sweeping Trends That Will Shape Your Company’s Future. New York, NY: American Management Association.

Hanson, G. H. (2007.)  The Economic Logic of Illegal Immigration. New York, NY: Council on Foreign Relations.

Janda, K., Berry, J. M., Goldman, J., & Hula, K. W. (2011.)   The Challenge of Democracy Essentials: American Government in Global Politics. Thousand Oaks, CA: Cengage Learning.

Johnson, K. R. (2001.)  The Case For African American and Latina/o Cooperation in Challenging Race Profiling in Law Enforcement. National Association for Chicana and Chicano Studies Annual Conference, paper 7. pp. 63-76.

Krikorian, M. (2008.)  The New Case Against Immigration: Both legal and Illegal. New York, NY: Penguin Group.

Olivas, M. A. (2007.)  Immigration-Related State and Local Ordinances: Preemption, Prejudice, and the Proper Role of Enforcement. University of Chicago Legal Forum,  Vol. 2007. pp. 27-56.

Stone, R.  (2010.) Racial Profiling and Arizona’s New Immigration Law. California Progress Report. Retrieved from http://www.californiaprogressreport.com/site/node/7709

Ueda, R.  (2006.)  A Companion to American Immigration. Malden, MA: Blackwell Publishing.

Vaughn, J. (2010.)  “Appeals Court Rules Favorably on State Trooper Questioning of Illegal Aliens.” Center for Immigration Studies. Retrieved from http://www.cis.org/vaughan/Appeals-Court-Rules-Favorably

Wishnie, M. J. (2004.)  State and Local Police Enforcement of Immigration Laws. Faculty Scholarship Series, Yale Law School, paper 928. pp. 1084-1115.