Immigration Confusion
How serious a crime should it take to get an illegal alien deported?
By Jack Dunphy
One of the occasional frustrations of being a police officer is having to sit idly by as the law is subordinated to transient political expediency. Here in Los Angeles, for example, Mayor Antonio Villaraigosa has made no secret of his sympathies for the cause of illegal aliens. Those sympathies are reflected in the management ranks of the Los Angeles Police Department — perhaps out of genuine conviction but far more likely out of careerism. Recall that when things went awry during an immigrants'-rights demonstration at L.A.'s MacArthur Park two years ago (discussed here, here, and here), one of the senior officers present, a white deputy chief, was demoted a few days later and replaced by a Latino.
Recall also that for years the LAPD has been embroiled in a dispute over the application of the regulation known as Special Order 40, instituted in 1979, which governs how the department deals with criminal illegal aliens. Special Order 40 prohibits officers from taking action against persons suspected of no crime other than illegal entry into the United States, but it mandates notification to immigration authorities when "an undocumented alien is booked for multiple misdemeanor offenses, a high grade misdemeanor or felony offense, or has been previously arrested for a similar offense."
Note that the order does not prohibit such notification when an illegal alien is arrested for a single misdemeanor. That no such prohibition exists, indeed that none can exist under both California and federal law, is of no apparent concern to some in the LAPD. I refer to a recent series of arrests made by LAPD officers whose aftermath has department managers scrambling to explain their actions and square them with the applicable laws.
On April 1, officers assigned to the LAPD's 77th Street Division in South Central L.A. arrested 27 people for illegal street vending. Sixteen of them were determined to be illegal aliens, and they were reported to federal Immigration and Customs Enforcement (ICE) agents. The ICE agents placed immigration holds on the 16, initiating the process for deporting them upon disposition of the local charges. The notification to ICE was made with the full knowledge of the officers' chain of command.
But soon alarm bells were ringing in the mayor's and city council's offices, in the local Spanish-language media, and finally in various offices of the LAPD. Deputy Chief Sergio Diaz, who heads the LAPD's Central Bureau and therefore has no line authority over the South Bureau's 77th Street Division, circumvented the chain of command and ordered the 16 illegal aliens released on their own recognizance. The other 11 arrestees, all of whom were citizens or legal U.S. residents, received no such consideration and had to make bail or remain in custody until their court appearances. Diaz also asked ICE to drop the immigration proceedings against the 16, a request that was politely but firmly denied. It may not surprise you to learn it was Diaz who was promoted to deputy chief after the May Day troubles of 2007.
In the wake of all this, some LAPD officers are asking their superiors for clarified guidelines on when illegal-alien arrestees should be reported to ICE. Clearly, Mayor Villaraigosa and his sycophants in the LAPD want to restrict such notifications to only the most serious of offenders. In fact, in an e-mail sent out to some officers in the LAPD's South Bureau last week, Commander Andrew Smith, the assistant commanding officer for the bureau, said the subject of ICE notification had come up in a recent senior staff meeting. "The direction given by [Chief William Bratton]," wrote Smith, "is that we call ICE only on the following cases: 1) Violent felony arrestees, and 2) Gang members arrested for felony charges."
So if Bratton were to have his way, burglars, car thieves, drug dealers, forgers, drunk drivers, and all manner of other miscreant illegal aliens would go unreported to ICE unless they belonged to a gang. And an illegal-alien gang member, presumably even one with a felony record, would go unreported when arrested for a misdemeanor. I have yet to see any formal order codifying the guidelines set forth in the e-mail, and I'm at a loss to figure out how Bratton might issue such an order without running afoul of state and federal law. Forgive me for delving so deeply into the nuts and bolts, but at this point an extended reference to the California Penal Code is required. Section 834b reads as follows:
(a) Every law enforcement agency in California shall fully cooperate with the United States Immigration and Naturalization Service regarding any person who is arrested if he or she is suspected of being present in the United States in violation of federal immigration laws.
(b) With respect to any such person who is arrested, and suspected of being present in the United States in violation of federal immigration laws, every law enforcement agency shall do the following:
(1) Attempt to verify the legal status of such person as a citizen of the United States, an alien lawfully admitted as a permanent resident, an alien lawfully admitted for a temporary period of time or as an alien who is present in the United States in violation of immigration laws. The verification process may include, but shall not be limited to, questioning the person regarding his or her date and place of birth, and entry into the United States, and demanding documentation to indicate his or her legal status.
(2) Notify the person of his or her apparent status as an alien who is present in the United States in violation of federal immigration laws and inform him or her that, apart from any criminal justice proceedings, he or she must either obtain legal status or leave the United States.
(3) Notify the Attorney General of California and the United States Immigration and Naturalization Service of the apparent illegal status and provide any additional information that may be requested by any other public entity.
(c) Any legislative, administrative, or other action by a city, county, or other legally authorized local governmental entity with jurisdictional boundaries, or by a law enforcement agency, to prevent or limit the cooperation required by subdivision (a) is expressly prohibited.
There is an analogous provision in federal law, specifically Title 8, Section 1373 of the United States Code. As much as Mayor Villaraigosa, Chief Bratton, and their underlings might wish otherwise, they cannot prevent an LAPD officer from notifying ICE regarding an illegal alien he has arrested, no matter how minor the charge.
One might argue that illegal street vending should not be enough to trigger deportation, but the arrests discussed above were engendered by complaints from legitimate merchants, some of whom are themselves immigrants, albeit legal ones. They asked the police to take action when they grew weary of seeing illegal vendors operating within sight of their properly licensed stores and restaurants. The illegal vendors, unburdened by such niceties as business licenses and tax payments, were able to charge less for similar products, taking customers away from the legitimate businesses struggling to stay open.
Perhaps the mayor and the police chief will find time to inform the law-abiding residents of Los Angeles — even otherwise law-abiding illegal aliens — what benefit might be derived from letting criminal illegal aliens escape deportation and remain among them. Many LAPD officers would be keen to hear their explanation.
—Jack Dunphy is an officer in the Los Angeles Police Department. "Jack Dunphy" is the author's nom de cyber. The opinions expressed are his own and almost certainly do not reflect those of the LAPD management.
Immigration Confusion by Jack Dunphy on National Review Online (4 May 2009)
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