During a heated House Homeland Security Committee hearing on February 10, Rep. Dan Goldman (D-N.Y.) sparred with acting ICE Director Todd Lyons over reports immigration officers had asked individuals to produce proof of citizenship — a questionable claim — but one that ended with the congressman telling the director, “If you don’t want to be called a fascist regime or the secret police, then stop acting like one.” Does Goldman know where all such laws exist? Because I do, and document checks are: (1) enshrined in the Immigration and Nationality Act (INA); and (2) common — and more intrusive — in several Western countries.
“Unnecessarily Speaking”
Here are highlights from the exchange:
Goldman: You are aware, of course, and there’s well-documented instances of people, American citizens, being asked to show and prove their citizenship. Do you know what other regimes in the 20th century required similar proof of citizenship?
Lyons: Yes sir.
Goldman: What?
Lyons: There was various nefarious regimes that did that.
Goldman: Was Nazi Germany one?
Lyons: Yes, but . . . [crosstalk]
Goldman: Was the Soviet Union one?
Lyons: Yes, sir, but I totally, I totally — this is the wrong type of questioning.
[Even more crosstalk]
Lyons: Not the men and women of ICE who are out there doing it every day. So, to say that the men and women of ICE are the Gestapo ...
Goldman: Mr. Chairman, I’m reclaiming my time. I would like my time back, please. Please give me another 15 seconds because he was unnecessarily speaking. You said in your opening statement that references to ICE as the Gestapo or the secret police encourages threats against ICE agents.
Lyons: 100 percent.
Goldman: The problem is you have it backwards, sir. People are simply making valid observations about your tactics, which are un-American and outright fascist. So I have a simple suggestion. If you don’t want to be called a fascist regime or secret police, then stop acting like one.
Perhaps I should ask my Creator for an additional 15 minutes to compensate for the time I spent transcribing that exchange, though I’d suggest Lyons’s response was hardly “unnecessarily speaking”: he was defending his employees from attacks like this one, which have been all too common.
Sections 262 and 266 of the Immigration and Nationality Act
Let’s start with the fact that numerous provisions in the INA impose documentary requirements on aliens in the United States.
For example, section 262 applies a duty on “every alien now or hereafter in the United States” age 14 or older who “has not been registered and fingerprinted” and who remains in the United States for 30 days or more “to apply for registration and to be fingerprinted before the expiration of such 30 days”.
While there are no statistics on the number of aliens who have entered the United States illegally, eluded inspection, and registered with DHS under section 262(a), likely few, if any, who haven’t subsequently applied for an immigration benefit or relief have done so.
The criminal penalties for failure to comply with that requirement are in section 266(a) of the INA:
Any alien required to apply for registration and to be fingerprinted in the United States who willfully fails or refuses to make such application or to be fingerprinted, and any parent or legal guardian required to apply for the registration of any alien who willfully fails or refuses to file application for the registration of such alien shall be guilty of a misdemeanor and shall, upon conviction thereof, be fined not to exceed $1,000 or be imprisoned not more than six months, or both.
Section 266 began as section 36 of the Alien Registration Act of 1940, with the $1,000 fine remaining unchanged since that time.
To give you an idea of how seriously Congress took this requirement, however, in current terms, that circa 1940 fine is equivalent to more than $23,000.
Section 264 of the INA
In any event, the statutory registration scheme doesn’t end there.
That’s because section 264(d) of the INA directs DHS to issue “a certificate of alien registration or an alien registration receipt card” to all registered aliens, and subsection (e) requires every registered alien age 18 and over to “at all times carry with him and have in his personal possession” such documents.
Congress implemented those requirements to ensure agents from the Immigration and Naturalization Service (“INS”, ICE’s predecessor in interior immigration enforcement) could verify the identity and lawful status of aliens in the United States — ironically, so they could detect real Nazis and fascists, not figurative ones that haunt certain overheated (or hyper-politicized) imaginations.
Highlighting again the importance of this requirement, failure to carry a certificate of alien registration or an alien registration receipt card is also a crime, subject to a $100 fine and 30 days in jail.
Constitutional Restrictions on Detentions and Arrests
Repeatedly in the recent past I have explained the constitutional restrictions on investigative detentions and arrest for questioning — including in the civil immigration-enforcement context — but here’s a recap.
ICE officers can freely engage in consensual conversations for any reason, but once the subject of the questioning reasonably doesn’t feel free to leave, officers must have “reasonable suspicion” the subject is committing or has committed a crime or that the subject may be removable to continue questioning.
At any point during that exchange — before establishing reasonable suspicion or after — the ICE officer can ask the subject for identifying documentation.
In fact, one purpose behind the registration and documentation protocol in sections 262 and 264 of the INA is to provide aliens with proof of their lawful or unlawful presence during such questioning.
An ICE officer would only request “proof of citizenship” in the investigatory process if the subject claims to be a U.S. citizen but (in a consensual encounter) the officer doubts that claim or (in a detention stop) has reasonable suspicion the subject is an alien.
If a false claim to citizenship were sufficient to end an immigration investigation every alien would make such a claim, immigration enforcement would be impossible, and sections 262 and 264 of the INA would be dead letters because aliens would have no reason to register with DHS.
Consequently, the Constitution permits an immigration officer to arrest an individual who makes a questionable claim to citizenship but is unable to prove it during the brief detention if the officer has “probable cause” the subject is committing or has committed a crime or is, in fact, a removable alien.
Once in custody, ICE will run checks to determine whether the subject is, in fact, a citizen and if those checks prove that claim, the subject will be released.
Provided the officer has probable cause of either criminality or alienage during that process, the arrest is constitutionally valid, even if the subject really is a citizen and the citizen’s freedom is briefly restrained.
And if you think about how many times you’ve heard a criminal suspect was “questioned and released”, you’ll release how common such brief detentions and arrests are, and that they are not limited to the immigration-enforcement context.
Where Are Individuals Required to Show Identification?
But is the fundamental point Rep. Goldman was attempting to establish — that only totalitarian states like Nazi Germany or the U.S.S.R. require individuals to present documents — true?
As the foregoing demonstrates, it plainly isn’t, because such checks are common and constitutionally valid in this country, and in many Western democracies the “document check” rules are more stringent.
France
No one — including Rep. Goldman — would confuse the current French government with the Third Reich, but more than 128,000 identity checks are carried out daily in the Fifth Republic according to a 2023 government audit.
As The Connexion, France’s leading English-language outlet, explains:
The checks are carried out by police officers and gendarmes, and include people being stopped both in public areas, such as on the street, in airports, train stations etc or whilst driving.
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Neither police officers nor gendarmes need a specific reason to stop individuals as they can carry out ‘preventative checks’ as part of general safety measures.
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These checks can happen in any public setting, and officers have the authority to check on those they have valid reason to believe are non-French residents (for example, those driving a vehicle with non-French plates).
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If you are a visitor to France and unable to provide the correct documents, you risk being taken to a police or gendarmerie station until your identity has been verified. [Emphasis added.]
Notably, the French government has an entire page on its official website, “Contrôle des papiers d'un étranger: quelles sont les règles?” (“Checking the papers of a foreigner: what are the rules?”), that lays out how such checks are done.
As it explains (in English): “You can be controlled by law enforcement, regardless of your behavior, to prevent a breach of public order, including the safety of persons or property.” (Emphasis added.)
Perhaps if ICE doesn’t want to be called the gendarmerie, they should stop acting like one.
Current-Day Germany
Then, there’s (current-day) Germany. As that country’s official website explains: “In Germany, people aged 16 or older must be in possession of official proof of identity which they can present to the authorities.”
By the way — that document requirement doesn’t only apply to so-called ausländer; German citizens are also required to carry their identification cards, as “stipulated by the Act on Identity Cards”.
Italy
All Italians are also required to carry identification cards, and as the U.K. government warns its citizens:
Under Italian law, police can stop you at any time to carry out an identity check or your date of entry into the country. Carry photo ID with you at all times. The police will normally ask for your full passport if you are stopped while driving.
Spain
In that vein, His Majesty’s Government also cautions travelers to Spain that:
You must provide photo ID if asked by a police officer. This includes the Guardia Civil and national, regional and local police forces. The police have the right to hold you at a police station until they have confirmed your identity.
Ignoring direct requests of a police officer can be considered as ‘disobedience’, which is a criminal offence.
Hotels, tourist accommodation and car rental companies have a legal duty to register passport and other details of tourists who check in or collect a vehicle.
Belgium
How about Belgium, home to the European Parliament? As Will McAvoy (played by Jeff Daniels) claimed in his strained monologue explaining why “America isn’t the greatest country in the world anymore” in the HBO drama, “The Newsroom”, “Belgium! has freedom”, but the government there explains:
In Belgium, EU citizens or family members of EU citizens must at all times be able to show proof of identity and right of residence if they are: 15 years of age or over, and in a public place.
It is therefore important to keep your identity and residence documents with you at all times so that, when necessary, you can prove who you are and that you are allowed to stay in Belgium (for instance during a police check or when you board a plane).
The police can detain foreign nationals who do not hold the required identity documents or residence documents (maximum 24 hours), pending a decision by the Belgian Immigration Office. You could also be fined between EUR 26 and EUR 500. [Emphasis added.]
Stop the Facile “Nazi” Analogies
The first line in the 1942 classic Casablanca, is “May we see your papers please”, and ever since, some variation of that phrase has been a trope associated with menacing police-state bêtes noires.
Governments issue official identification documents so we can present them to government officers and officials, either when we are seeking something (benefits, information) or when officials have issues or questions and want information about who they are dealing with.
In at least five Western countries, police can request identification with less cause than they can here, especially if they believe the subject is an alien. Although our Constitution restricts such checks, none of those countries is remotely “fascist”, and their document requirements don’t make them such. Stop the facile “Nazi” analogies — misguided people may believe you, and somebody may get hurt.