Thank you for the invitation to speak to the U.S. Commission on Civil Rights.
State and local cooperation with federal authorities is an essential part of immigration enforcement overall. There are close to 700,000 law enforcement officers of various kinds at the state and local level, and the protection of America's sovereignty and security through enforcement of immigration law is not possible without their serving as a force-multiplier for federal authorities.
The importance of the role of local law enforcement has been underlined many times. Especially notable have been traffic stops by police, the focus of most of the hysteria from opponents of immigration law enforcement. Mohammed Atta was stopped and ticketed for driving without a license months before the 9/11 attacks, and co-conspirator Ziad Jarrah was stopped and ticketed two days before the attacks; if the federal government had been able to track visa overstayers, their previous visa violations could have resulted in their detention and perhaps even averted the 9/11 attacks.1
Another lost opportunity relates to the 2007 plot by jihadi terrorists to murder American soldiers at Ft. Dix. Three of the plotters were illegal aliens and they had dozens of encounters with local police in New Jersey, including some 75 traffic stops, about 50 traffic citations, and a number of fines for other offenses, such as drug possession and disturbing the peace. Never was there an inquiry into their immigration status. 2
More recently, and happily, the Government Accountability Office reported that in 2010 ICE arrested some 25 illegal aliens training at a Boston-area flight school, owned by another illegal alien. They had actually been approved by the Transportation Security Administration, which has authority over flight schools, but which did not check legal status. The only reason this came to light was that a local police officer pulled over the owner of the flight school for a traffic violation and determined he was an illegal alien. Thus alerted, ICE investigated further and discovered the other illegal aliens. 3
Given the importance of the state and local role in immigration enforcement, it's good to note that states have the unambiguous authority to do this. As Justice Scalia has written, "As a sovereign, Arizona has the inherent power to exclude persons from its territory, subject only to those limitations expressed in the Constitution or constitutionally imposed by Congress." Even the Obama administration, in its lawsuit against Arizona's SB 1070, conceded that "even before Section 2B [of SB 1070] was enacted, state and local officers have state-law authority to inquire of DHS about a suspect's unlawful status and otherwise cooperate with federal immigration authorities." 4
Exercising this authority, many states have passed laws related to immigration in recent years, as the federal government has failed – often intentionally refused – to enforce the nation's immigration laws. The Supreme Court last year upheld the use of E-Verify mandates by states and earlier this year upheld the core of the aforementioned SB 1070, Section 2B, requiring police to check the legal status of people encountered in lawful stops who they have reason to believe are illegal aliens. Because of these rulings, additional states are likely to attempt to step into the breach and contribute to the shared federal/state goal of protecting America's sovereignty and security.
The question before this commission is whether such laws raise civil rights concerns. I will address specifically the fear of ethnic profiling, which is core of the argument made by those who oppose immigration law enforcement. The Obama administration specifically avoided the issue in its lawsuit against Arizona, for the obvious reason that the law hadn't been implemented and thus couldn't be shown to cause such profiling. It is still too early to know for certain the effects of such laws since the high court only upheld the core of SB 1070 a few weeks ago, and other state laws remain in limbo.
It is certainly possible that such laws could have an impact on the civil rights of some Americans. Given that the overwhelming majority of illegal aliens are from Latin America (some 75-80 percent, a percentage that is even larger in most of the states which have enacted these laws), poorly drafted or poorly implemented laws might conceivably lead to American citizens of similar backgrounds receiving unwarranted attention from the authorities.
And it is likely that there will be some individual instances of unlawful profiling – we are, after all, fallen creatures. But the anti-enforcement faction contends that ethnic profiling is inherent in such initiatives; in other words, that all Arizona police officers and sheriff's deputies, for instance, will intentionally engage in systemic lawbreaking despite SB 1070's explicit requirement that officers "may not consider race, color or national origin . . . except to the extent permitted by the United States [and] Arizona Constitution[s]" and despite the training provided by the Arizona Peace Officer Standards and Training Board.
As ridiculous as this contention is, we don't have to just wait and see how it will turn out. There have been federal-local cooperative programs for many years now, such as 287(g) and Secure Communities, and we have no substantiated cases of ethnic profiling. In fact, we have extensive evidence from such efforts which demonstrate that profiling has not been a problem and that our law enforcement officers are professionals, rather than the reckless outlaws the opponents of immigration enforcement imagine them to be.
For instance, the Center for Immigration Studies Director of Research, Steven Camarota, conducted a Hispanic surname analysis of traffic stops conducted by the Maricopa, Ariz., County Sheriff's Office (MCSO) from 2005-2009. This was a time when there was active cooperation with federal immigration authorities, and if ethnic profiling had been widespread, the share of Hispanics among those stopped by sheriff's deputies would have been much greater than their share of the county's population.
On the contrary, Camarota found that "About one-third of stops are of individuals with a Hispanic last name, which closely matches their share of the county and state populations. Analysis at the sub-county level also tends to shows stops in proportion to local population shares." What's more, this period was the peak of the unprecedented influx of illegal aliens into Arizona and yet Camarota found that "despite a significant increase in concern over illegal immigration in recent years in the county and state, there was no increase in the Hispanic share of those stopped by MCSO between 2005 and 2009."
He concludes, "Overall, the surname analysis shows Hispanics are being stopped at a rate that reflects their share of the population."
Another analysis of local law enforcement's partnership with federal immigration authorities also suggests that the claims of ethnic profiling are false. Ironically, the report purports to offer evidence that such profiling is taking place. The paper, "Secure Communities by the Numbers: An Analysis of Demographics and Due Process," was published by the Earl Warren Institute on Law and Social Policy at the University of California, Berkeley, Law School. The report analyzed 16 months' worth of data from the Secure Communities program, which checks the fingerprints of suspects arrested by local police against Department of Homeland Security databases. 5
The Warren Institute report included the following related to profiling:
Our analysis … raises serious concerns about the level of screening and potential targeting of certain social groups … . Latinos comprise 93 percent of individuals arrested through Secure Communities though they only comprise 77 percent of the undocumented population in the United States … . Community and advocacy groups have also asserted that Secure Communities is, in some jurisdictions, masking local law enforcement agencies' practice of racial profiling.
But as Jessica Vaughan and W.D. Reasoner demonstrate in a critical analysis, the authors of the Warren Institute report made serious errors that completely vitiate their claims. To quote from the Vaughan/Reasoner critique:
The Warren Institute authors compared their calculation that 93 percent of arrested aliens in the dataset were Latino to the Latino share of the national illegal alien population of 77 percent, presenting this as evidence of ethnic bias in the operation of Secure Communities. This is a mistake because 81 percent of cases in their database are drawn from just three southwest border states (Arizona, Texas, and California). These states, according to DHS, have only 45 percent of the illegal population. More importantly, illegal aliens in these three states are disproportionately Latino. For example, it is estimated that 94 percent of illegal aliens in Arizona are from Mexico, whereas 62 percent of all illegal aliens are estimated to be Mexican.
They add that "The presumed ethnic profile of the cases in this database (based on country of nationality) very closely matches the ethnic profile of the population of criminal aliens nationwide and also in the states where most of the SC [Secure Communities] arrests took place." Again, systematic ethnic profiling by local officers would, by definition, result in a higher share of Hispanics among those arrested and checked by Secure Communities. This has not happened.
An evaluation of the immigration enforcement initiative in Prince William County, Va., came to the same conclusion: "We found no evidence of overzealous or inappropriate immigration enforcement actions by police. The flood of costly racial-profiling litigation that some had feared – under both the original and the current policy – never materialized." 6
A degree of concern over profiling is natural among the minority of Americans who share the ethnic background of the overwhelming majority of illegal aliens. But the record of law enforcement has been very encouraging – even-handed, professional enforcement of the law, at the local, state, and federal levels. This record, combined with the essential role of state and local authorities in the enforcement of the nation's immigration laws, means we should applaud state and local initiatives such as those in Arizona, Alabama, Indiana, and elsewhere, and hope for more.
2 See "Fort Dix Fix: Immigration Policy in Wartime", http://www.nationalreview.com/articles/221094/fort-dix-fix/mark-krikorian, and "Dukas' neighbors filed many complaints", The Philadelphia Inquirer, May 28, 2007.
4 See Arizona v. United States documents, http://www.scotusblog.com/case-files/cases/arizona-v-united-states/.