Can Aliens Who Are in the United States Illegally Become Cops? New Illinois Law Says, Why Not?

But the legal issues are murky

By Elizabeth Jacobs on August 4, 2023

Illinois Gov. J.B. Pritzker last week signed into law a measure to allow certain aliens to become police officers and attempted to include as eligible candidates Deferred Action for Childhood Arrival (DACA) recipients and other work-authorized classes of aliens, regardless of whether these aliens have a lawful immigration status in the United States. Astonishingly, the new Illinois law may allow aliens who are in the United States illegally to enforce the law against lawful residents, raising serious questions regarding law enforcement fairness and integrity.

The measure, titled House Bill 3751, conditions eligibility on whether the alien is authorized to work by the federal government and whether the alien is authorized under federal law to possess a firearm, despite the fact that it is typically a federal crime for aliens without a lawful immigration status (including DACA recipients) to do so. Previously, Illinois law only allowed U.S. citizens to become police officers after they met all other eligibility criteria, generally including completing two years of law enforcement studies at an accredited college or university.

Today, aliens who are in the United States illegally, however, have a handful of avenues to receive temporary work authorization in the United States. For example, deferred action is a form of prosecutorial discretion that provides aliens subject to removal from the United States with a temporary deferral of removal proceedings. Deferred action recipients, like DACA, are eligible to receive work authorization if they submit an application demonstrating economic need.

Inadmissible aliens who have crossed the Southern border illegally and made an asylum claim are likewise eligible to receive work authorization under federal law after their application has been pending for at least 180 days. Given the extreme backlog in the asylum system, which now stands at approximately 1.6 million cases, asylum applicants are nearly guaranteed eligibility to apply for work authorization and may remain in the United States without a lawful immigration status for many years before they receive a final decision on their claim.

That is, if they are not paroled into the United States first. In recent years, the Biden administration has transitioned away from using expedited removal procedures to process migrants who submit asylum claims in favor of instead paroling such applicants out of mandatory detention or directly into the United States via one of the administration’s new parole programs. But even inadmissible aliens who have received parole (even after crossing the border illegally) are eligible to apply for work authorization.

An alien who is granted parole, however, has not been lawfully “admitted” to the United States, and therefore — as a legal matter — remains stuck in the same immigration status (none) that the alien possessed when the parole was granted. The Biden administration has reportedly paroled more than 1.4 million inadmissible aliens into the United States using these programs.

(It is worth noting that neither parole nor deferred action provide any legal right to remain in the United States and may be revoked at any time by the DHS, at its discretion. It is additionally worth noting that illegal entry is both a civil violation (subjecting the offender to removal from the United States) and a criminal offense, punishable as a misdemeanor for the first offense, carrying a sentence of up to six months and a fine, and a felony for subsequent offences, subject to up to two years’ imprisonment and a fine, under section 275 of the INA.)

Finally, federal law under 18 U.S.C. § 922(g)(5)(A) makes it unlawful for anyone "illegally or unlawfully in the United States" to possess a firearm or ammunition. Courts have determined that DACA recipients, while perhaps “lawfully present” for certain purposes, are nevertheless “illegally or unlawfully in the United States”, for purposes of this statute, such that they are ineligible to possess or carry a firearm. “Lawful presence” is a “specialized term of art” that is distinct from lawful status and is context dependent.

Federal law, however, also contains an exception at 18 U.S.C. § 925(a)(1) that declares that the prohibition to firearm possession does “not apply with respect to ... any firearm or ammunitions imported for, sold or shipped to, or issued for the use of ... any State or any department, agency, or political subdivision thereof”. Accordingly, state law enforcement agencies are not bound by 18 U.S.C. § 922(g)(5). However, whether DACA recipients and parolees (or other aliens who lack a lawful immigration status) woiuld be eligible to serve as Illinois police is debatable, given the way House Bill 3751 is drafted.

That’s because courts have already concluded that DACA recipients are not authorized to possess or carry firearms under 18 U.S.C. § 922(g)(5) as a general matter, and House Bill 3751 makes such federal authorization a preliminary requirement for eligibility. For example, in United States v. Lopez, 929 F.3d 783, 786-87 (6th Cir. 2019), the court distinguished 18 U.S.C. § 922 from 8 U.S.C. § 1611(b)(2-4), which governs public benefits eligibility for individuals who are “lawfully present”, and 8 U.S.C. § 1182(a)(9)(B)(ii), which governs “unlawful presence” for inadmissibility purposes after the court determined that “lawful presence” may be interpreted differently depending on the statutory context. Additionally, in United States v. Arrieta, 862 F.3d 512, 515-16 (5th Cir. 2017), the court held that because DACA does not confer a legal immigration status to its recipients, it likewise does not change their status for purposes of application of section 922(g)(5). Similarly situated aliens (such as parolees or asylum applicants who also lack a lawful immigration status) would likely be treated the same by a court.

All of that is to say that if the federal prohibitions on possessing a firearm (including 18 U.S.C. § 922(g)(5)) do not apply to state law enforcement agencies, then the provision conditioning police eligibility to illegal aliens who are “authorized” is superfluous. A basic principle of statutory interpretation is that courts should “give effect, if possible, to every clause and word of a statute, avoiding ... any construction which implies that the legislature was ignorant of the meaning of the language it employed”. Another way to say that is to interpret statutes, “so as to avoid rendering superfluous” any language.

Regardless of the messy legal issues at hand, the new Illinois law was clearly passed to at least message a disregard for the validity of U.S. immigration law. Allowing aliens who are removable from the United States on account of their unlawful immigration status to hold law enforcement positions that will require them to enforce other federal, state, and local laws should be concerning to any American who values the rule of law.