Abstract
While much of the literature on immigration enforcement is focused on the border and the worksite, city streets have increasingly become an important site for immigration enforcement, and the policing of immigrants’ mobility has expanded a great deal. Over the last decade, driving (or being driven) has become an increasingly risky activity with a higher probability of deportation for unlawfully present immigrants. Traffic enforcement has come to play a more prominent role in immigration enforcement throughout the interior of the USA, particularly with the expansion of the Secure Communities program and restrictions on immigrant access to driver’s licenses. While unauthorized immigrants could already be deported for an immigration violation, the fact that they can be arrested and convicted of driving without a license exposes them to law enforcement in a way that they had not been previously. This shift can potentially result in a deterioration of community policing, reallocation of resources from criminal investigations to immigration enforcement, and greater potential for civil rights violations. In this chapter, I track the development of state driver’s license laws and the relationship between traffic enforcement and immigration enforcement. I conclude that, while driver’s license policies and state/local police policies advanced along parallel paths throughout the late 1990s and early 2000s, national security concerns and anti-immigrant sentiment following the terrorist attacks of 9/11 allowed both policies to develop quickly and expansively. The convergence of these two separate but related policies has resulted in traffic violations constituting a key element of immigration enforcement in the interior of the USA.
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Notes
- 1.
In FY2011, DHS “returned” 323,542 noncitizens from the country. A “removal” describes a departure based on an order of removal, which can be issued by an immigration judge or federal immigration officer. A “return” describes a departure not based on an order of removal. In recent years the number of removals has steadily increased, and the number of returns has drastically fallen (DHS Office of Immigration Statistics, 2012). The difference is significant. Noncitizens removed from the U.S. face greater obstacles to obtaining a visa in the future and face harsher penalties for illegally reentering the country than those who are returned.
- 2.
ICE defines “criminal aliens” as “immigrants who have been convicted of a crime by a court of law, and ‘criminal convictions’ include everything from convictions for murder or rape to criminal traffic convictions. This conviction may occur in the United States or overseas, provided that the overseas conviction is one that is recognized in the United States.” See “Secure Communities Frequently Asked Questions, Addendum to Governor Notifications,” available at http://www.ilw.com/immigrationdaily/news/2011,0808-securecommunitiesfaq.pdf.
- 3.
In addition to raising civil rights concerns, this practice has the impact of filling local jails with minor offenders, at the expense of local taxpayers. It also puts ICE in a position of taking enforcement action against immigrants who are not serious criminals, pose no threat to the community, and do not fall high within ICE’s enforcement priorities (See Waslin, 2011). In other words, ICE spends scarce resources detaining, transporting, and deporting low priority, noncriminal immigrants encountered because they were driving without a license rather than focusing resources on its own stated priorities.
- 4.
SB976 passed in 1993 adding sections 12801.5 and 14610.7 to the California Vehicle Code.
- 5.
Colorado 42-2-104.
- 6.
Arizona 28-3153, 3158.
- 7.
See analysis of SB 976, retrieved from http://www.leginfo.ca.gov/pub/93-94/bill/sen/sb_0951-1000/sb_976_cfa_930907_033543_sen_floor.
- 8.
See testimony from House Committee on Government Reform and Oversight, Subcommittee on National Economic Growth, Natural Resources, and Regulatory Affairs hearing, September 17, 1998.
- 9.
Intelligence Reform and Terrorism Prevention Act of 2004, P.L. 108-408 at § 7212(b)(3)(B).
- 10.
Pub. L. 109-13, 119 Stat. 302 enacted May 11, 2005. The bill was attached it as a rider on a military spending bill, H.R. 1268, the Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Tsunami Relief, 2005. The House of Representatives passed that spending bill with the Real ID rider 368–58, and the Senate passed the joint House-Senate conference report on that bill 100–0.
- 11.
The date has subsequently been pushed back multiple times, and in 2011 the Department of Homeland Security (DHS) announced that they had extended the date by which all states must be in full compliance until January 2013.
- 12.
8 U.S.C. sec. 1357(a).
- 13.
- 14.
Prior to 1996, immigration records were not included. In 1974 the INS determined that local police do not have the authority to arrest a person subject to an administrative warrant of deportation, and thus the FBI could not enter civil immigration records into the NCIC. The 1989 and 1996 OLC opinions again advised the FBI that administrative warrants of deportation do not indicate violations of criminal law, reflecting a policy that distinguished between criminal and civil immigration law to delineate the role of state/local and federal authority.
- 15.
Several days later the issue was further muddled when, on June 24, 2002, the then White House Counsel Alberto Gonzales released a letter stating that “state and local police have inherent authority to arrest and detain persons who are in violation of immigration laws and whose names have been placed in the National Crime Information Center (NCIC)” (emphasis in the original). While Gonzales’s interpretation of the law was narrower in scope than Ashcroft’s more sweeping statement about “inherent authority,” the intention to use NCIC for immigration violations was clear.
- 16.
A lawsuit challenging DOJ’s ability to expand the categories of immigration violations included in the NCIC was filed, but ultimately dismissed. See Nat'l Council of La Raza v. Mukasey, 283 Fed. Appx. 848 (2d Cir. 2008). Plaintiffs argued that Congress did not authorize the entry of noncriminal, administrative immigration information into the NCIC, and that this misuse of the NCIC database continues to cause state and local police to make federal immigration arrests that Congress has prohibited. The case was dismissed by the Second Circuit in October 2005 because they did not have standing. In March 2003, the DOJ exempted the NCIC database from Privacy Act standards, meaning that NCIC records no longer were required to be “accurate, timely, and reliable.” This was particularly troublesome given the very high error rates contained in immigration files (Gladstein, Lai, Wagner, & Wishnie, 2005). The decision signaled that DOJ was willing to input potentially inaccurate immigration data into the NCIC knowingly.
- 17.
According to the FBI, “a positive response from NCIC is not probable cause for an officer to take action. NCIC policy requires the inquiring agency to make contact with the entering agency to verify the information is accurate and up-to-date. Once the record is confirmed, the inquiring agency may take action to arrest a fugitive, return a missing person, charge a subject with violation of a protection order, or recover stolen property.” http://www.fbi.gov/about-us/cjis/ncic.
- 18.
108th Congress, S. 1906, section 201.
- 19.
Fingerprints are checked against the US Visitor and Immigrant Status Indicator Technology Program (US-VISIT) and the Automated Biometric Identification System (IDENT).
- 20.
Note that Secure Communities does not issue the detainer. Secure Communities is a technology that identifies the individual. Other ICE officers must then take over the removal process after the identification is made.
- 21.
California vehicle code, Section 14607.6(b).
- 22.
Escondido entered into a collaboration with ICE called “Operation Joint Effort” which stationed ICE agents in the Escondido Police Department.
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Waslin, M.L. (2013). Driving While Immigrant: Driver’s License Policy and Immigration Enforcement. In: Brotherton, D., Stageman, D., Leyro, S. (eds) Outside Justice. Springer, New York, NY. https://doi.org/10.1007/978-1-4614-6648-2_1
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