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ACLU-NJ Urges AG to Revisit Flawed Directive

Comments on Attorney General Directive No. 2007-3 Concerning Local Police Engagement in Immigration Law By Deborah Jacobs, ACLU-NJ Executive Director.

After months of consideration and meeting with countless interested parties - including immigrant and civil rights groups, law enforcement professionals, and advocates who work with domestic violence victims - last week New Jersey's Attorney General finally issued a long-awaited directive on the issue of what role local police can play in federal immigration enforcement. (Background at: AG's Guidance Needed On Cops and Immigrants).

In a nutshell, the directive says that local police must inquire about immigration status upon arrest of a suspect for an indictable offense, and report individuals suspected of being undocumented to Immigration and Customs Enforcement (ICE). It also says that police may not ask witnesses, victims or people seeking assistance about their status.

The directive includes strong statements about immigration enforcement being the primary duty of the federal government, about the counterproductive consequences of entangling local police in immigration enforcement, and about the state's commitment to combating racial profiling.

Nevertheless, for police professionals and community advocates alike, the directive raises more questions than it answers. The problem is what the directive doesn't say.

For example, it doesn't explicitly prohibit local police from inquiring about immigration status prior to arresting an individual. This omission gets to the heart of the concerns of law enforcement professionals who have spoken out against local police engaging in immigration enforcement: acting as immigration enforcers makes it more difficult for police to serve and protect their communities. The Major Cities Chiefs Association expressed this sentiment in a 2006 report, stating that, "Such a divide between the local police and immigrant groups would result in increased crime against immigrants and in the broader community, create a class of silent victims and eliminate the potential for assistance from immigrants in solving crimes or preventing future terroristic acts."

The directive's failure to explicitly prohibit officers from asking about immigration status prior to arrest jeopardizes trust between police and community, and consequently threatens public safety.

The directive is also inconsistent; it does not limit local police from making pre-arrest inquiries about status unless they have established a formal relationship with ICE allowing them to act as a federal immigration officer (287g status), in which case they cannot make inquiries unless and until an arrest takes place. This has inspired the Morristown mayor (whose efforts to have town police officers deputized under 287g brought this issue to the forefront), to threaten in a letter to US Attorney Chris Christie to have local police start asking for the immigration status of everyone stopped for ticketing.

Another problem is that the directive, while very specific on some details (such as the means - telephone, fax, etc. - with which reports can be transmitted to ICE), does not provide critical guidance that police need. For example, it says that police must make an inquiry about status upon arrest, but it does not provide any guidance on what that inquiry might entail - asking the individual? - document review? - database checks?

The directive further requires that police notify ICE when they have "reason to believe" that an arrested individual may be undocumented. The directive does not indicate what information should be used, or standards applied, in forming that belief. And, with no specifics on the parameters of the inquiry on which the "reason to believe" should be based, the procedure is further confused and open to abuse.

This lack of guidance increases the potential for racial profiling or discrimination. While the directive repeatedly cautions against racially motivated enforcement, by failing to elaborate on the inquiry with specific guidelines or tools, it leaves the door wide open for discriminatory assumptions based on race or ethnicity. Racism is something that each of us must fight to reject as we breathe it in the air. It functions at both the conscious and subconscious levels, and to protect against it we must have strong policies and procedures in place that will help ensure that it doesn't have a role in policing, or any other arena of government, business or public life.

The directive boasts that "New Jersey has taken a leadership position in eliminating racially-influenced policing, or racial profiling." This is hardly the case; most actions that the state has taken have been forced upon it, such as the public demanding hearings, or the federal government requiring a consent decree. This directive, unless amended, represents perpetuation of the "more talk than walk" that New Jersey has demonstrated again and again when it comes to reforming police practices related to racial profiling.

Finally, even the section of the directive that seeks to protect witnesses and victims raises issues. In many incidents and disputes, including domestic violence situations, it's not always clear who is the victim and who is the perpetrator, potentially leaving police unable to comply with the directive.

The directive falls short of what New Jersey police departments need to guide policies and practices on involvement with questions of immigration status. Rather than providing sound and clear policies that would spare hundreds New Jersey towns and cities from the battling these issues out on the ground, this directive muddies the water by offering incomplete and inconsistent guidance. Before this issue further inflames towns like Morristown and cities like Newark, the AG should revise her first directive to make it right.

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