CLEAR Act Will Muddy Relationships Between Police And Immigrants

In yet another ill-conceived power and resource grab, members of Congress recently introduced the Clear Law Enforcement for Criminal Alien Removal Act (CLEAR) Act (H.R. 2671), a proposal mandating that state and local governments take on immigration enforcement as part of their duties. While its sponsors promote the CLEAR Act as a security measure to keep our country safer, it will likely produce the exact opposite result.

The CLEAR Act offers some financial incentives for cooperation, and includes penalties for non-compliance. The bill also increases penalties for immigration violations and criminalizes violations of civil immigration law. It also provides law enforcement officers with broad immunity from personal liability for acts committed while enforcing the law.

Certainly, the safety and security of our communities and country are of utmost importance. However, when considering the CLEAR Act or any similar initiatives calling for cooperation between local police and immigration officials, it is important that we ask, at minimum, three key questions. Is the proposed measure necessary? Will it be effective? And, what are its costs? The CLEAR Act fails on all three counts.

First, the CLEAR Act is unnecessary. Its supporters suggest that under current laws immigrants are not held accountable for crimes they commit. Nothing could be farther from the truth. Police officers have the right and duty to enforce criminal laws against anyone who violates them, regardless of immigration status. In reality, non-citizens who commit crimes pay dearly for their crimes, receiving both prison sentences and deportation. Furthermore, mechanisms already exist within current law to foster cooperation between local law enforcement and federal immigration agents, when necessary. The federal government can enter into Memorandums of Understanding (MOU) with states and localities, conferring civil immigration law enforcement powers on the local officials.

Second, measures such as those included in the CLEAR Act will likely undermine terrorism and other criminal investigations by striking a direct blow at the efforts of police to win the trust and confidence of the communities they serve. National security experts and state and local law enforcement officials agree that good intelligence and strong relationships are the keys to keeping our nation and streets safe.

While it would turn local police into immigration agents, the CLEAR Act would simultaneously increase the penalties for immigration violations and make violations of immigration law, currently a civil offense, into a criminal one. Consequently, a student here on a student visa who drops a class because of personal or academic reasons would no longer be guilty of a technical or administrative immigration status violation, but rather a "criminal" offense. The bill also calls for including the names of all immigration status violators into the National Crime Information Center ("NCIC") database.

These combined measures will ensure that more immigrants will avoid contact with local law enforcement, putting entire communities at risk. For instance, immigrant victims of crime will hesitate to report the crimes to the police if they fear adverse immigration consequences from their contact with the officials. Even now, criminals often target immigrants for victimization because they know immigrants are reluctant to report the crimes. Meanwhile, the perpetrators go undetected and continue their criminal activities. Moreover, under these proposed CLEAR Act provisions, immigrants who could offer useful information to security investigators will be even less inclined to come forward, for fear of personal immigration consequences. In other words, the CLEAR Act ignores the benefits of community policing in favor of a "police state" for immigrants, a shift that will jeopardize the safety of us all.

The CLEAR Act also changes the priorities of law enforcement agencies throughout the government. It undermines public safety at the local level by shifting the focus of law enforcement officials away from fighting crime and towards enforcing federal immigration law. At the national level, the Act forces the federal immigration system to treat all immigration law violators as if they had committed criminal offenses. With millions of immigrants in the United States but likely only a handful of terrorists, it doesn't make sense for law enforcement efforts to be diverted and diffused in this way.

Third, we must consider the financial implications of the CLEAR Act. With only minimum compensatory measures, the CLEAR Act piles more responsibilities onto already overburdened state and local police departments and requires them to become familiar with very complicated and rapidly changing federal immigration law. For example, there are over 40 different visa categories, congress periodically creates new categories, and existing visas are subject to frequent changes and amendments. For local police to keep up with immigration law would require extensive training. The CLEAR Act also coerces burdens already hard-pressed state and local governments into participating in burdensome new reporting and custody requirements, because failure to do so would cost them increasingly scarce federal dollars.

Finally, we must take into account the CLEAR Act's other costs to society. It opens the door to possible abuse and potential civil rights violations, because it forgets an important fact: in today's America, you cannot tell by looks alone who is a citizen and who is not. There are millions of naturalized U.S. citizens in this country. In this free nation, U.S. citizens are not required to carry "papers" that prove citizenship status, and few do. Laws like the CLEAR Act encourage law enforcement officials to rely on factors such as appearance, ethnic backgrounds, skin color, and language or accents to determine who may or may not be an "immigration status violator." We know from experience that this will lead to the detention or questioning of many U.S. citizens. On a number of previous occasions, attempts by local police departments to cooperate with INS officers resulted in the violation of the civil rights of U.S. citizens and lawful permanent residents, resulting in class-action suits and findings of liability. In a disturbing acknowledgement of such likely consequences, the CLEAR Act grants civil immunity from lawsuits to officers who enforce immigration laws. This would set back the U.S. civil rights movement back by decades, and would reinvigorate the practice of racial profiling by law enforcement officials, a blight on our society just beginning to be addressed.

Undoubtedly, one of the great challenges we face as a nation in the post September 11 era is achieving a balance between security and liberty. The CLEAR Act does not help us achieve that balance. It is the latest in a series of measures directed against immigrants by anti-immigration forces who are exploiting the tragedy of September 11 to advance their own agenda. Their actions dishonor the memory of the many immigrants, as well as U.S. citizens, who perished in those attacks.

-By Parastou Hassouri ACLU-NJ Immigrant Rights Specialist

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