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Secret Immigration Enforcement Memo Exposed

The American Civil Liberties Union today made public a previously secret legal memo it received from the Department of Justice as a result of a court order. The Department had repeatedly invoked the memo to justify a radical shift in immigration enforcement policy that has generated considerable controversy among state and local police, immigrant advocates, and others. The Justice Department refused to release it until ordered to by a federal Court of Appeals.

"Now that we've finally seen this memo, we know for a fact that it fails miserably to rationalize the Department's unwise and unlawful attempt to saddle local police with a federal immigration enforcement mission," said Omar Jadwat, a staff attorney with the ACLU's Immigrants' Rights Project.

The federal government's longstanding policy used to be that state and local police should not, and legally could not (absent special circumstances), attempt to enforce the non-criminal provisions of the immigration laws. Suddenly, in 2002, then-Attorney General John Ashcroft announced that the federal government was now asking state and local police to make certain civil immigration arrests. He pointed to a new Office of Legal Counsel (OLC) memo as legal justification.

Ashcroft's announcement caused immediate alarm in many quarters. Immigrant advocates and many law enforcement officials believe that state and local police should not engage in immigration enforcement because immigrants will be afraid to report crime or interact with the police. Further, immigration enforcement will take police resources away from important public-safety missions; state and local police, who lack specialized training, will fail to properly evaluate whether individuals are in compliance with the highly technical immigration laws, and increased racial profiling, discrimination and costly litigation will result.

Individuals interested in the issue were also puzzled because OLC memos from 1989 and 1996 had reached the opposite conclusion to the one cited by Ashcroft in 2002.

Law enforcement agencies, members of Congress and immigrant advocates promptly asked to see the new OLC memo after its existence was made public. The Department of Justice refused repeated requests to release the memo prompting the ACLU and eight other organizations to file a suit under the Freedom of Information Act, arguing that they were entitled to view the document. A federal district court agreed, ordering disclosure of the memo in a slightly redacted form. The government appealed the decision to the Second Circuit Court of Appeals, which affirmed the district court. Some three years after plaintiffs and others first requested the memo, the government released it.

The memo claims that state and local police have the "inherent authority" to enforce all federal laws, including immigration laws. The ACLU says that the legal memo is filled with legal errors and that the opinion by Jay Bybee, Assistant Attorney General:

  • Selectively reads case law in order to conclude that the federal government has not preempted local authority to enforce complicated, multi-layered immigration law;
  • Misconstrues decisions in cases where police assisted in criminal enforcement to extend them authority to enforce civil laws as well; and
  • Repeatedly ignores instances in which Congress authorized police to assist in immigration enforcement under specific situations, even when the Congressional Record reflects the fact that lawmakers intended such provisions to grant new authority that police did not already possess.

"The government has pushed forward a dangerous and unwise immigration arrest policy," said Jadwat. "It's not surprising to find that the legal justification for that policy was in fact faulty. This is a reminder that openness and full debate should be hallmarks of the policymaking process, rather than secrecy and incomplete reasoning."

Plaintiffs in the lawsuit, National Council of La Raza, et al. v. Department of Justice, were the National Council of La Raza, New York Immigration Coalition, American Immigration Lawyers Association, National Immigration Law Center, National Immigration Forum, National Immigration Project of the National Lawyers Guild, Massachusetts Immigrant and Refugee Advocacy Coalition, and National Employment Law Project, along with the ACLU.

Counsel on the case were Jadwat, Lucas Guttentag and Lee Gelernt of the ACLU's Immigrants' Rights Project; Michael Wishnie served as cooperating attorney; Chris Dunn with the New York Civil Liberties Union; Linton Joaquin with the National Immigration Law Center.

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