Legal scholars express concerns over legislation allowing illegal immigrants to become law enforcement officers.
Loophole in Immigration Law Allows Illegal Aliens to Become Law Enforcement Officers
Through the convoluted labyrinth of immigration law, a loophole has been carved out for the passage of illegal aliens to be deputized as law enforcement.
This new development, according to legal scholars observing several laws being passed to facilitate the process, should be concerning to the public.
“This is the next step in the defund the police movement,” Matt O’Brien—director of investigations at the Immigration Reform Law Institute and co-host of the podcast “No Border, No Country”—told The Epoch Times. “Obviously, the defund the police movement was an absurd notion because I don’t think any of us can conceive of living in safe communities unless there’s law enforcement, so I think this is motivated by political opportunists who are for open borders with an ideological dislike of law enforcement taking the opportunity to reap the rewards of the defund the police movement.”
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In July, Illinois Gov. J.B. Pritzker, a Democrat, signed House Bill 3751, which allows individuals “against whom immigration action has been deferred by the U.S. Citizenship and Immigration Services (USCIS) under the federal Deferred Action for Childhood Arrivals (DACA) process” to apply for law enforcement positions such as a police officer and deputy sheriff.
Comparable legislation has passed in the blue states of California and Colorado.
While this state legislation may not conflict with federal laws, it does raise several ethical problems, according to Mr. O’Brien.
“There’s nothing specifically in federal legislation that prohibits people who are not yet citizens from becoming police officers,” Mr. O’Brien said. “However, there is a Supreme Court case holding that states can prohibit people from becoming police officers when they are not yet citizens because there is an essential government function being carried out when a police officer is entrusted to make snap decisions about the law such as the use of force that have a significant impact on people’s constitutional rights.”
Foley v. Connelie
In the 1978 Foley v. Connelie ruling, the Supreme Court stated, “In short, it would be as anomalous to conclude that citizens may be subjected to the broad discretionary powers of noncitizen police officers as it would be to say judicial officers and jurors with power to judge citizens can be aliens. It is not surprising, therefore, that most States expressly confine the employment of police officers to citizens, whom the State may reasonably presume to be more familiar with and sympathetic to American traditions.”
The case centered around plaintiff Edmund Foley, an Irish citizen in New York who was admitted into the U.S. as a permanent resident.
He had applied for the position of New York state trooper but was refused because he was not a citizen. State law “clearly excludes aliens from employment as state troopers, and the State admittedly adheres strictly to its mandate,” according to the complaint.
Foley then brought a class action lawsuit against the state, arguing that the exclusion of aliens from employment for the state troopers violates the equal protection clause of the Fourteenth Amendment.
The defendant in the case was New York State Police Superintendent William Connelie.
“After that case, most states took the approach that people who were green-card holders and who had made a declaration of intent to become U.S. citizens as soon as they were eligible could be hired as a police officer,” Mr. O’Brien said. “So, historically, this hasn’t been an issue, and to the extent that it applies to people who have permanent authorization to reside here and are going to naturalize, it’s not a big problem.”
The Limbo Status of a Parolee
However, Mr. O’Brien said, what the new laws do is allow people who have been paroled into the United States and those who have been granted deferred action through DACA to be eligible candidates for law enforcement with the “very weak” modifying proviso at the end of the legislation stating that they must otherwise qualify to become a police officer and to use a firearm.
“From the standpoint of people who are paroled into the United States, the term is a legal fiction,” he said. “You’re actually not in the United States; you’re an applicant at the border applying for permission to come into the United States, and this doesn’t give you immigration status, but it does put you in a limbo status. As a matter of convenience to the government, you can be given a work authorization to be allowed to do certain things.”
As a result of its legal ambiguities, this allowance for parolees to become police officers has been difficult to decipher, Mr. O’Brien said.
According to Elizabeth Jacobs, the director of Regulatory Affairs and Policy for the Center for Immigration Studies, illegal aliens have many ways in which they can get temporary work authorization, such as presenting a case for 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,” Ms. Jacobs said in her writing on the issue. “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’s if they aren’t first paroled into the U.S., she said.
“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,” she said. “But even inadmissible aliens who have received parole (even after crossing the border illegally) are eligible to apply for work authorization.”
Still, she said, these inadmissible aliens—1.4 million of whom have been granted parole by the Biden administration, remain in what O’Brien described as “limbo status.”
“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,” she writes. “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.”
Ethical Dilemmas
On DACA, many advocates have the misunderstanding that people who receive deferred action are protected from removal from the United States, O’Brien said.
“That’s incorrect,” he said. “It says on the USCIS website that DACA is deferred action, and deferred action is defined in case law as a form of prosecutorial discretion that enables the federal government, for matters of its own convenience, to defer the removal of someone who has come forward and admitted that they … never had any immigration status or that they no longer have it because they violated the terms of the status.”
To obtain deferred action, one must acknowledge that they don’t have an immigration status and are subject to removal, Mr. O’Brien explained.
This creates several noteworthy ethical dilemmas.
“The first of which is, how do you have people who have violated the law come into the United States without authorization enforcing the law against U.S. citizens?”
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