quiz 38 Qs
Jude55
THEENFORCEMENTOFIMMIGRATIONLAWBYPOLICEandSTRIKINGABALANCELecture.pptxCHAPTER 3 THE ENFORCEMENT OF IMMIGRATION LAW BY POLICE
Build that Wall
Post 9/11
Growing concern over immigration
Immigration is a federal issue
Section 287(g)
Of the Immigration and Nationality Act (INA) states that the police possess an inherent authority to arrest illegal aliens who have violated criminal statutes.
Not the basis for initial arrest.
Arizona
Controversial Approval (Show me your papers).
What issue can stopping and questioning potential immigrations upon a reasonable suspicion create?
Reasonable Suspicion vs Probable Cause
Reasonable suspicion – Terry v. Ohio
less than probably cause
Unparticularized suspicion or hunch
Proof must be developed from “specific and articulable facts, taken together with rational inferences from those facts.”
Probable cause – is a burden of proof that exists when a crime has been committed and knowledge of facts and circumstances known to the officer would lead a prudent individual conclude that a suspect has committed, is committing, or will commit a crime.
Gonzales v. City of Peoria United States Court of Appeals for the Ninth Circuit 722 F.2d 468 (1983)
Gonzalez and ten other people of Mexican descent (plaintiffs) sued the City of Peoria, Arizona and some of its police officers and public officials for unlawful arrests and detentions in violation of the Fourth and Fourteenth amendments to the United States Constitution and the Civil Rights Act of 1871.
The plaintiffs claim that the city adopted policies which encouraged police officers to detain people of Mexican descent solely based on their appearance.
People who did not have valid immigration documentation or identification were released to immigration authorities.
The plaintiffs also claim that under the doctrine of preemption state and local police officers are precluded from enforcing immigration laws. The Court of Appeals for the Ninth Circuit reviewed the case on the government’s appeal.
Are the police trained properly?
Community Policing
Will this get the police to know the people in the community (those who obey the law and those who don’t).
Victims will be comfortable reporting crimes.
Positive relationships with immigrant communities are important (is it just for homeland security and stopping terrorism?)
Racial Profiling
Mexicans make up about half of all unauthorized immigrants (49%) and the numbers have been decreasing in recent years.
Estimated 66% of meat and poultry industry workers are undocumented.
Avoid Police
Most likely to try to avoid any contact with police.
Create a class of silent victims.
Striking a Balance between Liberty & Security
The Debate over American Counterterrorism Policies Since 9/11
Violation of Civil Liberties
9/11 made the US revisit the possibilities of violating civil liberties
Red Scare (1919)
McCarthy era (1950s)
Rush
After 9/11 then the Madrid Bombings in Spain (2004) and the UK (2005), a rush towards anti-radicalization strategies based on profiling and other controversial measures.
Adoption of many inappropriate laws unrelated to terrorism.
National Security Entry-Exit Registration System (NSEERS)
The most controversial of these programs was the National Security Entry-Exit Registration System (NSEERS). Additionally, an expanded definition of “terrorist activity,” as well as naturalization delays, has beleaguered foreign nationals since 9/11.
Instituted in 2002 by the Department of Justice, NSEERS operated as a tracking program that set forth registration requirements for noncitizen males 16 years and older—specifically, those who were nonimmigrants, such as visitors, students, green card holders, and asylum/refugee status seekers.
Yet, not everyone was required to meet these requirements. They only applied to individuals from 25 countries: Afghanistan, Algeria, Bahrain, Bangladesh, Egypt, Eritrea, Indonesia, Iran, Iraq, Jordan, Kuwait, Lebanon, Libya, Morocco, North Korea, Oman, Pakistan, Qatar, Saudi Arabia, Somalia, Sudan, Syria, Tunisia, United Arab Emirates, and Yemen.
Men from these countries were required to register with immigration authorities and upon entry into and exit from the United States at ports of entry.
As a result of the NSEERS program, media reports recounted that nearly 83,000 men registered with immigration authorities and that more than 13,000 were placed into deportation proceedings.
In April 2011, DHS released a rule removing the list of countries whose nationals were subject to NSEERS.
Real ID Act (2005)
Another controversial change to the immigration laws is the expansion of the inadmissibility (exclusion) grounds relating to terrorist activity. These grounds are applied whenever a noncitizen applies for a green card or asylum and affect a significant portion of the population.
With the passage of the USA PATRIOT Act in 2001 and the REAL ID Act in 2005, the terrorism-related inadmissibility grounds were expanded significantly. Under current law, the phrase “engaged in terrorist activity” has been defined to include the provision of “material support, including a safe house, transportation, communications, funds . . . or other material financial benefit . . . for the commission of a terrorist activity, or to a terrorist organization.”
A handful of court cases applied a plain-language reading of the law, denying relief to worthy noncitizens.
Since 2007 DHS has issued a series of memos, carving out situations where the material support clause may be waived.
Many asylum seekers and applicants for permanent residence are now stuck as DHS determines how broadly to interpret the terrorism exclusion grounds.
The USA PATRIOT Act
Pros and Cons
PROS
The act improves the counter- terrorism effort in several significant ways:
The patriot act allows investigators to use the tools that were already avaliable to investigate organized crime and drug trafficking.
Allows law enforcement to use surveillance against more crimes of terror.
Allows federal agents to follow sophisticated terrorist trained to evade detection
PROS
Allows law enforcement to conduct investigations without tipping off terrorists.
Allows federal agents to ask a court an order to obtain business records in national security terrorism cases.
The Patriot Act update the law to reflect new technologies and new threats.
Allows law enforcement officials to obtain a search warrant anywhere a terrorist-related activity ocurred.
Allows victims of computer hacking to request law enforcement assitance monitoring the “trespassers” on their computers.
PROS
The Patriot Act increased the penalties for those who commit terrorist crimes, so the Patriot Acts:
Prohibits the harboring of terrorists.
Enhanced the inadequate maxium penalties for various crimes likely to be commited by terrorists.
Enhanced a number of conspiracy penalties.
PROS
In this context, some texts are in favour of “The Patriot act”, for instance:
(…) the authorities of the Patriot Act exist to protect the very liberties that our Founders established in the Constitution. By protecting our freedoms, our civil liberties are enhanced, not diminished.
Tom Ridge, J.D., former Homeland Security Secretary, in his July 15, 2004 speech “Prepared Remarks at the Allegheny County Emergency Operations Center”.
CONS
Unconstitutional: constitutional freedoms are in danger.
Danger to individual rights.
Is a threat against freedom of expression.
Examples:
Distress signal at Grinnell.
Peace offense in New York.
Full exposure in Florida.
28
28
CONS
USA PATRIOT Act gives the Attorney General and federal law enforcement unnecessary and permanent new powers to violate civil liberties that go far beyond the stated goal of fighting international terrorism.
The American Civil Liberties Union’s (ACLU) wrote in their Oct.23, 2001 “Letter to the Senate Urging Rejection on the Final Version of the USA PATRIOT Act”.
GEORGE W. BUSH AND THE MILITARY TRIBUNALS
Days after the 9/11 attacks, President Bush demanded that the Taliban government in Afghanistan turn over Osama Bin Laden and shut down Al-Qaeda training camps. When the Taliban refused, Bush ordered strikes on the country.
After hundreds of enemy combatants were captured on the battlefield in Afghanistan, in the U.S., and around the world, the question of how detainees in the War on Terror should be treated became problematic.
Were accused terrorists criminals, or were they illegal combatants (aggressors guilty of breaking laws of war)?
Bush’s answer to that question—that they were illegal combatants not entitled to due process protections of U.S. law, but who should be subject to Military Tribunals—became harder and harder to justify to the American people as time went on.
Bush identified Osama Bin Laden as the “prime suspect” in the attacks. The US demanded that the Taliban deliver Bin Laden and other Al Qaeda leaders to the US, and shut down the numerous Al Qaeda training camps in the country.
The Taliban refused. The U.S. began bombing Afghanistan on October 7, 2001.
Two months later, President Bush approved the use of Military Tribunals to try accused terrorists, including many individuals captured in Afghanistan.
Bush said that the Tribunals were needed to “to protect the United States and its citizens, and for the effective conduct of military operations and prevention of terrorist attacks.” A detention camp was set up at the US Naval base in Guantanamo Bay, Cuba.
Military Tribunals have been a part of every war in U.S. history through World War II. During World War II, the Supreme Court unanimously upheld their use for unlawful combatants, even when the accused were US citizens.
At the time Bush was President, no President had ever asserted that the U.S. government should have to extend Bill of Rights protections to people who are not citizens of the United States and who are accused of making war against the US.
A little over a month after the first prisoners arrived at Guantanamo Bay, the first habeas corpus petition (a petition challenging detention) was filed. That case was dismissed. More petitions followed and were also dismissed. But in the years that followed, public unease with the indefinite detention of suspected terrorists at Guantanamo Bay grew.
Inspectors at Guantanamo Bay reported ill prisoner treatment. The U.S. Supreme Court stopped dismissing habeas corpus petitions and progressively expanded the rights afforded to detainees at the camp.
In 2004, the Supreme Court held in Hamdi v. Rumsfeld that habeas corpus did not depend on citizenship status.
The President responded by convincing the Republican-led Congress to pass the Military Commissions Act of 2006, which addressed wartime conditions when habeas corpus did not apply to alien enemy combatants.
The Question of Torture
