A loophole appears to have been carved out amid the convoluted labyrinth of immigration law that would permit illegal aliens to be deputized for roles in law enforcement.
This development, according to legal scholars who are observing the approval of 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.”
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 police officer and deputy sheriff.
Comparable legislation has been approved 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.
Foley v. Connelie
In its 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 United States as a permanent resident.
He had applied for the position of New York state trooper but was refused because he wasn’t 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 14th 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, what the new laws do is allow people who’ve been paroled into the United States and those who’ve been granted deferred action through DACA to be eligible candidates for law enforcement, Mr. O’Brien said, 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.
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 Mr. 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,” Ms. Jacobs wrote. “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
Regarding DACA, many advocates have the misunderstanding that people who receive deferred action are protected from removal from the United States, Mr. 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?” Mr. O’Brien asked. “A significant portion of your job as a police officer is giving your testimony before the court when you are pressing charges against people. If I were a defense attorney, I jump all over that in an effort to try to exonerate my client, especially if there was anything suspect about the arrest. I would bring up the officer’s history of breaking U.S. laws in order to get into the country, and then question whether they had any authority at all to be making an arrest.”
Then there’s the issue of U.S. law prohibiting people who are illegally in the country from obtaining and carrying a firearm, Mr. O’Brien said, which is fundamental to the job.
However, there’s a provision in the law exempting officers who’ve later been discovered to be illegal aliens from prosecution as long as the firearm was purchased and transferred by a law enforcement agency for official use.
“That exemption was not put in there to allow law enforcement agencies to hire immigration violators as police officers,” he said. “It was put in there because there were a number of instances in which border patrol wound up hiring people who, as far as these individuals knew, were born in the [United States], but when they did a background check, they found they were, in fact, illegal aliens whose parents had never told them that they weren’t natural born citizens.”
In many cases, law enforcement agencies such as the New York City Police Department require its recruits to buy their own firearms, Mr. O’Brien said, which, according to U.S. law, illegal aliens aren’t authorized to do.
When these new recruits who don’t have citizenship make an arrest or are involved in a gunfight, they’re doing so while committing a felony, Mr. O’Brien said.
‘A Disaster Waiting to Happen’
“The wisdom of taking people who are from a different culture who haven’t been here or in many cases assimilated and putting them in a position in which they’re dealing with people in a crisis is a disaster waiting to happen,” Mr. O’Brien said. “It not only takes a long time to feel proficient in the nuances of a foreign language, but there are also nonverbal, cultural cues and things of that nature to comprehend.”Even if there weren’t an abundance of legal and constitutional issues surrounding the legislation, illegal immigrants aren’t the best cohort to be drawing from for police recruits, he said.
Overall, the legislation is another notch in the belt of those seeking to not only decrease the morale of law enforcement but also degrade communities, he added.
“I used to live in New York City. I wouldn’t go back now because everywhere you go, there’s feces and used needles everywhere you go. It’s even worse in San Francisco,” he said.
Those who once considered law enforcement as a career are now choosing other paths as departments are “hemorrhaging officers left and right.”
“I can see why someone wouldn’t want to be involved in law enforcement at this point,” he said. “The whole thing is just incredibly badly thought out.”
It’s a perfect example of why states such as California and Illinois have no legal authority to exempt themselves from immigration laws that they don’t like, he said.
“If Texas all of the sudden decided it didn’t like the federal firearms laws and declared itself a Second Amendment sanctuary, the very same people who are doing this with regard to immigration law would have a complete meltdown.”
