Police to Check Immigration Status at Arrest

COURT HOUSE — Prosecutor Robert Taylor told the Herald this week that he and police chiefs throughout the county will be following a directive handed down by Attorney General Anne Milgram Aug. 22, which mandates that police inquire about the immigration status of anyone arrested for an indictable crime or for driving while intoxicated.
The directive requires that local police notify Immigration Customs Enforcement (ICE), the prosecuting agency, and the court if there is reason to believe that the arrestee may be an undocumented immigrant.
Taylor said the topic of Attorney General Directive No. 2007-3 has come up in his discussions with police chiefs during their monthly meetings.
“In Cape May County, we are going to follow the Attorney General’s directive,” Taylor said. “It remains to be seen how difficult that will be…the directive speaks to what procedures need to be followed and we’re going to follow those procedures.”
The directive states the primary purpose of New Jersey law enforcement officers is to enforce state laws, but acknowledges the important role local law enforcement can play in assisting enforcement of federal immigration laws.
“While enforcement of immigration laws is primarily a federal responsibility, state, county and local law enforcement agencies necessarily and appropriately should inquire about a person’s immigration status under certain circumstances. Specifically, after an individual has been arrested for a serious violation of state criminal law, the individual’s immigration status is relevant to his or her ties to the community, the likelihood that he or she will appear at future court proceedings…and the interest of the federal government in considering immigration enforcement proceedings,” the directive states.
The directive specifically mandates the following:
• Whenever an arrest is made for an indictable crime or for driving while intoxicated, the arresting officer or a designated officer as part of the booking process shall inquire about the arrestee’s citizenship, nationality and immigration status. If the officer has reason to believe that the person may not be lawfully present in the United States, the officer shall notify ICE. There is an exception if the prosecutor or director of the Division of Criminal Justice determines in writing that good cause exists to refrain from notifying ICE.
• The officer will document “the factual basis for believing that the person may be an undocumented immigrant.”
• Notification shall also be made to the prosecuting authority and to any court setting bail or conditions of pretrial release.
• County prosecutors will annually report to the director of the Division of Criminal Justice the total number of notifications made and the director will make the data available to the public annually.
Included among those crimes in New Jersey considered indictable offenses, such as murder, aggravated assault, possession with intent to deliver controlled dangerous substances, robbery, burglary, etc., is “exhibiting a simulated document” which would include presenting a falsified a driver’s license or other identification.
Crime victims and witnesses to crimes are treated differently under the directive. The directive mandates that no inquiry or investigation will be made of the immigration status of any victim, witness, potential witness or person requesting or receiving police assistance.
However, an exception to this general rule permits an inquiry or investigation of a victim or witness if the county prosecutor or director of the Division of Criminal Justice determines in writing that good cause exists; if the person has been arrested for an indictable offense or driving while intoxicated; or if the inquiry or investigation is otherwise “legally or constitutionally required during the criminal litigation process.”
The directive attempts to prevent racial profiling by mandating that police inquire about the immigration status of any person charged with an indictable offense or driving while intoxicated, not just those who might have Hispanic or foreign surnames, for example.
“It would be inappropriate just to assume that someone who had a Hispanic name were an illegal alien,” said Taylor. “Officers get appropriate training on (racial) profiling on an ongoing basis, and we do that through the county police academy,” Taylor said.
Some cities and towns across the country are opting to go a step further. The option exists under federal law to provide federal training to deputize local police with powers to enforce immigration laws. Taylor said he has no plans to pursue that program, known as 287(g), in Cape May County.
(Ed. note: This is the first installment in a special Herald series on Immigrants in Cape May County. Next week: A Citizens Group Speaks Out on Illegal Immigration in New Jersey; and, Illegal Immigration: A Hot Button Issue On the New Jersey Electoral Trail.)
Contact Avedissian at (609) 886-8600 Ext 27 or at: savedissian@cmcherald.com.