Speech #1090052664

I rise today to introduce the Homeland Security Enhancement Act of 2005. I am pleased to be joined by Senator CRAIG and Senator INHOFE. who cosponsored an earlier version of the bill in the 108th Congress. and who are original sponsors of this years legislation. Our bill takes the lead in encouraging a culture of cooperation among all levels of immigration law enforcementFederal. State. and localit seeks to build an immigration law enforcement system that is inclusive of all law enforcement officers. has adequate detention bedspace. uses unified databases for information sharing from one level of law enforcement to another. and has adequate detention bedspace. These elements are a necessary foundation for any future comprehensive immigration reform and I am pleased that the need for this foundation was recently recognized by Senators KYL and CORNYN in the release of the enforcement principles of the immigration bill they are currently drafting. Changes in substantive immigration law are surely needed. but unless an effective enforcement mechanism is included. the new rules will also collapse under a rising tide of illegality. More than 15 years of service as a U.S. Attorney in Alabama and then as Alabamas Attorney Generalas well as my current role on the Immigration. Border Security. and Citizenship Subcommitteehave taught me that the involvement of State and local law enforcement will be a critical part of any new and successful immigration enforcement scheme. Establishing an effective partnership between the 700.000 State and local law enforcement officers who patrol our streets every day and the small number of Federal immigration officers will be a test of our Nations will to establish an effective and enforceable legal scheme for immigration. I care very deeply about the ability of State and local law enforcement to voluntarily aid the federal government in the enforcement of immigration law. As a result. I also care very deeply about tearing down barriers to that voluntary assistance. The need for this voluntary assistance has only grown stronger over the last year and a half. since I first introduced this legislation in the Senate. Over the course of that time we have heard about the need to reform our immigration laws to create a system that is as enforceable as it is generous and workable. Creation of an enforceable immigration system will undoubtedly require increased manpower. streamlined information sharing. and bedspace to hold those we apprehend. This legislation targets all three of these essential enforcement components. and will go a long way toward fixing our broken immigration enforcement systemthe system that is currently allowing people to remain in the U.S. for indefinite time periods. regardless of how they came here. Let me be clear. this bill is not about the commandeering of State and local police forces or about forcing them to dedicate resources toward immigration law enforcement when they have other priorities. it is simply about welcoming their assistance in the realm of immigration law enforcement if they choose to give it. We know that Americans strongly value our heritage as a Nation of immigrants. Americans openly welcome legal immigrants and new citizens with character. ability. decency. and a strong work ethic. However. it is also clear that Americans do not feel the same way about illegal immigration. The fact is that a large majority of Americans feel that State and local governments should be aiding the Federal Government in stopping illegal immigration. A RoperASW poll published in March of 2003 titled "Americans Talk About Illegal Immigration" found that 88 percent of Americans agree. and 68 percent "strongly" agree. that Congress should require state and local government agencies to notify the INS. now ICE. and their local law enforcement when they determine that a person is here illegally or has presented fraudulent documentation. Additionally. 85 percent of Americans agree. and 62 percent "strongly" agree that Congress should pass a law requiring State and local governments and law enforcement agencies. to apprehend and turn over to the INS illegal immigrants with whom they come in contact. Those numbers speak volumes about the desires of the American population. It is important to note that these responses were collected in response to questions about requiring State and local immigration enforcement action. It is very likely that a poll on this bill. a bill that is about voluntary State and local action. would yield even stronger support. Americas strength is based on its commitment to the rule of law. Inscribed on the front of the Supreme Court Building just down the street are the words. "Equal Justice Under Law." In the world of immigration laws. the current facade of enforcement that holds no real consequences for law breakers is both dangerous and irresponsible. If the only real consequence of coming to this country illegally is a social label. then our immigration laws are but a brightly painted sepulcher full of dead bones. for it is impossible to be a nation governed by the rule of law. if our laws have no real effect on the lives of the people they govern. Our illegal alien population was at a record high two years ago and the numbers continue to climb. The lack of immigration enforcement in our countrys interior has resulted in 812 million illegal aliens living in the U.S. with another estimated 800.000 illegal aliens joining them every yearthat is on top of the more than 1 million that legally immigrate each year. These numbers make it easy for criminal aliens and absconders to disappear inside our borders. Of the 810 million illegal aliens present today. the Department of Homeland Security has estimated that 450.000 are "alien absconders"-people that have been issued final deportation orders but have not shown up for their hearings. An estimated 40.000 absconders join that number every year. An estimated 86.000 of them are criminal illegal alienspeople convicted of crimes they committed in the U.S. who should have been deported. but have slipped through the cracks and are still here. The next number is perhaps the most concerning3.000 of the "alien absconders" within our borders are from one of the countries that the State Department has designated to be a "state sponsor of terrorism." The number of illegal aliens outweighs the number of federal agents whose job it is to find them within our borders by 5.000 to 1. The enforcement arm of the old INS. now called The Bureau of Immigration and Customs Enforcement. ICE. has just over 2.000 interior agents inside the borders. Leaving the job of interior immigration enforcement solely to them will guarantee failure. If each interior agent investigated. arrested. prosecuted and deported an illegal alien every day. it would take almost 14 years to deport the current illegal alien population. State and local police. a force 700.000 strong. are the eyes and ears of our communities. They are sworn to uphold the law. They police our streets and neighborhoods every day. Their role is absolutely critical to the success of our immigration system. For that critical role to be effective. a few very important things need to happen: 1. State and local law enforcement officers need clear authority to voluntarily act. 2. the NCIC Immigration Violators File needs to contain all critical immigration information so that officers have quick roadside access to critical immigration information. 3. Federal immigration officials have to take custody of illegal aliens apprehended by State officers. they can not continue to ignore State and local requests for assistance. 4. the Institutional Removal Program has to be expanded so that all criminal aliens are detained after their State sentences until deportation. instead of being released back into the community just to be searched for by Federal officials at a later date. and 5. critically needed Federal bed space has to be given to DHS so that the practice of "catch and release" can be ended and effective removal can begin. The Homeland Security Enhancement Act that Senator CRAIG. Senator INHOFE. and I are introducing today will do all of those things. Let me tell you about a few of the problems in immigration enforcement that started my interest in this area and prompted me to author this bill. to push for the hearing on April 22 of 2004 in the Senate Judiciary Committee titled "State and Local Authority to Enforce Immigration Law: Evaluating a Unified Approach for Stopping Terrorists". and to author a law review article in the April 2005 issue of the Stanford Law and Policy Review titled "The Growing Role for State and Local Law Enforcement in the Real of Immigration Law." A few years ago. police chiefs and sheriffs in Alabama began to tell me that they had been shut out of the immigration enforcement system and that they felt powerless to do anything about Alabamas growing illegal immigrant population. As I went to town hall meetings and conferences with police. I beard the same story- "When we come across illegal aliens in our normal course of duty. we have given up calling because the INS tells us we have to have 15 or more illegal aliens in custody or they will not even come pick them up." Even worse. Alabama police were routinely told that the aliens could not be detained until the INS could manage to send someone. They were told they had to just let them go! They were being told this. even though I believed that the legal authority of State and local officers to voluntarily act on violations of immigration law was pretty clear. If there is any doubt that State and local officers have this authority. Congress needs to remove that doubtwhich is exactly what this bill will do. Only two U.S. Circuit Courts of Appeal have expressly ruled on State and local law enforcement authority to make an arrest on an immigration law violation. In 1983. the Ninth Circuit. while not mentioning a preexisting general authority. held that nothing in Federal law precludes the police form enforcing the criminal provisions of the Immigration and Naturalization Act. Gonzales v. City of Peoria. 722 F.2d 468 (9th Cir. 1983). The Tenth Circuit has reviewed this question on several occasions. concluding squarely that a "state trooper has general investigatory authority to inquire into possible immigration violations." United States v. SalinasCalderon. 728 F.2d 1298. 1301 n.3 (10th Cir. 1984). As the Tenth Circuit has described it. there is a "preexisting general authority of state or local police officers to investigate and make arrests for violations of Federal law. including immigration laws." United States v. VasquezAlvarez. 176 F.3d 1294. 1295 (10th Cir. 1999). Again. in 2001. the Tenth Circuit reiterated that "state and local police officers [have] implicit authority within their respective jurisdictions to investigate and make arrests for violations of Federal law. including immigration laws." United States v. SantanaGarcia. 264 F.3d 1188. 1194 (citing United States v. VasquezAlvarez. 176 F.3d 1294. 1295). None of these Tenth Circuit holdings drew any distinction between criminal violations of the INA and civil provisions of the INA that render an alien deportable. It appears that the Ninth Circuit started the confusion regarding the distinction between civil and criminal violations in Gonzales v. City of Peoria by asserting in dicta that the civil provisions of the INA are a persuasive regulatory scheme. and therefore only the Federal Government has the power to enforce civil violations.