Website / Product Reviews

Much has been written in the recent days about the recent Attorney General Law Enforcement Directive and how it will impact the undocumented immigrant.  This article is intended to give an overview as to what impact the new directive will have.  Naturally, with any new policy the method and manner of implementation remains to be seen.  As written the directive provides in part that…”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 to answer State law charges, and the interest of the federal government in considering immigration enforcement proceedings against an individual whom the State has arrested for commission of a serious criminal offense.  When there is reason to believe that the arrestee may be an undocumented immigrant, the arresting agency is responsible for alerting federal immigration officials, the prosecuting agency, and the judiciary.”

For the purpose of the directive the definition of a “serious violation”   Shall mean any indictable crime, or for driving while intoxicated.  If a person is arrested (as contrasted with convicted) the arresting 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 Immigration and Customs Enforcement during the arrest booking process.

The are a number of potential problems that an undocumented immigrant faces with this requirement.  First, the triggering notice requirement is the arrest rather than the conviction.  Hypothetically, an arrest that eventually does not produce a conviction will have the same impact as arrest that results in a conviction.  Therefore, it is incumbent upon law enforcement not to use a less than solid arrest for the sole purpose of shaping immigration policy.

Second, if the “reason to believe” standard is wrought with the potential for abuse.  The are absolutely no checks or balances to hold an officer accountable under this nebulous standard.  How can anyone question an officer’s subjective belief?  While prior directives along with this new directive prohibit racial profiling and the consideration of a person’s race or ethnicity as a factor in drawing an inference or conclusion that the person may be undocumented, there is really no safe guard to protect persons from such behavior.

In short we must all rely upon the honesty and integrity of law enforcement to adhere to the letter and spirit of the directive.  After all, this is the foundation upon which America was built.

This article is intended for general informational purposes only.  This article is not intended to be a substitute for a consultation with an experienced lawyer.  If you or someone you know would like a free consultation they invited to call one of the NJ Immigration lawyers at Shapiro & Sternlieb, LLC. 732-617-8050. We have offices conveniently located in Manalapan, Freehold, Hazlet and Eatontown.