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United States Immigration column and commentaries
 
FEB 2007: Manila Should Not Have Gone Through All the Trouble to Get NCLEX Site
 
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US IMMIGRATION UPDATES

IMMIGRATION LAW / NOV 2006

 
New Laws Granting Local Law Enforcement Authority to Enforce Immigration Laws May Spur Lawsuits

By Attorneys Bruce A. Coane and James P. McCollom, Jr.
 
  A hotly debated issue around the country is whether local law enforcement agencies should have authority to enforce U.S. immigration laws. Such authority would give local law enforcement the right to question people regarding their immigration status.
Bruce A. Coane    

Many commentators have voiced concerned that such laws will in fact promote crime because non-citizens will be afraid to report criminals. A secondary issue that has not been widely discussed is the probable consequence of such a law that people who have a “foreign appearance” might be falsely arrested.

Imagine, for example, that an individual who has an Asian appearance is stopped by the police in a locality where there is such a law. It is possible that in that locality, the law enforcement officer might ask such an individual about his or her citizenship status solely because that individual has an Asian appearance.

It is also possible that an individual with an Asian appearance might then be arrested if the officer believes that the individual is violating U.S. immigration laws. The officer might fail to conduct a proper investigation.

 
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The local law enforcement officer might make a mistake and arrest the individual with the Asian appearance not realizing that the individual is actually a U.S. citizen or a lawful permanent resident. It is even possible that the officer might arrest a foreign citizen who has lawful status in the United States.

Obviously, one problem with such a law is that it might encourage the law enforcement officer to make a decision based on race. That is, any individual with an Asian appearance might automatically become a suspect.

The other problem may be that the local law enforcement officer does not have expertise regarding U.S. immigration laws although he or she might have been trained to attempt to accomplish the task.

If the local law enforcement officer arrests a person with an Asian appearance for a violation of U.S. immigration laws and it turns out that the person arrested was a U.S. citizen, then it is possible that a Court might conclude that such an arrest constituted negligence or false imprisonment.
 
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A U.S. citizen, in that instance, might then file a lawsuit against the law enforcement authority for negligence or false imprisonment.

In all lawsuits against a government entity, the plaintiff must first demonstrate that the government has enacted a law allowing a plaintiff to sue the government. That is, normally an individual may not sue the government because the government is immune from suit.

If the law enforcement agency is negligent or commits the intentional tort of false imprisonment, then a plaintiff may be able to file a lawsuit under local state law, or possibly, the Federal Tort Claims Act.

It is thus possible that one effect of new laws granting such broad power to local law enforcement officers might be that individuals who are “foreign-looking” might be unjustly arrested. As a result, these individuals may now be able to successfully sue the government.
 

Bruce A. Coane is Board Certified in Immigration and Nationality Law by the Texas Board of Legal Specialization. The law firm of Coane & Associates has offices at 407 Lincoln Road, Suite 306, Miami Beach, Florida 33139, Tel. (786) 457-VISA (8472). The law firm website is www.coane.com. The law firm email is immigrantlaw@aol.com. James P. McCollom, Jr. is an associate attorney at the firm

 

 
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