Court Orders Attorney General Ashcroft to Disclose Secret Memo on Local Police Enforcement of Federal Immigration Laws

September 27, 2004 12:00 am

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ACLU Welcomes Ruling, Saying Policy May Overstep Law

NEW YORK – The American Civil Liberties Union today welcomed a ruling by a federal judge ordering the Department of Justice to disclose a secret document outlining the legal rationale for a new policy granting local police unprecedented powers to enforce non-criminal immigration laws.

“”There is no justification for secret lawmaking,”” said ACLU attorney Omar Jadwat. “”The court has rightly foiled Attorney General Ashcroft’s attempt to use secrecy to shield his radical policies from public scrutiny and debate.””

The ACLU, which had filed a Freedom of Information Act (FOIA) request last year seeking the document, hailed the ruling as yet another blow to government secrecy over post-9/11 policies and practices. The ACLU and other groups that objected to the new immigration policy said that the government’s insistence on keeping its legal rationale secret has made it difficult to evaluate the new policy or advise immigrants about its effects.

In his ruling, Judge Lewis A. Kaplan called the government’s attempts to keep the policy secret “”unpersuasive,”” saying, “”the Department’s view that it may adopt a legal position while shielding from public view the analysis that yielded that position is offensive to FOIA.”” Judge Kaplan ordered the DOJ to disclose the memo by October 12.

According to the FOIA lawsuit, filed on behalf of a coalition of eight civil rights and immigrants’ rights groups, in June of 2002 the Attorney General adopted a new policy that allows state and local police to arrest and detain certain immigrants who are believed to be in violation of non-criminal provisions of the federal immigration laws. Despite repeated requests, the Department had refused to release the new policy or its legal basis to the public.

The groups said in legal papers that the Attorney General overruled a 1996 Justice Department policy by issuing a legal opinion providing local police with new authority to enforce non-criminal immigration laws. According to the lawsuit, the change “”would constitute a dramatic departure from prior policy and practice on an issue of national importance, with profound consequences for citizens and immigrants alike.””

In the past, dozens of local police officials and law enforcement organizations have spoken out against state and local participation in immigration enforcement, saying that it would jeopardize their relationships with immigrant communities and divert local law enforcement resources from the more important job of trying to control crimes against people. As former Montgomery County (MD) Police Chief Charles Moose told a Washington radio station in May 2002: “This movement by the federal government to say that they want local officers to become INS agents is against the core values of community policing: partnerships, assisting people, and being there to solve problems.”

Other groups represented by the ACLU in today’s case are the New York Immigration Coalition, the American Immigration Lawyers Association, the National Immigration Law Center, the National Immigration Forum, the National Immigration Project of the National Lawyers Guild, the National Employment Law Project, and the Massachusetts Immigrant and Refugee Advocacy Coalition.

The case is National Council of La Raza et al. v. Department of Justice, 03-CIV-2559, filed in the U.S. District Court for the Southern District of New York. Attorneys for the groups are Lucas Guttentag and Jadwat of the ACLU Immigrants’ Rights Project, Michael J. Wishnie, an ACLU cooperating attorney in New York, and Christopher Dunn of the New York Civil Liberties Union.

Judge Kaplan’s decision is online at /cpredirect/18624.

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