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Virginia has been thrust into the center of the immigration debate recently. Del. Robert Marshall asked Attorney General Ken Cuccinelli to issue an opinion about whether the state's law enforcement officers could determine the immigration status of persons stopped or arrested. Cuccinelli's opinion that they can is probably legally correct, but may still backfire. Americans across the political spectrum are rightly concerned over our broken immigration system. Still, in today's super-heated political climate, moves that seem to treat all undocumented immigrants as criminals will likely worsen the situation.
Cuccinelli's ruling is actually quite narrow. Law enforcement can inquire about immigration status at a lawful stop but can only arrest suspects who have committed a criminal violation of the immigration laws. It is important to recognize that, contrary to popular belief, unlawfully residing in the U.S. is not a crime. It is a civil offense and Virginia law enforcement agents, unless they are cooperating with federal immigration officials, cannot arrest people for civil violations.
Moreover, the commonwealth's new policy only incrementally changes existing practice. All of Virginia's counties already follow the federal Secure Communities program, which requires they check the immigration status of all individuals arrested against the Department of Homeland Security database. Allowing law enforcement to inquire about immigration status won't add much to that already existing program.
While the government has a terrible record of accurately and effectively employing biometric information to check workplace immigration status, Secure Communities is relatively uncontroversial in that it seeks to remove only criminal undocumented immigrants. The program, part of the Obama administration's increase in immigration enforcement, funnels more resources into enforcing immigration laws but also prioritizes dangerous criminals over those suspected of non-violent civil offenses.
Yet ever since Arizona passed its SB 1070 aimed at cracking down on undocumented immigrants, Marshall and some others have pushed for a Virginia equivalent. Many blame America's domestic problems on undocumented immigrants and Virginia's legislators aren't immune from such pressures. But, unlike many states, Virginia is now enjoying an unexpected surplus -- which suggests that its policies of maintaining low taxes, restraints on spending and keeping the burdens of regulation light are far more important than any problems that immigrants might create. Threatening to deport otherwise law abiding people would do little to advance Old Dominion growth.
The fact is that America's immigrant "problem" is a prime example of government failure. Immigrants have historically been among the most hard-working and valued members of American society. Yet thanks to a variety of perverse incentives -- from welfare systems to incompetent immigration bureaucracies -- immigrants are now far more likely to seek an undocumented route into this country. Their illegal status drives them into a shadowy world where interaction with authorities is discouraged, where antisocial activities like drug smuggling thrive.
This means that even a legally correct ruling could badly backfire. Law enforcers depend upon a cooperative citizenry to do its job. If this ruling were to lead immigrants -- whether undocumented or documented -- to believe that law enforcement officers could detain them for any suspected immigration violations, that cooperation could disappear. These people would become reluctant to work with the police as witnesses or to report crimes. The Virginia government must tread carefully here.
As legendary crime-fighting Police Chief William Bratton stated, tough immigration enforcement hurts local police "because immigrants living and working in our communities are afraid to have any contact with the police . . . [officers] can't prevent or solve crimes if victims or witnesses are unwilling to talk to us for fear of being deported."
Bratton isn't alone in that opinion. The Los Angeles County Sheriff's Department, Police Foundation, Arizona Association of Chiefs of Police, Major Cities Chiefs' Association, and other law enforcement groups oppose or are extremely critical of having local police enforce immigration laws for the same reason.
Virginia has recognized the negative unintended effects of government failure in other areas. The attorney general is courageously leading the charge against Obamacare and the global warming establishment, for example. Here too the commonwealth should avoid actions that could hamper the positive relations needed between the law enforcement and the immigrant community.
America needs a new approach on immigration. The amnesty-only approach of the 1980s failed, while the "get tough" attitude simply seems to be driving more newcomers into the shadows. The new approach should focus on reducing government barriers -- and government handouts -- to immigrants. That is a hope that all aspiring immigrants, conservatives, and indeed even liberals could and should unite around. Virginia is not a border state; perhaps this means it is well-placed to lead the way.