AN ENFORCEMENT STRATEGY FOR DEALING WITH FOREIGN NATIONAL GANG ACTIVITY

By Dan Vara

The ever-increasing level of violent foreign national gang activity is not the product of a new development in the world of crime.  Like our own homegrown criminals, foreign nationals seeking to exploit our country’s freedoms, opportunities, and too often overcrowded and inefficient criminal justice systems, have found a lucrative market in which to ply their trade.

Laws designed to protect the average and lawful citizen, such as the right against unreasonable search and seizure and the requirement of due process of law, have increasingly been used to that end.

The good news, however, is that, for foreign nationals, law enforcement has an entirely different set of tools that can be effectively utilized to combat and destroy the organized attempts by alien criminals to accomplish their goals in the United States.

The bad news, however, is that due to politics, recalcitrance, a lack of understanding, a lack of vision, turf issues, and many times, a lack of will, these tools are not used.

This Modest Proposal seeks to, even in a very small way, change that.

Under the Immigration and Nationality Act (INA), alien “gangbangers” operating in the U.S. have a lot less protection than their U.S. born counterparts and/or competitors.

Simply, and as I pushed forward every time I got the chance during my tenure with the former Immigration and Naturalization Service and with Immigration and Customs Enforcement, a methodology is more than available that allows even the most overworked and under-funded law enforcement entities to deliver their citizens from, if not all, a significant segment of this type of criminal activity.

That methodology, at its most basic, involves the very simple legal premise that an authorized law enforcement officer (LEO) has the right to confront, question, take into custody, and, in many cases, keep the person who is a criminal of foreign national origin off the streets without resort to many of the technical standards and requirements of criminal law and procedure.

At the outset, it should be noted that several presumptions are very safe to make in regard to dealing with foreign national gang members. The first is that one or more of the gang members will be subject to removal or deportation. Either because they illegally entered or because, having committed some administrative offense, they are illegally in the U.S. The second is that, being gang members, they are very likely involved in at least using, but almost always also in selling, narcotics. Most importantly, being gang members who have to protect their turf, criminal enterprises, and reputations, they are almost always going to be in illegal possession of weapons.

Using these presumptions, several strategic and tactical law enforcement options jump out to all but the most non-creative law enforcement professional. These options are all based on one thing, the determination that the target is in fact subject to the Immigration and Nationality Act (INA).

That determination is not very hard to obtain. Identifying a targeted criminal gangbanger as a foreign national, known as determining “alienage,” is all that is needed. Doing so, surprisingly to most, requires very little effort.

In most cases, all that has to be done is to run the person’s biographic information through a federal immigration database, locate that person’s A (alien) file, open it up, and review one of the many sources of documented evidence that establish that the target was born in another country. Such evidence ranges from the I-94 Arrival-Departure record that the alien was issued when they entered the U.S., to the alien’s own foreign passport, or to signed applications for immigration benefits or status.

Beyond that, an LEO can do this simply by asking the alien during a consensual encounter, a Terry-type stop, or through very basic “street-level” intelligence gathering activities such as engaging in non-confrontational pretext banter with some of the target group members.

Once a target is definitively identified as a foreign national, even one holding a “green card” as a supposed lawful permanent resident alien, the game gets easy.

Under section 287 (a)(1) of the Immigration and Nationality Act, an alien can be required to produce evidence that he or she has a right to be in the United States. Any LEO authorized to enforce immigration law has a right to do so. No probable cause is required, no warrant is required, no exigent circumstances are required, and no other real formalities are required.

If the alien does not have such evidence in his or her possession, the officer has the right to take the alien into custody because, in essence, the alien is required to carry such evidence with them at all times.

If the alien is taken into custody, the officer has a right to conduct, without a warrant, a search incidental to lawful arrest.

If the alien says that he or she has such evidence, but that the required documents are in their car, in their home, at work, at the gym , etc., that officer has the option of allowing the alien to go get it. Of course, if the LEO is on his or her game, with the LEO and his or her buddies tagging along as escorts.

If the alien goes into their house, their worksite, or their gym locker, or similar location, with the officers in tow, the alien has just given those officers the right, with few exceptions, by consent to be wherever the alien has taken them and to exercise what is know as the “plain view doctrine” to identify anything from weapons, to contraband, to any other evidence of criminal activity.

If plain view reveals such evidence of criminal activity, the officer now has probable cause to believe that a crime has occurred or is occurring, and has the right to arrest the alien, seize the evidence of the crime, and even, to a limited extent, conduct a non-warrant search of the immediately surrounding area.

Once again, all without having to apply for, wait for, or take the chance of getting denied a warrant.

Likewise, if the location of the alien’s documentation is a car, and the alien enters the vehicle in the presence of the officer, the LEO can employ the “plain view” doctrine and may, under certain circumstances, also conduct a cursory search for weapons based on officer safety.

If the alien gives the officer consent to look for the documentation, that search authority may even be much broader.

If an officer who is legally in a place where he or she can identify contraband or fruits of a crime, that officer now not only has a second basis for taking the target into custody, but has the right to seize the vehicle and conduct an inventory search of it.

The purpose in each instance being that the officers are looking for the shortest distance between two points to build a case against the target and his associates, and letting the target lead them there.

And all of this, of course, leading to a very solid basis for the officers to adversely affect gang operations, take the targets off American streets through use of the administrative removal/deportation process and/or for criminal prosecution, or to turn one or more of the targeted gangbangers into cooperating individuals (“CI”) to be put to work as law enforcement operatives working the gang from within.

If it is so easy, then why hasn’t this become the standard operating procedure for law enforcement agencies (LEA) in every U.S. jurisdiction where a large gang problem exists?

The first reason, unfortunately, is political, and relates to “turf.” In its purest form, almost every elected State Prosecutor, Police Chief, or Sheriff that I have pitched this to has the same immediate reaction—“you really think I am going to give up my ‘juiciest’ cases to the feds?...Not a chance…” Motivated by a desire to keep their jobs and the fact that doing so, in all but the most unique of situations, involves showing the citizenry that they “need you,” such LEA officials sometimes simply can’t get beyond the fact that the noted SOP, while effective, might serve to cost them their jobs down the road. Either because the perception is that the feds have taken over and the official is no longer “in charge” in their jurisdiction, or because it could be perceived that it took the feds to take care of a problem that they should have been able to take care of themselves.

The second is LEO perception. In and out of the federal government. As many of us from the former INS experienced when the Department of Homeland Security was created and the merger of INS and Customs occurred, the highly talented Customs series 1811 criminal agents were, in large part, aghast at the very thought of having to engage in immigration enforcement as opposed to “real” law enforcement. Similarly, every elite state and local task force officer I met who was pitched this idea initially scoffed at the notion of taking down bad guys for “administrative!” immigration violations.

And finally, the third reason is the institutional mindset at Headquarters ICE that has their Deportation and Removal (DRO) detention policies set on autopilot and in a way that, despite anything they publish to the contrary, treats aliens removable for minor infractions such as overstaying a student visa the same as they do gangbangers.

As almost every enforcement agent in ICE can tell you, if they had ten dollars for every time they were told to release a criminal because the “inn was full” and all the detention beds were taken by administrative cases, they’d be well on their way to a much deserved early retirement.

These issues, however, could easily be overcome.

The first issue is overcome by simply assuring the state and locals that whatever is done will be sold as their operation and the feds will take a back seat as appropriate. This can be done in a variety of ways. A good start would be a meeting of the principles and, as I might jest with my Bureau friends, a statement by the ICE officials that “We don’t have to take credit for everything. After all, we’re not the FBI.”

More formally, however, would be a Statement of Understanding or a Memorandum of Agreement that clearly spells out how things will be done, including who acts as the primary at the press conferences and what, under an agreed-upon script, they will say.

The second issue, while a bit more complicated in scope, could similarly be resolved in short order. As a very astute Legacy Customs and now ICE Assistant Special Agent-in-Charge in Tampa, Florida realized, after listening to a pitch on this SOP, the potential implications of the theory in terms of “body count” and successful criminal operations were phenomenal. So, and in his capacity as the liaison to a local police department and as the head of several of Tampa ICE special agent units, he quickly set up a meeting with the Police Chief, his principles, including the gang unit commander and some of his supervisory street level officer staff, and arranged for us to put on a “dog and pony show.” Like it was for him, it was an easy sell at the local PD.

Once convinced, and as soon as they approve the SOP to be put into play and the body count starts going through the ceiling and the bangers start running for cover, the locals almost never go back.

The final issue, however, is probably the hardest to address. While any logical assessment of the equation should yield the right answer, we’re talking about ICE headquarters. And there, logic doesn’t always carry the day.

To be fair, the assessment on how to use the limited detention resources that the agency has is not an easy one. It is not easy because the very issue of how to handle immigration matters in this country is not easy. It is always about politics, special interests, the issue of the day, and the next immigration crisis looming right around the corner.

But, having noted that, it all really comes down to self-realization and a simple question.

The self-realization is that ICE bureaucrats should accept that they will never have enough detention bed spaces to house every alien who is illegally in this country. Too many folks are trying to come here illegally every day, too many aliens are illegally here, and too many aliens are caught in the immigration processing and litigation nightmare that, in many cases, causes them to be here in a questionable if not outright illegal status today while they might be deemed to be legally here tomorrow.

Once that is realized, and once it is accepted that, at best, ICE is only going to be able to keep a certain number of illegal aliens in custody, the logical question becomes:

Who among the universe of foreign nationals who have violated the