August 8, 2023
By Tom Homan and Matt O’Brien
Illinois has just joined Colorado and California on the list of states that explicitly allow non-citizens to become police officers. Given the damage done to our immigration system by the Obama and Biden Administrations, that’s a disturbing development.
Pursuant to the Supreme Court’s holding in Foley v. Connelie, states are permitted – but not obligated – to exclude non-citizens from eligibility for positions in state and local law enforcement. According to the Court, “police officers fall within the category of ‘important non-elective officers who participate directly in the execution of broad public policy.”
And, given the broad discretion that police officers are permitted to exercise, “citizenship bears a rational relationship to the special demands of the particular position, and a State may therefore confine the performance of this important public responsibility to those who are citizens.”
Ever since, the vast majority of states have required that applicants who aspire to become cops possess U.S. citizenship. Those states that didn’t mandate citizenship typically limited eligibility to green card holders who intended to apply for naturalization as soon as they became eligible.
From 1978, when the Foley opinion was issued, to the present, those requirements have rarely been questioned. That’s not surprising. The fact is, despite the radical Left’s narrative to the contrary, foreign nationals can only lawfully reside in America if they obtain and keep the federal government’s permission to remain here.
Ultimately, even Lawful Permanent Residents (the official title for individuals with a green card) are subject to removal from the United States if they violate the terms of the Immigration and Nationality Act. Most Americans are not comfortable with giving people who are not full members of our society the authority to arrest citizens – possibly by means of force.
The Colorado, California and Illinois laws are particularly troubling because, in all three states, individuals accepted into the Obama Administration’s Deferred Action for Childhood Arrivals (DACA) program will be eligible to become police officers. Indeed, the so-called “DACA kids” seem to be the primary target of these pieces of legislation.
Most of the anti-borders lobby would have the public believe that DACA recipients are “protected from deportation” and possess “lawful work authorization,” in essence making them the equivalent of green card holders, only steps away from naturalization. In reality, nothing could be further from the truth.
The Congressional Research Service defines “Deferred Action” as, “The generic term that DHS (Department of Homeland Security) uses for a decision not to remove an inadmissible or deportable alien pursuant to its enforcement discretion.” The provision of the Code of Federal Regulations that summarizes the DHS authority to grant deferred action refers to it as, “an act of administrative convenience that gives some cases lower priority.” In plain English, that means that recipients of deferred action are deportable illegal aliens, or other immigration violators, that the government has temporarily decided not to remove.
U.S. Citizenship and Immigration Services (USCIS) acknowledges this on its DACA web page, noting that, “Deferred action is a discretionary determination to defer removal of an individual as an act of prosecutorial discretion. However, deferred action does not confer lawful immigration status upon an individual, nor does it excuse any previous or subsequent periods of unlawful presence they may have.”
As far as work authorization goes, the relevant federal regulations clearly state that a recipient of any kind of deferred action, including DACA, can obtain work authorization only “if the alien establishes an economic necessity for employment.”
By definition, the beneficiaries of the DACA program are deportable illegal aliens who may remain in the United States only at the sufferance of the U.S. government and who possess only circumstance dependent, temporary work authorization. And these are the folks that Colorado, California and Illinois want to attract as police officer recruits?
And, believe it or not, the situation promises to become more complex if any DACA recipients are actually hired and trained as police officers. It is a condition of employment in most American police departments that all applicants be able to lawfully obtain, carry and use a firearm. However, pursuant to 18 U.S.C. 922, it is illegal for an illegal alien to possess a firearm. The same statute also makes it illegal for anyone “to sell or otherwise dispose of any firearm or ammunition” to an alien who is unlawfully present in the United States.
That has two dire implications. First, any DACA recipients hired as police officers would be committing a felony merely by possessing a firearm. Secondly, the police departments employing them would become participants in unlawfully disposing of a firearm to an illegal alien. Now, a casual observer may say, “Well, those are violations of federal law, if the federal government doesn’t prosecute them, no harm, no foul.” But the criminal defense bar isn’t going to take that stance. Rather it it is likely that any time defense attorneys find that an arrest was effectuated by an illegal alien cop. they’re going to – quite justifiably – claim their client was the victim of an assault committed by an illegal alien unlawfully in possession of a firearm.
You can’t enforce the laws of the United States when have no legal right to be here. And you can’t engage in the protection of others through the lawful use of deadly force if you have no legal right to possess a firearm. Which is why illegal alien cops simply don’t make any sense.
Tom Homan is a senior fellow at the Immigration Reform Law Institute and the former acting director of U.S. Immigration and Customs Enforcement.
Matt O’Brien is the Director of Investigations at the Immigration Reform Law Institute and the co-host of IRLI’s podcast “No Border, No Country.” Immediately prior to working for IRLI he served as an immigration judge.
Also published at The Epoch Times, August 8, 2023.
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