Immigration Confusion
How serious a crime should it take to get an illegal alien deported?


One of the occasional frustrations of being a police officer is having to sit idly by as the law is subordinated to transient political expediency. Here in Los Angeles, for example, Mayor Antonio Villaraigosa has made no secret of his sympathies for the cause of illegal aliens. Those sympathies are reflected in the management ranks of the Los Angeles Police Department — perhaps out of genuine conviction but far more likely out of careerism. Recall that when things went awry during an immigrants’-rights demonstration at L.A.’s MacArthur Park two years ago (discussed here, here, and here), one of the senior officers present, a white deputy chief, was demoted a few days later and replaced by a Latino.

Recall also that for years the LAPD has been embroiled in a dispute over the application of the regulation known as Special Order 40, instituted in 1979, which governs how the department deals with criminal illegal aliens. Special Order 40 prohibits officers from taking action against persons suspected of no crime other than illegal entry into the United States, but it mandates notification to immigration authorities when “an undocumented alien is booked for multiple misdemeanor offenses, a high grade misdemeanor or felony offense, or has been previously arrested for a similar offense.”

Note that the order does not prohibit such notification when an illegal alien is arrested for a single misdemeanor. That no such prohibition exists, indeed that none can exist under both California and federal law, is of no apparent concern to some in the LAPD. I refer to a recent series of arrests made by LAPD officers whose aftermath has department managers scrambling to explain their actions and square them with the applicable laws.

On April 1, officers assigned to the LAPD’s 77th Street Division in South Central L.A. arrested 27 people for illegal street vending. Sixteen of them were determined to be illegal aliens, and they were reported to federal Immigration and Customs Enforcement (ICE) agents. The ICE agents placed immigration holds on the 16, initiating the process for deporting them upon disposition of the local charges. The notification to ICE was made with the full knowledge of the officers’ chain of command.

But soon alarm bells were ringing in the mayor’s and city council’s offices, in the local Spanish-language media, and finally in various offices of the LAPD. Deputy Chief Sergio Diaz, who heads the LAPD’s Central Bureau and therefore has no line authority over the South Bureau’s 77th Street Division, circumvented the chain of command and ordered the 16 illegal aliens released on their own recognizance. The other 11 arrestees, all of whom were citizens or legal U.S. residents, received no such consideration and had to make bail or remain in custody until their court appearances. Diaz also asked ICE to drop the immigration proceedings against the 16, a request that was politely but firmly denied. It may not surprise you to learn it was Diaz who was promoted to deputy chief after the May Day troubles of 2007.

In the wake of all this, some LAPD officers are asking their superiors for clarified guidelines on when illegal-alien arrestees should be reported to ICE. Clearly, Mayor Villaraigosa and his sycophants in the LAPD want to restrict such notifications to only the most serious of offenders. In fact, in an e-mail sent out to some officers in the LAPD’s South Bureau last week, Commander Andrew Smith, the assistant commanding officer for the bureau, said the subject of ICE notification had come up in a recent senior staff meeting. “The direction given by [Chief William Bratton],” wrote Smith, “is that we call ICE only on the following cases: 1) Violent felony arrestees, and 2) Gang members arrested for felony charges.”

So if Bratton were to have his way, burglars, car thieves, drug dealers, forgers, drunk drivers, and all manner of other miscreant illegal aliens would go unreported to ICE unless they belonged to a gang. And an illegal-alien gang member, presumably even one with a felony record, would go unreported when arrested for a misdemeanor. I have yet to see any formal order codifying the guidelines set forth in the e-mail, and I’m at a loss to figure out how Bratton might issue such an order without running afoul of state and federal law. Forgive me for delving so deeply into the nuts and bolts, but at this point an extended reference to the California Penal Code is required. Section 834b reads as follows: