A Comparative Study of Chicago and Madrid
Edited By Francisco Velasco Caballero and María de los Angeles Torres
Comparative Notes on the Role of Local Government in the Enforcement of Migratory Law
AMALIA PALLARES, UNIVERSITY OF ILLINOIS AT CHICAGOMARIA DE LOS ANGELES TORRES, UNIVERSITY OF ILLINOIS AT CHICAGOSILVIA DÍEZ SASTRE, AUTONOMOUS UNIVERSITY OF MADRID
The power to enforce migratory law is held formally, both in Spain as well as in the United States, by superior territorial jurisdictions—the central state and the federal government, respectively. This means that the approval of laws concerning the entrance, permanence, and departure of foreigners takes place at the federal and state levels—subject to the powers of the European Union in the case of Spain. It also means that the administrative and police measures aimed at enforcing compliance with these laws, and thus the control of illegal immigration, takes place at these levels as well. Inferior territorial entities—states, counties, and municipalities in the case of the United States and autonomous communities and municipalities in the case of Spain—assume an immigration management role limited by the implementation of public policies concerning the integration of immigrants. In practice, however, there are overlaps in the exercise of these powers that reveal a more complete map of power distribution. Thus, through funding, the state and federal governments respectively intervene in immigrant integration measures for their part, and the U.S. states and the autonomous communities, as well as municipalities, also intervene more or less directly and more or less decisively in the application of immigrant control measures.
In Spain, the state intervenes in the integration of immigrants by way of financing measures in concrete sectors (health, youth programs, social services, etc.) that are gathered, fundamentally, within the Strategic Plan on Citizenship ← 163 | 164 → and Integration 2011–2014, which includes the management of European funds linked with these objectives. The state, therefore, is connected directly with autonomous communities as well as with municipalities, which are responsible for implementing immigrant integration policies to the extent that their powers allow. These relationships can be explained by the territorial structure of the Spanish State, which grants autonomy to the autonomous communities, as well as—albeit on another level—to the municipalities. In the United States there is no official federal policy on immigration integration. In effect, the federal government finances social health and education policies for the general population, which, on occasion, may favor immigrants. But as a general rule, the immigrant population is not considered a primary beneficiary of these measures. Only in the case of primary and secondary education are there federal funds allocated for immigrant children regardless of their migratory status, given that the Supreme Court has found that such education is obligatory for all children. Thus, these public policies are not considered to be mechanisms that promote integration. The implementation of these social policies is managed between the federal and state governments, which, subsequently, will be in charge of ensuring that this funding reaches the municipalities. This dynamic, therefore, responds to the configuration of municipalities as “children of the states,” whose autonomy is not recognized constitutionally at the federal level. For their part, the states are in charge of funding programs and policies visibly linked to integration—such as English language education—and which are managed by NGOs. In any case, it should be noted that in both countries, the state and federal funds for integration do not directly benefit illegal immigrants. Instead, it is at the regional and local levels that policies directed towards illegal immigration are designed.
The participation of municipalities, counties, States, and autonomous communities in the enforcement of immigration control measures is strongly conditioned by the distinct organizational models of territorial power relations in the United States and Spain. In the United States, the model grants significant freedom to the states and municipalities in the configuration of their own public policies concerning immigration, insofar as the federal government (in the case of the states) or the state (in the case of the municipalities) does not come to its own decision on the matter. In fact, it is common for states to clearly define, through concrete measures, favorable or restrictive immigration policies. Such measures include laws such as the New Americans Initiative, the Day Labor Act, or the Dream Act, and through programs like All Kids in the state of Illinois, which guarantee rights, resources, and services to illegal immigrants that are not recognized by the state government. The same happens with municipalities that demonstrate politically against or in favor of immigration control in their territory—for example, by means of political resolutions that establish compromises with their constituencies, given that municipalities are not able to legally contest federal regulations. “Sanctuaries” are ← 164 | 165 → one example, which normally arise as a result of a Democratic majority, and are generally found in large cities, whereas more restrictive areas are typically governed by the Republican party and are generally mid-sized cities—although the size of the city is not as important in this respect as its political orientation corresponding to the party in power.
However, this expanded freedom of the states in the United States is limited by the principal of preemption, whereby state laws that conflict with federal laws are deemed invalid. This translates, in practice, to the existence of multiple points of disagreement and possible conflict between these two levels of government. A good example is the differences that have arisen between the federal government and Arizona’s law HB1070, which was recently brought before the Supreme Court by the federal government, alleging violation of the principal of preemption. A similar instance of conflict between state and federal levels is the state of Illinois’s rejection of the federal Secure Communities program.
In Spain, on the contrary, the municipalities and the autonomous communities must respect the measures adopted by the state concerning the exercise of their powers, and must even collaborate with the state in exercising these powers on the terms that the state itself legally establishes. Autonomous communities and municipalities, therefore, find it very difficult to configure their own public policies towards immigration control. For this reason, it is not easy to establish a clear migratory policy framework according to political colors and types of population centers. However, it can be noted that, like in the United States, there is a more favorable tendency towards immigration in large urban centers than there is in mid-sized urban centers or rural areas; migratory control is more relaxed in progressive parties than in conservative or nationalist parties.
In Spain, the municipal, regional, and national governments collaborate in serveral different ways in order to enforce migratory controls. The migratory status control procedures for foreigners that have been implemented by the Spanish State rely on the participation of local entities and autonomous communities. The state, by way of Basic Law 4/2000, January 11, on the Rights, Freedoms, and Social Integration of Foreigners in Spain (Alien Act), establishes the participation of the autonomous communities and, where relevant, the municipalities, in temporary residence authorization procedures, temporary residence permit renewals, and family reunification. Traditionally, the municipalities have been the ones to collaborate on cases like this; however, since 2011—following a reform of the Alien Act—the state has given this responsibility to the autonomous community, which in turn must decide whether or not to delegate this power to the municipalities. However, practically all of the autonomous communities have delegated this power to the municipalities, with the exception of Madrid, Catalonia, Basque Country, and the Canary Islands, which have decided to enforce it directly.
← 165 | 166 → The participation of the municipalities or of the autonomous community consists of issuing a report on the social stability of foreigners, their level of integration, and their living conditions (according to the type of procedure). This report is not binding, but it certainly has the ability to influence the final decision. In order to complete this task, the state establishes very detailed instructions that turn the municipalities and the autonomous communities into indirect administration for the state in this regard. The margin of configuration of a policy in the enforcement of these powers is very narrow. Despite this, certain restrictive tendencies in the application of this regulation should be noted in the case of the Community of Madrid, as well as in some U.S. states.
Since February of 2012, for the purposes of a report on social stability and integration efforts, Madrid has demanded the passing of a language test—for non-Spanish speakers—and a course on Spanish culture—the “Know Your Laws” program—that is intended to condition the migratory status of foreigners based on the demonstration of their integration efforts. In the United States, there is no similar collaboration between municipalities, counties, states, and the national government. The documentation necessary for the revision of an individual case is completed directly between the individual and the federal government, with the assistance of lawyers and/or NGOs. Therefore, any possible collaboration on the enforcement of migratory controls will not reach the level of formalization that has been determined by the territorial structure of Spain. Without a doubt, there exist restrictive municipalities that may establish procedures within the framework of their powers that are intended to limit the permanence of illegal immigrants in their territory—for example, modifying rental agreements—but neither municipalities nor states in the U.S. are integrated into federal immigration control procedures. Restrictive states have adopted certain measures to change this situation. The State of Alabama, for example, has adopted a law that assigns public school teachers the responsibility of documenting the legal status of their students and their students’ parents. However, the application of this law has been suspended pending examination by the Supreme Court.
The national government’s access to local information is another of the most important aspects in the enforcement of immigration control policies in both Spain and the U.S. Also on this point, the dynamics that govern the relations between the distinct territorial levels of power are very diverse. In the United States, municipalities enjoy the freedom to choose whether they will collaborate with the federal government in offering information regarding immigrants’ legal status. For example, the E-Verify program offers voluntary collaboration agreements with municipalities in exchange for funding. This affords the municipalities a wide margin of decision, notwithstanding the possibility that the state may oblige or prohibit its local entities from collaborating with the federal government. Furthermore, in the United States there is no registration comparable to the Spanish system, and ← 166 | 167 → the municipalities do not grant the title of resident or neighbor to anyone. While county tax collection records exist, there is no systematic method of registering information on illegal immigrants as such. In the political context of the United States, not asking questions about one’s migratory status is considered to be the best way to protect illegal immigrants.
In Spain, however, a fundamental task of the municipalities consists of elaborating on and maintaining the municipal census, which preserves residents’ faith in the municipality and serves as a base for the development of the national electoral census. Through a discussion on the inclusion of illegal immigrants in this registry, it has been decided that these immigrants should be registered as a means of facilitating their access to a greater number of social benefits—in the case of health care, for instance, registration in the census allows them to receive health insurance cards and, therefore, access to all of the health services that would otherwise be much more restricted. At the same time, the transfer of local data—contained primarily in the municipal registry—is limited by the right to data protection. All of the municipalities, regardless of their political tendencies, are prohibited from sharing the information contained in the municipal registry with police authorities from the central atate, with the exception of individual instances in which the information being shared is necessary to counteract a real threat to the public safety or to prosecute criminal offenses (Article 22.2 of Basic Law 15/1999, December 13, on Data Protection). According to the interpretation given by the Spanish Data Protection Agency, only in cases where there exists a previous, well-founded suspicion may the information contained in the municipal registry be shared. Thus, a general rule has been established that operates the same in all cases, which does not allow the municipalities to use information on foreigners in an adverse manner for political gain.
Finally, an analysis must be made of the role of local police in the enforcement of migratory controls. In Spain, local police are not authorized to exercise the functions of immigration control agents. They may only exercise control over a person’s migratory status if it becomes necessary while performing other duties, although in practice police are not entirely bounded by this limitation. Immigration control is the responsibility of the National Police (Articles 12.1a, 1 and 2 of Basic Law 2/1986, March 13, on Security Forces). In the United States, the situation was similar prior to 1997. Local police did not enforce immigration controls. But in 1997, Section 287(g) was added to the Immigration and Nationality Act via the enactment of the Illegal Immigration Reform and Responsibility Act of 1996. This precept allows state and local governments to come to an agreement that local police officers may be authorized to carry out the functions of immigration officials. The result of this measure has been a dramatic increase in the number of arrests and deportations, often initiated by minor traffic violations. This program has also caused controversy due to its discriminatory potential towards anyone who ← 167 | 168 → appears to be an immigrant, which has led to the interrogation and harassment of citizens. More recently, the Secure Communities program has made it easier for local police to cross-reference the fingerprints of a detained individual against those contained in the database of immigration control. As a result, thousands of arrests and deportations have been made of people who have not committed any crime whatsoever. The participation of local governments in these programs is voluntary, given that the federal government assumes that local governments will want to participate of their own accord. The voluntary nature of these programs has allowed, for example, the state of Illinois to not participate. Recently, however, in May 2012, the states of Connecticut and New York were forced to initiate the Secure Communities programs, despite having declared their opposition to them. This means that, unlike Spain, a duty to share information with the federal government is a real possibility. However, collaboration regarding the detention of immigrants will be more difficult to impose, given the presence of a consolidated opposition from local governments towards the detainment of people solely to review their migratory status when they have no pending court cases. This is the case, for example, in Cook County.