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Troopers checking drivers' US status

Ignoring Patrick policy, groups say

State Police in Western Massachusetts are enforcing immigration laws despite what immigrant advocates say is Governor Deval Patrick's clear policy that immigration is not the business of local officers.

The American Civil Liberties Union of Massachusetts, one of the groups that brought the situation to the attention of the Patrick administration in a recent meeting, says the practice is routine in the Berkshires.

According to the ACLU, troopers from the Lee Barracks in Berkshire County have targeted drivers who appear to be Brazilian, and have quizzed them and their passengers on their immigration status after stopping them for speeding, expired inspection stickers, and other routine offenses.

In at least two of those cases, they held drivers whom they believed to be illegal immigrants and turned them over to Immigration and Customs Enforcement officers.

Attorneys and other activists say that the troopers are disregarding a policy Patrick set in January, when he rescinded an agreement made with federal authorities by his predecessor, Mitt Romney, that would have allowed some specially trained state troopers to arrest and detain illegal immigrants without consulting federal authorities.

"We thought Governor Patrick had sent a clear message," said Anjali Waikar, an ACLU lawyer. "By rescinding the [federal agreement]," he said, "State Police ought not to be enforcing immigration laws. But from our reports, it seems like State Police are collaborating with immigration authorities."

The Patrick administration counters that police with just cause have checked identity and immigration status during routine traffic stops for years, and that is not inconsistent with the governor's position .

"Police officers interacting with federal immigration authorities is nothing new," Kurt N. Schwartz, undersecretary of law enforcement and fire services in the Patrick administration.

"It's good law enforcement, if done in a certain way."

The dispute over which powers state troopers should have when they suspect someone of being in the United States illegally is one of the most hotly contested in the wider national debate over immigration.

There was an uproar among immigrant advocates when Romney signed the agreement with Homeland Security in December deputizing state troopers to arrest and detain illegal immigrants .

Patrick rescinded the agreement before it went into effect, signaling a clear break from his predecessor on the issue of immigration.

"With all that the State Police have to do to enforce the laws of this Commonwealth, I do not believe it is either practical or wise to ask them to enforce federal laws as well," Patrick said at the time. "That is the job of the Federal government."

Immigrant advocates say they interpreted the new governor's position as a clear directive to troopers to stay out of immigration matters.

But the reality on the ground has proved far murkier than Patrick's statements indicated. In Lenox, a trooper stopped a driver for having an expired inspection sticker and then questioned him and his passengers on their immigration status. The driver was eventually arrested for carrying false identification after the trooper contacted federal immigration authorities.

The driver's family then told lawyers that the trooper who made the arrest later came to their home and told them to go back to Brazil, since their relative was being deported there.

In Richmond, a driver was pulled over for speeding and, after he produced a foreign driver's license, was arrested for driving with a fraudulent license and eventually transferred to a federal facility in Rhode Island.

Lawyers say that federal regulations prohibit state and local police officers from helping to enforce immigration laws in the absence of an explicit agreement like the one signed by Romney and rescinded by Patrick.

"This goes against the law," said Michael Wishnie, clinical professor of law at Yale University. "Congress has extensively regulated immigration law enforcement, and has detailed the circumstances in which state and local police may enforce its provisions. These cases don't fit those circumstances."

But Schwartz said it is appropriate for troopers to apprehend immigrants who appear to be here illegally in the course of normal duties, such as traffic stops.

Patrick was rejecting the idea of troopers enforcing immigration laws as one of their primary duties, not directing them to avoid doing so in the course of traffic stops, Schwartz said.

Nevertheless, Schwartz said the incidents described by the immigrants' lawyers are under investigation.

"It's very difficult to draw a bright line and say 'This is appropriate and this isn't,' " he said. "But if there is a trooper or troopers out there whose primary motivation is to enforce immigration law, then that is not appropriate, and we would take corrective action."

According to federal law, unless they are specifically authorized to do so, troopers cannot detain drivers on immigration violations unless they have cause to believe drivers are smuggling, transporting, or harboring illegal immigrants, or if a driver has already been deported after a felony conviction.

But even here, the waters muddy.

In the last few years, the Department of Homeland Security has added immigration violations to a national crime database troopers check during all traffic stops, presenting State Police with the choice of ignoring immigration violations that come up under a driver's name, or contacting Immigration and Customs Enforcement and being drawn into applying federal laws.

Wishnie and others are challenging the inclusion of immigration information in that national crime database.

Furthermore, a Justice Department memo from 2002 contradicts the regulations enacted by Congress, in addition to several of its own previous advisories on the matter, saying that state and local police can arrest and detain immigrants they suspect are here illegally.

That position has not yet been tested in court, said Wishnie.

The Justice Department position has support among those who favor stricter immigration controls.

"Federal resources cannot hope to address the immigration issue, so local enforcement is key to enforcing country's laws on illegal immigrants," said Steve Kropper, cochairman of Massachusetts Citizens for Immigration Reform. "We don't want to type illegal immigrants on appearance, that's discrimination. But if you stop somebody on a traffic infraction, you clearly should be able to check their identity, and an illegal immigrant doesn't warrant due process."

Yvonne Abraham can be reached at abraham@globe.com.

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