Q. What is the City of Lewisville’s position on illegal immigration and illegal immigrants?

A. Lewisville officials recognize that illegal immigration is a major concern. We strongly believe that the federal government (primarily the legislative and judiciary branches) needs to act in order to create a clear understanding of the role of local or state governments in immigration law enforcement, and to resolve the question of the legal status of the estimated 12 million or more illegal aliens currently in the country, many of whom have family members (often minor children) who are U.S. citizens.

The city actively enforces all laws and ordinances within its jurisdiction, none of which are specifically aimed at illegal immigration, although some may deal with various impacts of illegal immigration.

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Q. What laws are on the books regarding illegal immigration?

A. The Immigration and Nationality Act (INA) defines the nation’s immigration laws, which include both criminal and civil enforcement measures. The INA distinguishes between illegal entry, which is the act of

entering the country unlawfully, and illegal presence, which is the act of staying in the country unlawfully. Illegal entry is a criminal violation that can be enforced by local law enforcement, but only if an officer actually
witnesses the illegal entry take place. Illegal presence is a civil violation currently enforced at the federal level.

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Q. What is the role of local law enforcement in the enforcement of immigration law?

A. There is no question that a local law enforcement officer has the authority to enforce the criminal provisions of the INA; however, the enforcement of the civil provisions, which includes apprehension and removal of illegal aliens, is not well-settled. At least one court in Texas has held that a police officer’s authority to enforce the criminal provisions of immigration law does not extend to the civil provisions. As a result, local law enforcement relies on cooperation from federal authorities in trying to enforce federal immigration law.

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Q. How does the Lewisville Police Department enforce federal immigration law?

A. For many years, we have worked cooperatively with the Immigration and Customs Enforcement (ICE) branch of the U.S. Department of Homeland Security to identify criminal offenders wanted by the federal government for immigration or other charges. The Lewisville Police Department is currently screening every person arrested and admitted to the city jail to assess their citizenship/immigration status. If we are unable to determine their legal status, we call ICE and request a review of their records and databases. ICE may interview the individual and may issue a detainer for that individual, in which case they are held for transfer to ICE custody. Illegal offenders charged with serious state crimes will normally remain in local or state custody until trial. If ICE does not issue a detainer for a person, then we have no choice but to process them through the justice system as with any other arrestee.

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Q. If you know where illegal immigrants are congregating, why don’t you go pick them up and have them deported?

A. Any local enforcement based on, or that has the effect of being based on, a person’s appearance or ethnicity is strictly prohibited by federal civil rights law and by state racial profiling law.

Again, the city as a local law enforcement entity has no authority under current federal immigration statutes to detain someone on the basis of suspected illegal presence in the U.S. Police officers are not allowed to approach a person and demand proof of identity or citizenship without cause, although they can ask such questions during the course of investigating a suspected criminal offense. This principle is the basis of the Constitutional protection against unreasonable search and seizure.

There is much debate on the Web and elsewhere about the Constitutional role of the federal government versus that of the local or state governments with regard to immigration enforcement. This debate is continuing in the Hazelton, Farmers Branch, Escondido, Mamaroneck and other court cases involving municipalities as well as in laws passed by state legislatures, such as Oklahoma, Arizona and Georgia.

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Q. Why doesn’t the city crack down on illegals by enforcing other ordinances and rules?

A. The city enforces its ordinances uniformly, without regard to race, ethnicity, national origin, creed, sex or immigration status. Concentrated enforcement against any group based on perceived immigration status exposes the city to criminal and civil liability for racial profiling or civil rights violations, and could lead to extended costly and failed litigation, such as that in Mamaroneck.

However, the city has increased neighborhood code enforcement efforts and will consider adding an additional code officer in the spring of 2008. Further measures adopted recently include a single-family rental property inspection program, and towing vehicles without proof of financial responsibility (including after vehicle accidents). The city has been aggressively enforcing ordinances related to grass/weeds, secondary structures, cars parked off-street, trash/debris and other violations for many years and will continue to do so, uniformly and equally. It is important to note that more aggressive enforcement also impacts legal residents.

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Q. Why doesn’t the City of Lewisville pass local ordinances like those in Hazelton or Farmers Branch?

A. Those ordinances have been aggressively challenged in the courts by numerous groups, and the cities have been stopped from implementing them until the legal process has run its course. Until this happens, it makes no sense to spend hundreds of thousands of taxpayer dollars defending local ordinances based on the same concepts as used in these other cities.

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Q. What publications or communications does the city provide in Spanish, and why?

A. The city does produce or distribute some materials in languages other than English (mainly Spanish). Many of those are required by state or federal law, such as all election information, certain employment publications and public posting of the Texas Public Information Act. Others occasionally are produced by individual departments because of the impact those materials have on public safety or public health, which affect the entire city and require precise communication in order to protect all residents. For these topics it is important to reach as many people as possible, regardless of language or immigration status. Similarly, emergency notifications of various types might require translation into foreign languages if the situation warrants it.

The Lewisville Public Library offers a limited number of printed and other materials in languages other than English. These are used not only by native-speakers of those languages, but by English-speaking patrons wanting to learn an additional language. The 2007-08 library budget includes $356,701 for library materials, of which only $8,225 (about 2.3 percent) is slated for materials in non-English languages, including Vietnamese, Chinese, Korean and Spanish.

The city website can be generally translated into several languages using a free service. This service is offered because the website is the City’s public face “world wide.” Interest in Lewisville can reach beyond language barriers or jurisdictional boundaries, such as in visitation through the Lewisville Convention and Visitors Bureau or in economic development through shopping or commercial activity/development/investment.

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Q. Why doesn’t Lewisville declare English as its official language?

A. All city business is conducted primarily in English. If someone comes forward to conduct business with the city and needs assistance in a language other than English, then we attempt to reasonably accommodate that person. Examples include oral communication in Municipal Court or the Police Department. As stated above, the only active communication conducted by the city in any language other than English are those areas that are required by law or those that impact public health or safety, the same exceptions that are included in the small number of official-language measures that have been adopted in other Texas cities.

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Q. Does Lewisville have a 287(g) agreement with Immigration and Customs Enforcement to allow local officers to enforce federal immigration law?

A. No. There are three entities in Texas that have been accepted as 287(g) participants. Carrollton and Harris County participate in the "jail" model, and Farmers Branch in the "task force" model. In Farmers Branch, a detective received training and participates part-time in a multi-agency task force that provides for immigration processing of criminal suspects who are suspected of being in the country illegally. Farmers Branch was denied its request to train jail staff under 287(g). The number of municipal agencies in Texas participating in 287(g) is limited to available federal funding, but Lewisville and many other police departments obtain the same or better results with current procedures and cooperation with ICE. However, application to 287(g) remains a future option available to the City of Lewisville.

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Q. What is the 287(g) program?

A. The Immigration and Nationality Act was amended in 1996 to include Section 287(g). The amendment authorizes the Secretary of the U.S. Department of Homeland Security to enter into agreements with state and local law enforcement agencies that would permit designated officers with those agencies to perform immigration law enforcement functions after receiving appropriate training from Immigration and Customs Enforcement (ICE). The stated purpose of the 287(g) program is to provide local and state agencies with the “necessary resources and latitude to pursue investigations relating to violent crimes, human smuggling, gang/organized crime activity, sexual-related offenses, narcotics smuggling and money laundering.” In 2009, ICE relocated 287(g) under ACCESS ("Agreements of Cooperation in Communities to Enhance Safety and Security") along with 12 other cooperative programs.

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Q. How would a city take part in the 287(g) program?

A. The local agency must make application with ICE, which then conducts an assessment of the community served by the local agency to determine the need. If need for the program does exist, then ICE negotiates a Memorandum of Understanding with the local agency. Once an agreement is signed, ICE agents train the designated local officers and the local agency implements the program. While conducting federal immigration enforcement activities, the local officers would fall under the supervision of ICE. In August 2009, ICE introduced a new agreement template for local agencies participating in the 287(g) program requiring all previously participating entities to re-sign the new agreement. It’s believed this is in response to an audit conducted and released by the Government Accountability Office (GAO) that was critical of management of the program and alleged abuses. The new agreement shares more cost with the participating entity along with strengthening management control by ICE.

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Q. Does the City of Lewisville have an anti-loitering ordinance?

A. No. In 1999, the United States Supreme Court held that an anti-loitering ordinance enacted by the City of Chicago was unconstitutional. Based on the reasoning in the Supreme Court’s ruling, many cities nationwide removed their loitering provisions or simply chose to stop enforcing them. Lewisville does not currently have an anti-loitering ordinance.

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Many years ago it was common for municipal ordinances to permit only a limited number of unrelated persons living in the same dwelling (especially in college towns where multiple students might rent space in a single house), but through the years those ordinances have failed to meet legal burdens of proof. For example, it is extremely difficult to prove someone is living in a house and is not merely a long-term guest. It is even more difficult to prove relationships, and attempts to define “related” or “family” have repeatedly been struck down in court.

However, in situations where a large number of people are living in a single house, there typically are other impacts that can be measured and enforced under existing code. Complaints about persons per household typically are forwarded to the code enforcement staff and the police department. Code enforcement will visit the site and look for such possible violations as cars parked on grass, unsightly material outside, high grass and weeds, etc. If there are violations, then they are handled through the code enforcement process. In addition, police officers will check to see if vehicles at the site are legally parked on the street. Police officers are not able to enter and search the house or question the residents, however, as the courts have repeatedly ruled that “right of entry” does not exist in this type of circumstance unless other criminal violations are witnessed and warrants issued.

This issue is not unique to Lewisville and we are involved with other cities in reviewing ordinances and enforcement procedures regionally for the best legal methods to address the issue. Generally speaking, we are able to focus on the other violations listed above in an efficient manner. To date, we do not have an immediate tool to deal with the “persons per household” issue by itself.

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Q. Doesn’t all this make Lewisville a “sanctuary city” for illegal immigrants?

A. No. A sanctuary city typically is defined as one in which the government and its law enforcement officers deliberately choose not to take available actions to identify and remove illegal immigrants who enter the justice system. That can be through formal policy, resolution of an elected body, or simply a departmental practice. Often it is declared publicly by city officials. As described above, we do actively investigate the immigration and citizenship status of all people who enter our justice system.

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Q. Who makes sure that employers verify the citizenship or immigration status of their employees?

A. The Immigration Reform and Control Act of 1986 requires all employers, regardless of size, to confirm employee identity and eligibility to work. Employers are required to complete I-9 paperwork on all employees within three business days of when they start work. If an employer knowingly employees an unauthorized alien, significant civil penalties can result along with possible criminal charges. Immigration and Customs Enforcement (ICE) is the federal agency that enforces this law.

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Q. Does the City of Lewisville ever hire undocumented workers?

A. Absolutely not. Every person considered for employment with the city is verified for identity and eligibility, and I-9 forms are processed and kept on file. In addition, any contractor hired to perform work for the city is required to comply with federal employment law.

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Q. Can private property owners keep day workers off of their property?

A. Yes. Private property owners can voluntarily work with the city to enforce trespassing laws within the guideline of state statutes. In fact, the owners of Lewisville Marketplace (formerly Huffines Plaza) chose to participate in a program to restrict entering or remaining on their property unless conducting business with one of the tenants. An agent of the owner signed an affidavit empowering the police to enforce criminal trespassing once a statutory warning is provided (either verbal or by signs). If private property owners choose not to, the city has no authority to intervene with work solicitation on their property.

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Q. Can the city stop employers from soliciting laborers from public streets or laborers from going in the street to solicit employment?

A. City ordinance currently prohibits a person who stands, sits or otherwise occupies a position in a public street from soliciting employment or business from an occupant of a vehicle. Practically speaking, however, this ordinance is difficult to enforce because officers would have to hear the conversation between the parties in order to prove that business or employment was solicited. The City increased its number of "no stopping, standing or parking" locations to include those known to attract employers of day laborers, and will continue to enforce those restrictions.

Such enforcement has to be uniformly and equally applied, however, thereby impacting all residents, such as parents parked on a public street waiting for the dismissal of their children from school.
Since Jan. 1, 2009, Lewisville police have conducted several undercover operations during the past year, resulting in 13 citations and 24 arrests on charges of solicitation by a pedestrian, a Class C misdemeanor that carries a maximum $500 fine. Those who can't provide verifiable state-issued identification are arrested and referred to U.S. Immigration and Customs Enforcement (ICE), although only one of the 24 detainees was accepted into custody by ICE.

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Q. Why was the city considering a day labor center?

A. Because of the limitations of enforcing work solicitation on public or private property, day workers occupy many sidewalks, street corners and private property, thus creating a significant eyesore to the city’s appearance. Many complaints were received from affected neighborhoods.

Since there was no effective local tool to eliminate this activity, and private property owners were not responsive to using trespassing laws, the concept of concentrating this activity in a single location was considered. Public sidewalks are public. Without an alternative location, cities cannot simply ban work solicitation activity from the sidewalk, including those in front of your own residence.

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Community Shield is an ICE Gang Task Force designed to focus on violent transnational gangs moving into the North Texas area. Gang Officers from Lewisville would receive a Customs Cross-Designation Status under Title 19 under U.S. Code 1401 and participate on a part-time basis with the ICE Task Force to share intelligence,Title 19 training would allow our officers to act with the limited federal authority when working side-by-side with an ICE agent when it comes to investigating and enforcing customs law. One such surge took place in July 2009 and resulted in two ICE arrests, while a similar surge in June 2011 resulted in three arrests.
Secure Communities provides the police department with access to ICE data through fingerprint scanning equipment. This is most effective when conducted in the jail during book-in of all prisoners and closes the gap on Tier III offenses (minor violations such as traffic offenses) that might not be otherwise flagged by the city's existing Criminal Alien Program.

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