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Wisconsin law enforcement officers currently do have the legal authority to enforce federal criminal immigration violations, but do not have the legal authority to enforce federal civil immigration violations. Wisconsin law enforcement officers must distinguish between federal criminal immigration violations, which they may enforce, and federal civil immigration violations, which they may not enforce. How can law enforcement officers determine whether the immigration violation is criminal or civil?
Law enforcement officials can use the new NCIC Immigration Violators File (IVF) (formerly the Deported Felon File (DFF)) categories in making this determination. The Bureau of Immigration and Customs Enforcement (“BICE”) is now entering three primary categories of immigration violations into NCIC by: (1) Deported Felon Category; (2) Absconder Category; and (3) NSEERS Category. The Deported Felony and Absconder Categories represent enforceable federal criminal immigration violations for state law enforcement officers. The NSEER’s category is a civil immigration violation, unenforceable by state law enforcement officers. These three categories are more particularly described as follows.
1. Deported Felon Category: Probable Cause to Arrest (Enforceable)
The Deported Felon Category contains records for previously deported felons convicted and deported for drug trafficking, firearms trafficking, or serious violent crimes. In this category, state law enforcement officials do have authority to question, detain, and/or arrest based on a hit confirmation from Law Enforcement Support Center (“LESC”) that the alien is a deported felon, because failure to depart the country after being ordered deported for a criminal offense is a criminal immigration violation, and provides probable cause to arrest.
NCIC record hit responses in this category will be reflective of the information below:
Caveat:
WARNING REGARDING FOLLOWING RECORD – SUBJECT OF NIC/NXXXXXXXXX IS A PREVIOUSLY DEPORTED FELON. CONTACT LESC AT (877) 999-5372 FOR IMMEDIATE HIT CONFIRMATION AND AVAILABILITY OF BUREAU OF IMMIGRATION AND CUSTOMS ENFORCEMENT DETAINER.
MKE Translation:
MKE/IMMIGRATION VIOLATION – DEPORTED FELON
Offense Code Translation:
SUBJECT IS A DEPORTED CRIMINAL AGGRAVATED FELON
2. Absconder Category: Probable Cause to Arrest (Enforceable)
The Absconder Category contains records for individuals with an outstanding administrative warrant of removal from the United States who have unlawfully remained in the United States. In this category, like with the Deported Felon Category, state law enforcement officials do have authority to question, detain, and/or arrest based on a hit confirmation from LESC that the alien is an absconder, because failure to depart the country after being ordered deported is a criminal immigration violation and constitutes probable cause to arrest, even though the initial reason for the deportation order in this category may have been that the alien committed a civil immigration violation.
NCIC record hit responses in this category will be reflective of the information below:
Caveat:
WARNING REGARDING FOLLOWING RECORD – SUBJECT OF NIC/NXXXXXXXXX HAS AN OUTSTANDING ADMINISTRATIVE WARRANT OF REMOVAL FROM THE UNITED STATES. CONTACT LESC AT (877) 999-5372 FOR IMMEDIATE HIT CONFIRMATION AND AVAILABILITY OF BUREAU OF IMMIGRATION AND CUSTOMS ENFORCEMENT DETAINER.
MKE Translation:
MKE/IMMIGRATION VIOLATION – FAILURE TO APPEAR FOR REMOVAL
Offense Code Translation:
ALIEN UNLAWFULLY PRESENT DUE TO ORDER OF REMOVAL OR EXCLUSION FROM THE USA
3. NSEERS Category: NO Probable Cause to Arrest (Unenforceable)
The NSEERS (National Security Entry-Exit Registration System) Category contains records for individuals who are subject to monitoring for national security or law enforcement interests while in the United States. Unlike the Deported Felon and Absconder categories, state law enforcement officials do not have authority to arrest based on a hit confirmation from LESC that the alien is an NSEERS violator. The law is currently unclear as to whether state law enforcement officers even have the authority to detain suspects for potential NSEERS violations. Therefore, absent an independent legal basis under Wisconsin law for arresting or detaining an NSEERS violator, the prudent course of action for Wisconsin law enforcement officers is to terminate their detention of a person solely because of the person’s NSEER status.
NCIC record hit responses in this category will be reflective of the information below:
Caveat:
WARNING REGARDING FOLLOWING RECORD – SUBJECT OF NIC/NXXXXXXXXX HAS AN OUTSTANDING ADMINISTRATIVE WARRANT OF ARREST FOR IMMIGRATION VIOLATIONS FOR FAILURE TO COMPLY WITH NATIONAL SECURITY REGISTRATION. CONTACT LESC AT (877) 999-5372 FOR IMMEDIATE HIT CONFIRMATION AND AVAILABILITY OF BUREAU OF IMMIGRATION AND CUSTOMS ENFORCEMENT DETAINER.
MKE Translation:
MKE/IMMIGRATION VIOLATION – NATIONAL SECURITY REGISTRATION
Offense Code Translation:
SOUGHT FOR VIOLATION OF NATIONAL SECURITY REGISTRATION
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