Summary of Handling Immigration Violations

Wisconsin law enforcement may question, detain, and/or arrest based on hit confirmations from LESC that the person is a Deported Felon or an Absconder. Law enforcement may not arrest or detain a person solely because he or she is a suspected NSEERS violator. However, a person’s status as an NSEERS violator does not prevent a law enforcement officer from detaining or arresting the person for violations of Wisconsin law. (As in all traffic stops, however, state law enforcement’s authority is still subject to, and restricted by, all of the other constitutional parameters for Terry stops, such as reasonable suspicion for the original traffic stop.)

Cautionary Note: Police questioning about immigration status

Law enforcement officers may not stop vehicles solely on basis of racial or ethnic profiling simply to question the passengers about immigration or citizenship status. Further, when law enforcement officers make a lawful stop, they may not ordinarily detain the vehicle’s passengers beyond the period required for disposition of the matter that justified the initial stop. Officers have the right to determine the identity of a driver of the vehicle, this includes the right to ask for identification necessary to run an NCIC record check. While officers may not compel passengers to identify themselves in most circumstances, officers may ask passengers to provide information that permits them to conduct an NCIC record check. While officers should not request immigration documents, officers may consider immigration documents drivers and passengers provide to them for the course of conducting an NCIC record check.

Unless a hit confirmation from NCIC verifies that a person is a the Deported Felon or Absconder Category, the officers investigation of immigration violations must cease. However, the officer may continue to detain the person for purposes of investigating violations of Wisconsin law. In other words, the mere fact that a person may indicate that he or she is an “illegal alien” is not sufficient, in and of itself, to warrant further detention or arrest, because being illegally present in this country does not usually signify a criminal immigration violation. Rather, illegal presence is more often a civil violation which state law enforcement officials have no authority to enforce.

Conclusion

Wisconsin law enforcement officer currently only possess the legal authority to enforce federal criminal immigration violations (and not federal civil immigration violations). As such, an officer only has the authority to arrest for an immigration violation when an NCIC hit confirmation shows that the subject is a Deported Felon or an Absconder. On the other hand, if the NCIC hit reveals that the subject is a NSEERS violator, the officer may continue to detain the subject only if the officer has reasonable suspicion or probable cause to believe that the subject has committed a violation of Wisconsin law.