Legal Question in Constitutional Law in Georgia

I saw an interview with an ICE agent and he told how agents were being prevented from arresting illegal immigrants who committed crimes if the fell under Obama's new guidelines. Crimes such as driving without a license, assault, even assault on a federal agent, and assault on a police officer, and fleeing from arrest. If an American committed any of these offenses, they would be arrested without question.

Isnít is unconstitutional for one group of people to be exempt from being arrested for a crime based on factors such as: being in this country since childhood, going to HS, or being in the military, when ALL people who meet those qualifications arenít exempt from arrest for committing the same crimes? Does the Equal Protection Clause of the 14th Amendment protect us from these sorts of things?

In other words, can all LEGAL AMERICANS who meet the guidelines that Obama has set, now use those guidelines as a defense in court to have the charges against him/her thrown out based on them being unconstitutional?


Asked on 8/25/12, 4:08 pm

2 Answers from Attorneys

John Mitchell Interaction Law

It sounds as though either the ICE agent missed part of the class or something was lost in translation. Your question seems based on a false premise. Keep in mind that a federal agent has no business arresting people for a state offense, such as driving without a license, regardless whether the person's entry into the U.S. was lawful. Assault, likewise, is typically a state law offense. If an American (if, by that, you mean U.S. citizen, as all South Americans and Central Americans are also American) committed a state offense, the federal agent would not arrest them.

It is simply not true at all that anyone, regardless of citizenship or lawfulness of entry into the United States, is "exempt" from being arrested for a crime based on being in the U.S. since childhood, going to high school or being in the military. Total hogwash. If an ICE agent told you otherwise, I suggest you report it to the ICE agent's superiors.

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Answered on 8/25/12, 11:00 pm
Edward Hoffman Law Offices of Edward A. Hoffman

ICE agents do not have universal law-enforcement authority. They only enforce federal immigration and customs laws. The crimes you list do not violate those particular laws (with narrow exceptions, such as assaulting or fleeing arrest by an ICE officer).

You're right that American citizens and legal aliens would be arrested for these crimes. But they wouldn't be arrested by the ICE. They would be arrested by local police departments, the FBI, or some other law-enforcement agency with appropriate jurisdiction. Those same agencies would arrest illegal aliens for committing the same crimes.

The policy you describe (which I presume is real, though I haven't verified it) thus does not treat illegal aliens more favorably than Americans or legal aliens. None of them would be subject to arrest by the ICE for these crimes, but all would be subject to arrest by other departments and agencies.

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Answered on 8/26/12, 1:56 pm


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