Say that a person is an illegal immigrant in the United States and a crime is committed against them, such as robbery, domestic abuse, etc. If they report the crime to the police, and a police officer discovers that the person is an illegal immigrant, do they have a legal obligation to report them? Or does being the victim of a crime give them some sort of immunity against this?

This question is prompted by the beginning of story on the radio about how illegal immigrants who were victims of domestic abuse were afraid that they would be deported if they went to the police. I didn't hear enough to know if their concerns were justified.

  • 1
    So far from the research I've done, it seems that if the illegal immigrant is a victim of a crime and he/she cooperates with the police, he/she may qualify for a U Visa. avvo.com/legal-answers/… – Michael Apr 8 '17 at 1:56
  • @MichaelC. So if they "may" qualify, does that mean it's a risk to do so? Like if they report the crime and they don't qualify or for some other reason can't obtain it, then they risk deportation? I notice from the Wikipedia article on U Visas that less than 2,100 are issued each year, and there is a backlog of 64,000 requests. – Thunderforge Apr 8 '17 at 2:15
  • 1
    I don't know. But I've reached out to some of my lawyer peers and I'm awaiting their response. This is a good question as I'm sure there are grey lines. – Michael Apr 8 '17 at 2:17
  • 1
    The short answer is that the answer is "no". There is no obligation to being reported, although there generally isn't immunity for doing so and some undocumented immigrants who have reported crimes have been reported and deported. Many police departments actually make a point of not doing so as a matter of policy, but no police department is obligated by federal law to do so - this is a core policy of a so called "sanctuary city." – ohwilleke May 7 '17 at 22:22
  • How would the police know whether someone filing a report is an illegal immigrant? Before asking whether they must report such a person, you might want to ask whether they are obligated to investigate the immigration status of people who report crimes. – phoog May 8 '17 at 14:15

"Police" that one would generally encounter in the US are local or state agencies, and the ordinary crimes you mentioned are matters of state law, so they would be reported to local or state police. (There are federal law enforcement agencies, but they only deal with specialized areas of federal law, and you wouldn't ordinarily encounter them in daily life.) On the other hand, immigration is a matter of federal law.

The responsibilities of local or state police are governed by state law, and the federal government cannot compel state officers to enforce federal law. A specific state's law could potentially require state and local police to ask about people's immigration status and/or ask the federal government to check on the status of someone they suspect might be illegal. I believe a few red states have enacted, or are considering, such laws, though they usually deal with people stopped by police rather than people filing a report. Some of these laws have been challenged in court, and I am not sure which exact parts of which laws are still being implemented for each of those states. Most states do not have such laws.

  • This is helpful information, but it would be even better if you added sources to your answer. – Thunderforge May 7 '17 at 22:50
  • 2
    It might be worth noting that state and local officers are generally unable to make a definitive determination of immigration status in many cases, such as for people with pending applications to adjust/change/extend status. – phoog Jul 7 '17 at 17:12
  • Any good police force will be more interested in being told about serious crimes than looking for illegal immigrants. – gnasher729 Dec 10 '17 at 19:57

There is a federal law, 18 USC 4, against "misprision of felony", which states

Whoever, having knowledge of the actual commission of a felony cognizable by a court of the United States, conceals and does not as soon as possible make known the same to some judge or other person in civil or military authority under the United States, shall be fined under this title or imprisoned not more than three years, or both.

Various (but not all) violations of immigration laws count as felonies in being punishable with 2-5 years of prison (18 USC 1325).

In US v. Baumgartner, citing US. v. Goldberg, 862 F.2d 10 which cites the same conclusion from prior case law, says that the elements of misprision of felony are

(1) the principal committed and completed the felony alleged; (2) the defendant had knowledge of the fact; (3) the defendant failed to notify the authorities; and (4) the defendant took affirmative steps to conceal the crime of the principal.

The first 3 elements are present, so whether or not the officer would be himself committing a felony hinges on the last element. (r.e. element 2, the law does not require defendant to have personally observed the commission of the felony, see the Baumgartner case). As the courts also said,

Mere knowledge of the commission of the felony or failure to report the felony, standing alone, is insufficient to support a conviction for a misprision of a felony.

It thus matters whether the officer engaged in action to affirmatively conceal the felony. An example of active concealment would be modifying a police report to remove information reporting such; or instructing a colleague to not include such information. However, reporting the crime but not forwarding the report to ICE would probably not be held to be active concealment, unless law enforcement officers have a general duty to report all felonies to competent authorities (an obligation which I don't think exists).

  • How is even the second element present? First, the police officer would need knowledge, not suspicion, of the commission of a felony, and this law creates no obligation to investigate any suspicion. Second, being out of status is not, as you note, a felony, so the knowledge that someone is an illegal alien does not satisfy the second element. – phoog May 8 '17 at 14:22
  • The OP assumes knowledge: read Baumgartner. Being out of status is a felony, for second offenses and marital fraud for instance. – user6726 May 8 '17 at 15:06
  • 2
    Being out of status is not even a crime. It is a civil violation. Illegal entry is a felony after deportation. So, the argument remains: knowing that someone is out of status isn't the same as knowing that that person has committed a felony. The assumption in the OP is merely that the police "discover" that the person is an illegal immigrant; by itself such a fact does not constitute knowledge that a felony was committed. In fact, the assumption doesn't even imply the first element, since the illegal immigrant may in fact have overstayed a visa after being lawfully admitted. – phoog May 8 '17 at 15:41
  • 1
    Thanks for adding the citation to the USC. It still seems to me that you're arguing that because people who are in the US and have committed an immigration felony are not legally in the US, we can assume that someone who is not legally in the US has committed an immigration felony. This seems like arguing that because people who have stolen a car are in possession of a car, we can assume that someone who is in possession of a car has stolen a car. The probability may be different, but it's still not "knowledge of an actual felony." – phoog May 8 '17 at 16:52
  • 2
    Violation of an immigration law is very rarely a felony and even when it is this fact is usually only discernible after researching the immigration history of the individual and there is no obligation to do that research. So, the statute cited does not apply. – ohwilleke Jul 7 '17 at 17:05

Your Answer

By clicking “Post Your Answer”, you agree to our terms of service, privacy policy and cookie policy

Not the answer you're looking for? Browse other questions tagged or ask your own question.