A new law signed by Illinois Gov. J.B. Pritzker seems to expand eligibility for jobs in law enforcement to non-U.S. citizens such as Deferred Action for Childhood Arrivals program participants – even though DACA recipients aren’t legally allowed to possess firearms. Lauren R. Aronson, a clinical professor and the director of the Immigration Law Clinic at the University of Illinois Urbana-Champaign College of Law, spoke with News Bureau business and law editor Phil Ciciora about the issue.
What’s the best way to interpret the new law that has attracted so much attention nationwide?
There are two new clauses in the amended law that expand the eligibility requirements to be law enforcement officers – one that deals with immigrants federally authorized to work, and one that refers specifically to DACA recipients. The clause relating to the DACA participants is more aspirational than anything because this group – whether they live in Illinois or elsewhere – cannot legally possess guns under current federal law.
The amended law expands the eligibility to become Illinois sheriff deputies and police officers to immigrants who have lawful status and are federally permitted to possess firearms. That’s a narrow group that includes legal permanent residents such as green card holders and other groups such as asylum seekers and refugees. All of those groups have legal status in the U.S. and have a pathway to become U.S. citizens. According to federal law, individuals from those groups are not excluded from firearm possession. Therefore, they could become law enforcement officers.
On the other hand, DACA recipients cannot legally possess firearms. So even though this new Illinois law says that DACA recipients can become police officers, they can’t because the law also specifies that they must be able to legally possess a firearm.
What’s the distinction between “lawful status” and “lawfully present” in immigration law and why does it matter here?
DACA recipients are considered “lawfully present” in the U.S., which means that while they are here with the DACA designation, they are not accruing unlawful presence, which is an important distinction relating to someone’s ability to re-enter the U.S. if they were to leave and return. At the same time, DACA recipients don’t have “lawful status,” which would be equivalent to a valid tourist, student or employment visa, or refugee or asylum status.
Some DACA recipients entered the country illegally or had parents who brought them to the U.S. illegally. But many entered on valid, legal visas that later expired. I suppose that the most correct answer would be that they are currently without legal or lawful status, but that their presence has been permitted by government policy.
The federal law states that anyone “illegally or unlawfully in the United States” cannot own a firearm. The question of whether DACA recipients can possess a gun turns on the interpretation of whether they’re illegally or unlawfully “in” the U.S. Does the word “in” mean that they must have lawful status, or does it mean that they must be lawfully present?
Right now, it’s interpreted as meaning that in order to possess a gun, they must have lawful status, which is why people with DACA, temporary protected status, or those seeking asylum and others with deferred action, cannot own a gun. Regardless of whether they once had status or will later, the important point is that they lack status now and, therefore, cannot legally possess a firearm. Incidentally, neither can people on tourist visas, student visas or people in the U.S. on employment-based visas. They are all prohibited from possessing firearms in the U.S.
Again, this section of the law is more aspirational than anything. In the event something changes with the federal gun statute or its interpretation, only then would DACA recipients be eligible to serve in law enforcement in Illinois.
This is what makes the frenzy that’s spreading on social media about so-called “illegal immigrants” arresting citizens on U.S. soil so wrong. It’s a complete falsehood.
Why would lawmakers insert language that’s most likely at odds with a federal statute?
That’s a question more for Illinois lawmakers, but if I had to guess, I would say that the law was written as a way to push the issue. It’s also possible that it’s highlighting an ambiguity in the federal statute.
The more likely explanation, however, is that, under Gov. Pritzker's leadership, the state of Illinois has been progressive on the issue of immigration. There’s been much pro-immigrant law reform just in the past decade; this could be another way of demonstrating how welcoming the state of Illinois is to immigrants.
Ultimately, though, I’m not sure that the law actually changes much. The law isn’t nothing because it does allow green card holders and perhaps a few others to become police officers. That’s something, especially with the chronic shortage of police officers that we have today. But the language about DACA is really looking to the future.
One other point of contention I’d like to clear up is how any law enforcement agency can complete a thorough background check on someone who’s here in the U.S. illegally. Regardless of whether you have lawful status, your criminal history is accessible. Additionally, there’s a distinction between people here illegally and DACA recipients. Employers are able to easily conduct background searches on DACA recipients who apply for a job because they have already undergone thorough background checks, which include federal as well as state and local databases.
The irony of the uproar is that DACA recipients are some of the most highly vetted people in the U.S. and they still aren’t granted any legal status. They’re given what I would call this pseudo-status. They’re in limbo.
By contrast, people who apply for a green card or for U.S. citizenship can have a laundry list of crimes and minor offenses such as driving under the influence of alcohol on their record and still be granted full legal status. DACA recipients are held to a much higher standard.