Legal Officers Annual Meeting
Immigration Law, Domestic Security & Foreign Nationals
I. Do local and state officers have
“intrinsic authority” to enforce federal immigration laws? MAYBE…
A. USDOJ:
“Yes, subject to local law’s impact.”
1. DOJ Office of Legal Counsel Memo: subject to limits of state’s law, any criminal act is a basis for state and local arrest; and there is no federal preemption for taking civil violators into custody (e.g. crossing border without inspection = criminal; over-staying “tourist” (“B”) visa = civil; absconders, can be criminal if willful violation of notice; civil if simply “no-show.”)
a. A modification of 1996 DOJ position that states have authority to detain aliens in order to enforce criminal provisions of immigration laws but lack authority to detain for the purpose of civil deportation proceedings.
2.
After 9/11 attack, more focus on immigration
violators generally.
3.
Absconders being entered into NCIC. Both civil and criminal warrants. (Mostly civil.) Expectation is that state and locals would detain and notify ICE
if they encounter an absconder. (“Call
Law Enforcement Support Center”)
4. Plans to begin entering students who
are in violation of visas? (“SEVIS”
Student and Exchange Visitor Information System” – out of status student.) (May not be initiated?)
B. Places state and local officers in
“Catch 22” when encountering illegals in context of state or local enforcement
action. What do you do when you learn
person may be in violation of federal immigration laws? How do you confirm the person in front of
you is the actual subject of the ICE “please hold” request? ICE indicates it has target of 20 minute
turnaround on officer-inquiries about a subject.
1. E.g. Traffic stop for speeding. Trooper “runs” driver, finds he is a civil
absconder and that feds want him detained.
2. Ability
to detain requires “reasonable suspicion” and is ultimately derived from the
ability to arrest if probable cause is developed. If a state or local officer does NOT have ability to arrest for
the immigration violation, what basis to “detain”?
3. Can “hold” upon request of federal
officer who is enroute.
a. Does this extend to transporting and
holding at local jail?
C. Are locals allowed to “arrest” for
Federal immigration violations for which there is no state counterpart? State laws vary widely.
1. E.g.
Florida officers can only arrest for “felonies” or “warrants”. “Felonies” do not encompass immigration
offenses since there are no state counterparts. The civil “warrant” resulting in entry in NCIC likely is not
“warrant” as contemplated in statute.
(No independent magistrate issues the civil warrant. Administratively issued.)
2.
United
States v. Di Re, 332 U.S. 581 (1948), construed state language allowing
state or local officers to arrest for felony violation to include arrests for
federal violations, subject to state law.
3. Texas AG Opinion H-1029 (7/28/77):
“While Congress has specifically conferred upon certain officers of…(INS)…the
power to arrest without warrant any alien who is entering or has entered the
country illegally…it has nowhere indicate an intention to eliminate the power
of State officers to arrest aliens illegally in the country, where authorized
by State law.” However, the Opinion
indicates Texas officers do not have authority to arrest solely upon suspicion
of entering the country illegally unless it occurs in officer’s presence
(misdemeanor first time violation) or is a second or subsequent offense
(felony). An officer may, during the
course of an arrest for a Texas offense, notify federal authorities when a
person is suspected of being illegally in the United States and turn the person
over to federal authorities after disposition of State criminal charges. A Texas officer may not arrest without
warrant an alien solely upon suspicion that he has entered the country
illegally.
4. California
AG Opinion 01-213 (11/16/2001): While
California’s Penal Code Section 843b’s mandate that local officers inquire into
immigration status has been enjoined, officers can still voluntarily make the
inquiry. A local law enforcement
officer during detention of Spanish speaking person for otherwise valid
purposes may question the person as to immigration status, but may not question
status solely because the individual speaks a non-English language. Local officers may continue investigation
into a person’s immigration status prior to arraignment on state charges. In footnote 4, the Opinion indicates “Civil
violations of immigration law are not cognizable” under a formula in Pen. Code
s. 836, sub. (a), (a)(1), which allows California peace officers to arrest
either in obedience to a warrant or without a warrant where the officer has
probable cause to believe that a public offense has been committed in the
officer’s presence.
II. Immigration Law Is Complex. This adds to complications for state and
locals.
A. If
locals DO have intrinsic authority, do they have the training and expertise to
determine what type of violation and whether it is a misdemeanor or
felony? Who do they contact if they
have an “issue”? ICE personnel might be
able to answer, but may not be able to cover all demands. “Normal” legal advisors for agency probably
won’t have expertise to answer.
B. If
immigrant(s) resist being taken into custody, it will be local officers bearing
the brunt of the resistance and/or actions taken in response thereto. Not likely to see federal assistance if
lawsuit filed regarding actions state or locals took?
C. How
long do locals detain immigrant when “detainer” is issued by Law Enforcement
Support Center (in Vermont)? ICE
Target: Respond in 48 hours. Detain 48 hrs. excluding
Sat/Sun/Holidays. If response does not
occur in timely fashion, do you release if no local basis to detain? Are you exposed to “false arrest” suit? Who pays for costs of detention on solely
federal basis?
D. Less
than 20% of those entered are “criminal” absconders; difficult to get US
Attorneys to prosecute these; easier to get prosecution of illegal re-entries.
E. When
foreign national is arrested or detained, they must be advised of the right to
have their consular officials notified; in some cases, the nearest consular
officials must be notified regardless
of the national’s wishes but a “notify every time” policy is not authorized.
This means each national has to be evaluated on case-by-case basis. There are
“mandatory notification” countries, and others that are not “mandatory” and notification is at the foreign
national’s option. Info on this
obligation found at General Counsel’s page of www.fdle.state.fl.us
III. Specialized training and certification
under Section 287(g) of the Immigration
and Nationality Act
–
Is this the better option?
A. Florida: 6 weeks of full time training; domestic security nexus; immigration actions
under ICE supervision.
B. Alabama:
5 weeks of training; troopers apportioned by troops plus a few in DL stations.
ICE
supervision; charging documents signed by full time ICE officer. “Everything”
C. Virginia: State police training under
consideration. Gang-related nexus.
D. Los
Angeles and a few other areas: Locals
working in county jails are trained to evaluate immigration status of those in
the jails; contact ICE and begin initial processing.
E. 287(g)
does allow Federal commitment to cover liability of state and locals acting
under this provision.
IV. Mass Immigration Response Training
(S. 103(a)(10) of Immigration and Nationality Act – Specialized & limited.
Customs and Border Protection (CBP-Dept. of Homeland Security).
V. The CLEAR Act
--Congress mandating a solution?
VI. Local impact: Is it in community’s best interest to have
its local law enforcement officers engaged in, and perceived as, being involved
in immigration enforcement?
A. Suspicion of immigrant communities when
locals arrive to engage in local investigation or enforcement efforts?
B. How
deal with “profiling” concerns?
C. Who
trains the locals on the complexities of immigration law?
D. Liability
for failure to adequately train?
E. Some communities are enacting
“sanctuary” ordinances prohibiting local immigration enforcement involvement.
a. Does it run afoul of Section 642 of
Immigration Reform and Immigrant Responsibility Act of 1996 that prohibits
governments from “limiting” employees from communicating with ICE regarding
citizenship or immigration status.
F. Are
locals “force multipliers” or being used to handle the “lesser” immigration
duties?
VII. Future developments? Additional considerations and observations?