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?