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Local Law Enforcement’s Inherent Authority Of Enforcing Immigration Law

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This just in from Arizona State Representative Russell Pearce on the inherent right of local law enforcement to enforce immigration laws.


Congress has firmly established that there is a significant public interest in the effective enforcement of immigration law. Congress could have chosen to limit local enforcement pursuant to its plenary power over immigration, but it has not done so. In the absence of a limitation on local enforcement powers, the states are bound by the Supremacy Clause of the United ‘States Constitution to enforce violations of the federal immigration laws. "The statutory law of the United States is part of the law of each state just as if it were written into state statutory law."

Often a misunderstanding of the relationship between federal criminal and immigration law causes one to believe being present in the U.S. in violation of immigration law is civil and "not a crime" and is clearly wrong. The enforcement role given to local government by the Constitution and the Congress is clear. Unsanctioned entry into the United States is a crime.

State and local law enforcement officials have the general power to investigate and arrest violators of federal immigration statutes without prior INS knowledge or approval, as long as state law does not restrict such general power.

The U.S. has a "compelling interest" in the criminal prosecution of immigration law violators, which is a part of a comprehensive, essential sovereign policy of uniform immigration law enforcement.

In Sections 1324 the language that referred to officers "of the United States" when talking about authority to arrest was stricken from section 1324 by amendment. In People v. Baraja, a California court concluded, "that change can only mean that the scope of the arrest power under section 1324 was enlarged; in no way can it mean that the scope of arrest under the other two sections was restricted. Such an acute non sequitur would attribute to the Congress both serious inconsistency and profound lack of logic."

The arrest, detention, or transportation of aliens by local police enforcing criminal provisions of the INA is not a regulatory "determination" of the conditions of alien entrance and residency, but merely enforcement of the previously determined conditions. States can prosecute illegal aliens under state laws without running afoul of the INA. State and local laws do not attempt to regulate who may come to and stay in the U.S. , and thus do not impinge upon the federal government’s exclusive power to regulate immigration, even if they affect immigrants.

Other important amendments to federal law enacted in 1996 were intended by Congress to encourage state and local agencies to participate in the process of enforcing civil as well as criminal federal immigration laws by providing incentives such as reduced liability and specialized training.

In 1999 a decision in the Tenth Circuit Court of Appeals upheld the independent authority of local police departments to enforce federal immigration law, as long as state law prescribing police power of arrest authorized such an arrest. The U.S. Dept. of Justice endorsed this doctrine in April 2002. Under Attorney General Ashcroft, the U.S. Dept. of Justice took the position that state and local police have inherent authority to enforce civil immigration laws.

Assistant Attorney General Kobach explained that the inherent arrest authority of states arises from their pre-constitutional status as sovereign entities. The powers retained by the states at the time of ratification proceeded "not from the people of the United States, but from the people of the several states," and remain unchanged, except as they have been "abridged" by the Constitution. The authority of a state to arrest for violations of federal law is thus not delegated; but "inheres in the ability of one sovereign to accommodate the interests of another sovereign." This federalism-based analysis has a strong judicial pedigree.

The courts also ruled (Miller v. U.S., 357 U.S. 301, 305(1958) that a warrant less arrest "of an arrest for violation of federal law by state peace officers, …the lawfulness of the arrest without warrant is to be determined by reference to state law."

Sanctuary policies are illegal. Local, state, or federal government agencies that sanction or retaliate against employees or officials who report immigration law violations to ICE or the Border Patrol can be sued by the whistleblower under 8 U.S.C. 1373 or 8 U.S.C. 1644 for damages and costs.

Citizens have a constitutional right to expect the protection of federal laws which prohibit unauthorized activities by non-citizens are denied equal protection when a police department or magistrate acts in a manner that encourages or assists persons selected on the basis of nationality or alienage to engage in such unlawful activities.

Aggrieved residents may sue in state or federal court to block unlawful municipal passive resistance policies (so called Sanctuary Policies), and may sue officials and employees in their official or private capacities for violations of their rights. Local government officials do not possess Eleventh Amendment immunity or qualified immunity when sued in their official for prospective injunctive or declaratory relief to end statutory and constitutional violations.

"Harboring" includes any conduct that tends to substantially help an alien to remain in the United States unlawfully. Criminal liability for harboring or sheltering could arise from acceptance of a Mexican matricula consular – which, presented without proper immigration documents, is prima facie evidence of illegal alien status – by a local government agency that , for example, provide housing or utility assistance, made referrals to a public or private job assistance program or detained matricula presenters for violation of city ordinances and release them without verifying their immigration status with the U.S. Immigration and Customs Enforcement.

No policy or humanitarian argument has been identified by the courts that would negate the criminal mens rea of reckless disregard for the fact that aliens are present in the United States in violation of law. Neither sanctuary nor humanitarian concern is a valid defense to either civil or criminal violations of the Immigration and Nationality Act. It is illegal for non-profit, religious, or civic organizations to knowingly assist in the commission of an alien smuggling felony, regardless of claims that their member’ convictions may require them to assist aliens. The First Amendment does not protect actions that aid illegal aliens to remain in the United States.

Illegal aliens are not a suspect class entitled to Fourteenth Amendment based strict scrutiny of any discriminatory classification based on that status, nor are they defined by an immutable characteristic, since their status is the product of conscious unlawful action.

Every alien who has seen issued a registration document is a required to carry the document on his or her person. Federal regulations specify the immigration document that are evidence of alien registration. The U.S. Supreme Court has held that the unregistered presence of an alien in the U.S. is in itself a crime. Failure to register is a continuing violation for which there is no statute of limitations. Other criminal misdemeanors are failure to have a registration card in personal possession ($100 fine and /or 30 days imprisonment), and failure to report a change of address ($200 fine and /or 30 days).

A law enforcement officer has probable cause to detain an individual who admits he or she is an alien (legal or illegal) but is not in possession of registration documents. This is a crime that a warrant less arrest can be made in most jurisdictions.

Immigration document fraud is a felony enforceable by local police officers under 18 U.S.C. 1028. Criminalizes eight types of knowing conduct that relate to false identification documents.

The Bail Reform Act of 1984 created a powerful detention provision that authorizes a state of local police officer to arrest any alien other than a legal permanent resident for a federal "offense," and to request a local magistrate to temporarily detain the alien for up to ten days without bail while awaiting transfer into federal custody, so long as the alien is found to be a "flight risk" or danger to any other person or the community."

The authority to make arrest for federal offenses under 18 U.S.C. 3041 extends to state and local law enforcement officers. (U.S. v Bowdach, 561 F.2d 1160, 1168 (5th Cir. 1977) An illegal alien is an inherent flight risk.

Supreme Court Ruling Razes Artificial Fire Wall Between Local Law Enforcement and Immigration Enforcement (Muehler v. Mena) 9-0 Landmark Decision (Washington D.C.—April 1, 2005) In its March 22 ruling in the case of Muehler v. Mena, the Supreme Court removed barriers that prevent local law enforcement officers from questioning the immigration status of individuals they suspect to be in the United States illegally. In this groundbreaking decision, the high Court rejected the claim of Ira Mena, a permanent resident of the U.S., that police had violated the Fourth Amendment while conducting a lawful search of her home.

The Fourth Amendment provides protection by establishing that persons be shielded against unreasonable search and seizure. Mena argued that by questioning her, and the illegal alien detainees about their immigration status during a lawful search, officers violated her Fourth Amendment rights. Mena further claimed that questions asked about her citizenship required officers to have had independent reasonable suspicion regarding the unlawfulness of her immigration status.

Calling a decision by the 9th Circuit Court of Appeals "faulty," the Supreme Court held that "mere police questioning [regarding one’s immigration status] does not constitute a seizure." The Court continued its landmark ruling on this issue by stating that "the officers did not need reasonable suspicion to ask Mena for her name, date of birth, or immigration status."

"Whatever legal fig leaf many police departments have been using to justify policies of non-cooperation with federal immigration authorities, has been stripped away by this landmark Supreme Court decision,"

"If local police are barred from cooperating with federal authorities in the enforcement of U.S. immigration laws it is purely a political decision on the part of local politicians and police chiefs. There is no legal barrier to local police inquiring about a person’s immigration status and then acting upon the information they gather."

Congress expressly intended for local law enforcement to act in cases in which officers have reason to believe that an individual is in the country illegally, even though immigration law enforcement is not their primary responsibility. In 1996, Congress passed and President Clinton signed legislation that protects individual officers who act to enforce federal immigration laws, even if their departments have non-cooperation policies.

"In Muehler v. Mena the Court reinforced the clear intent of Congress in this matter," said Stein. "Inquiring about an individual’s immigration status can and should be a routine part of ascertaining information, no different than asking questions about one’s name, or date and place of birth. Local police come into contact with people who are violating federal immigration laws on a daily basis. Freeing local police to inquire about an individual’s immigration status and allowing them to act is essential to curbing mass illegal immigration and protecting our homeland security."

Any decision by law enforcement not to enforce immigration laws is a political decision by politicians and local police chiefs, not a lack of authority.

A recent Memo by the U.S. Justice Dept. makes it clear local law enforcement can enforce immigration laws


Our thanks go out to State Representatives like Russell Pearce who are standing up for the rights of not just their state and constituents, but all Americans.

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Posted by Digger on July 30, 2007 02:47 PM (Permalink)

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A border fence at the US-Canadian border would be welcomed by MANY Canadians:

Manhunt continues for two illegal Mexican immigrants

Kerry Williamson
CanWest News Service

Friday, July 27, 2007

WATERTON, Alta. -- Three Mexican citizens caught sneaking across the Canada-U.S. border had designs on working illegally in this country so they could send money home to their families.


Posted by: Mark on July 31, 2007 12:25 AM

He is my hero. Anyone lately standing up as a patriot for protecting America and its culture and its peoples is a true American hero.

we need more, much more like him.

Posted by: captainfish on August 3, 2007 11:39 PM

I have neighbor from russia living up stairs from me, that have damaged my vehicle at least 700.00 dollars and have scratched my vehicles in my driveway and have done numerous this in this country that I feel is illegal, including selling drugs. Is there anyway they can be deported back to russia, perhaps their even here illegally, she and her son go by the last name Castillo. They had one of there friends come down and try reasoning with me not to report on them because they could be killed being sent back to russia. Please contact me ASAP.

Posted by: kenneth kuykendall on January 13, 2008 05:27 AM

Also see these other great immigration resources

The Dark Side Of Illegal Immigration
The Dark Side Of Illegal Immigration

A 28 part detailed report on the negative impacts of illegal immigration.
Immigration Stance
Immigration Stance

Find out how your members of Congress voted on immigration issues.

The Dark Side Of Illegal Immigration
Read the free 28 part report The Dark Side of
Illegal Immigration

Includes facts, figures
and statistics.

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