June 3, 2005
STATE POLICE ARRESTS OF PEOPLE WHO BREAK FEDERAL LAW
By: George Coppolo, Chief Attorney
You asked whether state and local police could arrest people for violations of federal criminal laws. You were especially interested in criminal provisions of the federal immigration and nationality act. Our office is not authorized to give legal opinions and this report should not be considered one.
Connecticut law authorizes state and local police to arrest people for violations of federal criminal law. But, whether they can legally make an arrest for a specific federal crime depends on whether federal law explicitly or implicitly allows them to make an arrest for that crime. Congress' power to prohibit a state from enforcing a federal law rests with the Supremacy Clause of the federal constitution, which provides that the “laws of the United States. . .shall be the supreme law of the land. . .any thing in the Constitution of laws of any state to the contrary notwithstanding” (U.S. Constitution Art. VI, cl. 2).
Recently, the question of whether state or local police can legally arrest people for immigration law violations has been raised (see attached news story). Although we could not find any Connecticut or controlling federal decision that provides a definitive answer for Connecticut, it
appears that the predominant view is that federal law does not prohibit state or local officers from arresting people for criminal violations of the federal immigration laws. Thus, state and local police officers can make an arrest if authorized to do so by state law.
In addition, federal immigration law explicitly authorizes state and local police officers to enforce various provisions of the immigration law, including civil provisions, under three circumstances. The first involves a written agreement between the U.S. attorney general and a state or municipality in which state or local officers are deputized as immigration officers under federal supervision at state or local expense. The second involves the declaration by the U.S. attorney general of an emergency due to an influx of aliens. The third concerns the enforcement of a specific criminal provision of the Immigration and Nationality Act (INA).
Whether the law allows state and local police officers to enforce civil provisions of the federal immigration law apart from these specific provisions is not clear.
ARREST POWERS UNDER CONNECTICUT LAW
State and local police officers, in their respective precincts, are authorized to arrest, without previous complaint and warrant, any person for any offense in their jurisdiction, when the person is taken or apprehended in the act or on the speedy information of others (CGS §§ 54-1f(a) and 53a-3(9)). This authority applies to misdeameanors, which are offenses that carry a penalty of up to one year in prison. State and locall police oficers are authorized to arrest without previous complaint and warrant, any person who they have reasonable grounds to believe has committed or is committing a felony (CGS § 54-1f(b)). A felony is an offense for which a term of imprisonment of more than one year may be imposed (CGS § 53a-25(a)).
An “offense” is any crime or violation which constitutes a breach of any law of Connecticut or any other state, federal law, or local law or ordinance, for which a sentence to a term of imprisonment or to a fine, or both, may be imposed (CGS § 53a-24(a)).
FEDERAL IMMIGRATION AND NATIONALITY ACT
The federal courts have repeatedly held that the power to regulate immigration is exclusively vested in the federal government. To implement its exclusive power, the federal government has enacted and extensively amended the INA (8 USC §§ 1101 et seq.). The INA establishes a set of rules for legal immigration and naturalization, provides a system for processing and deporting illegal immigrants, and specifies civil and criminal penalties for violations. To enforce the INA, Congress created a national immigration bureaucracy—the Immigration and Naturalization Service (INS).
Criminal violations of the INA include such offenses as:
1. bringing in and harboring of certain undocumented aliens; (8 USC § 1324),
2. illegal entry of aliens; (8 USC § 1325(a)),
3. document fraud; (8 USC § 1324c),
4. reentry of aliens previously excluded or deported; (8 USC § 1326)
5. aiding or assisting aliens to enter illegally; (8 USC § 1327)
6. disobeying a removal order; (8 USC § 1253(a)),
7. registration of aliens; (8 USC § 1306),
8. importing aliens for immoral purposes; (8 USC § 1328), and
9. pattern or practice of hiring illegal aliens; (8 USC § 1324a(f)).
Express Authorization for State and Local Law Enforcement Officers to Enforce Immigration Law
The INA contains three provisions that explicitly authorize state and local police to enforce federal immigration laws (8 USC §§ 1357(g), 1103(a)(8), and 1253c. The following is taken directly from the March 11, 2004 CRS report on the ability of state and local police to enforce the INA (copy enclosed).
8 USC § 1357(g)
USC § 1357(g) authorizes the U.S. attorney general to enter into a written agreement with a state or municipality pursuant to which a state or municipal officer or employee, who the attorney general determines to be qualified to perform a function of an immigration officer in relation to the investigation, apprehension, or detention of aliens in the United States may carry out such function at the state's or municipality's expense as long as it is consistent with state and local law.
Section 1357(g) permits state and local entities to tailor an agreement with the attorney general to meet local needs. The written agreement must specify the powers and duties that may or must be performed, and the duration of the authority. The entities must know and follow federal law governing immigration officers and must receive adequate training regarding the enforcement of immigration laws. The U.S. attorney general must direct and supervise the officers performing immigration functions under this law. Such officers are not federal employees except for certain tort claims and compensation matters, but they do enjoy federal immunity.
8 USC § 1103(a)(8)
Under 8 USC § 1103(a)(8), state and local officers may exercise the civil or criminal arrest powers of federal immigration officers (1) when expressly authorized by the U.S. attorney general; (2) when given consent by the head of the state or local law enforcement agency; and (3) the attorney general determination of an emergency exists because of a mass influx of aliens. This authority can be exercised only during the emergency situation. The attorney general can shorten or waive the otherwise normally required training requirements when necessary to protect public safety, public health, or national security.
8 USC §1252c
8 USC § 1252c authorizes state and local officers to arrest aliens who have presumably violated § 276 of the INA (Reentry of Removed Alien). Under § 1252c, state and local law enforcement officials can arrest and detain anyone who:
1. is an alien illegally present in the United States and
2. has previously been convicted of a felony in the United States and deported or left the United States after such conviction, but only after the state or local law enforcement officials obtain appropriate confirmation from INS of his status and only for as long as may be required for INS to take the individual into Federal custody for purposes of deporting or removing him from the United States.
Implied Authorization to Enforce INA
According to a recent Congressional Research Service (CRS) report to Congress, federal law does not preclude state and local officers from enforcing the criminal provisions of the INA. Thus, they may engage in such enforcement if state law permits them to do so, apart from the three provisions summarized above (Enforcing Immigration Law: The Role of State and Local Law Enforcement, March 11, 2004). This view has been supported by court cases in other jurisdictions, opinions of the U.S. (DOJ) and the attorney generals of New York and California.
Gonzales v. City of Peoria. In Gonzales v. City of Peoria, the Ninth Circuit Court of Appeals held that federal law does not preclude local enforcement of the criminal provisions of the INA (722 F.2d 468, 475 (9th Cir. 1983)). The Gonzalez case examined the city's policies, which authorized its police officers to arrest illegal immigrants for violating the criminal entry provisions of the INA (8 USC § 1324). The defendants argued that federal law prohibited state and local police officers from making such arrests. The court held that local police officers may, subject to state law, constitutionally stop or detain people when there is reasonable suspicion or, in the case of arrests, probable cause that they have violated, or are violating, the criminal provisions of the INA.
People v. Barajas. Likewise, in People v. Barajas, the California Court of Appeal upheld the authority of California local police officers to make arrests for violations of two provisions of the INA, 8 USC § 1325 (the illegal entry misdemeanor) and § 1326 (felony for alien to re-enter United States after deportation) (81 Cal. App.3d 999, (1978)). The court rejected the defendant's argument that the arrest was illegal under INA warrant requirements, (8 USC § 1357).
United States v. Salinas-Calderon. The Tenth Circuit Court of Appeals held that a state trooper has general investigatory authority to inquire into possible immigration violations and to make arrests for violation of federal law (United States v. Salinas-Calderon, 728 F. 2d 1298 (10th Cir. 1984)). In this case, a state trooper pulled over the defendant for driving erratically. He found six people in the back of the defendant's truck. After questing the passenger he learned that the driver and the others were in the country illegally. The court determined that the trooper had probable cause to detain and arrest all the individuals.
United States v. Vasquez-Alvarez. In a subsequent case, the Tenth Circuit considered the arrest by an Oklahoma police officer of a person suspected of drug dealing because he was an “illegal alien” (United States v. Vasquez-Alvarez, 176 F3d 1294 (10th Cir. 1999)). The arresting officer did not know when he made the arrest whether the defendant had committed a civil or criminal violation of INA. A specific provision in the INA (8 USC § 1252c) authorizes state officers to pick up and hold for deportation a previously deported alien who had been convicted of a crime in the United States and reentered illegally. The law requires state officers to obtain confirmation from the INS before making such an arrest. It was only after the arrest that it was discovered that the alien had a history of prior criminal convictions and deportations.
The defendant argued that the state police could only arrest him in compliance with the restrictions detailed in 8 USC § 1252c. Since his arrest did not meet the requirements of that provision, the defendant argued the arrest was unauthorized. The court held that § 1252c does not limit or displace the preexisting general authority of state or local police officers to investigate and make arrests for violations of the INA.
United States v. Santana-Garcia. The Tenth Circuit again considered the role of local law enforcement of immigration laws in United States v. Santana-Garcia, 264 F3d 1188 (10th Cir. 2001)). A Utah police officer stopped a vehicle for a traffic violation. The driver didn't speak English or have a driver's license. The officer learned that the driver and his passenger were traveling from Mexico to Colorado and that they were not legally in the country. The court held that the officer had probable cause to arrest both defendants for suspected violation of federal immigration law and concluded that state and local police officers have implicit authority within their respective jurisdictions to investigate and make arrests for violations of immigration law.
CIVIL VIOLATIONS OF THE INA
It is not clear whether federal law allows state and local police officers to enforce the civil provisions of the federal immigration law apart from the provisions allowing the U.S. attorney general to deputize state and local officers, or allowing him to declare an emergency due to a mass influx of aliens. An alien can be illegally present in the United States without violating criminal provisions of the federal immigration laws. For example, expiration of a visitor's visa, change of student status, or acquisition of prohibited employment could put an alien in violation of the civil, but not criminal, provisions of federal immigration laws.
No Connecticut court has addressed this issue. Apparently, the DOJ recently changed its view, which had been expressed in a 1996 memo, and concluded state and local police have inherent authority to enforce civil aspects of the immigration law.
Previously, DOJ expressed the view that state and local law enforcement agents lack inherent authority to detain or arrest individuals on suspicion that they have violated the civil, as opposed to criminal, provisions of the immigration laws. DOJ's policy on state and local immigration enforcement was embodied in a publicly available Office of Legal Counsel (OLC) memorandum dated February 5, 1996 (copy enclosed).
In 2002, DOJ withdrew the section of the governing OLC policy memorandum dealing with state and local enforcement of civil immigration laws by adding an editor's note to the memorandum. The editor's note withdraws the relevant portion of the OLC policy memorandum. The note does not refer the reader to any new policy document or analysis.
On June 5, 2002, Attorney General John Ashcroft in a press conference indicated that DOJ had adopted a new policy at variance with its previous policy. He expressed the view that state and local law enforcement agencies have inherent authority to enforce civil immigration laws whenever an individual's name appears in the federal National Crime Information Center (NCIC) database. (NCIC is a computerized information system the Federal Bureau of Investigation maintains.
In August 2002, several immigrant rights organizations submitted a request to DOJ, asking for clarification and seeking the new OLC memorandum that appeared to have replaced the prior policy and that now constituted the governing policy of the department.
Apparently, DOJ located, but refused to disclose, the document responsive to the FOIA request. The U.S. Second Circuit Court of appeals ruled on May 31, 2005 that the DOJ must make the document public (Docket No. 04-5474-cv). It is not clear whether DOJ will comply or appeal.
We have enclosed a March 11, 2004 CRS report for Congress (RL 32270) that discusses whether state and local police have the inherent authority to enforce civil aspects of the INA and some pending federal legislation in great detail.