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Citizens for Limited Taxation
|Immigration Law Enforcement by Local Agencies|
|The following is an introductory summary of federal law on the
issue of local law enforcement agencies enforcing federal
immigration law provisions. Local officials who seek guidance on
this issue may contact FAIR's legal counsel for detailed information.
State and local law enforcement officials have the general power to investigate and arrest violators of federal immigration statutes without prior Immigration and Naturalization Service (INS) knowledge or approval, as long as they are authorized to enforce federal law in general. Although immigration is a federal matter, local law enforcement departments and personnel are not required to turn a blind eye to any illegal activity including violations of immigration law. It is illegal for local governments to prohibit police cooperation with the INS, and individual officers who report violations are protected by law.
Although the Illegal Immigration and Immigrant Responsibility Act (IIRAIRA) of 1996 provided new authority for empowering local law enforcement agencies to enforce immigration law provisions against aliens illegally in the country, local police were never powerless to act on immigration law violations before adoption of that legislation. Local police departments have always had the ability to collaborate with the INS in enforcement operations. An example was local cooperation with the INS and the FBI in locating and interviewing foreign students from Middle Eastern countries following the September 11 terrorist attacks.
In addition, Section 274(c) of the Immigration and Nationality Act (INA), as amended in 1986, authorizes "...all other officers whose duty it is to enforce criminal laws," to arrest persons for smuggling, harboring or transporting illegal aliens. Furthermore, federal courts had repeatedly affirmed since 1984 that local police may inquire into immigration violations in the course of a routine stop (see e.g., U.S. v. Salinas-Calderon).
Legal Opinion by the Department of Justice Office of Legal
Federal/Local Cooperative Agreements -- Section 133 of IIRAIRA
Upon approval of the cooperative agreement by the AG, the designated local officer becomes a limited federal immigration official. The designated local officer is subject to the "direction and supervision of the AG" while performing the immigration enforcement function and, if the written agreement so specifies, may use federal property and facilities to accomplish that function. While Section 133 emphasizes that the designated officer is not a federal employee, agreements created under this section may grant local officers all of the powers exercised by federal immigration officers and provide that the designated local officers will enjoy federal immunity. However, the local officers must carry out their immigration functions at the expense of the state or local government.
Section 133 is an extraordinary grant of authority to state and local governments, because it allows them to tailor their officers' authority to local immigration enforcement needs. A state or local government can agree with the AG to authorize its law enforcement officers to enforce the INA's civil and/or criminal provisions without dedicating those officers to full-time immigration enforcement. Section 133 clearly contemplates that multiple officers could be authorized to perform one or more immigration enforcement functions. Designated officers could continue to perform their state or local duties. The scope and duration of the officer's immigration enforcement authority is negotiable.
State and local governments will not be able to take advantage of the broad grants of authority available under Section 133 unless their laws authorize state and local officers to enforce federal laws. Police departments considering whether to seek a Section 133 cooperative agreement should first determine whether existing state and local laws in their jurisdiction already authorize their officers to carry out immigration enforcement functions.
Emergency Conditions -- Section 372 of IIRAIRA
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