Advice for a California Councilman: Local Police Can And Should Enforce Immigration Law!

A VDARE.COM reader recently
contacted me for help in persuading a city council
member in California to use local police officers to
break up an

illegal alien day labor hang-out
once and for all.

This city council member had
reportedly already displayed rare courage
on the subject of illegal immigration.

The VDARE.COM reader wrote:

article dated 12/19/05 [Reclaiming
America: What`s In That H.R. 4437 Christmas Present? And
Will The Senate Grinches Steal It?
] was very timely.
I was telling
[the councilman] about the House
bill H.R. 4437 [PDF]
being the answer to his reluctance to start doing
something about illegals.

“Perhaps you can answer his question. I hope you will
have a better answer or a way to circumvent the

[expedited removal] rule….”

The VDARE.COM reader enclosed the
councilman`s reaction:

long as anyone we or

Border Patrol
encounter is

because they have been in the country for
more then two weeks or are caught further then 100 miles
away from the border (they all claim this), there is
absolutely no point in it.

“Right now our police question all contacts as to their
legal status when they have cause to think the person
may be here illegally. This is done in conjunction with
a contact for another reason. If the person is not a
citizen we inform ICE and then it is their jurisdiction.

we are already asking these questions when our officers
feel it is appropriate.

“Having dedicated officers on our police force focusing
on illegal immigration issues would cripple us and
serves no point since the federal government is letting
them go anyway.

“Am I
missing something?”

My response: respectfully—yes you are, Councilman.

First of all, I agree
that, although passing H.R. 4437 was a great triumph for
immigration reformers, its tinkering with the expedited
removal provisions of Immigration Act

Section 235(b)
has been unfortunate. As I`ve written


, H.R. 4437 actually undercuts the 1996
expedited removal authority already on the books that
allows the nationwide summary removal of all
illegal aliens found within two years of entering

Unfortunately, the authority was never
implemented to its fullest extent by the


administrations. Now the new bill would scale
back the authority for good, by only allowing summary
removal of illegal aliens found within 100 miles of a
land border within 14 days of entry – which is exactly
the same standard already in effect through scandalously

limited regulations
by the Department of Homeland

Councilman, given your comments, I
can tell you realize that summary removal is the only
real way to actually deport aliens—so that the offenders
will actually get out of the country as soon as
possible, and stay out. (For everything you wanted to
know about why summary removal is answer to the illegal
alien invasion, read my

Absolutely Definitive

Obviously, the thought of the
federal government releasing deportable aliens back to
the streets to pursue perpetual immigration
litigation—after the aliens were arrested

fair and square
by local police—isn`t exactly

You may well ask: why bother

deportable aliens at all?

But, councilman, there are plenty
of reasons to bother!

As author Michelle Malkin

in testimony before the

Senate Judiciary Committee
on April 22, 2004:

“Three 9/11
hijackers—Mohammed Atta, Hani Hanjour, and Ziad Jarrah—came
into contact with state and local police before the
attacks for

. Atta and Hanjour were visa violators.

“How many lives might
have been saved if there had been

collaboration between local or state law enforcement
and the feds to detain them on immigration

In other words, the stakes are very
high. And there`s still a lot that

local police
are legally entitled to do.

According to Michael Hethmon, staff attorney for the
Federation for American Immigration Reform (FAIR), in
his definitive 2004 law review article on the subject:

most extensive statements to date of the U.S. Department
of Justice`s doctrine of inherent authority have been
made by Kris W. Kobach, former counsel to Attorney
General Ashcroft, in testimony to both houses of
” [Michael M. Hethmon, The Chimera and the Cop: Local Enforcement
of Federal Immigration Law,

University of the District of Columbia Law Review

83 (2004)]

The bottom line from
Kobach`s April 22 2004 Senate Judiciary Committee


law on this question is quite clear: arresting aliens
who have violated either criminal provisions of the INA

[Immigration and
Nationality Act] or civil provisions that render
an alien deportable
is within the inherent authority
of the states. And such inherent arrest authority has
never been preempted by Congress

[my emphasis] .
. .
[but] any
assistance that state or local police provide to the
federal government in the enforcement of federal
immigration laws is entirely voluntary. There is no
provision of the U.S. Code or the Code of Federal
Regulations that obligates local law enforcement
agencies to devote any resources to the enforcement of
federal immigration laws.”

Councilman, here`s the legal
summary: state and local law enforcement has the
inherent right to arrest aliens for immigration
, through no specific legal obligation.

But they sure ought to!

(Note to legal eagles: this
“inherent arrest authority”
covers only the arrest
and brief detention of aliens for the purpose of turning
them over to federal immigration officers. This issue is
completely separate from any enforcement agreements
between local police agencies with the federal
government under

Section 287(g)
of the Immigration Act.)

Knowing the legal distinction here,
Kobach used the occasion of his Senate Judiciary
Committee testimony to plead for more
immigration arrests by local authorities. He told the

role that state and local police officers play simply
cannot be overstated. They are the

eyes and ears
of law enforcement that span the
nation. They are the officers who encounter aliens in
traffic stops and other routine law enforcement
situations. Federal law enforcement officers simply
cannot cover the same ground.”

Kobach also described the “most important
scenarios” for local
police vigilance for immigration violators:

  1. Observations of

    suspicious activity
    potentially connected to
  2. Arrests of suspected terrorists listed on the
    National Criminal Information Center (NCIC)
  3. Arrests of [immigration] absconders.
  4. Interception of alien smuggling.
  5. Immigration enforcement in remote or
    under-served areas.

testifying before the

House Judiciary Committee
, Kobach made some specific
suggestions to fine-tune the

, an immigration law enforcement bill
championed by
Representative Charlie Norwood (R-GA).

Regarding state and local arrest
powers, Kobach stated:

“I strongly recommend that the committee not use the
word `authorized,` because it implies that Congress is
authorizing or conferring these arrest powers upon the
states. That is, of course, unnecessary since the
authority is already possessed by the states and it
flows from their inherent powers as sovereign
entities within our federalist system. 

“What should be stated unequivocally is that Congress
has never preempted this authority. Such a statement
would prevent courts from making any mistake on this
account. I would also note that the inherent authority
does not extend to `removal,` in the broad sense of
adjudicating an alien`s status and returning the alien
to his country of origin.”

And the House Judiciary committee
listened. Kobach`s suggestions were incorporated in the
final version of the

which just so happens to have been
added in its entirety as an amendment to the successful
H.R. 4437.

So according to
Section 220 of H.R. 4437
– the latest statement
on inherent authority available – the U.S. House
of Representatives most certainly wants the help of
local police in arresting deportable aliens.

But let`s face facts here. Illegal
aliens come in all shapes, sizes and flavors in your
home state of California, including

wanted murderers

child rapists,

, burglars,

drug traffickers

previously deported aliens
convicted of every crime
imaginable . . . not to mention the aliens who remain at
large on outstanding criminal warrants.


within the United States are required by law
to carry valid identification at all times—including
evidence of lawful permanent resident status, or proof
of a valid non-immigrant visa.

So determining citizenship or legal
presence in the United States is not rocket science
here, or else the entire DHS immigration bureaucracy
would be working for NASA instead.

Councilman, if anyone on the local
City Council is wondering whether or not local police
should expend the extra effort to

verify the immigration status
of all suspected
immigration violators, why not ask the family of slain
Los Angeles County Sheriff`s

Deputy David March

As Michelle Malkin

to the Senate Judiciary Committee:

David March pulled over Armando Garcia for a routine
traffic stop in a San Gabriel Valley suburb. Garcia
walked toward the officer, pulled out a 9 mm
semiautomatic pistol, and fired at close range several
times before fleeing. The deputy died of gunshot wounds
to the head.

was an illegal alien from Mexico who had been previously
deported three times in 1992, 1994 and 2001 and
convicted of two felonies while in America. Garcia had
an extensive criminal history, from drug dealing and
weapons violations to suspected murder.

“Following `standard procedure,` neither the INS nor the
U.S. Attorney`s Office in

Los Angeles
took any measures to keep Garcia off the
streets and enforce a federal law requiring criminal
prosecution for

illegal re-entry
into the United States. Garcia
remains a fugitive.”

The truth is that not all illegal
aliens `just
come here to work.
And it`s sure hard to tell
the `good` ones from the `bad` ones—unless
state and local law officers help the federal government
find out.

So why not arrest illegal aliens
whenever and wherever state and local officers find

Making sure that local police know
exactly who frequents

day labor hang-outs
will not cripple us
by focusing on illegal immigration issues.”

Arresting deportable aliens and
turning them over to the DHS just might make your

local streets safer,
and even clean up the

illegal alien gang

in town
(or maybe stop one in its tracks before it

Councilman, your fellow law-abiding
citizens, immigration law enforcement legal eagles, and
the House of Representatives are giving you the green
light to arrest immigration law-breakers.

How about it?

Give immigration arrests a chance!

Juan Mann`s legal reference library for state and local
immigration law enforcement…

Juan Mann [email
him] is
an attorney and the proprietor of
He writes a weekly column for
contributes to Michelle Malkin`s

Immigration BLOG