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:

"Your 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:

"As long as anyone we or Border Patrol encounter is released 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.

"So 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 here and here, 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 illegally.

Unfortunately, the authority was never implemented to its fullest extent by the Clinton and Bush 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 Security.

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 Essay.)

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 heartwarming.

You may well ask: why bother arresting deportable aliens at all?

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

As author Michelle Malkin explained 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 speeding. Atta and Hanjour were visa violators.

"How many lives might have been saved if there had been collaboration between local or state law enforcement officers and the feds to detain them on immigration charges?"

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:

"The 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 Congress." [Michael M. Hethmon, The Chimera and the Cop: Local Enforcement of Federal Immigration Law, 8 University of the District of Columbia Law Review 83 (2004)]

The bottom line from Kobach's April 22 2004 Senate Judiciary Committee testimony:

"[T]he 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 violations, 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 committee:

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

In testifying before the House Judiciary Committee, Kobach made some specific suggestions to fine-tune the CLEAR Act, 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 CLEAR Actwhich 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 [PDF] – 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, robbers, burglars, drug traffickers and previously deported aliens convicted of every crime imaginable . . . not to mention the aliens who remain at large on outstanding criminal warrants.

All aliens 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 told to the Senate Judiciary Committee:

"[D]eputy 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.

"Garcia 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 them?

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 problem in town (or maybe stop one in its tracks before it starts).

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 DeportAliens.com. He writes a weekly column for VDARE.com and contributes to Michelle Malkin's Immigration BLOG.