Local Immigration Enforcement
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.
In most cases, federal laws that bar illegal aliens from the United States and punish persons who smuggle, shelter, or employ or otherwise assist illegal aliens can be enforced by local and state police.
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 provied 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 Counsel
In 2002, the Department of Justice's Office of Legal Counsel (OLC) issued an extremely important legal opinion explaining that state and local police officers have the inherent authority to arrest illegal aliens and transfer them to federal custody, regardless of whether the aliens have committed criminal or civil violations of immigration law. U.S. Attorney General John Ashcroft announced the conclusion of that OLC opinion in June 2002. However, the full opinion was only made available to the public as a result of a Freedom of Information Act lawsuit. The local arrest authority recognized in this opinion is a critical component of immigration enforcement. Read the full opinion (PDF).
Federal-Local Cooperative Agreements — Section 287(g)
In 1996, Congress made several express grants of immigration law enforcement authority to state and local governments. The most important of the legislative actions provided in Section 287(g) of the Immigration and Nationality Act for the U.S. Attorney General (AG) to enter into written cooperative agreements with state and local governments to accept the services of state officers or employees in enforcing the INA. Under these agreements, state and local governments may designate officers or employees ("local officers") who will be authorized to "perform a function of [a federal] immigration officer in relation to the investigation, apprehension, or detention of aliens in the United States."
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 287(g) 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 287(g) provides 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 287(g) 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 this provision unless their laws authorize state and local officers to enforce federal laws. Police departments considering whether to seek a 287(g) cooperative agreement should first determine whether existing state and local laws in their jurisdiction already authorize their officers to carry out immigration enforcement functions. They should be aware that the Obama administration has decided to enter new 287(g) agreements only for local authorities involved in the detention of persons charged with or convicted of crimes.
Emergency Conditions — Section 372 of IIRAIRA
IIRIRA § 372 amended the INA to give the AG (AG) power to authorize state and local immigration enforcement in emergency situations. Under that provision, the AG may authorize state or local officers to enforce the INA if the AG determines that "an actual or imminent mass influx of aliens arriving off the coast of the United States, or near a land border, presents urgent circumstances requiring an immediate Federal response." This emergency authorization may grant a state or local officer "any of the powers, privileges, or duties" conferred by the INA on INS officers. The AG’s authorization is contingent on the consent of the head of the agency or department in which the officer serves, but unlike §133, §372 does not expressly require the state or local officer’s enforcement of the INA to be authorized by state or local law.