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_______________________________
Institute for Workplace Studies----------------- Professor Samuel B. Bacharach
School of Industrial & Labor Relations-------- Director, Institute for Workplace Studies
Cornell University
16 East 34th Street, 4th floor---------------------- Stuart Basefsky
New York, NY 10016 -------------------------------Director, IWS News Bureau
________________________________________________________________________

 

Congressional Research Service (CRS)

 

Authority of State and Local Police to Enforce Federal Immigration Law

Michael John Garcia, Legislative Attorney

Kate M. Manuel, Legislative Attorney

September 17, 2010

http://opencrs.com/document/R41423/2010-09-17/download/1013/

[full-text, 23 pages]

 

 

Summary

The power to prescribe rules as to which aliens may enter the United States and which aliens may

be removed resides solely with the federal government, and in particular with Congress.

Concomitant to its exclusive power to establish rules which determine which aliens may enter and

which may stay in the country, the federal government also has the power to sanction activities

that subvert this system. Congress has defined our nation’s immigration laws in the Immigration

and Nationality Act (INA), a comprehensive set of rules for legal immigration, naturalization,

work authorization, and the entry and removal of aliens. These requirements are bolstered by an

enforcement regime containing both civil and criminal provisions. Deportation and associated

administrative processes related to the removal of aliens are civil in nature, while certain

violations of federal immigration law, such as smuggling unauthorized aliens into the country,

carry criminal penalties.

 

Congressional authority to prescribe rules on immigration does not necessarily imply exclusive

authority to enforce those rules. In certain circumstances, Congress has expressly authorized

states and localities to assist in enforcing federal immigration law. Moreover, there is a notion that

has been articulated in some federal courts and by the executive branch that states may possess

“inherent” authority to assist in the enforcement of federal immigration law, even in the absence

of clear authorization by federal statute. Nonetheless, states may be precluded from taking actions

that are otherwise within their authority if federal law would thereby be thwarted.

 

The ability of state and local police to make arrests for federal immigration violations is a subject

of legal debate and conflicting jurisprudence. Traditionally, the prevailing view has been that state

and local police are permitted, to the extent allowed under state and local law, to enforce the

criminal provisions of the INA. By contrast, the enforcement of the civil provisions, including the

apprehension of deportable aliens, was viewed as a federal responsibility, with state and local

police playing, at most, a supporting role. This view may be changing, however, as the executive

branch and some courts have concluded that, at least in some instances, state and local police are

not preempted from arresting persons on the grounds that they are deportable, even in the absence

of express authorization by federal statute.

 

This report discusses the authority of state and local law enforcement to assist in the enforcement

of federal immigration law through the investigation and arrest of persons believed to have

violated such laws. It describes current provisions in federal law that permit state and local police

to enforce immigration law directly, analyzes major cases concerning the ability of states and

localities to assist in immigration enforcement, and briefly examines opinions on the issue by the

Office of Legal Counsel (OLC) within the Department of Justice. This report does not discuss

legal issues raised by states and localities enacting their own immigration-related laws, including

measures intended to supplement federal law through the imposition of additional criminal or

civil penalties. The legal implications of such measures are discussed in CRS Report R41221,

State Efforts to Deter Unauthorized Aliens: Legal Analysis of Arizona’s S.B. 1070, by Kate M.

Manuel, Michael John Garcia, and Larry M. Eig; and CRS Report RL34345, State and Local

Restrictions on Employing, Renting Property to, or Providing Services for Unauthorized Aliens:

Legal Issues and Recent Judicial Developments, by Jody Feder and Alison M. Smith.

 

Contents

Introduction ...............................................................................................................................1

Express Authorization for State and Local Law Enforcement Officers to Enforce Federal

Immigration Law .....................................................................................................................3

Delegation of Immigration Enforcement Authority via Cooperative Agreement under

INA § 287(g)......................................................................................................................4

Delegation of Immigration Enforcement Authority to Respond to Mass Influx of

Aliens ...............................................................................................................................6

Authorization to Arrest and Detain Previously Removed Criminal Aliens ..............................7

Authorization to Enforce the Federal Alien Smuggling Statute...............................................8

Judicial Decisions Concerning Immigration Enforcement............................................................9

Gonzales v. City of Peoria (Ninth Circuit) ...........................................................................10

United States v. Urrieta (Sixth Circuit) ................................................................................12

Tenth Circuit Jurisprudence.................................................................................................13

Office of Legal Counsel Opinions .............................................................................................15

2002 OLC Opinion .............................................................................................................16

United States v. Arizona ......................................................................................................18

Contacts

Author Contact Information ......................................................................................................20

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This information is provided to subscribers, friends, faculty, students and alumni of the School of Industrial & Labor Relations (ILR). It is a service of the Institute for Workplace Studies (IWS) in New York City. Stuart Basefsky is responsible for the selection of the contents which is intended to keep researchers, companies, workers, and governments aware of the latest information related to ILR disciplines as it becomes available for the purposes of research, understanding and debate. The content does not reflect the opinions or positions of Cornell University, the School of Industrial & Labor Relations, or that of Mr. Basefsky and should not be construed as such. The service is unique in that it provides the original source documentation, via links, behind the news and research of the day. Use of the information provided is unrestricted. However, it is requested that users acknowledge that the information was found via the IWS Documented News Service.

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Stuart Basefsky                   
Director, IWS News Bureau                
Institute for Workplace Studies 
Cornell/ILR School                        
16 E. 34th Street, 4th Floor             
New York, NY 10016                        
                                   
Telephone: (607) 255-2703                
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