Wednesday, July 28, 2010

SB1070 Temporary Injunctions

Upon reading the ruling of SB1070 from Judge Bolton, it clearly allows most of what the law was intended to do, however, there are portions that do appear to extend beyond Federal Law.

I will put up each of the temporary injunctions as allowed by Judge Bolton and follow them with the actual wording from SB1070 and the amendment HB2162. I then will attempt to give there meanings.

Sections of S.B. 1070 are preempted by federal law:

Portion of Section 2 of S.B. 1070
A.R.S. § 11-1051(B): requiring that an officer make a reasonable attempt to determine the immigration status of a person stopped, detained or arrested if there is a reasonable suspicion that the person is unlawfully present in the United States, and requiring verification of the immigration status of any person arrested prior to releasing that person.
B. For any lawful contact STOP, DETENTION OR ARREST made by a law enforcement official or a law enforcement agency of this state or a law enforcement official or a law enforcement agency of a county, city, town or other political subdivision of this state IN THE ENFORCEMENT OF ANY OTHER LAW OR ORDINANCE OF A COUNTY, CITY OR TOWN OR THIS STATE where reasonable suspicion exists that the person is an alien who AND is unlawfully present in the United States, a reasonable attempt shall be made, when practicable, to determine the immigration status of the person,
Note the use of the word by Judge Bolton "requiring", this simply means that the State of Arizona cannot mandate or force the officer to make a reasonable attempt to determine the immigration status of a person. It in no way says the officer can not do so if (s)he chooses, it is left at the officers discretion.

Section 3 of S.B. 1070

A.R.S. § 13-1509: creating a crime for the failure to apply for or carry alien registration papers

This is for the entire section of 13-1509 overstepping Federal Law, To establish an uniform Rule of Naturalization, Article 1, Section 8. It is not up to the State level authorities to determine who can or can not be "naturalized", but the State level authorities may in fact question a person of their status if they have reasonable suspicion they are here , it would than be up to DHS and ICE to instruct the officer to either detain the person(s) or allow them to remain under their own recognizance.

Portion of Section 5 of S.B. 1070
A.R.S. § 13-2928(C): creating a crime for an unauthorized alien to solicit, apply for, or perform work
C. It is unlawful for a person who is unlawfully present in the United States and who is an unauthorized alien to knowingly apply for work, solicit work in a public place or perform work as an employee or independent contractor in this state.
This portion of 13-2928 is also being temporarily held on account of overstepping Federal Law, as there is no law stating that an entry violator or visa overstay can not apply for work, solicit work, or perform work as an employee or independent contractor at the Federal level. This doesn't mean that they can not be found guilty of employment violations by way of E-Verify or the use of forged documents or for failing to pay taxes. If they make money, they fall within the Federal and State requirements to also report that income.

Section 6 of S.B. 1070

A.R.S. § 13-3883(A)(5): authorizing the warrantless arrest of a person where there is probable cause to believe the person has committed a public offense that makes the person removable from the United States

"Plausible Distinction" comes into play here, until it is known or verified that a person is here in violation of immigration law, they do fall under the protections of some aspects of "civil laws".

As you can now see, the "temporary injunction" is limited as to what has been held and is very specific as to what may or may not be authorized. This does allow for more State Congress Amendments to possibly parse the wording of the specified sections to conform to the requirements as set forth by Judge Bolton.

Thursday, June 3, 2010

Part 3: The forming of the United States and Naturalization

1773, the Boston Tea Party becomes the fuse to the powder keg of the War for Independence. It is not until 1776, that the Declaration of Independence is adopted by the 1st Continental Congress, which was nothing more than delegates from the 13 colonies that met first in 1775, they condemn King George III in stating; He has endeavored to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither, and raising the conditions of new Appropriations of Lands.

We are now in the time of the Articles of Confederation as written by the 2nd Continental Congress as commissioned in 1776, sent to the states for ratification in 1777, and ratified in 1781 legally federating the sovereign and independent states, already cooperating through the Continental Congress, into a new federation styled the "The United States of America". Under the Articles the states retained sovereignty over all governmental functions not specifically relinquished to the central government.

In deciding the wording and the compromise of creating a federation of sovereign and independent states, the 2nd Continental Congress would determine what would be constituted as Federal Powers and States Powers, thus creating the first Constitution of the USA, the Articles of Confederation.

In Art. 4, Sec. 1., the only Article dealing with the movement of :

"The better to secure and perpetuate mutual friendship and intercourse among the people of the different States in this Union, the free inhabitants of each of these States, paupers, vagabonds and fugitives from justice excepted, shall be entitled to all the privileges and immunities of free citizens in the several States; and the people of each State shall have free ingress and redress to and from any other State, and shall enjoy therein all the privileges of trade and commerce, subject to the same duties impositions and restrictions, as the inhabitants thereof respectively."

This is to mean, “free inhabitants” and “free citizens” as already discussed in previous topics as, “those that had colonized through the granting patent company from 1606 – 1619, the London (Virginia) Company, and were then freed by the company allowing them to purchase and own their own lands in the new world and also by the 7 year indentured servant of the Africans brought to the new world by slave traders to be freed at the end of their 7 year term and to also be allowed to purchase and own land.” The true meaning of the word "free," as used in the English law, in the colonial charters, and in the State constitutions up to this time, when applied to persons, was to describe citizens (subjects - today's equivocal, Naturalized or Natural-born), or persons possessed of franchises (denizens - today's equivocal, Legal Resident), as distinguished from aliens (foreigners looking to join the ranks of the colony, must first register with the local governor and obey all laws as instituted for aliens, required to take an oath appointed by Parliament swearing allegiance to the King of England, and live without incident within the colony for 7 years) or persons not possessed of the same franchises. Usage, then, would give this meaning to the word "free" in this section.

The rules of Naturalization were still left up to the individual states, and each state had its own rules. The above, Article 4, only allows "free" persons to actually move freely between the Colonies, now States, and entitled them to “all the privileges and immunities” in the several states.

This was all happening during the American Revolutionary War, to wit, in the end, 1785; the United States was no longer under the rule of Britain. Before the United States won their independence, the states followed the English Common Laws, including the British Naturalization Laws under King James I through King George III, for which all colonizers were subjects of Britain. During this time is when “subjects” of the King of England became “citizens” of the Republic as free men, “He that had owed primary allegiance to the King of England now owed primary allegiance to the United America.

In 1787, the United States completed the United States Constitution in Pennsylvania and on March 4, 1789, it took effect. The rule to establish a Uniform rule of Naturalization was addressed in Article 1, Section 8 of the United States Constitution. “To establish a uniform rule of naturalization,” was the only wording in regards to naturalization in the Constitution.

Tuesday, June 1, 2010

Part 2: Naturalization Before the American Revolution

During the colonial period, there were no citizens of the United States because there was no such country! For the most part, the colonists living within the British Colonies were subjects of the British Empire with the exceptions of those brought in by the Slave ships or members of other Nations colonies that became acquired by British expansion or War.

In order to have all the rights and privileges of a British subject, one had to become a subject of the British monarch. Therefore, because most of the colonial immigrants were from England and were already British subjects they retained all their rights and privileges in the colonies. There were some immigrants that had previously immigrated to the British Isles from other European countries and were naturalized there before coming to the American colonies, others came directly to the colonies and petitioned to become British subjects.

According to English law, an alien (a stranger, subject to another monarchy with no allegiance to the territorial holding monarchy) could neither hold nor inherit real property, nor pass it to his heirs. If he acquired property it passed to the Crown upon his death. The alien would have to go and submit a letter of intent to the local magistrate, where in they would be given a license allowing them to stay, mandate that they follow all laws which relate to strangers and aliens, and pay double the local tax. After living in the colony for at least 7 years, the alien could apply for a change of status, where the colonial governor could grant by letter of patent the status of “denizen”, a status akin to permanent residency today, for a paid a fee and would take an oath of allegiance to the British Parliament, akin to taking the oath to the US Constitution today. The denizen was not a “natural-born subject”; therefore he did not have any political rights: he could not be a member of parliament or hold any civil or military office.

Colonial naturalization law was made by the Parliament in England. Colonies were not allowed to decide naturalization procedures for themselves. An immigrant coming directly to the colonies would have become naturalized by an act of the colonial governor acting in place of the monarch, or by act of the colonial legislature and would be naturalized as a denizen. Colonial naturalization's prior to 1740 were strictly local in nature and the rights obtained did not extend to other colonies nor to the British Isles. Turning to the attitude of individual colonies, we find Massachusetts upholding, as we should expect, the notion of a close corporation, membership in which was given with great care. Outsiders desiring admission had to seek the permission of the authorities. In 1662, by a resolve of the general court, a few French Protestants were permitted to enter the colony, but it was not until 1700 that a general immigration law was put in force. Every ship coming into the ports of Massachusetts had to furnish to the authorities a list of the passengers, and this was followed a few years later by an act which forbade the importation of poor, infirm, or vicious people. The French Protestants that went there behaved themselves so well that in 1739 an act of naturalization was passed in their favor.

After 1740, the procedure changed. The 1740 Act of Parliament [13 George II, c.7] was entitled "An Act for Naturalizing such foreign Protestants, and others therein mentioned, as are settled or shall settle in any of His Majesty's Colonies in America." It allowed a denizen who had lived seven years in a colony to become “naturalized” by fulfilling certain requirements (such as taking the oath of allegiance and producing a certificate that he had taken the Sacrament in front of witnesses) in the colony of residence. His naturalization applied in England as well as in all of the colonies. The payment for the naturalization under this act was two shillings. Large numbers of denizens, immigrants, (excluding Catholics) became naturalized under this act, their children born after this date became "natural-born subjects".

The spirit of exclusiveness, however, was by no means overthrown, for we find an English traveler writing as late as 1760 that few people of foreign birth were to be found dwelling in Massachusetts. Connecticut was in the habit of demanding an oath of all strangers who came to dwell within her territory. New York had little or no immigration until the coming of the Germans. In fact, Governor Dongan called attention to the small number of immigrants who entered the province after its capture from the Dutch. When immigration did come, it spread into the Mohawk valley and from there into Pennsylvania. Most of the southern colonies offered grants of land to attract settlers (colonists from other British colonies whether natural-born subject or denizen), and the possession of land gave not only material wealth, but also social rank and, generally, political privileges. Acts were passed to secure and guarantee these land-titles, and in some cases taxes were exempted. South Carolina went so far as to prohibit the collection of money for all debts that had been contracted before the person came to the colony. This made the territory a refuge for those who had suffered under the severe English laws and was naturally much disliked by the creditor class.

The colonies employed the same methods of naturalization that England used. Letters of denization were issued by the governors; then there were special acts of the legislature relating to particular persons; and finally there were general naturalization laws. Colonial legislation, however, was much more limited than that of England, for no colony could give any rights outside of its own borders. The naturalization acts gave many valuable rights, such as the privilege to acquire lands and to vote at elections, but that they were not intended to give the newcomers the right to act as factors and merchants or to own vessels, for that would be contrary to the navigation laws. Aliens pleading colonial acts of naturalization as a protection for their trading had their vessels seized and condemned by the courts of admiralty, whose decisions were sustained on appeal to the king in council. Several governors, who were of royal appointment, had given letters of denization, under which aliens had traded contrary to the navigation acts. On this account William ordered that no more letters of denization be granted. The limited character of colonial naturalization is shown in repeated decisions. For example, Chief-Justice North ruled that a Virginian naturalization had merely local effect and did not confer the privileges of citizenship in any other colony. The solicitor-general in 1718 held that a New Jersey act merely gave the rights of a natural-born subject in that province alone, and consequently there would be no harm in approving it.

Naturalization legislation continued to be enacted, and as late as 1773 it was provided that foreign Protestants who had served for two years in any of the royal American regiments could become naturalized under restrictions regarding office-holding in England. It was evident that England had resolved to keep the matter of citizenship under her immediate control; for, in the same year, instructions were issued to all governors in America not to give their consent to any naturalization bill passed by the legislative bodies of the colonies under their charge. The following year, 1774, an act was passed to prevent people from becoming naturalized merely for the sake of claiming the immunities of British subjects in foreign trade.

New England and especially Massachusetts Bay turned a cold shoulder to new-comers, and received with but few exceptions only those that strengthened the narrow theocratic state, on the whole strangers were welcomed; for the greatest need of America was men to develop the resources of the country. The seventeenth century drew its immigrants from England, Ireland, and Scotland, while most of the foreigners that came here were French Protestants. The eighteenth century marked a great change in colonization, for modern methods were brought into use, and the movement became more general. The foreign immigrants went chiefly to the central and southern colonies, this being especially true of the Germans and the Scotch-Irish. New England, on the other hand, kept strict watch over all immigrants. Consequently that part of the country remained more purely English than any other. The immigrants found their way to the frontiers, where they cleared the land and formed a bulwark against the Indians. New York and Virginia seemed, with that definite object in mind, to push the strangers to the west.

Part 1: The History of US - The First century, 1600 - 1700

We are all immigrants? Maybe, but not during the colonization of this country, it's not until much later when a man would be able to come here of his own accord as a "freeman" and not as a "subject" of the King of England.

The first settlements, in what is now the USA, were actually Conquistadors, Soldiers and Explorers, early history shows the Chinese have records showing "trees of Red wood" around 498A.D. from the west coast, the Vikings landed around 1000A.D. on the north eastern coast of Canada and possibly as far south as modern day New England, later arrivals from Spain, Portugal, France and the Netherlands date to around 1513. The Spanish also laid claim to the entire west coast of what is now the USA in 1513; they did start colonies in St. Augustine, Florida as early as 1565 and New Mexico in 1598, while the French had their first colonies in South Carolina since 1562. In 1579 English Explorers also claimed the west coast of North America; The Russians laid claim to parts of the west coast, mostly from Northern California to Alaska, but not until around 1812.

The British didn’t begin to colonize the now USA until 1584, in what was called Virginia back then. This first colony failed. After Queen Elizabeth’s death, King James I established by Royal Charter, The London Company, in 1606 with the sole purpose of establishing colonial settlements in North America, the first being the Charter of Virginia in 1606. It wasn’t until 1607, when the Virginia colony of Jamestown became the first permanent English settlement founded by the London Company (later known as the Virginia Company).

In 1619, the Colony of Virginia started its first legislative assembly, known as the House of Burgesses. The Virginia Company decided to end its monopoly on land ownership believing the colonists would display greater initiative if they could gain ownership of land and would encourage private investment in the colony. The Virginia Company designed four large corporations termed cities to encompass the developed portions of the colony. The Virginia Company officials adopted English Common Law as the basis in the colony, replacing the British appointed Governor as the final voice on legal matters. The changes of 1619 also created a legislative body to be elected by the colonists that would meet once annually at Jamestown.

In 1619, a Dutch man-of-war entered the James River and landed on Virginia soil with twenty Africans for sale. Africans were used as indentured servants, serving a master for sevens years, then freed. They would now have to apply to become "denizens" (persons admitted to residence in a foreign country, through documented registration accepted by the Acts of the Royal Governor or Proprietor of the colony, with limited rights as compared to subjects), this practice was in use up to 1740. Colonial denizen (naturalization) prior to 1740 was strictly local in nature and the rights obtained did not extend to other colonies nor to the British Isles. If you moved to another colony, you would have to also become naturalized there. If an immigrant obtained his naturalization in England, however, the naturalization extended to all of the colonies and British Isles. Many became farmers themselves acquiring African servants for their own use. Though as greed came into play over the next few decades, there developed a worldwide desire for slavery, and planters in the New World who wanted a steady labor force could see the major benefits of slave labor. To accommodate the demand for slavery, Virginia adopted new laws in 1650, establishing that Africans arriving in new cargoes would be servants for life, as would their children and their children's children.

After 1618, the death of the Powhatan Chief and escalating hostilities between the confederacy of native tribes of Eastern Virginia and the colonists, the new Powhatan chief Opechancanough sought in vain to drive off the encroaching English. His large-scale attacks in 1622 and 1644 met strong reprisals by the English, resulting in the near elimination of the tribe. By 1646 the Powhatan Confederacy was largely destroyed, in part due to infectious diseases to which they had no immunity. By this time, the leaders of the colony were desperate for labor to develop the land.

The “Pilgrims” of 1620 and their landing at Plymouth Rock are probably the most noteworthy as taught in History classes in the USA. Most in this group were “Separatists ” because they demanded a complete separation from the State Church of England. They wanted to worship in a very simple manner without all of the ritual and symbols which were used in the Anglican Church. In their study of the Bible they had decided the original church in New Testament times had been a simple church and they wished to follow that example in their own worship. They believed there were so many changes needed to be made in the Anglican Church that it could not be accomplished to their satisfaction. Therefore, the only possibility for them was to "separate" completely from the state church. Their pastor, Richard Clyfton, had guided this religious community into a form of democratic self-governance. Various points of view were tolerated, but the will of the majority ruled in decision-making. They first went to Holland in 1608 after failed attempts to leave England in 1607 and settled in Leiden, Holland. They asked King James for a Royal Charter to allow them to establish a colony in the New World which was denied, but King James told them he would not try to stop them from settling abroad. The group finally succeeded in getting a Patent from the Virginia Company and was forced to agree to terms which indentured them for seven years before they would be free to own land or take profits for themselves.

Upon arriving off the coast of Cape Cod, even before the Mayflower anchored, there was a near mutiny. Some of the Leiden Separatists thought they could do as they pleased since they were, as they believed outside the bounds of English Law, thus they came up with what is known as The Mayflower Compact. The Compact was an agreement signed by all the men on board-including the indentured servants-promising to abide by laws that would be drawn up and agreed upon by all male members of the community. The women were not allowed to participate in the governing process. The Compact states that they would choose their own leaders and make their own laws. It also stated there was to be equal justice for all. This Compact became the constitution of the Plymouth Colony. It was the first document of American democracy to establish "government of the people, by the people, for the people."

From 1620 through 1732 other colonies were formed and settled by recruiters for financial backers of corporations in Britain and by other countries looking to make their claim here. The other Nations colonies eventually became acquired as the English colonies grew. As these other Nations colonies were acquired, those colonizers who refused to swear loyalty to the British crown were expelled from the territory or forced deeper into the western wilderness beyond the territory as claimed by England.

In June 1624, King James I assumed responsibility for the colony of Virginia after he dissolved the Virginia Company of London, thus the Virginia Colony became a Crown Colony. He ordered Virginia's leaders to make a record of the colony's inhabitants and their provisions. This census-known as the 1624/5 Muster-is the first comprehensive account of households in British North America. In addition, it is the only extant census for seventeenth-century Virginia. The 1624/5 Muster is a house-to-house survey that contains information about the location of households in Virginia, the individuals in each household and the ties that connected the colony's early residents to one another.

In 1634, the first counties were laid out to replace the old system of corporations and private plantations.

In 1639, the first law passed, was "an act to compel physicians and surgeons to declare on oath the value of their medicines."

In 1640, as the present Massachusetts Act goes back, with no substantial change to the origin of the system, it must be sought before that date, which narrows our enquiry (sic)to the few colonies settled before that time; and we must first examine the system of Virginia, the colony first settled.

In 1641, at the formation of The Massachusetts Body of Liberties, Virginia raised her protest against the continuance of slave traffic, but New England raised a voice of objection, and uniting her influence with that of South Carolina and Georgia secured the continuance of the slave trade for twenty years more, by Constitutional provision.

As you can see (bold above), many of our laws have been incorporated into the USA since its first English colonies were established by British Royal Charter to Corporations investing in the New World. This is but a small portion of how our Constitution and Laws came about. You may also note that the USA was formed by way of colonizers from Britain (Colonists are, as defined during the time, people who were to inhabit or populate an area based on the claims made by an exploring country, to somehow give credibility to the sending countries claimed territories and were nothing more than sharecroppers meant to benefit the Empire), as "subjects" of the British Empire. Even the Pilgrims of 1620 came over on a granted Patent as colonizers from the Virginia Company. It wouldn’t be until the Declaration of Independence and the separation claimed from Great Britain that the 13 Colonies become truly free independent and Sovereign States.

Tuesday, May 25, 2010

SB1070 and those who are benevolent

Why is it that Lawyers always think they know everything? Why is it that they fail to actually understand and/or read what they opine about? In a CNN opinion article written by Chandra Bhatnagar, he claims that the Arizona law is in some way violating the ICERD based on an underscore of UN experts writing a letter of discontent.

Mr. Bhatnagar states:
The law flies in the face of Arizona's human rights obligations, particularly the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), which the United States ratified in 1994 and which is binding on all levels of federal, state and local governments, including Arizona Gov. Jan Brewer, who signed the bill.

The problem with his meager claim is two fold; first the Arizona Law is not an immigration law it is a criminal law which is pretty much what is already a law in California, and second the ICERD that Mr. Bhatnagar refers to allows in Article 1.2: Distinctions made on the basis of citizenship (that is, between citizens and non-citizens) are specifically excluded from the definition, as are affirmative action policies and other measures taken to redress imbalances and promote equality.

So then why all the "boycott" of Arizona? Where is the "boycott" of California?

Monday, May 17, 2010

The Significance of Domicile in Interprating Birth Right Citizenship

The Citizenship Clause of the Fourteenth Amendment establishes citizenship as a birthright for all children born in the United States, so long as they are “subject to the jurisdiction thereof.” Territorial birth, “subject to the jurisdiction” requires a mutual consensual relationship between individuals and the U.S. political community; children of undocumented immigrants, lacking such a relationship, are thus putatively precluded from constitutional birthright citizenship.

The 14th Amendment’s Citizenship Clause draws heavily on the text of a similar citizenship provision in the Civil Rights Act of 1866, written by Senator Lyman Trumbull. In a letter to President Andrew Johnson summarizing the draft Act, Trumbull said that birthright citizenship depended on whether the parents of children born in the United States were living permanently, “domiciled,” here.

Domicile had an unambiguous definition in 1866: one acquired domicile in a nation or a particular place by moving there with the intention of making it one’s permanent residence. Only two prerequisites must be satisfied for domicile to exist: “residence; and . . . intention of making it the home of the [person]”.

A person could change domicile by leaving one jurisdiction and settling in another, regardless of whether those jurisdictions were states within a country or separate nations. In certain international contexts (such as neutrality agreements), acquiring domicile resulted in “a national character [being] impressed upon a person, different from that which permanent allegiance gives him”; such a person, though, could easily choose to cast off that “national character” by returning to his or her native country. Domicile and citizenship were thus distinct from one another, and acquiring the former in a new country did not alter the latter.
Now let's discuss allegiance, the “complete, political jurisdiction” over an individual that flows from the individual’s “allegiance to the sovereign.” Allegiance involves renouncing their previous allegiance, or at least formally demonstrating “commitment” to the United States by obtaining permanent resident status and assuming the “contributive responsibilities” of citizens. Further, affiliation must be met with the “reciprocal consent . . . of the nation to [the individual’s] membership.”

Taking domicile to be the birthright citizenship standard may just limit bestowed citizenship upon birth much better than the allegiance argument as used today to interpret the 14th Amendment. First, children born within the territorial boundaries of the United States are U.S. citizens (or not) based on their parents’ domicile, not citizenship or political status. Using domicile as the benchmark also contradicts today's argument that “subject to the jurisdiction” refers not to universally applicable territorial jurisdiction, but a narrower, “political” type. To gain domicile in 1868, one had only to have lived within the territory and planned to permanently remain; one did not need to first transfer one’s sovereign allegiance. Any new “national character” that one took on through acquiring domicile in a new country was merely “adventitious,” and could “be thrown off at pleasure” by leaving the country without intent to return. This is not exactly lasting political affiliation or allegiance.

If domicile is the appropriate standard, individuals born here and subject to our laws would not be “subject to the jurisdiction” for citizenship purposes if their parents were here only temporarily. Using domicile in this way is thus more restrictive than the pure territorial approach: it requires parents to have some meaningful ties to the country in which they are living for children born there to be citizens.
Domicile requires individuals to integrate themselves into a nation’s social fabric through residence such that they consider it their home and have no plans to leave. Beyond residence, it requires that an individual seek, and the country accept, affiliation between the individual and the government of the country. Thus, those here on non-immigrant visas should not have bestowed upon their children born within the boundaries of the United States of America, birthright citizenship, as they themselves are not intending to permanently reside or be domiciled within the USA, and they do not intend to give their "allegiance" to the US Constitution. This should also deny children born to illegal immigration entry violators, birthright citizenship.

The case for Arizona's SB1070

The argument over States Rights and immigration is a fairly new ordeal. The CLEAR Act of 2003 and the Homeland Security Enhancement Act of 2003 has prompted many to question what role state and local law enforcement agencies should have in the enforcement of immigration law. Directly from the CRS Report for Congress; Enforcing Immigration Law: The Role of State and Local Law Enforcement, March 2004.

Congress defined our nation’s immigration laws in the Immigration and Nationality Act (INA) (8 U.S.C. §§1101 et seq.), which contains both criminal and civil enforcement measures. Historically, the authority for state and local law enforcement officials to enforce immigration law has been construed to be limited to the criminal provisions of the INA; by contrast, the enforcement of the civil provisions, which includes apprehension and removal of deportable aliens, has strictly been viewed as a federal responsibility, with states playing an incidental supporting role.

Congress, through various amendments to the INA, has gradually broadened the authority for state and local law enforcement officials to enforce immigration law, and some recent statutes have begun to carve out possible state roles in the enforcement of civil matters. The legislative proposals that have been introduced, however, would appear to expand the role of state and local law enforcement agencies in the civil regulatory aspects of immigration law (i.e., identifying and detaining deportable aliens for purposes of removal).

Alien Criminal Apprehension Program
The Alien Criminal Apprehension Program (ACAP) was established in 1991 by the former INS. Through ACAP, criminal aliens are identified by immigration officials after they have been notified by state and local law enforcement officials. Upon an encounter with an immigrant whose immigration status may be in question, state and local law enforcement officials notify immigration officials, who determine the immigrant’s status and, if applicable, take the immigrant into federal custody.

Although there is quite a bit of debate with respect to state and local law enforcement officers’ authority to enforce immigration law as a matter of practice, it is permissible for state and local law enforcement officers to inquire into the status of an immigrant during the course of their normal duties in enforcing state and local law. This practice allows state and local law enforcement officers to play an indirect role that is incidental to their general criminal enforcement authority.

For example, when state or local officers question the immigration status of someone they have detained for a state or local violation, they may contact an ICE agent at the Law Enforcement Support Center (LESC). The federal agent may then place a detainer on the suspect, requesting the state official to keep the suspect in custody until a determination can be made as to the suspect’s immigration status. However, the continued detention of such a suspect beyond the needs of local law enforcement, and solely designed to aid in enforcement of federal immigration laws, may be unlawful.

The power to prescribe rules as to which aliens may enter the U.S. and which aliens may be removed solely resides with the federal government. It has generally been assumed that state and local officers may enforce the criminal provisions of the INA if state law permits them to do so but are assumed to be precluded from directly enforcing the INA’s civil provisions. State enforcement of the criminal provisions of the INA is seen as being consistent with the state’s police power to make arrests for criminal acts and the expectation that states are expected to cooperate in the enforcement of federal criminal laws.

To the degree that it is not preempted, the authority of state and local law enforcement officers to investigate and arrest for violations of federal law is determined by reference to state law. This may be done through express authorization in state law. However, this may not be necessary according to some recent decisions from the Tenth Circuit that appear to suggest that state and local law enforcement officers may possess “inherent authority” within their respective jurisdictions to investigate and make arrests for criminal immigration matters.

However, civil violations of the INA are also found to be within the jurisdictional authority of the state and local law enforcement. In the Tenth Circuit case of United States v. Salinas-Calderon, a state trooper pulled over the defendant for driving erratically but soon found six individuals in the back of the defendant’s truck. The court determined that the trooper had "probable cause" to detain and arrest all the individuals. In United States v. Vasquez-Alvarez, an Oklahoma police officer arrested a Hispanic male suspected of drug dealing because he was an “illegal alien.”

The defendant argued that the state police could only arrest him in accordance with the restrictions detailed in 8 U.S.C. §1252c and since his arrest did not meet the requirements of that provision, it was unauthorized. The Tenth Circuit, however, ultimately concluded that §1252c “does not limit or displace the preexisting general authority of state or local police officers to investigate and make arrests for violations of federal law, including immigration law. Instead, §1252c merely creates an additional vehicle for the enforcement of federal immigration law.”

Clearly preemption does not bar state and local immigration enforcement where Congress has evidenced intent to authorize such enforcement. In exercising its power to regulate immigration, Congress is free to delegate to the states, among other things, the activities of arresting, holding, and transporting aliens. Indeed, Congress already has created avenues for the participation of state and local officers in the enforcement of the federal immigration laws.