These types of violations include, for example, 8 U. Congress also has exclusive authority to prescribe procedures for determining who may enter or stay and the right of aliens in these proceedings, subject to the individual rights all aliens in the United States enjoy under the Constitution. However, exclusive authority to prescribe the rules on immigration 10 does not necessarily imply exclusive authority to enforce those rules. While enforcement standards and procedures may differ between the criminal and civil aspects of immigration law, Congress may authorize the states to assist in enforcing both, and state officers may exercise this authority to the degree permitted under federal and state law.
There is a notion, however—one being more frequently articulated by the federal courts and the Executive branch—that states have "inherent" authority to enforce at least the federal criminal law related to immigration.
This inherent authority position is now apparently beginning to be expressed with regard to the enforcement of the civil aspects of immigration law as well. State enforcement, nonetheless, must always be consistent with federal authority. Even assuming states have some inherent authority to enforce immigration law, federal law preempts inconsistent state law where concurrent jurisdiction exists.
Congress' power to preempt state law arises from the Supremacy Clause of the Constitution, which provides that "the Laws of the United States Setting the rules on the entry and removal of aliens is unquestionably an exclusive federal power and some would argue that uniformity in enforcing those rules is critical to the exercise of sovereign authority i. From the states' point of view, the federal government's exclusive power over immigration does not preempt every state activity affecting aliens.
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. For example, state and local law enforcement officers cannot arrest someone solely for illegal presence for the purpose of deporting them because it is a civil violation, but they can arrest someone for the criminal offense of entering the country illegally.
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. The following sections briefly examine Department of Justice, Office of Legal Counsel OLC opinions that have examined immigration enforcement authority, analyze the major cases on the issue, and describe current provisions in law that authorize state and local involvement in the enforcement of immigration law.
Several Administrations have spoken on the scope of state and local involvement. A shift in policy towards increasing the role and authority of local law enforcement officers in the field of immigration enforcement came following the terrorist attacks in September At a press conference, Attorney General Ashcroft confirmed the existence of a new OLC opinion that, among other things, expressed the department's view that state and local officials have "inherent authority" to enforce federal immigration law, including the civil enforcement provisions.
According to the Attorney General:. When federal, state and local law enforcement officers encounter an alien of national security concern who has been listed on the NCIC for violating immigration law, federal law permits them to arrest that person and transfer him to the custody of the INS. The Justice Department's Office of Legal Counsel has concluded that this narrow, limited mission that we are asking state and local police to undertake voluntarily—arresting aliens who have violated criminal provisions of the Immigration and Nationality Act or civil provisions that render an alien deportable, and who are listed on the NCIC—is within the inherent authority of states.
The department, however, claimed that the memorandum was exempt from disclosure under FOIA based on the deliberative process and attorney-client privileges. A lawsuit seeking the release of the OLC opinion was subsequently filed by the groups against the Department of Justice. The OLC opinion concludes that 1 states have inherent power, subject to federal preemption, to make arrests for violations of federal law; 2 the advice provided in the OLC opinion that federal law precludes state police from arresting aliens on the basis of civil deportability was mistaken; and 3 8 U.
As to the first conclusion, the opinion focuses on the authority of states, as sovereign entities, to retain certain police powers under the Constitution, namely, the inherent authority to make arrests for a violation of federal law. With respect to the second conclusion, the opinion discredits much of the authority cited in the and opinions, takes into account case law not previously considered, and frames the preemption issue differently from the earlier opinions.
Critics have described the newly released opinion as "deeply flawed" and unsupported by legislative history or judicial precedent. Generally, interpretations contained in opinion letters are not controlling and should be followed only insofar as they have the "power to persuade. The issue of whether state and local law enforcement agencies are precluded from enforcing provisions of the INA was analyzed in the Ninth Circuit case of Gonzalez v.
City of Peoria. With regards to preemption, the Gonzalez court determined that the criminal immigration provisions were "few in number," "relatively simple in their terms," constituted a "narrow and distinct element" of the INA, and did not require a "complex administrative structure" consistent with exclusive federal control.
With respect to civil immigration enforcement, Gonzalez has been construed to support the argument that states do not possess the authority, "inherent" or otherwise, unless specifically granted by Congress to enforce the civil enforcement measures of the INA.
The court stated:. We assume that the civil provisions of the Act regulating authorized entry, length of stay, residence status, and deportation, constitute such a pervasive regulatory scheme, as would be consistent with the exclusive federal power over immigration.
However, this case [ Gonzalez ] does not concern that broad scheme, but only a narrow and distinct element of it—the regulation of criminal immigration activity by aliens. Accordingly, the court concluded that the authority of state officials to enforce the provisions of the INA "is limited to criminal provisions.
In the Tenth Circuit case of United States v. Salinas-Calderon, 45 a state trooper pulled over the defendant for driving erratically but soon found six individuals in the back of the defendant's truck. Because the defendant, who was eventually charged with the crime of illegally transporting aliens did not speak English, the state trooper questioned the passenger the defendant's wife and learned that the driver and the other six individuals were in the country illegally.
From this line of questioning, the court determined that the trooper had probable cause to detain and arrest all the individuals. In addition to the probable cause conclusion, the Tenth Circuit determined that a "state trooper has general investigatory authority to inquire into possible immigration violations.
Instead, the focus of the Salinas-Calderon decision was on the probable cause and potential suppression of the statements made by the six alien passengers. In United States v.
Vasquez-Alvarez , an Oklahoma police officer arrested a Hispanic male suspected of drug dealing because he was an "illegal alien. Section c requires state officers to obtain confirmation from the INS before making such an arrest.
At the time of the arrest in Vasquez-Alvarez , however, the state officer did not have actual knowledge of the defendant's immigration status or past criminal behavior; it was only later discovered that the alien had a history of prior criminal convictions and deportations. The defendant argued that the state police could only arrest him in accordance with the restrictions detailed in 8 U. The court also recognized that it had previously determined in Salinas-Calderon that state law enforcement officers have the general authority to investigate and make arrests for violations of federal immigration laws.
Santana-Garcia , 53 again addressed the role of local law enforcement in immigration. In Santana-Garcia , a Utah police officer stopped a vehicle for a traffic violation. The driver of the car did not speak English and did not possess a driver's license.
The passenger of the car spoke limited English and explained that they were traveling from Mexico to Colorado, which prompted the officer to ask if they were "legal. In recognizing that state and local police officers had "implicit authority" within their respective jurisdictions to investigate and make arrests for violations of immigration law, the court seemingly dismissed the suggestion that state law must explicitly grant local authorities the power to arrest for a federal immigration law violation.
Although the defendants in Santana-Garcia were apparently in violation of a civil provision of the INA i. Moreover, it remains unclear how the court, pursuant to its broad understanding of the Utah state law it relied upon, would have ruled absent the initial reason for the stop—the traffic violation. Accordingly, it can be argued that this case still seems to leave unresolved the extent to which state and local police officers may enforce the civil provisions of the INA as such.
The aforementioned cases ultimately arose in the context of enforcing criminal matters or violations of state law. This would seem to weaken the argument for an independent role in enforcing civil immigration matters. Nonetheless, as the cases from the Tenth Circuit illustrate, there appears to be a general movement towards expanding the role of state and local law enforcement officers in the field of immigration law, including some aspects of civil immigration enforcement.
Clearly preemption does not bar state and local immigration enforcement where Congress has evidenced intent to authorize such enforcement. Indeed, Congress already has created avenues for the participation of state and local officers in the enforcement of the federal immigration laws. Section g allows for significant flexibility. It permits state and local entities to tailor an agreement with the AG to meet local needs, contemplates the authorization of multiple officers, and does not require the designated officers to stop performing their local duties.
Officers designated by the AG are not federal employees except for certain tort claims and compensation matters, but they do enjoy federal immunity. In the event that the Attorney General 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, the Attorney General may authorize any State or local law enforcement officer, with the consent of the head of the department, agency or establishment under whose jurisdiction the individual is serving, to perform or exercise any of the power, privileges or duties conferred or imposed by the Act or regulations issued thereunder upon officers or employees of the service.
Thus, under 8 U. Any authority given by the AG to state law enforcement officers under this provision can only be exercised during the emergency situation. The new rules also allow the AG to abbreviate or waive the otherwise normally required training requirements when such an action is necessary to protect public safety, public health, or national security. Section c a states in part:. Congress appears to have delegated arrest authority to local law enforcement officers in 8 U.
The Senate-passed version of this provision stated that arrests for violations only could be made by INS agents and "other officers of the United States whose duty it is to enforce criminal laws. As mentioned above, IIRIRA amended the INA by authorizing the AG now the Secretary of Homeland Security to enter into written agreements with states or political subdivisions of a state so that qualified officers could perform specified immigration-related duties.
This authority was given new urgency following the terrorist attacks in September In , the AG proposed an initiative to enter into such agreements in an effort to carry out the country's anti-terrorism mission. Under such agreements, commonly referred to as g programs, state and local law enforcement officers could be deputized to assist the federal government with enforcing certain aspects of immigration law.
To date, ICE has entered into such agreements with several jurisdictions. The task forces performed immigration enforcement functions that pertain to domestic security and counter-terrorism needs of the nation and the state of Florida.
Under Florida's renewed MOA with DHS, selected officers are authorized to enforce immigration laws and policies upon successful completion of mandatory training provided by DHS instructors. Each nominee has to be a U. Candidates also must be able to qualify for federal security clearances. Once selected, each candidate's employer has to indicate that it will allow the officer to work a significant portion of his work responsibilities within the RDSTF for a minimum of one year.
Training for the officers is provided by ICE at a mutually designated site in Florida. The program uses ICE curriculum and competency testing, which includes information on the following: 1 the scope of the officer's authority; 2 cross-cultural issues; 3 the proper use of force; 4 civil rights law; and 5 liability issues. Officers also receive specific training on their obligations under federal law and the Vienna Convention on Consular Relations on making proper notification upon the arrest of foreign nationals.
All training materials are provided by DHS, while the employing agency is responsible for the salaries and benefits of the officers in training. The FDLE covers the costs of housing and meals during training. Upon successful completion of the training, DHS provides a signed document setting forth the officer's authorization to perform specified immigration enforcement functions for an initial period of one year.
Immigration-related activities performed by the officers are supervised by DHS. Participating officers cannot perform any immigration officer functions except when fulfilling their assigned RDSTF duties and under the direct supervision of a DHS officer. All arrest made under this authority must be reported to ICE within 24 hours. To date, Florida has trained and certified 63 officers. Today, the Department of Homeland Security enforces immigration laws primarily through two of its agencies: Customs and Border Patrol and Immigration and Customs Enforcement.
The Border Patrol has existed as a government agency since and is primarily responsible for enforcing laws at the border. It only has jurisdiction up to miles in from U. Immigration and Customs Enforcement was created in and is primarily responsible for enforcing immigration laws in the rest of United States. The other immigration agency within Homeland Security is U. Citizenship and Immigration Services, which processes applications for immigration and citizenship.
Prior to the creation of the Department of Homeland Security, immigration enforcement and application processing were managed by divisions of the Immigration and Naturalization Service. The creation of the Department of Homeland Security changed immigration law enforcement in two ways. First, it transferred immigration law enforcement from the Department of Justice to Homeland Security.
Some 3 million people total were deported during the Obama administration — more than any previous administration and at a far higher rate than that of the current administration. For the past 20 years, aggressive immigration law enforcement has been a constant across Democrat and Republican administrations.
Democratic President Bill Clinton signed laws in that greatly expanded deportations. The creation of the Department of Homeland Security led to a spike in the number of people deported from the U. Presently, ICE apprehensions are about half what they were during the peak of the Obama administration. Data on ICE apprehensions provide a good sense of immigration law enforcement efforts inside the United States, while data on Border Protection apprehensions provide a good measure of how many people are attempting to illegally enter the United States across a land border.
It is extremely unlikely that the Trump administration will abolish ICE. There will likely continue to be plenty for immigration rights advocates to protest. The US Department of State has the primary responsibility of issuing United States visas, including both immigrant and non-immigrant visas.
When a foreign national wishes to visit the country temporarily or to begin the process of moving to the country permanently, a visa is typically required. The US Department of State is instrumental in determining who can obtain a visa, and is the best source of information about available visas.
Some of the different tasks of the US State Department include:. It is important to realize that a visa is a permission to enter the United States, but it is not necessarily a guarantee you will be permitted to enter. The Department of State administers the issuance of visas, but customs officials at the border determine who will actually be permitted to enter the country and who will be denied entry.
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