The quintessential force multiplier: the inherent authority of local police to make immigration arrests.

• Author: Kobach, Kris W.

1. INTRODUCTION

   The terrorist attacks of September 11, 2001 underscored for all Americans the link between immigration law enforcement and terrorism. Nineteen alien terrorists had been able to enter the country legally and undetected, overstay their visas or violate their immigration statuses with impunity, and move freely within the country without significant interference from federal or local law enforcement. (1) The abuse of U.S. immigration laws was instrumental in the deaths of nearly 3,000 people. Moreover, any suicide attack by an alien terrorist in the future will likely entail additional violations of U.S. immigration laws. Either the terrorist will attempt to enter the United States legally and will violate the terms of his nonimmigrant status in the planning and execution of his attack, (2) or the alien terrorist will enter without inspection (EWI), which is itself a violation of U.S. immigration law. (3)

   The fact that the 9/11 terrorists had been able to exploit weaknesses in the enforcement of immigration laws was not surprising to those engaged in the execution of federal immigration law. Enforcing the immigration laws is one of the most daunting challenges faced by the federal government. With an estimated 7 to 10 million illegal aliens already present in the United States (4) and fewer than 2000 interior enforcement agents at its disposal, the U.S. Bureau of Immigration and Customs Enforcement (ICE) has a Herculean task on its hands--one that it cannot easily accomplish alone. (5) After 9/11, it became clear that an effective domestic war against terrorism would require improvements in the enforcement of immigration laws.

   On June 6, 2002, Attorney General John Ashcroft announced the National Security Entry-Exit Registration System (NSEERS), a program that would require high-risk alien visitors to provide fingerprints and extensive biographical information. It would also require such aliens to re-register with U.S. immigration officials periodically and would, for the first time, impose real-time departure controls on such high-risk visitors. (6) Violators of the NSEERS requirements would be listed in the National Crime Information Center (NCIC) database, accessible in the squad cars of most local police departments, allowing local law enforcement officers to make arrests of such high-risk immigration law violators. (7) Had local police officers had access to the names of the five 9/11 hijackers who violated civil provisions of the Immigration and Nationality Act (INA) prior to the attack, they might have been able to arrest and detain one or more of the hijackers. (8)

   The assistance of state and local law enforcement agencies can also mean the difference between success and failure in enforcing the nation's immigration laws generally. The nearly 800,000 police officers nationwide represent a massive force multiplier. (9) This assistance need only be occasional, passive, voluntary, and pursued during the course of normal law enforcement activity. The net that is cast daily by local law enforcement during routine encounters with members of the public is so immense that it is inevitable illegal aliens will be identified. When a local police officer establishes probable cause to believe that an alien is in violation of U.S. immigration law, he may contact the ICE Law Enforcement Support Center in Williston, Vermont, to confirm that ICE wishes to take custody of the alien. (10)

   The Department of Justice Office of Legal Counsel (OLC) provides oral advice and written opinions in response to various executive branch requests. (11) When Attorney General Ashcroft announced the NSEERS system, he also announced the unequivocal conclusion of the OLC: "[A]rresting aliens who have violated criminal provisions of [the INA] or civil provisions that render an alien deportable ... is within the inherent authority of the states." (12) Shortly thereafter, the OLC retracted the relevant section of an erroneous 1996 OLC opinion on the subject. The OLC's 2002 conclusion--that states possess inherent authority to make immigration arrests--was not an extraordinary one. However, it sparked an extraordinary reaction among those in Washington, D.C., who lobby for open borders and less effective enforcement of immigration laws. (13) It also prompted a few critics to opine at length in law review articles. (14)

   It had long been widely recognized that state and local police possess the inherent authority to arrest aliens who have violated criminal provisions of the INA. (15) Once the arrest is made, the police officer must contact federal immigration authorities and transfer the alien into federal custody within a reasonable period of time. Confusion existed, however, on the question of whether the same authority extends to arresting aliens who have violated civil provisions of the INA that render an alien deportable. That confusion had been, to some extent, fostered by the erroneous 1996 OLC opinion, the relevant part of which was withdrawn by OLC in 2002. (16)

   As I explain in this Article, the law on this question, however, is quite clear: arresting aliens who have violated either criminal provisions of the INA or civil provisions that render an alien deportable is within the inherent authority of the states. Additionally, such inherent arrest authority has never been preempted by Congress. This conclusion has been confirmed by every court to squarely address the issue. Indeed, it is difficult to make a persuasive case to the contrary. This inherent arrest authority has been possessed and exercised by state and local police since the earliest days of federal immigration law.

   In this Article, I describe the inherent legal authority upon which state and local police may act when making arrests in order to assist federal immigration enforcement. (17) I also answer the challenges of those who insist that such inherent authority has been preempted by Congress. Before describing this legal landscape, I explain in greater detail why the authority of local law enforcement to make immigration arrests, both criminal and civil, is critical both to the success of the war against terrorism and to rebuilding the rule of law in immigration.

2. THE VALUE OF LOCAL LAW ENFORCEMENT

   The years that have passed since September 11, 2001, have yielded a wealth of cases in which an immigration-based arrest by a state or local police officer was crucial in securing the capture of a suspected terrorist, a career criminal, or an absconder fleeing a final removal order. The role that state and local police officers play is often pivotal in the apprehension of aliens who present a terrorist or criminal threat. The nearly 800,000 state and local officers are the eyes and ears of law enforcement across the United States. They are the officers who encounter thousands of aliens daily in traffic stops and other routine law enforcement situations. Federal immigration officers simply cannot cover the same ground. The fact that four of the nineteen 9/11 hijackers had law enforcement encounters with local police in the six months preceding September 11, 2001, is instructive. The following are the most important scenarios in which state and local assistance in making immigration arrests occurs or, in the case of the 9/11 terrorists, should have occurred.

   1. The 9/11 Terrorists

      The nineteen Al Qaeda terrorists who carried out the 9/11 attacks had their final contacts with federal law enforcement officials at the ports of entry when they were legally admitted into the United States. Four members of the 9/11 terrorist group, however, encountered state and local law enforcement while inside the country. In all four of those instances, the state or local officers might have been able to make immigration arrests if the aliens' immigration violations had been communicated to them by federal authorities or if the officers had independently developed probable cause to believe that the aliens were in violation of federal immigration law.

      The first case is that of Saudi Arabian Nawaf al Hazmi. Hazmi entered the United States through the Los Angeles International Airport as a B-2 visitor for pleasure (18) on January 15, 2000. (19) He rented an apartment with fellow hijacker Khalid al Mihdhar in San Diego and lived there for more than a year. (20) The authorized period of stay for B-2 visas is six months in almost every instance, as a matter of regulatory policy. (21) Since Hazmi was admitted to the United States for a six-month stay, (22) he would be in the United States illegally after July 15, 2000. (23) In early 2001, he moved to Phoenix, Arizona to join another 9/11 hijacker, Hani Hanjour. (24) On April 1, 2001, Hazmi was stopped for speeding in Oklahoma while traveling cross-country with Hanjour. (25) Had the officer known that Hazmi was in violation of U.S. immigration law at the time, he could have detained him. (26)

      The second case is that of Egyptian Mohammed Atta, the ringleader of the 9/11 attacks and the individual who was most likely at the flight controls of American Airlines Flight 11 when it crashed into the World Trade Center. Atta entered the United States on numerous occasions, using B1 and B2 visas (temporary visitor for business/pleasure). (27) His first entry into the country was on June 3, 2000, through Newark Airport. (28) As noted above, the normal period of stay for B visa holders is six months, authorized at the time of entry. A B visa holder, however, may gain a "new" six-month period of authorized stay by departing the country and reentering on the same visa. (29) In total, Atta spent more than thirteen months in the United States preparing for the attacks. (30) However, he was unable to completely avoid contact with local law enforcement. On April 26, 2001, a police officer in Broward County, Florida stopped Atta for a traffic violation and ticketed him for possessing an invalid driver's license. (31) The officer did not know that...