State and local officers may effect arrests for violations of the civil provisions of the Immigration and Nationality Act (the “INA”) only under circumstances specifically delineated in the INA Section 287(g) (10) (B). Further, even if states had inherent arrest authority, it appears that it would not alter the outcome. Considering both the uniquely federal nature of immigration regulation and the exhaustive scope of regulation in the INA, DOJ has historically understood that the absence of express authorization is tantamount to a prohibition on civil enforcement by the states. This position was confirmed in 1996, when a formal DOJ opinion concluded that: “State police lack recognized legal authority to arrest or detain aliens solely for purposes of civil immigration proceedings, as opposed to criminal prosecution”. Theresa Wynn Roseborough, Deputy Assistant Attorney General, Office of Legal Counsel, Assistance by State and Local Police in Apprehending Illegal Aliens (memorandum for U.S. Atty. for the S.D. Cal.) (Feb. 5, 1996) (the “OLC Opinion”) (Emphasis in original).
The power to regulate immigration is unquestionably exclusively a federal power.” DeCanas v. Bica, 424 U.S. 351, 354 (1976). The core questions of which aliens should be allowed into the country and which should be permitted to remain are, as matters of both constitutional structure and historical practice under the INA, purely federal. See Toll v. Moreno, 458 U.S. 1, 10-14 (1982); id. at 26-27 (Rehnquist, J., dissenting). Congress legislates against a longstanding background assumption that the federal government is principal, if not solely, responsible for civil immigration enforcement. This legislative context and its constitutional underpinnings strengthen a belief that the states are not intended to exercise enforcement authority outside the express grants of such authority in the INA. Also, Section 274 of the INA codified in Title 8 U.S.C. 1324 (C)establishes a number of criminal immigration offenses, and states in part that: “No officer or person shall have authority to make an arrest for a violation of any provision of this section except officers and employees of the Service designated by the Attorney General, either individually or as a member of a class, and all other officers whose duty it is to enforce criminal laws.
It’s fair to say it can be argued that INA Section 287(g) (10) (B) does not eliminate the states’ rights to cooperate with the Attorney General in the identification, apprehension, detention, or removal of aliens, however, as much as we may like to read this section in a vacuum, it is impossible to say this provision authorise state and local officers to “cooperate” by themselves effecting the “apprehension” of non-citizens for civil immigration infractions–and in so doing, without considering the context of the rest of 287(g). As here, we do not believe the savings clause can reasonably be construed to grant state and local officers the authority to make unsupervised arrests for civil immigration violations. There is a significant difference between the ability to “cooperate with the Attorney General,” which is preserved by 287(g) (10) (B), and the power to “perform a function of an immigration officer,” which is granted under limited circumstances by the remainder of 287(g). The most plausible construction of 287(g) (10) (B) is that it recognizes state and local officers’ ability to assist federal officers in the performance of their duties but does not give state and local officers new authority to act on their own.
Civil issues involving Federal violation of Immigration Law, without officer’s reasonable cause to believe a violation has occurred, is not cognizable under any laws relating to arrest powers by California Peace Officer. Congress has heavily regulated the power to interrogate, investigate, search, detain, and arrest “aliens” for violations of the immigration laws. See; MUEHLER V. MENA (03-1423) 544 U.S. 93 (2005) 332 F.3d 1255, vacated and remanded. Congress legislates against a longstanding background assumption that the federal government is principal, if not solely, responsible for civil immigration enforcement. That legislative context and its constitutional underpinnings strengthen a belief that the states are not intended to exercise enforcement authority outside the express grants of such authority in the INA. Arguendo, even if the States had general authority to arrest non-citizens for suspected violations of civil immigration provisions, the officer making the arrest would require an affirmative grant of authority under state law to do so. Put another way, while the federal government may allow the states to enforce the civil provisions of the INA, it cannot require them to do so by commandeering state officers. See Printz v. the United States, 521 U.S. 898, 922 (1997)
Attorney General Jeff Sessions lawsuit against California would encroach upon the sovereignty retained by states under the Constitution, while also violating the Executive’s prerogatives and duties under Article II. The federal government’s jurisdiction over immigration law has consistently been upheld by the U.S. Supreme Court, which has overruled attempts by state legislatures to single out immigrants. Additionally, the Supremacy Clause of the U.S. Constitution is generally interpreted to mean that federal laws trump state laws, except for certain matters constitutionally left to the states. Existing restrictions on arrest authority are fundamental to state criminal procedure and often stem from pre-independence English common law. States do not often discard such long-standing and deeply ingrained policies abruptly. Gerard Castro et al. V. The city of Chandler, No 97-1736 (D. Ariz. Filed Aug. 18, 1997).
All in all, We cannot implicate public safety when due process clause is improperly interpreted and used to subordinate and dilute the specific safeguards of the bill of rights. Not in trusting to momentary Jeff Sessions view at any particular time of what is “patently arbitrary, but in wholehearted devotion to and observance of our constitutional freedoms. Immigration Anxiety has and will continue to frustrate our State Jurisdiction and as such, it’s fair to say this is where public safety is implicated and at risk, particularly when the due process itself becomes so wholly dependent upon Executive Branch Agency ideas of what is patently arbitrary and rational. With ongoing violence in our schools, we hope this lawsuit won’t be used to justify considerable debate regarding the Second Amendment’s intended scope, which reads in part: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” As history bear witness, anti-federalist fears and arguments that federal Government will deprive states of their ability to defend themselves against oppression are today relevant in the crux of this debate. As we stand to be corrected, let’s hear vehement arguments. Each One Teach One.
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California Gov. Jerry Brown denounced U.S. Attorney General Jeff Sessions for coming to the state to speak about a lawsuit targeting policies that limit cooperation with federal immigration authorities, saying Wednesday it was unprecedented for him to “act more like Fox News than a law enforcement officer.”
Source; By Amy Hollyfield