Subsection 1324(c) of Title 8 specifically authorizes state and local
officers "whose duty it is to enforce criminal laws" to make arrests for
violations of 8 U.S.C. § 1324. There is also a general federal statute
which
authorizes certain local officials to make arrests for violations of federal
statutes, 18 U.S.C. § 3041. The Fifth Circuit Court of Appeals has held
that
18 U.S.C. § 3041 authorizes those local officials to issue process for
the
arrest, to be executed by law enforcement officers. SeeUnited
States
v. Bowdach, 561 F.2d 1160, 1168 (5th Cir. 1977).
Rule 4(a)(1) of the Federal Rules of Criminal Procedure provides that
an
arrest warrant "shall be executed by a marshal or by some other officer
authorized by law." The phrase, "some other officer," includes state and
local
officers. Bowdach, supra.
Section 439 of the Antiterrorism and Effective Death Penalty Act of
1996
added a new 8 U.S.C. § 1252c which provides that notwithstanding any
other
provision of law, to the extent permitted by relevant State and local law,
State
and local law enforcement officials are authorized to arrest and detain an
individual who (1) is an alien illegally present in the United States; and
(2)
has previously been convicted of a felony in the United States and deported
and
left the United States after such conviction, but only after the State or
local
law enforcement officials obtain appropriate confirmation from the
Immigration
and Naturalization Service of the status of such individual and only for
such
period of time as may be required for the Service to take the individual
into
federal custody for purposes of deporting or removing the alien from the
United
States.
In the absence of a specific federal statute, the validity of an arrest
without a warrant for violation of federal law by local peace officers is to
be
determined by reference to local law. SeeMiller v. United
States,
357 U.S. 301, 305 (1958); United States v. Di Re, 332 U.S. 581, 589
(1948).
In approving a state trooper's arrest of persons who appeared to be
illegal
aliens, the United States Court of Appeals for the Tenth Circuit held,
simply,
as follows: "A state trooper has general investigative authority to inquire
into
possible immigration violations." SeeUnited States v.
Salinas-Calderon, 728 F.2d 1298, 1301, n. 3 (10th Cir. 1984).
The United States Court of Appeals for the Ninth Circuit held, in
Gonzales v. City of Peoria, 722 F.2d 468 (9th Cir. 1983), that the
structure of the Immigration and Nationality Act does not evidence an intent
to
preclude local enforcement of the act's criminal provisions. Id. at 474.
Based
on the pertinent legislative history, the court of appeals rejected the
argument
that since 8 U.S.C. § 1324(c) specifically authorizes local officers to
make
arrests for violations of 8 U.S.C. § 1324(a), and 8 U.S.C. §§
1325(a)
and 1326 contain no comparable provision, Congress must have intended that
local
officers be precluded from making arrests for violations of 8 U.S.C.
§§
1325(a) and 1326. Id. at 475. The decision warns, however, that the
first
violation of 8 U.S.C. § 1325(a) is a misdemeanor, and that if applicable
state law authorizes law enforcement officers to arrest for misdemeanors
only if
committed in their presence, they would not be authorized to arrest aliens
for
illegal entry (unless the officers should happen to know that the alien had
previously been convicted of illegal entry) unless they saw him/her cross
the
border.
The disappointing aspect of Gonzales is the statement that an alien's
"inability to produce documentation does not in itself provide probable
cause (to
arrest)." SeeGonzales v. City of Peoria, supra, at
16.
Pursuant to 8 U.S.C. § 1304(e), aliens are issued registration cards and
must
carry such cards with them at all times. Aliens who gain entry without the
requisite inspection, and who therefore are not issued such cards, violate 8
U.S.C. § 1325. Consequently, a law enforcement officer confronting an
alien
who is unable to produce documentation arguably has probable cause to
believe
that a violation of 8 U.S.C. § 1304(e) (failure to possess documents or
8
U.S.C. § 1325(a) (entry without inspection) has occurred. (If the alien
is
undocumented and has been in the United States for longer than 30 days, he
or she
has also violated 8 U.S.C. § 1306(a)).