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CRM 1500-1999

1918. Arrest Of Illegal Aliens By State And Local Officers

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. See United 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. See Miller 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." See United 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)." See Gonzales 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)).

[cited in JM 9-73.300]