a public defender

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Immigrant rights groups are planning to march in Danbury soon. The Mayor, conceding that anyone can march, nonetheless is asking the rights groups not to march so as not to "[crank] up the tension four or five more levels". Right. Now it’s the immigrant groups that are cranking up the tension levels.

I’m still trying to find the federal legislation, or even DOJ directive, that permits deputizing local police as immigration agents. I did find, however, some reports and opinion articles from 2002, when this idea was first proposed by then Atty. Gen. Ashcroft and rejected by California and Washington. There is also some authority for this in the CLEAR Act. NY has also considered this. Here is a 1996 Memorandum Opinion from the DOJ on "Assistance by State and Local Police in Apprehending Illegal Aliens". Here is a recent report from an NBC affiliate in Arizona. Currently, Florida and Alabama are the only two states that use this authority granted by the Federal Government. CT, Oklahoma and Arkansas are considering it, as is California.

In Orange County, Sheriff Mike Carona is
proposing the largest use of the program in the country. He wants to
train as many as 500 deputies to catch illegal immigrants with criminal
convictions. Under the plan, he said, officers would only check someone’s status when they are in jail or while investigating them for other serious crimes. They
would not conduct sweeps.

Going back to the Memo of 1996, it summarizes the issue as follows:

1. Subject to the provisions of state law, state and local police may constitutionally detain or arrest aliens who have violated the
criminal provisions of the Immigration and Naturalization Act ("INA"). State police
lack recognized legal authority to arrest or detain aliens solely for purposes
of civil deportation proceedings, as opposed to criminal prosecution. (Section
II.A-B)

2. California
law allows state police to enforce the criminal provisions of federal immigration
law, although they may not make warrantless arrests for INA misdemeanor violations
unless the offense occurs in their presence. When illegally entering aliens have
reached a place of repose within the United States, the offense is completed and
is no longer subject to warrantless arrest by California police. (Sections II.A,
II.C3)

3. State police may stop and detain
carloads of illegal alien suspects only in circumstances that satisfy the requirements
of "reasonable suspicion." These requirements are inherently fact-specific and
therefore not readily reduced to clear-cut rules. Nonetheless, several basic principles
and considerations warrant emphasis. (Section II.C)

            
a. Persons may be detained for reasonable periods by state police on the basis
of a reasonable suspicion of a criminal immigration law violation. The critical
requirement for a reasonable suspicion detention is the existence of objective,
articulable facts suggesting the commission of a criminal offense by the persons
detained, rather than mere stereotypical assumptions, profiles, or generalities.

            b. In
particular, absent knowledge of an established federal policy of not prosecuting
such offenses, state police may, in our opinion, legally detain alien suspects
for disposition by federal agents when there is reasonable suspicion that the
suspects have violated or are violating the two commonplace misdemeanor provisions
of the INA, 8 U.S.C. § 1304(e) (lack of alien registration documents) or § 1325
(illegal entry), or other criminal provisions of the INA.

            
c. Written guidelines or policies adopted by state or local police forces may
generate additional legal complications regarding otherwise valid detentions based
on suspected violations of criminal immigration laws, insofar as such guidelines
or policies state that suspects may only be detained based on reasonable suspicion
of crimes that are unrelated to the immigration laws. Because any extended detention
of a suspect must generally be based upon the law enforcement purposes served
by the stop, a police force’s official disclaimer of any immigration-related detention
authority could undermine the validity of detaining suspects to await processing
by Border Patrol officers.

…

5. As a general rule, the involuntary vehicular transportation of validly detained
aliens by state police to Border Patrol agents would be deemed an arrest and require
probable cause rather than mere reasonable suspicion. (Section II.E)

…

7. There
is established statutory authority for the deputation of state law enforcement
officers as Deputy United States Marshals. This mechanism has been most commonly
used to allow state officers to perform federal enforcement functions in joint
federal-state law enforcement task forces (e.g., anti-drug and fugitive pursuit
task forces). (Section II.F)

            a. Where the Attorney General has exercised her authority to delegate supplemental
INA enforcement duties to the U.S. Marshals Service, state and local officers
can be specially deputized as Special Deputy United States Marshals in order to
perform supportive federal immigration enforcement functions.

            
b. Such arrangements were previously authorized by an Attorney General Order in
August 1994, for a period of one year, in order to deal with a potential mass
immigration emergency in the State of Florida.

Still waiting on AG Blumenthal’s opinion.