Authority of State and Local Officers to Arrest Aliens Suspected of Civil Infractions of Federal Immigration Law

This memorandum addresses the legal authority of state and local law enforcement officials to arrest persons suspected of committing civil infractions of federal immigration law.  The Department of Justice (DOJ) is reportedly considering a reversal of its opinion on that question.  On several occasions, most notably in an opinion of the Office of Legal Counsel in 1996, DOJ has said that state and local officers have no authority under federal law to make such arrests.  Now, apparently, DOJ may take the position that state and local officers have inherent authority to make arrests for civil violations of federal immigration law. 

We believe DOJ’s historical position is correct: 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. Further, even if states had inherent arrest authority, it appears that it would not alter the outcome. As a matter of state law, most of the states with significant immigrant populations do not permit their law enforcement officers to make arrests for civil immigration violations. At the very least, individuals who are arrested by state or local officers on suspicion of having violated civil INA provisions can make serious challenges to the legality of the arrests under both federal and state law, potentially undermining effective immigration and criminal law enforcement.[...]