Legal Memo Concludes DOJ Plan for State and Local Immigration Enforcement Unlawful
On June 11, 2002 the Migration Policy Institute (MPI) sent a legal memo to US Attorney General John Ashcroft and White House Counsel Alberto Gonzales urging the Administration to reject the internal Department of Justice proposal that state and local officials enforce civil violations of immigration laws, except in limited circumstances already expressly provided for in federal statute and state law.
The MPI legal memo concludes that the existing prohibition on local enforcement of civil immigration law is correctly based on long-standing DOJ policy, federal immigration statutes, and case law. In addition, many state and local laws prohibit local enforcement of federal immigration laws. The memo was written in response to recent public statements by senior administration officials that the Department of Justice is considering issuing a legal opinion concluding that state and local law enforcement officials 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 (INA) only under circumstances specifically delineated in the INA," reads the legal memo. "Since the INA was enacted in 1952, the law has expressly authorized state enforcement of certain of its criminal provisions, but generally not of its civil provisions. 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."
"Entangling local and state law enforcement officers in enforcing federal civil immigration laws is bad law and bad public policy," said Muzaffar Chishti, senior policy analyst at the Migration Policy Institute. "In fact, it would undermine effective law enforcement if arrests by local and state officials of legitimate suspects are later deemed unlawful."
The legal memo was submitted by Demetrios G. Papademetriou, MPI co-director, and Muzaffar Chishti, MPI senior policy analyst, and prepared with pro bono counsel from Jeff Lewis, J.J. Gass, Amelie von Briesen, and Howard Master of Cleary, Gottlieb, Steen & Hamilton, and Michael Wishnie, Associate Professor of Clinical Law at NYU School of Law.
The complete text of the memo can be found on the MPI web site here.