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TESTIMONY OF KRIS W. KOBACH

PROFESSOR OF LAW, UNIVERSITY OF MISSOURI-KANSAS CITY

OCTOBER 1, 2003

 

State and Local Authority to Enforce Immigration Law AND A REVIEW OF THE PROPOSED CLEAR ACT.

            The terrorist attacks of September 11, 2001, underscored for all Americans the need to restore the rule of law in the immigration arena.  Terrorists were able to enter the country undetected, overstay their visas with impunity, and move freely within the country without interference from local law enforcement officers.  Each of these realities created a vulnerability that the hijackers of September 11 exploited.

            Enforcing our nation’s immigration laws is one of the most daunting challenges faced by the Federal Government.  With more 8-10 million illegal aliens already present in the United States and fewer than 2000 interior enforcement agents at its disposal, the Bureau of Immigration and Customs Enforcement (BICE) has a Herculean task on its hands-one that it simply cannot accomplish alone.

            The assistance of state and local law enforcement agencies can mean the difference between success and failure in enforcing the immigration laws.  The more than 650,000 police officers nationwide represent a massive force multiplier.

            I will briefly summarize the legal authority upon which state and local police may currently act in rendering such assistance and then review relevant provisions of the proposed CLEAR Act.  I will not cover the provisions of Section 287(g) of the Immigration and Nationality Act (INA), since the scope of such delegated authority is evident on the face of the act.  Rather, I will discuss the inherent authority that has been possessed and exercised by state and local police since the earliest days of federal immigration law.

            It has long been widely recognized that state and local police possess the inherent authority to arrest aliens who have violated criminal provisions of the INA.  Once the arrest is made, the police officer must contact federal immigration authorities and transfer the alien into their custody within a reasonable period of time.  Bear in mind that the power to arrest, and take temporary custody of, an immigration law violator is a subset of the broader power to “enforce.”  This is most salient distinction between inherent arrest authority and 287g authority to enforce-which includes arresting, investigating, preparing a case, and all of the other powers of the exercised by BICE agents.

            Where some confusion has existed in recent years is on the question of whether the same authority extends to arresting aliens who have violated civil provisions of the INA that render an alien deportable.  This confusion was, to some extent, fostered by an erroneous 1996 opinion of the Office of Legal Counsel (OLC) of the Department of Justice.  That opinion, the relevant part of which has since been withdrawn by OLC, indicated that while states did possess the authority to arrest aliens for criminal violations of the INA, congressional preemption barred the states from arresting aliens for civil violations of the act.  In 2002, OLC corrected this error, withdrew the relevant portion of the 1996 opinion on its website, and produced a new opinion which thoroughly analyzed the issue.  Although the Attorney General did not publish the 2002 opinion, the Attorney General did announce OLC’s unequivocal conclusion that arresting aliens who have violated either criminal provisions or civil provisions that render an alien deportable “is within the inherent authority of the states.”

            This conclusion has been confirmed by every court to squarely address the issue.  Indeed, it is difficult to make a persuasive case to the contrary.  That said, I will proceed to offer my opinion as to why this conclusion is correct.

THE INHERENT ARREST AUTHORITY POSSESSED BY STATES

The preliminary question is whether states have inherent power (subject to federal preemption) to make arrests for violation of federal law.   That is, may state police, exercising state law authority only, make arrests for violation of federal law, or do they have power to make such arrests only insofar as they are exercising delegated federal executive power?  The answer to this question is plainly the former.

            The source of this authority flows from the States' status as sovereign entities. As Chief Justice Marshall explained, “it was neither necessary nor proper to define the powers retained by the States. These powers proceed, not from the people of America, but from the people of the several States; and remain, after the adoption of the constitution, what they were before, except so far as they may be abridged by that instrument.” Sturges v. Crowninshield, 17 U.S. (4 Wheat.) 122, 193 (1819).

It is well established that the authority of state police to make arrests for violation of federal law is not limited to those instances in which they are exercising delegated federal power. Rather, such arrest authority inheres in the States' status as sovereign entities. It inheres in the ability of one sovereign to accommodate the interests of another sovereign.  This is the same inherent authority that is exercised whenever a state law enforcement officer witnesses a federal crime being committed and makes an arrest.  That officer is not acting pursuant to delegated federal power.  Rather, he is exercising the inherent power of his state to assist another sovereign.

            There is abundant case law on this point. No act of Congress has authorized state police to arrest for federal offenses when they act without an arrest warrant. Nonetheless, in United States v. Di Re, 332 U.S. 581 (1948), the Supreme Court, held that "in absence of an applicable federal statute the law of the state where an arrest without warrant takes place determines its validity," id. at 589, implicitly adopting the position that States have inherent authority to authorize their police to make warrantless arrests for federal criminal violations. See id. at 589-90.  In Miller v. United States, the Court stated flatly that “in the . . .  circumstance of an arrest for violation of federal law by state peace officers, . . . the lawfulness of the arrest without warrant is to be determined by reference to state law.” 357 U.S. 301, 305 (1958) (citing Di Re, 332 U.S. 581, 589).  Similarly, in Marsh v. United States, 29 F.2d 172 (2d Cir. 1928), Judge Learned Hand's opinion for the Second Circuit construed a New York statute to authorize state police to make warrantless arrests for violation of federal law. Id. at 174. In so doing, Judge Hand specifically rejected the argument that the existence of a federal statute governing state arrests pursuant to warrant for federal offenses should be understood to preempt state officers from making warrantless arrests for federal offenses: "it would be unreasonable to suppose that [the United States'] purpose was to deny to itself any help that the states may allow." Id. Judge Hand's analysis plainly started from the premise that states have inherent authority to make arrests for federal offenses.  This authority exists unless the federal government has preempted it or state law otherwise constrains it.

            The Ninth and Tenth Circuits have expressed this understanding specifically in the immigration context. In Gonzales v. City of Peoria, 722 F.2d 468 (9th Cir. 1983), the Ninth Circuit declared that the "general rule is that local police are not precluded from enforcing federal statutes," id. at 474, and engaged in a preemption analysis to assess whether Congress had precluded state police enforcement of the criminal provisions of federal immigration law. See id. The Tenth Circuit has similarly opined that a "state trooper has general investigatory authority to inquire into possible immigration violations," United States v. Salinas-Calderon, 728 F.2d 1298, 1301 n.3 (10th Cir. 1984), and has applied preemption analysis to determine whether a federal statute "limit[s] or displace[s] the preexisting general authority of state or local police officers to investigate and make arrests for violations of federal law, including immigration laws," United States v. Vasquez-Alvarez, 176 F.3d 1294, 1295 (10th Cir. 1999).

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THE ABSENCE OF CONGRESSIONAL PREEMPTION

            In conducting preemption analysis, courts must look for (1) express preemption by congressional statement, (2) field preemption where the federal regulatory scheme is so pervasive as to create the inference that Congress intended to leave no room for the states to supplement it, or (3) conflict preemption, where compliance with both state and federal law is impossible or state law prevents the accomplishment of congressional objectives. See Gade v. National Solid Wastes Mgmt. Ass’n, 505 U.S. 88, 98 (1992) (plurality opinion).  In all three categories, there must exist manifest congressional intent for preemption to exist.  With respect to immigration arrests, because there is no case of direct conflict, the only types of preemption that are even possible are field preemption and express preemption.

            Moreover, in the context of state arrests for violations of federal law, there is a particularly strong presumption against preemption.  Unlike the typical preemption scenario, a state arrest for a violation of federal law does not involve an attempt by states to enact state laws, or to promulgate regulations pursuant to state laws, that arguably conflict with federal law or intrude into a field that is reserved to Congress or that federal law has occupied.  Rather, the question is whether states can assist the federal government by arresting aliens who have violated federal law and by turning them over to federal authorities.  And the critical starting presumption must be that the federal government did not intend to deny itself any assistance that states might offer.  See 29 F.2d at 174.

            In 1996, Congress expressly put to rest any suspicion that it did not welcome state and local assistance in making immigration arrests.  Congress added section 287(g) to the INA, providing for the establishment of written agreements with state law enforcement agencies to convey federal immigration enforcement functions to such agencies.  In doing so, Congress reiterated its understanding that states and localities may make immigration arrests regardless of whether a 287(g) agreement exists.  Congress stated that a formal agreement is not necessary for “any officer or employee of a State or political subdivision of a state . . . to communicate with the Attorney General regarding the immigration status of any individual, including reporting knowledge that a particular alien is not lawfully present in the United States,” or “otherwise to cooperate with the Attorney General in the identification, apprehension, detention, or removal of aliens not lawfully present in the United States.”  8 U.S.C. § 1357(g)(10).

            Consequently, it is hardly surprising that no appellate court has expressly ruled that states are preempted from arresting aliens for civil violations of the INA.  The only case that even comes close is the 1983 opinion of the Ninth Circuit in Gonzales v. City of Peoria, 722 F.2d 468 (9th Cir. 1983).  In Gonzales, the Ninth Circuit held that local police officers have the authority to arrest an alien for a violation of the criminal provisions of the INA if such an arrest is authorized under state law. In that instance, a group of persons of Mexican descent challenged a policy of the City of Peoria, Arizona, that instructed local police to arrest and detain aliens suspected of illegally entering the United States in violation of the criminal prohibitions of section 1325 of title 8. See 722 F.2d at 472-73. Observing that local police generally are not precluded from enforcing federal statutes and that concurrent enforcement authority is authorized where local enforcement would not impair federal regulatory interests, the court engaged in a preemption analysis to determine whether Congress had precluded local enforcement of this criminal provision of the INA. The court concluded that no such preemption had occurred.  See id. at 475.  In passing, the Ninth Circuit "assume[d] that the civil provisions of the [INA] ... constitute . . . a pervasive regulatory scheme" that suggested a congressional intent to preempt local enforcement, id. at 474-75.  However, this was possibility of field preemption merely an assumption, asserted without any analysis, and made in dictum-entirely outside of the holding of the case (which concerned a criminal offense).  It does not constitute binding precedent.  And even if the Ninth Circuit had squarely reached this conclusion in 1983, such a holding would have been fatally undermined by the court’s failure to apply the strong presumption against preemption discussed above.  Moreover, the actions of Congress in 1996 made such a holding unsustainable.

            In contrast, the case law supporting the conclusion that Congress has not preempted state arrests of aliens for violations of civil provisions of the INA is solid and on point.  The Tenth Circuit has issued several opinions on the subject, all pointing to the conclusion that Congress has never sought to preempt the states’ inherent authority to make immigration arrests for both criminal and civil violations of the INA. Its 1984 ruling in the case of United States v. Salinas-Calderon, 728 F.2d 1298 (10th Cir. 1984), confirmed the inherent arrest authority possessed by the states.  The defendant in that case was the driver of a pickup who had been arrested for the criminal violation of transporting illegal aliens.  He had been stopped by a state trooper for driving erratically. The driver and his wife were in the cab; and six passengers, none of whom spoke English, were in the back of the pickup.  The defendant claimed that a state trooper did not have the authority to detain the transported passengers while he questioned them about their immigration status.  In rejecting this claim, the Tenth Circuit held that a "state trooper has general investigatory authority to inquire into possible immigration violations." 728 F.2d at 1301 n.3.  The court did not differentiate between criminal and civil violations.  Indeed, because there is no indication in the opinion that there was any reason to believe that the alien passengers had committed any criminal violations, the court's statement appears to apply fully to civil as well as criminal violations.

            The Tenth Circuit’s most salient case on the preemption question is U.S. v. Vasquez-Alvarez, 176 F.3d 1294 (10th Cir. 1999).  In that case, an Oklahoma police officer arrested the defendant because he was an "illegal alien."  The officer did not know at the time whether the defendant had committed a civil or criminal violation of the INA.  Id. at 1295. It was later discovered that the alien had illegally reentered the country after deportation, in violation of 8 U.S.C. § 1326, a criminal violation. When the government indicted the defendant, he moved to suppress his post-arrest statements, fingerprints, and identity, arguing that he was arrested in violation of 8 U.S.C. § 1252c. The defendant claimed that a local police officers could arrest an illegal alien only in accordance with the restrictions set forth in section 1252c and that because his arrest was not carried out according that provision it was unauthorized.  Section 1252c authorizes state and local police to make a warrantless arrest and to detain an illegal alien if (1) the arrest is permitted by state and local law, (2) the alien is illegally present in the United States, (3) the alien was previously convicted of a felony in the United States and subsequently was deported or left the country, and (4) prior to the arrest the police officer obtains appropriate confirmation of the alien’s status from federal immigration authorities.  8 U.S.C. § 1252c.

The Tenth Circuit’s conclusion was unequivocal: section 1252c "does not limit or displace the preexisting general authority of state or local police officers to investigate and make arrests for violations of federal law, including immigration laws.  Instead, section 1252c merely creates an additional vehicle for the enforcement of federal immigration law." Vasquez-Alvarez, 176 F.3d at 1295.  Citing its earlier decision in Salinas-Calderon, the court observed that it had "held that state law-enforcement officers have the general authority to investigate and make arrests for violations of federal immigration laws." Vasquez-Alvarez, 176 F.3d at 1296.  The court rejected the alien’s contention that all arrests not authorized by section 1252c are prohibited by it.  The court found no congressional intent in the text of section 1252c to preempt existing state authority to enforce federal immigration laws. See id. at 1297-98.  The court also opined that the legislative history of section 1252c supported its conclusion. Citing the comments of Representative Doolittle, the sponsor of the floor amendment that later became section 1252c, the court stated that "the purpose of § 1252c was to displace a perceived federal limitation on the ability of state and local officers to arrest aliens in the United States in violation of Federal immigration laws." Id. at 1298-99.  However, the court noted that Representative Doolittle did not identify the source of this perceived limitation; neither the defendant nor the government had identified such a law; and the court itself had “not been able to identify any pre-§ 1252c limitations on the powers of state and local officers to enforce federal law." Id. at 1299 n.4.  The court concluded that the "legislative history does not contain the slightest indication that Congress intended to displace any preexisting enforcement powers already in the hands of state and local officers." Id. at 1299.  Finally, the court drew additional support for its conclusion from the fact that “in the months following the enactment of section 1252c, Congress passed a series of provisions designed to encourage cooperation between the federal government and the states in the enforcement of federal immigration laws." Id. at 1300 (citing 8 U.S.C. §§ 1103(a)(9), (c), 1357(g)).

Indeed, if section 1252c were somehow to be read to preempt state arrest authority, it would lead to an untenable reading of the law; the preemptive effect would have to extend to all state arrests for violations involving illegal presence in the United States. That is, state police would be able to arrest only those aliens who were convicted felons and who had thereafter left or been deported from the United States.  Because such aliens are not readily identifiable visually, this would mean "that there is no means of securing offenders caught in flagrante"-as Judge Hand observed-"a result which would so impair the execution of the laws that it seems to us incredible it should have been intended." Marsh, 29 F.2d at 174. There is simply no evidence in the legislative history of section 1252c to support such a reading.

The Fifth Circuit has also rejected the notion that Congress has preempted the inherent arrest authority possessed by the states.  In Lynch v. Cannatella, 810 F.2d 1363 (5th Cir. 1987), the court considered whether 8 U.S.C. §1223(a) defined the sole process for detaining alien stowaways, thereby preempting harbor police from detaining illegal aliens as occurred in that case.  The Eighth Circuit’s conclusion was broad and unequivocal:  “No statute precludes other federal, state, or local law enforcement agencies from taking other action to enforce this nation's immigration laws.”  Id. at 1371.

Finally, on the subject of preemption, it must be noted that the distinction between arrests by state police for criminal violations of the INA and arrests for civil violations of the INA is utterly unsustainable.  None of the statutes that have been considered by the courts under claims of express preemption contain such a distinction.  And any claim of field preemption would have to establish that the civil provisions of the INA create a pervasive regulatory scheme indicating congressional intention to preempt, while the criminal provisions do not.  The structure of the INA, with its numerous overlapping civil and criminal provisions, does not support such a distinction.

THE CLEAR ACT

            Passage of H.R. 2671 is an important and step that must be taken if the voluntary cooperation of state and local police in the enforcement of immigration laws is to be maximized.  And such cooperation is necessary if the rule of law is ever to be fully restored to immigration in this country.  I do have several suggestions that may assist the committee in strengthening H.R. 2671.  They are as follows.

            Section 101-Affirmation of Inherent Arrest Authority.  It is important that nothing in the CLEAR Act be misinterpreted by the Executive Branch or by the Judiciary as narrowing the inherent arrest authority that the states already possess.  The current wording says that “law enforcement personnel of a State . . . are authorized” to investigate and detain illegal aliens.  I strongly recommend that the committee not use the word “authorized,” because it implies that Congress is authorizing or conferring these arrest powers upon the states.  That is, of course, unnecessary since the authority is already possessed by the states and it flows from their inherent powers as sovereign entities within our federalist system.  What should be stated unequivocally is that Congress has never preempted this authority.  Such a statement would prevent courts from making any mistake on this account.  I would also note that the inherent authority does not extend to “removal,” in the broad sense of adjudicating an alien’s status and returning the alien to his country of origin.  Therefore, I suggest the following alternative phrasing of Section 101:

“Notwithstanding any other provision of law, it is recognized that law enforcement personnel of a State or political subdivision of a State possess the inherent authority of sovereign governments to investigate, apprehend, detain, and transport aliens who are unlawfully present in the United States (including the transportation of such aliens across State lines to detention centers or to federal custody), in the enforcement of the immigration laws of the United States.  It is further recognized that no Act of Congress has ever preempted this authority with respect to either criminal violations or civil violations of federal immigration law.”

            Section 103-Criminal Penalties and Forfeiture of Assets.  With respect to this section, I wish to note at the outset that the Committee has correctly recognized that illegal immigration imposes a massive financial burden on all levels of government.  The costs of providing education, health care, and other social services, combined with the law enforcement costs that are incurred regardless of whether a state chooses to cooperate in enforcing immigration laws, are staggering.  The meager taxes collected from illegal aliens do not come close to reimbursing governments at the local, state, and federal level.  It is estimated that the net cost of illegal immigration totals approximately $40 billion per year.  The forfeiture of assets is an appropriate mechanism to allow governments to begin to recover these costs.  It is also a substantial deterrent to those who would flaunt our immigration laws.

            I would like to offer two minor suggestions to improve Section 103.  First, it would be useful to create a blanket criminal misdemeanor offense that applies to any alien who violates any provision of U.S. immigration law or is unlawfully present in the United States.  This would eliminate any ambiguity that persists regarding arrests for criminal versus civil violations of immigration law.  It would also defeat the misinformation campaign that has been launched by organizations hostile to the enforcement of immigration laws.  Second, I suggest that in Section 103(a), in the provision amending Section 275(b) of the Immigration and Nationality Act, after the phrase “after the expiration of a nonimmigrant visa” the following words should be inserted:  “or after the end of the alien’s period of authorized stay in the United States.”  This would cover those situations in which the alien’s visa is valid for a period beyond the period for which the alien is actually authorized to stay in the United States.  This is common with B(1) and B(2) visas that may be valid for as long as ten years, even though the alien has only been authorized to stay in the United States for a period of six months.

            Section 104-Sharing of Information Through NCIC.  This section is an extremely important component of the CLEAR Act.  As the Committee is aware, the sharing of information with state and local law enforcement agencies through the National Criminal Information Center (NCIC) of the Department of Justice has improved substantially since the attacks of September 11, 2001.  However, there are bureaucratic and institutional forces that have slowed the entry of information regarding aliens into the NCIC database.  I suggest that the Committee reword Section 104 slightly, in order to (1) make the obligation to provide such information unmistakable and (2) to accelerate the entry of information regarding alien absconders.  I suggest the following wording:

“Provision of Information to the NCIC.- Within 180 days after the date of the enactment of this section, the Under Secretary for Border and Transportation Security of the Department of Homeland Security shall provide the National Criminal Information Center of the Department of Justice with all information relevant for the apprehension of all persons who are known to have violated any immigration law of the United States.  Thereafter, the Under Secretary shall be required to provide such information to the National Criminal Information Center with respect to each new violation that is discovered within 180 days after such violation becomes known to the Department of Homeland Security.  The names and particulars of aliens who have disregarded or disobeyed a final order of removal shall be provided to the National Criminal Information Center regardless of whether the alien’s failure to depart was willful and regardless of whether the alien received actual notice of the final order of removal.”

            The alien absconder problem is of such immense magnitude that it has made an utter mockery of the rule of law.  There are now more than 400,000 absconders at large in the United States.  These aliens have had their day in immigration court and have disobeyed a final order of removal.  A substantial number of absconders have engaged in serious criminal activity in addition to their immigration violations.  Most absconders have committed criminal violations of the INA.  Others have committed civil violations only, if the underlying immigration violation was of a civil provision and the refusal to obey the order of removal was not willful.  At the end of 2001, the Department of Justice and the INS launched the absconder initiative, which has continued under the Department of Homeland Security.  Under this initiative, the process of listing absconders in the NCIC database was begun.  Although the initiative has yielded many valuable arrests with the cooperation of state and local law enforcement, the effort has been hamstrung by the fact that the entry of names into the NCIC database has occurred at an alarmingly slow rate.  Indeed, the number of absconders is growing faster than the entry of absconders into NCIC.  A primary reason is for this slow rate of entry is the current practice of attempting to ascertain whether federal immigration officials effected actual notice of the final order of removal.  This is, of course, difficult when the alien has changed address without informing the immigration court or when the alien has become a fugitive.  The inherent legal authority of a state or local law enforcement officer to make the arrest exists regardless of whether notice was effected.  Therefore, this unnecessary impediment to the rapid entry of absconder data into the NCIC system should be unequivocally removed.

            Section 108-Claims by States and Localities Against the Federal Government.  This section provides a useful incentive to ensure that the federal government remains a faithful partner in the cooperative effort to enforce immigration laws.  I suggest only a minor clarification here.  Section 108(a)(2), as currently drafted, indicates that the decisions of the administrative law judge “may be appealed only to the Attorney General or the Secretary of Homeland Security….”  I would delete “or the Secretary of Homeland Security.”  Because Section 108 locates the administrative law judge within the Department of Justice, and because it is consistent with the adjudication of immigration law questions by the immigration courts of the Department of Justice, it is appropriate that the Attorney General review any appeals.  Ambiguity as to the final arbiter of such cases would only exacerbate the sensitivity that will inevitably surround such cases.

            New Section 114-The Issuance of Driver’s Licenses to Illegal Aliens.  As the Committee is no doubt aware, the issuance of driver’s licenses to illegal aliens by some states jeopardizes immigration law enforcement, general law enforcement, and national security. The driver’s license effectively serves as the basic identity document in America today.  It is a de facto national identity card issued by more than 50 different jurisdictions.  Driver’s licenses allow illegal aliens to operate with ease in American society and escape the scrutiny that might otherwise occur in routine law enforcement encounters.  On our northern border the driver’s license operates as an effective substitute for a U.S. passport, allowing an alien who is persuasive in falsely asserting U.S. citizenship to cross the border freely.

            Permitting illegal aliens to acquire driver’s licenses also opens up opportunities for criminals, whether they be foreign nationals or U.S. citizens.  States that allow illegal aliens to possess driver’s licenses inevitably reduce the level of identity documentation that is required to obtain a license.  The result is that criminals are able to use the lax standards to create false identities backed up by the imprimatur of a driver’s license.  Such false identities facilitate money laundering, credit card fraud, and check fraud.  They also defeat the operation of the NCIC system, because criminals are able to evade arrest warrants by presenting fraudulently-obtained “clean” licenses during traffic encounters with local law enforcement officers.  Worse, the driver’s license becomes a useful tool in the hands of terrorists.  Virginia issued licenses to eight of the 9/11 terrorists-licenses that likely were used to board the airplanes on that fateful day.

            The most effective solution to this problem would be to make eligibility for federal highway funds contingent upon the states’ denying driver’s licenses to illegal aliens.  Such funds should also be contingent upon states’ setting expiration dates so that driver’s licenses for legal aliens expire on the date that an alien’s period of authorized stay terminates.  The only documentation sufficient to qualify an alien for a driver’s license should be a valid passport with a valid U.S. visa.  This would allow state and local police officers to draw reasonable conclusions from an alien’s possession of an unexpired driver’s license. 

            In summary, it is clear that state and local police possess substantial inherent authority to make immigration arrests.  It is also clear that the potential for closer cooperation with state and local law enforcement has not been fully exploited.  Consequently, there has been a cost in the national security of the United States, as well as in the enforcement of immigration laws.  The CLEAR Act would improve the situation substantially.  I appreciate the efforts of this Committee to address these issues and the opportunity to share my perspective.



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