Punting on the values of federalism in the immigration arena? Evaluating Operation Linebacker, a state and local law enforcement program along the U.S.-Mexico border

Columbia Law Review

Volumn 108, Issue 5, 2008, Pages 1226-1267

  Rodríguez, Adrian J ^a  

^a NONE

Author keywords

[No Author keywords available]

Indexed keywords

EID: 46749130191     PISSN: 00101958     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (381)

1. David Montgomery, The Chairman's Turf, Wash. Post, Jan. 4, 2007, at Cl (quoting U.S. Representative Silvestre Reyes of El Paso, Tex., incoming Chairman of House Committee on Intelligence and former El Paso Sector Chief of U.S. Border Patrol).
2. See generally Spencer S. Hsu, Border Crackdown Has El Paso Caught in Middle, Wash. Post, Aug. 21, 2007, at Al (describing impact of immigration policies on border community).
3. Armed and Dangerous: Confronting the Problem of Border Incursions: Hearing Before the Subcomm. on Investigations of the H. Comm. on Homeland Security, 109th Cong. 3 (2006) (statement of Sheriff Arvin West, Hudspeth County, Texas).
4. Id.
5. See Louie Gilot, Sheriffs Unite, Want Federal Money, El Paso Times, Mar. 25, 2006, at 5B [hereinafter Gilot, Sheriffs Unite] ("Border sheriffs, overwhelmed by increased immigration and drug-related activity in their counties, decided Friday to join forces across California, Arizona, New Mexico and Texas to coordinate enforcement operations and go after federal money for border security.");
6. see also James Pinkerton, Localized Immigration Enforcement on Rise: Federal Inaction Means More than Ever, Nation's Law Agencies Take Issue into Own Hands, Houston Chron., Oct. 9, 2007, at Al ("These operations are focused on deterring crime, drug smuggling and human trafficking in our border communities." (quoting spokesperson for Texas Governor Rick Perry)).
7. Louie Gilot, Petition Pressed: EP Sheriff Attacked for "Harassing" Public, El Paso Times, June 1, 2006, at 1B [hereinafter Gilot, Petition] ("Some El Paso County residents said they have been asked for their Social Security cards and immigration papers by El Paso County sheriffs deputies during regular traffic stops . . . .");
8. see also Complaint at 2-3, Starr v. Samaniego, No. EP-06-CA-0188 (W.D. Tex. May 26, 2006) ("Deputy asked [bus] driver if passengers looked like his normal riders . . . . Deputy then asked six remaining passengers seated towards rear of bus if they had ID . . . .").
9. Glancey also said that complaints from other parts of the county regarding such inquiries have proved to be unfounded. The War Out There, Newspaper Tree, May 29, 2006, at http://www.newspapertree.com/view-article.sstg? c=11de08e9799e4968&mc=5457 1a9e1df74ca6 (on file with the Columbia Law Review).
10. See Address Before a Joint Session of the Congress on the State of the Union, 43 Weekly Comp. Pres. Doc. 57, 59 (Jan. 23, 2007) ("Let us have a serious, civil, and conclusive debate, so that you can pass and I can sign comprehensive immigration reform into law.");
11. Editorial, The Dallas Morning News Texan of the Year: The Illegal Immigrant, Dallas Morning News, Dec. 30, 2007, at 1P (noting impact of undocumented immigration);
12. Anabelle Garay, Calls for Immigration Reform Attract Thousands in 10 States, Wash. Post, Apr. 10, 2006, at A7 (recounting immigration reform rallies in cities across United States);
13. "No Turning Back": Dallas Police Estimate Crowd from 350,000 to 500,000; Boycott Today Aims to Show Hispanics' Economic Power, Dallas Morning News, Apr. 10, 2006, at 1A (describing Dallas immigration reform rally with marchers favoring legal status for eleven million immigrants) ;
14. Teresa Watanabe & Hector Becerra, 500,000 Pack Streets to Protest Immigration Bills: The Rally, Part of a Massive Mobilization of Immigrants and Their Supporters, May Be the Largest L.A. Has Seen, L.A. Times, Mar. 26, 2006, at Al (describing Los Angeles rally).
15. See Juan Castillo, State Shifts Officers South: Perry's Border Fight, No Price Tag Put on Effort to Curb Violence Along Rio Grande, Austin Am.-Statesman, Feb. 10, 2006, at Al ("The governor's initiative shifts existing Texas Department of Public Safety officers and state equipment to troubled border areas to work with local officials.").
16. See Brandi Grissom, Deputies Instilling Fear in Residents, Groups Say, El Paso Times, May 23, 2006, at 2A [hereinafter Grissom, Deputies] ("El Paso County Attorney José Rodríguez said complaints about the operations from [the El Paso Interreligious Sponsoring Organization], the Mexican Consulate in El Paso and the Border Network for Human Rights have been mounting and that he discussed the concerns with Sheriff Leo Samaniego about a week ago.").
17. David McLemore, Coalition to Add Patrols at Border: Sheriffs from 16 Counties to Split $6 Million State Grant, Dallas Morning News, Nov. 8, 2005, at 3A ("We've always said that border security is a federal responsibility but that local law enforcement also has a role." (quoting Operation Linebacker Chairman Sigifredo Gonzalez, Sheriff of Zapata County, Texas)).
18. Legislation was introduced in the 109th Congress specific to Operation Linebacker-type activities, but the bills were not reported from committee. See H.R. 6007, 109th Cong. (2006);
19. H.R. 4360, 109th Cong. (2005). The House passed a bill permitting sheriffs along the border to transfer unlawfully present immigrants in their custody to federal officials - a practice they already follow - and providing for prompt payment of costs.
20. H.R. 4437, 109th Cong. § 607 (2005). The bill was referred to committee in the Senate but no action resulted.
21. 152 Cong. Rec S249 (daily ed. Jan. 27, 2006).
22. Cf. Evan H. Caminker, State Sovereignty and Subordinacy: May Congress Commandeer State Officers to Implement Federal Law?, 95 Colum. L. Rev. 1001, 1074-81 (1995) (comparing commandeering to "traditional values of federalism");
23. Barry Friedman, Valuing Federalism, 82 Minn. L. Rev. 317, 321 (1997) (arguing respecting value of federalism requires maximizing benefits of regulation at multiple levels of government);
24. Edward L. Rubin & Malcolm Feeley, Federalism: Some Notes on a National Neurosis, 41 UCLA L. Rev. 903, 907 (1994) (arguing federalism does not achieve purported goals articulated in case law) ;
25. Ernest A. Young, The Rehnquist Court's Two Federalisms, 83 Tex. L. Rev. 1, 51-65 (2004) (evaluating underlying values of federalism).
26. See, e.g., Michael J. Wishnie, State and Local Police Enforcement of Immigration Laws, 6 U. Pa. J. Const. L. 1084, 1088 (2004) [hereinafter Wishnie, State and Local] (noting "little federal regulation of immigration" without mentioning historical state regulations);
27. Catherine Etheridge Otto, Comment, Tracking Immigrants in the United States: Proposed and Perceived Needs to Protect the Borders of the United States, 28 N.C. J. Int'l L. & Com. Reg. 477, 480-85 (2002) (providing overview of federal enforcement of immigration law).
28. See Gerald L. Neuman, Strangers to the Constitution 19 (1996) [hereinafter Neuman, Strangers] ("[L] egal discussions of immigration regulation in the United States rest upon a myth, the assertion that the borders of the United States were legally open until the enactment of federal immigration legislation . . . ."). Professor Neuman goes on to describe state regulation of transborder movement. Id.
29. See id. at 19-20 (examining categories of state immigration to "recover the legal history obscured by the open-borders myth").
30. See generally Gerald L. Neuman, The Lost Century of Immigration Law (1776-1875), 93 Colum. L. Rev. 1833 (1993) (describing immigration policies of 1800s). Numerous works discussing the history of immigration regulation and enforcement rely on Professor Neuman's important research on state immigration regulation.
31. E.g., Thomas Alexander Aleinikoff et al., Immigration and Citizenship: Process and Policy 171, 177, 443 (5th ed. 2003);
32. Kevin R. Johnson, Open Borders?, 51 UCLA L. Rev. 193, 213 (2003).
33. For example, Massachusetts required payment of a bond to indemnify against passengers who could become public charges, Neuman, Strangers, supra note 15, at 25, and a New York state law permitted removal of strangers likely to become public charges
34. id. at 27. States also emphasized regulation of criminal convicts. Prior to the Revolutionary War, English courts banished convicts to the American colonies - a practice that the colonies protested and unsuccessfully attempted to restrict.
35. Id. at 21. After independence, states passed legislation restricting the transportation of convicts into their territories, with some state laws even barring the transportation of convicts from other states.
36. Id. at 21-22. States primarily handled the regulation and enforcement of these measures, as the federal government limited its involvement in this area to diplomatic protests against foreign nations banishing their convicts to the United States.
37. Id. at 21-22. Until the federal government enacted its first prohibition on the immigration of convicts in 1875, Congress's involvement in this area included requests for information from the executive branch regarding the immigration of convicts into the United States and an 1866 resolution protesting foreign governments sending convicts to the United States.
38. Id. at 22.
39. Slave states barred the immigration of free blacks to their territories and prohibited free black sailors serving as crewmen on ships from disembarking and communicating with the local black population. See id. at 37-40.
40. Individuals arriving at seaports could face quarantine, and enforcement could vary depending on a variety of factors, including weather, the origin of the ship, and whether passengers and crew were exhibiting illness. Id. at 32. The federal government provided support for such state enforcement measures. Federal legislation in the late 1700s, for example, authorized the President to "direct federal customs officials to aid in the execution of state quarantine and health laws."
41. Id. at 33-34
42. (citing Act of May 27, 1796, ch. 31, 1 Stat. 474).
43. See, e.g., Mayor of N.Y. v. Miln, 36 U.S. (11 Pet.) 102 (1837) (affirming constitutionality of New York passenger law based on state police power).
44. Id. at 130-31 (describing statute).
45. Id. at 132 ("[W]e are of opinion, that the act is not a regulation of commerce, but of police; and that being thus considered, it was passed in exercise of a power which rightfully belonged to the states.").
46. Elkison v. Deliesseline, 8 F. Cas. 493 (C.C.D.S.C. 1823) (No. 4,366) ("[T]he right of the general government to regulate commerce with the sister states and foreign nations is a paramount and exclusive right . . . .").
47. See Neuman, Strangers, supra note 15, at 38 (noting that Elkison opinion was "violendy denounced" in South Carolina and that "[i]ncidents continued in that and other states").
48. See Lawrence H. Fuchs & Susan Forbes Martin, Immigration and U.S. History-The Evolution of the Open Society, in Aleinikoff et al., supra note 16, at 149 (describing history of federal immigration regulation).
49. See Act of May 26, 1824, ch. 186, 4 Stat. 69 (facilitating naturalization of free white minors);
50. Act of Mar. 22, 1816, ch. 32, 3 Stat. 258 (requiring certificate from "proper clerk," detailing intention to naturalize, and to be read into record of court);
51. Act of July 30, 1813, ch. 36, 3 Stat. 53 (allowing naturalization of persons who made declaration of intention to naturalize prior to June 18, 1812, as well as those eligible for citizenship as of that date, regardless of status as "enemy alien");
52. Naturalization Act of 1804, ch. 47, 2 Stat. 292 (allowing naturalization of free white persons who lived in jurisdiction of United States from 1798 to 1802);
53. Naturalization Law of 1802, ch. 28, 2 Stat. 153 (establishing conditions under which "a free white person . . . may be admitted to become a citizen of the United States");
54. Naturalization Act of 1798, ch. 54, 1 Stat. 566 (establishing five year notice period and fourteen year residency period for person to naturalize and requiring registration of each alien, to be reported to Secretary of State);
55. Naturalization Act of 1795, ch. 20, 1 Stat. 414 (establishing three year notice and five year residency period for naturalization and requiring declaration of intent "before the supreme, superior, district or circuit court of some of the states ... or a circuit court or district court of the United States");
56. Naturalization Act of 1790, ch. 3, 1 Stat. 103 ("[A]ny alien, being a free white person[,] . . . may be admitted to become a citizen . . . on application to any common law court of record . . . .").
57. Naturalization Act of 1798, ch. 54, 1 Stat. 566.
58. An Act Concerning Aliens, ch. 58, 1 Stat. 570 (1798).
59. An Act Respecting Alien Enemies, ch. 66, 1 Stat. 577 (1798)
60. (codified as amended at 50 U.S.C. §§ 21-24 (2000)).
61. See supra Part I.A.1.
62. Congress authorized the President to "direct revenue officers . . . to aid in the execution of. . . the health laws of the states . . . ." Act of May 27, 1796, ch. 31, 1 Stat. 474. Congress also established procedures to count the immigrants on ships entering U.S. ports, requiring captains to supply the Collector of Customs a passenger manifest.
63. Fuchs & Martin, supra note 25, at 149.
64. Smith v. Turner (The Passenger Cases), 48 U.S. (7 How.) 283, 406 (1849).
65. See Neuman, Strangers, supra note 15, at 27-29.
66. See id. at 24-26.
67. See id.
68. The Passenger Cases, 48 U.S. (7 How.) at 408-09.
69. Id. at 405 ("To secure this uniformity was one of the motives which led to the adoption of the Constitution.").
70. Id. at 409.
71. See id. at 408-09.
72. S. Rep. No. 61-747, at 568 (1911) ("The only alternative was the recommendation of the Supreme Court that Congress assume control of immigration legislation, and New York representatives in Congress immediately endeavored to secure passage of a general immigration law.").
73. Henderson v. Mayor of N.Y., 92 U.S. 259, 273 (1875) ("[T]he matter of these statutes may be, and ought to be, the subject of a uniform system or plan. The laws which govern the right to land passengers in the United States from other countries ought to be the same in New York, Boston, New Orleans, and San Francisco.").
74. Chy Lung v. Freeman, 92 U.S. 275, 280 (1875) ("[Congress] has the power to regulate commerce with foreign nations: the responsibility for the character of those regulations, and for the manner of their execution, belongs solely to the national government").
75. Immigration Act of 1882, ch. 376, 22 Stat. 214.
76. Id. § 2.
77. See id. ("That there shall be levied, collected, and paid a duty of fifty cents for each and every passenger not a citizen of the United States . . . .").
78. The Immigration Act of 1891 barred polygamists and individuals with dangerous diseases from entering the United States. Act of March 3, 1891, ch. 551, § 1, 26 Stat. 1084, 1084 (barring "[a]ll idiots, insane persons, paupers[,] . . . persons suffering from a loathsome or a dangerous contagious disease . . . [and] polygamists").
79. The 1891 Act also established the Office of the Superintendent of Immigration within the Treasury Department. See id. § 7, at 1085 ("That the office of superintendent of immigration is hereby created and established . . . .").
80. The 1917 Act increased the tax on each immigrant entering via ship, prohibited entry for illiterate adults, and created the "Asiatic Barred Zone," which excluded immigrants from Asia. Immigration Act of 1917, ch. 29, §§ 2-3, 39 Stat. 874, 875, 876-77 (barring "[a]ll aliens over sixteen years of age, physically capable of reading, who can not read the English language, or some other language or dialect" and individuals from Asian countries).
81. Congress established quotas limiting the number of immigrants who could enter the United States in 1921, Immigration Act of 1921, ch. 8, § 2, 42 Stat. 5, 5-6, and the 1924 Act set additional limits excepting immigrants from the Americas, Immigration Act of 1924, ch. 190, §§ 4-8, 11, 43 Stat 153, 155-57, 159-60.
82. Edye v. Robertson (Head Money Cases), 112 U.S. 580, 600 (1884) ("Congress ha[s] the power to pass a law regulating immigration as a part of the commerce of this country with foreign nations . . . .").
83. Chae Chan Ping v. United States, 130 U.S. 581, 609 (1889). Elsewhere in the opinion, the Court put the proposition even more forcefully: "That the government of the United States, through the action of the legislative department, can exclude aliens from its territory, is a proposition which we do not think open to controversy."
84. Id. at 603.
85. See, e.g., Takahashi v. Fish & Game Comm'n, 334 U.S. 410 (1948) (striking state law denying fishing license to legal immigrant ineligible for citizenship);
86. Hines v. Davidowitz, 312 U.S. 52 (1941) (striking state law requiring immigrants over age of eighteen to register with state, pay annual registration fee, and receive and carry alien identification card);
87. Truax v. Raich, 239 U.S. 33 (1915) (striking state law regulating immigrant employment).
88. Overturning a veto by President Truman, Congress enacted its most comprehensive immigration law in 1952 that formed the basis of immigration law today. See Immigration and Nationality Act of 1952, Pub. L. No. 82-414, 66 Stat. 163 (codified as amended in scattered sections of 8 U.S.C.). The law abolished racial restrictions but still maintained quotas and also authorized the deportation of communist sympathizers.
89. See id. at 175-81, 205. In 1965, the amendments to the Immigration & Nationality Act eliminated quotas and gave preference to relatives of U.S. citizens.
90. Act of Oct. 3, 1965, Pub. L. No. 89-236, 79 Stat. 911 (codified as amended in scattered sections of 8 U.S.C.). For the first time, a cap was placed on the number of visas available to immigrants from the Americas.
91. See id. In 1986, Congress passed the Immigration Reform & Control Act, which granted amnesty to undocumented immigrants present in the United States prior to 1982 and criminalized the hiring of undocumented immigrants.
92. Immigration Reform & Control Act of 1986, Pub. L. No. 99-603, 100 Stat. 3359 (codified in scattered sections of 8 U.S.C.). In 1996, Congress changed deportation proceedings and barred permanent residency to any immigrant convicted of a crime.
93. Illegal Immigration Reform & Immigrant Responsibility Act of 1996 (IIRAIRA), Pub. L. No. 104-208, 110 Stat. 3009
94. (codified at 18 U.S.C. § 758 and in scattered sections of 8 U.S.C.). In 2004, the REAL ID Act established national standards for identification cards and drivers' licenses, waived laws barring construction of physical barriers at the border, and defined issues related to terrorism.
95. REAL ID Act of 2005, Pub. L. No. 109-13, div. B, 119 Stat. 302 (to be codified at 8 U.S.C. §§ 1101, 1155).
96. See supra notes 47-50. This does not mean that Congress has preempted all state regulations that touch on immigration. In De Canas v. Bica, the Supreme Court held that a state law barring immigrants from employment did not regulate immigration because it did not determine "who should or should not be admitted into the country, and the conditions under which a legal entrant may remain." 424 U.S. 351, 355 (1976). Recent state laws regulating employment diat touch on immigration have been upheld.
97. See Ariz. Contractors Ass'n v. Napolitano, No. CV07-1355-PHX-NVW, 2007 WL 4570303, at *12-*14 (D. Ariz. Dec. 21, 2007).
98. Memorandum from Cong. Research Serv. to the House Comm. on the Judiciary 2-4 (Jul. 28, 2005), available at http://www.ilw.com/immigdaily/news/2005,0824- crs.pdf (on file with the Columbia Law Review) [hereinafter CRS Memo]
99. (quoting 1 Charles Gordon, Stanley Mailman & Stephen Yale-Loehr, Immigration Law and Procedure § 2.01 (rev. ed. 2005)
100. & Castro-O'Ryan v. INS, 821 F.2d 1415, 1419 (9th Cir. 1987)).
101. Immigration laws detail a series of civil procedures and outline civil violations as well as criminal violations. See, e.g., 8 U.S.C. §§ 1321-1330 (detailing civil and criminal penalties for different violations and crimes).
102. See CRS Memo, supra note 52, at 3-7 (describing multiple categories of immigrants, problems of border enforcement, and complexity of legal issues presented to immigration courts).
103. See, e.g., Muzaffar A. Chishti, The Role of States in U.S. Immigration Policy, 58 N.Y.U. Ann. Surv. Am. L. 371, 371-72 (2002) (offering brief description of federal and state collaboration efforts before September 11, 2001);
104. Karl Manheim, State Immigration Laws and Federal Supremacy, 22 Hastings Const. L.Q. 939, 955 (1995) (providing brief description of modern efforts to strengthen border enforcement); Wishnie, State and Local, supra note 14, at 1105 (listing number of border arrests made in 2000);
105. Jill Keblawi, Comment, Immigration Arrests by Local Police: Inherent Authority or Inherently Preempted, 53 Cath. U. L. Rev. 817, 838-46 (2004) (discussing legality of state and local law enforcement activities) ;
106. Tiffany Walters Kleinert, Note, Local and State Enforcement of Immigration Law: An Equal Protection Analysis, 55 DePaul L. Rev. 1103 (2006) (examining equal protection issues related to local and state enforcement of immigration law while only briefly describing past failures of immigration enforcement).
107. See U.S. Nat'l Archives, Mexican Border Crossing Records, at http://www.archives.gov/genealogy/immigration/border-mexico.html (last updated Dec. 12, 2007) (on file with the Columbia Law Review) ("An act of March 2, 1819 required the captain or master of a vessel arriving at a port in the United States or any of its territories from a foreign country to submit a list of passengers to the collector of customs." (citation omitted)); supra note 31.
108. Chinese Exclusion Act of 1882, ch. 126, 22 Stat. 58 (requiring customs collectors to examine passenger certificates and lists for entry to the United States).
109. See Immigration Act of 1891, ch. 551, § 7, 26 Stat. 1084, 1085.
110. Omnibus Appropriations Act of 1895, ch. 177, 28 Stat. 764, 780-81;
111. U.S. Customs & Border Prot., U.S. Dep't of Homeland Sec, U.S. Immigration and Naturalization Service-Populating a Nation: A History of Immigration and Naturalization, at http://www.cbp.gov/xp/cgov/toolbox/about/ history/ins_history.xml (last visited Mar. 7, 2008) (on file with the Columbia Law Review) [hereinafter U.S. Customs and Border Protection, INS].
112. U.S. Customs and Border Protection, INS, supra note 59.
113. While the majority of federal inspectors were placed at seaports, the United States had large unprotected borders with Canada and Mexico. Records at designated land crossings were not kept until 1895 along the Canadian border and until approximately 1906 on the Mexican border. U.S. Nat'l Archives, supra note 56. As immigration quotas did not apply to countries in the Americas, there was no need for a border police force. There were, however, health inspectors placed at land ports of entry who would enforce provisions of the Immigration Act of 1917. See David Dorado Romo, Ringside Seat to a Revolution: An Underground Cultural History of El Paso and Juarez: 1893-1923, at 235-40 (2005) (describing physical inspection of Mexicans by health officials at U.S.-Mexico border).
114. See Romo, supra note 61, at 198 ("Chinese immigrants would take a circuitous route from the ports of Manzanillo, Ensenada or Mazatĺn, where they would hire a Mexican guide to smuggle them across the border through Juárez [into El Paso].").
115. See id.; U.S. Customs & Border Prot., U.S. Dep't of Homeland Sec, U.S. Border Patrol-Protecting Our Sovereign Borders, at http://www.cbp.gov/xp/ cgov/toolbox/about/history/bp_historcut.xml (last visited Mar. 7, 2008) (on file with the Columbia Law Review).
116. U.S. Customs & Border Prot., U.S. Dep't of Homeland Sec., Border Patrol History (2003), at http://www.cbp.gov/xp/cgov/border_security/ border_patrol/border_patrol_ohs/history.xml (on file with the Columbia Law Review) [hereinafter U.S. Customs and Border Protection, Border Patrol].
117. Id.
118. Id.
119. Id. During Prohibition, a substantial number of the new Border Patrol agents were stationed along the U.S.-Canada border to stop illegal alcohol smuggling.
120. Id.
121. Id.
122. See The Role of Immigration in the Department of Homeland Security Pursuant to H.R. 5005, The Homeland Security Act of 2002: Hearing on H.R. 5005 Before the Subcomm. on Immigration, Border Security, and Claims of the H. Comm. on the Judiciary, 107th Cong. 31 (2002) (statement of Mark Krikorian, Executive Director, Center for Immigration Studies) (recounting history of immigration and discussing how fear of enemy saboteurs prompted transfer of immigration authority to agency in charge of homeland security).
123. U.S. Customs and Border Protection, Border Patrol, supra note 64.
124. See supra note 46.
125. See U.S. Customs and Border Protection, Border Patrol, supra note 64 (describing deportation of 50,000 undocumented immigrants in early 1950s).
126. See Homeland Security Act of 2002, Pub. L. No. 107-296, § 101, 116 Stat. 2135, 2142 (to be codified at 6 U.S.C. § 111). The Immigration & Naturalization Service, of which the Border Patrol was a part, was split into three agencies within the new Department of Homeland Security. U.S. Citizenship & Immigration Services (USCIS) handles naturalization, Immigration & Customs Enforcement (ICE) covers investigations, and U.S. Customs & Border Protection (CBP), which includes Border Patrol, manages border functions.
127. See id. §§ 401-478, 116 Stat 2135, 2177-212 (to be codified in scattered sections of 5, 6, 7, 8, 19, 49 U.S.C.).
128. See supra Part I.A.1.
129. Immigration Act of 1882, ch. 376, § 2, 22 Stat. 214, 214. The statute read: The Secretary of the Treasury . . . shall have the power to enter into contracts with such State commission, board, or officers as may be designated for that purpose by the governor of any state to take charge of the local affairs of immigration . . .; and it shall be the duty of such State commission, board, or officers so designated to examine the condition of passengers . . . . Id.
130. See U.S. Customs and Border Protection, Border Patrol, supra note 64. The Texas Rangers' history of border police enforcement is fraught with stories of violence and bloodshed. With the Mexican Revolution causing civil unrest in the border region and fear of German attack via Mexico during World War I, Texas Rangers killed 5,000 Hispanics from 1914 to 1919, leading the State of Texas to completely overhaul the force to "restore public confidence" and "to attract 'men of high moral character.'" After the overhaul, the Rangers' duties included patrolling the Rio Grande against tequila smugglers during Prohibition and catde rustlers. See Tex. State Historical Ass'n, Handbook of Texas Online, Texas Rangers (2001), at http://www.tsha.utexas.edu/handbook/ online/articles/TT/met4.html (on file with the Columbia Law Review).
131. See U.S. Customs and Border Protection, Border Patrol, supra note 64 (describing recruitment of sheriffs deputies and Texas Rangers to take new employment in newly-formed Border Patrol).
132. The practice of arresting a suspect without a warrant for violating federal law by state peace officers was upheld in United States v. Di Re, in which the Court ruled that the standard for arrest was dictated by the states. 332 U.S. 581, 591 (1948).
133. See Michael M. Hethmon, The Chimera and the Cop: Local Enforcement of Federal Immigration Law, 8 UDC/DCSL L. Rev. 83, 86 (2004) ("The intention of Congress at that juncture cannot be misunderstood. Arrests for violation of section 1324 were to be made only by federal personnel, while by clear implication section 1325 and section 1326 arrests were to be made by state and local officers as well.").
134. See 8 U.S.C. § 1357(g) (2000).
135. Section 287(g) of the Immigration and Nationality Act, codified at 8 U.S.C. § 1357(g), audiorizes the Attorney General (and now the Secretary of the Department of Homeland Security) to train local law enforcement officials in immigration enforcement. See 8 U.S.C. § 1357(g)(1)-(10). Section 287(g) "authorizes the secretary of the U.S. Department of Homeland Security (DHS) to enter into agreements with state and local law enforcement agencies, permitting designated officers to perform immigration law functions . . . ." U.S. Immigration & Customs Enforcement, U.S. Dep't of Homeland Sec., Fact Sheet: Section 287(g), Immigration and Nationality Act; Delegation of Immigration Audiority (June 22, 2007), at http://www.ice.gov/pi/news/factsheets/ 070622factsheet287gprogover.htm (on file with the Columbia Law Review).
136. Alabama and Florida state police and a few agencies in California signed early agreements widi the federal government and sent officers from their agencies to attend trainings on enforcement of federal immigration law. See 287(g) Program: Ensuring the Integrity of America's Border Security System Through Federal-State Partnerships: Hearing Before the Subcomm. on Management, Integration, and Oversight of the H. Comm. on Homeland Security, 109th Cong. 6-11 (2005) (statement of Paul M. Kilcoyne, Deputy Assistant Director of Investigative Services Division, U.S. Immigration & Customs Enforcement, U.S. Dep't of Homeland Sec). More agencies have signed Memorandums of Agreement, including agencies in Arizona, Colorado, Florida, Georgia, Massachusetts, North Carolina, New Hampshire, Oklahoma, Tennessee, and Virginia. U.S. Immigration & Customs Enforcement, Partners, at http://www.ice.gov/partners/287g/ Section287_g.htm (last modified Jan. 28, 2008) (on file with the Columbia Law Review).
137. See Huyen Pham, The Constitutional Right Not to Cooperate? Local Sovereignty and the Federal Immigration Power, 74 U. Cin. L. Rev. 1373, 1375 (2006) [hereinafter Pham, Constitutional Right] (citing that "some forty-nine cities and towns and three states have noncooperation laws limiting or prohibiting their police and other authorities from cooperating in immigration law enforcement"). Cities initially passed noncooperation agreements in the 1980s during an influx of El Salvadorans and Guatemalans fleeing civil war.
138. Id. at 1382.
139. See 8 U.S.C. § 1644 ("[N]o State or local government entity may be prohibited, or in any way restricted, from sending to or receiving from the Immigration and Naturalization Service information regarding the immigration status, lawful or unlawful, of an alien in the United States.").
140. See Pham, Constitutional Right, supra note 83, at 1384 (explaining that while "the executive branch [has] criticized the laws," they have never "sued to challenge" them). Following the terrorist attacks of September 11, 2001, many municipalities again passed noncooperation ordinances after the federal government pushed for increased enforcement of immigration laws. Id. at 1386-87.
141. The statute reads: In the event. . . that an actual or imminent mass influx of aliens arriving off the coast of the United States, or near a land border, presents urgent circumstances requiring an immediate Federal response, the Attorney General may authorize any State or local law enforcement officer, with the consent of the head of the department, agency, or establishment under whose jurisdiction the individual is serving, to perform or exercise any of the powers, privileges, or duties conferred or imposed by this chapter or regulations issued thereunder upon officers or employees of the Service.
142. 8 U.S.C. § 1103(a)(8) (emphasis added). Another section outlines the procedures under which state and local law enforcement officers may place an immigrant under arrest: 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 or 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 . . . . Id. § 1252c(a) (emphasis added).
143. See Linda Reyna Yañez & Alfonso Soto, Local Police Involvement in the Enforcement of Immigration Law, 1 Hisp. L.J. 9, 43-50 (1994) (discussing different practices of local police involving immigration enforcement).
144. See supra note 82 (listing states where agencies have arranged training or signed such agreements).
145. Reports cite limited joint border patrol-local police enforcement efforts over the past decades. See, e.g., INS' Relationship with State and Local Law Enforcement: Hearing Before the Subcomms. on Government Efficiency, Financial Management and Intergovernmental Relations; Criminal Justice, Drug Policy and Human Resources; and National Security, Veterans Affairs and International Relations of the H. Comm. on Government Reform, 107th Cong. 3 (2001) (statement of Joseph R. Greene, Acting Deputy Executive Associate Comm'r for Field Operations, Immigration & Naturalization Service) (describingjoint investigations in Atlanta, Georgia, and New Orleans, Louisiana);
146. Yañez & Soto, supra note 87, at 48-49 & n.272 (describing joint efforts in El Paso, Texas, and citing effort in San Diego, California, in early 1990s);
147. Gail Pendleton, ABA Comm'n on Domestic Violence, Local Police Enforcement of Immigration Laws and Its Effects on Victims of Domestic Violence 2, available at http://www.nationalimmigrationproject.org/DVPage/DVSA_CLEAR- Article.doc (last visited Mar. 7, 2008) (on file with the Columbia Law Review) (describing joint effort in Chandler, Arizona, in late 1990s).
148. Telephone Interview with Rick Glancey, Spokesperson, El Paso County Sheriffs Office, Executive Dir., Tex. Border Sheriffs' Coal., in El Paso, Tex. (Nov. 2, 2006). The current Executive Director at the time of this publication is Donald Reay.
149. Assistance by State and Local Police in Apprehending Illegal Aliens, 20 Op. Off. Legal Counsel 26 (1996) [hereinafter Office of Legal Counsel, Assistance].
150. Office of Legal Counsel, U.S. Dep't of Justice, Non-Preemption of the Authority of State and Local Law Enforcement Officials to Arrest Aliens for Immigration Violations 2-3 (Apr. 3, 2002), available at http://www.aclu.org/ FilesPDFs/ACF27DA.pdf (on file with the Columbia Law Review) [hereinafter Office of Legal Counsel, Non-Preemption].
151. Kathleen M. Sullivan & Gerald Gunther, Constitutional Law 329 (15th ed. 2004).
152. U.S. Const. art. VI, cl. 2 ("[T] he Laws of the United States . . . shall be the supreme Law of the Land . . . ."); see, e.g., Cipollone v. Liggett Group, Inc., 505 U.S. 514, 514 (1992) (evaluating express preemption clause of statute barring state laws on cigarette labeling); Rath v. Jones Packing Co., 430 U.S. 519, 540 (1977) (finding legislative history suggesting that statutory language intended express preemption).
153. Cf. Immigration Reform & Control Act of 1986, Pub. L. No. 99-603, 100 Stat. 3359 (codified as amended in scattered sections of 8 U.S.C).
154. See, e.g., United States v. Vasquez-Alvarez, 176 F.3d 1294, 1297 (10th Cir. 1999) (stating that IRCA "cannot reasonably be read as express preemption of preexisting state law");
155. see also Balbuena v. IDR Realty LLC, 845 N.E.2d 1246, 1255-56 (N.Y. 2006) (finding no express preemption regarding employment issues).
156. Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 541 (2001) (citation omitted).
157. 424 U.S. 351 (1976).
158. Id. at 355. The Court ruled: "[T] he fact that aliens are the subject of a state statute does not render it a regulation of immigration, which is essentially a determination of who should or should not be admitted into the country. . . ."
159. Id. The ruling has been characterized as a "standard preemption inquiry: has the federal government occupied the field, and if not, does state law nonetheless present an obstacle to the achievement of the federal objective or frustrate the purposes of the federal scheme." Cristina M. Rodríguez, The Significance of the Local in Immigration Regulation
160. 106 Mich. L. Rev. 567, 620 (2008).
161. Compare United States v. Santana-Garcia, 264 F.3d 1188, 1194 (10th Cir. 2001) ("[S]tate and local police officers had implicit authority within their respective jurisdictions 'to investigate and make arrests for violations of federal law, including immigration laws.'" (quoting Vasquez- Alvarez, 176 F.3d at 1295))
162. Vasquez-Alvarez, 176 F.3d at 1299 ("This court finds no federal preemption of state law implicit in the design of [8 U.S.C] §1252c")
163. Lynch v. Cannatella, 810 F.2d 1363, 1371 (5th Cir. 1987) ("No statute precludes other federal, state, or local law enforcement agencies from taking other action to enforce this nation's immigration laws.")
164. and United States v. Salinas-Calderon, 728 F.2d 1298, 1301 (10th Cir. 1984) ("Applying the objective probable cause test to these facts, it is our view [that the arresting state police officer] had probable cause to make a warrandess arrest for violation of the immigration laws at this point in time.")
165. with Gonzales v. City of Peoria, 722 F.2d 468, 474-75 (9th Cir. 1983) ("We assume that the civil provisions of the Act regulating authorized entry, length of stay, residence status, and deportation, constitute such a pervasive regulatory scheme, as would be consistent with the exclusive federal power over immigration.")
166. overruled by Hodges-Durgin v. de la Vina, 199 F.3d 1037 (1999). It is worth noting that the Gonzales court did not state that criminal enforcement was preempted. (In Hodges-Durgin v. de la Vina, the Ninth Circuit overruled its holding in Gonzales regarding plaintiff standing. 199 F.3d at 1040 n.1.)
167. See, e.g., Hethmon, supra note 79;
168. Kris W. Kobach, The Quintessential Force Multiplier: The Inherent Authority of Local Police to Make Immigration Arrests, 69 Alb. L. Rev. 179 passim (2005) [hereinafter Kobach, Quintessential] (arguing that states have inherent authority to make arrests for immigration violations and authority is not preempted);
169. Michael J. Wishnie, Introduction: Immigration and Federalism, 58 N.Y.U. Ann. Surv. Am. L. 283, 285-87 (2002) (introducing series of papers that discuss federalism issues with immigration and stating that "recent developments have destabilized" "principles of federalism in immigration law [that] were relatively uncontroversial");
170. Laurel R. Boatright, Note, "Clear Eye for the State Guy": Clarifying Authority and Trusting Federalism to Increase Nonfederal Assistance with Immigration Enforcement, 84 Tex. L. Rev. 1633, 1663-74 (2006) (arguing that federal government permit rather than coerce state action on immigration enforcement);
171. Keblawi, supra note 55, at 838-46 (arguing against "inherent authority" position);
172. Kleinert, supra note 55, at 1115-35 (evaluating separate spheres of duties between federal and state officials and evaluating legislative proposals that would authorize local enforcement activities of immigration laws).
173. Compare John Ashcroft, U.S. Attorney General, Press Conference on Tracking of Foreign Visitors (June 5, 2002), available in LEXIS (prepared remarks from Federal News Service) (noting that "arresting aliens who have violated [immigration law] criminal provisions ... or civil provisions that render an alien deportable" is "within the inherent authority of the States"), and Office of Legal Counsel, Non-Preemption
174. supra note 92, at 8 ("[The INA] does not in any respect preempt the inherent authority of the States to make arrests for violation of immigration laws."), with Office of Legal Counsel, Assistance
175. supra note 91, at 2 ("State and local police lack recognized legal authority to stop and detain an alien solely on suspicion of civil deportability, as opposed to a criminal violation of the immigration laws or other laws.").
176. See Office of Legal Counsel, Assistance, supra note 91.
177. See supra notes 32-39, 41-42, 47-49 and accompanying text for the cases that develop this doctrine.
178. See Ashcroft, supra note 102; Office of Legal Counsel, Non-Preemption, supra note 92, at 2.
179. See, e.g., Kris W. Kobach, State and Local Authority to Enforce Immigration Law: A Unified Approach for Stopping Terrorists, Backgrounder (Ctr. for Immigration Stud., Wash., D.C.), June 2004, at 2-3 [hereinafter Kobach, State and Local] ("The source of the state governments' power is entirely independent of the U.S. Constitution.").
180. See Kobach, Quintessential, supra note 101, at 199-200 ("It is well established that the authority of state police to make arrests for violations of federal law is not limited to those situations in which [they] are exercising [delegated federal power] .... it is a general and inherent authority based on the fact that the states retain their sovereignty.").
181. 722 F.2d 468, 472 (9th Cir. 1983).
182. Id.
183. Id. at 474. The officers also noted that they were given no training in federal immigration law. Id.
184. Id. at 474-75.
185. Id.
186. Proponents of state and local enforcement of immigration point to cases such as United States v. Salinas-Calderon, 728 F. 2d 1298 (10th Cir. 1984), for justification that federal law does not prevent state action. See, e.g., Kobach, State and Local, supra note 106, at 3. While the Tenth Circuit ruled that state police have general investigatory authority to inquire into possible immigration violations, it is important to note that the court did not distinguish between criminal and civil violations and did not engage in preemption analysis. In that case, a Kansas police officer pulled over a vehicle for driving erratically, and upon stopping the vehicle, the officer learned that the passengers were illegally present in the United States.
187. Salinas-Calderon, 728 F.2d at 1299. The driver was cited for the state violation of driving without a license and subsequently charged with the federal crime of knowingly transporting undocumented immigrants in the United States.
188. Id. at 1299, 1300 & n.2. The defendant attempted to suppress the statements, but the court noted that there was probable cause for the officer to stop the vehicle and that the witnesses were all provided their Miranda rights.
189. Id. at 1302. The Fifth Circuit has stated in dicta, without engaging in preemption analysis, that state law enforcement is not precluded from enforcing federal immigration law.
190. See Lynch v. Cannatella, 810 F.2d 1363, 1371 (5th Cir. 1987).
191. 176 F.3d 1294 (10th Cir. 1999).
192. 264 F.3d 1188 (10th Cir. 2001).
193. 176 F.3d at 1296.
194. Id.
195. Id.
196. Id. at 1300.
197. 264 F.3d at 1190.
198. Id. at 1193
199. (quoting Vasquez-Alvarez, 176 F.3d at 1300).
200. Gonzales v. City of Peoria 722 F.2d 468, 476 (9th Cir. 1983).
201. See supra Part I.B.
202. Background information regarding Operation Linebacker has been acquired via newspaper articles, available records, and a telephone interview with El Paso County Sheriffs Office spokesperson Rick Glancey. Glancey, supra note 90. El Paso County Sheriff Leo Samaniego died in December 2007, and his chief deputy was appointed to serve out his term. Border sheriffs still continue enforcement efforts in the Southwest and in Texas are securing funding for their continued efforts. Some Counties Say State Border Security Money Is Slow in Coming, Associated Press, Jan. 15, 2008, at http://www.statesman.com/news/content/ region/legislature/stories/01/15/0115border.html (on file with the Columbia Law Review).
203. See supra Introduction.
204. A number of incidents have been reported in which the United States Border Patrol, Mexican federal police or military, as well as state and local authorities from both sides of the border, make accidental incursions into the neighboring country. These incidents typically result in the detention of the party that has made the incursion and confiscation of weapons, requiring Mexican and American diplomats to resolve the issues. Authorities have sometimes found themselves in standoffs at the border with weapons drawn over criminal issues. See Nicole Gaouette, Danger, Disorder in Patrol of South Border: Mexican Military and Police Incursions Add to the Chaos for U.S. Law Enforcement, According to Federal Files Obtained by a Watchdog Group, L.A. Times, Sept. 12, 2006, at A14 ("Mexican soldiers and police officers made more than 200 unauthorized incursions into U.S. territory from 1996 to Sept. 30, 2005, according to internal Homeland Security intelligence reports."); David McLemore, Mexico Says Troops Cross by Accident: Lawmaker Fears Criminal Motive, but Officials on Both Sides Skeptical, Dallas Morning News, May 4, 2002, at 29A ("There are about 20 to 30 cross-border incidents each year involving military or law enforcement agents from both sides, ranging from the trivial to the serious, according to the U.S. Immigration and Naturalization Service."). [M]ost [crossings] are accidental or result from hot pursuit, an INS official said. The most serious cross-border incident by Mexican troops occurred March 24, 2000, when 14 Mexican army soldiers in two Humvees crossed the border near Santa Teresa, N.M., by mistake and went a half-mile into the United States. Challenged by two Border Patrol agents on horseback, the Mexican soldiers drew their weapons, believing they had encountered drug dealers. When the agents also drew their weapons, shots were fired. No one was hurt during the incident, which ended when one Humvee and its passengers were briefly detained by U.S. officials while the other raced back into Mexico.
205. Id.
206. For example, Governors Janet Napolitano (D-Arizona) and Bill Richardson (D-New Mexico) declared a state of emergency along their own state borders with Mexico, making additional state funds available to law enforcement officers in border counties. See Leslie Linthicum, Stories Set Fire Under Gov.: Border 'Under Siege' Inspired Declaration, Albuquerque J., Aug. 22, 2005, at A1.
207. Tammy Fonce-Olivas, Coalition to Boost Border Security, El Paso Times, Sept. 17, 2005, at 1B.
208. See id.
209. Id.
210. Brandi Grissom, Sheriff to Use $375,000 State Grant to Protect Border, El Paso Times, Nov. 8, 2005, at IA;
211. see Glancey, supra note 90.
212. There appears to be a dispute as to whether random vehicle checkpoints are officially part of Operation Linebacker. News reports and interviews tend to characterize the vehicle checkpoints as part of the increased enforcement activities of Operation Linebacker. However, a November 2006 news report indicates that vehicle checkpoints are not part of the Operation's activities. Brandi Grissom, Operation Linebacker Catches More Immigrants Than Criminals, El Paso Times, Nov. 20, 2006, at 1A [hereinafter Grissom, Linebacker] ("'Vehicle stationary checkpoints are completely separate' from Operation Linebacker, El Paso County Sheriffs Office spokesman Rick Glancey said. 'I don't know how many times I have to say this to you, to other reporters and to everyone else in this community.'"). In any case, the practice is included in this Note as it is associated with increased enforcement along the border.
213. See Press Release, Office of the Governor, State of Tex., Gov. Perry Launches State-Led Border Security Operation (Feb. 9, 2006) (on file with the Columbia Law Review) [hereinafter Press Release, Launches].
214. See Texas Border Watch Test Site, at http://www.texasborderwatch.com (last visited Mar. 7, 2008).
215. Glancey, supra note 90; see also Brandi Grissom, Reports Find Linebacker Caught 860 Immigrants, El Paso Times, June 23, 2006, at 1A [hereinafter Grissom, Reports] ("[S]heriffs departments said they also turn over undocumented immigrants when they find them . . . .").
216. Telephone Interview with Agent Rogelio Garcia, Spokesperson, U.S. Border Patrol, El Paso Sector (Nov. 2, 2006) [hereinafter Telephone Interview with Agent Garcia].
217. Id.
218. Press Release, Office of the Governor, State of Tex., Gov. Perry Announces Comprehensive Border Security Plan for Texas (Oct. 12, 2005) (on file with the Columbia Law Review) [hereinafter Press Release, Comprehensive].
219. Mariano Castillo, Border Sheriffs Getting Millions, San Antonio Express-News, Oct. 13, 2005, at 1A. On December 12, 2005, Governor Perry awarded $6 million from the federal Edward Byrne Memorial Justice Assistance Program, which is administered by the Governor's Criminal Justice Division, to the state's sixteen border county sheriffs' departments ($367,500 each) and $120,000 to the Texas Border Sheriffs' Coalition. Press Release, Office of the Governor, State of Tex., Gov. Perry Awards $6 Million to Border Counties for Border Security (Dec. 5, 2005) (on file with the Columbia Law Review).
220. Office of the Governor, State of Tex., Border Security Plan for Texas, at http://www.governor.state.tx.us/priorities/odier/border/border_security (last visited Mar. 7, 2008) (on file with the Columbia Law Review).
221. Press Release, Office of the Governor, State of Tex., Gov. Perry Awards $3.8 Million More for Border Security (Feb. 2, 2006) (on file with the Columbia Law Review).
222. Press Release, Launches, supra note 133.
223. Press Release, Office of the Governor, State of Tex., Gov. Perry Announces Phase II of State-Led Border Security Operation: Operation Wrangler Expands Border Crime Initiatives Statewide (Jan. 22, 2007) (on file with the Columbia Law Review).
224. The website was a pilot project in operation in October 2006. The state has proceeded "with a formal request for proposals to implement a permanent Texas Border Watch web site." Texas Border Watch Test Site, supra note 134.
225. The coalition was receiving funds as a group, but the state now requires each county to submit for reimbursement individually. See Brandi Grissom, Sheriffs on Border Can't Obtain Grant as Group, El Paso Times, Sept. 12, 2007, at 1B.
226. See Louie Gilot, Sheriff's Coalition Looks for Ways to Combat Illegal Immigration, Drugs, El Paso Times, Oct. 24, 2006, at 1A.
227. See Gilot, Sheriffs Unite, supra note 5 ("The federal money the sheriffs are asking for would pay for extra officers and overtime for current patrols."). In Maricopa County, Arizona (with a county seat of Phoenix and buffered from Mexico by Pima County, Arizona), the Sheriff is using a state law against smuggling to increase patrols that have resulted in arrests of smugglers and undocumented immigrants who are charged with conspiring with "coyotes" - the term used for smugglers - to be smuggled into the United States.
228. See Randal C. Archibold, Arizona County Uses New Law to Look for Illegal Immigrants, N.Y. Times, May 10, 2006, at A19. At least 500 individuals have been prosecuted. Immigrants who plead guilty are required to "plead guilty to a felony . . . [that] gready undermines the ability of such defendants to immigrate to the country legally or become a U.S. citizen." Press Release, Maricopa County Attorney's Office, 500th Defendant Prosecuted Under Human Smuggling Statute: Latest Milestone in Fight Against Illegal Immigration (Dec. 2, 2007) (on file with the Columbia Law Review).
229. See Gilot, Petition, supra note 6 ("Some El Paso County residents said they have been asked for their Social Security cards and immigration papers by El Paso County sheriffs deputies during regular traffic stops, traffic checkpoints or while traveling by bus during the past few months.").
230. Id.;
231. see also Grissom, Reports, supra note 135;
232. Michael Hernandez, Operation Linebacker Finds 25 Immigrants, El Paso Times, Jan. 23, 2006, at 1B.
233. Gilot, Petition, supra note 6.
234. See, e.g., Brandi Grissom & Louie Gilot, Border Crime Decreases: Many Still Fear Policy Targets Immigrants, El Paso Times, Feb. 25, 2007, at 1A ("[The Sheriff] has maintained adamandy that his officers do not enforce immigration laws . . . .");
235. The War Out There, supra note 7 (" 'We are not involved in immigration law. We are here strictly trying to enforce Texas law.'" (quoting Rick Glancey, Spokesman, El Paso County Sheriffs Office)).
236. Grissom, Linebacker, supra note 132 (analyzing reports indicating requests for Border Patrol assistance with 4,756 undocumented immigrants compared to arrests of 702 individuals over six-month period).
237. See Brandi Grissom, Samaniego Accused of Doing Illegal Work on Border, El Paso Times, May 23, 2006, at 2A.
238. Id; see also Daniel Borunda, Immigrants Fear License Checks, El Paso Times, May 19, 2006, at IB ("[A] county housing coordinator who works in colonias[] has also heard complaints of 'racial profiling' and of the Border Patrol being called to traffic stops."). The El Paso County Sheriff turned over twenty-five undocumented immigrants in one day to the Border Patrol early in 2006. Hernandez, supra note 149.
239. See Letter from State Senator Juan Hinojosa, Chairman, Tex. Senate Hispanic Caucus, to Governor Rick Perry, Tex. (May 19, 2006) (on file the Columbia Law Review) ("These raids and roadblocks are questionable in their legality ....").
240. Elizabeth Pierson, Perry Refers Linebacker Questions to U.S. Attorney, Monitor (McAllen, Tex.), June 2, 2006, at 2B.
241. United States v. Santana-Garcia, 264 F.3d 1188, 1194 (10th Cir. 2001) (presuming that there was "no state or local law to the contrary").
242. See United States v. Vasquez-Alvarez, 176 F.3d 1294, 1300 (10th Cir. 1999) (explaining that state and local officers have power to arrest "criminal illegal aliens").
243. 8 U.S.C. § 1252c (2000) authorizes the arrest and detention of 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 or left the United States after such conviction, but only after . . . confirmation from the [I.N.S.]." Id.
244. 176 F.3d at 1300.
245. Id.
246. 8 U.S.C. § 1252c.
247. Id. § 1357(g).
248. Id. § 1644.
249. Cf. Huyen Pham, The Inherent Flaws in the Inherent Authority Position: Why Inviting Local Enforcement of Immigration Laws Violates the Constitution, 31 Fla. St. U. L. Rev. 965, 980 (2004) [hereinafter Pham, Inherent Flaws] ("A position on local enforcement like that taken by the Tenth Circuit is troubling because, though it claims to engage in a preemption analysis, it will almost never find federal preemption where state law allows for enforcement of federal laws.").
250. Vasquez-Alvarez, 176 F.3d at 1299.
251. Gonzales v. City of Peoria, 722 F.2d 468, 474-75 (9th Cir. 1983) ("We therefore hold that federal law does not preclude local enforcement of the criminal provisions of the [Immigration and Naturalization Act].")
252. overruled by Hodges-Durgin v. de la Vina, 199 F.3d 1037 (1999) (overruling Gonzales on standing issue unrelated to issue cited).
253. Id. at 475.
254. See, e.g., League of United Latin Am. Citizens v. Wilson, 908 F. Supp. 755, 764 (CD. Cal. 1995) (upholding preliminary injunction against application of Proposition 187 in California).
255. Criminal law enforcement is an area in which "[s]tates historically have been sovereign." United States v. Lopez, 514 U.S. 549, 564 (1995).
256. See id.
257. Some cities across the country have placed cameras in high crime areas. Chicago has 560 cameras monitored by police, and San Francisco is implementing a pilot program. Demian Bulwa, Chicago's Crime Cameras-Picture Isn't Perfect, S.F. Chron., Sept. 24, 2007, at A1.
258. Dallas installed thirty-four surveillance cameras in the city's downtown area in 2006. Tanya Eiserer, Cameras to Watch for Crime: Downtown Dallas to Get 34 Devices; Some View It As Orwellian, Dallas Morning News, Jan. 20, 2006, at 1A.
259. The case establishing the authority for a checkpoint without judicial warrant is United States v. Martinez-Fuerte, in which the Supreme Court upheld the use of permanent checkpoints established by the United States Border Patrol outside border cities to check for undocumented immigrants. 428 U.S. 543, 545 (1976).
260. These checkpoints are present along the border and operated by federal officers. In Delaware v. Prouse, the Supreme Court held that a local police officer could not stop a vehicle to check for a drivers' license and insurance without reasonable suspicion. 440 U.S. 648, 663 (1979).
261. However, the court stated that its ruling did not "cast doubt on the permissibility of roadside truck weigh-stations and inspection checkpoints, at which some vehicles may be subject to further detention for safety and regulatory inspection than are others." Id. at n.26.
262. Checkpoints to check for sobriety were upheld in Michigan Department of State Police v. Sitz. 496 U.S. 444 (1990).
263. In City of Indianapolis v. Edmond, the Supreme Court held that police cannot conduct roadblocks "whose primary purpose is to detect evidence of ordinary criminal wrongdoing." 531 U.S. 32, 38 (2000).
264. The purpose of this Note is not to evaluate the constitutionality of vehicle checkpoints for licenses and insurance.
265. See Tammy Fonce-Olivas, Samaniego Will Reinstate Controversial Checkpoints, El Paso Times, Oct. 11, 2006, at 1A (" [The sheriff] said the purpose of the checkpoints is to make sure motorists are complying with traffic laws.").
266. Should Mexico Hold Veto Power over U.S. Border Security Decisions?: Hearing Before the H. Comm. on the Judiciary, 109th Cong. 6-11 (2006) [hereinafter Hearing] (statement of Sheriff Leo Samaniego, El Paso County, Tex.). The name of the program employs a football analogy viewing federal Border Patrol agents as the defensive line with state and local law enforcement serving as linebackers (the second group of defenders).
267. Grissom, Deputies, supra note 10.
268. Id.;
269. infra notes 184-187 and accompanying text.
270. See supra Part I.B.2.
271. See supra Part I.B.3.
272. See, e.g., Hearing, supra note 176, at 6-11, 59-76 (statements of Sheriff Leo Samaniego, El Paso County, Tex., and Chief Richard Wiles, El Paso Police Dep't) (discussing enforcement of immigration laws);
273. Press Release, Comprehensive, supra note 138 ("In this post 9-11 era, there is no such thing as homeland security without border security.").
274. See Hearing, supra note 176, at 6-11 (statement of Sheriff Leo Samaniego, El Paso County, Tex.) (urging passage of bill that would "give [state and local law enforcement agencies] all the authority [they] need to enforce immigration law").
275. See Grissom, Reports, supra note 135 ("Although decreasing crime and preventing terrorism is the public mission of Operation Linebacker along the border[,] ... it has been most effective in detaining undocumented immigrants.").
276. According to an e-mail obtained via the request: Agent Salas [a "federal" agent] appeared to be disturbed over us being at the location with the referrals. Agent Salas inquired if I had contacted ICE prior to going to any of the locations. I told him that our instructions had been to call Border Patrol who would in turn call ICE if they deemed it necessary. Upon further discussion with Agent Salas he became mean spirited and sarcastic with me and appeared to be visibly upset over us following up on our information. E-mail from Timothy Rutter, Sergeant, El Paso County Sheriffs Office, to Jack Waite, Lieutenant, El Paso County Sheriffs Office, et al. (Apr. 28, 2006, 04:24 MST), available at http://www.aclutx.org/files/Undocumented%20Immigrant- Call%20out.pdf (on file with the Columbia Law Review) [hereinafter E-mail]. This is not unique to El Paso County. In Otero County, New Mexico, reports suggest deputies actively sought undocumented immigrants in spite of reports to the contrary. Louie Gilot, Records Show Immigrants Were Focus of Otero Actions, El Paso Times, Nov. 12, 2007, at 1A.
277. See E-mail, supra note 184 ("A total of 17 persons were referred to the Border Patrol ... for a combined total of 24 referrals.").
278. Id.
279. The purpose of the statistic is unclear. Opponents of the program allude that it is being used as a performance measure, but this claim is not independently verified. See Press Release, American Civil Liberties Union of Texas, Documents Obtained by ACLU Reveals Lies from El Paso County Sheriffs Department (June 20, 2006), available at http://www.aclutx.org/article.php?aid= 327 (on file with the Columbia Law Review) ("The monthly reports focus on how many undocumented men, women, and/or children intercepted as being the main output measure.")
280. See Hines v. Davidowitz, 312 U.S. 52, 67 (1941) (noting that conflict preemption occurs when state action "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress").
281. See supra Part I.B.3;
282. see also Lisa M. Seghetti, Stephen R. Vina & Karma Ester, Cong. Research Serv., Enforcing Immigration Law: The Role of State and Local Law Enforcement CRS-7 (2005) ("To the degree that it is not preempted, the authority of state and local law enforcement officers to investigate and arrest for violations of federal law is determined by reference to state law.").
283. See Tex. Code Crim. Proc. Ann. art. 14.01(b) (Vernon 2005) ("A peace officer may arrest an offender without a warrant for any offense committed in his presence or within his view.").
284. See Ex parte Jones, 208 S.W. 525, 525-26 (Tex. Crim. App. 1919) (accepting that state officer can arrest individual for violation of federal law).
285. Authority of Local Peace Officers to Arrest Illegal Aliens Without a Warrant, Op. Att'y Gen. No. H-1029 (Tex. July 28, 1977), available at http://www.oag.state.tx.us/opinions/opinions/45hill/op/1977/pdf/jh1029.pdf (on file with the Columbia Law Review).
286. See id. at 2 ("Texas peace officers . . . do not have authority to arrest an individual solely upon suspicion that he has previously entered the country illegally . . . .").
287. 8 U.S.C. § 1325 (2000) ("Any alien who . . . enters or attempts to enter the United States at any time or place other than as designated by immigration officers . . . shall . . . be fined . . . or imprisoned . . . .").
288. Authority of Local Peace Officers to Arrest Illegal Aliens Without a Warrant, Op. Att'y Gen. No. H-1029, at 4.
289. See id. at 2 ("If local officials perceive a likelihood that an alien in custody on other charges has entered the country illegally, they should notify federal INS officers of their suspicion, and may release the suspect to the custody of federal officials after disposition of State criminal charges.");
290. see also Telephone Interview with Agent Garcia, supra note 136.
291. See supra note 192 and accompanying text.
292. In defense of Operation Linebacker and increased police enforcement along the border, the Texas Governor's office reiterated that this is incidental contact, and the sheriff's department argued that normal law enforcement duties cannot be conducted without contact with undocumented immigrants. See Grissom, Linebacker, supra note 132.
293. See Authority of Local Peace Officers to Arrest Illegal Aliens Without a Warrant, Op. Att'y Gen. No. H-1029, at 2 ("Texas peace officers do not . . . have authority to arrest an individual solely upon suspicion that he previously entered the country illegally . . . .").
294. See supra Part I.A.2.
295. See cases cited supra notes 47-49 and accompanying text.
296. " [T] he matter of these statutes may be, and ought to be, the subject of a uniform system or plan. The laws which govern the right to land passengers in the United States from other countries ought to be the same in New York, Boston, New Orleans, and San Francisco." Henderson v. Mayor of N.Y., 92 U.S. 259, 273 (1875).
297. Id. at 274 ("We are of opinion that this whole subject has been confided to Congress by the Constitution; that Congress can more appropriately and with more acceptance exercise it than any other body known to our law . . . .").
298. See Chy Lung v. Freeman, 92 U.S. 275, 280 (1875) ("[T] he responsibility for the character of those regulations, and for the manner of their execution, belongs solely to the national government. If it be otherwise, a single State can, at her pleasure, embroil us in disastrous quarrels with other nations.").
299. Professor Neuman discusses conflicts between European countries and the United States over laws passed by Southern states regulating the entry of free black sailors on ships arriving in Southern ports. The British even engaged Southern states directly regarding their regulations. According to Professor Neuman: "The controversy . . . is particularly important as an instance in which state immigration law created a persistent diplomatic embarrassment for the United States . . . ." Neuman, Strangers, supra note 15, at 38-39.
300. See Chy Lung, 92 U.S. at 280.
301. Id. ("[H]as the Constitution . . . done so foolish a thing as to leave it in the power of the States to pass laws whose enforcement renders the general government liable . . . while it does not prohibit to the States the acts for which it is held responsible?").
302. See, e.g., Hines v. Davidowitz, 312 U.S. 52, 64 (1941) ("One of the most important and delicate of all international relationships, recognized immemorially as a responsibility of government, has to do with the protection of the just rights of a country's own nationals when those nationals are in another country.").
303. Id. ("Experience has shown that international controversies of the gravest moment, sometimes even leading to war, may arise from real or imagined wrongs to another's subjects inflicted, or permitted, by a government").
304. See Pham, Inherent Flaws, supra note 165, passim.
305. See id. at 995 ("DOJ's invitation for local enforcement will result in a 'thousand borders' problem, violating the constitutional mandate for uniform immigration laws as local authorities will enforce federal immigration laws differently, creating, in effect, different immigration laws.").
306. Cf. id.
307. The United States Border Patrol is divided into twenty sectors with nine along the U.S.-Mexico border. U.S. Customs & Border Prot., Border Patrol Sectors, at http://www.cbp.gov/xp/cgov/border_security/border_patrol/ border_patrol_sectors/(last visited Mar. 7, 2008) (on file with the Columbia Law Review).
308. See supra notes 125-126 and accompanying text.
309. See Grissom, Reports, supra note 135 ("'We just stumble upon them, quite frankly' . . . . Sheriffs in some other border counties said they also often come across undocumented immigrants in their Operation Linebacker work.").
310. See supra notes 181-188 and accompanying text.
311. See Hearing, supra note 176, at 7 (statement of Sheriff Leo Samaniego, El Paso County, Tex.).
312. See infra Part III.A.
313. See supra notes 96-97.
314. Rodriguez, supra note 99, at 571.
315. See supra note 101 and accompanying text. But cf. Cecilia Renn, Comment, State and Local Enforcement of the Criminal Immigration Statutes and the Preemption Doctrines, 41 U. Miami L. Rev. 999, 1002 (1987) (arguing that immigration policy cannot be left to vagaries of state arrests).
316. See, e.g., Hethmon, supra note 79, at 84 (defending "inherent authority of local police to enforce federal immigration law");
317. Kobach, Quintessential, supra note 101, at 182 (finding inherent arrest authority of states never preempted by Congress);
318. Manheim, supra note 55, at 944 (discussing preemption as method for analyzing state immigration law);
319. Wishnie, State and Local, supra note 14, at 1088 (discussing "validity and implications" of state law enforcement's "'inherent authority'" to make immigration arrests);
320. Keblawi, supra note 55, at 818 (discussing inherent authority and legality of state enforcement in face of federal preemption).
321. See, e.g., Teresa A. Miller, Blurring the Boundaries Between Immigration and Crime Control After September 11th, 25 B.C. Third World L.J. 81, 86 (2005) (describing how new regime of immigration law "blurs distinctions between illegal aliens, criminal aliens, and terrorists");
322. Yañez & Soto, supra note 87, at 50 (citing policy problems with Congress allowing state participation in immigration enforcement);
323. Kleinert, supra note 55, at 1119 (discussing policy impacts of new immigration legislation) ;
324. Theodore W. Maya, Note, To Serve and Protect or to Betray and Neglect?: The LAPD and Undocumented Immigrants, 49 UCLA L. Rev. 1611, 1612-13 (2002) (describing need for special policies for police interactions with undocumented immigrants).
325. Arguments have been presented for Congress to explicitly preempt state action in the immigration arena. Karla Mari McKanders, Welcome to Hazleton! "Illegal" Immigrants Beware: Local Immigration Ordinances and What the Federal Government Must Do About It, 39 Loy. U. Chi. L.J. 1, 44 (2007). While that would be one solution, this Note is written from the perspective that there is an incentive for Congress to actually involve state and local police in federal immigration enforcement.
326. See supra notes 47-49 and accompanying text.
327. See Am. Ins. Ass'n v. Garamendi, 539 U.S. 396, 491 (2003) (striking state statute requiring insurance companies to provide information about Holocaust-era policies as impermissible interference with foreign affairs);
328. Crosby v. Nat'l Foreign Trade Council, 530 U.S. 363, 366 (2000) (striking state law barring state agencies from purchasing goods and services from companies doing business with Burma);
329. Zschernig v. Miller, 389 U.S. 429, 432 (1968) (invalidating state statute regarding testamentary property as intrusion by state into foreign affairs).
330. Zschernig, 389 U.S. at 434-35 (quoting Clark v. Allen, 331 U.S. 503, 517 (1947)). In Zschernig, the Supreme Court examined an Oregon law allowing foreign heirs to take property of the deceased only if the foreign nation gave a reciprocal right to U.S. citizens.
331. 389 U.S. at 430.
332. Recognizing the concern articulated in Hines v. Davidowitz, 312 U.S. 52 (1941), that "[e]xperience has shown that international controversies of the gravest moment, sometimes even leading to war, may arise from real or imagined wrongs to another's subjects inflicted, or permitted, by a government," the Court struck down the state law.
333. Zschernig, 389 U.S. at 441
334. (quoting Hines, 312 U.S. at 64).
335. See Garamendi, 539 U.S. at 442 (instructing deference to Executive when it has spoken clearly to issue at hand);
336. Crosby, 530 U.S. at 386 ("[T]he state Act stands in the way of Congress's diplomatic objectives.").
337. Zschernig, 389 U.S. at 459.
338. Id. at 434.
339. In Garamendi, the Court found that California state law conflicted with executive authority to conduct foreign policy. 539 U.S. at 491. There was no congressional action or standing law, yet the Court still found that the state law was preempted by executive action. Id. at 414 (describing President's authority to act).
340. For a thorough discussion on the importance of uniformity in immigration policies, see Pham, Inherent Flaws, supra note 165, passim ("[I]mmigration power is an exclusively federal power that must be exercised uniformly.").
341. McKanders, supra note 224, at 43.
342. Cf. id. at 44 (arguing that "local laws only serve as an obstacle to the purposes of federal legislation enacted pursuant to [Congress's plenary] power" in discussion of local laws impacting immigration).
343. See Young, supra note 13, at 52 (suggesting state autonomy and diversity of regulatory outcomes from state to state as core values of federalism).
344. See Roderick M. Hills, Against Preemption: How Federalism Can Improve the National Legislative Process 16 (Univ. of Mich. Law, Public Law and Legal Theory Research Paper No. 27, 2003), available at http://papers.ssrn.com/sol3/ papers.cfm? abstract_id=412000 (on file with the Columbia Law Review) ("State law, therefore, are [sic] an important influence on the agendas in Congress.").
345. See De Canas v. Bica, 424 U.S. 351, 355 (1976). It should be noted that the Supreme Court did not decide the case based on whether the statute stood " 'as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress' in enacting the INA."
346. Id. at 363
347. (quoting Hines v. Davidowitz, 312 U.S. 52, 67 (1941)).
348. See supra Part II.C.1.
349. See supra Part II.C.l.
350. For example, many cities have economic relationships with cities around the world to create sister cities programs. Moreover, state governors regularly meet with counterparts on issues of common concern. See Daniel Halberstam, The Foreign Affairs of Federal Systems: A National Perspective on the Benefits of State Participation, 46 Vill. L. Rev. 1015, 1028-37 (2001).
351. See supra note 204 and accompanying text.
352. See supra Part II.A.
353. See Gilot, Sheriffs Unite, supra note 5 (discussing sheriffs' coalition across Southwest border); discussion supra note 12.
354. See, e.g., Randal C. Archibold, Phoenix Mayor Shifts on Officers Asking for Immigration Status, N.Y. Times, Dec. 4, 2007, at A22 ("[Phoenix Mayor Phil] Gordon said the government had not done enough to patrol the border and to enact changes to immigration law to slow the pace. He said he now advocated giving the police the authority to check the immigration status of anyone accused of breaking the law.");
355. Governor Janet Napolitano, Ariz., Address to the National Press Club Regarding Immigration, Border Security 1 (Feb. 27, 2007), available at http://azgovernor.gov/dms/upload/NR_022707_NATIONAL%20PRESS%20CLUB%20FINAL.pdf (on file with the Columbia Law Review) ("The failure to adequately control our borders reveals deep cracks in our Department of Homeland Security, unfairly affects states like mine that are on the border, and gives rise to ugly and unproductive political rhetoric");
356. Press Release, Office of the Governor, State of Tex., Perry: First High Intensity Phase of Operation Wrangler Made Texas Safer (Feb. 13, 2007) (on file with the Columbia Law Review) (quoting Governor as saying: "[U]ntil the federal government fulfills its responsibility to secure the nation's borders, we will continue to exhaust all available means at the state level to secure the Texas-Mexico border and protect our families and communities.");
357. Governor Bill Richardson, N.M., Speech on Comprehensive Immigration Reform at Georgetown University 6 (Dec. 7, 2006), available at http://www.governor.state.nm.us/MEDIA/PDF/ Comprehensive%20Immigration%20Reform%20Speech%20at%20Georgetown%20University. pdf (on file with the Columbia Law Review) ("The Federal government has failed to deal with illegal immigration, forcing state governors to deal with the consequences of this failure.");
358. Letter from Governor Arnold Schwarzenegger, Cal., to U.S. Senate Leaders (June 13, 2006), available at http://gov.ca.gov/press-release/982/ (on file with the Columbia Law Review) ("Border security and immigration reform are the exclusive jurisdiction of the federal government. Despite this, our states are now actively working with the federal government to help secure the border region.").
359. See Letter from Raymond Flynn, Chairman, Catholic Alliance, David Keen, Chairman, Am. Conservative Union & Grover Norquist, President, Ams. for Tax Reform, to President George W. Bush (May 30, 2002), available at http://www.immigrationforum.org/DesktopDefault.aspx?tabid=182 (on file with the Columbia Law Review) [hereinafter Letter] (fearing state and local law enforcement of federal immigration laws would "force state and local governments to pay for enforcement of laws intended to be enforced by federal law enforcement agencies").
360. See supra Part II.C.1.
361. This situation differs from Printz v. United States, 521 U.S. 898 (1997), in which state law enforcement officers were required to conduct background checks before an individual could purchase a handgun, id. at 908, in that federal authorization to enforce federal immigration law would be voluntary for state and local police agencies. Because of the demands on state and local law enforcement, the federal government could leave state and local law enforcement agencies, especially those along the border, with a Hobson's Choice: enforce federal immigration law and receive funds for increased police enforcement, or continue to enforce state criminal laws without the necessary federal support in the form of a sufficient number of federal officers.
362. Int'l Ass'n of Chiefs of Police, Enforcing Immigration Law: The Role of State, Tribal and Local Law Enforcement 3-4 (2004), available at http://www.theiacp.org/documents/pdfs/Publications/ImmigrationEnforcementconf. pdf (on file with the Columbia Law Review).
363. See Craig E. Ferrell Jr., Immigration Enforcement: Is It a Local Issue?, The Police Chief: The Prof'l Voice of L. Enforcement, Feb. 2004, at 36, 38-39 ("[S]tate and local police do not have the training or expertise to enforce immigration laws . . . [and] many executives feel they do not have the resources to tackle this additional federal issue. There are federal agencies specifically charged with the enforcement and application of the complex immigration laws and regulations.").
364. Carrie L. Arnold, Note, Racial Profiling in Immigration Enforcement: State and Local Agreements to Enforce Federal Immigration Law, 49 Ariz. L. Rev. 113, 122 (2007);
365. see also Erica Molina Johnson, Chaparral Arrests Rankle: Advocates Urge Sheriff to Stop, El Paso Times, Sept. 20, 2007, at IB (describing protest against actions of Otero County, New Mexico, Sheriff with advocate stating that "some residents are not reporting crimes for fear of deportation"); Erica Meltzer, Sheriff Drops Plan to Have Border Agents Deputized: Immigrant-Rights Activists Ask Supervisors to Reject Idea, Ariz. Daily Star (Tucson), Jan. 9, 2008 ("Critics of the proposal said crime victims would be afraid to report crimes . . . .").
366. See generally Orde F. Kittrie, Federalism, Deportation, and Crime Victims Afraid to Call the Police, 91 Iowa L. Rev. 1449 (2006) (discussing deterrent effect that deportation has on reporting of crimes by immigrants).
367. Int'l Ass'n of Chiefs of Police, supra note 248, at 5.
368. See Arnold, supra note 250, at 119-21 ("There is evidence of racial profiling when state and local officers have teamed up with federal officers to investigate immigration violations.").
369. See Hearing, supra note 176, at 7 (statement of Sheriff Leo Samaniego, El Paso County, Tex.)
370. A number of police departments across the country have opposed authorization to enforce federal immigration law. See Nat'l Immigration Forum, Backgrounder: Immigration Law Enforcement by State and Local Police (May 2004), at http://www.immigrationforum.org/DesktopDefault.aspx?tabid=572 (on file with the Columbia Law Review). Within El Paso County, the city of El Paso's police department has opposed the authorization, arguing that the department is already overburdened.
371. See Hearing, supra note 176, at 60, 63-64 (statement of Chief Richard Wiles, El Paso Police Dep't). There is also a concern that the enforcement of federal immigration law by state and local law enforcement will diminish the capacity of officers to effectively police the community as local residents would distrust police officers.
372. See id.;
373. Nat'l Immigration Forum, supra ("The success of community policing hinges upon a relationship of trust between community residents and law enforcement officials, a relationship that is broken down when immigrants fear immigration-related consequences for approaching state or local police."). There are claims of such fear in El Paso County, where residents have reported their concern about reporting state criminal violations because of their civil immigration status. See Grissom, Deputies, supra note 10. It is also imperative to note the distinction between civil and criminal law. Attempts have been made to classify all immigration violations as criminal, which would effectively give all law enforcement the ability to detain and arrest any undocumented immigrant. See S. 2454, 109th Cong. § 206 (2006); H.R. 4437, 109th Cong. § 203 (2005);
374. see also Michael John Garcia, Criminalizing Unlawful Presence: Selected Issues 5-6 (2006), available at http://www.ilw.com/immigdaily/news/2006,0509- crs.pdf (on file with the Columbia Law Review). Opponents argue that such criminalization would result in a substantial burden on law enforcement and the justice system.
375. See supra Part III.C.1.
376. The Executive Directors of traditionally conservative organizations wrote President George W. Bush in 2002 opposing the "inherent authority" of state and local police officers to arrest undocumented immigrants for violations of civil law, arguing that "it will set a dangerous precedent with regard to the authority of state and local law enforcement agencies to enforce civil violations of many Federal laws." Letter, supra note 245.
377. See supra note 244.
378. See Ferrell, supra note 249, at 40 (arguing from perspective of Houston Police Department Deputy Director and Administration General Counsel that "federal government should address the real threats the nation faces and the issue of illegal immigration without making the job of state and local police more difficult").
379. Nat'l Conference of State Legislatures, NCSL Interim Policy on Immigration Reform (May 6, 2006), available at http://www.ncsl.org/programs/ press/2006/immpolicy.htm (on file with the Columbia Law Review).
380. Cf. Nat'l Conference of State Legislatures, 2007-2008 Policies for the Jurisdiction of the Law & Criminal Justice Committee, at http://www.ncsl.org/statefed/LAWANDJ.HTM (last updated Mar. 3, 2008) (on file with the Columbia Law Review) ("NCSL also opposes shifting traditional federal responsibilities, such as civil immigration enforcement, to state and local law enforcement personnel.").
381. Local police in Irving, Texas, a suburb of Dallas, referred over 2,170 immigrants to U.S. Immigration & Customs Enforcement, most of whom had been charged with misdemeanors. Citing a lack of resources, the federal agency sent a memorandum to state and local departments telling the agencies that it could focus only on immigrants facing serious crimes. See Brandon Formby, ICE Still Taking Class C Suspects: Minor Offenders Lacking ID Still Face Deportation Despite Agency's Memo, Dallas Morning News, Jan. 20, 2008, at IB.