In Joe Arpaio's press conference last week, and since then on several news shows, the sheriff has insisted there is a law in the federal code that allows him to continue his anti-immigrant sweeps without his 287(g) field authority. This is the power stripped from him recently by Immigrations and Customs Enforcement, while leaving his jails agreement in limbo.
Indeed, during that press conference, when asked what federal law allowed him to continue the sweeps, he told a reporter, "I'll give you the section, I'll even give you a copy of it, if you want." Reporters were then given handouts with bogus and misleading information, apparently copied -- in part -- from extremist nativist Web sites.
Though I was blocked from the press conference because the sheriff's office has a standing order to prevent New Times reporters from MCSO media events held on county property, I obtained a copy of the handout from one reporter who was present, and received the same info via e-mail from MCSO spokesman Brian Lee. The text of what he sent me is at the bottom of this post.
You should note that 8 USC 1324(a)(1)(A)(iv)(b)(iii) doesn't seem to exist, if you check out Title 8 Section 1324 on the Cornell University Law School Web site, a common reference for the U.S. code. There is an 8 USC 1324(a)(1)(A)(iv), but not 8 USC 1324(a)(1)(A)(iv)(b)(iii). I e-mailed Lee, asking him for an explanation, but received no follow-up.
After this bogus citation, there follows some text, which is presented as if it came from section 1324 itself. It does not. Instead, the text seems to be from a document on the Web site of the Connecticut Citizens for Immigration Control, a nativist organization in Darien, Connecticut, which refers to an illegal immigration "invasion" and has "Welcome to MexAmerica" on its home page. The online doc itself says it was prepared by another anti-illegal group, Americans for Legal Immigration (not to be confused with the North Carolina PAC of the same name), which is based in Indianapolis, Indiana.
(If you want to see the original nativist text itself, click here, and scroll down to "Enforcement," and see the first five paragraphs, which are identical to the text in Lee's e-mail.)
Why is the sheriff pimping the product of such extremist Web sites as if they were the law of the land? Perhaps it's because the real law doesn't actually back him up as he says. This e-mail from sheriff's flack Lee then proceeds to cite parts of section 1357, which is essentially the codified language for the 287(g) program. If you check out the Cornell Web site, and look at 1357(g)(1), you'll see that it states,
"...the Attorney General may enter into a written agreement with a State, or any political subdivision of a State, pursuant to which an officer or employee of the State or subdivision, who is determined by the Attorney General to be qualified to perform a function of an immigration officer in relation to the investigation, apprehension, or detention of aliens in the United States (including the transportation of such aliens across State lines to detention centers), may carry out such function at the expense of the State or political subdivision and to the extent consistent with State and local law."
How the sheriff's office thinks that this is legal justification for pursuing non-criminal illegal aliens without 287(g) authority is a mystery. Indeed, there is a very conservative legal opinion that was written during John Ashcroft's tenure as Attorney General that posits that local cops have the inherent authority to enforce federal code, but Arpaio has not yet used that argument. And in any case, it is not the law itself, but merely an opinion, and one given while a very right-wing Attorney General was in office.
Annie Lai, an attorney with the Arizona ACLU, helped put the two sides of the legal argument into perspective.
"The issue of whether police have the authority to detain or arrest someone for a suspected violation of civil immigration law only if they do not have a patrol 287g is complicated and the subject of much academic debate." she told me in a recent e-mail. "The Kris Kobach's of the world say yes. [Kobach is a law prof who works for the Immigration Law Reform Institute, an offshoot of the nativist organization FAIR.] The ACLU lawyers of the world say no.
"Arpaio/Thomas misled the public by saying there is some kind of federal statutory authority. The answer cannot be found in a statute; it can only be found by interpreting case law and
That said, the question then becomes what legal remedy is there for stopping Arpaio? Could the feds step in and stop him? The National Guard? A judge with a restraining order? Who? I have no doubt that Arpaio will arrest non-criminal aliens in the coming sweep, even without his street 287(g). And if ICE does not accept them, I'm sure Arpaio will drive them down to the border, as he's said he will. Though Arpaio may not have the authority to do this, he will do it nonetheless. Can anyone stop him? And does anyone or any entity with the power to do so have the political will to try?
Below is the e-mail sent to me by the MCSO's Brian Lee. It matches a handout given to reporters during Arpaio's press conference.
Here is a copy and paste of what we passed out at the news conference. Thanks!
Section 8 USC 1324(a)(1)(A)(iv)(b)(iii)
A person or entity having knowledge of a violation or potential violation of employer sanctions provisions may submit a signed written complaint to the INS office with jurisdiction over the business or residence of the potential violator, whether an employer, employee, or agent. The complaint must include the names and addresses of both the complainant and the violator, and detailed factual allegations, including date, time, and place of the potential violation, and the specific conduct alleged to be a violation of employer sanctions. By regulation, the INS will only investigate third-party complaints that have a reasonable probability of validity. Designated INS officers and employees, and all other officers whose duty it is to enforce criminal laws, may make an arrest for violation of smuggling or harboring illegal aliens.
State and local law enforcement officials have the general power to investigate and arrest violators of federal immigration statutes without prior INS knowledge or approval, as long as they are authorized to do so by state law. There is no extant federal limitation on this authority. The 1996 immigration control legislation passed by Congress was intended to encourage states and local agencies to participate in the process of enforcing federal immigration laws. Immigration officers and local law enforcement officers may detain an individual for a brief warrantless interrogation where circumstances create a reasonable suspicion that the individual is illegally present in the U.S. Specific facts constituting a reasonable suspicion include evasive, nervous, or erratic behavior; dress or speech indicating foreign citizenship; and presence in an area known to contain a concentration of illegal aliens. Hispanic appearance alone is not sufficient. Immigration officers and police must have a valid warrant or valid employer's consent to enter workplaces or residences. Any vehicle used to transport or harbor illegal aliens, or used as a substantial part of an activity that encourages illegal aliens to come to or reside in the U.S. may be seized by an immigration officer and is subject to forfeiture. The forfeiture power covers any conveyances used within the U.S.
TITLE 8 > CHAPTER 12 > SUBCHAPTER II > Part IX > § 1357
§ 1357. Powers of immigration officers and employees
(g) Performance of immigration officer functions by State officers and employees
(10) Nothing in this subsection shall be construed to require an agreement under this subsection in order for any officer or employee of a State or political subdivision of a State-
(A) 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
(B) otherwise to cooperate with the Attorney General in the identification, apprehension, detention, or removal of aliens not lawfully present in the United States.
Lieutenant Brian Lee A6461
Media Relations Unit
Keep Phoenix New Times Free... Since we started Phoenix New Times, it has been defined as the free, independent voice of Phoenix, and we would like to keep it that way. Offering our readers free access to incisive coverage of local news, food and culture. Producing stories on everything from political scandals to the hottest new bands, with gutsy reporting, stylish writing, and staffers who've won everything from the Society of Professional Journalists' Sigma Delta Chi feature-writing award to the Casey Medal for Meritorious Journalism. But with local journalism's existence under siege and advertising revenue setbacks having a larger impact, it is important now more than ever for us to rally support behind funding our local journalism. You can help by participating in our "I Support" membership program, allowing us to keep covering Phoenix with no paywalls.