Immigration Agents: State Law Usage And Federal Powers

Immigration is a complex and ever-evolving area of law, with federal and state laws regulating the movement of people into and within the United States. While the federal government in Washington, D.C., primarily governs immigration through the Immigration and Nationality Act (INA), states also have their own laws that control immigration within their borders. This has led to a dynamic landscape where federal immigration agents like ICE (Immigration and Customs Enforcement) collaborate with state and local law enforcement agencies to enforce immigration laws. This collaboration can take various forms, such as the 287(g) Program, which delegates immigration authority to local officers, but it has also sparked controversies and legal challenges over states' rights and racial profiling concerns. Understanding the interplay between federal and state immigration laws is crucial for safeguarding the rights of immigrants and ensuring effective law enforcement.

Immigration and Nationality Act (INA)

The Immigration and Nationality Act (INA) was enacted in 1952 and forms the basis of most federal immigration law in the United States. The INA has been amended several times and contains key provisions on immigration law. It is part of the United States Code (U.S.C.), which is a compilation of all US laws. Title 8 of the U.S. Code, or Title 8 USC Ch. 12, covers "Aliens and Nationality".

The INA dictates most aspects of federal immigration law, including visas and citizenship status. The U.S. Citizenship and Immigration Services (USCIS) is the agency responsible for managing immigrant-related matters and providing services and benefits. The State Department is responsible for issuing visas and publishes the Foreign Affairs Manual, which contains information on citizenship and nationality.

The Homeland Security Act transferred the primary responsibility for enforcing and administering immigration laws to the Secretary of the Department of Homeland Security (DHS). The DHS has three separate agencies that deal with immigration: USCIS, Immigration and Customs Enforcement (ICE), and Customs and Border Protection (CBP). ICE is responsible for investigations, detention, and removal, while CBP enforces immigration and customs law at US ports of entry.

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) amended the INA by authorising the Secretary of Homeland Security to enter into agreements with states or their political subdivisions to allow qualified officers to perform specified immigration-related duties. This has led to varying levels of cooperation between federal and state/local authorities, with some states acting as sanctuary states and restricting partnerships with ICE, while others have greater cooperation.

The role of state and local law enforcement in immigration is a complex issue. While federal law provides authority for state and local officials to assist federal officers in enforcing immigration law under certain circumstances, there are controversies surrounding indirect state participation through immigration detainers. The continued detention of individuals beyond the needs of local law enforcement to aid in federal immigration law enforcement may be unlawful and has been alleged to lead to abuses and pretextual arrests.

State and local law enforcement

Immigration is a complex and constantly evolving area of law. While the federal government regulates immigration, states also have their own laws that control immigration within their borders. The primary source of immigration law is the Immigration and Nationality Act (INA), passed in 1952. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 added Section 287(g) to the INA, which authorises Immigration and Customs Enforcement (ICE) to delegate to state and local law enforcement the authority to perform specified immigration officer functions.

The 287(g) Program, established under Section 287(g) of the INA, enhances the safety and security of communities by allowing ICE Enforcement and Removal Operations (ERO) to partner with state and local law enforcement agencies to identify and remove criminal aliens amenable to removal from the US. ICE operates three 287(g) models: the Jail Enforcement Model, the Task Force Model, and the Warrant Service Officer program. The Task Force Model serves as a force multiplier for law enforcement agencies to enforce limited immigration authority with ICE oversight during their routine police duties. The Warrant Service Officer program allows ICE to train, certify, and authorise state and local law enforcement officers to serve and execute administrative warrants on aliens in their agency's jail.

State laws affecting immigration are often challenged by immigrant rights groups, civil liberties groups, and the federal government. These lawsuits can cause racial profiling, and critics say that laws requiring a photo ID for voting violate the Voting Rights Act of 1965. Some states, such as California, have created policies unfavourable to ICE's interests in enforcement within the state. In contrast, other states, such as Texas and Florida, have greater cooperation with federal authorities.

Federal immigration laws

The DHS has three agencies dedicated to immigration functions: USCIS, which administers immigration benefits and services; and Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP), which handle law enforcement functions. ICE is responsible for investigations, detention, removal, intelligence, and the administration of the Student and Exchange Visitor Program. CBP enforces immigration and customs law at ports of entry through border patrol and customs agents.

The Department of Justice, Department of Labor, and Department of State are also involved in regulating immigration. The State Department, in particular, is responsible for issuing visas and publishes the Foreign Affairs Manual, which contains information on citizenship, nationality, and visa provisions.

While the federal government primarily regulates immigration, states also have their own laws that control immigration within their borders. For example, California has established itself as a "sanctuary state," creating policies that hinder ICE enforcement within the state. In contrast, states like Texas and Florida have greater cooperation with federal authorities. Local law enforcement officers can assist federal agents with enforcing immigration law under certain circumstances, as authorized by the Antiterrorism and Effective Death Penalty Act and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996.

Immigration and Customs Enforcement (ICE)

ICE carries out its duties through more than 400 federal statutes, focusing on smart immigration enforcement, humane detention, preventing terrorism, and combating the illegal movement of people and goods. This includes investigating and deterring the illicit trade of guns, money, drugs, and other illegal and counterfeit merchandise coming into the country.

ICE also administers the Student and Exchange Visitor Program (SEVP) and works in partnership with U.S. Customs and Border Protection and U.S. Citizenship and Immigration Services to enforce immigration laws at the border and within the country's interior.

While the federal government regulates immigration, state and local law enforcement agencies also play a role in enforcing immigration law. There are express provisions in federal law that authorize state and local officials to assist federal officers in enforcing immigration law under certain circumstances. For example, when state or local officers question the immigration status of someone they have detained, they may contact an ICE agent to place a detainer on the suspect and request that the state official keep the suspect in custody until their immigration status can be determined.

However, the continued detention of such individuals beyond the needs of local law enforcement designed to aid federal immigration laws may be unlawful and controversial. Some states, like California, have created policies that limit their cooperation with ICE, while others, like Texas and Florida, have greater cooperation with federal immigration authorities.

Department of Homeland Security (DHS)

The Department of Homeland Security (DHS) is a federal executive department responsible for public security, including anti-terrorism, border security, immigration and customs, cybersecurity, and disaster prevention and management. It was established in 2002 in response to the September 11 attacks and began operations on March 1, 2003. With over 240,000 employees, it is the third-largest Cabinet department in the US.

DHS has the primary responsibility for enforcing and administering immigration laws. It contains three separate agencies that handle immigration functions: the United States Citizenship and Immigration Services (USCIS), which administers immigration benefits and services; and two law enforcement agencies, Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP). ICE is responsible for investigations, detention, removals, intelligence, and the administration of the Student and Exchange Visitor Program (SEVP). CBP enforces immigration and customs law at US ports of entry through border patrol and customs agents.

DHS has several initiatives and partnerships with state and local law enforcement agencies to enforce immigration law. For example, state or local officers who question the immigration status of someone they have detained for a state or local violation may contact an ICE agent at the Law Enforcement Support Center (LESC). The federal agent may then place a detainer on the suspect, requesting that the state official keep the suspect in custody until their immigration status can be determined. However, the continued detention of such a suspect beyond the needs of local law enforcement designed to aid in the enforcement of federal immigration laws may be unlawful.

The DHS has faced criticism and controversy over its immigration enforcement practices. Immigrant rights groups and civil liberties groups have challenged state laws affecting immigration, particularly those requiring proof of citizenship or legal residence, as they can lead to racial profiling. There have also been allegations of abuses against detained migrants by ICE and CBP, with calls from politicians and civil liberties groups for the dismantling of DHS.

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