County immigration authority muddled
Arpaio, foes armed with court rulings to make their cases

by JJ Hensley - Oct. 26, 2009 12:00 AM
The Arizona Republic

When U.S. Immigration and Customs Enforcement officials decided to remove the street-level immigration-enforcement authority granted to the Maricopa County Sheriff's Office, it looked like the beginning of the end for Sheriff Joe Arpaio's controversial measures.

Now things are more muddled than ever.

In the two weeks since that ICE decision took hold, Arpaio has conducted another crime-suppression operation and held two news conferences citing laws and policies that shore up his contention that deputies have the inherent authority to perform the tasks of immigration agents.

One of those laws turned out not to exist - the document the Sheriff's Office passed out contained a hodgepodge of Department of Justice opinions with some state policies from around the country thrown in. And the policy Arpaio cited at a news conference on Thursday was torn from the pages of a 2005 ICE training manual that doesn't reflect the federal agency's current enforcement priorities, an ICE spokesman said.

The debate ultimately comes down to whether local law enforcement has the authority to enforce federal immigration laws, and both sides have ample legal arguments to support them.

Deputies have the authority to enforce federal immigration law if you trust a recent Department of Justice opinion and a few Circuit Court decisions.

Rep. Lamar Smith, R-Texas, co-authored the law that created the 287(g) program and said there is no reason to question that view.

"Not only does Sheriff Arpaio have this (Department of Justice) opinion on his side, he has common sense. There are roughly 6,000 special agents working for U.S. Immigration and Customs Enforcement, the federal agency responsible for enforcing immigration laws. But there are more than 600,000 state and local law-enforcement officers in America," Smith said. "It only makes sense that state and local law-enforcement officers should be able to voluntarily help out and enforce our nation's civil and criminal immigration laws."

Do have authority

The most recent Justice Department opinion, reversing a 1996 decision, was issued in 2002 and says local law enforcement has the inherent power to make arrests for violating federal law.

Some observers say the 2002 opinion was crafted in the wake of the Sept. 11 terrorist attacks and hope for a reversal. They point to recent signs, such as ICE's renewed emphasis on "criminal aliens," that President Barack Obama's Justice Department may revert to the 1996 opinion.

Don't have authority

Critics of Arpaio's enforcement tactics have a handful of court rulings on their side, too, and a history of Justice Department opinions, including that 1996 interpretation, which say local law-enforcement officials don't have the authority to arrest and detain immigrants who've committed only civil-immigration violations.

The 2002 interpretation didn't fully address the 1996 opinion, they say, which was backed up by more than 20 years of Justice Department legal rulings. They also point to court rulings, such as the 9th U.S. Circuit Court of Appeals' decision that being Hispanic in a largely Hispanic area doesn't constitute reasonable suspicion, as one of the legal issues that local law-enforcement agencies can overlook when enforcing federal immigration laws.

"The sheriff's department is not charged with determining the alienage of anybody," said Maurice Goldman, a Tucson immigration attorney. "That is at the crux of whether someone is subject to immigration laws."

A court will ultimately have to rectify those divergent views, experts say.

Potential fallout

The ACLU has two racial-profiling lawsuits against Arpaio moving through federal court, and attorneys there will be watching the Sheriff's Office closely to see whether potential civil-rights violations arise.

If the Sheriff's Office does illegally arrest or detain someone on a civil violation, there are two options: a civil suit or a federal criminal investigation into whether deputies violated constitutional rights.

Despite the claims of the anti-immigrant crowd, the Constitution applies to everyone, said Annie Lai, an attorney with the Arizona American Civil Liberties Union.

"In the United States Constitution, especially the Fourth Amendment (prohibiting unreasonable search and seizure), there's no exception based on your immigration status," she said.

Arpaio said his commitment to enforcing federal immigration laws on the streets in the absence of an ICE agreement is a matter of principle.

"This is not political. I can get re-elected on pink underwear and Tent City," he said. "I'm just doing what I feel is right."

Unique approach

But the Maricopa County Sheriff's Office is unique in its approach to immigration enforcement, even for agencies around the country that have ICE agreements. Most of those use the street-level enforcement agreement to target illegal immigrants who are gang members, sex offenders, parole violators and those with outstanding warrants.

Arpaio's deputies go after illegal immigrants who are human smugglers, identity thieves and passengers without ID with the same vigilance under the premise that all of those people violated a law when they illegally crossed the border and could be on the verge of committing a more serious crime.

That disparate approach reflects Arpaio's supporters and the priorities of other departments around the country, Lai said.

"It depends on local politics," she said. "What the people in that city or town feel about immigration or community policing."

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