Hi Trish:

It was a pleasure to talk with you today.  I’ve been hard at work digesting some cases and some statutes that can be of assistance to you and your city council.  Some of the relevant statutes are as follows:

U.S. Code as of: 01/06/03

Section 1324. Bringing in and harboring certain aliens

    (a) Criminal penalties

      (1)(A) Any person who ‑

        (i) knowing that a person is an alien, brings to or attempts to

      bring to the United States in any manner whatsoever such person

      at a place other than a designated port of entry or place other

      than as designated by the Commissioner, regardless of whether

      such alien has received prior official authorization to come to,

      enter, or reside in the United States and regardless of any

      future official action which may be taken with respect to such

      alien;

        (ii) knowing or in reckless disregard of the fact that an alien

      has come to, entered, or remains in the United States in

      violation of law, transports, or moves or attempts to transport

      or move such alien within the United States by means of

      transportation or otherwise, in furtherance of such violation of

      law;

        (iii) knowing or in reckless disregard of the fact that an

      alien has come to, entered, or remains in the United States in

      violation of law, conceals, harbors, or shields from detection,

      or attempts to conceal, harbor, or shield from detection, such

      alien in any place, including any building or any means of

      transportation;

        (iv) encourages or induces an alien to come to, enter, or

      reside in the United States, knowing or in reckless disregard of

      the fact that such coming to, entry, or residence is or will be

      in violation of law; or

        (v)(I) engages in any conspiracy to commit any of the preceding

      acts, or

        (II) aids or abets the commission of any of the preceding acts,

    shall be punished as provided in subparagraph (B).

(c) Authority to arrest

      No officer or person shall have authority to make any arrests for

    a violation of any provision of this section except officers and

    employees of the Service designated by the Attorney General, either

    individually or as a member of a class, and all other officers

    whose duty it is to enforce criminal laws.

Section 1325. Improper entry by alien

    (a) Improper time or place; avoidance of examination or inspection;

      misrepresentation and concealment of facts

      Any alien who (1) enters or attempts to enter the United States

    at any time or place other than as designated by immigration

    officers, or (2) eludes examination or inspection by immigration

    officers, or (3) attempts to enter or obtains entry to the United

    States by a willfully false or misleading representation or the

    willful concealment of a material fact, shall, for the first

    commission of any such offense, be fined under title 18 or

    imprisoned not more than 6 months, or both, and, for a subsequent

    commission of any such offense, be fined under title 18, or

    imprisoned not more than 2 years, or both.

Section 1326. Reentry of removed aliens

    (a) In general

      Subject to subsection (b) of this section, any alien who -

        (1) has been denied admission, excluded, deported, or removed

      or has departed the United States while an order of exclusion,

      deportation, or removal is outstanding, and thereafter

        (2) enters, attempts to enter, or is at any time found in, the

      United States, unless (A) prior to his reembarkation at a place

      outside the United States or his application for admission from

      foreign contiguous territory, the Attorney General has expressly

      consented to such alien's reapplying for admission; or (B) with

      respect to an alien previously denied admission and removed,

      unless such alien shall establish that he was not required to

      obtain such advance consent under this chapter or any prior Act,

    shall be fined under title 18, or imprisoned not more than 2 years,

    or both.

Cases interpreting these statutes are:

Summaries of Cases:

Barajas  (1978) 81 Cal.App.3d 999 , 147 Cal.Rptr. 195:

(Local officers must enforce US immigration laws)

            Defendant was stopped for a traffic violation and gave questionable responses regarding his immigration status.  He was given a citation for a misdemeanor and released.  At the station the officer  ran a record check by giving defendant's vital statistics to his main office and receiving word that defendant had been apprehended on two prior occasions, one of them on September 25, 1975.  He also was informed that defendant had been "formally deported" at that time.   The officer knew that even though a person was deported, he could nonetheless reenter the country legally by obtaining special permission from the Attorney General, something rarely given; where such permission was obtained, sector offices like the one where the officer was working were not notified.  Later the defendant was located and arrested for, among other reasons, violation of US immigration laws.  The court ruled:

(Further in the legislative process, however, as the law review article itself notes (8 U.C. Davis L.Rev., supra at p. 145), the words "of the United States" were stricken by further amendment from section 1324 (see H.R. No. 5678, Apr. 28, 1952, p. 89). That can only mean that the scope of the arrest power under section 1324 was enlarged; in no way can it mean that the scope of arrest under the other two sections was restricted. )

Defendant's reliance upon the supremacy clause of the federal Constitution is misplaced. It is true that under the supremacy clause, Congress has preempted the field of immigration. (Citations) And ... there are reasons why Congress might choose to limit local enforcement (e.g., enforcement of immigration laws sometimes has international overtones). But Congress has not done so. The supremacy clause is a two-edged sword, and in the absence of a limitation, the states are bound by it to enforce violations of the federal immigration laws. (Here, I was wrong.  There is an imperative to enforce the immigration laws according to this case) The statutory law of the United States is part of the law of each state just as if it were written into state statutory law. (Citations) Since there is no limitation relative to sections 1325 and 1326, the Lodi police officers had the power to arrest for their violations.

The defendant also maintained that his arrest was unlawful because the police officers did not comply with the warrant requirements of 8 United States Code section 1357.... In the absence of a specific law regulating the mode of such an arrest, the legality of an arrest by local officers is determined by the law of arrest of the state in which it occurs, unless such law conflicts with the federal Constitution. (Citations)

American G.I. Forum v. Miller(1990) 218 Cal.App.3d 859 , 267 Cal.Rptr. 371

(Local officers may inquire about the legal status of suspects)    

Automated Regional Justice Information System (ARJIS) created a standard arrest form which an arresting officer fills when he  arrests someone. The form has a section devoted to statistical "identity" information which is entered into a nationwide computer system dealing with criminal activity. In this identity section is a check box to record whether the arrestee is an "undocumented person."

Police regularly ask about immigration status and check off the "undocumented person" box based on the arrestee's Hispanic appearance, command of English, and accent. The procedures for determining "undocumented person" status do not take into account the fact some people are United States citizens without knowing it, some "undocumented persons" are entitled to lawful resident status under the Immigration Reform and Control Act of 1986 and that the method for establishing that persons are not lawfully in the United States is a federal proceeding under the Immigration and Nationality Act. Thus, it is often impossible for police to determine the immigration status or citizenship of many persons, either by soliciting such information, inspecting identification, or by observation.

This collection of information can result in a false record that an arrestee is an undocumented person. Due to entry into a national computer system, this information can follow the arrestee throughout his life.

American sued ARJIS, seeking a declaration the above practices are unlawful and an injunction to remove the "undocumented person" check box from the ARJIS-8 form, prevent officers from inquiring into persons' immigration status, and delete all references made by ARJIS to arrestees' immigration status.

The court ruled that ARJIS does not invade a sphere protected by the federal or state right of privacy by gathering "undocumented person" information in arrest records and disseminating those records in the criminal justice system.  Nor is it a violation of the due process clause of the federal constitution.

Gates v. Superior Court (Grajeda) (1987) 193 Cal.App.3d 205 , 238 Cal.Rptr. 592

(Officers may arrest for felony violations of immigration laws but not for misdemeanors that were not committed in their presence, e.g., illegal entry.)

Regarding the arrest of Grajeda, LAPD officers detained Grajeda, a permanent legal resident of the United States, in downtown Los Angeles for jaywalking. After issuing a citation, the officers arrested and booked Grajeda for using a false or forged alien registration receipt card (green card), a felony violation of 18 United States Code (U.S.C.) section 1426, subdivision (b).

Pursuant to a hold request of local officials of the United States Immigration and Naturalization Service (INS), the LAPD held Grajeda without bail until he was given into INS custody. Shortly thereafter, an INS agent examined Grajeda's alien registration card and released him.

Regarding the arrest of defendant Rivera,  LAPD Officers observed Rivera and two companions seated in a parked car. The two in the back tried to slide down out of  view.  Upon approaching, one officer detected the odor of marijuana emanating from an open window of Rivera's vehicle.

An officer was summoned to the scene to interview the suspects in Spanish. He also detected the odor of marijuana and recalled the suspects eventually said they were waiting for a friend who had gone into a building to purchase marijuana. He claimed the suspects had volunteered their undocumented status, indicated they were worried.

The officers transported the suspects to INS without arresting or booking them for any state or local crime. One officer admitted basing this decision upon the belief "they were involved in criminal activity. ... [T]hey had no identification. ... [¶¶] .... We had reason to believe that they were either burglars or involved in narcotic activity, and we transported them down to immigration only because they were illegal aliens."

At his deposition, Rivera asserted he had given the officers his driver's license and car registration, both of which were in order. He denied admitting his illegal status but conceded he had been illegally present in this country at that time.

At the time the LAPD implemented Special Order No. 68 regarding arrest for illegal entry into this country.

According to this directive, officers were not to initiate police action with the primary objective of discovering the alien status of a person where no crime-related issues were involved.

Whether or not a suspected illegal alien was booked on criminal charges, the arresting officer was to contact by phone an INS agent who would then interview the detainee to "determine the legality of the suspected person's presence in the United States." INS could place a teletype "hold" on the suspect which became effective after adjudication of any state criminal matter.

Where the detained person was not booked on a criminal charge and contact with the INS revealed illegal status, the LAPD policy required an officer to consult divisional detectives or the watch commander for booking approval. Such approval might be obtained where "there is a likelihood that the release of an illegal alien will create additional police problems. (Example: Family dispute calls, possibility of an assault or ADW occurring, etc.)" If booking approval was denied, the suspect was to be released but the officer was to forward all available information as to the suspect's identity to Detective Headquarters Division (DHD).

With respect to suspected illegal aliens who were neither the object of a police investigation nor subject to booking, an officer "need not notify INS" but instead could merely forward information on the suspect to DHD.  However, in urgent situations, such as fires or other disasters in which a suspected illegal alien was a victim or involved, an officer could notify DHD, which, in turn, would notify INS "who will take immediate action to aid this Department in alleviating the problem."

b. 1979 to present.

Special Order No. 40, entitled "Undocumented Aliens" and dated November 27, 1979, replaced Special Order No. 68. This Order stated "undocumented alien status in itself is not a matter for police action" and directed officers not to "initiate police action with the objective of discovering the alien status of a person." Additionally, officers were advised not to arrest or book persons for violations of 8 U.S.C. section 1325 (improper entry by alien).

However, "[w]hen an undocumented alien is booked for multiple misdemeanor offenses, a high grade misdemeanor or a felony offense, or has been previously arrested for a similar offense," the arresting officer shall notify DHD of the arrest which, in turn, relays the information to INS via teletype.

c. Jail Procedures.

LAPD jail division does not permit an arrestee on whom the INS has placed a hold to post bail. Thus, despite the posting of bond on a state criminal charge, jail division continues to detain an arrestee on whom INS has placed a hold "up to the state limit, which is 48 hours." fn. 1

4. Federal Immigration Laws

8 U.S.C. section 1357 deals with "Powers of Immigration Officers and Employees -- Powers without a warrant." 8 U.S.C. section 1357(a)(2) allows any officer or employee of the Service to arrest without a warrant any alien who "is entering or attempting to enter the United States in violation of any law or regulation" or is "in the United States in violation of any such law or regulation and is likely to escape before a warrant can be obtained for his arrest, but the alien arrested shall be taken without unnecessary delay for examination before an officer of the Service having authority to examine aliens as to their right to enter or remain in the United States; ..."

When an INS agent arrests without a warrant for a felony violation of immigration law, "the person arrested shall be taken without unnecessary delay before the nearest available officer empowered to commit persons charged with offenses against the laws of the United States." (8 U.S.C. §§ 1357(a)(4).)

As to criminal matters, "[t]he general rule is that local police are not precluded from enforcing federal statutes. [Citations.]"

b. LAPD authority to arrest for criminal violations of federal law.

The propriety of an arrest for a violation of federal law by state peace officers is determined by reference to state law. (Citations) A peace officer may arrest in California (1) when a public offense is committed in the officer's presence, (2) when a person has committed a felony, and (3) when reasonable cause exists to suspect a person has committed a felony, whether or not a felony has, in fact, been committed. (Pen. Code, §§ 836.)

Therefore, pursuant to Penal Code section 836, an LAPD officer may arrest for a felony violation of federal immigration law any time the officer has reasonable cause to believe such a violation has occurred.

The most commonly encountered misdemeanor violations of federal immigration law are found in 8 U.S.C. section 1325, improper entry into this country.

[4a] One type of such improper entry, eluding examination or inspection of immigration officers in violation of 8 U.S.C. section 1325(2), has specifically been held to be "consummated at the time an alien gains entry through an unlawful point and does not submit to these examinations." (United States v. Rincon-Jimenez (9th Cir. 1979) 595 F.2d 1192, 1193-1194.)

Although the other two forms of improper entry proscribed by section 1325, entering the country at a place other than as designated by immigration officers, or obtaining entry by wilfully false or misleading representations, violations of 8 U.S.C. sections 1325(1) and (3), respectively, these misdemeanors also appear clearly to be complete upon the improper entry.  8 U.S.C. section 1326 makes it a felony to enter, attempt to enter or be found in the United States after having been deported or excluded. Because Congress explicitly defined this offense as a continuing one, the misdemeanor matters set forth in section 1325, by clear implication, are complete upon entry.

Once an alien has reached a place of repose within the country, the misdemeanor of improper entry ends. At that point, an LAPD officer may not arrest for this offense because it did not occur in the officer's presence.

INS, on the other hand, might treat an alien suspected of improper entry either civilly, by instituting proceedings to deport or exclude the alien, or criminally, by prosecuting for the illegal entry.

3. [5a] 8 C.F.R. section 287.3 does not apply to the LAPD.  Because it is a civil proceeding and exclusively within the federal domain so police do not have to apply the same due process rights and also because, on its face, it applies only to employees and officers of the INS and was clearly not intended by its drafters to apply to police.

b. 8 C.F.R. section 287.3 does not establish constitutionally mandated standards of due process.

[6] "[A]liens, even those lawfully within the country, do not have most of the constitutional rights afforded to citizens. They may be deported for  considerations of race, politics, activities, or associations that the government could not punish them for if they were citizens.  They may be arrested by administrative warrant issued without an order of a magistrate, and held without bail.

The exclusionary rule is inapplicable to deportation hearings. The absence of Miranda warnings does not render an otherwise voluntary statement inadmissible in a deportation case.

In many deportation proceedings the sole matters necessary for the Government to establish are the respondent's identity and alienage -- at which point the burden shifts to the respondent to prove the time, place and manner of entry.  Proof of alienage is further simplified because an adverse inference may be drawn "'from the silence of one who is called upon to speak. ...'"(1) Trial court's rationale.

c. Resolution.

For all the foregoing reasons, it makes no sense to require the LAPD, which concededly neither is nor should be involved in the admission, exclusion or deportation of aliens, to abide by the same regulations applicable to INS agents in the administration of these civil functions of the INA.

4. Application of the foregoing discussion to LAPD's policies on undocumented aliens.

a. Policy from 1972-1979.

LAPD policy from 1972 through 1979 was defective by allowing LAPD officers to arrest for civil violations of the INS impermissibly intruding upon the federal preserve. Additionally, the policy violated state law because it purported to authorize arrests for misdemeanors which had not occurred in an officer's presence.

b. Post-1979 Policy.

LAPD policy no longer permits the detention or arrest of undocumented aliens solely on account of their illegal status. Only when a suspected illegal alien is arrested on state charges is the arresting officer directed to contact INS to determine whether a hold is to be placed on the individual.

The mere questioning of a criminal arrestee about his immigration status is constitutionally permitted.

Where an LAPD officer legitimately comes across information in the course of investigating a crime which reasonably leads to the belief the person arrested is illegally present in this country, nothing in either the state or the federal constitution prevents the officer from advising INS of this data.

In such a situation an LAPD officer may, in some abstract sense, be enforcing the civil provisions of federal immigration law because, absent the arrest and notification, the INS would not have been able to deport or exclude the alien. However, such a technical view improperly ignores important practical considerations.

Where otherwise warranted investigation by local officers leads to evidence of a federal civil or criminal violation, the local authority has the right to exchange information with federal authorities; to deny such an exchange is not reasonable and rewards those federal violators fortunate enough to be arrested by local, rather than federal, officials. The INS's ability to deport or exclude an alien, legally arrested for a state crime and held in state custody, should not turn on so meaningless a distinction.

A July 24, 1984, opinion of the California Attorney General, No. 83-902, 67 Ops.Cal.Atty.Gen. 331, reaches the same result. Finding local authorities are under no legally enforceable duty to report to the INS information about persons who entered the country in violation of 8 U.S.C. section 1325, the opinion concludes such officials, "as a matter of comity and good citizenship," may do so. (Id. at p. 332.)

Accordingly, we hold the LAPD's transfer of legitimately obtained arrest information to the INS does not constitute enforcement of the civil provisions of the INA.

for a maximum hold of 24 hours.

            Crespin v. Coye (1994) 27 Cal.App.4th 700 , 34 Cal.Rptr.2d 10

 (It is legal to require information of immigration status and social security prior to medical treatment)