Goals for State-Federal Action

Traditionally, state and local law enforcement have been charged with authority under federal law to arrest and detain illegal immigrants who violate criminal provisions of the Immigration and Naturalization Act (INA). Congress extended this authority to civil immigration violations in limited circumstances pursuant to the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA) and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). Under AEDPA, state and local police can arrest and detain aliens who are unlawfully present in the United States and have previously been convicted of a felony in the United States. Under IIRIRA, state and local police can enforce civil immigration laws when all of the following conditions are met:

• There is a "mass influx" of foreign nationals as defined by the INA;
• The situation requires an immediate response from the federal government;
• Federal officials obtain the consent of the state or local supervising department.

IIRIRA also permits states and localities to enter into a voluntary formal agreement called a Memorandum of Understanding (MOU) with the U.S. Department of Homeland Security. The MOU process requires state and local police to undergo adequate training and provides other safeguards for state and local enforcement of federal civil immigration laws. If a state or locality does not wish to enter into such agreement, or has laws prohibiting this type of immigration law enforcement, it is not required to participate. There is no penalty to the state or locality for nonparticipation. The National Conference of State Legislatures supports the collaboration between federal and state governments contained in the voluntary MOU process. NCSL also supports the adequate funding of federal enforcement of its own immigration laws.

In  2006, Congress introduced legislation that affects the state and local law enforcement of federal civil immigration law. This legislation will undermine the states' ability to address local immigration situations in a manner that is suitable for the individual states. If passed, this legislation would amount to a huge unfunded federal mandate and open the door to costly state litigation if a perceived violation of federal law occurs. NCSL is opposed to any federal immigration legislation that:

• Shifts the burden of enforcing federal civil immigration laws from the federal government to the states;
• Does not provide for sufficient training and other technical assistance needed at the state and local level to carry out the intent of the law, or adequate federal funding for training and technical assistance;
• Preempts, in any way, existing state and local MOUs or other state statutes addressing the issue of state and local law enforcement of federal immigration laws;
• Sanctions states for their legitimate actions by withholding federal funds, including SCAAP funds;
• Jeopardizes the integrity of any state and local law enforcement crime investigation activities in communities.

Expires July 2007