Abstract

http://ssrn.com/abstract=1912912
 
 

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The Discretion That Matters: Federal Immigration Enforcement, State and Local Arrests, and the Civil-Criminal Line


Hiroshi Motomura


University of California, Los Angeles - School of Law

August 19, 2011

UCLA Law Review, Vol. 58, p. 1819, 2011
UCLA School of Law Research Paper No. 11-26

Abstract:     
This Article starts by analyzing the conventional wisdom, crystallized in the Ninth Circuit’s 1983 decision in Gonzales v. City of Peoria, that state and local law enforcement officers do not require express federal authorization to make arrests for criminal violations of federal immigration law. This view, I explain, is based on overreliance on the line between civil and criminal. Even if a state or local arrest for an immigration crime still leaves federal prosecutors with substantial discretion not to bring criminal charges, it is highly likely that the federal government will force arrestees to leave the United States through the civil removal system, where much less discretion has been exercised. In immigration law, the discretion to arrest has been the discretion that matters. As long as this remains true, state and local arrest authority for immigration crimes reflects assumptions that have the potential to supersede much federal control over immigration enforcement. This consequence of state and local arrests assumes great practical importance when the lessons from Gonzales are applied to federal programs – such as § 287(g) agreements and Secure Communities – in which state and local nonimmigration arrests expose noncitizens to federal immigration enforcement. Though federal decisionmakers may exercise greater and more regularized discretion in response to a larger state and local role, such federal discretion will be fundamentally reactive. Any federal policy that allows state and local governments to be gatekeepers – to permit state and local priorities to decide which noncitizens will be exposed to federal immigration enforcement – risks abdication of federal authority over immigration.

Number of Pages in PDF File: 40

Keywords: SB 1070, immigration law, criminal law, immigration enforcement, immigration federalism, local immigration prosecution, discretionary immigration relief, secure ommunities, 287(g) agreements, immigration crimes, immigration arrest, civil-criminal distinction

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Date posted: August 26, 2011  

Suggested Citation

Motomura, Hiroshi, The Discretion That Matters: Federal Immigration Enforcement, State and Local Arrests, and the Civil-Criminal Line (August 19, 2011). UCLA Law Review, Vol. 58, p. 1819, 2011; UCLA School of Law Research Paper No. 11-26. Available at SSRN: http://ssrn.com/abstract=1912912

Contact Information

Hiroshi Motomura (Contact Author)
University of California, Los Angeles - School of Law ( email )
385 Charles E. Young Dr. East
Room 1242
Los Angeles, CA 90095-1476
United States
310-206-5676 (Phone)
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