Government memo: Police have inherent right to enforce immigration laws

Associated Press Writer

NEW YORK- The Justice Department believes state and local police have the right to enforce federal immigration laws, according to a government memo released Wednesday by the American Civil Liberties Union.

The ACLU said the Justice Department opinion makes the "sweeping and unprecedented" legal argument that state and local law enforcement officers can arrest anyone who violates a federal law.

"We therefore do not believe that the authority of state police to make arrests for violation of federal law is limited to those instances in which they are exercising delegated federal power," the memo says.

A Justice Department spokesman had no immediate comment.

A coalition of civil and immigrants' rights groups received the memo under court order in July after suing under the Freedom of Information Act.

Then-Attorney General John Ashcroft and his staff had repeatedly used the memo to justify a decision to start letting local police arrest people after traffic stops and other encounters if they were found to have committed civil immigration violations, such as overstaying a visa.

The ACLU said the memo, by then-Assistant Attorney General Jay S. Bybee, stretched the definition of local law enforcers' roles so far that it could be used to justify giving them the right to enforce the U.S. tax code, environmental rules and other federal laws.

"That result is simply absurd," the group said in a statement released with a government-redacted copy of the memo.

The 2002 opinion reversed a 1996 letter of advice from the Justice Department's Office of Legal Counsel, which said that state and local police could enforce only criminal immigration violations such as sneaking across a border.

Bybee wrote Ashcroft three years ago that the Office of Legal Counsel had determined that its initial decision was wrong. It was based on three state and federal appeals court rulings, a federal law and a previous internal opinion.

"We believe that the authorities we cited in the 1996 OLC opinion provide no support for our opinion," that state police could not enforce civil immigration laws, wrote Bybee, who later became a federal judge.

Bybee made headlines around the world by arguing in a Jan. 22, 2002, memo that the president has the power to issue orders that violate the Geneva Conventions and international and U.S. laws prohibiting torture.

The government argued that the Justice Department was not required to release Bybee's immigration memo because it had not formally adopted the document and because of attorney-client privilege.

An appeals court rejected both arguments, saying it could not let the government "make public use of the memorandum when it serves the department's ends but claim the attorney-client privilege when it does not."

The court noted that Ashcroft and his representatives used the memorandum to justify and explain the department's policy of expanded local immigration powers.

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