Kris W. Kobach
Professor of Law
Missouri-Kansas City School of Law
House Committee on International Relations,
Subcommittee on International Terrorism and
Kobach's testimony is based on his May 24, 2006, Heritage
Foundation WebMemo "Terrorist Loophole: Senate
Bill Disarms Law Enforcement.")
Mr. Chairman and
Members of the Committee, it is an honor and privilege to appear
before you today to discuss border vulnerabilities, international
terrorism, and the effect that Senate Bill 2611 would have on both.
I come before you today in my capacity as a Professor of
Constitutional Law and Immigration Law. I am also a practicing
attorney who litigates regularly in the area of immigration and
federal preemption. Between 2001 and 2003, I served as Counsel to
the U.S. Attorney General at the Department of Justice. In
that capacity, I was the Attorney General's chief adviser on
immigration law. However, my testimony should not be taken to
represent the past or present position of the U.S. Department of
Justice. I offer my testimony solely in my private capacity as a
Professor of Law.
I will focus my
testimony on two subjects-the authority of state and local police
to make immigration arrests in the war on terrorism, and the
importance of physical barriers on our border in the war on
terrorism. However, I will be happy to answer questions on any
aspect of Senate Bill 2611 or immigration law generally.
II. The Authority of State and Local Police to Make
Immigration Arrests in the Status Quo
It has long been
widely recognized that state and local police possess the inherent
authority to arrest aliens who have violated criminal
provisions of the INA. Once the arrest is made, the police officer
must contact federal immigration authorities and transfer the alien
into their custody within a reasonable period of time.
confusion has existed in recent years is on the question of whether
the same authority extends to arresting aliens who have violated
civil provisions of the INA that render an alien deportable. This
confusion was, to some extent, fostered by an erroneous 1996
opinion of the Office of Legal Counsel (OLC) of the Department of
Justice, the relevant part of which has since been withdrawn by
OLC. However, the law on this question is now quite clear. As the
OLC concluded and the Attorney General announced in 2002, arresting
aliens who have violated either criminal provisions of immigration
law or civil provisions that render an alien deportable "is within
the inherent authority of the states." And
such inherent arrest authority has never been preempted by
has been confirmed by every court to squarely address the issue.
Indeed, it is difficult to make a persuasive case to the contrary.
The source of this authority flows from the states' status as
sovereign entities. It stems from the basic power of one sovereign
to assist another sovereign. This is the same inherent authority
that is exercised whenever a state law enforcement officer
witnesses a federal crime being committed and makes an arrest. That
officer is not acting pursuant to delegated federal power. Rather,
he is exercising the inherent power of his state to assist another
The Ninth and
Tenth Circuits have expressed this understanding in the immigration
context specifically. In Gonzales v. City of Peoria, the
Ninth Circuit opined in an immigration case that the "general rule
is that local police are not precluded from enforcing federal
statutes," 722 F.2d 468, 474 (9th Cir. 1983). As the
Tenth Circuit has described it, there is a "preexisting general
authority of state or local police officers to investigate and make
arrests for violations of federal law, including immigration laws,"
United States v. Vasquez‑Alvarez, 176 F.3d 1294, 1295
(10th Cir. 1999). And again in 2001, the Tenth Circuit reiterated
that "state and local police officers [have] implicit authority
within their respective jurisdictions 'to investigate and make
arrests for violations of federal law, including immigration
laws.'" United States v. Santana-Garcia, 264 F.3d 1188, 1194
(citing United States v. Vasquez‑Alvarez, 176
F.3d 1294, 1295). None of these Tenth Circuit holdings drew any
distinction between criminal violations of the INA and civil
provisions that render an alien deportable. Rather, the inherent
arrest authority extends generally to both categories of federal
immigration law violations.
that this inherent state arrest authority exists, the second
question is whether such authority has been preempted by Congress.
Because Congress possesses plenary power over immigration, Congress
may displace or preempt this arrest authority if it so chooses. In
2002, the OLC concluded that such preemption has not occurred,
either with respect to criminal violations of immigration law or
The Tenth Circuit
has issued several opinions on the subject, all pointing to the
conclusion that Congress has never sought to preempt the states'
inherent authority to make immigration arrests for both criminal
and civil violations of the INA. The most salient case on the
preemption question is U.S. v. Vasquez-Alvarez: the
"legislative history does not contain the slightest indication that
Congress intended to displace any preexisting enforcement powers
already in the hands of state and local officers." 176 F.3d 1294,
1299 (10th Cir. 1999). Two years later, the Tenth Circuit
reiterated in United States v. Santana-Garcia, that federal
law "evinces a clear invitation from Congress for state and local
agencies to participate in the process of enforcing federal
immigration laws." 264 F.3d 1188, 1193 (10th Cir. 2001)
(quoting Vasquez-Alvarez, 176 F. 3d at 1300). The Fifth
Circuit has reached substantially the same conclusion in Lynch
v. Cannatella, 810 F.2d 1363, 1367 (5th Cir.
I have recently
published an extensive law review article on this subject.
Copies are available for any Members of the Committee who are
interested in exploring the subject further.
III. The Importance of Local Arrest Authority in the War
One of most
important lessons that our country learned on 9/11 was that state
and local police can make the difference between an unsuccessful
terrorist plot and an attack that kills 3,000.
In the aftermath
of the attack, we learned that five of the nineteen hijackers had
violated federal immigration laws while they were in the United
States. All five terrorists committed civil, not criminal,
immigration violations. Amazingly, four of the five were
actually stopped by local police for speeding. All four terrorists
could have been arrested, if the police officers had asked the
right questions and realized that they were illegal aliens. To see
just how critical a role state and local police can play, consider
two of the 9/11 hijackers.
Ziad Jarrah was the man at the flight controls of United Airlines
Flight 93, which crashed in rural Pennsylvania. Jarrah first
entered the United States in June 2000 through the Atlanta airport,
on a tourist visa. He immediately violated federal immigration law
by taking classes at the Florida Flight Training Center in Venice,
Florida. He never applied to change his immigration status from
tourist to student. He was therefore detainable and removable from
the United States almost from the moment he entered the
country. Jarrah committed his second immigration violation six
months later-when he overstayed the period he was authorized to
remain in the United States on his tourist visa.
successfully avoided contact with state and local police for more
than fourteen months. However, at 12:09 A.M. on September 9, 2001,
two days before the attack, he was clocked at 90 miles-per-hour in
a 65 miles-per-hour zone on Highway 95 in Maryland, 12 miles south
of the Delaware state line. He was traveling from Baltimore to
Newark, in order to rendezvous with the other members of his
trooper did not know about Jarrah's immigration violations. Had the
officer asked a few questions, such as what Jarrah's immigration
status was, or simply made a phone call to the federal government's
Law Enforcement Support Center (LESC)-which operates around the
clock from Williston, Vermont-he could have arrested Jarrah.
Instead, the trooper issued a Jarrah a $270 speeding ticket and let
him go. The ticket would be found in the glove compartment of the
car at Newark Airport two days later, left behind when Jarrah
boarded Flight 93.
Or consider the
case of Saudi Arabian terrorist Nawaf al Hazmi. Hazmi was the
second-in-command of the 9/11 attackers, and a back-up pilot. He
entered the United States through the Los Angeles International
Airport on a tourist visa in January 2000. He rented an apartment
with fellow hijacker Khalid Almihdhar in San Diego and lived there
for more than a year. As with Jarrah, his period of authorized stay
expired after six months. After July 14, 2000, Hazmi would be in
the United States illegally. In early 2001, he moved to Phoenix,
Arizona, to join another 9/11 hijacker, Hani Hanjour.
On April 1, 2001,
Hazmi was stopped for speeding in Oklahoma while traveling cross
country with Hanjour. Had the officer asked Hazmi a few basic
questions or asked to see Hazmi's visa, he might have discovered
that Hazmi was in violation of U.S. immigration law at the time.
Once again, the officer could have detained him. The officer also
had the authority to detain Hanjour, who had entered the country on
a student visa, but never showed up for classes.
All of the 9/11
hijackers' encounters with local law enforcement were missed
opportunities of tragic dimension. If even one of the police
officers had made an arrest, the terrorist plot might have
It is important to
remember that the civil violations of the five 9/11 hijackers were
similar to the actions of earlier terrorists. For example, in 1989,
Kuwaiti terrorist Eyad Ismoil entered the United States on a
student visa and enrolled at Wichita State University in Kansas.
After three semesters he dropped out and worked with other members
of his terrorist cell to prepare for the 1993 attack the World
Trade Center. At that point he committed a civil immigration
violation and was thereafter out of status. He ultimately drove the
van that carried the bomb. That explosion killed six people and
wounded more than 1,000 others.
across the country responded to the lessons of 9/11 and to the OLC
opinion by exercising their inherent arrest authority with renewed
determination. The number of calls to the LESC by local police
officers who had arrested illegal aliens nearly doubled in the
ensuing years, from 309,489 in FY 2002, to over 504,678 in FY 2005.
Put differently, in FY 2005 local police were calling LESC to check
an alien's status an average of 1,383 times a day. Local police
have become a crucial force multiplier in the enforcement of
federal immigration laws.
But Senate Bill 2611, if passed, would stop local police from
protecting the American public in this way.
IV. The Dangerous
Effect of Section 240D and Section 154
Buried deeply in
the Senate Bill is a provision would disarm America's state and
local police in the war against terrorism. Section 240D contains a
statement that would have the effect of barring state and local
police officers from making arrests for civil violations of
immigration law-precisely the sort of violations that terrorist
have demonstrated a propensity to commit.
states: "Notwithstanding any other provision of law, law
enforcement personnel of a State, or a political subdivision of a
State, have the inherent authority of a sovereign entity to
investigate, apprehend, arrest, detain, or transfer to Federal
custody … an alien for the purpose of assisting in the
enforcement of the criminal provisions of the immigration
laws of the United States…. This State authority has never
been displaced or preempted by Federal law." (Emphasis added.)
sends an unmistakable message to the courts. Making arrests for
criminal provisions of immigration law "has never been
displaced… by Federal law," but making arrests for civil
provisions has been displaced. No other conclusion can be drawn
from the Senate's limitation of this authority to criminal
violations only. A fundamental principle of statutory
interpretation, one routinely applied in courts across the country,
is "Inclusio unius est exclusion alterius." (The inclusion
of one is the exclusion of another.) Where a statute expressly
describes a particular situation in which it applies, an
irrefutable inference must be drawn that what is omitted or
excluded was intentionally omitted or excluded. I say this with the
experience of having litigated numerous preemption cases in both
state and federal court. This provision would be interpreted by any
court as stripping arrest authority from the police in cases of
Section 240D would
restrict local police to arresting aliens for criminal violations
of immigration law only, not civil violations. The results would be
disastrous, and would significantly undermine the United States in
the war on terrorism.
As noted already,
all of the five 9/11 hijackers who committed immigration violations
committed civil violations. Under the Senate Bill, police
officers would have no power to arrest such terrorists.
Moreover, as a
practical matter, Senate Bill 2611 would discourage police
departments from playing any role in immigration
enforcement. Most police officers (indeed, most lawyers) do
not know which violations are criminal and which violations are
civil. There is no particular logic to the distinctions.
Overstaying a visa (something hijackers from the Middle East are
more likely to do) is a civil violation, but marriage fraud is a
criminal violation. Which one is more dangerous to national
arresting the wrong type of illegal alien-and getting sued as a
result-many police departments will stop helping the federal
government altogether. That development would have a crippling
effect in our efforts to locate alien terrorists on American
Section 240D could
have been worded, and could be fixed by stating, "criminal and
civil provisions of the immigration laws." However, without
this modification, it should not be enacted-unless Congress intends
to strip local police of this arrest authority.
problematic is Section 154 of Senate Bill 2611. This provision
follows a section authorizing grants of federal funds to law
enforcement agencies within 100 miles of the United States border.
The grants are limited to dealing with "criminal activity" stemming
from illegal immigration. Section 154 imposes the following caveat:
"Nothing in this section shall be construed to authorize State or
local law enforcement agencies of their officers to exercise
Federal immigration law enforcement authority."
This provision not
only contradicts the recognition of inherent arrest authority for
criminal violations in Section 240D, it also misunderstands the
nature of the states' inherent authority. States need not be
authorized to make immigration arrests. States may be authorized to
exercise broader enforcement powers (beyond arrest,
detention, and transportation to federal authorities, as is
permitted under 8 U.S.C. § 1357g). But it is difficult to see
how the preceding sections could be construed as including the full
panoply of enforcement powers possessed by federal officers.
At best, Section
154 is nonsensical, ambiguous, and unnecessary. At worst, it could
prompt a wayward court to conclude that all local arrest authority
has been preempted. Regardless, its ambiguous terms should not be
enacted into law.
V. Holes in the
Wall-Sections 106, 114, and 117
In the years since
the 9/11 attacks, the Department of Justice and later the
Department of Homeland Security dramatically increased the scrutiny
of aliens entering the United States legally through our ports of
entry. I was personally involved in these efforts during my service
in the Department of Justice. However, we knew then, and we know
now, that our terrorist enemies would react to this increased
security at ports of entry by relying more heavily on the practice
of entering without inspection by sneaking across the border.
It is undeniable
that terrorists have entered the United States by crossing our land
borders illegally. The empirical evidence of terrorist entry is
significant. Several cases are now publicly known. For example, on
January 15, 2004, Mahmoud Kourani was indicted in Dearborn,
Michigan, for conspiring to provide material support to a terrorist
organization (Hezbollah). He had entered the United States by
bribing a Mexican official to provide him a visa to enter Mexico,
and then paying a coyote to smuggle him across the border into the
United States. Kourani came to the attention of the INS while
living with other illegal aliens in Dearborn and was initially
imprisoned on immigration charges. It was later learned that he had
trained with Hezbollah in Iran and Lebanon and was raising money
for Hezbollah in the United States.
Another example that
has been made public is that of Al Qaeda terrorist Farida Ahmed. On
July 19, 2004, Ahmed was arrested in McAllen, Texas after crossing
into the United States three days earlier. She had waded across the
Rio Grande, and was bound for New York City. Terrorists know all
about our porous southern border, and these cases demonstrate how
effectively they have exploited it. And since 9/11 we have
increased our security at ports of entry, which makes illegal
border crossing an even more attractive means of entry. Moreover,
we know that Hezbollah and Hamas maintain an active presence in the
tri-border region of Brazil, Argentina, and Paraguay.
In addition to
these specific cases, there are statistics suggesting that the
number of terrorists crossing our southern border may be much
higher than we think. In Fiscal Year 2005, the Border Patrol
Apprehended 3,722 aliens from nations that are either designated
state sponsors of terrorism or places in which Al Qaeda has
We also know that for every one alien the Border Patrol apprehends,
there may be three aliens who are not caught. If this is the case,
then more than 10,000 aliens from high-risk, terrorist-associated
countries illegally entered the United States in FY 2005. Obviously
the majority of these aliens are not terrorists. But if only one in
a thousand were, that would still be ten terrorists who
successfully crossed our borders.
of additional fencing on the borders is an absolutely essential
response to this terrorist threat. Physical walls have been shown
to dramatically reduce the flow of illegal aliens into the United
States, in those sectors where substantial walls exist.
Senate Bill 2611 makes it unlikely that any significant
construction of border fencing will occur in the near future. There
are three sections that ensure this outcome: Sections 106, 114, and
Section 106 is
problematic because it calls for such a restricted amount of
additional fencing. Subsection 106(c) calls for only 370 miles of
fencing. However, it states that the 370 miles may include the
fencing already constructed in the San Diego, Tucson, and Yuma
sectors. As a result, if in any construction actually
occurred, it would likely be far less than 370 miles of additional
fencing. This stands in stark contrast to the approximately 700
miles of additional fencing required by House Bill 4437.
further reduces the amount of fencing that would be constructed by
diverting available resources to Mexico's southern border.
Subsection 114(b)(2) requires the U.S. government "to provide
needed equipment, technical assistance, and vehicles to manage,
regulate, and patrol" the border between Mexico and Guatemala and
Belize. In an environment of scarce fiscal resources, these
expenditures would likely cut into the funds available to build
infrastructure on the United States border.
greatest impediment to the construction of fencing is found in
Section 117, primarily in subsection (d). This section creates a
massive and unusual consultation requirement that must be satisfied
"before the commencement of any construction." It stipulates that
U.S. officials at the federal, state, and local level must consult
with their counterparts in Mexico. I know of no other provision in
U.S. law where the federal government attempts to compel state and
local governments to engage in consultation as a prerequisite to
action at the federal level. This aspect of Section 117(d) is an
open invitation to delay construction indefinitely by bringing a
Tenth Amendment lawsuit challenging the compelled consultation
requirement under the "commandeering" theory laid out by the
Supreme Court in New York v. United States, 505 U.S. 144
(1992) and Printz v. United States, 521 U.S. 898 (1997).
also enumerates the goals to be achieved by the consultation,
including "solicit[ing] the views of affected communities." This
provision would likely operate similarly to a comment period
requirement in regulatory law. These requirements have the effect
of significantly slowing the promulgation of regulations (which is
intended). The same effect would result here-the creation of
significant delays in the construction of any fencing.
requirement would create a massive impediment to the beginning of
any construction. Because the State Department is the primary
agency responsible for ensuring that this requirement is met, it is
highly likely that the consultation will proceed extremely slowly.
Based on my experience fulfilling interagency consultation
requirements on behalf of the Department of Justice, I anticipate
that the State Department would proceed extremely slowly and would
defer to any assertion by the Mexican government that consultation
A defender of
Senate Bill 2611 might answer this complaint by pointing to the
two-year time deadline for completion of construction, found in
Section 106(d). This answer is unpersuasive. In my experience
working in the executive branch, I know of many deadlines that the
government failed to meet (e.g., the comprehensive entry-exit
system, which is still not completed). However, I know of no
instances in which interagency consultation did not occur. This is
due to the intrinsic nature of the executive branch, with competing
agencies battling for control of policy. When parties to the
consultation have differing perspectives on an issue, one party
will always insist that additional consultation must occur. When a
foreign power is added to a consultation requirement, this delaying
effect is likely to be multiplied many times over.
In summary, because
of these provisions in Senate Bill 2611, it is unlikely that
construction on any fencing would begin quickly. If and when any
construction occurred, the amount of fencing would be grossly
inadequate to meet the very real threat of terrorists covertly
crossing our southern border.