On July 6, 2010 Attorney General Eric Holder and the Department of Justice, filed a suit against the State of Arizona on behalf of President Obama asking the Federal Courts to rule the Arizona law referred to as SB 1070, the so called “Arizona Immigration Law” unconstitutional.
This writer asserts that the Obama Administration is attempting to usurp powers granted by the Constitution to the Congress, specifically, the power granted to Congress to act as this Country’s legislative body.
This writer asserts that the Obama Administration’s suit against Arizona is intended to accomplish the following;
1) Impede and prevent the implementation of laws and Agency regulations passed by Congress and signed into law by prior Administrations; specifically, to impede the enforcement of statutes and administrative regulations formulated after the terrorists attacks of September 11, 2001, statutes that were based on the recommendations of the 911 Commission. http://en.wikipedia.org/wiki/9/11_Commission
Coincidently, Holder’s Justice Department has assigned the case to Justice Department attorney Tony West is a member of the so-called “Gitmo 9″ — a group of lawyers who have represented terror suspects. West, the assistant attorney general for the department’s Civil Division, once represented “American Taliban” John Walker Lindh. http://www.foxnews.com/politics/2010/07/08/ex-terror-lawyer-lead-arizona-immigration-law/
2) Facilitate policies and regulations not approved by Congress by creating the legal fiction that the Executive Branch has the authority to selectively enforce the laws of the United states. Specifically, that the Administration can controvert the Immigration Laws passed by Congress and implement a “de facto” amnesty and “open borders policy” through a dereliction of its duties to enforce those laws specifically passed by Congress.
The Executive Branch’s continued lamentation that, “Comprehensive Immigration Reform” is needed is immaterial to the duty of the Executive Branch to faithfully enforce the provisions of the last “Comprehensive Immigration Reform” passed by Congress. Simply because the Administration dislikes the last “Comprehensive Reform’ does not excuse the Administration from enforcing it.
3). That the Administration continues in a well established set of actions to undermine the statutory and regulatory provisions passed by Congress and implemented by prior the Administration, actions that are directed toward securing American’s borders and identifying terrorists threats to this Country. That while the Administrations current actions are consistent with the Administration’s belief that a “war on terror” never existed, those same actions are “unconstitutional” when they impede the enforcement of ststutes passed by Congress and signed into law.
The United States Constitution does not empower the Executive Branch to act unilaterally to impede or prevent the implementation of laws passed by Congress, because the current Administration refuses to acknowledge the existence of an international terrorists threat, that Islamic jihadist exists, that “terrorist acts” rather than ”manmade disasters” happen and that the Executive Branch is required by the solemn oath taken by its members before they assumed their offices to “protect and defend the constitution of these United States”.
The DOJ Lawsuit
The suit filed by Attorney General Eric Holder on Behalf of President Obama can be viewed here: http://legaltimes.typepad.com/files/usa_v_arizona.pdf
The lawsuit states three specific, “causes of action”, which the Department of Justice claims are unconstitutional. Those ”causes of action” can be read on pages 23 & 24.
The “first cause of action” alleges a “violation” of the Supremacy Clause of the Constitution.
The “second cause of action” alleges a “violation” of the “Preemption clause” of the Constitution.
The “third cause of action” alleges a “violation” of the “Commerce clause” of the Constitution.
Obama Administration and Attorney General Holder’s DOJ did not allege “racial discrimination” or “racial profiling” in this lawsuit.
The 25 page lawsuit fails to mention “racial profiling” or “discrimination” even once, giving light to the fact that the Obama Administration knew the claims of “profiling” and “discrimination” to be false from the very beginning – The Administration’s failure to even allege “discrimination” or to allege “racial profiling” in the suit, proves that those false claims were known to be false, in fact, the claims were nothing more than the Obama Administration’s “playing of the race card” in an attempt to exploit racial divisions in this Country for their political advantage.
The DOJ suit rests solely on a claim that the Arizona Law is pre-empted by Congress’ right to formulate immigration quotas and immigration criteria for foreign nationals to be admitted to the U.S..
The lawsuit fails to acknowledge or mention the numerous areas of “concurrent jurisdiction” over our immigration laws shared by the Federal and State Governments. The “suit” reads as if the “drafters” of the suit had never read the 1996 Comprehensive Immigration reform Act.
The Supremacy Clause Article VI, Clause 2
A State law will be found to violate the supremacy clause when either of the following two conditions (or both) exist:
- Compliance with both the Federal and State laws is impossible, or
- “…state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress…”
Supremacy Clause (Article VI, clause 2) – The Preemption doctrine
Express preemption occurs only when a federal statute explicitly states Congress’s intention to preempt or replace state law.
Implied preemption can occur in two ways: field preemption or conflict preemption.
1. Conflict preemption: Conflict arises when it is impossible to comply with both the state and federal regulations
2. Field preemption: Even without a conflict between federal and state law or an express provision for preemption, the courts will infer an intention to preempt state law if the federal regulatory scheme is so pervasive as to warrant an inference that Congress did not intend the states to supplement it.
The Concurrent Jurisdiction of Federal & State Governments Enforcement of U.S. Immigration Laws – Pre: 09-11-2001
On April 23, 2002, the U.S. Department of Justice, Office of Legal Counsel (OCL) issued a memorandum concerning the issue of Federal Preemption of concurrent State enforcement of criminal and civil viloations under the Immigration Laws of the United States.
That memo, which can be viewed here: http://www.aclu.org/files/FilesPDFs/ACF27DA.pdf states, ““[A]rresting aliens who have violated criminal provisions of [the INA] or civil provisions that render an alien deportable . . . is within the inherent authority of the states.”. This declaration is in direct contrast to what has been alleged in the Obama Adminstration’s lawsuit filed by the Department of Justice headed by Attorney General Eric Holder.
States are Sovereign entities, just like the Federal Government. States are said to have their own “inherent powers”, “rights” and “obligations”.
“Arresting aliens who have violated either criminal provisions of the INA or civil provisions that render an alien deportable is within the inherent authority of the states. Additionally, such inherent arrest authority has never been preempted by Congress. This conclusion has been confirmed by every court to squarely address the issue. Indeed, it is difficult to make a persuasive case to the contrary. This inherent arrest authority has been possessed and exercised by state and local police since the earliest days of federal immigration law.” At page 183. http://www.irli.org/ForceMultiplrKobach.pdf
The Inherent Arrest Authority Possessed By The States
In assessing the authority of local police to make immigration arrests, the initial question is whether the states have inherent power to make arrests for violations of federal law. That is, may state and local police and law enforcement officials, exercising state law authority only, make arrests for violations of federal law, or do they possess the power to make such arrests only if they are exercising delegated federal power? At page 200. http://www.irli.org/ForceMultiplrKobach.pdf
The Federal Courts have answered this question clearly: The States have an independent authority to arrest individuals for violating Federal law.
The source of this authority flows from the states’ status as sovereign governments possessing all residual powers not abridged or superseded by the U.S. Constitution. The source of the state governments’ power is entirely independent of the U.S. Constitution.
(See: Sturges v. Crowninshield, 17 U.S. (4 Wheat.) 122, 193 (1819) (finding “powers proceed, not from the people of America, but from the people of the several states; and remain, after the adoption of the constitution, what they were before”).
The source of this authority flows from the states’ status as sovereign governments possessing all residual powers not abridged or superseded by the U.S. Constitution. The source of the state governments’ power is entirely independent of the U.S. Constitution. Moreover, the enumerated powers doctrine that constrains the powers of the federal government does not so constrain the powers of the states. See: Sturges v. Crowninshield, 17 U.S. (4 Wheat.) 122, 193 (1819)
Rather, the states possess broad “police powers,” which need not be specifically enumerated. Police powers are “an exercise of the sovereign right of the Government to protect the lives, health, morals, comfort and general welfare of the people.” Manigault v. Springs, 199 U.S. 473, 480 (1905).
Essentially, states may take any action to protect these interests (consistent with their own constitutions and laws) unless there exists a prohibition in the U.S. Constitution or such action has been preempted by federal law. See ERWIN CHEMERINSKY, CONSTITUTIONAL LAW: PRINCIPLES AND POLICIES 282–83 (1997).
It is well established that the authority of state police to make arrests for violations of federal law is not limited to situations in which state officers are exercising power delegated by the federal government to the states. Rather, it is a general and inherent authority based on the fact that the states retain their sovereignty in the U.S. constitutional framework. The states’ arrest authority is derived 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 sovereign.
There is abundant case law on this point. Even though Congress has never authorized state police officers to make arrest for federal offenses without an arrest warrant, such arrests occur routinely. Further, the Supreme Court has recognized that state law controls the validity of such an arrest. As the Court concluded in United States v. Di Re, 332 U.S. 581, 591 (1948).
No act of Congress lays down a general federal rule for arrest without warrant for federal offenses. None purports to supersede state law. And none applies to this arrest which, while for a federal offense, was made by a state officer accompanied by federal officers who had no power of arrest. Therefore the New York statute provides the standard by which this arrest must stand or fall. 332 U.S. 581, 591 (1948).
As the Seventh Circuit explained in United States v Janik, United States v. Janik, 723 F.2d 537, 548 (7th Cir. 1983) “[state] officers have implicit authority to make federal arrests.” Accordingly, they may initiate an arrest on the basis of probable cause to believe that an individual has committed a federal offense. United States v. Janik, 723 F.2d 537, 548 (7th Cir. 1983).
The Ninth and Tenth Circuits have reached the same conclusion in the immigration context specifically. In Gonzales v. City of Peoria, 722 F.2d 468, 474 (9th Cir. 1983), the Ninth Circuit opined with respect to immigration arrests that “[t]he general rule is that local police are not precluded from enforcing federal statutes.”
The Tenth Circuit has reviewed this question on several occasions, concluding squarely in 1984 that “[a] state trooper has general investigatory authority to inquire into possible immigration violations.” United States v. Salinas-Calderon, 728 F.2d 1298, 1301 n.3 (10th Cir. 1984).
As the Tenth Circuit characterized this arrest power in 1999, 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 (10th Cir. 2001) (quoting Vasquez-Alvarez, 176 F.3d at 1295).
None of these Tenth Circuit holdings drew any distinction between criminal violations of the INA and civil provisions that render an alien deportable. Indeed, in all of the cases, the officers involved inquired generally into possible immigration violations, often arresting without certainty as to whether the aliens’ immigration violations were of a civil or criminal nature. Rather, the court described an inherent arrest authority that extends generally to all immigration violations.
A. The Framework of Preemption Analysis: Having established that this inherent state arrest authority exists, the second question is whether such authority has been preempted by Congress. In conducting a preemption analysis, courts must look for
(1) Express preemption by congressional statement,
(2) Field preemption where the federal regulatory scheme is “so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it,” or
(3) Conflict preemption, where compliance with both state and federal law is impossible or state law prevents the accomplishment of congressional objectives. Gade v. Nat’l Solid Wastes Mgmt. Ass’n, 505 U.S. 88, 98 (1992) (plurality opinion)(quoting Fidelity Fed. Sav. & Loan Ass’n v. De la Cuesta, 458 U.S. 141, 153 (1982)).
In all three categories, manifest congressional intent must be demonstrated for preemption to exist. Every preemption inquiry must “start with the assumption that the historic police powers of the States [are] not to be superseded by . . . Federal Act unless that [is] the clear and manifest purpose of Congress.” Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516 (1992) (alteration in original) (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947)).
The Supreme Court has consistently reiterated that “‘[t]he purpose of Congress is the ultimate touchstone’” of preemption analysis. (Congress, not the Executive Branch). Malone v. White Motor Corp., 435 U.S. 497, 504 (1978) (quoting Retail Clerks v. Schermerhorn, 375 U.S. 96, 103 (1963))
Moreover, in the context of state arrests for violations of federal law, there is a particularly strong presumption against preemption. Normal preemption cases involve: (1) state legislation (2) that is at odds with federal purposes or statutes.
However, state arrests for violations of federal law involve: (1) state executive action (2) that is intended to assist the federal government in the enforcement of federal law. The starting presumption must be that the federal government did not intend to deny itself any assistance that the states might offer.
This presumption was articulated in 1928 by Second Circuit Judge Learned Hand, who stated that “it would be unreasonable to suppose that [the federal government’s] purpose was to deny itself any help that the states may allow.” Marsh v. United States, 29 F.2d 172, 174 (2d Cir. 1928).
B. Congressional Actions Evincing an Intent to Preserve Inherent State Arrest Authority
Congress has repeatedly legislated in ways that indicate a recognition of the states’ inherent arrest authority and an intent not to preempt that authority. Five examples of congressional action in this regard are particularly salient:
First, in 1996 Congress expressly put to rest any suspicion that it did not welcome state assistance in making immigration arrests. Congress added section 287(g) to the INA,143 described above in Part II.G, providing for the establishment of written agreements with state law enforcement agencies to convey federal immigration enforcement functions to such agencies. In doing so, Congress reiterated its understanding that states and localities may make immigration arrests regardless of whether a 287(g) agreement exists. Congress stated that a formal agreement is not necessary for any officer or employee of a State or political subdivision of a State . . . to communicate with the Attorney General regarding the immigration status of any individual, including reporting knowledge that a particular alien is not lawfully present in the United States; or . . . otherwise to cooperate with the Attorney General in the identification, apprehension, detention, or removal of aliens not lawfully present in the United States. 8 U.S.C. § 1357(g)(10) (2000).
Second, in 1996 Congress anticipated that state and local law enforcement agencies would be apprehending and, at the request of federal immigration authorities, detaining illegal aliens.
Accordingly, in 8 U.S.C. § 1103(a)(9), Congress authorized the Attorney General to make payments to states for the detention of illegal aliens in non-federal facilities.145 And in 8 U.S.C. § 1103(c), Congress authorized the Commissioner of the INS to enter into any “cooperative agreements with State and local law enforcement agencies for the purpose of assisting in the enforcement of the immigration laws.” Id. § 1103(c).
Third, in 1994 Congress began appropriating funds for the creation of the Law Enforcement Support Center (LESC) in Williston, Vermont, which serves as an INS point of contact with local police officers who apprehend illegal aliens. (See Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations for 1997: Hearings Before a Subcomm. of the H. Comm. on Appropriations, 104th Cong. 1140 (1996) (testimony of Doris Meissner, INS Comm’r: The LESC was created in order to help local and state law enforcement agencies in ascertaining the immigration status of possible felons. In its first year, it received nearly 15,000 inquiries from its pilot state.).
The purpose of the LESC is expressly that of communicating with local law enforcement officers who make immigration arrests: The primary mission of the LESC is to support other law enforcement agencies by helping them determine if a person they have contact with, or have in custody, is an illegal, criminal, or fugitive alien. The LESC provides a 24/7 link between Federal, state, and local officers and the databases maintained by the INS. (Law Enforcement: Are Federal, State, and Local Agencies Working Together Effectively?: Joint Hearing Before the Subcomms. on Criminal Justice, Drug Policy and Human Resources; Government Efficiency, Financial Management and Intergovernmental Relations; and National Security, Veterans Affairs and International Relations of the H. Comm. On Government Reform, 107th Cong. 97 (2001).
The existence of the LESC is predicated on the assumption that state and local police will be making immigration arrests: When a law-enforcement officer arrests an alien, LESC
personnel are able to provide him or her with vital information and guidance, and if necessary, place the officer in contact with an ICE immigration officer in the field. The partnerships fostered by the LESC increase public safety.
Every day, they result in the apprehension of individuals who are unlawfully present in the United States, many of who have committed a crime and pose a threat to the local community or our Nation. (Department of Homeland Security Transition: Bureau of Immigration and Customs Enforcement: Hearing Before the Subcomm. on Immigration, Border Sec., and Claims of the H. Comm. on the Judiciary, 108th Cong. 12 (2003).
In Fiscal Year 2005, the LESC responded to a staggering 504,678 calls from state and local law enforcement officers.150 Put differently, that is an average of 1,383 calls per day.
Fiscal Year 2002, the LESC received 426,895 law-enforcement inquiries. These included 309,489 from state and local law enforcement, 24,646 inquiries regarding foreign nationals seeking to purchase firearms, and 24,646 investigative inquiries.”. (Department of Homeland Security Transition: Bureau of Immigration and Customs Enforcement: Hearing Before the Subcomm. on Immigration, Border Sec., and Claims of the H. Comm. on the Judiciary, 108th Cong. 12 (2003). At page 12.
Fifth, in 1996 Congress took steps to discourage those state and local law enforcement agencies that might seek to withhold their cooperation in making immigration arrests. In 1979, the City of Los Angeles had become the first major American city to adopt a so called “sanctuary policy.” Special Order 40 barred Los Angeles police officers from asking individuals about their immigration status and from conveying such information to the federal government. (Office of the Chief of Police of the L.A. Police Dep’t, Special Order No. 40 (Nov. 27, 1979), available at http://keepstuff.homestead.com/Spec40orig.html. The specific text of
Special Order 40 states: “[U]ndocumented alien status in itself is not a matter for police action. It is, therefore, incumbent upon all employees of this Department to make a personal commitment to equal enforcement of the law and service to the public, regardless of alien status.” Id. Special Order 40 further provides that LAPD officers may not “initiate police action with the objective of discovering the alien status of a person,” nor may they “arrest [or] book a person for [illegal entry into the United States].” Id.; see also Patrick McGreevy, LAPD Passes on Immigration; Commission Spurns Request for Increased Involvement in Handling Illegals, DAILY NEWS OF L.A., June 25, 1997 (highlighting the LAPD’s limited involvement in enforcing immigration laws).
In 1989, New York City enacted a similar policy by mayoral decree.162 Congress, concerned that such policies might proliferate, enacted two separate provisions designed to smooth the way for closer cooperation with state and local law enforcement, while preventing future sanctuary policies.163 Under 8 U.S.C. § 1373, enacted in part under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996,164 and 8 U.S.C. § 1644, part of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996,165 Congress expressly barred federal, state, and local entities from preventing their officials from exchanging information with federal immigration authorities regarding the immigration status or citizenship of any individual. In the Senate report accompanying this legislation, the intent to maximize cooperation between federal immigration authorities and state or local governments was clear: Effective immigration law enforcement requires a cooperative effort between all levels of government. The acquisition, maintenance, and exchange of immigration related information by State and local agencies is consistent with, and potentially of considerable assistance to, the Federal regulation of immigration and the achieving of the purposes and objectives of the Immigration and Nationality Act. (S. REP. NO. 104-249, at 19–20 (1996).
None of these actions suggested any distinction between civil and criminal violations of immigration law. Consequently, it is hardly surprising that no appellate court has expressly ruled that states are preempted from arresting aliens for civil violations of the INA. The only case that even comes close is the 1983 opinion of the Ninth Circuit in Gonzales v. City of Peoria. (722 F.2d 468 (9th Cir. 1983).
In Gonzales, the Ninth Circuit held that local police officers have the authority to arrest an alien for a violation of the criminal provisions of the INA if such an arrest is authorized under state law. (Id. at 476.)
Individuals of Mexican descent challenged a policy of the City of Peoria, Arizona that instructed the city’s police officers to arrest and detain aliens suspected of illegally entering the United States in violation of 8 U.S.C. § 1325—a criminal provision of federal immigration law. Id. at 474.
The court began with the “general rule . . . that local police are not precluded from enforcing federal statutes.” The court also observed that, “[w]here state enforcement activities do not impair federal regulatory interests (Id. at 475.) concurrent enforcement activity is authorized.” After conducting a preemption analysis to determine whether Congress had displaced this enforcement authority, the court concluded that no such preemption had occurred.
In upholding the city’s power to arrest aliens who violate criminal provisions of federal immigration law, the court stated, “There is nothing inherent in that specific enforcement activity that conflicts with federal regulatory interests.” In passing, the court “assume[d] that the civil provisions of the [INA] regulating authorized entry, length of stay, residence status, and deportation, constitute such a pervasive regulatory scheme, as would be consistent with the exclusive federal power over immigration.”
In other words, the civil provisions might implicitly preempt state arrest authority, under a field preemption theory. However, this possibility of field preemption with respect to civil provisions of the INA was merely an assumption, suggested without any analysis, and made in dicta—entirely outside of the specific holding of the case, which concerned a criminal arrest. It does not constitute binding precedent.
Furthermore, even if the Ninth Circuit had squarely reached this conclusion in 1983, such a holding would have been undermined by the court’s failure to apply the strong presumption against preemption discussed above. More importantly, the subsequent actions of Congress made such a holding unsustainable.
The Tenth and Fifth Circuits have 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 federal immigration law. The Tenth Circuit’s 1984 holding in the case of United States v. Salinas-Calderon, 728 F.2d 1298 (10th Cir. 1984) was the first to confirm the inherent arrest authority possessed by the states.
The defendant in Salinas-Calderon was the driver of a pickup truck who was stopped by a highway patrol officer in western Kansas for driving erratically. The officer suspected that Salinas was driving under the influence of alcohol. Salinas and his wife were in the cab; six passengers, none of whom spoke English, were in the bed of the pickup under an aluminum camper shell. Salinas did not possess a driver’s license and did not speak English. In talking with Salinas’ wife, the officer learned that Salinas was from Mexico and that they were traveling from Florida to Colorado. The officer asked her if Salinas possessed a “green card”; he did not. The officer then investigated the circumstances of the six passengers in the bed of the truck. All were from Mexico. None possessed any identification or documentation of their immigration status. The officer testified at trial that he suspected that the occupants of the vehicle were in violation of U.S. immigration law, but that he was unsure what the precise violation was. In his words, “I didn’t know exactly what I had.”The officer then contacted the INS and transferred the occupants of the vehicle to INS custody. Salinas was later charged with transporting illegal aliens within the United States. The defendant claimed that the state trooper did not have the authority to detain the transported passengers while he questioned them about their immigration status.
In rejecting this claim, the Tenth Circuit held that a “state trooper has general investigatory authority to inquire into possible immigration violations.” The court did not differentiate between criminal and civil violations. Plainly, because the officer was unsure what immigration law the aliens in the vehicle had violated, he did not know whether they had violated criminal or civil provisions of the INA. (The court also rejected the defendant’s contention that, because the officer lacked particular knowledge of immigration laws, “his call to the [INS] was tantamount to a fishing expedition.” Id. at 1301, The court held that the officer’s “lack of knowledge of the immigration laws does not preclude a finding of probable cause,” because “lack of experience does not prevent a police officer from ‘sensing the obvious.’” Id. (quoting United States v. Strahan, 674 F.2d 96, 100 (1st Cir. 1982))
Indeed, because there is no indication in the opinion that there was any reason to believe the alien passengers had committed any criminal violations, the court’s affirmation of general investigatory authority applies fully to civil as well as criminal violations. Salinas-Calderon, 728 F.2d at 1301.
United States v. Vasquez-Alvarez (10th Circuit) 176 F.3d 1294 (10th Cir. 1999). The Tenth Circuit’s most salient case on the preemption question is United States v. Vasquez-Alvarez, decided in 1999. In that case, an Edmond, Oklahoma, police officer arrested the defendant alien solely because he was an illegal alien. The day before the arrest, an INS agent eating dinner at a restaurant in the same city observed what appeared to be a drug transaction between the defendant and another individual near their vehicles in the restaurant parking lot. The next morning, the INS agent telephoned the police officer, described the vehicles involved, and asked him to investigate the situation. The INS agent also expressed suspicion that the defendant was in the country illegally. That night, the police officer went to the restaurant and saw the vehicles that had been described by the INS officer. He learned from the restaurant manager that the defendant owned one of the vehicles and was an employee of the restaurant. The officer questioned the defendant, who admitted that he was an illegal alien. The officer then arrested the defendant and transported him to the city jail, to be held there until the INS took him into custody.
The officer did not know at the time whether the defendant alien had committed a civil or criminal violation of the INA. It was later discovered that the defendant had illegally reentered the country after three prior deportations,206 in violation of 8 U.S.C. § 1326—a criminal violation. After his indictment, the defendant moved to suppress his post-arrest statements, fingerprints, and identification.He maintained that a local police officer is without authority to arrest an illegal alien unless the arrest meets the conditions listed in 8 U.S.C. § 1252c, and that because his arrest did not meet those conditions, the officer had arrested him without legal authority.208 Section 1252c authorizes state and local police to make a warrantless arrest and to detain an illegal alien if (1) the arrest is permitted by state and local law, (2) the alien is illegally present in the United States, (3) the alien was previously convicted of a felony in the United States and subsequently was deported or left the country, and (4) prior to the arrest the police officer obtains “appropriate confirmation” of the alien’s “status” from federal immigration authorities. According to the defendant’s theory, § 1252c displaced the authority of state police to make any immigration arrest that did not meet those four conditions.
The Tenth Circuit’s conclusion was unequivocal: § 1252c “does not limit or displace the preexisting general authority of state or local police officers to investigate and make arrests for violations of federal law, including immigration laws. Instead, § 1252c merely creates an additional vehicle for the enforcement of federal immigration law.” The court rejected the alien’s contention that all arrests by local police not authorized by § 1252c are prohibited by it. The court reviewed the legislative history of § 1252c and analyzed the comments of Representative John T. Doolittle, who sponsored the floor amendment containing the text that would become § 1252c.212
The court concluded that the purpose of the amendment was to overcome a perceived federal limitation on the states’ arrest authority. However, neither Doolittle, nor the government, nor the defendant, nor the court itself had been able to identify any such limitation. The interpretation of § 1252c urged by the defendant would have grossly distorted the manifest intent of Congress, which was to encourage more, not less, state involvement in the enforcement of federal immigration law. Reading into the statute an implicit congressional intent to preempt existing state arrest authority would have been utterly at odds with this purpose. Moreover, such an interpretation would have been inconsistent with subsequent congressional actions. As the Tenth Circuit noted, “in the months following the enactment of § 1252c, Congress passed a series of provisions designed to encourage cooperation between the federal Put succinctly, 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.” This holding is the most comprehensive analysis of the preemption question that any federal court has performed to date. The Supreme Court denied certiorari in Vasquez-Alvarez on October 4, 1999. United States v. Vasquez-Alvarez (10th Circuit) 176 F.3d 1294 (10th Cir. 1999). United States v. Santana-Garcia (10th Circuit) Vasquez-Alvarez v. United States, 528 U.S. 913 (1999).
In United States v. Santana-Garcia, shortly after its decision in Vasquez-Alvarez, the Tenth Circuit again confirmed the authority of local law enforcement to arrest individuals for immigration violations. Santana-Garcia presented the same question of local immigration arrest authority in a slightly different context. The aliens were not ultimately transferred to the INS; rather, the immigration violation justified continued detention during a traffic stop, which eventually led to the discovery of drugs in the aliens’ possession. The incident began when a Utah state trooper pulled a car over for running a stop sign.220 The driver was not in possession of a driver’s license and did not speak English. The passenger spoke only limited English. At that point, the trooper returned to his patrol car to request the assistance of a Spanish speaking trooper. While waiting for the Spanish-speaking trooper, the original trooper returned to the detained vehicle to ask the occupants about the ownership of the vehicle and their travel plans. They indicated that they were traveling to Colorado from Mexico. The trooper proceeded to ask whether they were “legal.” Both answered in the negative. After the second trooper arrived, the troopers questioned the occupants further and obtained their consent to search the vehicle. The troopers discovered drugs in the vehicle, behind the glove compartment and the dashboard radio.
At the suppression hearing, the first trooper testified as to the factors that led him to continue to detain the occupants of the vehicle beyond the initial reason for the stop.230 He did not mention their illegal presence in the United States. The district court suppressed the physical evidence of the drugs, concluding that the trooper could not have formed the requisite reasonable suspicion of criminal activity to justify the continued detention. The Tenth Circuit considered the question of whether the continued detention of the defendants on the basis of the immigration violation was permissible, regardless of whether the trooper articulated that basis for the detention.
The Tenth Circuit concluded that the officer “had probable cause to arrest Defendants for violations of state traffic and federal immigration law,” and that the continued detention was lawful.
The court reiterated its prior conclusion that “state and local police officers had implicit authority within their respective jurisdictions ‘to investigate and make arrests for violations of federal law, including immigration laws.’” (Id. at 1194 (quoting United States v. Vasquez-Alvarez, 176 F.3d 1294, 1295 (10th Cir. 1999)).
Once again, the Tenth Circuit observed that Congress has never preempted this authority: “[F]ederal law as currently written does nothing ‘to displace . . . state or local authority to arrest individuals violating federal immigration laws.’” Indeed the court reiterated that the opposite was true: “[F]ederal law ‘evinces a clear invitation from Congress for state and local agencies to participate in the process of enforcing federal immigration laws.’” Once again, the Court did not draw any distinction between criminal and civil provisions of federal immigration laws.
Similar facts led the Tenth Circuit to the same conclusion in another 2001 case, United States v. Hernandez-Dominguez. 41 F. App’x 185 (10th Cir. 2002)., Favela-Favela, 41 F. App’x at 191.
In 2002, the Tenth Circuit continued its unbroken line of case law affirming the power of state and local police to arrest individuals for violations of federal immigration laws in United States v. Favela-Favela. In that case, a Clinton, Oklahoma police officer observed a van with two people in the front seats and a female passenger apparently kneeling between the two front seats. The officer concluded that she was not wearing a seatbelt, based on her position in the vehicle. This constituted a violation of Oklahoma law. The officer stopped the van and when he stood near the driver’s door, he noticed that there were approximately twenty people inside the vehicle, well beyond the safe capacity of the van. He noted that the passengers avoided looking at him, which he regarded as unusual and suspicious behavior.
The Tenth Circuit concluded that the officer had formulated an objectively reasonable suspicion of illegal activity and that his question about the passengers’ immigration status was justified. More importantly, the court reaffirmed the general investigatory authority of the officer to inquire about possible immigration violations and to arrest and detain individuals on that basis. The officer did not know whether the aliens in the vehicle had committed civil or criminal violations of the INA; he merely suspected, and was later told, that they were not “legal.” Lynch v. Cannatella (5th Circuit) 810 F.2d 1363, 1367 (5th Cir. 1987).
The Tenth Circuit is without question the court that has most thoroughly explored the issue of inherent immigration arrest authority and whether such authority has been preempted. However, it is not alone in concluding that state and local law enforcement possess this authority. The Fifth Circuit has also recognized the inherent immigration arrest authority possessed by the states and has squarely rejected the suggestion that Congress has preempted such authority.
In Lynch v. Cannatella, 810 F.2d 1363, 1367 (5th Cir. 1987). , the Fifth Circuit considered a case involving sixteen Jamaican stowaways aboard a barge headed for ports on the Mississippi River. After they were discovered by the crew of the barge, the stowaways were detained for several days by the Port of New Orleans Harbor Police. Among other issues, the Fifth Circuit considered whether 8 U.S.C. § 1223(a) defined the sole process for detaining alien stowaways, thereby preempting the harbor police from detaining the illegal aliens. The Fifth Circuit’s conclusion was broad and unequivocal: “No statute precludes other federal, state, or local law enforcement agencies from taking other action to enforce this nation’s immigration laws.” Like the Tenth Circuit, the Fifth Circuit did not limit this authority to criminal provisions of federal immigration law. United States v. Rodriguez-Arreola (8th Circuit) 270 F.3d 611, 613 (8th Cir. 2001).
In addition to the Ninth, Tenth, and Fifth Circuits, one other circuit has weighed in on the matter, albeit indirectly. The Eighth Circuit has offered implicit support for the existence of local arrest and detention authority for violations of immigration law.
In United States v. Rodriguez-Arreola, (8th Circuit) 270 F.3d 611, 613 (8th Cir. 2001)the Eighth Circuit considered a case in which a South Dakota state trooper stopped a vehicle for speeding. The trooper asked the driver a variety of general questions, including whether he was a U.S. citizen or a resident alien. The driver stated that he was legally in the United States, but that he had left his green card at home. The trooper asked the passenger, Rodriguez, whether he was a legal resident. Rodriguez answered, “No.” The trooper then asked Rodriguez whether he had a green card, and Rodriguez answered, “No.” Then the trooper asked Rodriguez whether he was “here legally,” and Rodriquez again answered negatively. The trooper then detained the two individuals while he contacted the INS on his radio. The INS agent confirmed that the driver was a legal alien, but Rodriguez was in the country illegally. The trooper then gave the speeding ticket to the driver and allowed him to go. The trooper placed Rodriguez into custody and took him to a local jail facility to await INS processing.
Importantly, as the court noted, the trooper and the INS viewed this detention of the alien “as part of an administrative procedure, ”rather than as part of a criminal procedure. Accordingly, neither the trooper nor the INS informed Rodriguez of his Miranda rights during the traffic stop.
Rodriguez received notification of his Miranda rights later, when the INS elected to pursue criminal charges under 8 U.S.C. § 1326(a).274 The court held that the trooper “had reasonable suspicion to inquire into Rodriguez’s alienage” and that the district court erred in suppressing the evidence obtained during the traffic stop.
Thus, the Eighth Circuit implicitly recognized the authority of the state trooper to make an administrative immigration arrest (with the expectation that only civil removal, not criminal prosecution, would follow). If such authority did not exist, the arrest would not have been legal.
The Untenable Distinction Between Civil and Criminal Violations of the INA
No circuit court has ever directly held that the federal government has preempted the states from making arrests for civil violations of immigration law that render an alien removable. Such a claim of field preemption would have to establish that the civil provisions of federal immigration law create a pervasive regulatory scheme indicating congressional intent to preempt, while the criminal provisions do not. This claim is extremely difficult to make in the wake of Congressional legislation expressly recognizing local arrest authority and inviting local assistance in the enforcement of immigration law—particularly the legislation passed in 1996.
CRIMINAL & CIVIL INFRACTIONS FOR SAME OFFENSE
The overlap between civil and criminal provisions of immigration law is also demonstrated by the many actions in the immigration arena that trigger both civil and criminal penalties. For example, the creation of fraudulent or counterfeit immigration documents is a civil violation of immigration law under 8 U.S.C. § 1324c(d)(3),291 but it is also a criminal violation under 18 U.S.C. § 1546(a).292
The same may be said of employing illegal aliens. This action carries civil penalties administered through the civil proceedings described in 8 U.S.C. § 1324a(e). However, the employment of illegal aliens is also a crime, as described in 8 U.S.C. § 1324a(f), if the employer engages in a pattern or practice of such hiring. The same act may also be a crime under 8 U.S.C. § 1324(a)(3) if the employer hires ten or more illegal aliens meeting certain requirements.293 Some provisions of immigration law include civil and criminal penalties in the same sentence. For example, making false statements in a registration document (such as that required by the NSEERS program)is a criminal misdemeanor, punishable by a fine of up to $1000 and a prison term of up to six months. The sentence defining this criminal penalty continues with civil consequences in administrative proceedings: “. . . and any alien so convicted shall, upon the warrant of the Attorney General, be taken into custody and be removed.”
The implication of the Ninth Circuit’s assumption, that the first half of the sentence, delineating criminal penalties, invites state assistance, while the second half of the sentence, delineating civil consequences, evinces preemptive intent, is plainly absurd. The notion that Congress created one simple set of provisions, demonstrating an intent not to preempt, is plainly absurd. The notion that Congress created one simple set of provisions, demonstrating an intent not to preempt, while also creating a parallel but distinct set of complex regulatory provisions, evincing an intent to preempt, simply is not reflected in the structure of immigration law. When the same act carries both civil penalties and criminal penalties under immigration law, it is almost always a single agency that decides which enforcement route to take. ICE agents and attorneys assume the lead role in determining which course to follow. It is not as if two parallel enforcement structures operate alongside one another, with ICE pursuing civil penalties while the Department of Justice pursues criminal penalties. This unified enforcement approach at the federal level further illustrates the fallacy in assuming that civil provisions preempt while criminal provisions do not. Finally, on the subject of preemption, it must be noted that the distinction between arrests by state police for criminal violations of the INA and arrests by state police for civil violations of the INA is utterly unsustainable in practice. Often, it is not intuitively determinable which immigration violations are criminal and which violations are civil.
THE AUTHORITY OF POLICE TO INQUIRE INTO IMMIGRATION STATUS
In March 2005, the Supreme Court provided an unequivocal answer to this question. In the case of Muehler v. Mena, 332 F.3d 1255, (9th Cir. 2003). 125 S. Ct. 1465 (2005)., the Court considered a case in which police officers conducted a search of a suspected gang safe house for evidence of gang-related crimes. During the course of the search, police officers asked the four occupants of the house their names, dates of birth, places of birth, and immigration statuses. The Ninth Circuit held that this questioning about immigration status violated the respondent’s Fourth Amendment rights. The Supreme Court emphatically disagreed: The Court of Appeals also determined that the officers violated Mena’s Fourth Amendment rights by questioning her about her immigration status during the detention. This holding, it appears, was premised on the assumption that the officers were required to have independent reasonable suspicion in order to question Mena concerning her immigration status because the questioning constituted a discrete Fourth Amendment event. But the premise is faulty. We have “held repeatedly that mere police questioning does not constitute a seizure.” “[E]ven when officers have no basis for suspecting a particular individual, they may generally ask questions of that individual; ask to examine the individual’s identification; and request consent to search his or her luggage.” As the Court of Appeals did not hold that the detention was prolonged by the questioning, there was no additional seizure within the meaning of the Fourth Amendment. Hence, the officers did not need reasonable suspicion to ask Mena for her name, date and place of birth, or immigration status.
In light of the Court’s opinion in Muehler v. Mena, it is clear that a police officer is entirely within his rights, in the course of a routine traffic stop, to ask the occupant of a vehicle his immigration status.
In the case Graham v. Richardson – the Court found that, because the state law at issue was “inconsistent with federal policy” and as the Ninth Circuit has observed, “Although the regulation of immigration is unquestionably an exclusive federal power, it is clear that this power does not preempt every state activity affecting aliens. . . . Federal and local enforcement have identical purposes—the prevention of the misdemeanor or felony of illegal entry.”
The Tenth and Fifth Circuits have squarely concluded that no preemption has taken place with respect to arrests for either criminal or civil violations of immigration law. The Eighth Circuit has implicitly reached the same conclusion. And the Ninth Circuit has only suggested a distinction between civil and criminal violations by assuming one in dicta in the case of Gonzales v. Peoria. Moreover, as the Ninth Circuit itself acknowledged, any judicial finding of preemption hinges upon the clear demonstration of congressional “intent to preclude local enforcement.” In the twenty-three years since Gonzales v. Peoria, Congress has done much to dispel any illusion that it intended to displace local assistance. Congress has repeatedly acted to preserve, support, and encourage local arrest authority.
This authority is being exercised regularly throughout the country. The reality on the street is that local police make thousands of immigration arrests for both civil and criminal violations of federal immigration laws every year. Beleaguered ICE agents already rely heavily on this assistance, and improvements in immigration enforcement are likely to depend on even greater state and local participation in federal immigration enforcement efforts. If the rule of law is ever to be restored in immigration, state and local arrest authority will be a crucial component of that restoration. It is important to note that in the years after 9/11, despite determined federal efforts to expand the number of ICE interior enforcement agents, the total number of such agents remained relatively constant, hovering just below the 5,000 mark. The more than 800,000 state and local law enforcement officers in the United States constitute a vital force multiplier.
Most importantly, state and local police officers represent a critical line of defense in the war against terrorism. In the six months before 9/11, there were four tragic missed opportunities to arrest the leaders and pilots of the 9/11 terrorists.356 Had the federal government acquired and disseminated information about basic civil immigration violations to local law enforcement through the NCIC system, several terrorists might have been arrested, and the 9/11 plot might have unraveled.
Concurrent Federal & State Enforcement of U.S. Immigration Law:
On April 23, 2002, the U.S. Department of Justice, Office of Legal Counsel (OCL) issued a memorandum concerning the Federal Pre-emption of concurrent enforcement of criminal and civil violations of Federal Immigration Laws of the United States .
That memo, which can be viewed here: http://www.aclu.org/files/FilesPDFs/ACF27DA.pdf , reversed prior opinions held by the Department of Justice and specifically states: We conclude that part 1252 (C), does not preempt State arrest authority in any respect. (at page 3 & 4).
The DOJ assumed that the arrests made by State and Local law enforcement officials complied with the provisions of the 14th Amendment of the Constitution.
The DOJ memo notes that the “arrest power” lies with the States as “sovereign entities”. (page 2 of memo, page 4 of fax, Section I)
That the “power of arrest” is not limited to “authorization delegated from the Federal Government”.
The OLC noted that section 1252 c, was enacted just two months after the preparation of an OLC memo and was countermanded by the present memo, the OLC stated, “we determine that our 1996 advice was mistaken and that we should have concluded that federal statutory law posed no obstacle to the authority of state (and local) police to arrest aliens on the basis of civil deportability. (Section II of the memo, page 7 of the fax).
The memo offered the following conclusions:
1). States have inherent power to make arrests for violation of Federal Law.
2). It would be unreasonable to assume Congress acted in a manner that would deprive the Federal Government of whatever assistance the States could provide in the identification, apprehension and detention of those in violation of Federal Laws.
3). That prior opinions were erroneous, that Federal Law did not preempt the States from making arrests both civil and criminal violations of Federal Immigration law.
The Obama Administration is attempting to reverse the opinion provided by the DOJ on April 23, 2002, by having the current DOJ file suit against the state of Arizona.
Had Congress wished to reverse the opinion provided April 23, 2002, the Congress has had 7 years to do so, Congress has not so acted. The power to initiate changes in this Country’s immigration law rest with Congress and not with the Executive Branch.
The DOJ’s current suit is another example in a long line of examples where this Executive Branch is attempting to reverse established law, without following our Constitutionally prescribed procedures for doing so.
In closing this writer would like to note that “preemption” is a bit like “virginity”. The DOJ’s memo of April 23, 2002, invited the States to a full participation in enforcing this Country’s immigration laws. The April 23, 2003 memo “waives” any claim of “preemption” by the DOJ. Once the offer was made by the DOJ “claims” of preemption were voided absent a specific act of Congress to reinstate a claim of “preemption”. Preemption, like virginity, can’t be reclaimed after it has been offered up and accepted …
TO BE CONTINUED …..
1) Use of the NCIC system for the identificaton of illeagl aliens and security threats by state & local police.
There are now more than 450,000 absconders at large in the United States. These aliens have had their days in immigration court and have disobeyed their final orders of removal. The absconder problem has made a mockery of the rule of law in immigration. Thousands of absconders have engaged in serious criminal activity in addition to their immigration violations. Many absconders have committed criminal violations of the INA.
However, others have committed civil violations where the underlying immigration violation was of a civil provision and the refusal to obey the order of removal was not willful. On December 5, 2001, the Department of Justice launched the Absconder Initiative, which has been continued under the Department of Homeland Security. This initiative marked the beginning of the process of listing absconders’ names and information in the NCIC system. The presence of these names in the NCIC system gives local police the information necessary to make immigration arrests during the course of routine traffic stops. The existence of the Absconder Initiative is based on the premise that local police have the authority to make immigration arrests—for both civil and criminal violations of the Immigration and Nationality Act.
2). Beginning in December 2001, absconders from nations associated with Al Qaeda and absconders with criminal records were considered “priority absconders” and were listed in the NCIC system first. Between December 2001 and November 30, 2005, 47,433 absconders had been listed. Thousands of these fugitives have been arrested with the cooperation of state and local law enforcement officers.
3). Between November 2003 and November 2005, 3,944 absconders were apprehended by state and local law enforcement officers utilizing the NCIC.82 These arrests have resulted in the removal of many violent criminals from America’s streets. Many of the absconders are murderers. One of the most notorious absconders, whose immigration violations were part of a long and violent criminal record, was Maximiliano Silerio Esparza, arrested by local police in Oregon in the Summer of 2002 for rape and murder. Several absconders have become cop killers. For example, in March 2002, absconder Luis Alberto Gomez Gonzalez killed an off-duty police officer in the Bronx. Fifteen months later, in June 2003, absconder Adrian Camacho killed police officer Tony Zeppetella in Oceanside, California. If the Absconder Initiative had occurred years earlier, their victims might be alive today.
4). In 2003, the Office of the Inspector General at the U.S. Department of Justice reported that 87 percent of those aliens who were not detained during their removal proceedings ignored their final orders of removal and absconded. The Absconder Initiative has demonstrated promising results in tracking down the hundreds of thousands of fugitives who make a mockery of the immigration court system. For the first time, the United States is apprehending absconding aliens in significant numbers. This progress would be impossible without the assistance of state and local police in making immigration arrests.
5). On March 14, 2005, ICE announced 103 coordinated immigration arrests that had occurred during the preceding weeks in what was termed “Operation Community Shield.”88 The arrested aliens were members of the Mara Salvatrucha 13 (MS-13) gang, a particularly violent criminal organization involved in drug trafficking, arms smuggling, human smuggling, and inter-gang violence. The MS- 13 gang originated in Los Angeles, with a large proportion of its members being natives of El Salvador who entered the United States in the 1980s. The gang now has more than 10,000 members in the United States and operates in at least 33 states. The majority of MS-13 members are illegal aliens. All of the Operation Community Shield arrests were for immigration violations, many of which were civil violations of the INA. Nevertheless, approximately half of the arrested gang members had prior arrests or convictions for violent crimes, including murder, weapons charges, and aggravated arson.
6). Operation Community Shield continued after these initial 103 arrests. In May 2005, it expanded to encompass other violent gangs with a high proportion of illegal alien membership, including the 18th Street Gang, Surenos 13, Pelones 13, the Latin Kings, and others. Operation Community Shield also expanded to other cities, including those far from any national border, such as Omaha, Nebraska. By the end of October 2005, Operation Community Shield had resulted in the arrest of more than 1,600 gang members and associates. These arrests were the result of coordinated efforts between ICE and local law enforcement. Local police officers and departments reported the names of suspected gang members to ICE, which then ran the lists of gang members against federal immigration databases to determine the immigration statuses of the individuals in question. The arrestees were all present in the United States illegally. All were arrested for immigration offenses, rather than for criminal gang activity. Some had committed criminal violations of the INA, while others had committed civil violations. ICE took the lead in making the arrests, but state and local law enforcement cooperated and participated in the operation. What is painfully clear from Operation Community Shield is that the federal government needed the help of local law enforcement to obtain the names of gang members, and the local police departments needed the help of ICE to verify the illegal alien status of the gang members. The immigration violations served as a valuable tool to remove violent criminals from the streets.
7). On June 6, 2002, Attorney General John Ashcroft announced the National Security Entry-Exit Registration System (NSEERS), a program that would require high-risk alien visitors to provide fingerprints and extensive biographical information. It would also require such aliens to re-register with U.S. immigration officials periodically and would, for the first time, impose real-time departure controls on such high-risk visitors. Violators of the NSEERS requirements would be listed in the National Crime Information Center (NCIC) database, accessible in the squad cars of most local police departments, allowing local law enforcement officers to make arrests of such high-risk immigration law violators.
The FBI’s National Crime Information Center (NCIC) maintains a computerized database of arrest and identification records developed by local and state police agencies. This database is available nationwide for use by federal, state, and local police officials. THE FBI: A COMPREHENSIVE REFERENCE GUIDE 160, 199, 221 (Athan G. Theoharis et al. eds.,)
The net that is cast daily by local law enforcement during routine encounters with members of the public is so immense that it is inevitable illegal aliens will be identified. When a local police officer establishes probable cause to believe that an alien is in violation of U.S. immigration law, he may contact the ICE Law Enforcement Support Center in Williston, Vermont, to confirm that ICE wishes to take custody of the alien.10 The Department of Justice Office of Legal Counsel (OLC) provides oral advice and written opinions in response to various executive branch requests. When Attorney General Ashcroft announced the NSEERS system, he also announced the unequivocal conclusion of the OLC: “[A]rresting aliens who have violated criminal provisions of [the INA] or civil provisions that render an alien deportable . . . is within the inherent authority of the states.”
Shortly thereafter, the OLC retracted the relevant section of an erroneous 1996 OLC opinion on the subject. The OLC’s 2002 conclusion—that states possess inherent authority to make immigration arrests—was not an extraordinary one. However, it sparked an extraordinary reaction among those in Washington, D.C., who lobby for open borders and less effective enforcement of immigration laws.
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