The Immigration Debate: The Arizona Immigration Law – Concurrent Federal & State Jurisdiction – Section 287(G) of the IIRAIRA, Operation Stone Garden & SCAAP

For a full discussion of Arizona’s Immigration Law see:


Detractors of the Arizona Law have presented many false arguments in support of what is a politically motivated playing of yet another “race bating card” prior to the upcoming elections in November.

The first such argument was that the law called for racial profiling, which the law specifically prohbitis.

The second argument was that the law would result in racial profiling by law enforcement officers in Arizona. If such an act occurs under the Arizona law, the act would be an act of misfeasance. Misfeasance is the wrongful performance of a normally lawful act.

A law setting a 25 mile an hour speed limit is lawful and constitutional. A law enforcement officer, who pulls a driver over because of their race, not because they are speeding, is committing an act of malfeasance. Malfeasance is a civil and criminal wrong, however, the officer’s malfeasance does not make the speed limit law unconstitutional.    

The third argument is that the States may not usurp (usurp – to use without authority or right, to take from without authority. the Federal Governments authority to set “immigration quotas” and other “criteria” (criteria: a standard of judgment – a rule or principle for evaluating. ) for admitting or declining admission of foreign nationals to the United States. The Arizona Law does not attempt to usurp the “exclusive powers” delegated to the U.S. Congress, the powers to “regulate” immigration into the United States.

What the Arizona Law does do is this, in the performance of their delegated duties; Arizona Law Enforcement Officers may question suspects, suspects being investigated for other crimes, about their immigration status when a reasonable suspicion exists that the suspect is in the Country illegally.

The Arizona Law acknowledges that a “concurrent jurisdiction” exists between the Federal Government and the State of Arizona’s Government for enforcing the immigration laws created by the U.S. Congress.

Concurrent jurisdiction:  jurisdiction that is shared by different courts, such as crimes committed on boundary rivers.; Concurrent jurisdiction is the ability to exercise judicial review by different courts at the same time, within the same territory, and over the same subject matter. A state may have concurrent jurisdiction with a federal court, for example, when a crime defined under state law is committed on federal property, and certain offenses involving Indian tribal members. State and federal courts also have concurrent jurisdiction over the Jones Act, which authorizes seaman who suffers personal injury in course of employment to bring action for damages at law. .

The Federal Government’s right to set immigration quotas and criteria is exclusive; however, the Federal Government’s duty to enforce these laws is not, that duty is a “concurrent duty” with those of the States.

Concurrent Jurisdiction: The Federal Government’s Acknowledgement of Concurrent Enforcement of the Immigration Laws

Section 287(g), Immigration and Nationality Act; Delegation of Immigration Authority 

A Statement from U.S. Immigration and Custom Enforcement (ICE): June 22, 2007

Section 287(g), Immigration and Nationality Act; Delegation of Immigration Authority

A Law Enforcement Partnership

Terrorism and criminal activity are most effectively combated through a multi-agency/multi-authority approach that encompasses federal, state and local resources, skills and expertise. State and local law enforcement play a critical role in protecting our homeland security because they are often the first responders on the scene when there is an incident or attack against the United States . During the course of daily duties, they will often encounter foreign-born criminals and immigration violators who pose a threat to national security or public safety.

Section 287(g) of the Immigration and Nationality Act

The Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA), effective September 30, 1996, added Section 287(g), performance of immigration officer functions by state officers and employees, to the Immigration and Nationality Act (INA). This authorizes the secretary of the U.S. Department of Homeland Security (DHS) to enter into agreements with state and local law enforcement agencies, permitting designated officers to perform immigration law enforcement functions, pursuant to a Memorandum of Agreement (MOA), provided that the local law enforcement officers receive appropriate training and function under the supervision of sworn U.S. Immigration and Customs Enforcement (ICE) officers.

State and local patrol officers, detectives, investigators and correctional officers working in conjunction with ICE gain: necessary resources and authority to pursue investigations relating to violent crimes, human smuggling, gang/organized crime activity, sexual-related offenses, narcotics smuggling and money laundering; and support in more remote geographical locations.

Memorandum of Agreement

The MOA defines the scope and limitations of the authority to be designated. It also establishes the supervisory structure for the officers working under the cross-designation and prescribes the agreed upon complaint process governing officer conduct during the life of the MOA. Under the statute, ICE will supervise all cross-designated officers when they exercise their immigration authorities. Once the scope of limitations of the MOA has been reached, the assistant secretary of ICE, and the governor, a senior political entity, or the head of the local agency may sign the MOA, requesting the cross-designation.

Criminal Alien Program (CAP)

Under current MOAs, 287(g) participants in Arizona , California , and North Carolina currently ensure that criminal aliens incarcerated within federal, state and local facilities are not released into the community upon completion of their sentences. ICE is working to expand 287(g) authority to local and county correctional facilities that are not operational within normal ICE jurisdictions. The expansion of the 287(g) program into smaller county and local correctional facilities will act as a force multiplier for CAP and have a positive impact on this important program.

Arizona Officers Join Operation Stone Garden to Beef up Border Security: November 23, 2004

Yuma police and the Yuma County Sheriff’s Office are taking part in a new Department of Homeland Security initiative that uses local law enforcement officers to beef up border security.

Known as Operation Stone Garden, the action consists of distributing federal grant money to cover overtime pay for local law enforcement officers to augment efforts to secure U.S. borders along Canada and Mexico, said Kristi Clemens, spokeswoman for U.S. Customs and Border Protection.

Clemens said a total of 213 state, local and tribal law enforcement agencies are participating in Operation Stone Garden in Arizona, Alaska, Texas, California, Maine, Michigan, Minnesota, Montana, New Mexico and North Dakota.

Yuma City Police Department and Yuma County Sheriff’s Office are currently participating while the Somerton and Cocopah police agencies are considering joining the effort, officials with each agency said.

“The objective is to increase law enforcement presence and activity,” said Yuma police spokeswoman Leanne Worthen. “We’re going to take Operation Stone Garden and focus on self-initiated activity in some target areas and deal with any of the criminal activity.”

Participation in the operation does not mean Yuma police and sheriff’s deputies will be taken away from their regular duties, nor does it mean local law enforcement will be taking over the job of Custom’s officers and Border Patrol agents, Worthen said.


For the sheriff’s office, joining the multi-agency effort means having a greater presence in key areas in the San Luis area to combat Mexican nationals who cross into Arizona and commit crimes, said Yuma County Sheriff’s Capt. Eben Bratcher.

“We are performing law enforcement activity on the border … it is strictly what we would normally do but with enhanced presence,” Bratcher said.

Earlier this week the Yuma County Board of Supervisors approved $153,216 of federal grant money to cover overtime pay for Sheriff’s deputies engaged in the operation.

Clemens said the Department of Homeland Security made available in early October $13.5 million in grant money to local agencies for the operation. Clemens said the operation was not made public and federal authorities instead contacted local law enforcement agencies directly about the grant money.

The Obama Administration uses “Operation Stone Garden” for “Photo Op” in the war against Cartel related border violence.

Napolitano: Heightened enforcement to prevent drug violence from spilling in from Mexico

Homeland Security Secretary Janet Napolitano announced $30 million in federal grants Tuesday to prevent drug-fueled violence from spilling into the United States from Mexico, heralding it as the latest of several moves in recent months to bolster border enforcement.

Law enforcement agencies in Texas will get nearly $13 million, California and Arizona will get more than $7 million each and New Mexico will receive nearly $3 million under the federal Operation Stone Garden program.

Napolitano broke little new ground in what her office billed as a major speech on border enforcement. She highlighted previously announced measures — most recently, enhanced oversight at the department’s widely criticized immigration detention centers. She expressed hope for an overhaul of immigration laws, while vowing to continue enforcing existing laws.

The $30 million for Operation Stone Garden is in addition to $60 million for the program announced in June, mostly for the border region. It will pay for overtime, travel and other expenses to bolster state and local law enforcement on the Mexican border.

The Federal SCAAP Program 

State Criminal Alien Assistance Program (SCAAP): The Federal Bureau of Justice Assistance administers the State Criminal Alien Assistance Program, in conjunction with the Bureau of Immigration and Customs Enforcement and Citizenship and Immigration Services, Department of Homeland Security (DHS). SCAAP provides federal payments to states and localities that incurred correctional officer salary costs for incarcerating undocumented criminal aliens with at least one felony or two misdemeanor convictions for violations of state or local law, and incarcerated for at least 4 consecutive days during the reporting period.

Use of SCAAP Awards: The Department of Justice Reauthorization Act of 2005 (Pub. L. 109-162, Title XI) included the following requirement regarding the use of SCAAP funds: “Amounts appropriated pursuant to the authorization of appropriations in paragraph (5) that are distributed to a State or political subdivision of a State, including a municipality, may be used only for correctional purposes.” Beginning with FY 2007 SCAAP awards, SCAAP funds must be used for correctional purposes only.

[Enforcement Funding is provided through “Operation Stone Garden” and other Federal Programs]

Qualifying Criminal Charges and Convictions
To be eligible for reporting, inmates must have been convicted of a felony or second misdemeanor for violations of state or local law, and housed in the applicant’s state or local correctional facility for 4 or more consecutive days during the reporting period. Once a person meets these criteria, all pre-trial and post-conviction time served from July 1, 2008 through June 30, 2009 may be included in the FY 2010 application.

Entering Inmate Data: If the Alien Number is unknown for an individual inmate, enter all zeroes in the A number field. Do not use letters (A) or symbols (dashes, etc.). Also, use zeros (0) as the beginning digit(s) if the A-number is fewer than 9 digits.

The FBI number is issued by the FBI to track arrests and fingerprint records. If this number is not available, leave this field blank by inserting 10 spaces. If the FBI number is fewer than 10 characters, enter the number first, and then insert spaces for the remainder of the field length.

[Clearly, the Federal Government “requires” that the State of Arizona idenitfy these “criminal aliens” in order to qualify for the SCAAP reimbursement for “holding” these criminals that should be the responsibility of the Federal Government, criminals that shjould be “deported” undre Federal Law. Criminals that would be prevented from enteringthis COuntry under our immigration laws, if they were being enforced and prohibited from staying in this Country under any proposed “amnesty program”]

2010 SCAAP Data:
FY 2010 SCAAP Guidelines (PDF)
FY 2010 ICE Country Codes (PDF)
FY 2010 Inmate Data File Format (PDF

SCAAP Overview

The Bureau of Justice Assistance (BJA), Office of Justice Programs, U.S. Department of Justice, administers SCAAP, in conjunction with the U.S. Department of Homeland Security (DHS). SCAAP provides federal payments to states and localities that incurred correctional officer salary costs for incarcerating undocumented criminal aliens who have at least one felony or two misdemeanor convictions for violations of state or local law, and who are incarcerated for at least 4 consecutive days during the reporting period.

SCAAP Legislative Authority

SCAAP is governed by Section 241(i) of the Immigration and Nationality Act, 8 U.S.C. § 1231(i), as amended, and Title II, Subtitle C, Section 20301, Violent Crime Control and Law Enforcement Act of 1994, Pub. L. 103-322. In general terms, if a chief executive officer of a state or a political subdivision exercises authority over the incarceration of undocumented criminal aliens and submits a written request to the U.S. Attorney General, the Attorney General may provide compensation to that jurisdiction for those incarceration costs. SCAAP is subject to additional terms and conditions of yearly congressional appropriations.

[SCAAP is a creation of Congressional Enactment of Federal Immigration Law]

Eligible Inmates

• Were born outside the United States or one of its territories and had no reported or documented claim to U.S. citizenship.

• Were in the applicant’s custody for 4 or more consecutive days during the reporting period.

• Were convicted of a felony or second misdemeanor for violations of state or local law.

Were identified and reported as undocumented, using due diligence.

• Persons who entered the U.S. without inspection or at any time or place other than as designated by the Attorney General.

• Persons in deportation or exclusion proceedings at the time they were taken into custody.

• Non-immigrants who failed to maintain their non-immigrant status at the time they were taken into custody.

• Certain Mariel Cubans who otherwise meet these requirements. 


The Obama Administration’s use of the Department of Justice to challenge the Arizona Immigration Law is a shameless act of “race baiting” intended to divide the Nation, creating a division that the Obama Administration hopes to exploit for political advantage.

The Obama Administration knows full well that the Arizona Law does not infringe upon the Federal Government’s “exclusive powers”, that the law is nothing more than a basic law enforcement tool, the tool of requiring suspects to identify themselves.

The Arizona Law allows for the questioning of a suspect as a precursor to contacting ICE and requesting the assistance and supervision of ICE  personal as is outlined in Section 287(g) of the Immigration and Nationality Act of 1996.

The Arizona Law is a necessary adjunct to a successful application of “Operation Stone Garden”, a concurrent program of law enforcement.

The Arizona Law is a necessary adjunct to a successful application of the SCAAP Program and will allow Arizona Law Enforcement Officers to gather the information necessary to obtain reimbursement from the Federal Government under the SCAAP Program.

The Obama Administration is dishonest when it claims that these “programs” can be implemented without allowing Arizona Law Enforcement Officers to identify those criminals who have entered our Country illegally.

Examples Of Reporting From SCAAP

                                  EXAMPLES                             REPORTABLE DAYS
An alien was convicted of a felony during the reporting period and spent 20 days in pretrial detention and 60 additional days from the conviction. All 80 days occurred during the reporting period.                                                80
An alien was convicted of a felony during the reporting period and spent 20 days in pretrial detention and 60 additional days from the conviction. The 20 pretrial detention days and 40 of the sentenced days occurred in the reporting period; the remaining 20 days were served after June 30, 2006.                                                60
An alien was convicted of a felony several years ago and is being held in pretrial detention on new charges. As this alien already qualifies based on the prior felony conviction, once he meets the minimum of 4 consecutive days in custody during the reporting period, the pretrial days may be reported to BJA, regardless of the outcome of the pending charges.                                          As calculated
An alien was convicted of a second misdemeanor and served 3 consecutive days as of June 30, 2006, and 20 additional days after June 30, 2006. This inmate cannot be reported for FY 2007, but will qualify for FY 2008. NOTE: The first 3 days of the sentence are not reportable, regardless of what occurs with this inmate in the future.                                                   0

In 2009 the State of Arizona received $12.8 million dollars in SCAAP reimbursements from the Federal Government.

UPDATE: DOJ files suit against Arizona.

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.

Update 2:

The 1st and 2nd causes involve the same argument ciitng two diffrent portions of the Constitution (see page 23 of the Complaint, Cause 1:Supremecy, Cause 2:Pre-emption and cause 3) The Commerce Clause. There are no causes claiming “racial profiling” or “discrimnation”.

The Complaint can be viewed here:

I find the following interesting: Beginning on page 12, #31: Through a variety of programs, DHS works cooperatively with states and localities to accomplish its mission to enforce the federal immigration laws. Among these efforts is the Law Enforcement Agency Response program (“LEAR”), an Arizona-specific program that is operational 24 hours a day, 7 days a week, for responding to calls from state and local law enforcement officers seeking assistance from ICE regarding suspected unlawfully present aliens. ICE also administers the Law Enforcement Support Center (“LESC”), also operational 24 hours a day, 7 days a week, which serves as a national enforcement operations center and – among other responsibilities – promptly provides immigration status and identity information to local, state, and federal law enforcement agencies regarding aliens suspected of, arrested for, or convicted of criminal activity.

continuing of page 13: Further, ICE and CBP officers respond to requests from state and local law enforcement officers on a variety of immigration matters, including assisting with translation, determining alienage, and evaluating immigration documentation.

# 32…. But the opportunity that federal law provides for participation by state and local officials does not mean that states can enact their own immigration policies to rival the national immigration policy; the formulation of immigration policy and balancing of immigration enforcement priorities is a matter reserved for the federal government. Such regulations do not fall within the state’s traditional police powers and remain the exclusive province of the federal government…..

It is gratifying to see that the Government has droppped the self serving pretence of “profiling” or “discrimination”, however, I belive the Court will quickly point out that the Arizona Law does not create an “IMMIGRATION POLICY” of any type, the law, simply, allows law enforcement officers to question “suspects” about their immigration status …….

exactly how else would these State Law Enforcement officers “trigger” a call to ICE or the supervision by ICE of a criminal detainee, without first identifying whether the “suspect” or “detainee” was an illegal alien … maybe the Obama Administration suggests the Law Enforcement Officers use of Tarot cards …..

I really enjoyed the portion of the suit where the Government alleges that it will cost too much to enforce Arizona’s Law and that if the Arizona Law prevails the Federal Government won’t be able to pick and choose the laws it enforces: At page 18 lines 3 to 8: “Mandatory state alien inspection schemes and attendant federal verification
requirements will impermissibly impair and burden the federal resources and activities of DHS. S.B. 1070’s mandate for verification of alien status will necessarily result in a dramatic increase in the number of verification requests being issued to DHS, and will
thereby place a tremendous burden on DHS resources, necessitating a reallocation of DHS
resources away from its policy priorities.”

Oh my gosh – DHS will need to verify that illegals are illegal …….

Once again check out what ICE had to say about the working relationship between Federal & State Agencies and the “Delegation of Immigration Authority” to the States here:

On April 23, 2002 the DOJ (Departement of Justice) considered and rejected the very arguments presented by the Obama Adminstration in its lawsuit against the State of Arizona. The “findings” of the DOJ are “memorialized” in the following memo:

2002 DOJ Memo


Review of Judge Bolton’s Decision: The Immigration Debate: The Arizona Law – Judge Bolton’s Decision (Part 1) 

A comprehensive review and analysis of Judge Bolton’s erroneous decision.

Read why the Judge was wrong – compare “Congressional intent” with the Judge’s reasoning.

With these PDF documents:

Bolton’s Decision

DOJ Memo 04/02/2010

Links to:

DOJ Complaint

Arizona Law

The actual Immigration Statutes that should have “controlled” the Judge’s decision.

Official Web Sites of: DOJ/DHS/LESC/NSEERS/FBI

What does Congress “mandate” be done and by whom.

One Response

  1. This is a good article. To me there are two points that need to be looked at.
    1. It is obvious that the illegal immigrants need to be deported. This is the federal governments responsibility. If the feds won’t do their job, then the agency responsible needs to be penalized some way for non performance of duties. Rather, the fed should
    reward the state and local law enforcment for helping
    with enforcing the immigration laws.
    We do not need immigration reform. Immigration reform is another name for amnesty. We need to enforce the exhisting laws.
    2. It is not the american publics responsibility to feed, cloth, and house illegals. Many people think that they deserve it just because they are here and alive.
    The governments need to stop the free meal tickets so they have no incentive to be here. And penalize the for profit entities that employ them.

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