TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
DANIEL E. LUNGREN
Attorney General
______________________________________
OPINION :
: No. 96-801
of :
: January 8, 1997
DANIEL E. LUNGREN :
Attorney General :
:
ANTHONY M. SUMMERS :
Deputy Attorney General :
:
______________________________________________________________________
THE HONORABLE BRETT GRANLUND, MEMBER OF THE CALIFORNIA STATE
ASSEMBLY, has requested an opinion on the following question:
May California deport an illegal alien convicted of a crime as a condition of granting either
probation or parole, and may it make it a crime for such illegal alien to return to the state?
CONCLUSION
California may not deport an illegal alien convicted of a crime as a condition of granting
either probation or parole or make it a crime for such illegal alien to return to the state. However, California
may release the person to federal immigration authorities for deportation by the federal government.
ANALYSIS
As a general proposition, a person convicted of a crime in California cannot be deported,
exiled, or banished as a condition of granting either probation or parole. (See In re Babak S. (1993) 18
Cal.App.4th 1077 [juvenile court may not impose probation conditioned on the minor living with his parents
in Iran for two years]; People v. Bauer (1989) 211 Cal.3d 937 [probation may not be granted on condition
that defendant not live near his parents]; People v. Beach (1983) 147 Cal.App.3d 612 [probation may not be
granted on condition that defendant leave the community]; In re White (1979) 97 Cal.App.3d 141 [probation
may not be granted on condition that defendant not enter certain areas of a city]; In re Mannino (1971) 14
Cal.App.3d 953 [condition banishing defendant from college, high school, or junior high school campus
stricken]; People v. Blakeman (1959) 170 Cal.App.2d 596 [probation may not be granted on condition that
defendant leave the county]; In re Scarborough (1946) 76 Cal.App.2d 648 [probation may not be granted on
condition that defendant leave the county for two years]; People v. Lopez (1927) 81 Cal.App. 199 [judgment
that defendant "be deported to Mexico" held void] ) We are asked to address in this opinion whether it would
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that defendant be deported to Mexico held void].) We are asked to address in this opinion whether it would
make a difference if the person convicted of the crime is an "illegal alien." Footnote No. 1
We do not write upon a clean slate in determining whether a state statute may authorize
banishment of illegal aliens as a condition of granting probation or parole. California has already adopted
legislation permitting a court to order a minor who is resident of a foreign country to be sent to that country
as a condition of probation. Welfare and Institutions Code section 738Footnote No. 2 provides:
"In a case where the residence of a minor placed on probation under the provisions of
Section 725 or of a ward of the juvenile court is out of the state and in another state or foreign
country, or in a case where such minor is a resident of this state but his parents, relatives,
guardian, or person charged with his custody is in another state, the court may order such minor
sent to his parents, relatives, or guardian, or to the person charged with his custody, or, if the
minor is a resident of a foreign country, to an official of a juvenile court of such foreign country
or an agency of such country authorized to accept the minor, and in such case may order
transportation and accommodation furnished, with or without an attendant, as the court deems
necessary. If the court deems an attendant necessary, the court may order the probation officer or
other suitable person to serve as such attendant. The probation officer shall authorize the
necessary expenses of such minor and of the attendant and claims therefor shall be audited,
allowed and paid in the same manner as other county claims." (Emphasis added.)
In In re Manuel P. (1989) 215 Cal.App.3d 48, the provisions of section 738 were applied to an illegal alien
minor who committed a crime in California, was placed on probation, was ordered not to return to this
country illegally, was deported, returned illegally, and committed another crime in California. Under such
circumstances, the court examined the constitutionality of section 738, stating in part:
"The principle constitutional issues before us revolve around whether section 738
. . . violate[s] the supremacy clause of the United States Constitution, article VI which states:
`This Constitution and the laws of the United States which shall be made in pursuance thereof;
and all treaties made, or which shall be made, under the authority of the United States, shall be
the supreme law of the land; and the Judges in every State shall be bound thereby, any thing in
the Constitution or laws of any State to the Contrary notwithstanding.'
". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
"The principles which govern our disposition . . . were set forth in large part by the
United States Supreme Court in De Canas v. Bica (1976) 424 U.S. 351, 354-357 [47 L.Ed.2d 43,
48-50, 96 S.Ct. 933]: `Power to regulate immigration is unquestionably exclusively a federal
power. See, e.g., Passenger Cases, 7 How. 283 . . . (1849); Henderson v. Mayor of New York, 92
U.S. 259 . . . (1876); Chy Luna v. Freeman, 92 U.S. 275 . . . (1876); Fong Yue Ting v. United
States, 149 U.S. 698 . . . (1893). But the Court has never held that every state enactment which in
any way deals with aliens is a regulation of immigration and thus per se preempted by this
constitutional power, whether latent or exercised. . . [S]tanding alone, the fact that aliens are the
subject of a state statute does not render it a regulation of immigration, which is essentially a
determination of who should or should not be admitted into the country, and the conditions under
which a legal entrant may remain. . . .
"`. . . As we stated in Florida Lime & Avocado Growers v. Paul, 373 U.S. 132, 142
. . . (1963): "[F]ederal regulation . . . should not be deemed preemptive of state regulatory power
in the absence of persuasive reasons--either that the nature of the regulated subject matter
permits no other conclusion, or that the Congress has unmistakably so ordained." . . .
"`. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
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"`. . . [W]e will not presume that Congress, in enacting the INA, intended to oust state
authority to regulate . . . in a manner consistent with pertinent federal laws. Only a demonstration
that complete ouster of state power--including state power to promulgate laws not in conflict
with federal laws--was "`the clear and manifest purpose of Congress'" would justify that
conclusion.'
"With respect to the analysis by which congressional intent to oust state regulation is
determined, the Supreme Court has recently stated: `In the absence of explicit statutory language
signaling an intent to pre-empt, we infer such intent where Congress has legislated
comprehensively to occupy an entire field of regulation, leaving no room for the States to
supplement federal law, Rice v. Sante Fe Elevator Corp., 331 U.S. 218 . . . (1947), or where the
state law at issue conflicts with federal law, either because it is impossible to comply with both,
Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-143 . . . (1963), or because
the state law stands as an obstacle to the accomplishment and execution of congressional
objectives, Hines v. Davidowitz, 312 U.S. 52, 67 . . . (1941). See Schneidewind v. ANR Pipeline
Co., 485 U.S. 293, 108 S.Ct. 1145 . . . (1988); Louisiana Public Service Comm'n v. FCC, 476
U.S. 355, 368-369 . . . (1986); Pacific Gas & Electric Co. v. Energy Resources Comm'n, 461
U.S. 190, 203-204 . . . (1983).' (N.W. Cent. Pipeline v. State Corp. Com'n of Kansas (1989) 489
U.S. 493 [103 L.Ed.2d 509, 527, 109 S.Ct. 1262, 1273].)
"In addition to these established tenets of federalism we are also bound by two
principles of statutory construction articulated by the California Supreme Court. `First, the
enactment may be validated if its terms are reasonably susceptible to an interpretation consistent
with the Constitution. [Citations.] Second, the court should construe the enactment so as to limit
its effect and operation to matters that may be constitutionally regulated or prohibited.' (Whelton
v. City of Los Angeles (1976) 18 Cal.3d 497, 505.)
"Viewing section 738 in light of the foregoing principles we conclude the federal
government has not preempted California from ordering nonresident juveniles returned to their
country of origin.
"First, as we interpret section 738, the statute does not violate the exclusive power
over immigration and deportation which the Constitution vests in the federal government. As
DeCanas v. Bica, supra, 424 U.S. at page 354 [47 L.Ed.2d at page 48], makes clear, the fact
aliens are the subject, in part, of the statute does not itself make section 738 a regulation of
immigration. DeCanas instructs us that regulation of immigration, is `essentially a determination
of who should or should not be admitted into the country, and the conditions under which a legal
entrant may remain.' (Id. at p. 355 [47 L.Ed.2d at pp. 48-49].) (Emphasis added.)
"In giving our juvenile courts the power to terminate custody over foreign nationals,
we do not believe the state Legislature intended to abrogate any federal power over which
foreign nationals may remain in this country. Rather, the language of the statute supports the
conclusion the Legislature intended only that our courts have the power to release juvenile
offenders from the custody of our judicial system by ordering their return to the country of
origin. In light of the plenary power of the federal government over immigration and deportation,
which we presume the Legislature considered in enacting section 738, we interpret that statute as
allowing courts to order such minors released to federal immigration authorities for deportation
by the federal government.
"Our interpretation of section 738 is supported not only by our duty to interpret
statutes, where possible, as consistent with the Constitution but also by the actual practices
emplo ed b San Diego officials Significantl the record reflects all minors (incl ding Man el)
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employed by San Diego officials. Significantly, the record reflects all minors (including Manuel)
returned to Mexico under section 738 are first presented to the INS for processing through the
federal deportation system.
"Because, as we have interpreted the statute, the power over foreign juveniles
provided by section 738 is limited to releasing the juvenile to federal authorities for immigration
processing, the statute cannot be said to violate standards of uniformity, or directly conflict with
the administration of the Immigration and Naturalization Act (INA).
"Moreover, given an interpretation of section 738 which mandates compliance with
the federal immigration laws and regulations, it cannot be said section 738 stands as an obstacle
to accomplishment and execution of congressional objectives embodied in the INA. (See N.W.
Cent. Pipeline v. State Corp. Com'n of Kansas, supra, 489 U.S. at p. 510 [103 L.Ed.2d at p. 527,
109 S.Ct. at p. 1273].)" (Id., at pp. 60-64; fns. omitted.)
Accordingly California has no authority to deport a person as a condition of granting
probation or parole, whether or not the person is an illegal alien. Deportation is exclusively a federal matter.
With respect to whether California may make it a crime for an illegal alien, deported by
federal immigration authorities, to return to the state, we again do not write upon a clean slate. In re Adolfo
M. (1990) 225 Cal.App.3d 1225, a juvenile court determined that a minor was a legal resident of Mexico,
ordered him to be transferred to Mexican juvenile authorities under the terms of section 738, and prohibited
his return to the United States without "written permission from the juvenile court." (Id., at p. 1227.) The
Court of Appeal found unconstitutional the court permission requirement for reentry into the United States:
"Regarding the juvenile court order Adolfo not return to the United States without
. . . the court's permission, the `[p]ower to regulate immigration is unquestionably exclusively a
federal power.' (De Canas v. Bica (1976) 424 U.S. 351, 354 [47 L.Ed.2d 43, 48, 96 S.Ct. 933];
In re Manuel P., supra, 215 Cal.App.3d at p. 61.) Indeed, `"[t]he Supreme Court has `repeatedly
emphasized that "over no conceivable subject is the legislative power of Congress more
complete than it is over" the admission of aliens.' [Citation.]"' (Gates v. Superior Court (1987)
193 Cal.App.3d 205, 215 [238 Cal.Rptr. 592], quoting Lopez v. United States I.N.S. (10th Cir.
1985) 758 F.2d 1390, 1392; see also People v. Arciga (1986) 182 Cal.App.3d 991, 1000.)
`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.' (Gonzales v. City of Peoria
(9th Cir. 1983) 722 F.2d 468, 474.) Nevertheless, state regulation affecting the determination of
who should or should not be admitted into the country or placing conditions under which a legal
entrant may remain, violates the exclusive power over immigration and deportation
constitutionally vested solely in the federal government. (DeCanas v. Bica, supra, 424 U.S. at
pp. 354-357 [47 L.Ed.2d at pp. 48-50]; In re Manuel P., supra, 215 Cal.App.3d at pp. 61-63;
Hernandez v. State (Tex.Crim.App. 1981) 613 S.W.2d 287, 290.) Indeed, `"[t]he Federal
Government has broad constitutional powers in determining what aliens shall be admitted to the
Untied States, the period they may remain, regulation of their conduct before naturalization, and
the terms and conditions of their naturalization. Under the Constitution the states are granted no
such powers; they can neither add to nor take from the conditions lawfully imposed by Congress
upon admission, naturalization and residence of aliens in the Untied States or the several states."'
(Toll v. Moreno (1982) 458 U.S. 1, 11 [73 L.Ed.2d 563, 572, 102 S.Ct. 2977], quoting Takahashi
v. Fish & Game Comm'n (1948) 334 U.S. 410, 419 [92 L.Ed. 1478, 1487, 68 S.Ct. 1138].)
". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
". . . [A] state court may not condition reentry into the United States upon its written
permission. Construing the holding of In re Manuel P., the People argue the juvenile court can
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permission. Construing the holding of In re Manuel P., the People argue the juvenile court can
require an alien subject to its supervision to seek written permission before reentry into the
United States, a requirement they urge simply augments federal immigration policy while
providing the juvenile court with notification of the intent to reenter. The People assert
notification is necessary to ensure a juvenile will receive the supervision and treatment
prescribed by the court as well as to guarantee the nonresident alien's reentry into the United
States will be lawful. Finally, the People urge the court's written permission requirement is
designed to confirm that such supervision has been ordered, who or what agency will have direct
supervisorial responsibilities over the juvenile and ensure the juvenile will be notified of the
supervisorial person or agency to whom reporting will be necessary. However, the order is not
confined to notification, but requires Adolfo to obtain state court permission.
"A juvenile court cannot require an alien subject to its supervision to receive written
permission before reentry into the United States. (Hernandez v. State, supra, 613 S.W.2d at p.
290.) Such a requirement clearly conflicts with governing federal immigration policy and
regulation by requiring additional state-imposed conditions on one's right to enter the United
States. The order Adolfo obtain the consent or written permission of the juvenile court in
addition to immigration authorities poses the possibility Adolfo's entry may be permitted by the
federal government, but not the state juvenile authorities, and even the possibility the juvenile
court would overrule the immigration authorities and refuse to permit Adolfo to reenter the
United States even though the immigration authorities had decided to allow reentry. (U.S. v.
Mercedes-Mercedes, supra, 851 F.2d at p. 531.) These potential infringements upon federal
prerogatives over immigration and foreign relations conflict with Congress's delegation of the
exclusive power to deport or exclude aliens to the Attorney General and his delegate, the INS.
(Id. at p. 531; see also Annot. (1989) 94 A.L.R. Fed. 691.)
"`A state trial judge cannot . . . make a decision that controls the entry of an alien into
the United States. Such control is exclusive to the United States and without the jurisdiction of a
state court.' (State v. Camargo (1975) 112 Ariz. 50 [537 P.2d 920, 922].)" (Id., at pp.
1232-1234.)
Hence a state may not make it a crime to enter the state. Such a statute would constitute a
"state regulation affecting the determination of who should or should not be admitted into the country," thus
violating "the exclusive power over immigration and deportation constitutionally vested solely in the federal
government." It is for the federal government alone to address such matters. However, we note that an illegal
alien placed on probation in this state who is deported by federal authorities, and who illegally returns to the
United States, violates federal law. (8 U.S.C. § 1325.) Committing a violation of federal law may constitute a
violation of probation in this state and may be used as a basis for revoking probation. (People v. Cortez
(1962) 199 Cal.App.2d 839 [order of banishment from United States void but illegal reentry violated
conditions of state probation]. A deportee who reenters illegally may thus face revocation of probation and
the service of his or her sentence for the crime.
We conclude that California may not deport an illegal alien convicted of a crime as a
condition of granting probation or parole or make it a crime for such illegal alien to return to the state.
However, California may release the person to federal immigration authorities for deportation by the federal
government.
*****
Footnote No. 1
For purposes of this opinion, an "illegal alien" is one who is in the United States without authorization. (See United States
v. Igbatayo (5th Cir. 1985) 764 F.2d 1039, 1040 ["an alien who is in the United States without authorization is in the
country illegally"].)
Footnote No 2
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Footnote No. 2
All references hereafter to the Welfare and Institutions Code are by section number only.
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