United States v. Vasquez-Alvarez

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
MAY 11 1999
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
No. 98-6325
v.

ONTONIEL VASQUEZ-ALVAREZ,

Defendant-Appellant.

Appeal from the United States District Court
for the W. District of Oklahoma
(D.C. No. 98-CR-45-R)

June E. Tyhurst, Assistant Federal Public Defender, Oklahoma City, Oklahoma,
for Defendant-Appellant.

Sean Connelly, U.S. Department of Justice, Denver, Colorado, (Patrick M. Ryan,
United States Attorney, W. District of Oklahoma, and Mark A. Yancey, Assistant
United States Attorney, W. District of Oklahoma, with him on the brief), for
Plaintiff-Appellee.

Before ANDERSON, KELLY, and MURPHY, Circuit Judges.

MURPHY, Circuit Judge.
 INTRODUCTION

Ontoniel Vasquez-Alvarez (“Vasquez”) was arrested by an Edmond,

Oklahoma, police officer. The arrest was based solely on the fact that Vasquez

was an illegal alien. After Vasquez’s arrest, an agent of the Immigration and

Naturalization Service (“INS”) discovered that Vasquez had a felony record and

had previously been deported. Shortly thereafter, a federal grand jury handed

down a one-count indictment charging Vasquez with illegally reentering the

United States after a deportation in violation of 8 U.S.C. § 1326.

In response to the indictment, Vasquez filed a motion to suppress his post-

arrest statements, fingerprints, and identity. Vasquez claimed that 8 U.S.C. §

1252c limits the authority of state and local police officers, allowing such an

officer to arrest an illegal alien only when the INS has confirmed, before the

arrest, that the alien has previously been convicted of a felony and has, since that

conviction, been deported or left the United States. Although the district court

concluded that Vasquez’s arrest “appeared” not to comport with § 1252c, it

denied Vasquez’s suppression motion. According to the district court,

suppression was not the appropriate remedy for a violation of § 1252c.

Vasquez entered a conditional guilty plea pursuant to Fed. R. Crim. P.

11(e), preserving his right to appeal the suppression issue. On appeal, Vasquez

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argues as follows: (1) his arrest did not comport with § 1252c; (2) § 1252c sets

forth the only circumstances under which a state or local law enforcement official

can arrest for violations of federal immigration laws; and (3) suppression is the

appropriate remedy for violations of § 1252c.

This court agrees that § 1252c did not authorize Vasquez’s arrest.

Nevertheless, we further conclude that § 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. This conclusion moots the remaining issues raised by Vasquez

on appeal. Accordingly, this court exercises jurisdiction pursuant to 28 U.S.C. §

1291 and affirms the district court’s denial of Vasquez’s motion to suppress.

BACKGROUND

The facts leading up to Vasquez’s arrest and prosecution are uncontested.

On February 12, 1998, INS Special Agent Jerry Valentine was eating dinner at a

restaurant in Edmond, Oklahoma. During dinner, Valentine observed an apparent

drug transaction between an Hispanic male and another individual near a white

Toyota and a blue Miata in the restaurant parking lot. The next morning,

Valentine telephoned Edmond Police Officer Bob Pratt and asked him to

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investigate the suspicious transaction. Valentine also expressed suspicion that the

Hispanic male was an illegal alien. Valentine asked Pratt to arrest the Hispanic

male if Pratt came in contact with him and found that he was, in fact, in the

country illegally.

Around midnight on February 13 th, Pratt went to the restaurant and saw

both of the cars described by Valentine. The manager of the restaurant informed

Pratt that a restaurant employee owned the white Toyota. Upon questioning, the

employee told Pratt that his name was Ronnie Alvarez and admitted that he was

an illegal alien. In light of the request from Valentine, Pratt arrested the illegal

alien and transported him to the city jail to be held for the INS. At that time,

Pratt did not know that the illegal alien had a history of prior criminal convictions

and deportations.

The next morning, Valentine went to the Edmond Police Department and

interviewed the alien. The alien continued to identify himself as Ronnie Alvarez.

He again acknowledged that he was in the country illegally, but claimed that he

had never been deported before. Sometime after this interview, a computer check

revealed Vasquez’s true name and that he had a felony record and a history of

deportations. With this information in hand, Valentine again interviewed

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Vasquez. During this second interview, Vasquez admitted his true name, 1 as well

as his Mexican citizenship, three prior deportations from the United States, and

two prior state felony convictions.

ANALYSIS

Section 1252c authorizes state and local law-enforcement officers to arrest

illegal aliens if all of the following three conditions are met: (1) the arrest is

permitted by state and local law; (2) the alien was deported or left the United

States after a previous felony conviction; and (3) prior to arrest, the officer

obtains “appropriate confirmation” of the alien’s “status” from the INS. 2 Vasquez

At the time of his guilty plea, Vasquez informed the court that although he
1

was known by the INS as Ontoniel Vasquez-Alvarez, his real name was Leonel
Adan Hernandez-Reyes. Nevertheless, the charges were filed against the
defendant under his alias and the parties on appeal continue to refer to him as
Vasquez. Accordingly, this court will do likewise.
2
In relevant part, § 1252c provides as follows:
Notwithstanding any other provision of law, to the extent
permitted by relevant State and local law, State and local law
enforcement officials are authorized to arrest and detain an
individual who–
(1) is an alien illegally present in the United States; and
(2) has previously been convicted of a felony in the
United States and deported or left the United States after
such conviction,
but only after the state or local law enforcement officials obtain
appropriate confirmation from the [INS] of the status of such
individual and only for such period of time as may be required for
the [INS] to take the individual into Federal custody for purposes of
deporting or removing the alien from the United States.

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asserts that his arrest by Pratt was not authorized by § 1252c because Pratt did not

know Vasquez was a prior deportee with a criminal record at the time of the arrest

and had not received appropriate confirmation of Vasquez’s status from the INS.

The United States concedes that § 1252c did not authorize Pratt to arrest

Vasquez but argues that state law did so independently. In particular, the United

States observes this court has long held that state and local law enforcement

officers are empowered to arrest for violations of federal law, as long as such

arrest is authorized by state law. See Davida v. United States, 422 F.2d 528, 530

(10 th Cir. 1970); cf. United States v. Janik, 723 F.2d 537, 548 (7 th Cir. 1983)

(“infer[ring], as a matter of state law] that Illinois officers have implicit authority

to make federal arrests”); United States v. Swarovski, 557 F.2d 40, 43-49 (2 d Cir.

1977) (noting generally that there is no overarching federal impediment to arrests

by state officers for violations of federal law). In fact, this court has held that

state law-enforcement officers have the general authority to investigate and make

arrests for violations of federal immigration laws. See United States v. Salinas-

Calderon, 728 F.2d 1298, 1301-02 & n.3 (10 th Cir. 1984); see also Gonzales v.

City of Peoria, 722 F.2d 468, 477 (9 th Cir. 1983). Furthermore, Vasquez concedes

that Oklahoma law allows local law-enforcement officials to make arrests for

violations of federal law, including immigration laws. See generally 11 Okla. Op.

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Att’y Gen. 345, 1997 WL 37653 (1979) (noting that “any peace officer within the

State who observes an offense against the law of the United States committed

within his presence has the present ability to arrest and detain an individual for

that violation”). According to the United States, the passage of § 1252c did not

affect this preexisting authority on the part of state and local officers.

In response, Vasquez argues that all arrests not authorized by § 1252c are

prohibited by it. In particular, Vasquez argues that the passage of § 1252d

displaced existing federal and state authority for local law enforcement officers to

arrest for immigration violations. According to Vasquez, Congressional intent to

preempt contrary state law is apparent from both the express terms and design of

§ 1252c. These contentions are the appropriate starting point for this court’s

analysis.

Congress’ power to preempt state law arises from the Supremacy Clause,

which provides that “the Laws of the United States . . . shall be the supreme Law

of the Land . . . any Thing in the Constitution or Laws of any State to the

Contrary notwithstanding.” U.S. Const. Art. VI, cl.2. Congressional intent is

paramount in preemption analysis. See Mount Olivet Cemetery Ass’n v. Salt Lake

City, 164 F.3d 480, 486 (10 th Cir. 1998). Preemption may be either (1) expressed

or (2) implied from a statute’s structure and purpose. See Jones v. Rath Packing

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Co., 430 U.S. 519, 525 (1977). 3 Nevertheless, “[c]onsideration under the

Supremacy Clause starts with the basic assumption that Congress did not intend to

displace state law.” Maryland v. Louisiana, 451 U.S. 725, 746 (1981).

Accordingly, in the absence of express preemptive language, federal courts should

be “reluctant to infer pre-emption.” Building & Constr. Trades Council of Metro.

Dist. v. Associated Builders & Contractors of Mass./R.I., Inc., 507 U.S. 218, 224

(1993). With these principles in mind, this court proceeds to the question of

whether Congress intended § 1252c to preempt preexisting state law empowering

state and local officers to arrest for violations of federal immigration laws.

Vasquez first contends that § 1252c expressly preempts state law.

According to Vasquez, that express preemption is contained in the first clause of

§ 1252c–“[n]otwithstanding any other provision of law”–which evinces

Congressional intent to preempt any law, federal or state, “in conflict with

section 1252c.” When considered in context with the remainder of the

3
In addition to express preemption, the Supreme Court has recognized two
types of implied preemption: (1) field preemption, where the federal regulatory
scheme is so pervasive as to create the inference that Congress meant to leave no
room for the states to supplement it; and (2) conflict preemption, where
compliance with both state and federal law is impossible or state law stands as an
obstacle to the accomplishment and execution of the full purposes and objectives
of Congress. See Gade v. National Solid Wastes Mgmt. Ass’n, 505 U.S. 88, 98
(1992) (plurality opinion); Barnett Bank of Marion County, N.A. v. Nelson, 517
U.S. 25, 31 (1996); see also Mount Olivet Cemetery Ass’n v. Salt Lake City, 164
F. 3d 480, 486 (10 th Cir. 1998).

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introductory portion of § 1252c, the cited clause cannot reasonably be read as an

express preemption of preexisting state law. See Gade, 505 U.S. at 2386

(plurality opinion) (noting that courts should be hesitant to find express

preemption from “negative implications” of a statute’s text). Instead, the statute’s

introductory language simply mandates that the authority newly granted state and

local officers in § 1252c is to be given effect despite any contrary preexisting

federal limitations.

The propriety of such a reading becomes readily apparent when the first

two clauses of § 1252c are considered in conjunction: “Notwithstanding any other

provision of law, to the extent permitted by relevant State and local law, State and

local law enforcement officials are authorized to arrest and detain an individual

who . . . .” It is clear from the second quoted clause–“to the extent permitted by

state and local law”–that Congress did not intend to preempt state and local law

when it granted authority to arrest illegal aliens to state and local law enforcement

officers. Indeed, the exercise of that power is specifically made dependent on

state and local authorization. The second clause of the introductory language

expressly negates any intent to preempt state-law limitations on state or local

authority to arrest, and strongly suggests an intent to rely solely on state-law

authorization to arrest, rather than to broaden or augment such authorization. It is

implausible to read any preemptive intent into the immediately preceding clause.

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Accordingly, the only sensible reading of the notwithstanding-any-other-

provision-of-law clause is that it was inserted to ensure that other federal laws

not be construed to restrict the authority granted in § 1252c.

This reading of § 1252c is consistent with the statute’s limited legislative

history. Section 1252c originated in the House of Representatives as a floor

amendment to the Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”). See 142 Cong. Rec. 4619 (comments of Rep. Doolittle) (offering

amend. no. 7 to H.R. 2703); Pub. L. No. 104-132, § 439, 110 Stat. 1214, 1276

(1996). The legislative history of § 1252c comprises only the floor debate on the

amendment which took place in the House of Representatives. During that

debate, Representative Doolittle, the sponsor of the amendment, described the

purpose of § 1252c as follows:

With such a threat to our public safety posed by criminal
aliens, one would think that we would give law enforcement all the
tools it needs to remove these criminals from our streets, but
unfortunately just the opposite is true. In fact, the Federal
Government has tied the hands of our State and local law
enforcement officials by actually prohibiting them from doing their
job of protecting public safety. I was dismayed to learn that the
current Federal law prohibits State and local law enforcement
officials from arresting and detaining criminal aliens whom they
encountered through their routine duties. In fact, a low re-entry into
the United States by deported aliens was considered a felony. Our
State and local law enforcement officers are only permitted to release
the felon and contact the INS with the details of the incident.
Mr. Chairman, current Federal law in this area places our
communities at risk and has led me to offer this amendment to H.R.

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 2703, an amendment I feel will help put some sense back into our
laws dealing with the re-entry of criminal aliens into this country.
My amendment would also permit State and local law
enforcement officials to assist the INS by granting them the authority
in their normal course of duty to arrest and detain criminal aliens
until the INS can properly take them into Federal custody.
With my amendment, law enforcement officials would no
longer be required to release known dangerous felons back into our
communities. Instead, this amendment would give those with the
responsibility of protecting our public safety the ability to take a
known criminal alien off our streets and put him behind bars.
....
My amendment is supported by our local law enforcement
because they know that fighting illegal immigration can no longer be
left solely to Federal agencies. Let us untie the hands of those we
ask to protect us and include my amendment in H.R. 2703 today.

142 Cong. Rec. 4619 (1996) (comments of Rep. Doolittle). As the comments of

Representative Doolittle make clear, the purpose of § 1252c was to displace a

perceived federal limitation on the ability of state and local officers to arrest

aliens in the United States in violation of Federal immigration laws. 4 This

legislative history does not contain the slightest indication that Congress intended

4
Unfortunately, during the floor debate on § 1252c, Representative
Doolittle did not identify which “current Federal law” prohibited “State and local
law enforcement officials from arresting and detaining criminal aliens.” Neither
the United States nor Vasquez has identified any such preexisting law.
Furthermore, this court has not been able to identify any pre-§ 1252c limitations
on the powers of state and local officers to enforce federal law. In fact, as set out
above, this court has held that state law-enforcement officers have the general
authority to investigate and make arrests for criminal violations of federal
immigration laws. See United States v. Salinas-Calderon, 728 F.2d 1298, 1301-
02 (10 th Cir. 1984); see also Gonzales v. City of Peoria, 722 F.2d 468, 477 (9 th
Cir. 1983).

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to displace any preexisting enforcement powers already in the hands of state and

local officers. 5 Accordingly, neither the text of the statute nor its legislative

history support Vasquez’s claim that § 1252c expressly preempts state law.

In the alternative, Vasquez makes a bald claim that the “design” of § 1252c

demonstrates Congress intended to subject state and local police officers to only

one set of procedures, namely those procedures set forth in § 1252c, when

considering the arrest of criminal illegal aliens. In light of that assertion,

Vasquez further contends that “allowing state police officers to determine under

state law whether to investigate and arrest someone as an illegal alien ‘stands as

an obstacle to the accomplishment and execution of the full purposes and

objectives of [C]ongress’ in enacting [s]ection 1252c.” Appellant Brief at 15

(citing Gade, 505 U.S. at 98 (plurality opinion)).

This court finds no federal preemption of state law implicit in the design of

§ 1252c. As noted by the United States, Vasquez’s argument in favor of implied

preemption is based solely on the maxim of statutory construction expressio unius

exclusio alterius (expression of one thing is the exclusion of another). That is to

say, when Congress granted arrest power to state and local police officers in

5
Because § 1252c was not passed as a committee bill, but rather as a floor
amendment to the AEDPA, floor debate is more indicative of legislative intent
than it otherwise would be. See Garrett v. Hawk, 127 F.3d 1263, 1265 n.2 (10 th
Cir. 1997). This is especially true because Representative Doolittle sponsored the
amendment and his statements regarding its purpose were uncontested. See id.

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certain circumstances, it impliedly precluded the exercise of that power in all

other circumstances. Vasquez’s expressio unius argument admittedly has “some

force.” See Landgraf v. USI Film Prods., 511 U.S. 244, 259 (1994).

Nevertheless, the maxim, like other canons of statutory construction, is not

conclusive. See id. at 257-64 (analyzing section of statute mandating that certain

provisions apply prospectively only and declining to draw negative inference that

Congress intended remainder of statute to apply retroactively); Dow Chem. Co. v.

United States, 476 U.S. 227, 233-34 (1986) (refusing to construe a limited grant

of enforcement authority to the Environmental Protection Agency as an implicit

negation of other sources of authority). We conclude that the canon is overcome

here by § 1252c’s legislative history and by subsequent Congressional enactments

providing additional nonexclusive sources of authority for state and local officers

to enforce federal immigration laws.

As discussed at length above, § 1252c’s legislative history demonstrates

that the purpose of the provision was to eliminate perceived federal limitations

which, according to Representative Doolittle, “tied the hands of our State and

local law enforcement officials.” 142 Cong. Rec. 4619 (1996). In fact,

Representative Doolittle indicated that he was “dismayed to learn that the current

Federal law prohibits State and local law enforcement officials from arresting and

detaining criminal aliens whom they encountered through their routine duties.”

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Id. There is simply no indication whatsoever in the legislative history to § 1252c

that Congress intended to displace preexisting state or local authority to arrest

individuals violating federal immigration laws.

In addition to this compelling legislative history, we note that in the months

following the enactment of § 1252c, Congress passed a series of provisions

designed to encourage cooperation between the federal government and the states

in the enforcement of federal immigration laws. For instance, Congress

specifically empowered the Attorney General and the INS Commissioner to

contract with state and local agencies for assistance in enforcing immigration

laws and incarcerating illegal aliens. See Omnibus Consolidated Appropriations

Act, 1997, Pub. L. No. 104-208, §§ 133, 371(1) & (2), 110 Stat. 3009, 3009-563,

3009-647 (1996) (codified at 8 U.S.C. §§ 1357(g)(1), 1103(a)(9) & (c)).

Significantly, however, Congress provided that a formal agreement is not

necessary for state and local officers “to cooperate with the Attorney General in

the identification, apprehension, detention, or removal of aliens not lawfully

present in the United States.” Id. § 133, 110 Stat. at 3009-564 (codified at 8

U.S.C. § 1357(g)(10)(b)). This collection of statutory provisions evinces a clear

invitation from Congress for state and local agencies to participate in the process

of enforcing federal immigration laws. Viewed against this backdrop, Vasquez’s

claim that allowing state and local officers to arrest illegal aliens pursuant to

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preexisting state or local authority would impede the accomplishment of

Congress’ purposes and objectives in enacting § 1252c is particularly

unconvincing.

Both the plain language and legislative history of § 1252c reflect that

Congress intended the provision to displace perceived Federal limitations on the

authority of state and local officers to arrest “criminal illegal aliens.”

Nevertheless, as noted above, neither of the parties have identified, and this court

has not found, any such extant federal limitation on the authority of state and

local officers. See supra note four. Accordingly, it might be argued that this

court’s interpretation of § 1252c leaves the provision with no practical effect.

That reason standing alone is not, however, sufficient for this court to

manufacture a purpose for § 1252c by interpreting it to preempt state law. Such

an approach would both contradict the plain language of § 1252c and give the

statute an interpretation and effect that Congress clearly did not intend.

The judgment of the district court denying Vasquez’s motion to suppress is

hereby AFFIRMED.

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