May 6, 2005

SACRAMENTO – Legal experts had mixed views yesterday about whether the courts would allow California to create a border patrol to control illegal immigration, if voters approved a proposed initiative next year.

And a federal agency fact sheet on a 1996 law that allows state and local police to enforce immigration law says the officers do not become full-time immigration officers and do not conduct immigration sweeps.

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Gov. Arnold Schwarzenegger said he hasn't read the proposed initiative, but in a brief reply to a question at a news conference he said he would push for a comprehensive federal solution to illegal immigration.

The initiative was filed this week by Assemblyman Ray Haynes, R-Murrieta, and the group Rescue California, a Republican-oriented organization that helped gather signatures for the recall election that put Schwarzenegger in office.

Haynes also has introduced a proposed constitutional amendment in the Legislature, ACA 20, that mirrors his state border patrol initiative. Democrats have questioned the cost of creating a new state agency when the state is in a budget crunch.

An attorney for a large law firm in Memphis, Tenn., that represents immigrants and operates a decade-old Web site, visalaw.com, said creating a state border patrol is a "tremendous undertaking" with many problems.

"I guess legally it could be done," said Greg Siskind of the Siskind Susser law firm. "I don't know from a practical point of view how workable it would be."

An official of the American Immigration Lawyers Association, which has more than 8,000 members who practice and teach immigration law, said immigration is clearly controlled by the federal government.

"I don't think such an initiative (to set up a state border patrol) would survive a court challenge," said Jeanne Butterfield, executive director of the association.

Haynes contends that creation of a state border patrol would be authorized by a 1996 federal immigration law that allows state and local police to enforce immigration law.

A spokeswoman for U.S. Immigration and Customs Enforcement said Section 287(g) of the 1996 immigration law allows state and local police to detain illegal immigrants who may pose a criminal or security threat.

But the state and local agencies must first negotiate a memorandum of understanding with the immigration agency, which then trains the officers and provides supervision and support.

"State and local officers do not become full-time immigration officers, and they don't conduct immigration sweeps," said a fact sheet on Section 287(g) distributed by the federal agency.

Schwarzenegger, who has praised the "Minuteman" volunteer border watches in Arizona, told reporters the issue of illegal immigration has been "kind of sidestepped" and he would push for more federal action.

He said the federal government should address "all of those issues – the guest workers programs, or if it is what to do with the people that are here illegally in this country . . . all of this ought to be addressed."

President Bush has made a broad proposal that foreigners and illegal immigrants be allowed to obtain permits to work here legally. What would happen when the permits expire isn't clear.

U.S. Sens. Ted Kennedy, D-Mass., and John McCain, R-Ariz., have proposed that illegal immigrants who have a long work history can pay a fine, undergo a background check and eventually become eligible for citizenship.