In the talk about what immigration enforcement will look like under a second Trump administration, one key provision of the Immigration and Nationality Act (INA) has been overlooked: section 103(a)(10). It allows the executive branch to authorize state and local cops to perform “any of the powers . . . or duties conferred or imposed by” the INA. It’s apparently never been used — but that doesn’t mean it can’t be. Of course, some questions need to be answered first, and some regulations need a little updating to reflect all the changes in the law over the past two decades.
Reference to the “Attorney General” in Section 103(a)(10) of the INA
If you’re familiar with immigration enforcement today, you’ll likely know what some of those questions are by reading the specific language of the provision. Here’s the current text:
In the event the Attorney General determines that an actual or imminent mass influx of aliens arriving off the coast of the United States, or near a land border, presents urgent circumstances requiring an immediate Federal response, the Attorney General may authorize any State or local law enforcement officer, with the consent of the head of the department, agency, or establishment under whose jurisdiction the individual is serving, to perform or exercise any of the powers, privileges, or duties conferred or imposed by this chapter or regulations issued thereunder upon officers or employees of the Service. [Emphasis added.]
For reasons I’ll explain below, the INA often refers to the “attorney general” — head of the Department of Justice (DOJ) — when describing powers and duties now exercised by the secretary of Homeland Security (DHS secretary), and sometimes it uses the term to describe immigration powers specifically reserved to the attorney general and DOJ.
Section 103(a)(1) of the INA illustrates the latter point:
The Secretary of Homeland Security shall be charged with the administration and enforcement of this chapter and all other laws relating to the immigration and naturalization of aliens, except insofar as this chapter or such laws relate to the powers, functions, and duties conferred upon the President, Attorney General, the Secretary of State, the officers of the Department of State, or diplomatic or consular officers: Provided, however, That determination and ruling by the Attorney General with respect to all questions of law shall be controlling. [Emphasis in original.]
INS, 9/11, and the Homeland Security Act of 2002
To understand why that rather specific reference to the power of the attorney general under the INA vis-à-vis the power of the DHS secretary (and the secretary of State) appears in section 103(a)(1) of the INA, you must go back to the period before the creation of DHS in the Homeland Security Act of 2002 (HSA).
As I explained during the 20th anniversary of DHS in March 2023, the HSA was a largely reactionary (in the truest sense of the term) piece of legislation: It was passed in response to all of the things the then-Immigration and Naturalization Service (INS) — the “Service” referred to — was doing wrong or not at all.
Up to the effective date of the HSA (March 1, 2003), the attorney general and DOJ had jurisdiction over immigration enforcement (the INS), the adjudication of most immigration benefits (also the INS), and immigration adjudications in the immigration courts and before the Board of Immigration Appeals (“BIA”), both of which are tribunals within DOJ’s Executive Office for Immigration Review, or “EOIR”.
Visas for foreign nationals abroad were issued by consular officers in the State Department (DOS), and it was those officers who issued visas to all 19 of the hijackers who carried out the attacks of September 11, 2001.
Consequently, DOS was heavily scrutinized over its visa-issuance practices in the immediate aftermath of September 11th.
That scrutiny quickly shifted, however, to adjudicators at INS after it was revealed they had approved student visas for the two terrorist pilots who flew the planes into the Twin Towers of the World Trade Center—six months to the day after those attacks.
That paperwork glitch triggered an effort to move immigration enforcement and adjudications out of DOJ and the INS and into a new department (DHS) that at that point was only in the conceptual stage.
When the dust settled and the HSA was signed, DOS kept its consular visa-issuance duties and DOJ kept EOIR and the immigration courts. All the other component parts of the INS, however, were dispersed among new DHS agencies, with border enforcement going to CBP, interior enforcement ending up at ICE, and most domestic immigration adjudications becoming the responsibility of USCIS.
One way the Attorney General has implemented administrative changes to immigration policy — both prior to and after the passage of the HAS — is through the issuance of precedential decisions, either on his own accord using his certification authority or by the BIA.
So after much discussion and debate, it was decided that EOIR would remain at DOJ even after passage of the HSA, a fact plainly reflected in amendments to section 103(a)(1) of INA therein. Unfortunately, the drafters of the HSA overlooked all the immigration powers previously vested in the Attorney General in the rest of section 103.
Consequently, Congress had to come back (eight days before DHS went live) in the Consolidated Appropriations Resolution, 2003 (CAR 2003) and revise the HSA amendments to section 103(a)(1) to replace the words “Attorney General” with “Secretary of Homeland Security”.
Back to Section 103(a)(10) of the INA
Of course, that didn’t change the use of the term “Attorney General” any of the 15 other times it appears in section 103 of the INA to address duties and responsibilities the HSA transferred from INS to DHS, but fortunately paragraphs (a)(2) through (a)(7) are written in such a way that the amended language clearly refers to the DHS secretary.
For example, and most pertinently, paragraph (a)(5) therein states that:
He [referring to the DHS secretary] shall have the power and duty to control and guard the boundaries and borders of the United States against the illegal entry of aliens and shall, in his discretion, appoint for that purpose such number of employees of the Service as to him shall appear necessary and proper.
Of course, that doesn’t get around the pesky problem that “Service” in that paragraph plainly refers to the INS abolished by HSA on March 1, 2003, but courts and the rest of the government know and have generally accepted what Congress meant even if the legislative branch didn’t spell it out that well.
Which brings me back to that hitherto unused authority in section 103(a)(10) of the INA.
It was added to the act by section 372 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). Aside from the header (“Delegation of Immigration Enforcement Authority”) there’s not much explication, but fortunately the conference report for IIRIRA spells out how it would work in practice:
This section amends INA section 103(a) to provide that in the event of a mass influx of aliens off the coast of the United States or at a land border, the Attorney General may authorize a State or local law enforcement officer, with the consent of the officer's superiors, to perform duties of immigration officers under the INA.
This is an extremely expansive grant of authority in the context of the rest of the act. The duties of immigration officers in the INA include the authority to interrogate without a warrant individuals believed to be aliens about their right to be in the United States (section 287(a)(1)), to apprehend illegal entrants without a warrant (section 287(a)(2)), to arrest and detain aliens on a warrant (section 236(a)), and to remove aliens ordered removed (section 241(a)(1)(A)). Just for starters.
How It Works
Although this power has never been used, a raft of regulations implementing this provision were published in the Federal Register in July 2002 that sketch out how this authority would work in practice.
First, 28 CFR § 65.81 defines what constitutes an “immigration emergency” and broadly specifies what sorts of “assistance” may be requested.
Basically, either an actual or imminent influx of aliens that would overwhelm the capacities of the INS in specific areas would constitute an immigration emergency, but that influx is not necessarily limited to or defined by the number of aliens involved.
Rather, “an apparent connection between the influx and increases in criminal activity”, or “the actual or imminent imposition of unusual and overwhelming demands on law enforcement agencies”, or “other similar characteristics” are all sufficient.
As for the assistance part, it “may include, but need not be limited to, the provision of large shelter facilities for the housing and screening of aliens, and, in connection with these activities, the provision of such basic necessities as food, water clothing, and health care”. That’s pretty broad, and the Federal Register analysis makes clear that state and local officers could also perform actual enforcement duties.
Under 28 CFR § 65.82, the president — either at the behest of the Attorney General or the chief executive of a state or locality — can determine that there’s an “immigration emergency” but must “certify that fact to the Judiciary Committees of the House of Representatives and of the Senate”.
Alternatively, 28 CFR § 65.83 allows the Attorney General to skip the presidential determination step by simply deciding to seek state and local help in any of the following scenarios:
(a) An INS district director certifies to the Commissioner of INS, who shall, in turn, certify to the Attorney General, that the number of asylum applications filed in that INS district during the relevant calendar quarter exceeds by at least 1,000 the number of such applications filed in that district during the preceding calendar quarter. For purposes of this paragraph, providing parole at a point of entry in a district shall be deemed to constitute an application for asylum in the district.
(b) The Attorney General determines that there exist circumstances involving the administration of the immigration laws of the United States that endanger the lives, property, safety, or welfare of the residents of a State or locality.
(c) The Attorney General determines that there exist any other circumstances, as defined in § 65.81 . . . such that it is appropriate to seek assistance from a State or local government in administering the immigration laws of the United States or in meeting urgent demands arising from the presence of aliens in a State or local jurisdiction.
Those triggers, especially the first one, seem quaint in light of the flood of illegal migrants over the Southwest border in the past four years.
Regardless of whether an immigration emergency is declared through a presidential or Attorney General determination, 28 CFR § 65.84 states that the Attorney General usually must enter into an agreement with state or local officials on the terms of the assistance they will provide and the funding therefor before they can exercise any immigration authority.
Notably, it also permits the INS Commissioner to execute “contingency agreements” with state and local officials even absent the determination of an immigration emergency, but of course they couldn’t use those powers or fulfill those duties until an emergency determination was made.
Such agreements are not purely theoretical. As DOJ explained in its Federal Register post:
Preliminary contingency agreements between the Service and several State or local law enforcement agencies in the State of Florida have been developed in order to be in place prior to the authorization of immigration law enforcement in the event a mass influx of aliens is declared.
The regulations note that any agreement must include training requirements for state and local officers and require those officers to adhere to such training as well as to “applicable immigration law enforcement standards and procedures, civil rights law, and sensitivity and cultural awareness issues”.
That said, 28 CFR § 65.84(a)(4) permits the Attorney General to waive or abbreviate that training:
in the event that the number of State or local law enforcement officers available to respond in an expeditious manner to urgent and quickly developing events during a declared mass influx of aliens is insufficient to protect public safety, public health, or national security.
Remaining Questions
The significant congressional grant of authority in section 103(a)(10) of the INA has apparently never been tapped, and — the interests and inclinations of various administrations aside — that may be for good reason, given all the uncertainties in the language of the statute and regulations.
Again, it’s unclear whether that authority resides in the Attorney General – as the language of the paragraph reads — or in the DHS secretary, the successor to the Attorney General in immigration enforcement. If this authority were used, it would likely be safest to have both of them make the determination absent a presidential determination, and to have both implement it.
Then there’s the fact that the implementing regulations refer repeatedly to the duties of an official — the INS commissioner — who doesn’t exist anymore and who hasn’t existed for nearly 22 years.
Should the current, incoming, or any future administration desire to use the authority contained in section 103(a)(10), it should update the regulations. As is, they are almost unworkable in practice — not completely unworkable, but close enough to likely trigger extensive and costly litigation.
As a final aside, I note that this authority could be easily confused with section 287(g) of the INA, which authorizes ICE to delegate certain immigration-enforcement authorities to state and local officials. That is a generalized delegation, whereas section 103(a)(10) is more specific and limited in time and geographical scope.
Plainly, the United States has experienced an “actual mass influx” of aliens at the border for the past four years, that has “an apparent connection” to “increases in criminal activity” and “endangers the lives, property, safety, or welfare of the residents of” states and localities. Fortunately, Congress has given the executive branch a tool to deal with that influx — albeit one that needs some interpretation and updating.