Can New York police arrest someone without a warrant for being in the country illegally?

Plain-English summary

Suffolk County asked the AG whether New York police can make warrantless arrests for federal immigration law violations. The answer required navigating two layers of analysis: whether State arrest authority reaches federal crimes, and whether federal immigration law preempts that authority.

State arrest authority reaches federal crimes. Criminal Procedure Law §§ 140.10, 140.25, and 140.30 give police officers, peace officers, and "any person" the authority to make warrantless arrests for "offenses" and "crimes" in defined circumstances. Penal Law § 10.00 defines "offense" by reference to State or local law conduct. The AG noted that no New York Court of Appeals decision squarely addresses whether the State arrest statutes extend to federal crimes, but the Second Circuit's reasoning in United States v Swarovski (and earlier cases like Marsh v United States and United States v Burgos) construes the State statutes as reaching federal crimes too. The Second Circuit treated the change in wording of "offense" during the 1965 Penal Law recodification as housekeeping, not a substantive curtailment of long-standing State-federal arrest cooperation.

So if the New York Court of Appeals were directly presented with the question, the AG expected it to hold that State and local officers do have authority under State law to make warrantless arrests for federal crimes.

Federal preemption does not bar State enforcement of INA criminal provisions. The AG found no INA provision that excludes State enforcement. Two INA provisions affirmatively contemplate it: 8 USC § 1252c (state/local arrest of previously deported alien convicted of felony) and § 1324(c) (state/local arrest for transporting/harboring illegal aliens). The Ninth Circuit in Gonzales v City of Peoria and the Tenth Circuit in United States v Vasquez-Alvarez rejected preemption arguments, holding that these provisions create additional enforcement vehicles, not exclusive ones, and that State officers can enforce INA criminal provisions if State law authorizes the arrest.

The critical limitation is civil versus criminal violations. The INA has both kinds. Some violations carry criminal penalties (8 USC § 1325(a) illegal entry; § 1324(a) transporting illegal aliens; § 1306 alien registration offenses). Other violations are civil only, with deportation as the consequence (§ 1227 deportable alien definition; § 1229c(d) failure to depart after voluntary departure agreement; § 1253(c) vessel and aircraft penalties).

State arrest authority under CPL §§ 140.10, 140.25, 140.30 reaches only "offenses" punishable by imprisonment or a fine, which corresponds to criminal violations. Police may arrest for criminal INA violations but not for civil violations.

Practically, this is a major limit. "Illegal alien" status can result from many situations that are only civil violations: overstaying a visa, falling out of student status, working without authorization. The Ninth Circuit in Gonzales emphasized that not all "illegal aliens" can be arrested by local officers under State arrest statutes. People v Alvarez, a 1975 New York trial court decision, reached the same conclusion: status as an illegal alien does not, by itself, constitute an offense or crime for which a State or local officer can arrest.

So the rule the AG laid out: warrantless arrest is permitted for probable cause to believe the person has committed a criminal violation of the INA (illegal entry, transporting, harboring), but not for mere illegal presence. Status alone is not enough; the officer needs evidence of criminal conduct.

The opinion adds standard Fourth Amendment and constitutional reminders: arrests must satisfy probable cause; race-based enforcement is impermissible; investigative stops and detentions are subject to constitutional limits.

Currency note

This opinion was issued in 2000. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

What's the difference between criminal and civil INA violations?

Criminal violations carry imprisonment, fines, or both as statutory penalties. Examples: illegal entry into the United States (§ 1325(a)), transporting illegal aliens (§ 1324(a)), harboring (§ 1324(a)), pattern-or-practice unauthorized employment (§ 1324a(f)), alien registration offenses (§ 1306). Civil violations carry deportation or fines as administrative consequences without criminal penalties. Mere presence in the United States without legal status, after a lawful entry, is typically a civil violation.

Why doesn't "illegal presence" count?

Because illegal presence is not the same as illegal entry. A person can be in the country lawfully (visa, parole, etc.) and become illegally present by overstaying or violating conditions. That falls-out-of-status pattern is a civil violation. Illegal entry (crossing the border without inspection or by fraud) is a criminal violation.

What if the officer thinks the person entered illegally but cannot prove it?

That's the People v Alvarez problem. The court there said that absent knowledge of facts showing how the person became an illegal alien (specifically illegal entry rather than visa overstay), the officer cannot find probable cause for criminal violation. Suspicion of "illegal status" is insufficient.

Did this analysis change after the 2002 Office of Legal Counsel memo?

Yes, significantly. The federal OLC issued memos in 2002 endorsing broader State enforcement, which led to the Department of Homeland Security's 287(g) program in subsequent years. Federal policy and the legal landscape around State-local immigration enforcement have shifted substantially since this 1999 opinion.

Can New York agree to broader enforcement under 8 USC § 1357(g)?

§ 1357(g) (the 287(g) authority) lets the U.S. Attorney General enter agreements with States or localities to delegate INS authority. The AG noted in 2000 that no such agreement was in place. Whether to enter such an agreement is a policy choice for State and local officials.

Background and statutory framework

Criminal Procedure Law § 140 sets up the warrantless arrest framework. § 140.10 authorizes police arrests for offenses or crimes; § 140.25 covers peace officers; § 140.30 covers citizen arrests with stricter limits. Penal Law § 10.00 defines "offense," "crime," "misdemeanor," and "felony," and the CPL incorporates those definitions via § 1.20.

The Immigration and Nationality Act, 8 USC Chapter 12, is the federal immigration statute. It contains both criminal provisions (§ 1325(a), § 1324, § 1306) and civil provisions (§ 1227, § 1229c, § 1253(c)). Criminal provisions can be enforced through arrest; civil provisions are administrative.

The Supreme Court's decisions in United States v DiRe and United States v Watson established that warrantless arrests by federal agents are governed by federal common law, including the doctrine that an officer can arrest for a felony on probable cause. The Second Circuit's Swarovski applied parallel reasoning to State officers making federal arrests under State authority.

The federal-State enforcement question continued to evolve after 1999. The Department of Justice's 2002 OLC memo, the 287(g) program, S-COMM, Secure Communities, ICE-local-law-enforcement agreements: each has changed the operational picture without disturbing the basic 1999 doctrinal point about civil-versus-criminal violations.

Citations

• US Const., Fourth Amendment (search and seizure; probable cause requirement).
• Criminal Procedure Law § 1.20 (definitions; incorporation of Penal Law).
• Criminal Procedure Law § 140.10 (warrantless arrest by police officer).
• Criminal Procedure Law § 140.25 (warrantless arrest by peace officer).
• Criminal Procedure Law § 140.30 (citizen arrest).
• Penal Law § 10.00 (definitions of offense, crime, misdemeanor, felony).
• 8 USC § 1103(8) (US Attorney General authorization in emergency).
• 8 USC § 1227 (deportable alien definition).
• 8 USC § 1229c(d) (failure to depart after voluntary departure).
• 8 USC § 1252c (state/local arrest of previously deported felon).
• 8 USC § 1253(a) (criminal penalty for disobeying removal order).
• 8 USC § 1253(c) (civil penalties for vessels/aircraft).
• 8 USC § 1306 (alien registration offenses, criminal).
• 8 USC § 1324(a) (transporting/harboring illegal aliens, criminal).
• 8 USC § 1324(c) (state/local arrest authority for § 1324(a) violations).
• 8 USC § 1324a(f) (pattern or practice of hiring illegal aliens, criminal).
• 8 USC § 1325(a) (illegal entry, criminal).
• 8 USC § 1357(g) (Attorney General agreements with state/local agencies).
• People v Floyd, 56 Misc 2d 373 (Queens Co. Sup. Ct. 1968) (State officer arrest under outstanding federal warrant).
• People v Alvarez, 84 Misc 2d 897 (Sup. Ct. N.Y. Co. 1975) (illegal alien status not per se arrestable offense).
• United States v Swarovski, 557 F.2d 40 (2d Cir. 1977) (extensive discussion of State arrest authority for federal crimes).
• Gonzales v City of Peoria, 722 F.2d 468 (9th Cir. 1983) (no INA preemption of State criminal enforcement; civil/criminal distinction).
• United States v Vasquez-Alvarez, 176 F.3d 1294 (10th Cir. 1999) (§ 1252c does not preempt State authority).
• United States v Avery, 137 F.3d 343 (6th Cir. 1997) (race-based enforcement impermissible).

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_2000-1_pw.pdf

Original opinion text

Opn. No. 2000-1
US CONST, FOURTH AMEND; CRIMINAL PROCEDURE LAW §§1.20, 140.10, 140.25, 140.30;
PENAL LAW § 10.00; 8 USC, CH 12, §§1252c, 1253(c), 1254(a)(1), 1255a, 1324(a) and (c), 1325(b).
New York State law enforcement officials may make arrests without warrants for criminal violations of
the federal Immigration and Nationality Act. However, mere status as an alien, or even as an illegal
alien, may only be a civil violation of the Act and thus would not be a sufficient basis for an arrest.
March 21, 2000
Robert J. Cimino, Esq.
County Attorney
County of Suffolk
P. O. Box 6100
Hauppauge, NY 11788-0099

Informal Opinion
No. 2000-1

Dear Mr. Cimino:
You have asked whether New York law enforcement officials are authorized to make warrantless
arrests for violations of the federal Immigration and Nationality Act ("INA" or "Act"). 8 U.S.C. ch. 12.
There is no definitive authority in the New York state courts holding that state and local police officers
may make warrantless arrests for federal crimes. However, it appears likely that if the question were to
be presented directly, the state courts would so hold.
If state and local officers do have such authority under state law, the INA permits them to arrest
an individual without a warrant where the arresting officer has probable cause to believe that the
individual has committed a criminal violation of the Act. Importantly, reasonable belief that a person has
committed a civil violation of the Act does not provide a valid basis for an arrest. Therefore, a person's
status as illegally present in the country, which is a civil violation of the INA, without evidence that the
person illegally entered the United States (a violation of the criminal provisions of the Act), does not,
perforce, provide probable cause that the person is subject to arrest for violation of any criminal
provision.
Power Under State Law of State and Local Law Enforcement Officers to Make Arrests for
Federal Crimes
Criminal Procedure Law §§ 140.10, 140.25 and 140.30 provide broad authority for police officers,
peace officers and "any person," respectively, to make arrests without warrants in defined
circumstances. Most relevant here is section 140.10, which authorizes a police officer to make a
warrantless arrest whenever he has reasonable cause to believe that a person has committed an "offense"
in his presence, or that a person has committed a "crime," either in or out of the officer's presence.
"Offense" is defined in Penal Law § 10.00(1) (and made applicable to the Criminal Procedure Law by
CPL § 1.20) as conduct made punishable by a state or local law by a sentence of imprisonment or a fine.
"Crime" is defined as a misdemeanor or a felony, Penal Law § 10.00(6), which in turn are defined as
particular kinds of offenses.
There is substantial support for the position that the Penal Law and the Criminal Procedure Law,
although explicitly referring only to state and local crimes, do not exclude federal crimes from the scope
of authority granted to police officers and others to make warrantless arrests. It must be noted, however,
that almost all of the support for this proposition is from the Second Circuit and that there is no state
court opinion that directly so holds.
The most analogous state case is People v. Floyd, 56 Misc. 2d 373 (Queens Co. Sup. Ct. 1968),
aff'd, 33 A.D.2d 795 (2d Dep't 1969), rev'd on other grounds, 26 N.Y.2d 558 (1970). In Floyd, the lower
court approved an arrest by a New York City police officer of a person against whom there was an
outstanding federal warrant. The court rejected the arguments that the arrest was invalid because the
officer did not have the warrant in his possession and because, as a local officer, he did not have the
authority to execute a federal warrant. In rejecting the latter argument, the court observed that the arrest
could also be justified as a warrantless citizen's arrest for a felony. See 56 Misc. 2d at 376. The court did
not, however, specifically refer to any New York law in this regard. See also People v. Alvarez, 84
Misc. 2d 897 (Sup. Ct. N.Y. Co. 1975) (court invalidated arrest of defendant by local police on federal
immigration charges for lack of probable cause; court did not question officers' authority to make proper
arrest).
The most extensive discussion of this issue is found in United States v. Swarovski, 557 F.2d 40
(2d Cir. 1977), cert. denied, 434 U.S. 1045 (1978). In Swarovski, federal customs agents made a
warrantless arrest of a defendant caught illegally exporting a military camera. Because the federal agents
did not have authority under federal law to make the arrest, they invoked the citizen's arrest authority
provided by section 140.30 of the New York Criminal Procedure Law. The principal issue in the case
was whether the Penal Law and the Criminal Procedure Law provide authority for a citizen's arrest for
violations of federal law, even though federal crimes are not, as indicated above, specifically referred to
in those statutes. The court reviewed the long history of federal law enforcement by state and local
officers in New York as set forth in its own past decisions, such as Marsh v. United States, 29 F.2d 172
(2d Cir. 1928) (upholding arrest of defendant by state officer for federal misdemeanor under New York
law), and United States v. Burgos, 269 F.2d 763 (2d Cir. 1959) (upholding arrest of defendant by federal
customs agents on immigration charges under New York's citizen's arrest provision), and the evolution
of the language of the New York statutes. It concluded that the statutes do provide such authority:
In sum, the great weight of opinion in the federal courts and in the courts of the State of
New York, as well as the under- standing and practices of the executive branches of the
federal and state governments is to the effect that the statutory provisions of the State of
New York which authorize arrests by private persons of another person who is in the act of
committing or has in fact just committed a felony in the State of New York, include felonies
under the laws of the United States as well as those under the laws of New York.
Swarovski, 557 F.2d at 46-48, citing United States v. DiRe, 332 U.S. 581, 589, 591 (1948), and United
States v. Watson, 423 U.S. 411, 420-421 (1976).
In Swarovski, the court rejected the reasoning of the district court, which had held that the change
in wording of the definition of "offense" by the New York Legislature when the Penal Law was
recodified in 1965 (see Laws of 1965, ch. 1030) to include the language referring to state and local law,
was meant to exclude federal felonies. The court examined the legislative history and found:
We are entirely unpersuaded that the Legislature of the State of New York, in recodifying
the criminal procedure law and the penal law of the State, either intended to or did in fact,
dissolve all participation by the executive and judicial branches of the State government in
dealing with federal criminal offenses ... to the extent and degree that it has developed for
nearly 100 years ... and has become the established practice recognized by the executive and
judicial branches of the State and Federal Governments .... There is not a scrap of legislative
history to show that the termination of such participation was ever contemplated.... There is
nothing ...[to] suggest[] that the purpose of the definitions was in whole or in part to bring
to an end the State's participation in the apprehension and delivery of federal offenders to
the appropriate federal authorities. The New York State Legislature could, of course, have
codified the interpretation of existing statutes to include the right to arrest federal felons, but
this was hardly necessary in the light of 200 years of a well developed custom and a pattern
of state participation and cooperation in arresting, and placing in federal custody, violators
of federal criminal law in the State, a practice which is now so vital and important in any
high crime area of the nation.
Id. at 47-48.
Thus, although the question is not definitively settled in the state courts, it appears unlikely that
the courts would decide that state and local officers lack the authority to make arrests for violations of
federal criminal law.
Arrests By State and Local Officers For Violations of the INA Are Not Preempted
The question remains whether the INA itself preempts applicable state law and precludes
enforcement of its terms by state and local officers.
We have found no provision of the Act that expressly precludes or limits its enforcement by state
authorities. On the contrary, the only INA provisions we have found that specifically address this matter,
8 U.S.C. §§ 1252c and 1324(c), affirmatively authorize state and local enforcement under certain
circumstances.
Section 1252c authorizes, to the extent permitted by state and local law, state and local law
enforcement officials to arrest illegal aliens who have previously been convicted of a felony and have
been deported or left the country after conviction. Such arrests may be made only after the local official
confirms the individual's status with the Immigration and Naturalization Service ("INS") and only for
the period of time necessary for the INS to take custody.
Section 1324(c) authorizes "all other [i.e., other than INS employees] officers whose duty it is to
enforce criminal laws" to arrest persons for violating subdivision (a) of that section, which imposes
criminal penalties for transporting and harboring illegal aliens.
The Ninth and Tenth Circuits have rejected arguments that, by specifically providing for state and
local enforcement in these sections, Congress intended to preempt enforcement of the Act by state or
local authorities under state law. In Gonzales v. City of Peoria, 722 F.2d 468, 472-475 (9th Cir. 1983),
overruled in part on other grounds, Hodgers-Durgin v. De La Vina, 199 F.3d 1037 (9th Cir. 1999), the
court rejected such a claim with respect to § 1324. The court decided that local peace officers could
enforce any of the criminal provisions of the INA:
Although the regulation of immigration is unquestionably an exclusive federal power, it is
clear that this power does not preempt every state activity...
...
The City's claim of authority is limited. It asserts only the power to enforce the criminal
provisions of the federal immigration laws. There is nothing inherent in that specific
enforcement activity that conflicts with federal regulatory interests. Federal and local
enforcement have identical purposes--the prevention of the misdemeanor or felony of illegal
entry. The subject matter of the regulation thus does not require us to find that state
enforcement is preempted.
Gonzales, 722 F.2d at 474.
Similarly, in United States v. Vasquez-Alvarez, 176 F.3d 1294, 1297 (10th Cir.), cert. denied, 120
S. Ct. 264 (1999), the Tenth Circuit rejected the claim that unless a warrantless arrest by state or local
officers fits within the parameters of § 1252c, it is unauthorized. In rejecting this claim, the court noted
that federal courts had long held that state and local law enforcement officers are empowered to make
arrests for violations of federal law, including violations of the INA, if the arrest is authorized by state
law. Id. at 1296. While § 1252c did not provide a basis for the arrest, the court concluded that the
section does not affect the authority of state law enforcement officers to investigate and make arrests for
violations of the INA under the laws of Oklahoma. Id. at 1295. Section 1252c merely creates an
additional vehicle for enforcement of the Act. Id.
Accordingly, we conclude that the INA does not preempt the authority of state and local officials
to make warrantless arrests for criminal violations of the INA, insofar as such activity is authorized by
state and local law.
State and Local Enforcement Authority is Limited to the Criminal Provisions of the INA
The INA provides criminal penalties (fines and/or imprisonment) for violation of some of its
substantive provisions. See, e.g., 8 U.S.C. § 1253(a) (disobeying a removal order); § 1306 (offenses
relating to registration of aliens); § 1324(a) (transporting illegal aliens); § 1324a(f) (engaging in a
pattern or practice of hiring illegal aliens); § 1325(a) (illegally entering the country). However, the INA
also provides that violations of some provisions are punishable by civil penalties. See, e.g., 8 U.S.C. §
1229c(d) (failure to depart voluntarily after agreeing to do so); § 1253(c) (penalties relating to vessels
and aircraft). Also, it appears that some violations may result in no sanction other than deportation. See
8 U.S.C. § 1227 (defining who is a deportable alien).
As described earlier, the authority for state and local officers in New York to enforce the INA
comes from the Criminal Procedure Law. The authority so given sanctions a warrantless arrest for an
"offense," which is conduct punishable by a sentence of imprisonment or a fine. See Penal Law § 10.00
(1). It necessarily follows that state and local officers have no authority to arrest an individual under the
INA unless the officers have probable cause to believe that the individual has violated one of its
provisions that calls for a criminal penalty, rather than just a civil penalty or deportation.
The Ninth Circuit recognized these differences in Gonzales. There, the court emphasized that not
all "illegal aliens" may be arrested by local law enforcement officers under state law authorizing arrests
without warrants for criminal violations. 722 F.2d at 476. Under the Act, "illegal alien" may mean an
alien who has illegally entered the country, which is a criminal offense under § 1325, or an alien who
legally entered but is illegally present in the United States, which may be only a civil violation. Id. The
court noted that there are many reasons why an alien may be present illegally, such as overstaying a
visitor's visa, failing to maintain student status or acquiring prohibited employment, that do not involve a
criminal offense. The distinction is important because, as noted, enforcement of the INA by state and
local officers in New York is limited to the INA's criminal provisions. Thus, reasonable belief that an
alien is undocumented or illegally present does not provide a reasonable basis for an arrest based on the
belief that a criminal violation of the Act (such as illegal entry) has occurred.
This point was critical to a decision in at least one New York court. In People v. Alvarez, 84 Misc.
2d 897 (Sup. Ct. N.Y. Co. 1975), the defendant, who was admittedly an illegal alien, was arrested by
New York City police detectives. The court found that the defendant's status as an illegal alien did not
provide the officers with probable cause to arrest him. "In the absence of knowledge of any facts which
detail the specific circumstances by which the defendant . . . became an illegal alien, it is impossible to
find that a felony or even an offense" was actually committed. Id. at 900-901. "Status as an illegal alien
does not per se constitute an offense or a crime for which a sentence to a term of imprisonment or a fine
is provided as defined in [Penal Law § 10.00(1)]. . .." Id. See also Gonzales, 722 F.2d at 476 (noting that
arresting a person for a civil violation of the Act would not be authorized under Arizona law).
Our preliminary review of the federal law has not located any authority in the INA for state law
enforcement officers to enforce the civil provisions of the Act, and no such authority has been cited to
us. There is a provision in the INA, 8 U.S.C. § 1357(g), that allows the United States Attorney General
to enter an agreement with a state whereby state officers are delegated the powers of a federal
immigration agent. There is no such agreement in place here. The U.S. Attorney General also has the
power to authorize state and local law enforcement officers to perform any of the duties of an employee
of the INS in emergency situations. See 8 U.S.C. § 1103(8). The U.S. Attorney General has taken no
such action here.
Finally, we note that any exercise of the authority we believe state and local officers have to
enforce the criminal provisions of the INA is subject to all federal and state constitutional requirements
with respect to arrests, detentions and investigatory stops. Gonzales, 722 F.2d at 477. Therefore, actions
purportedly taken to enforce the Act that are based solely on race, for example, would be impermissible.
United States v. Avery, 137 F.3d 343, 355 (6th Cir. 1997).
Conclusion
New York State law enforcement officials may make arrests without warrants for criminal
violations of the federal Immigration and Nationality Act. However, mere status as an alien, or even as
an illegal alien, may only be a civil violation of the Act and thus would not be a sufficient basis for an
arrest. For a valid arrest, the officer must have probable cause to believe that the person has committed a
criminal violation of the INA, such as illegal entry into the United States, and not merely a civil
violation, such as illegal presence in the country.
The Attorney General renders formal opinions only to officers and departments of State
government. This perforce is an informal and unofficial expression of the views of this office.
Very truly yours,
JAMES D. COLE
Assistant Solicitor General
In Charge of Opinions