Introduction: The Border and Immigration Crisis

The Nature of the Crisis. Over the past four years, there has been a tidal wave of unlawful entries into the United States across our borders with Mexico (principally) and Canada, with the number of inadmissible aliens present in the United States estimated to range from 11 to 22 million before President Joe Biden took office and now perhaps 10 million higher.REF The reason for that recent influx is that the Biden Administration has encouraged the unlawful entry of migrants. Then-candidate Joe Biden expressly invited them to come to the United States,REF and, as President, he adopted a matador-like approach to border protection.REF The upshot is that the Biden Administration endorsed an “If you open it [the border], they will come” immigration policy.REF

A sad result of that cynical—and unlawfulREF—approach to enforcement of our immigration laws has been the commission of murders, rapes, and other violent crimes by inadmissible aliens.REF A particularly horrifying recent example involved an illegal alien from Guatemala who set a woman afire on the New York City subway and watched her burn to death.REF Atop that is the presence of potentially thousands of unvetted military-age males from countries hostile to ours—people who are potentially quite dangerous.REF

The Cause of the Crisis. Four interrelated factors have caused this crisis. The Biden Administration has had a heavy hand in each one.

First, the Constitution commands the President to execute the acts of Congress and treaties of the United States and assumes that the President will fulfill his oath of office to do just that.REF The Take Care Clause of Article II, Section 3, makes that pellucid.REF The President may do so himself but almost always directs one or more of the “Departments” or “Officers” who report to him to execute the law.REF Because the federal government may spend only the funds that Congress has appropriated (and for other reasons too),REF the President, aided by his lieutenants, has broad discretion to decide which enforcement actions best maximize the intended effect of the laws that he must see enforced.REF Here, too, the Framers’ assumption was that the President would exercise that discretion in a manner that best served the nation.REF

Second, although this point is less clear, the practical necessity to exercise discretion in bringing enforcement actions—for example, to choose cases with powerful facts, ones that have a great deterrent effect, or litigation that advances the President’s and Congress’s policy interests—does not entitle a President to flatly refuse to enforce a federal law. Said differently, the President cannot suspend the effect of a law or create an exception to it, certainly not for an existing or potential favored constituency or to serve his own or his party’s political interests.REF Article I makes it clear that Congress is the nation’s lawmaker, and the Take Care Clause shows that the President must carry into effect Congress’s legislation. Refusing to enforce a law is tantamount to suspending its effect for a time, place, or person, and that action is not materially different from exercising the legislative power to create an exception to that law. Read together, Articles I and II show that any such action is verboten.REF History reinforces that conclusion. England prohibited the Crown from suspending the law in Parliament’s landmark Bill of Rights of 1689,REF and the Framers carried that prohibition forward into the Constitution in the Take Care Clause of Article II.REF Yet President Biden effectively suspended the law by ratcheting down to near zero the enforcement of the Immigration and Nationality Act against illegal aliens.

Third, unlike the government’s decision to bring an enforcement action against a private party, the government’s decision not to initiate enforcement proceedings is unreviewable by a federal court.REF As the Supreme Court of the United States made clear in Linda R.S. v. Richard D., “a citizen lacks standing to contest the policies of the prosecuting authority when he himself is neither prosecuted nor threatened with prosecution” because “a private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another.”REF The states are in no better a position to challenge the federal government’s refusal to enforce the law. The Supreme Court, speaking through Justice Brett Kavanaugh in United States v. Texas, a case that involved the immigration problem discussed in this Legal Memorandum, held that a state cannot bring a federal lawsuit seeking relief against the federal government’s nonenforcement policies, for two reasons. One is that there is no “precedent, history, or tradition of courts ordering the Executive Branch to change its arrest or prosecution policies so that the Executive Branch makes more arrests or initiates more prosecutions.”REF The other is that, given “inevitable resource constraints and regularly changing public-safety and public-welfare needs,” the “complicated balancing process” required to decide what enforcement actions to bring leaves federal courts “without meaningful standards for assessing” those decisions.REF Thus, judicial review of nonenforcement is unavailable.

Fourth, as a result, only the voters or their representatives in Congress have the power to compel a President to enforce the law.REF While that might seem sufficient in theory, it has not proven to be effective in practice. Electoral disapproval is not available if a President is not seeking re-election. Even if he is, there are far too many other issues that a voter must consider for a President’s nonenforcement policy to register for most of the electorate. Impeachment and removal from office might be effective in some circumstances, but they have not been over the past four years. In April 2024, the Democratic-majority Senate dismissed without a trial the articles of impeachment for Homeland Security Secretary Alejandro Mayorkas approved by the Republican-majority House of Representatives because of Mayorkas’s refusal to enforce the immigration laws, even though the evidence of that willful refusal was obvious and overwhelming.REF Trying to impeach and remove Biden on that ground would have been even more futile. Besides, in the best of political circumstances, impeachment and removal grow increasingly useless as the time grows nigh for the President to move out of 1600 Pennsylvania Avenue.

The upshot is this: President Biden successfully nullified the federal immigration laws for the purpose, some have argued, of adding to the pool of potential voters, or at least headcount for congressional districts from the U.S. Census, that his party will use for future electoral success.REF That might be factually different from bribing people to vote for a particular slate of candidates in an upcoming election, but the effect is much the same.

A Complicating Factor: “Sanctuary Jurisdictions.” Congress never passed legislation ratifying the Biden immigration policy, so President Donald Trump can countermand it immediately upon being sworn into office. But that only begins the hard work. President Trump vowed to adopt that policy on his first day in office, focusing on aliens with a history of violence in the United States or in their home nations—aliens that pose a public safety or national security threat.REF Once permitted to do its job of enforcing the immigration laws, the Department of Homeland Security (DHS) must identify, locate, apprehend, and deport the people who are here unlawfully.

DHS, however, has limited resources. There are more than 30 federal law enforcement agencies and 70 Offices of Inspectors General that have what are known as special agents or GS-1811 Class investigators—that is, law enforcement officers authorized to make arrests, execute warrants, and carry firearms.REF In fiscal year (FY) 2020, there were nearly 137,000 full-time federal law enforcement officers with almost half (49 percent) in DHS.REF Within DHS, the Office of Immigration and Customs Enforcement (ICE) has only 7,100 agents spread out over 220 cities and 53 foreign nations.REF By contrast, a 2018 census revealed that there are more than 17,500 state and local law enforcement agencies employing more than 1.2 million full-time law enforcement officers.REF The number of ICE investigators pales in comparison to the number of state and local troopers, sheriffs, deputy sheriffs, and police officers. ICE must be able to partner with states and localities to do its job effectively.

But there is a problem created by the so-called sanctuary jurisdictions. As of November 1, 2024, 13 states, including populous ones such as California, New York, and Illinois, as well as more than 220 counties, cities, and the District of Columbia, had ordered their law enforcement personnel not to cooperate, to one degree or another, with ICE agents who seek to identify, take custody of, and deport criminal aliens.REF Those jurisdictions have laws “that obstruct immigration enforcement and shield criminals from ICE” in a host of different ways, such as “refusing to or prohibiting agencies from complying with ICE detainers, imposing unreasonable conditions on detainer acceptance, denying ICE access to interview incarcerated aliens, or otherwise impeding communication or information exchanges between their personnel and federal immigration officers.”REF

Federal Authority to Control Immigration

It is well-settled law that the states possess a so-called police power—viz., the inherent authority to pass legislation that protects and advances the safety, health, and welfare of the publicREF—while the federal government generally does not.REF Perhaps the best example of that difference, the Supreme Court has noted, is the interest in protecting the public against what is known as “street crime.” As Chief Justice William Rehnquist explained in United States v. Morrison, “we can think of no better example of the police power, which the Founders denied the National Government and reposed in the States, than the suppression of violent crime and vindication of its victims.”REF Long before Chief Justice Rehnquist made that point, one of his predecessors, Chief Justice John Marshall, noted in Cohens v. Virginia that Congress “has no general right to punish murder committed within any of the States” and “cannot punish felonies generally….”REF

Yet there are a small number of instances in which the federal government can exercise the same plenary legislative authority that the states possess to regulate private conduct through criminal law. Examples are the District of Columbia,REF federal territories,REF and real property owned by the federal government situated in one of the states,REF obtained by purchase, condemnation, or retention (when a territory became a state), over which the federal government exercises jurisdiction.REF

Perhaps the best-known example of that last category is the Federal Assimilative Crimes Act.REF Ever since Representative Daniel Webster sponsored a bill, originally drafted by Joseph Story (later Associate Justice Story),REF that became the Act of March 3, 1825, federal criminal law has incorporated state criminal offenses and punishments whenever those offenses are committed on federal property or territory and there is no applicable federal criminal statute.REF The purpose of the original act and its successors, as Story explained,REF is to avoid the anomaly that the federal government otherwise might not be able to punish ordinary blue-collar offenses—such as murder or robbery—that occur on federal property because the Congress lacks a general police powerREF and the federal courts lack the authority to create common-law offenses.REF That lacuna would leave federal officials, employees, and invitees at risk of physical injury or financial loss because the decision whether to prosecute an offender would rest in the relevant state’s hands.

There is one more potential source of congressional criminal law–making authority to consider. Article I, Section 8 grants Congress the power to regulate various subjects regardless of where they occur, whether on or off federal land. Some of those examples are excise taxes on imports,REF the armed forces,REF the national currency,REF and the postal service.REF Congress may enact a criminal law, as the Supreme Court has ruled,REF if Congress finds that a criminal prosecution is a “necessary and proper” means of protecting and advancing those federal interests.REF

One of those subjects is the power to establish a “uniform Rule of Naturalization.”REF Those laws represent Congress’s judgments regarding what is necessary to protect the nation’s safety and security while still allowing the country to profit from the benefits that entrants can offer. Like the subjects just mentioned, the federal government may enforce the immigration laws through use of the criminal law.REF

The goal of so-called sanctuary jurisdictions is to stiff-arm the efforts of federal immigration authorities to carry out the tasks assigned them by Congress and the President. Their motive for obstructing the federal government’s ability to protect the integrity of its borders—whether it be concern for the hardships suffered by fellow people, virtue-signaling as to their moral superiority, or something else—is irrelevant. What matters is that states and localities are often barred by state or local law from assisting federal authorities in implementing policies that Congress and the President have found necessary for the benefit of the nation. To remove those obstacles, three remedies would prove valuable.

Remedies to Address the Immigration Crisis

Proposal 1: Congress should pass a statute modeled on the Federal Assimilative Crimes Act that incorporates state criminal law and authorizes the U.S. Department of Justice to arrest and prosecute aliens for committing crimes in violation of state law.

Congress has vested immigration agents with a limited arrest power. They may arrest someone seeking to enter into or remain in the United States if they have “reason to believe” that the individual is doing or has done so in violation of federal law, if a party has committed a federal felony, or if the party has committed (or is committing) an offense in an agent’s presence.REF That authority parallels the power that other federal law enforcement officers possess,REF but it falls short in one important respect: Immigration agents do not have the authority to arrest aliens for a violation of state law. Ordinarily, state or local police officers can and would arrest aliens who commit ordinary street crimes and then notify federal immigration authorities of the arrest so that the latter can issue a detainer enabling the federal government to take custody of the alien once he or she is released on bail or for any other reason. But if the police work in a sanctuary jurisdiction, they might not be able to assist federal immigration authorities, or even inform them if and when they intend to release a charged illegal alien who is on bail or in someone else’s custody. An all-too-common result is that the alien is released back on to the street, escaping responsibility for whatever crime(s) he or she has already committed, possibly to commit yet more crimes, often violent ones, before finally being held to account and deported.

To prevent that scenario from recurring, Congress can and should pass a statute paralleling the Federal Assimilative Crimes Act that incorporates the state criminal law in the case of aliens. This would enable federal immigration agents to arrest aliens for any state-law “street” crimes and hold them for deportation. Congress already has incorporated the state penal code into federal law pursuant to the Federal Assimilative Crimes Act. The executive branch has applied that statute to conduct that occurs on federal property, and the Supreme Court has upheld the constitutionality of that practice.REF The only difference between that scenario and this one is that Congress would be acting under the authority granted it by a different clause of the Constitution. In the case of the existing Federal Assimilative Crimes Act, Congress relied on its power under the Military Installations and Necessary and Proper Clauses of Article I, Section 8, along with the Property Clause of Article IV, Section 3. Under the proposal set forth in this Legal Memorandum, Congress instead would be invoking its authority under the Naturalization and Necessary and Proper Clauses of Article I, Section 8.

For incorporation purposes, there is no material difference in the authority that those provisions grant Congress. The only differences are (1) where those separate grants of authority are found and (2) what specific power they grant Congress. Those, however, are distinctions without a difference. Section 8 of Article I vests a host of different powers in Congress, as even a quick reading of that section makes clear. But that just means the Framers knew that there were a variety of different subjects that Congress should have the power to regulate for the nation’s betterment. If Congress believes that federal law enforcement officers should have the ability to make arrests for the violation of state law committed on federal land or property—as Congress concluded in 1825 and has found needful ever since—the Necessary and Proper Clause empowers Congress to incorporate state criminal law for that limited purpose. That rationale applies here too. If Congress believes that federal immigration agents need to be able to make arrests, with or without an arrest warrant, to take custody of an alien for the commission of a state-law crime, Congress should be free to invoke the same Necessary and Proper Clause to achieve a clearly legitimate federal law enforcement goal.

To be sure, Congress lacks the power to make all ordinary street crimes federal offenses, because it lacks the general “police power” necessary to adopt a penal code like the ones that exist in the 50 states. But Congress can do just that for all property it owns within the geographic boundaries of any one of those states, and Congress may use the criminal law to protect any one of the other sources of federal authority specified in Article I, Section 8. Justice Stephen Breyer made that point clear in United States v. Comstock:

[T]he Constitution, which nowhere speaks explicitly about the creation of federal crimes beyond those related to “counterfeiting,” “[t]reason,” or “Piracies and Felonies committed on the high Seas” or “against the Law of Nations,” Art. I, § 8, cls. 6, 10; Art. III, § 3, nonetheless grants Congress broad authority to create such crimes…. And Congress routinely exercises its authority to enact criminal laws in furtherance of, for example, its enumerated powers to regulate interstate and foreign commerce, to enforce civil rights, to spend funds for the general welfare, to establish federal courts, to establish post offices, to regulate bankruptcy, to regulate naturalization, and so forth…[such as] 8 U.S.C. §§ 1324–1328 (immigration crimes).REF

Justice Breyer’s rationale fully applies when the goal is to enforce the federal immigration laws; in fact, his last example makes that point explicitly. It might be that federal immigration agents would not need to invoke this arrest power in jurisdictions that are willing to cooperate with ICE. In those cases, the federal and state law enforcement authorities would work together in a complementary manner, just as they do in the vast number of instances where politics has not infected the enforcement of federal law. In sanctuary jurisdictions, however, ICE might not be able to rely on the assistance of state and local partners. When that is true, the statute proposed here would allow the federal government to overcome many of the obstacles that the states and localities might place in the road.

Proposal 2: Congress should pass a statute authorizing federal district court judges to issue deportation detainers and punishing as contempt of court any state or local official who refuses to comply with an immigration detainer or who orders a state or local official not to comply with such a detainer.

State and local law enforcement officers often come into contact with illegal aliens in the course of responding to or investigating a state-law offense. Ordinarily, when a police officer learns that a particular arrestee is a potentially removable party, the officer (or someone else in his department) will contact ICE to let them know that they now have custody of a person subject to possible deportation. ICE will then issue to the relevant state or local agency (including jails, prisons, and the like) an “immigration detainer”—viz., a notice that the federal government seeks custody of a potentially removable party and a request that the custodial agency maintain custody of the sought-after individual, potentially for 48 hours, so that ICE can make arrangements to accept a transfer of custody.REF Judicial approval of a detainer is not required.

Sanctuary jurisdictions, however, disrupt that interagency cooperation, often by prohibiting state or local agencies from releasing an alien into ICE’s custody or informing ICE that an arrestee will be released and when. That refusal prevents ICE from completing its mission and protecting the public in the process.

One remedy is the following: Rather than have only an executive branch agency issue detainers, Congress could empower U.S. district courts also to issue them and deem knowing noncompliance as a contempt of court or make it a felony under federal law. That authorization would not require ICE to obtain judicial authorization in a jurisdiction that would honor its requests, but it would be a “necessary and proper” tool to prevent the quiet release of potentially removable aliens in a sanctuary jurisdiction.

One additional feature of such a law would be “necessary and proper”—in fact, it would be invaluable. To ensure that the most senior executive official in the relevant state or locality cannot try to pawn off the responsibility—and any punishment for noncompliance—onto a lower-level official, such as a supervisor at a local jail, the statute should make it clear that the responsibility for compliance and the penalty for noncompliance fall upon the relevant senior executive branch official, to include parties such as the chief of police; police commissioner or superintendent; sheriff; head of the state or local department of criminal investigations, homeland security, or corrections; mayor; and governor. Making those parties duty-bound to comply with federal law would enable a federal district court in a contempt proceeding, or the U.S. Attorney General or local U.S. Attorney in a criminal prosecution, to enforce ICE detainers by holding any and all obstructive parties accountable for their interference with ICE’s responsibilities through the court’s civil contempt power or in a criminal prosecution for contempt.

Proposal 3: Congress should pass a statute expressly preempting any and every state or local law, of whatever type, that bars state and local officials from complying with an immigration detainer or from supplying information to DHS regarding the whereabouts and release date of any alien in state or local custody.

A final option is for Congress to exercise its authority under the Article I Naturalization and Necessary and Proper Clauses expressly to preempt any and all state laws that interfere with ICE’s ability to enforce judicially issued detainers.REF

The Article VI Supremacy Clause provides that the Constitution, federal statutes, and treaties constitute “the supreme Law of the Land; and the Judges in every State shall be bound thereby,” regardless of any state law provision to the contrary.REF Preemption can be implied when the breadth and complexity of congressional regulation in a particular area indicate that Congress intended to exhaust the regulatory field, and preemption also exists whenever federal and state law expressly conflict or state law raises an obstacle to achieving Congress’s purposes.REF In such cases, where the issue is whether Congress has impliedly preempted state law, the courts must engage in a sometimes intricate analysis of the text, purpose, and effect of relevant federal and state laws to determine whether the Supremacy Clause requires that state law must give way.

Congress, however, can always make its intent clear, and it would be valuable for Congress to do so here. Expressly stating that no state may interfere with the ability of ICE to obtain, or of a court to issue and enforce, a detainer would avoid the needless debate and litigation over the potentially numerous permutations of what should be a clearly stated congressional policy: Foreigners have no right to enter this country unlawfully, extralegally, or in any manner other than what federal law provides. Further, aliens become deportable for committing most crimes. The executive branch should and must have the ability to enforce the immigration laws with dispatch.

Would Any (or All) of Those Statutes Violate the States’ Tenth Amendment Rights or Federalism Principles?

No.

It is a commonplace that the Framers not only distributed power laterally by separating and vesting federal power in three different branches, but also respected the distinct role of the states in our constitutional framework by distributing power vertically, specifying the powers expressly granted to the federal government while leaving state powers untouched except as necessary to ensure that we have one overall unified structure. For that reason, there are certain limitations on how far Congress may go in assigning responsibilities to the state. For example, Congress cannot direct state legislatures to adopt or refrain from enacting legislation to Congress’s liking, as the Supreme Court held in New York v. United StatesREF and New Jersey Thoroughbred Horsemen’s Ass’n v. NCAA.REF Nor may Congress conscript state officials into executing a federal program as if they were federal officials, as the Court held in Printz v. United States.REF

The legislation proposed here does nothing of the kind. It would expand the range of crimes that federal law enforcement officers may investigate and enforce in order to help federal immigration officials see to the identification, detention, and deportation of parties not entitled to be or remain within this nation. It would expand the jurisdiction of the federal district courts to issue and enforce writs necessary for federal immigration officials to do their jobs. And it would remove state-imposed impediments to the legitimate tasks that Congress has directed the executive branch to see performed to respect the nation’s sovereignty.

That last point is of critical importance here. Each of the three cases mentioned above involved a task that was peculiarly state in its nature: passing a state law, refraining from doing that, or using state or local law enforcement officers to implement a federal law enforcement program. None of those cases involved an activity that is an inherent attribute of national sovereignty: namely, the enforcement of our national security and protection of our citizens by deciding which foreigners may and may not cross our borders or remain here. As the Supreme Court has made clear for more than a century, that power—one shared by all nations—“is a fundamental act of sovereignty.”REF Time and again for more than a century, the Court has repeatedly made that point.REF The protection of our nation’s sovereignty is an “inherent executive power,”REF but its importance is buttressed by the statutes that Congress has passed pursuant to its authority under Article I, Section 8, Clause 4.REF As the Supreme Court has also acknowledged, “[t]his 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.”REF Those laws represent Congress’s judgments regarding what is necessary to protect the nation’s safety and security while still allowing the country to profit from the benefits that entrants can offer.REF

Besides, all that the proposed federal laws would require the states to do is to notify the federal government of the date, time, and place of the proposed release of a potentially removable alien and not interfere in the ability of immigration agents to perform their duties. Neither of those obligations is new or burdensome. For those reasons, the legislation proposed in this Legal Memorandum is not remotely comparable to the statutes held unconstitutional in New York v. United States, in Printz, and in New Jersey Thoroughbred Horsemen’s Ass’n.

Conclusion

The sanctuary jurisdiction problem is an effort by politicians to put lead in the saddlebags of ICE special agents while virtue-signaling to their constituencies that they are morally superior to the federal officials responsible for implementing the deportation laws. Those efforts to trip up the federal government should be halted: The lead can be removed, and the virtue-signaling can be ignored. What would aid the federal government’s efforts are three laws—or three components of one law—that lift obstacles that sanctuary jurisdictions will continue to throw up to impede the new Administration’s policy.

Paul J. Larkin is the John, Barbara, and Victoria Rumpel Senior Legal Research Fellow in the Edwin Meese III Center for Legal and Judicial Studies at The Heritage Foundation. I would like to thank John G. Malcolm, Bill Poole, and Lora Ries for valuable comments on an earlier draft of this Legal Memorandum. Any mistakes are mine.

Appendix

1. The Federal Assimilative Crimes Act, 18 U.S.C. § 13 (West 2025) provides as follows:

(a) Whoever within or upon any of the places now existing or hereafter reserved or acquired as provided in section 7 of this title, or on, above, or below any portion of the territorial sea of the United States not within the jurisdiction of any State, Commonwealth, territory, possession, or district is guilty of any act or omission which, although not made punishable by any enactment of Congress, would be punishable if committed or omitted within the jurisdiction of the State, Territory, Possession, or District in which such place is situated, by the laws thereof in force at the time of such act or omission, shall be guilty of a like offense and subject to a like punishment.

(b)(1) Subject to paragraph (2) and for purposes of subsection (a) of this section, that which may or shall be imposed through judicial or administrative action under the law of a State, territory, possession, or district, for a conviction for operating a motor vehicle under the influence of a drug or alcohol, shall be considered to be a punishment provided by that law. Any limitation on the right or privilege to operate a motor vehicle imposed under this subsection shall apply only to the special maritime and territorial jurisdiction of the United States.

(2)(A) In addition to any term of imprisonment provided for operating a motor vehicle under the influence of a drug or alcohol imposed under the law of a State, territory, possession, or district, the punishment for such an offense under this section shall include an additional term of imprisonment of not more than 1 year, or if serious bodily injury of a minor is caused, not more than 5 years, or if death of a minor is caused, not more than 10 years, and an additional fine under this title, or both, if—

(i) a minor (other than the offender) was present in the motor vehicle when the offense was committed; and

(ii) the law of the State, territory, possession, or district in which the offense occurred does not provide an additional term of imprisonment under the circumstances described in clause (i).

(B) For the purposes of subparagraph (A), the term “minor” means a person less than 18 years of age.

(c) Whenever any waters of the territorial sea of the United States lie outside the territory of any State, Commonwealth, territory, possession, or district, such waters (including the airspace above and the seabed and subsoil below, and artificial islands and fixed structures erected thereon) shall be deemed, for purposes of subsection (a), to lie within the area of the State, Commonwealth, territory, possession, or district that it would lie within if the boundaries of such State, Commonwealth, territory, possession, or district were extended seaward to the outer limit of the territorial sea of the United States.

The jurisdictional reach of that provision—that is, “the places now existing or hereafter reserved or acquired as provided in section 7,” also known as “the special maritime and territorial jurisdiction of the United States”—is set forth in 18 U.S.C. § 7, which provides as follows:

The term “special maritime and territorial jurisdiction of the United States”, as used in this title, includes:

(1) The high seas, any other waters within the admiralty and maritime jurisdiction of the United States and out of the jurisdiction of any particular State, and any vessel belonging in whole or in part to the United States or any citizen thereof, or to any corporation created by or under the laws of the United States, or of any State, Territory, District, or possession thereof, when such vessel is within the admiralty and maritime jurisdiction of the United States and out of the jurisdiction of any particular State.

(2) Any vessel registered, licensed, or enrolled under the laws of the United States, and being on a voyage upon the waters of any of the Great Lakes, or any of the waters connecting them, or upon the Saint Lawrence River where the same constitutes the International Boundary Line.

(3) Any lands reserved or acquired for the use of the United States, and under the exclusive or concurrent jurisdiction thereof, or any place purchased or otherwise acquired by the United States by consent of the legislature of the State in which the same shall be, for the erection of a fort, magazine, arsenal, dockyard, or other needful building.

(4) Any island, rock, or key containing deposits of guano, which may, at the discretion of the President, be considered as appertaining to the United States.

(5) Any aircraft belonging in whole or in part to the United States, or any citizen thereof, or to any corporation created by or under the laws of the United States, or any State, Territory, district, or possession thereof, while such aircraft is in flight over the high seas, or over any other waters within the admiralty and maritime jurisdiction of the United States and out of the jurisdiction of any particular State.

(6) Any vehicle used or designed for flight or navigation in space and on the registry of the United States pursuant to the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies and the Convention on Registration of Objects Launched into Outer Space, while that vehicle is in flight, which is from the moment when all external doors are closed on Earth following embarkation until the moment when one such door is opened on Earth for disembarkation or in the case of a forced landing, until the competent authorities take over the responsibility for the vehicle and for persons and property aboard.

(7) Any place outside the jurisdiction of any nation with respect to an offense by or against a national of the United States.

(8) To the extent permitted by international law, any foreign vessel during a voyage having a scheduled departure from or arrival in the United States with respect to an offense committed by or against a national of the United States.

(9) With respect to offenses committed by or against a national of the United States as that term is used in section 101 of the Immigration and Nationality Act—

(A) the premises of United States diplomatic, consular, military or other United States Government missions or entities in foreign States, including the buildings, parts of buildings, and land appurtenant or ancillary thereto or used for purposes of those missions or entities, irrespective of ownership; and

(B) residences in foreign States and the land appurtenant or ancillary thereto, irrespective of ownership, used for purposes of those missions or entities or used by United States personnel assigned to those missions or entities.

Nothing in this paragraph shall be deemed to supersede any treaty or international agreement with which this paragraph conflicts. This paragraph does not apply with respect to an offense committed by a person described in section 3261(a) of this title.

2. 8 U.S.C. §1357 provides as follows:

(a) Powers without warrant

Any officer or employee of the Service authorized under regulations prescribed by the Attorney General shall have power without warrant—

(1) to interrogate any alien or person believed to be an alien as to his right to be or to remain in the United States;

(2) to arrest any alien who in his presence or view is entering or attempting to enter the United States in violation of any law or regulation made in pursuance of law regulating the admission, exclusion, expulsion, or removal of aliens, or to arrest any alien in the United States, if he has reason to believe that the alien so arrested is in the United States in violation of any such law or regulation and is likely to escape before a warrant can be obtained for his arrest, but the alien arrested shall be taken without unnecessary delay for examination before an officer of the Service having authority to examine aliens as to their right to enter or remain in the United States;

(3) within a reasonable distance from any external boundary of the United States, to board and search for aliens any vessel within the territorial waters of the United States and any railway car, aircraft, conveyance, or vehicle, and within a distance of twenty-five miles from any such external boundary to have access to private lands, but not dwellings, for the purpose of patrolling the border to prevent the illegal entry of aliens into the United States;

(4) to make arrests for felonies which have been committed and which are cognizable under any law of the United States regulating the admission, exclusion, expulsion, or removal of aliens, if he has reason to believe that the person so arrested is guilty of such felony and if there is likelihood of the person escaping before a warrant can be obtained for his arrest, but the person arrested shall be taken without unnecessary delay before the nearest available officer empowered to commit persons charged with offenses against the laws of the United States; and

(5) to make arrests—

(A) for any offense against the United States, if the offense is committed in the officer's or employee's presence, or

(B) for any felony cognizable under the laws of the United States, if the officer or employee has reasonable grounds to believe that the person to be arrested has committed or is committing such a felony,

if the officer or employee is performing duties relating to the enforcement of the immigration laws at the time of the arrest and if there is a likelihood of the person escaping before a warrant can be obtained for his arrest.

Under regulations prescribed by the Attorney General, an officer or employee of the Service may carry a firearm and may execute and serve any order, warrant, subpoena, summons, or other process issued under the authority of the United States. The authority to make arrests under paragraph (5)(B) shall only be effective on and after the date on which the Attorney General publishes final regulations which (i) prescribe the categories of officers and employees of the Service who may use force (including deadly force) and the circumstances under which such force may be used, (ii) establish standards with respect to enforcement activities of the Service, (iii) require that any officer or employee of the Service is not authorized to make arrests under paragraph (5)(B) unless the officer or employee has received certification as having completed a training program which covers such arrests and standards described in clause (ii), and (iv) establish an expedited, internal review process for violations of such standards, which process is consistent with standard agency procedure regarding confidentiality of matters related to internal investigations.

(b) Administration of oath; taking of evidence

Any officer or employee of the Service designated by the Attorney General, whether individually or as one of a class, shall have power and authority to administer oaths and to take and consider evidence concerning the privilege of any person to enter, reenter, pass through, or reside in the United States, or concerning any matter which is material or relevant to the enforcement of this chapter and the administration of the Service; and any person to whom such oath has been administered, (or who has executed an unsworn declaration, certificate, verification, or statement under penalty of perjury as permitted under section 1746 of Title 28) under the provisions of this chapter, who shall knowingly or willfully give false evidence or swear (or subscribe under penalty of perjury as permitted under section 1746 of Title 28) to any false statement concerning any matter referred to in this subsection shall be guilty of perjury and shall be punished as provided by section 1621 of Title 18.

(c) Search without warrant

Any officer or employee of the Service authorized and designated under regulations prescribed by the Attorney General, whether individually or as one of a class, shall have power to conduct a search, without warrant, of the person, and of the personal effects in the possession of any person seeking admission to the United States, concerning whom such officer or employee may have reasonable cause to suspect that grounds exist for denial of admission to the United States under this chapter which would be disclosed by such search.

(d) Detainer of aliens for violation of controlled substances laws

In the case of an alien who is arrested by a Federal, State, or local law enforcement official for a violation of any law relating to controlled substances, if the official (or another official)—

(1) has reason to believe that the alien may not have been lawfully admitted to the United States or otherwise is not lawfully present in the United States,

(2) expeditiously informs an appropriate officer or employee of the Service authorized and designated by the Attorney General of the arrest and of facts concerning the status of the alien, and

(3) requests the Service to determine promptly whether or not to issue a detainer to detain the alien,

the officer or employee of the Service shall promptly determine whether or not to issue such a detainer. If such a detainer is issued and the alien is not otherwise detained by Federal, State, or local officials, the Attorney General shall effectively and expeditiously take custody of the alien.

(e) Restriction on warrantless entry in case of outdoor agricultural operations

Notwithstanding any other provision of this section other than paragraph (3) of subsection (a), an officer or employee of the Service may not enter without the consent of the owner (or agent thereof) or a properly executed warrant onto the premises of a farm or other outdoor agricultural operation for the purpose of interrogating a person believed to be an alien as to the person's right to be or to remain in the United States.

(f) Fingerprinting and photographing of certain aliens

(1) Under regulations of the Attorney General, the Commissioner shall provide for the fingerprinting and photographing of each alien 14 years of age or older against whom a proceeding is commenced under section 1229a of this title.

(2) Such fingerprints and photographs shall be made available to Federal, State, and local law enforcement agencies, upon request.

(g) Performance of immigration officer functions by State officers and employees

(1) Notwithstanding section 1342 of Title 31, the Attorney General may enter into a written agreement with a State, or any political subdivision of a State, pursuant to which an officer or employee of the State or subdivision, who is determined by the Attorney General to be qualified to perform a function of an immigration officer in relation to the investigation, apprehension, or detention of aliens in the United States (including the transportation of such aliens across State lines to detention centers), may carry out such function at the expense of the State or political subdivision and to the extent consistent with State and local law.

(2) An agreement under this subsection shall require that an officer or employee of a State or political subdivision of a State performing a function under the agreement shall have knowledge of, and adhere to, Federal law relating to the function, and shall contain a written certification that the officers or employees performing the function under the agreement have received adequate training regarding the enforcement of relevant Federal immigration laws.

(3) In performing a function under this subsection, an officer or employee of a State or political subdivision of a State shall be subject to the direction and supervision of the Attorney General.

(4) In performing a function under this subsection, an officer or employee of a State or political subdivision of a State may use Federal property or facilities, as provided in a written agreement between the Attorney General and the State or subdivision.

(5) With respect to each officer or employee of a State or political subdivision who is authorized to perform a function under this subsection, the specific powers and duties that may be, or are required to be, exercised or performed by the individual, the duration of the authority of the individual, and the position of the agency of the Attorney General who is required to supervise and direct the individual, shall be set forth in a written agreement between the Attorney General and the State or political subdivision.

(6) The Attorney General may not accept a service under this subsection if the service will be used to displace any Federal employee.

(7) Except as provided in paragraph (8), an officer or employee of a State or political subdivision of a State performing functions under this subsection shall not be treated as a Federal employee for any purpose other than for purposes of chapter 81 of Title 5 (relating to compensation for injury) and sections 2671 through 2680 of Title 28 (relating to tort claims).

(8) An officer or employee of a State or political subdivision of a State acting under color of authority under this subsection, or any agreement entered into under this subsection, shall be considered to be acting under color of Federal authority for purposes of determining the liability, and immunity from suit, of the officer or employee in a civil action brought under Federal or State law.

(9) Nothing in this subsection shall be construed to require any State or political subdivision of a State to enter into an agreement with the Attorney General under this subsection.

(10) Nothing in this subsection shall be construed to require an agreement under this subsection in order for any officer or employee of a State or political subdivision of a State—

(A) to communicate with the Attorney General regarding the immigration status of any individual, including reporting knowledge that a particular alien is not lawfully present in the United States; or

(B) otherwise to cooperate with the Attorney General in the identification, apprehension, detention, or removal of aliens not lawfully present in the United States.

(h) Protecting abused juveniles

An alien described in section 1101(a)(27)(J) of this title who has been battered, abused, neglected, or abandoned, shall not be compelled to contact the alleged abuser (or family member of the alleged abuser) at any stage of applying for special immigrant juvenile status, including after a request for the consent of the Secretary of Homeland Security under section 1101(a)(27)(J)(iii)(I) of this title.