Kevin Fandl is an Associate Legal Advisor at U.S. Immigration and Customs Enforcement headquarters in Washington, DC. He is also an adjunct professor of law at American University’s Washington College of Law, from which he received a J.D. degree. He holds a master of arts degree in international relations from the American University School of International Service and a bachelor of arts degree in philosophy from Lock Haven University. He is pursuing a Ph.D. in public policy from George Mason University. The views expressed in this article are solely those of the author and do not necessarily reflect the views of the federal government.

This article was published by the Notre Dame Law School Journal of Legislation (2008).

Many state and local law enforcement agencies and policymakers are advocating, and often enacting, legislation intended to reduce the number of illegal immigrants in their county or state. However, immigration law is federal law, and enforcement of such laws is entrusted to federal agencies. Have local authorities overstepped their bounds, or are they acting reasonably in light of federal inability to pass comprehensive immigration reform?

Existing Federal Immigration Law

Today, over 9 million undocumented immigrants are living in the United States.¹ Another half-million undocumented immigrants arrive each year. They account for roughly 5% of the total U.S. labor force. The vast majority of these immigrants work outside the agriculture sector.² We depend on these workers to fill construction, meat and poultry, and maintenance jobs. Most of these workers have been in the United States for more than five years, and a large number have been in the United States more than ten years.³ According to a 2006 independent task force report, “[w]ithout immigration, we cannot sustain the growth and prosperity to which we have become accustomed.”⁴

Despite this apparent demand for undocumented labor in the United States, there is significant concern over the presence of these workers. The concern arises from three primary issues: (1) whether the presence of undocumented workers indicates a failed border policy that opens the possibility for terrorists or contraband to cross just as easily as undocumented immigrants, (2) whether these undocumented immigrants are draining social services such as education and welfare, and (3) whether these undocumented immigrants are taking jobs that legal residents should have access to. Comprehensive immigration reform has attempted to respond to each of these concerns with a broad new immigration policy. However, due to the complexities of such a task, reform at the federal level has been elusive.

Federal Immigration Law in Historical Context

Benjamin Franklin was an early advocate of regulating immigration. He was frustrated with the increased number of Germans entering Pennsylvania at the time and their unwillingness to learn English.⁵ However, George Washington took a more inclusive view of immigration policy: “The bosom of America is open to receive not only the opulent and respectable stranger, but the oppressed and persecuted of all nations and religions; whom we shall welcome to participation of all our rights and privileges, if by decency and propriety of conduct they appear to merit the enjoyment.”⁶ Washington’s argument carried the day in the passage of the first immigration law in the United States: in 1790, it formally moved the topic of immigration from state to federal control and established a uniform rule of naturalization by requiring residence for two years.⁷ This residence requirement was expanded to five years in 1795, and it is the same today.⁸ Not until 1798 was an alien registry established and records of arriving aliens kept.⁹ The following week, the first deportation law was established, allowing the deportation of any alien that the president deems to be dangerous to the United States.¹⁰ The scope of immigration laws in the 18th century did not go beyond establishing a residency period to become a citizen, forging the first immigrant registry, and giving the president the authority to deport dangerous aliens.

The first significant immigration law was the Steerage Act of 1819, which established continuing reporting requirements for all arriving vessels.¹¹ These requirements were expanded over the subsequent years; however, not until 1862 was a prohibition on a type of immigrant enacted.¹² Thus, through the beginning of the Civil War, all non-dangerous immigrants were allowed into the United States and given an opportunity to become citizens.

In 1864, the first immigration commissioner was established to serve under the authority of the State Department, establishing immigration as a foreign affairs concern.¹³ Explicit prohibitions on entry were passed in 1875. At first, only criminals and prostitutes were prohibited from entering the United States. In addition, bringing coolies to the United States to work as laborers without their voluntary consent was made a felony offense.¹⁴ In 1882, the Chinese Exclusion Act was passed, suspending Chinese laborer immigration, prohibiting Chinese naturalization, and allowing Chinese illegally present in the United States to be deported; it remained in effect through 1943.¹⁵

The Immigration Act of 1882 established immigration controls under the Treasury Department and expanded the class of inadmissible aliens.¹⁶ The first labor-based immigration laws were passed in 1885; they made it unlawful to import immigrant labor unless the immigrant was working as a foreign aide, actor, artist, lecturer, domestic servant, or skilled alien in an industry not yet established in the United States.¹⁷ In 1888, this act was given more force by allowing the expulsion of aliens who arrived in violation of the labor-based immigration laws.¹⁸ At the end of the 19th century, the focus of immigration law began shifting to the impact of immigration on labor.

What might be considered the 19th-century equivalent to comprehensive immigration reform, the Immigration Act of March 3, 1891, established the Bureau of Immigration within the Treasury Department and gave the Secretary of the Treasury authority to pass rules for inspecting aliens at the border.¹⁹ It also allowed for the deportation of any alien entering the United States unlawfully. The new bureau was transferred to the Department of Commerce and Labor in 1903.²⁰ In 1907, the president was given authority to exclude aliens on the basis of their impact on the U.S. labor market, highlighting for the first time concern about U.S. jobs.²¹

The first quantitative restriction on the entry of aliens was passed in 1921 with the Quota Law.²² The first limit was set at 3% of the foreign-born population in the United States during the 1910 census. In 1940, in the midst of World War II, the concern over immigration again changed, this time from a labor matter to a national security matter. The Immigration and Naturalization Service was transferred to the Justice Department, where it would morph into a national interest, rather than merely a labor market interest.²³ Over the intervening years, restrictions were placed on the entry of groups such as communists and anarchists, and the country’s first refugee and asylum laws were enacted.

The Immigration and Nationality Act, which is still the basis for federal immigration law, was passed on June 27, 1952.²⁴ It enacted sweeping reforms and unified prior immigration legislation. Besides removing restrictions based on race or sex, the act changed the quota level to one-sixth of 1% of foreign-born aliens in the United States in 1920, expanded the class of deportable or excludable aliens, and established a centralized registration database. The quota system codified in the Immigration and Nationality Act was eliminated by the amendments to the act in 1965.²⁵ However, numerical restrictions were maintained, with entry limits based on region. These amendments also added a requirement that the Secretary of Labor certify that a U.S. worker will not be displaced by an alien upon the issuance of a visa. In 1978, the limit on immigrants was condensed to a worldwide maximum of 290,000.²⁶

The next major immigration legislation to be enacted was the Immigration Reform and Control Act of 1986.²⁷ The act granted what might be considered amnesty to all aliens that were out of legal status and that had been since January 1, 1982. It also turned enforcement toward employers of unlawful alien workers. The act also focused on border protection and established a classification for seasonal workers. Immigration law was again reformed substantially with the Immigration Act of 1990.²⁸ The cap for total immigrants to the United States was raised to 675,000 with a provision for yearly increases. Many categories of admission were rewritten, including the worker visa provision (H-1b), which received its first limit of 65,000 per year. Border protection and employer sanctions were again emphasized in this act.

With the 1993 passage of the North American Free Trade Agreement, Canadian and Mexican workers were given temporary admission to work in the United States.²⁹ Canadians were not limited in number nor did they have to acquire a petition, labor certification, or prior approval to enter. Mexicans, however, were limited to 5,500 per year and were required to have all of those things. In 1996, two more major reforms were passed: the Antiterrorism and Effective Death Penalty Act³⁰ and the Illegal Immigration Reform and Immigrant Responsibility Act.³¹ The Antiterrorism and Effective Death Penalty Act focused largely on alien terrorists and criminals, whereas the Illegal Immigration Reform and Immigrant Responsibility Act addressed border security and worksite enforcement and enacted tough restrictions on alien benefits.

Immigration again rose to the forefront of national security legislation immediately following the attacks on the United States in September 2001. The USA Patriot Act of 2001 focused squarely on the role of immigration in combating terrorism.³² It tightened border enforcement and increased federal authority to investigate potential terrorist activity, among other things. The Homeland Security Act of 2002 moved the Immigration and Naturalization Service to the newly created Department of Homeland Security. This move was made largely in an effort to align immigration enforcement with the war on terrorism.³³

While there have been a significant number of small changes related to immigration law since its inception in the 18th century in the United States, the recent flurry of state and federal activity indicates both the growing population and the growing concern over who is crossing the border. While early legislation aimed to limit the growth of the United States by nationality, the 20th century saw a shift toward preventing entry for labor, and later for security concerns. As the world becomes more interdependent and travel becomes easier, security becomes an even greater concern and one that immigration law has struggled to address. Failure to address this issue nationally has led many state governments to take matters into their own hands.

Federal Immigration Law Today

Historically, immigration law has been within the domain of federal law and supersedes any similar state or local legislation.³⁴ In general, a federal immigration officer³⁵ is an employee of the Homeland Security Department working on immigration-related issues. Immigration officers have special rights and responsibilities with respect to questioning, detaining, and searching for immigrants at the border and in the interior of the United States.

For instance, immigration officers are vested with the right to briefly detain a person if they have reasonable suspicion that the person being questioned is an illegal alien. Also, immigration officers may question, without a warrant, any alien (or person believed to be an alien) as to the person’s right to be, or to remain, in the United States. Yet questioning alone does not constitute a Fourth Amendment seizure. The person being interviewed must voluntarily agree to remain during questioning. If the individual refuses to speak to the officer, absent reasonable suspicion that the individual is unlawfully present, the individual may not be detained.

However, with the 1996 passage of the Antiterrorism and Effective Death Penalty Act³⁶ and the Illegal Immigrant Reform and Immigrant Responsibility Act of 1996,³⁷ state and local law enforcement officials were given explicit authority to arrest and detain certain illegal aliens. Now, “notwithstanding any other provision of law, to the extent permitted by relevant State and local law, State and local law enforcement officials are authorized to arrest and detain an individual who: (1) is an alien illegally present in the United States; and (2) has previously been convicted of a felony in the United States and deported or left the United States after such conviction, but only after the State or local law enforcement officials obtain appropriate confirmation from the Immigration and Naturalization Service of the status of such individual and only for such period of time as may be required for the Service to take the individual into Federal custody for purposes of deporting or removing the alien from the United States.”³⁸

It is well settled that immigration officers have the authority to temporarily detain a person to ask about immigration status.³⁹ This authority is statutorily conferred upon immigration officers via the Immigration and Nationality Act.⁴⁰ However, this authority vests only in federal officers. The law restricts local and state law enforcement officers’ ability to coordinate broad-scale immigration law reform on a local level. Yet it is evident that some state and local immigration enforcement activities have recently taken place. To what extent are local and state law enforcement officials permitted to enforce federal immigration law? Further, does the growth of state and local enforcement of immigration law undermine the intent to make immigration enforcement a federal matter? To answer these questions, we must understand what role the state and local authorities are playing in immigration law enforcement.

State and Local Law Enforcement Practice

In 2007, as of November, 46 states had enacted some form of legislation related to immigrants.⁴¹ At least 1,562 bills were introduced in all 50 states—an increase of nearly 300% over 2006, indicating a strong push at the state level to fill gaps left by the lack of comprehensive immigration reform at the federal level.⁴²

The state legislation that has passed into law covers a variety of topics that affect immigrant residents, reflecting the state environments for migration. The National Conference of State Legislatures 2007 report discussing these laws gives a good indication of the primary concerns the states have and where they stand on illegal immigration. Certain states (Arizona, Texas, South Carolina, Oregon, Virginia, Indiana, Kansas, Louisiana, Tennessee, Florida, and Idaho) have been more active in restricting access to work, driver’s licenses, and other state-level benefits. Others (California, Connecticut, Illinois, Pennsylvania, New York, Montana, Massachusetts, and Maryland) have been more active in granting such access. Although the issue cuts across party lines in many areas, legislation enacted in Republican-dominated states was largely more restrictive of immigrants, whereas in Democrat-dominated states it was generally less restrictive.⁴³

Some of the legislation that passed the state legislatures found agreement among a significant group of states, including legislation that tightened restrictions against human trafficking, provided healthcare for immigrant children, or punished employers for employing unauthorized workers.⁴⁴ Divisions in state sentiments arose in the areas of education, public benefits, legal services, and identification. For instance, while California passed a law requiring state community colleges to favor refugees and bilingual applicants in their admissions criteria,⁴⁵ South Carolina passed a law specifying that undocumented immigrants may not receive tuition assistance or any other student aid for education in South Carolina.⁴⁶ Illinois passed two laws providing some healthcare coverage to immigrants over age 65, regardless of legal status (unless in deportation proceedings) and a third law funding community and migrant health centers.⁴⁷ Many other states enacted similar legislation.

Identification cards, including driver’s licenses, proved more controversial. Montana and Georgia limited the implementation of the federal Real ID Act, which would require certain checks on identity by the Homeland Security Department.⁴⁸ New York provided waivers for certificates for aliens to become a teacher or veterinarian.⁴⁹ Pennsylvania waived the citizenship requirement for public school teachers and allowed foreign nurses to receive state nursing certification.⁵⁰ Indiana, however, passed legislation requiring driver’s licenses to expire along with the alien’s visa date.⁵¹ Kentucky passed a law requiring driver’s license applicants to be in lawful status,⁵² and Missouri requires driver’s license applicants to be either U.S. citizens or lawful permanent residents.⁵³

With respect to legal services, two states, Indiana and Maryland, passed legislation expanding access for aliens to documentation in their own language and to legal support services.⁵⁴ Oregon is the only state that passed a law making it illegal for anyone except an active member of the state bar to provide an immigration consultation.⁵⁵ Several miscellaneous laws were also passed, including a declaration that English is the official language of Kansas,⁵⁶ a requirement that aliens pay an additional $50 fee for registering their motor home in Florida,⁵⁷ funding to build migrant housing in Michigan,⁵⁸ and creating a Citizenship for New Americans Program to help legal permanent residents acquire citizenship in Massachusetts.⁵⁹

The hodgepodge of current state legislation on immigration indicates the complexity of the issue. There is broad disagreement about the best approach to managing a growing supply of immigrants against substantial concern over national security and labor matters. Agreement does seem feasible in the areas of employer sanctions, immigrant healthcare, and human trafficking; however, these issues are much less controversial than border control, public benefits, job opportunities, and identification cards. Also, the areas in agreement have already largely been legislated upon at the federal level.

Federal Response to State Demands

Due to public and congressional discontent with the fact that immigration law enforcement was resigned solely to federal officials and that local and state officers were prevented from enforcing immigration laws in their own jurisdictions, legislation was passed that explicitly authorized local and state law enforcement agencies to enforce federal immigration laws, albeit with strict restrictions and federal oversight. In recommending the passage of such legislation, Rep. John Doolittle of California stated, “My amendment is supported by our local law enforcement because they know that fighting illegal immigration can no longer be left solely to Federal agencies. Let us untie the hands of those we ask to protect us and include my amendment in H.R. 2703 today.”⁶⁰

According to the Congressional Record for H.R. 2703, “the purpose of § 1252c was to displace a perceived federal limitation on the ability of state and local officers to arrest aliens in the United States in violation of Federal immigration laws. This legislative history does not contain the slightest indication that Congress intended to displace any preexisting enforcement powers already in the hands of state and local officers.”⁶¹ Congress passed H.R. 2703, which added § 1252c to Title 8 of the U.S. Code, in 1996. This section explicitly permits state and local law enforcement to arrest and detain an individual who has been confirmed by immigration authorities to be an illegal immigrant and who has been convicted of a felony.⁶²

It is important to note that the new legislation does not confer broad arrest authority on state and local officials for immigration violations. Not only must illegal status first be confirmed by federal authorities, the alien must have been convicted of a felony or deported after such a conviction to allow for local or state arrest. Without this felony conviction, or some other criminal activity that gives rise to probable cause,⁶³ only a federal officer may arrest the alien.⁶⁴ Accordingly, this new legislation confirmed what some cases had already implied: state and local officials have authority to detain illegal aliens when they have been convicted of a felony or deported pursuant to such a felony and reentered the country. In addition, a state or local law enforcement agency that is interested in pursuing immigration enforcement activities directly must coordinate with U.S. Immigration and Customs Enforcement to acquire the necessary training for cross-designation as immigration officers. This cross-designation is coordinated through the 287(g) program,⁶⁵ which allows the Homeland Security Department to designate and train certain state and local law enforcement officers in immigration enforcement procedures and laws. This designation gives them only the authority permissible by the statute, but it ensures that they perform their duties with appropriate knowledge of U.S. immigration law and under the direct supervision of federal officers.

The first major case arising out of this cross-designation legislation was U.S. v. Vasquez-Alvarez in 1999.⁶⁶ “In particular, the United States observes this court has long held that state and local law enforcement officers are empowered to arrest for violations of federal law, as long as such arrest is authorized by state law. In fact, this court has held that state law-enforcement officers have the general authority to investigate and make arrests for violations of federal immigration laws.”⁶⁷

Over the past several years, over 100 ordinances permitting local enforcement of immigration laws have been proposed by state and local legislatures, and at least 40 have been enacted.⁶⁸ But ordinances and regulations intended to legislate the local enforcement of immigration law are likely preempted by federal law. In July 2007, a federal court struck down one such ordinance as unconstitutional, potentially setting a precedent for other such ordinances. The case, Lozano v. City of Hazleton, involved a local Pennsylvania ordinance that punished landlords or employers who were found to rent to or hire illegal immigrants. In the case, Judge Munley stated, “[t]he city could not enact an ordinance that violates rights the Constitution guarantees to every person in the United States, whether legal resident or not … The genius of our Constitution is that it provides rights even to those who evoke the least sympathy from the general public.”⁶⁹ The Pennsylvania Bar Association, the American Civil Liberties Union, and other groups reacted positively to this decision finding that enforcement of immigration laws is a federal concern.⁷⁰

However, other groups, including the Federation for American Immigration Reform (FAIR), argued that the legislation in Hazleton would have allowed local authorities an avenue to prevent a growing problem that they lack the tools to stop. FAIR intends to take the Lozano case to the Supreme Court along with the City of Hazleton.⁷¹ Even if the high court were to accept the case for review, it is unlikely that it would find any merit to the Hazleton law, as it directly contravenes both the constitutional designation of immigration law as a federal concern and the recent statutory authority granting local and state governments limited immigration enforcement power under strict conditions. Yet, like the civil rights rulings against racial discrimination in the 1960s, this Hazleton decision is also unlikely to stop local and state legislatures from seeking mechanisms to take enforcement into their own hands.

Scope of Authority

With the recent passage of several local and state immigration enforcement laws, it is imperative to determine the scope of permissible enforcement for local and state officials. Non-immigration officials would be permitted under current federal law to stop potential illegal immigrants and ask them general investigatory questions, including their immigration status in the United States. But how far does local and state immigration law enforcement authority go?

It is well accepted that a police officer is free to ask a person for identification without implicating the Fourth Amendment.⁷² Interrogation relating to one’s identity or a request for identification does not, by itself, constitute a Fourth Amendment seizure⁷³ unless the circumstances of the encounter are so intimidating that a reasonable person would have believed he was not free to leave unless he responded.⁷⁴ A “seizure” or detention within the meaning of the Fourth Amendment includes more than general questioning. The basis for a stop must be the reasonable suspicion of the official that the person has been engaged or is engaged in criminal activity. This activity could reasonably be illegal presence in the country.

Aliens, both legal and illegal, are protected by the Fifth Amendment and may have their pre-Miranda statements suppressed if subjected to custodial interrogation and improperly prosecuted for a crime.⁷⁵ Custodial interrogation refers to questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. Even questioning with respect to alienage, if alienage is an element of the crime being pursued, should not proceed without first providing Miranda warnings if an alien is in custody.⁷⁶

“[W]henever a police officer accosts an individual and restrains his freedom to walk away, he has ‘seized’ that person, and the Fourth Amendment requires that the seizure be ‘reasonable.’ As with other categories of police action subject to Fourth Amendment constraints, the reasonableness of such seizures depends on a balance between the public interest and the individual’s right to personal security free from arbitrary interference by law officers.”⁷⁷

Reasonable suspicion that criminal activity may be occurring is the established minimum standard for an officer of the law to stop a person for initial questioning.⁷⁸ The court’s decisions make clear that questions concerning a suspect’s identity are a routine and accepted part of many Terry stops. “Obtaining a suspect’s name in the course of a Terry stop serves important government interests,” including informing the officer whether a suspect is wanted for another offense, has a record of violence or mental disorder, or possibly clearing a suspect to allow the police to concentrate their efforts elsewhere.”⁷⁹

However, “[a] brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time.”⁸⁰ This reasonable suspicion may include questioning regarding a person’s immigration status.⁸¹ It should be noted here that reasonable suspicion is not required for searches that take place at an international border, such as in an airport or seaport.

Establishing reasonable suspicion to stop a potential illegal immigrant requires some indication that criminal activity may be afoot. “Stops based solely on speaking another language are unreasonable.”⁸² In addition, “[a] characteristic common to both legal and illegal immigrants does little to arouse reasonable suspicion of illegal status.”⁸³

Without reasonable suspicion, a local or state law enforcement stop is inherently unreasonable. In Alarcon-Gonzalez, law enforcement officers acquired a list of local roofing companies that might be employing illegal immigrants. This list could make a case for reasonable suspicion to investigate workers at job sites run by those companies. However, this did not give them a reasonable basis to suspect that Alarcon-Gonzalez, who was employed by a company not on that list, might be an illegal alien. When Alarcon-Gonzalez was stopped by several immigration and local law-enforcement officers, he was committing no crime. Because no visible criminal activity was found by the agents before the seizure, and because Alarcon-Gonzalez did not feel free to leave, this seizure was a violation of the Fourth Amendment.⁸⁴

Questioning in order to identify or request identification does not constitute a Fourth Amendment seizure. However, the individual being interviewed must voluntarily agree to remain during questioning. To detain an individual beyond initial questioning requires reasonable suspicion that the individual has committed a crime, is an alien who is unlawfully present, is an alien who is either inadmissible or removable from the United States, or is a non-immigrant who is required to provide truthful information to the Homeland Security Department upon demand.⁸⁵

Although it is well established that a law enforcement officer may ask a suspect to identify himself in the course of a Terry stop, it has been an open question whether the suspect can be arrested and prosecuted for refusal to answer.⁸⁶ A finding of reasonable suspicion requires “a particularized and objective basis for suspecting the person stopped of criminal activity. This particularity requirement means, in effect, that such a finding must be grounded in specific and articulable facts. Moreover, the objective nature of the inquiry ensures that courts will focus not on what the officer himself believed but, rather, on what a reasonable officer in his position would have thought.”⁸⁷

Officers may approach a person or vehicle without reasonable suspicion to engage in a consensual encounter. “[A] law enforcement officer does not trigger an individual’s Fourth Amendment protections simply by approaching the person in public and asking routine questions. The trigger point for Fourth Amendment purposes is the presence or absence of some cognizable coercion or constraint.”⁸⁸ The test is whether an objectively reasonable person would have felt obligated to stay.

Immigrants in the interior of the United States are conferred with many of the same procedural and substantive constitutional rights as citizens. “The fourteenth amendment to the constitution is not confined to the protection of citizens. It says: ‘Nor shall any state deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.’ These provisions are universal in their application, to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality; and the equal protection of the laws is a pledge of the protection of equal laws.”⁸⁹

There is no distinction between legal and illegal presence in terms of which constitutional protections apply to aliens in the United States. “There are literally millions of aliens within the jurisdiction of the United States. The Fifth Amendment, as well as the Fourteenth Amendment, protects every one of these persons from deprivation of life, liberty, or property without due process of law. Even one whose presence in this country is unlawful, involuntary, or transitory is entitled to that constitutional protection.”⁹⁰

Preemption

The power to regulate immigration law has always been within the exclusive jurisdiction of the federal government.⁹¹ The classic case establishing this point with regard to immigration law is Hines v. Davidowitz, which states in part:

When the national government by treaty or statute has established rules and regulations touching the rights, privileges, obligations or burdens of aliens as such, the treaty or statute is the supreme law of the land. No state can add to or take from the force and effect of such treaty or statute, for Article VI of the Constitution provides that ‘This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.’ … Our system of government is such that the interest of the cities, counties and states, no less than the interest of the people of the whole nation, imperatively requires that federal power in the field affecting foreign relations be left entirely free from local interference. As Mr. Justice Miller well observed of a California statute burdening immigration: ‘If (the United States) should get into a difficulty which would lead to war, or to suspension of intercourse, would California alone suffer, or all the Union?’

However, this was not the only such expression of intent to explicitly contain immigration enforcement powers in the federal government.^{92, 93} Immigration law enforcement has long been perceived as either a formal agreement between countries or a customary international law based upon the general practice of nations.

One of the most important and delicate of all international relationships, recognized immemorially as a responsibility of government, has to do with the protection of the just rights of a country’s own nationals when those nationals are in another country. Experience has shown that international controversies of the gravest moment, sometimes even leading to war, may arise from real or imagined wrongs to another’s subjects inflicted, or permitted, by a government. This country, like other nations, has entered into numerous treaties of amity and commerce since its inception—treaties entered into under express constitutional authority, and binding upon the states as well as the nation. Among those treaties have been many which not only promised and guaranteed broad rights and privileges to aliens sojourning in our own territory, but secured reciprocal promises and guarantees for our own citizens while in other lands. And apart from treaty obligations, there has grown up in the field of international relations a body of customs defining with more or less certainty the duties owing by all nations to alien residents—duties which our State Department has often successfully insisted foreign nations must recognize as to our nationals abroad. In general, both treaties and international practices have been aimed at preventing injurious discriminations against aliens. Concerning such treaties, this Court has said: “While treaties, in safeguarding important rights in the interest of reciprocal beneficial relations, may by their express terms afford a measure of protection to aliens which citizens of one or both of the parties may not be able to demand against their own government, the general purpose of treaties of amity and commerce is to avoid injurious discrimination in either country against the citizens of the other.”⁹⁴

Immigration is considered to be an area in which states are explicitly preempted from operating.⁹⁵ “Indeed, the Supreme 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.”⁹⁶ The court in Adolfo pointed out that this preemption did not prevent states from becoming involved in some secondary aspects of immigration law enforcement. Citing Gonzalez v. City of Peoria, the court found that while state officials could not detain persons based solely upon their presumed illegal status, they could temporarily detain such persons while contacting the Border Patrol to pursue the investigation.⁹⁷ “Where state enforcement activities do not impair federal regulatory interests concurrent enforcement activity is authorized.”⁹⁸

Accordingly, states were not prohibited per se from the investigation of aliens. They were always permitted to inquire into immigration status during a routine stop, for example. “A state trooper has general investigatory authority to inquire into possible immigration violations.”⁹⁹ In general, state officials have also been empowered to make arrests of illegal immigrants when there is another crime involved. States were also not prohibited from creating labor laws that would impact illegal aliens, so long as the laws did not preempt existing federal law.¹⁰⁰

However, states have been prohibited by law from enacting statutes or laws that would directly regulate or control treatment of aliens, which is considered to be an exclusively federal area of law.¹⁰¹ According to Hines v. Davidowitz, federal power in foreign affairs, which trumps state power, includes power over immigration, naturalization, and deportation.¹⁰² Clearly, the fine line separating what is legitimate state exercise of power over enforcement of federal immigration laws has been adjusted by case law for years; however, the conclusion has almost always been in favor of preemption when the question involves immigration enforcement without secondary bases of investigation.

Immigration Reform Policy and Practice

State and local legislatures have taken the power granted to them under § 1252c, in addition to the apparent public support they have, and used it to pass aggressive immigration enforcement laws and policies. Public dissatisfaction with federal enforcement of immigration laws has led to this state action.¹⁰³ Recent polls indicate that the majority of the American public supports immigration reform or better enforcement of existing immigration laws.¹⁰⁴ Interestingly, a vast majority of those polled said they found that the number of people crossing the border, whether legal or illegal, was too high.¹⁰⁵ This response seems to indicate that the problem is not the fact of workers crossing the border and taking jobs without proper registration alone, but rather more broadly all workers coming into the interior and competing for U.S. jobs, whether as illegal aliens or as legitimately documented foreign workers.

Congress attempted to pass a comprehensive immigration reform bill in June 2007, but it failed to achieve the necessary votes. The bill would have taken several steps aimed at reducing the presence of illegal immigrants in the interior of the United States, as well as preventing the entry of additional illegal aliens with such things as a fence on the border with Mexico. It would also have expanded the temporary worker program to allow for more visas and thus more legal immigrants.¹⁰⁶ Since that time, Congress has been considering several new proposals, including an increase in the number of worker visas for immigrants, an increase in the number of visas for agricultural workers, and a pathway to citizenship for many immigrants already in the United States.¹⁰⁷ These are positive steps, but they fail to address the broader concern that illegal immigration is worsening not because of insufficient enforcement mechanisms, but rather because of ineffective immigration policy. These concerns are addressed in the following section.

U.S. Immigration Policy Reform

The responsibility to reform the nation’s immigration laws rests with Congress and the president. “For reasons long recognized as valid, the responsibility for regulating the relationship between the United States and our alien visitors has been committed to the political branches of the Federal Government.”¹⁰⁸ Reform of the existing immigration system is necessary for several reasons. First, as globalization has dramatically changed the content of the global workforce, domestic laws need to synchronize as much as possible with the need for efficient and effective worker exchange. Second, the number of illegal immigrants is on the rise both because economic conditions are more prosperous in the United States and because the American economy demands cheap labor. Accordingly, stemming the flow of illegal immigrants would significantly affect American businesses and jobs. Without low-cost workers, many jobs would be sent overseas for lower labor costs, or U.S. businesses might become less competitive as a result of higher domestic labor costs. Less immigrant labor in the United States will likely result in higher costs for consumer goods as well as fewer job opportunities for U.S. workers due to outsourcing and shifting jobs overseas.

To address this, reform advocates must look to temporary worker visa programs, streamlined citizenship application processes, and even foreign assistance to alleviate the conditions that perpetuate the demand for U.S. jobs.¹⁰⁹ Demand for affordable, foreign labor is strong in the United States, and as developing countries continue to grow in population more rapidly than developed countries, the shift of labor from the former to the latter is inevitable as a basic supply-and-demand issue.

Additionally, immigration laws need to be reformed to facilitate the transition of illegal immigrants and legal temporary workers into either lawful permanent residents or long-term temporary workers. A significant number of immigrants who live and work in the United States and who pay taxes have not committed any major crimes and have a desire to remain and continue contributing to the domestic economy, yet have few avenues to do so. A program that facilitates their processing and offers them a clear and effective mechanism for legalization is essential to prevent jails and detention facilities from overflowing with illegal immigrants charged with little more than a lack of documentation.

Build Bridges, not Fences

The suggestion and broad support for building a fence on the U.S.-Mexican border is not only infeasible, it is also unnecessary. Immigration from Mexico over the past century has helped the American economy take a lead in the industrial revolution by keeping labor costs low. The average Mexican worker in Mexico earns $7,310 per year,¹¹⁰ whereas the average Mexican immigrant worker in the United States earns $18,952 per year.¹¹¹ The difference is so great that the risk of death and deportation from crossing the border appears reasonable compared to the risk of a family’s starving in Mexico. Many Mexicans cross the border multiple times after being caught and deported, hoping to one day work enough days in the United States to earn money to provide for the basic necessities of their families back home. Unfortunately the likelihood that they will die in the process is increasing, averaging one death per day over the past four years.¹¹²

The idea of building a fence on the border is meant to increase the costs of illegal transit across the border, theoretically making it less likely for Mexican immigrants to skirt the law to enter the United States. From a policy perspective, a border fence will do little to improve the flow of Mexican immigrants into the United States. Despite ten years of budget and manpower increases on the southern border, including a 2006 Customs and Border Protection budget of $6.7 billion, the number of undocumented aliens in the United States has continued to increase each year.¹¹³

A fence on the border will create additional difficulties for border crossers, thereby increasing the possibility that they will not get across or that they will have to revert to non-routine crossing techniques that could substantially increase the risk to their life. This policy sends a signal to Mexico that America does not trust its southern neighbor, flying in the face of the goodwill created by open trade since the implementation of the North American Free Trade Agreement, which was intended in part to ease transit across the border. Mexican President Felipe Calderon spoke of the fence in comparison to the wall separating East and West Berlin during the Cold War: “The decision made by Congress and the U.S. government is deplorable … Humanity committed a grave error by constructing the Berlin wall and I am sure that today the United States is committing a grave error in constructing a wall along our northern border.”¹¹⁴

If the proposed fence on the Mexican border were a policy aimed at the general protection of our borders, a fence would be proposed for the Canadian border as well; rather, this effort is targeted squarely on Mexico, which received over $133 billion in U.S. exports and sent $198 billion in U.S. imports in 2006.¹¹⁵ Also, the increased risk that this puts on border crossers does little to reduce illegal immigration but rather shifts the mechanism of crossing to more dangerous means. This could mean the employment of more human traffickers willing to bring illegal immigrants across the border in vehicles, more Mexicans agreeing to carry illegal narcotics across the border via plane, more tunnels being dug, and more potentially violent responses toward border enforcement officers because border crossers may become more likely to fight to stay in the interior once they successfully cross a more dangerous frontier.

A better solution is to work with foreign governments to establish a joint worker exchange and other temporary immigration programs that facilitate open yet regulated border policies. For instance, the United States could negotiate with Mexico to allow for a limited number of seasonal workers (based on U.S. demand for such workers) to stay through the end of the season with a priority placement for a renewed visa during the next season if they return to Mexico in the interim.¹¹⁶ This maintains the necessary supply of labor during peak U.S. growing seasons while reducing the strain on domestic resources in the off season. Coordination between the two countries could allow for the worker to spend the off season with his family in Mexico, knowing that he has a job again the following year.

For immigrants without a particular job opportunity in mind, yet clearly with the intention of finding work, a program should be established that links U.S. employers interested in immigrant labor with immigrant coordination agencies (which may not yet exist) to promote apprenticeships or other short-term learning periods for the workers. A certification process could be provided at the end of that visa period, allowing the employer to renew for another six months (with a maximum period of, perhaps, one year), pay for the immigrant to return home with the wages earned, or sponsor the worker to stay in the United States permanently using the permanent labor certification process, PERM. In each case, the risk of the immigrant’s overstaying the visa illegally is reduced, as the bar to illegal reentry is high and the prospect of future income is higher when the law is adhered to. The employer has at least one year to benefit from the low-cost labor and may wish to keep the worker permanently employed. The immigrant may find the work helpful to bring money home in the short term and is likelier to take the option to return home with a free ticket and clean record than to risk overstaying and working illegally with the threat of bars to readmission. Additionally, if this process is coordinated through immigrant organizations in the United States and in the sending country, word will spread of a legal work opportunity in the United States that will attract otherwise illegal border crossers. This coordination with the foreign government can significantly reduce the possibility of a rising number of illegal immigrants in the United States while preserving the need to bring immigrants to the United States for short-term and potentially permanent work.

The border as a potential crossing point for criminals and terrorists cannot be ignored and must be secured. One option that is gaining traction is the use of smart border mechanisms that provide pre-screening of border-crossers and more technology enhancements that permit secure, rapid passage across the border. The implementation of such technology frees resources of Border Patrol agents to pursue more serious border-crossing related incidents.¹¹⁷

Strengthen Federal Enforcement

Immigration law regulates the exchange of people across national boundaries. Monitoring and regulating this flow is the exclusive province of federal law because the federal government is responsible for managing the international borders and regulating the legal status of non–U.S. citizens in the interior of the United States. Were states left to determine who can and cannot be considered legal within their borders, certain states would become immigration havens that allow for weaker enforcement,¹¹⁸ and others would become attractive to citizens and legal residents who do not wish to mingle with illegal immigrants. This is reminiscent of the civil rights era, when federal law clearly prohibited discrimination on many levels, yet states refused to abide by or sought out loopholes to the enforcement of these laws. The Civil Rights Act of 1964 was enacted primarily to change that. State advocates of federal immigration enforcement authority pose a direct challenge to the proper functioning of the federal immigration regulation power.

Yet this does not leave states helpless. Immigration enforcement has been perceived on the federal level as a priority-based system. Limited resources are concentrated first and foremost on offenders who pose a direct threat to national security. After these aliens come aliens with criminal convictions, especially those involving human trafficking, drug trafficking, child pornography, and other serious crimes. Only after that does enforcement of aliens with expired visas or illegal entries take center stage. This lower prioritization in no way indicates acceptance of illegal immigration; rather, it reflects the need to prioritize limited resources to promote the best interests of the American public. Recognizing this enforcement challenge, federal authorities support the use of the § 287(g) program, which offers a middle ground that maintains federal control over immigration law generally but facilitates some limited local law enforcement actions that are coordinated with Immigration and Customs Enforcement. While this solution is not a complete derogation of federal power, nor is it likely to end illegal immigration, it serves the national need to protect the best interests of the country while promoting state interest in maintaining an environment of legal workers and residents.

Conclusion

Illegal immigration is not in anyone’s best interests. It hurts U.S. communities by increasing the number of employers willing and able to employ and abuse underpaid workers who compete for what otherwise could be legal, regulated positions and by raising tensions in communities that see illegal immigrants as a burden on society. It hurts immigrants because a vast number of them who have skills and a willingness to contribute to the American economy cannot because they were denied visas for arbitrary reasons, they fell out of status and remained in the United States illegally, or they entered the country improperly and are resigned to working in hiding. America needs immigrants and prefers legal immigrants. This need includes seasonal workers, domestic workers, service industry workers, and high-tech engineers, programmers, technicians, and professionals. Immigration policy should reflect this need by expanding the number of available visas, worker exchange programs, and mechanisms to adjust status while in the United States. Building fences and shifting federal immigration law enforcement into local authorities’ hands without proper supervision and training will weaken the possibility that effective immigration policy will ever be achieved.

To cut across party lines and resolve a variety of viewpoints and encourage all sides in the debate to work together to promote a modern immigration policy, proposed legislation must avoid a perceived grant of amnesty to illegal immigrants; be progressive by considering the need for immigrant labor in the future; be effective by coordinating with foreign governments, domestic businesses, and immigration coordination organizations; and be clear so that both citizens and potential immigrants understand the scope of the law and how it is to be enforced. Without these features, and without immediate reform, we are likely to face more local efforts to bypass federal laws and take immigration law enforcement into their own hands to combat the rising number of immigrants who cannot stay because they have no right to work and cannot leave for fear of being barred from ever returning. As this tension grows, the risk of violent response and social upheaval increases. The time for effective and comprehensive reform is now.

References

Click on an end note number to return to the article.

1. National Immigration Forum, “Immigration Enforcement: What Has Been Tried? What Has Been the Result?” March 2006.

2. National Immigration Forum, “Immigration Enforcement.”

3. National Immigration Forum, “Immigration Enforcement.”

4. Spencer Abraham, et al., “Immigration and America’s Future: A New Chapter,” Sep. 2006.

5. See, for example, Alan Houston, “Population Politics: Benjamin Franklin and the Peopling of North America,” Center for Comparative Immigration Studies Working Paper 88, Dec. 2003.

6. Otis L. Graham, Jr., Unguarded Gates: A History of America’s Immigration Crisis (Lanham, MD: Rowman & Littlefield, 2004), p. 4 (describing a 1783 letter from George Washington to a group of Irish immigrants).

7. Act of March 26, 1790, 1 Stat. 103 (1790).

8. Act of Jan. 29, 1795, 1 Stat. 414 (1795).

9. Naturalization Act of June 18, 1798, 1 Stat. 566 (1798).

10. Aliens Act of June 25, 1798, 1 Stat. 570 (1798) (expired in 1800).

11. Steerage Act of March 2, 1819, 3 Stat. 488 (1819).

12. Act of Feb. 19, 1862, 12 Stat. 340 (1862) (prohibiting the transport of Chinese coolies on American vessels).

13. Act of July 4, 1864, 13 Stat. 385 (1864) (repealed in 1868).

14. Act of March 3, 1875, 18 Stat. 477 (1875).

15. Chinese Exclusion Act of May 6, 1882, 22 Stat. 58 (1882).

16. Immigration Act of Aug. 3, 1882, 22 Stat. 214 (1882).

17. Act of February 26, 1885, 23 Stat. 332 (1885).

18. Act of October 19, 1888, 25 Stat. 566 (1888).

19. 26 Stat. 1084 (1891).

20. Act of Feb. 14, 1903, 32 Stat. 825 (1903).

21. Immigration Act of Feb. 20, 1907, 34 Stat. 898 (1907).

22. Quota Law of May 19, 1921, 42 Stat. 5 (1921).

23. Act of June 14, 1940, 54 Stat. 230 (1940).

24. 66 Stat. 163 (1952).

25. 79 Stat. 911 (1965).

26. Act of Oct. 5, 1978, 92 Stat. 907 (1978).

27. 100 Stat. 3359 (1986).

28. 104 Stat. 4978 (1990).

29. NAFTA Implementation Act, 107 Stat. 2057 (1993).

30. 110 Stat. 1214 (1996).

31. 110 Stat. 3009 (1996).

32. H.R. 3162 (107th Congress, Oct. 24, 2001).

33. See, for example, the statement of Mark Krikorian, Executive Director, Center for Immigration Studies, June 27, 2002.

34. See DeCanas v. Bica, 424 U.S. 351 (1976): “Power to regulate immigration is unquestionably exclusively a federal power. See, e.g., Passenger Cases, 7 How. 283” (1849); Henderson v. Mayor of New York, 92 U.S. 259 (1876); and Fong Yue Ting v. United States, 149 U.S. 698 (1893).

35. This term includes Homeland Security Department employees who are immigration officers, inspectors, and examiners; adjudications officers; Border Patrol agents; airplane and helicopter pilots; deportation, detention, and detention enforcement officers; investigators; special agents; investigative assistants; immigration enforcement agents; intelligence officers and agents; general attorneys (practicing immigration law); applications adjudicators; contact representatives; legalization adjudicators; officers and assistants; forensic document analysts; fingerprint specialists; immigration information officers; immigration agents; asylum officers; or any Customs officer (8 CFR § 103.1).

36. 104 Public Law 132, 110 Stat. 1214 (1996).

37. 104 Public Law 208 § 802, 110 Stat. 3009 § 803 (1996).

38. 104 Public Law 208 § 802, 110 Stat. 3009 § 803 (1996).

39. See, for example, Ojeda-Vinales v. Immigration and Naturalization Service, 523 F.2d 286 (1975); Zepeda v. Immigration and Naturalization Service, 753 F.2d 719 (1983).

40. Immigration and Nationality Act, §287(a)(1), 8 U.S.C. § 1357(a)(1).

41. National Conference of State Legislatures, 2007 Enacted State Legislation Related to Immigrants and Immigration, Nov. 29, 2007.

42. National Conference of State Legislatures, 2007 Enacted State Legislation Related to Immigrants and Immigration.

43. Based on the electoral college votes in the 2000 U.S. election (Oregon and Montana being exceptions to this assertion).

44. National Conference of State Legislatures, 2007 Enacted State Legislation Related to Immigrants and Immigration, 6-10, 13-16.

45. Assembly Bill 1559 (California, Oct. 14, 2007).

46. House Bill 3620 (South Carolina, June 29, 2007).

47. House Bill 664 (Illinois, Oct. 17, 2007); House Bill 1257 (Aug. 16, 2007); Senate Bill 241 (Aug. 13, 2007).

48. Senate Bill 5 (Georgia, May 11, 2007); House Bill 287, Act 198 (Missouri, April 17, 2007).

49. Assembly Bill 8975 (New York, Aug. 15, 2007); Senate Bill 4083 (New York, July 3, 2007).

50. House Bill 842 (Pennsylvania, July 20, 2007); House Bill 1254, July 20, 2007).

51. Senate Bill 463 (Indiana May 8, 2007).

52. Senate Bill 144 (Kentucky, March 23, 2007).

53. Senate Bill 308 (Missouri, July 13, 2007).

54. Senate Bill 445 (Indiana April 26, 2007); House Bill 51 (Maryland, May 17, 2007).

55. House Bill 2356 (May 9, 2007). Non-attorneys are permitted to represent immigrants in immigration court proceedings; however, there have been recent cases alleging fraud in the conduct of such representations.

56. House Bill 2140 (Kansas, May 11, 2007).

57. House Bill 275 (Florida, June 27, 2007).

58. Senate Bill 222 (Michigan, Oct. 31, 2007).

59. House Bill 4141 (Massachusetts, July 12, 2007).

60. 142 Cong. Rec. 4619 (1996) (comments of Rep. Doolittle).

61. 142 Cong. Rec. 4619 (1996) (comments of Rep. Doolittle).

62. 8 U.S.C. § 1252c(a)(1996); see also the Immigration and Nationality Act § 287(g).

63. U.S. v. Vasquez-Alvarez, C.A. 10 (Okla.) 1999, 176 F.3d 1294.

64. U.S. v. Vasquez-Alvarez.

65. Immigration and Nationality Act § 287(g).

66. 176 F.3d 1294 C.A.10 (Okla.), 1999.

67. Vasques-Alvarez, 176 F.3dat 1296. See United States v. Salinas-Calderon, 728 F.2d 1298 (10th Cir. 1984); see also Gonzales v. City of Peoria, 722 F.2d 468, 477 (9th Cir. 1983).

68. Emily Bazar, “Pa. Town’s Illegal-Immigrant Law Tossed,” USA Today, July 26, 2007.

69. See Lozano v. City of Hazleton, 496 F.Supp,2d 477 (2007).

70. See, for example, “Pennsylvania Bar Association Supports Ruling on Hazleton Case,” Pa. Bar Assn. press release, July 26, 2007; “Federal Court Strikes Down Discriminatory Anti-Immigrant Law in Hazleton, Pennsylvania,” ACLU press release, July 27, 2007.

71. See, for example, Federation for American Immigration Reform, “District Court Ruling Is not the End of the Road for Local Anti-Illegal Immigration Ordinances,” July 26, 2007.

72. Hiibel v. Sixth Judicial District Court of Nevada, 542 U.S. 177, 185 (2004).

73. Hiibel v. Sixth Judicial District Court of Nevada, citing Immigration and Naturalization Service v. Delgado, 466 U.S. 210, 216 (1984).

74. Immigration and Naturalization Service v. Delgado.

75. Miranda v. Arizona, 384 U.S. 436, 444 (1966).

76. Questions that relate to alienage may not be admissible in a prosecution for illegal reentry under 8 U.S.C. § 1326 or under 18 U.S.C. § 922(g)(5) if the alien is not given Miranda warnings, as alienage is an element of each offense.

77. U.S. v. Brignoni-Ponce, 422 U.S. 873 (1975) (internal citation and quotations omitted).

78. See Terry v. Ohio.

79. Hiibel v. Sixth Judicial District Court of Nevada.

80. U.S. v. Brignoni-Ponce at 881, quoting Adams v. Williams, 407 U.S. 143 (1972).

81. U.S. v. Torres-Monje, 433 F.Supp.2d 1028 (D.N.D. 2006). See Muehler v. Mena, 544 U.S. 93, 100-101 (2005).

82. U.S. v. Manzo-Jurado, 457 F.3d 928 (C.A.Mont. 2006).

83. U.S. v. Manzo-Jurado.

84. U.S. v. Alarcon-Gonzalez, 73 F.3d 289 (1996); see, for example, United States v. Brignoni-Ponce (apparent Mexican ancestry of the car’s occupants did not provide reasonable suspicion that they were illegal aliens).

85. 8 C.F.R. § 214.1(f) (2007).

86. Although 8 U.S.C. § 1357 allows an immigration officer to arrest an alien when the officer has “reason to believe” that the alien is illegally present in the United States, courts have consistently held that in this circumstance this phrase is equivalent to probable cause. See U.S. v. Cantu, 1975, 519 F.2d 494 (7th Cir. 1975), cert. denied, 423 U.S. 1035 (1975). It should be noted that an alien’s presence, whether legal or illegal, in the territory of the United States initiates protection under the U.S. Constitution. However, an alien stopped at a border crossing or on an air or sea vessel has limited procedural and constitutional rights. “Aliens standing on the threshold of entry are not entitled to the constitutional protections provided to those within the territorial jurisdiction of the United States”—Ma v. Ashcroft, 257 F.3d 1095, 1007 (9th Cir. 2001). This distinction applies to excludable, but not to deportable, aliens. Furthermore, even an alien who has entered the territorial jurisdiction of the United States may have limited protections. The “entry fiction” doctrine classifies aliens seeking admission but not yet legally admitted to be detained at the border (even though actually within the interior). These aliens do in fact have certain constitutional protections, but which protections is unclear. Case law indicates that certain substantive constitutional rights, including the Fifth Amendment’s due process clause, do apply to these aliens. However, procedural rights with respect to the alien’s application for admission do not apply—see Alvarez-Garcia v. Ashcroft, 378 F.3d 1094 (9th Cir. 2004). This distinction remains important even after the changes to the Immigration and Nationality Act made by the Illegal Immigration Reform and Immigrant Responsibility Act, Public Law No. 104-208, 110 Stat. 3009 (1996), which eliminated the term “entry” and replaced it with the term “admission.” See 8 U.S.C. § 1101(a)(13) (1996), Henderson, 157 F.3d at 111 and note 5.

87. U.S. v. Espinoza, 2007 WL 1696150, C.A.1 (Mass. 2007) (internal citations omitted).

88. U.S. v. Espinoza.

89. Yick Wo v. Hopkins, 118 U.S. 356 1070 (1886).

90. Mathews v. Diaz, 426 U.S. 67, 77 (1976).

91. Hines v. Davidowitz, 312 U.S. 52, 61 S. Ct. 399 U.S. 1941 (“That the supremacy of the national power in the general field of foreign affairs, including power over immigration, naturalization and deportation, is made clear by the Constitution was pointed out by authors of The Federalist in 1787, and has since been given continuous recognition by this Court”).

92. See, for example, Henderson v. Mayor of New York, 92 U.S. 259.

93. “Thomas Jefferson, who was not generally favorable to broad federal powers, expressed a similar view in 1787: ‘My own general idea was, that the States should severally preserve their sovereignty in whatever concerns themselves alone, and that whatever may concern another State, or any foreign nation, should be made a part of the federal sovereignty.’ Memoir, Correspondence and Miscellanies from the Papers of Thomas Jefferson (1829), vol. 2, p. 230, letter to Mr. Wythe” (Hines v. Davidson, footnote 11).

94. Hines v. Davidowitz, 312 U.S. 52 (1941).

95. See In re Adolfo M., 225 Cal. App. 3d 1225 (4th Dist. 1990).

96. Lopez v. Immigration and Naturalization Service, 758 F.2d 1390, 1392 (10th Cir. 1985) (internal citations omitted); see also In re Adolfo M. 225 Cal.App.3d 1225 (1990).

97. Gonzales v. Peoria, 722 F.2d 468, 474 (1983).

98. Gonzales v. Peoria.

99. U.S. v. Salinas-Calderon, 728 F.2d 1298 (1984).

100. See DeCanas v. Bica, 423 U.S. 909 (1976) (reversing a California court ruling that prohibited states from regulating the employment of illegal aliens); see also Austin T. Fragomen, Jr., “Supreme Court Rules That States Can Prohibit Unauthorized Employment by Aliens,” International Migration Review, vol. 10, no. 2, p. 253 (1976).

101. See, for example, Graham v. Richardson, 91 S. Ct. 1848 (U.S. Ariz., 1971) (state laws restricting eligibility of aliens for welfare benefits merely because of alienage conflict with overriding national policies in an area constitutionally entrusted to federal government); see also Hines v. Davidowitz, 61 S. Ct. 399 U.S. Pa., 1941 (where the federal government has enacted a complete scheme for regulation of aliens, and has therein provided a standard for their registration, a state cannot, inconsistently with the purpose of Congress, interfere with, curtail, or complement the federal law, or enforce additional or auxiliary regulations).

102. Hines v. Davidowitz, 61 S. Ct. 399 (U.S. Pa., 1941).

103. See, for example, “Illegal Immigration Dominates Conversation in Prince William,” Washington Post, July 23, 2007 (noting the passage of a county ordinance that requires police to question immigration status and that cuts public services for illegal immigrants).

104. See Public Opinion Polls on Immigration, Federation for American Immigration Reform, updated October 2007.

105. Public Opinion Polls on Immigration.

106. See, for example, the White House “Fact Sheet: Securing America Through Immigration Reform,” Nov. 28, 2005.

107. See Richard E. Cohen, “A Free Kick for the Democrats,” National Journal (July 21, 2007).

108. Matthews v. Diaz, 426 U.S. 67, 81 (1976).

109. Spencer Abraham et al., “Immigration and America’s Future” (asserting that any new strategy, to be effective, must increase the number of legally admitted workers).

110. World Bank, “Doing Business: Explore Economies—Mexico.”

111. Center for Immigration Studies, “Poverty and Income,” 1999.

112. National Immigration Forum, “Immigration Enforcement.”

113. See National Immigration Forum, “Immigration Enforcement: What Has Been Tried? What Has Been the Result?”; Jason Ackleson, “Fencing in Failure: Effective Border Control Is not Achieved by Building More Fences,” Immigration Policy in Focus, vol. 4, no. 2, April 2005.

114. E. Eduardo Castillo, “Mexican President Criticizes U.S. Fence,” Washington Post, Oct. 26, 2006.

115. See U.S. Census Bureau, Foreign Trade Statistics, “Trade in Goods (Imports, Exports and Trade Balance) with Mexico.”

116. See Spencer Abraham et al., “Immigration and America’s Future” (supporting the idea that engaging Mexico and Canada in long-term initiatives that work to improve the standard of living in both countries is needed).

117. Jason Ackleson, “Fencing in Failure.”

118. See, for example, CBS Chicago, “Romney: Giuliani Made [New York City] Illegal Immigrant Haven,” Aug. 9, 2007.