Illegal immigration overstays its welcome: how the criminalization of unlawful presence in America would help relieve inadequacies in federal immigration law.

AuthorBlair, Nicole A.


Illegal immigration is a large problem in the United States today and is only expected to get worse. The estimated total number of illegal immigrants (1) present in the United States in 2010 was 10.8 million. (2) The Census Bureau predicts that the nation's population will rise to more than 400 million people by the year 2050, (3) with seventy percent of this growth being attributable to immigration generally, including both legal and illegal immigrants. (4)

Not only will the racial demographics of the United States continue to shift, but the country can also expect that the total number of illegal immigrants present in the United States will steadily increase. An estimated 300,000 to 500,000 undocumented immigrants arrive each year and reside in the United States. (5) These figures are hardly insignificant, leading many people to acknowledge that illegal immigration is a national issue that is not going away. With such a vast wave of people coming to the country from various places all over the world, often in violation of the law, American citizens can no longer deny the economic and social implications of illegal immigration.

One main reason for such a dramatic increase in the number of illegal immigrants coming to the United States is due to the inadequacy of federal immigration policy. (6) Historically, the federal government possessed the exclusive authority to regulate immigration. However, states across the nation have taken matters into their own hands by proposing legislation similar to Arizona's Support Our Law Enforcement and Safe Neighborhoods Act ("S. 1070"). (7) This law, enacted in April 2010, would allow the State of Arizona to regulate illegal immigration within its own borders. (8) Legislation such as this has rekindled the debate on immigration, causing many to question the sufficiency of federal law, as well as whether federal law is being effectively enforced.

In remedying this situation, the government must identify and revise the parts of federal immigration policy that are problematic. Currently, the federal Immigration and Nationality Act ("INA"), (9) as amended in 1965, does not make it a federal crime for illegal immigrants to be "unlawfully present" in the United States. (10) Federal law imposes criminal penalties on those who enter or re-enter the country without admission but not those who have lawfully entered and have violated their immigration status or who have remained longer than permitted. (11)

What may at first seem to be a minor legislative oversight has, in hindsight, developed into a major problem with serious consequences. By refusing to amend federal immigration law, the government has created a permissive environment that makes it more likely that illegal immigrants, such as the terrorists responsible for the attacks on September 11, 2001, will remain in the country illegally and undetected. (12) This permissive environment is a result of inadequate resources, misplaced federal enforcement priorities, and a lack of effective deterrents aimed at discouraging immigrants from violating immigration laws. If unlawful presence had been a federal crime prior to the time of these attacks, more vigilant enforcement efforts may have yielded the discovery and detention of these terrorists before they even had the chance to step onboard a plane. The federal government is sending the message that deliberate defiance of federal immigration laws will generally only result in removal in most cases, not prosecution. Instituting federal criminal penalties for all illegal immigrants who remain in the United States unlawfully is one possible way to deter them from continually violating U.S. immigration law. Criminalizing unlawful presence is one method of strengthening the authority of federal immigration law and extending the authority of immigration officials who are charged with enforcing those laws.

Standing alone, unlawful presence on U.S. soil is not a direct violation of the law, (13) but it is highly detrimental to society, both ideologically and socially. The purpose of this Note is to examine the scope of the problem of unlawful presence and to provide a model for change that seeks to achieve balance between immigration enforcement and preservation of human dignity through support for legal immigration. (14) It sets forth a possible solution that, if incorporated into the body of federal law, would restore confidence in federal policy as the ultimate authority in effective and fair regulation of immigration.

Part I of this Note explores the current state of affairs with regard to illegal immigration and discusses some of the problems caused by the unlawful presence of illegal immigrants in the United States, Part II explains the position taken by the U.S. government on the federal criminalization of unlawful presence and details the relevant provisions and objectives of the INA that relate to the discovery and removal of illegal immigrants. Part II also provides examples of proposed legislation from the past that has sought to criminalize unlawful presence at the federal level. Part HI analyzes the effects of the provisions of Arizona's law that seek to regulate immigration by criminalizing unlawful presence. Part IV discusses policy considerations in favor of criminalizing unlawful presence and argues that the federal government should consider amending federal law by integrating appropriate provisions into the INA that criminalize unlawful presence in order to address the concerns of the states.

Amending federal immigration law to address the concerns of the states will promote consistency in U.S. immigration policy. It will unite all states and the federal government under a set of common objectives and will lend desperately needed support to the states that carry the burden of discovering and reporting a large number of illegal immigrants within their borders. By criminalizing unlawful presence, the government will bolster the mechanisms that are already in place which serve to apprehend and remove those in violation of national immigration law. Such an amendment will strengthen existing laws by reinforcing and expanding current federal policy to more effectively combat the growing problem of illegal immigration.


    1. From the "Revolving-Door Era" to the "Storm-Door Era": A Brief History of Immigration in the United States from 1965 to Present

      Over the last few decades, in what has been referred to as a move from the "Revolving-Door Era" to the "Storm-Door Era," (15) the number of people immigrating to the United States illegally has increased dramatically, moving the issue to the forefront of the nation's political agenda. (16) After the amendments to the INA by President John F. Kennedy in 1965, the United States entered what is termed the "Revolving-Door Era." (17) The policy considerations behind the enactment of the INA in 1952 began when President Harry Truman created a presidential commission to study immigration policy. The report produced by this commission in 1953 stated that "[t]he major disruptive influence in our immigration law is the racial and national discrimination caused by the national origins system," (18) the restrictive quota system in place prior to 1952.

      Following this report, the federal government changed its policy from a restrictive quota system to a more open preference system. (19) The government had used the quota system throughout the 1920s to heavily limit those entering the country during the first great immigration wave prior to World War II. (20) The enactment of the INA reflected a change in attitude regarding immigration in the United States as one that moved away from the inherent racism of the quota system and toward a greater openness to immigration through the preference system. (21)

      This change marked the beginning of a new wave of immigration. Immigrants, both legal and illegal, began coming onto U.S. soil on a massive scale. Whereas prior to 1965, the first wave of immigrants came mostly from Europe, the immigrants in this second wave or "Revolving-Door Era," came mainly from the developing world. An immigration climate as ripe as this set the stage for refugees like Elian Gonzalez and his mother to travel great distances and face death to make it to America, even years after the policy was first implemented. (22)

      During the "Storm-Door Era" from 2001 to the present, the United States has experienced the largest wave of illegal immigration yet. In 2005, in response to the 9/11 terrorist attacks, the House of Representatives passed the Border Protection, Antiterrorism, and Illegal Immigration Control Act ("REAL ID Act"), (23) which modified federal law with the intent to crack down on terrorism threats posed by illegal immigrants. (24) Despite laws such as this, the number of illegal immigrants in the U.S. continued to rise. (25) The estimated total number of illegal immigrants in the United States increased from 10.5 million in 2005 to 10.8 million in the years 2009 and 2010, with the peak total reaching 11.8 million in 2007. (26) America also continued to see an increasing number of illegal immigrants coming from Mexico and South America.

      In 2010, it is estimated that 6.6 million illegal immigrants living in the United States were born in Mexico, making this the largest ethnic group of illegal immigrants in the country. (27) The second largest group of illegal immigrants living in the United States came from Central and South America. (28) The remaining illegal immigrants came from Asia and India. (29) These people immigrated to the United States for various reasons such as escaping poverty in their home countries and finding work, reuniting with family already residing in the United States, and finding freedom from political or religious persecution in their native countries. Changing economic policies and political...

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