Unforgiving of those who trespass against U.S.: state laws criminalizing immigration status.

• Author: McKanders, Karla Mari

INTRODUCTION

Since around 2005, states and localities have been using criminal trespass laws to target undocumented immigrants for unlawful presence. (1) In New Hampshire, California, and Florida, local police officers have used state criminal trespass laws to prosecute undocumented immigrants. (2) For example, the New Hampshire criminal trespass laws provide that a person is guilty "if, knowing he is not licensed or privileged to do so, he enters or remains in any place." (3) New Hampshire has applied this law to immigrants it believes to be unlawfully present in violation of immigration laws. Specifically, in April 2010, Arizona passed SB 1070: Support Our Law Enforcement and Safe Neighborhoods Act. (4) SB 1070 creates crimes involving trespassing by "illegal aliens" and harboring or concealing unlawful aliens. (5) The Act's intent is to use state government actors to target undocumented immigrants to increase the attrition of immigrants it deems to be unlawfully present in Arizona. (6) "The provisions of this act ... are intended to work together to discourage and deter the unlawful entry and presence of aliens and economic activity by persons unlawfully present in the United States." (7) State trespass laws that criminalize unlawful presence of immigrants in the form of trespass statutes are unconstitutional regulations of immigration and are a preempted exercise of state power.

This paper is the first paper in legal academia to analyze the constitutionality of criminal trespass statutes as applied to immigrants. Thus far, immigration law scholars have taken various positions on state and local regulation of Immigration. (8) For example, Michael Olivas believes that state, county, and local ordinances aimed at regulating general immigration functions are unconstitutional and a function of exclusive federal preemptory power. (9) He believes that shifting immigration powers to the sub-federal level will likely lead to weaker federal enforcement and less effective national security resources aimed at immigration enforcement and administration. (10) Immigration law scholar Cristina Rodriguez posits that the issues regarding state and local regulation of immigration are not really about immigration at all; instead, they are about local resource allocation. (11) Accordingly, she advocates for state and local regulation. (12) In my article, Welcome to Hazleton, I proposed that Congress enact laws expressly preempting state and local action unless specifically provided for in the text of the federal law. (13) Similarly, in the context of state and local laws policing immigration status, I again maintain that states and localities can only act when Congress gives them express permission.

This symposium examines the recent increase in the involvement of state and local governments in enacting and enforcing laws targeting immigrant populations. This increase began in 2007 in Hazleton, Pennsylvania with the passage of ordinances targeting undocumented immigrants. (14) The main concern of state criminal laws that sanction unlawful presence is whether they are constitutionally preempted. Specifically, it has been alleged that the Arizona statute and Arizona-like laws restrain the liberty of U.S. citizens and documented immigrants and interfere with federal immigration policy. (15) State and local laws sanctioning unlawful presence substantially overlap with the Immigration and Nationality Act of 1952 ("INA"), (16) Immigration and Nationality Act's 1996 criminal provisions sanctioning unlawful entry and re-entry, (17) and civil immigration penalties for unlawful presence as a ground for deportation. (18)

In evaluating the constitutionality of state trespass laws that criminalize immigration status, this paper proceeds in three parts. The first part of the paper details how as a sovereign nation, U.S. laws have excluded undesirable categories of people from admission and have attempted to criminalize specific immigration violations. Early immigration laws provided civil sanctions for unlawful presence, and also provided criminal sanctions for unlawful entry and re-entry. (19) The second part explains and critiques the sections of SB 1070 (20) that create separate state criminal offenses for violating federal immigration laws--namely unlawful presence or criminal trespass. The third part analyzes the constitutionality of the criminal provisions of SB 1070 that make it a state crime to be unlawfully present in the state in relation to specific provisions of the INA and federal immigration policy. The paper concludes that state trespass laws that criminalize unlawful presence of immigrants and attempt to delegate immigration enforcement to state officials are unconstitutional regulations of immigration and are therefore a preempted exercise of state power.

1. HISTORY OF IMMIGRATION LAWS EXCLUDING "UNDESIRABLES"

   Traditionally immigration laws are considered a nation's prerogative as a nation-state has the ability to discriminate against who is permitted to enter. (21) Immigration law is the social construct that creates illegality, which is subject to the values that the nation wants to inculcate through the admission or exclusion of certain populations. (22)

   The most straightforward way to define illegal migration is by reference to the migration law of the state doing the counting. Under this method, anyone who is currently in contravention of the law has an 'illegal' status. This will include people who enter the country in breach of the law and those who overstay their permission to remain. [I]llegality is a creation of the law. (23) This part describes U.S. history on how the law, depending on the time period, has expanded or contracted regulating immigrants who are permitted to enter and remain in the country. In describing recent state action regulating migration, this part critiques the desire of states to reassert control over immigration (after centuries of federal regulation) by criminalizing violations of immigration laws and identifies the problems that arise when civil immigration laws are converted into criminal offenses. The history of U.S. immigration regulation provides a framework for understanding constitutional and policy implications of current state and local laws that criminalize unlawful immigration status.

   1. CATEGORICAL IMMIGRATION EXCLUSIONS

      For the first centuries of our country's existence, states regulated immigration. (24) Despite the federal government's current role in regulating immigration and enforcing immigration law, at the beginning of U.S. history, the state governments were primarily responsible for regulating immigrants within the state's border. The Constitution was not clear about which sector of government should regulate immigration. (25)

      During the 1600s, the colonies began excluding immigrants they deemed undesirable for admission. Specifically, in 1639, "colonies began legislating to exclude 'paupers' and criminals.'" (26) Early immigration policies included the exclusion of public charges--persons that were likely to become dependent on the state for aid. Immigration rules "excluding 'public charges' embraced not only people sent by English courts but also the poor and the diseased who came voluntarily." (27) Early restrictions show the hostilities settlers began having towards immigrants, which resulted in blanket exclusions of certain undesirable categories. (28)

      In the 1700s, the federal government began to regulate immigration. Specifically, in 1789, the United States Constitution granted the states broad power to regulate foreign commerce, which included immigration. (29) It was not until the Supreme Court construed federal power under the Commerce Clause of the Constitution broadly that immigration became a federal regulatory issue. (30) The Supreme Court did not begin to address state regulation of immigration until the emergence of the Passenger Cases. (31) In Passenger Cases, "[t]he Supreme Court struck down laws enacted in Boston and New York that imposed special taxes on aliens and passengers arriving from foreign ports." (32)

      In the 1840s, there was an increase in religious-based exclusions of immigrants. At the time, the country was predominately Protestant; Catholic Irish were excluded. (33) "Several groups and overlapping political parties, including social reformers, Protestant evangelicals, the Nativists, the Order of the Star-Spangled Banner, and the Know-Nothing Party, campaigned for legislation halting immigration and prohibiting naturalized immigrants from participating in the nation's political process." (34)

      In 1875, the Supreme Court decided Henderson v. Mayor of New York (35) which definitively barred state restrictions on immigration. (36) At issue in Henderson was a tax that New York imposed on every immigrant who arriving in its ports. (37) Henderson held that the New York tax was an impermissible regulation of commerce with foreign nations. (38) The Court found that this regulation did not fall within the police power of the state. (39) This year marked the beginnings of pervasive federal regulation of immigration. In Henderson, the Court found state restrictions on immigration to be an unconstitutional infringement on the federal power over foreign commerce. (40)

      In 1875, Congress also passed the first restrictive immigration statute. (41) Congress barred convicts and prostitutes from admission into the country. (42) "These limits were the first of many 'quality control' exclusions based on the nature of the immigrants themselves." (43) Following suit, in 1882, Congress enacted more legislation that excluded lunatics, idiots, and immigrants who were likely to become public charges. (44) In 1891, Congress also enacted legislation barring diseased individuals, paupers, and polygamists from admission. (45) Most of the legislation prohibited these categories of immigrants from migrating as they were thought to be a burden on the U.S...