Criminal Violations of Federal Immigration Law
In general, there are four areas of criminal violations under federal immigration
law: (1) third parties aiding illegal aliens; (2) illegally entering and departing the country;
(3) counterfeiting immigration documents, and (4) employing illegal aliens.
1. Aiding Illegal Immigrants
It is a criminal violation to assist illegal aliens entering the country by:
Transporting an illegal alien into the country;
Providing a person with entrance documents that are false;
Inducing an alien to illegally enter the country;
Aiding an alien inadmissible due to a felony conviction or health reason in
entering country; and,
Importing an alien for prostitution
It is also a criminal violation to assist illegal aliens by helping them to remain in the
country, either by transporting an illegal alien within the country or concealing or
harboring an illegal alien.
2. llegal Entrance or Departure
It is also a criminal violation to assist an illegal alien to enter or depart the country
Enter or depart in a way other than proscribed by law;
Evade examination by immigration officers;
Gain entrance by fraud (including false documents, sham marriage, sham
Reenter after being removed; and,
Stay in the country beyond a removal date.
It is also a civil or administrative violation for an illegal alien to be present in the country.
3. Fraudulent Immigration Documents
It is a criminal violation to make fraudulent statements or forge documents with
Making a false statement on an application for entrance or adjustment of status;
Forging any document needed for entrance;
Using or possessing any forged document; and,
Providing a forged document to another.
4. Employing Illegal Aliens
It is a criminal violation to hire illegal aliens, specifically it is illegal to:
Hire, recruit or refer, for a fee, a known illegal alien;
Hire without complying with the Employment Verification System; and,
Continue to employ an alien known to be illegal.
The Supremacy Clause of the United States Constitution makes federal law the
“supreme law of the land.” Any state or local law that concerns or conflicts with a
federal law is said to be preempted by the federal law and thus unconstitutional.
Generally, there are three types of preemption; (1) express or explicit, (2) occupying the
field or field preemption, and (3) implied conflict.
While immigration has always been considered an exclusive federal power, the
United States Supreme Court has provided a three part test to determine if a state law is
preempted by a federal law. In DeCanas v. Bica, the court looks at three following
factors or tests; (1) Does the state law regulate immigration, (2) Was it Congress’ intent
to ouster state power in the area, or (3) Does the state law conflict with or prevent an
objective of the federal law. A state/local law must pass each of the three parts in order
to avoid preemption.
The first part, concerned with whether the state/local law regulates immigration,
specifically examines whether the law determines who may stay in the country. An
example of a law that would regulate immigration and face preemption is a state law
which allowed state agents to make determinations of immigration status without using
the federal guidelines.
The second part of the test examines whether existing federal law meant to ouster
state action in the area. This may be shown by Congress expressly stating that they
intend to preempt all state action in the area. For example, state laws concerning the
punishment of employment of illegal aliens are preempted because Congress explicitly
states that they are in the U.S. Code. Some courts have also ruled that simple
Congressional action in that area indicates the intention of preemption.
The third part of the preemption test concerns whether the state/local law causes a
conflict with a federal law. For example, the U.S. Supreme Court has said that awarding
back pay to an illegal alien intrudes upon federal immigration policy that opposes illegal
aliens obtaining jobs.
Law enforcement authority
There is some confusion concerning state law enforcement authority to make
arrests for criminal violations of federal immigration law. Currently, there are two
statutes in the U.S. Code which grant specific authority for state law enforcement officers
to makes arrests. Section 8 U.S.C. § 1252c specifically allows state law enforcement
officers to arrest and detain an alien who was previously convicted of a felony and
illegally present in the U.S. Section 8 U.S.C. § 1324 allows state officers to make arrests
under the federal anti-harboring statute. And, finally 8 U.S.C. § 1357(g) provides the
ability for local/state law enforcement agencies to enter into an agreement with ICE,
which essentially deputizes the state officials as “immigration officers,” with full arrest
powers under immigration law.
On the other hand, the Ninth and Tenth Circuits have ruled that state law
enforcement officers have the “inherent authority” to enforce federal, criminal violations
of immigration law. The Tenth Circuit has gone even further and held that state/local law
enforcement officers may enforce civil violations as well. The United States Department
of Justice (DOJ) released two separate memos that supported the notion of state/local
enforcement of criminal immigration law. The latest of these two memos, issued in 2002,
however, also argued that civil violations may be enforced by state/local officers.
No court has ruled whether the statutory powers specifically granted to states by
statute to make arrests preempts the concept of inherent authority.