State Efforts to Deter Unauthorized Aliens:
Legal Analysis of Arizona’s S.B. 1070
Michael John Garcia
Legislative Attorney
Larry M. Eig
Specialist in American Public Law
Yule Kim
Legislative Attorney
May 3, 2010
Congressional Research Service
7-5700
www.crs.gov
R41221
CRS Report for Congress
P
repared for Members and Committees of Congress
State Efforts to Deter Unauthorized Aliens: Legal Analysis of Arizona’s S.B. 1070
Summary
On April 23, 2010, Arizona enacted S.B. 1070, which is designed to discourage and deter the
entry or presence of aliens who lack lawful status under federal immigration law. Potentially
sweeping in effect, the measure requires state and local law enforcement officials to facilitate the
detection of unauthorized aliens in their daily enforcement activities. The measure also
establishes criminal penalties under state law, in addition to those already imposed under federal
law, for alien smuggling offenses and failure to carry or complete alien registration documents.
Further, it makes it a crime under Arizona law for an unauthorized alien to apply for or perform
work in the state, either as an employee or an independent contractor.
The enactment of S.B. 1070 has sparked significant legal and policy debate. Supporters argue that
federal enforcement of immigration law has not adequately deterred the migration of
unauthorized aliens into Arizona, and that state action is both necessary and appropriate to
combat the negative effects of unauthorized immigration. Opponents argue, among other things,
that S.B. 1070 will be expensive and disruptive, will be susceptible to uneven application, and
can undermine community policing by discouraging cooperation with state and local law
enforcement. In part to respond to these concerns, the Arizona State Legislature modified
S.B. 1070 on April 30, 2010, through the approval of H.B. 2162.
Whenever states enact laws or adopt policies to affect the entry or stay of noncitizens, including
aliens present in the United States without legal authorization, questions can arise whether
Congress has preempted their implementation. For instance, Congress may pass a law to preempt
state law expressly. Further, especially in areas of strong federal interest, as evidenced by broad
congressional regulation and direct federal enforcement, state law may be found to be preempted
implicitly. Analyzing implicit preemption issues can often be difficult in the abstract. Prior to
actual implementation, it might be hard to assess whether state law impermissibly frustrates
federal regulation. Nevertheless, authority under S.B. 1070, as originally adopted, for law
enforcement personnel to investigate the immigration status of any individual with whom they
have “lawful contact,” upon reasonable suspicion of unlawful presence, could plausibly have
been interpreted to call for an unprecedented level of state immigration enforcement as part of
routine policing. H.B. 2162, however, has limited this investigative authority.
Provisions in S.B. 1070 criminalizing certain immigration-related conduct also may be subject to
preemption challenges. The legal vulnerability of these provisions may depend on their
relationship to traditional state police powers and potential frustration of uniform national
immigration policies, among other factors. In addition to preemption issues, S.B. 1070 arguably
might raise other constitutional considerations, including issues associated with racial profiling.
Assessing these potential legal issues may be difficult before there is evidence of how S.B. 1070,
as modified, is implemented and applied in practice.
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State Efforts to Deter Unauthorized Aliens: Legal Analysis of Arizona’s S.B. 1070
Contents
I. Background ............................................................................................................................. 1
II. Major Provisions of S.B. 1070, As Modified........................................................................... 3
III. Overview of Preemption........................................................................................................ 5
State Enforcement of Immigration Law Under Section 2 of S.B. 1070................................... 7
Criminalization of Immigration-Related Conduct ................................................................ 11
Criminalizing the Hiring of Persons Picked Up Along Roadways .................................. 12
Criminalizing Alien Smuggling Activities ..................................................................... 12
Criminalizing Violations of Federal Alien Registration Requirements............................ 16
Criminalizing the Solicitation or Performance of Work by Unauthorized Aliens............. 19
IV. Racial Profiling Issues ......................................................................................................... 22
V. Conclusion............................................................................................................................ 23
Contacts
Author Contact Information ...................................................................................................... 24
Congressional Research Service
State Efforts to Deter Unauthorized Aliens: Legal Analysis of Arizona’s S.B. 1070
n April 23, 2010, Arizona enacted legislation (commonly referred to as S.B. 1070)
designed to discourage and deter the entry or presence of aliens who lack lawful status
O under federal immigration laws.1 Characterized by proponents and opponents alike as
potentially sweeping in effect, the measure generally requires state and local law enforcement
officials to facilitate the detection of unauthorized aliens in their daily enforcement activities. Any
lawful Arizona resident may bring suit to challenge a state or local policy that restricts
enforcement of federal immigration law. Among its other provisions, the measure also establishes
criminal penalties under state law, in addition to those already imposed under federal law, for
alien smuggling offenses and failure to carry or complete alien registration documents. Further, it
makes it a crime under Arizona law for an unauthorized alien to apply for or perform work in the
state, either as an employee or an independent contractor.
The enactment of S.B. 1070 sparked significant legal and policy debate. Supporters argue that
federal enforcement of immigration law has not adequately deterred the migration of
unauthorized aliens into Arizona, and that state action is both necessary and appropriate to
combat the negative effects of unauthorized immigration. Opponents argue, among other things,
that S.B. 1070 will be expensive and disruptive, will be susceptible to uneven application, and
can undermine community policing by discouraging cooperation with state and local law
enforcement. In part to respond to some of these concerns, the Arizona State Legislature modified
S.B. 1070 on April 30, 2010, through the approval of H.B. 2162. This report discusses the major
provisions of S.B.1070, as modified by H.B. 2162, and the legal and constitutional considerations
possibly implicated by their implementation. The report focuses primarily on those provisions
that require state enforcement of federal immigration law and impose criminal penalties for
immigration-related conduct, and discusses preemption issues that might be raised by these
measures.
I. Background
The foreign born population of the United States has grown rapidly from the 1980s onward. A
significant component of this population, an estimated 30% in 2008,2 resides in the United States
without legal authorization, either as a result of fraudulent or surreptitious entry or of overstaying
nonimmigrant visas that had allowed temporary presence in the country. In 1986, approximately 3
million unauthorized aliens resided in the United States. By 2006, the estimated number of
unauthorized aliens had more than tripled.3
As the population of unauthorized aliens grew, several impacted states sued the federal
government to recover the costs of benefits and services they were required to provide
unauthorized aliens because of the alleged failure of the federal government to enforce
immigration law adequately. These lawsuits failed.4 Meanwhile, many jurisdictions throughout
1 Under the Arizona Constitution, acts approved by the legislature do not become operative until 90 days after the close
of the legislative session during which they were passed. ARIZ. CONST. art. 4, § 1(3).
2 Jeffrey S. Passel & D’Vera Cohn, Pew Hispanic Center, A Portrait of Unauthorized Immigrants in the United States,
at 3 (Apr. 14, 2009).
3 CRS Report RL33874, Unauthorized Aliens Residing in the United States: Estimates Since 1986, by Ruth Ellen
Wasem.
4 E.g., Texas v. United States, 106 F.3d 661 (5th Cir. 1997); Chiles v. United States, 874 F. Supp. 1334 (S.D. Fla. 1994).
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State Efforts to Deter Unauthorized Aliens: Legal Analysis of Arizona’s S.B. 1070
the country have sought to deter the presence of unauthorized aliens and reduce attendant costs
through a variety of enforcement measures of their own.5
As a legal matter, states have inherent “police powers” to promote and regulate safety, health,
welfare, and economic activity within their respective jurisdictions. These powers are limited by
the rights owed to individuals under the Constitution, but state police powers also can be affected
by assertions and delegations of federal authority. Assertions and delegations of federal authority
change over time, and when they do, state powers can be concomitantly restricted or expanded.
Beginning in the 1970s, federal legislation on aliens more frequently regulated the incidents of
daily life of noncitizens, lawful and unlawful. Prime examples include rules on noncitizen access
to public benefits and programs, and sanctions against employers who hire unauthorized workers.
To some degree, new federal restrictions crowded out concurrent state regulation. At the same
time, however, the push by Congress to regulate the stay of aliens in the United States more
comprehensively also included, particularly in two statutes enacted in 1996,6 increased authority
for the states to mirror federal benefit restrictions and cooperate with immigration enforcement
generally.
Laws like Arizona’s S.B. 1070, even as modified by H.B. 2162, appear to test the legal limits of a
trend toward greater state involvement. Nevertheless, not all jurisdictions have reacted similarly
in responding to the influx of unauthorized aliens and the perception of growing state and local
authority to react to it. At the one end of the spectrum, some jurisdictions (occasionally referred to
as “sanctuary cities”) have been unwilling to assist the federal government in enforcing measures
that distinguish between legal and non-legal residents of the community, and in some cases have
actively opposed providing assistance to federal enforcement efforts.7 Moving toward the middle
of the spectrum, some states and localities communicate with federal immigration enforcement
officers under limited circumstances (e.g., after arresting an unauthorized alien for a criminal
offense), but for various reasons do not take a more active role in deterring illegal immigration.
At the other end of the spectrum are jurisdictions, like Arizona, that have actively sought to deter
the presence of unlawfully present aliens within their territory. Some of these jurisdictions have
assisted federal authorities in apprehending and detaining unauthorized aliens, including under
written agreements with federal immigration authorities made under § 287(g) of the Immigration
and Nationality Act (INA).8 More controversially, some states and localities have considered, and
5 According to one commentator, a total of 1,562 bills on illegal immigration were introduced in the fifty state
legislatures in 2007, 240 of which were enacted into law. Kris W. Kobach, Reinforcing the Rule of Law: What States
Can and Should Do to Reduce Illegal Immigration, 22 GEO. IMM. L.R. 459 (2008).
6 Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), P.L. 104-208, Division C; Personal
Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA), P.L. 104-193.
7 The federal government has taken steps to eliminate sanctuary policies. Pursuant to PRWORA § 434 and IIRIRA
§ 642, states and localities may not limit their governmental entities or officers from maintaining records regarding a
person’s immigration status, or bar the exchange of such information with any federal, state, or local entity. For further
discussion, see CRS Report RS22773, “Sanctuary Cities”: Legal Issues, by Yule Kim and Michael John Garcia.
8 8 U.S.C. § 1101, et seq. INA § 287(g) authorizes the Secretary of Homeland Security to enter
a written agreement with a State, or any political subdivision of a State, pursuant to which an
officer or employee of the State or subdivision, who is determined … to be qualified to perform a
function of an immigration officer in relation to the investigation, apprehension, or detention of
aliens in the United States (including the transportation of such aliens across State lines to detention
centers), may carry out such function at the expense of the State or political subdivision and to the
extent consistent with State and local law.
8 U.S.C. § 1357(g)(1). INA § 287(g)(10) further provides that this section does not require the existence of such an
(continued...)
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State Efforts to Deter Unauthorized Aliens: Legal Analysis of Arizona’s S.B. 1070
in a few cases enacted, measures intended to deter the presence of aliens who are in the United
States without legal authorization, including by limiting access to housing, employment, or
municipal services.9
II. Major Provisions of S.B. 1070, As Modified
The stated purpose of S.B. 1070, as modified by H.B. 2162, is to discourage and deter the
unlawful entry and presence of aliens in Arizona.10 Towards this end, it directs state and local law
enforcement officers and agencies, when making a lawful stop, detention, or arrest pursuant to the
enforcement of a state or local law, to make a reasonable attempt whenever practicable to
determine the person’s immigration status, if there is reasonable suspicion to believe the person is
an alien who is unlawfully present in the country.11 A person is presumed not to be an unlawfully
present alien if he can provide specified documentation, such as an Arizona driver’s license, to a
law enforcement officer or agency. An attempt to determine status need not be made if it would
hinder or obstruct an investigation.12 The immigration status of a person who is arrested must be
determined before the person is released.13 In implementing these provisions, law enforcement
officials “may not consider race, color, or national origin” except to the extent permitted by the
U.S. or Arizona Constitution.14 Before being modified by H.B. 2162, S.B. 1070 called for an
inquiry into status whenever reasonable suspicion arose during the course of any “lawful
contact,”15 a term that appeared to encompass a far wider range of interactions than the modified
provision does.
S.B. 1070 mandates that the U.S. Immigration and Customs Enforcement (ICE) or Customs and
Border Protection (CBP) be notified when an unlawfully present alien who has been convicted of
a crime is released from prison or has been assessed a monetary penalty.16 Furthermore, the bill
authorizes state and local law enforcement officials to transport unlawfully present aliens in their
custody to a federal facility.17 S.B. 1070 also authorizes officers to make an arrest without a
warrant if they have probable cause to believe the person to be arrested has committed any public
offense that makes the person removable from the United States.18
(...continued)
agreement in order for a state or local entity to “cooperate with … [federal immigration authorities] in the
identification, apprehension, detention, or removal of aliens not lawfully present in the United States.” 8 U.S.C.
§ 1357(g)(10).
9 See generally CRS Report RL34345, State and Local Restrictions on Employing, Renting Property to, or Providing
Services for Unauthorized Aliens: Legal Issues and Recent Judicial Developments, by Yule Kim, Jody Feder, and
Alison M. Smith.
10 S.B. 1070, § 1.
11 Id., § 2, as amended by H.B. 2162, § 3.
12 S.B. 1070, § 2.
13 Id.
14 Id., as amended by H.B. 2162, § 3. Prior to amendment by H.B. 2162, the act provided that race, color, or national
origin could not be the “sole factor” for determining reasonable suspicion, except to the extent authorized by the U.S.
or Arizona Constitution.
15 S.B. 1070, § 2.
16 Id.
17 Id.
18 Id., § 6. For purposes of Arizona law, a “public offense” includes any offense punishable by fine or imprisonment
(continued...)
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State Efforts to Deter Unauthorized Aliens: Legal Analysis of Arizona’s S.B. 1070
S.B. 1070 prohibits restricting state and local officials or agencies from sending, receiving,
exchanging, or maintaining information relating to the immigration status of an individual for the
purpose of determining eligibility for public services or benefits, verifying domicile or residence,
or determining whether a person is in compliance with federal alien registration laws.19 Any legal
resident of Arizona may bring suit to challenge any state or local policy that restricts the
enforcement of federal immigration laws to less than the full extent permitted by federal law.20
Prior to being modified by H.B. 2162, S.B. 1070 had authorized residents to bring suits to
challenge state and local practices, as well.
S.B. 1070 also criminalizes under state law some activities currently proscribed by the federal
immigration laws. For example, if a person violates 8 U.S.C. §§ 1304(e) or 1306(a),21 he will also
be guilty of the state crime of “willful failure to complete or carry an alien registration
document.”22 Modifications by H.B. 2162 eliminated the penalty structure under S.B. 1070 for
alien registration violations, which would have made these offenses felonies under certain
circumstances, and substituted a provision making all violations misdemeanors.23
S.B. 1070 also adds a new criminal statute prohibiting alien smuggling-related activities when
committed by a person who is in violation of another criminal offense. This statute imposes
criminal penalties upon the transport of an alien within the state in furtherance of the illegal
presence of the alien in the United States, when done with knowledge or in reckless disregard of
the alien’s unauthorized status in the country.24 Harboring an alien or encouraging an alien to
come to or reside in Arizona with knowledge or in reckless disregard of the fact that the alien’s
presence is a violation of law is also prohibited.25 Vehicles used in the commission of an offense
under the new smuggling statute are subject to mandatory immobilization or impoundment.
S.B. 1070 makes it an Arizona crime for an unlawful alien to apply for or solicit work in the state,
or to work as an employee or an independent contractor in the state.26 Separately, it is unlawful
for an occupant of a motor vehicle that is stopped on a roadway to pick up and hire, or attempt to
hire, passengers for work at a different location, if the motor vehicle blocks or impedes the
normal movement of traffic.27 S.B. 1070 also makes it unlawful for a person to enter the motor
vehicle in such circumstances, in order to be hired by the vehicle’s occupant.28
(...continued)
under the laws and regulations of Arizona or a political subdivision thereof, as well as an offense under the laws of
another state, if such conduct would have been punishable under Arizona law if it had occurred within the state. ARIZ.
REV. STAT. § 13-105.
19 S.B. 1070, § 2.
20 Id., § 2, as amended by H.B. 2162, § 3.
21 8 U.S.C. § 1304(e) mandates that every alien over the age of 18 carry any certificate of alien registration or alien
registration receipt card issued to him, and makes failure to comply a misdemeanor offense. 8 U.S.C. § 1306(a) makes
it a misdemeanor offense for an alien who is required to apply for registration and be fingerprinted to willfully fail or
refuse to do so.
22 S.B. 1070, § 3.
23 Id., as amended by H.B. 2162, § 4.
24 S.B. 1070, § 5.
25 Id.
26 Id.
27 Id.
28 Id.
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State Efforts to Deter Unauthorized Aliens: Legal Analysis of Arizona’s S.B. 1070
III. Overview of Preemption
The Supremacy Clause of the Constitution establishes that federal law, treaties, and the
Constitution itself are “the supreme Law of the Land.”29 Thus, one essential aspect of our federal
structure of government is that states can be precluded from taking actions that are otherwise
within their authority if federal law is thereby thwarted. “States cannot, inconsistently with the
purpose of Congress, conflict or interfere with, curtail or complement, the federal law, or enforce
additional or auxiliary regulations.”30 An act of Congress may preempt state or local action in a
given area in any one of three ways: (1) the statute expressly states preemptive intent (express
preemption); (2) a court concludes that Congress intended to occupy the regulatory field,31
thereby implicitly precluding state or local action in that area (field preemption); or (3) state or
local action directly conflicts with or otherwise frustrates the purpose of the federal scheme
(conflict preemption).32 The delineation between these categories, particularly between field and
conflict preemption, is not rigid.33
The power to set rules for which aliens may enter and remain in the United States is undoubtedly
federal, and the breadth and detail of regulation Congress has established in the Immigration and
Nationality Act of 1952 (INA), as amended,34 precludes substantive state regulation concerning
which noncitizens may enter or remain. Nevertheless, the Supreme Court has never held that
“every state enactment which in any way deals with aliens is a regulation of immigration and thus
per se pre-empted by this constitutional power, whether latent or exercised.”35 In the 1976 case of
DeCanas v. Bica, the Supreme Court held that state regulation of matters within their jurisdictions
that were only tangentially related to immigration would, “absent congressional action[,] ... not be
an invalid state incursion on federal power.”36 The Court further indicated that field preemption
claims against state action that did not conflict with federal law could only be justified when the
“complete ouster of state power ... was the clear and manifest purpose of Congress.”37 Still, the
DeCanas Court recognized that, even in situations where federal immigration law “contemplates
some room for state legislation,” a state measure might nonetheless be unenforceable on conflict
29 U.S. CONST. art. VI, cl. 2.
30 Hines v. Davidowitz, 312 U.S. 52, 66-67 (1941) (internal citations omitted).
31 Congressional intent to “occupy the field” to the exclusion of state law can be inferred when “[1] the pervasiveness
of the federal regulation precludes supplementation by the States, [2] where the federal interest in the field is
sufficiently dominant, or [3] where the object sought to be obtained by the federal law and the character of obligations
imposed by it ... reveal the same purpose.” Schneidewind v. ANR Pipeline Co., 485 U.S. 293, 300 (1988) (internal
quotations omitted).
32 See, e.g., Crosby v. National Foreign Trade Council, 530 U.S. 363, 373 (2000); English v. General Elec. Co., 496
U.S. 72, 78-79 (1990); Silkwood v. Kerr-McGee Corp, 464 U.S. 238, 248-249 (1984); Pacific Gas & Electric Co. v.
State Energy Resources Conservation & Development Comm’n, 461 U.S. 190, 203-204 (1983).
33 See English, 462 U.S. at 79 n.5 (“By referring to these three categories, we should not be taken to mean that they are
rigidly distinct. Indeed, field pre-emption may be understood as a species of conflict pre-emption: A state law that falls
within a pre-empted field conflicts with Congress’ intent (either express or plainly implied) to exclude state
regulation.”); Crosby, 530 U.S. at 373 n.6.
34 8 U.S.C. § 1101, et seq.
35 DeCanas v. Bica, 424 U.S. 351, 355 (1976). Indeed, during the nineteenth century, when federal regulation of
immigration was far more limited in scope, state legislation limiting the rights and privileges of certain categories of
aliens was common. See Gerald L. Neuman, The Lost Century of American Immigration Law (1776-1875), 93 COLUM.
L. REV. 1833 (1993). Many of these restrictions would now be preempted by federal immigration law.
36 DeCanas, 424 U.S. at 356.
37 Id. at 357.
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preemption grounds if it “stands as an obstacle to the accomplishment and execution of the full
purposes and objectives of Congress in enacting the INA.”38
A separate but somewhat related legal issue concerns the authority of states and localities to
directly enforce provisions of the INA, including by investigating and making arrests for criminal
and civil violations of federal immigration law. As a general matter, it appears well established
that states have at least implicit authority to make arrests for violations of federal law, unless the
nature or purpose of the federal regulatory scheme precludes state action.39 Historically, the
authority for state and local law enforcement officials to enforce immigration law has been
construed to be limited to certain criminal provisions of the INA.40 By contrast, the enforcement
of the civil provisions, including the apprehension and removal of deportable aliens, has been
viewed as a federal responsibility, with states and localities preempted from playing more than an
incidental supporting role, except to the extent specifically authorized by federal law.41
For the first several decades following the INA’s enactment, the prevailing assumption had been
that the INA’s deportation provisions constituted a pervasive and preemptive regulatory scheme
under which state and local enforcement was preempted.42 Then in the 1980s and 1990s, some
jurisdictions that were heavily impacted by immigration grew more insistent in characterizing
federal enforcement of federal immigration law as inadequate. In part to address these concerns,
Congress included authority in the Illegal Immigration Reform and Immigrant Responsibility Act
of 1996 (IIRIRA)43 for the Attorney General to enter into cooperative agreements with states and
localities under which trained state and local law enforcement officers can, under federal
supervision and subject to federal direction, perform certain functions relative to the
investigation, apprehension, or detention of unlawful aliens to the extent permitted by state or
local law. The enacted version of this measure was significantly narrower than some of those
considered (a House-passed version, for example, would have authorized agreements permitting
states to carry out all deportation functions, including prosecution, adjudication and physical
removal44), but all of the proposals that were seriously considered seem to have reflected a
perception that, absent a cooperative agreement with federal authorities, states and localities
38 Id. at 363 (internal quotations omitted). See also Crosby, 530 U.S. at 373 (2000)(quoting Hines, 312 U.S. at 67).
DeCanas upheld a California statute that imposed sanctions on employers who hired unlawful aliens if that
employment adversely affected lawful workers. When Congress added federal employer sanctions to the INA in 1986,
it expressly preempted state or local laws that sanctioned employers (other than through licensing or similar laws) for
hiring unauthorized workers. INA § 274A(h)(2), 8 U.S.C. § 1324a(h)(2).
39 See, e.g., Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142 (1963)(“The principle to be derived
from our decisions is that federal regulation of a field of commerce should not be deemed preemptive of state
regulatory power in the absence of persuasive reasons—either that the nature of the regulated subject matter permits no
other conclusion, or that the Congress has unmistakably so ordained.”); Gonzales v. City of Peoria, 722 F.2d 468, 473
(9th Cir. 1983) (“The general rule is that local police are not precluded from enforcing federal statutes.”), overruled on
other grounds, Hodgers-Durgin v. de la Vina, 199 F.3d 1037 (9th Cir. 1999).
40 Gonzalez, 722 F.2d at 474-75 (9th Cir. 1983). See also Dept. of Justice, Office of Legal Counsel, Assistance by State
and Local Police in Apprehending Illegal Aliens, 20 Op. O.L.C. 26, 1996 WL 33101191 at *4-6 (Feb. 5, 1996)
[hereinafter “1996 OLC Opinion”]; Jeff Lewis, et al., Authority of State and Local Officers to Arrest Aliens Suspected
of Civil Infractions of Federal Immigration Law, 7 BENDER’S IMMIGRATION BULLETIN No. 15, at 944 (Aug. 1, 2002).
41 For further discussion, see CRS Report RL32270, Enforcing Immigration Law: The Role of State and Local Law
Enforcement, by Lisa M. Seghetti, Karma Ester, and Michael John Garcia, at 5-11.
42 Gonzalez, 722 F.2d at 474-75. See also 1996 OLC Opinion, supra footnote 40, 1996 WL 33101191, at *13-16;
Lewis, supra footnote 40, at 944.
43 P.L. 104-208, Div. C, § 133, adding INA § 287(g), 8 U.S.C. § 1357(g).
44 H.R. 2202, § 133 (104th Cong., 2nd Sess.) (House-passed version).
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would play at most a secondary and supportive role in the enforcement of the civil provisions of
the INA.
But a restrictive view of a state and local role in the enforcement of immigration law may be
changing. In 2002, the Office of Legal Counsel (OLC) within the Department of Justice issued a
memorandum which concluded that “federal law did not preempt state police from arresting
aliens on the basis of civil deportability,” and it withdrew the advice of a 1996 OLC opinion
which had suggested otherwise.45 Additionally, a series of cases decided by the Tenth Circuit
variously drew no distinction between the criminal and civil provisions of the INA in relation to
state and local enforcement authority, or alluded to the “implicit authority” or the “general
investigatory authority” of the states to engage in civil immigration enforcement.46
State Enforcement of Immigration Law Under Section 2 of S.B. 1070
S.B. 1070 is premised on “a compelling interest in the cooperative enforcement of federal
immigration laws throughout all of Arizona.”47 To this end, the state intends to adopt “attrition
through enforcement” as state policy.48 “Attrition through enforcement” has been described by
some observers as an approach to deter unlawful migration and encourage the compelled or
voluntary exit of unlawfully present aliens through the “steady, across-the-board enforcement of
our immigration laws.”49 The approach most often is associated with more vigorous and efficient
implementation of employer sanctions, improved recordkeeping and more secure documents, and
other measures to make current law more effective. It also can imply better cooperation between
the states and federal immigration authorities, and the adoption of state and local laws that
discourage the presence of unauthorized aliens.50
Federal law contemplates some level of cooperation between state and federal agencies in the
enforcement of immigration laws. In 1996, Congress passed measures intended, at least in part, to
deter states and localities from limiting information-sharing with the federal government on
immigration matters. Pursuant to IIRIRA § 642 and § 434 of the Personal Responsibility and
Work Opportunity Reconciliation Act of 1996 (PRWORA), states and localities may not limit
their governmental entities or officers from maintaining records regarding a person’s immigration
45 Dept. of Justice, Office of Legal Counsel, Non-preemption of the Authority of State and Local Law Enforcement
Officials to Arrest Aliens for Immigration Violations, at 8 (Apr. 3, 2002) [hereinafter “2002 OLC Opinion”]. Initially,
the Department of Justice did not make the 2002 OLC opinion publicly available. Several immigration and public
interest groups sought disclosure under the Freedom of Information Act. See Nat’l Council of La Raza v. Dep’t of
Justice, 411 F.3d 350 (2nd Cir. 2005). As a result of this litigation, the DOJ was required to release a redacted version of
the opinion, which can be viewed at http://www.aclu.org/FilesPDFs/ACF27DA.pdf or http://www.fairus.org/site/
DocServer/OLC_Opinion_2002.pdf?docID=1041. See also 1996 OLC Opinion, supra footnote 40, 1996 WL
33101191, at *16 (“we conclude that state and local police lack recognized legal authority to stop and detain an alien
solely on suspicion of civil deportability”).
46 United States v. Santana-Garcia, 264 F.3d 1188 (10th Cir. 2001); United States v. Vasquez-Alvarez, 176 F. 3d 1294
(10th Cir. 1999); United States v. Salinas-Calderon, 728 F.2d 1298 (10th Cir. 1984). See generally CRS Report
RL32270, Enforcing Immigration Law: The Role of State and Local Law Enforcement, by Lisa M. Seghetti, Karma
Ester, and Michael John Garcia, at 5-11.
47 S.B. 1070, § 1.
48 Id.
49 CRS Report R41207, Unauthorized Aliens in the United States, by Andorra Bruno, at 12 (quoting Mark Krikorian,
Attrition by Enforcement is the Best Course of Action, SPARTANBURG (S.C.) HERALD-JOURNAL (Sept. 30, 2007)).
50 Id. at 12-13.
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status, or bar the exchange of such information with any federal, state, or local entity. In addition
to imposing obligations upon states and localities to refrain from restricting their agencies and
officers from communicating with federal authorities regarding immigration matters, IIRIRA
§ 642 also imposed an obligation upon federal immigration authorities to respond to immigration-
related inquiries from states and localities. Specifically, IIRIRA § 642(c) requires federal
immigration authorities:
to respond to an inquiry by a Federal, State, or local government agency, seeking to verify or
ascertain the citizenship or immigration status of any individual within the jurisdiction of the
agency for any purpose authorized by law, by providing the requested verification or status
information.51
Some of the provisions of S.B. 1070 have clearly been informed by these measures. Generally,
provisions of S.B.1070 that concern determinations of persons’ immigration status require
verification with the federal government pursuant to the mechanism established by IIRIRA
§ 642(c). Other provisions of S.B. 1070 resemble those provisions of PRWORA and IIRIRA that
prohibit state and local agencies from restricting the sharing of information related to immigration
status with other federal, state, and local entities. Section 2 of S.B. 1070 bars any restriction
(other than those imposed by federal law) upon state or local officers and agencies sending,
receiving, maintaining, or exchanging information on immigration with other federal, state, and
local government entities, when such activity is done for the purpose of determining eligibility for
public services or benefits, verifying a person’s claim of domicile or residence, or determining
whether a person is complying with federal alien registration laws. On their face, these provisions
might reasonably be viewed as consonant with provisions of PRWORA and IIRIRA concerning
the sharing of immigration-related information by federal, state, and local entities. On the other
hand, it is possible that these provisions could be interpreted more broadly to, for example, permit
the fostering of inquiries into immigration status by state and local employees beyond those
inquiries currently undertaken incident to those employees’ official duties.
Other provisions of S.B. 1070 contemplate state and local law enforcement actively participating
in the detection of unauthorized aliens in the course of their regular duties. Especially prior to its
modification by H.B. 2162, section 2 of S.B. 1070 arguably appeared to authorize intensive, daily
involvement in immigration law enforcement by state and local officers beyond established
precedents. As originally enacted, section 2 provided that whenever a law enforcement officer had
“lawful contact” with a person and reasonable suspicion existed that the person was an unlawfully
present alien, the officer was required, where practicable, to determine the person’s immigration
status. Case law in the Tenth Circuit has supported the authority of police to inquire into
immigration status in certain circumstances incidental to otherwise authorized enforcement of
criminal law, violations of state traffic laws, and similar offenses.52 Inquiring into status pursuant
51 8 U.S.C. § 1373(c).
52 The Tenth Circuit has upheld inquiries and arrests by state law enforcement officers related to suspected immigration
law violations, without appearing to distinguish between violations which are civil or criminal in nature. See, e.g.,
Santana-Garcia, 264 F.3d at 1194 (state law enforcement officers have “implicit authority” within their respective
jurisdictions to investigate and make arrests for violations of immigration law, even without express authorization from
the state); Vasquez-Alvarez,176 F.3d at 1295 (INA provision authorizing state officials to arrest and detain unlawfully
present aliens who had previously been deported on criminal grounds, but only upon confirmation of aliens’ illegal
status with federal authorities, “does not limit or displace the preexisting general authority of state or local police
officers to investigate and make arrests for violations of federal law, including immigration law”); Salinas-Calderon,
728 F.2d at 1301 n. 2 (“A state trooper has general investigatory authority to inquire into possible immigration
violations”). For additional discussion of these opinions, see CRS Report RL32270, Enforcing Immigration Law: The
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State Efforts to Deter Unauthorized Aliens: Legal Analysis of Arizona’s S.B. 1070
to “lawful contact” perhaps could have been read as sufficiently circumscribed to fit within this
line of cases (though its reception by the Ninth Circuit, where Arizona rests, might have been less
certain53). However, “lawful contact” also appeared susceptible to an interpretation that covered
any manner of casual interaction between the police and the public that was “lawful.” H.B. 2162
modified this provision to limit immigration status inquiries to situations where a law
enforcement agency or officer made a “lawful stop, detention, or arrest” for a violation of state or
local law.54 In addition, S.B. 1070, as modified, also establishes that persons arrested by state or
local law enforcement shall have their immigration status verified with federal authorities prior to
their release.55 Federal immigration authorities also shall be notified when an unauthorized alien
is released from prison or has been assessed a monetary penalty, and local law enforcement
officials may transport unauthorized aliens in their custody to a federal facility.56
Many of the above-described activities are the kind often contemplated in cooperative agreements
between the Department of Homeland Security and state or local law enforcement authorities. In
1996, Congress authorized the Attorney General (now the Secretary of Homeland Security) to
enter into formal agreements with state or local entities that permit those entities to play a direct
role in the enforcement of federal immigration law. Agreements entered pursuant to INA § 287(g)
(commonly referred to as “287(g) agreements”) enable specially trained state or local officers to
perform specific functions relative to the investigation, apprehension, or detention of aliens,
during a predetermined timeframe and under federal supervision. For example, the Department of
Homeland Security has entered 287(g) agreements with several jurisdictions to allow correctional
officers and other jail personnel to question persons who are being detained for crimes about their
immigration status and begin paperwork for transferring suspected removable aliens to federal
custody upon their release. Some other agreements authorize a limited number of highly trained
personnel to more broadly engage in field enforcement under direct supervision of federal
immigration agents.57 There are several 287(g) agreements in place between federal immigration
authorities and Arizona state, city, and county law enforcement agencies, permitting designated
officers to perform specified functions under federal supervision.58
(...continued)
Role of State and Local Law Enforcement, by Lisa M. Seghetti, Karma Ester, and Michael John Garcia, at 8-11.
53 See, e.g., Gonzalez, 722 F.2d at 476 (“[A]n intent to preclude local enforcement may be inferred where the system of
federal regulation is so pervasive that no opportunity for state activity remains. We assume that the civil provisions of
the [INA] regulating authorized entry, length of stay, residence status, and deportation, constitute such a pervasive
regulatory scheme, as would be consistent with the exclusive federal power over immigration.”).
54 H.B. 2162, § 3. Arizona law contains a few criminal offenses in which unauthorized immigration status is an element
of the offense (e.g., smuggling unauthorized aliens, failing to comply with federal requirements for alien registration).
Accordingly, an Arizona law enforcement officer’s suspicion that a person is an unauthorized alien might be a relevant
factor when assessing whether there is reasonable suspicion to stop the person for a suspected violation of state law.
However, neither federal nor state law makes it a criminal offense for an alien to be unlawfully present in the United
States. The fact that an officer has reasonable suspicion to believe that an alien is unlawfully present might not alone
provide sufficient grounds to reasonably suspect that he has committed a criminal offense. See infra text accompanying
footnote 96 (describing other requirements besides unauthorized status that are necessary for an alien to be criminally
liable under federal alien registration law).
55 S.B. 1070, § 2.
56 Id.
57 See CRS Report RL32270, Enforcing Immigration Law: The Role of State and Local Law Enforcement, by Lisa M.
Seghetti, Karma Ester, and Michael John Garcia, at 14-18.
58 See U.S. Immigration and Customs Enforcement, Office of State and Local Coordination, Delegation of Immigration
Authority Section 287(g) Immigration and Nationality Act, at http://www.ice.gov/pi/news/factsheets/
section287_g.htm#top (discussing 287(g) program and providing links to copies of agreements in force).
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State Efforts to Deter Unauthorized Aliens: Legal Analysis of Arizona’s S.B. 1070
S.B. 1070 does not purport to be based on a delegation of federal immigration enforcement
authority under INA § 287(g). Instead, its legal foundation appears premised on the belief that
states generally possess inherent power to enforce federal laws, and that federal immigration law
does not preempt the kind of enforcement activities contemplated by S.B. 1070. This position
appears to be based on similar legal reasoning as that found in the 2002 OLC opinion and the
Tenth Circuit cases mentioned above.59
To the extent that the performance of immigration enforcement functions by Arizona officials is
not done pursuant to a 287(g) agreement, arguments may be raised that states and localities are
preempted from engaging in such functions. In particular, some might argue that, to the extent
that the INA contemplates state and local participation in the enforcement of immigration law,
such participation must be through a cooperative agreement under INA § 287(g). INA § 287(g)
expressly authorizes federal immigration authorities to enter agreements with states or localities,
under which designated officers who are trained and supervised by federal authorities may
“perform a function of an immigration officer in relation to the investigation, apprehension or
detention of aliens.”60 It could be argued that, in the absence of an applicable 287(g) agreement,
federal law is intended to preempt states and localities from engaging in such actions.
A potential difficulty with this argument is language in INA § 287(g) that contemplates state or
local cooperation with federal immigration authorities even in the absence of a formal agreement.
Specifically, INA § 287(g)(10) plainly states that:
Nothing in this subsection shall be construed to require an agreement under this subsection in
order for any officer or employee of a State or political subdivision of a State-
(A) to communicate with the Attorney General regarding the immigration status of any
individual, including reporting knowledge that a particular alien is not lawfully present in the
United States; or
(B) otherwise to cooperate with the Attorney General in the identification, apprehension,
detention, or removal of aliens not lawfully present in the United States.61
One issue that a reviewing court may consider in assessing a preemption challenge against
S.B. 1070 is whether “cooperation” requires states and localities to consult and coordinate their
immigration enforcement efforts with federal authorities, or whether “cooperation” may also be
interpreted to permit states and localities to independently enact measures that are consistent with,
and arguably further, federal policies related to the detection and removal of unauthorized aliens.
Even presuming that the immigration enforcement activities contemplated by S.B. 1070 are not
facially preempted by federal immigration law, issues might nonetheless be raised with respect to
the act’s implementation.62 For example, section 2 of the Arizona law requires an arrested
59 See supra text accompanying footnote 52; 2002 OLC Opinion, supra footnote 45, at 2-4.
60 INA § 287(g)(1), 8 U.S.C. § 1357(g)(1).
61 INA § 287(g)(10), 8 U.S.C. § 1357(g)(10).
62 A separate provision of S.B. 1070, which authorizes warrantless arrests based on probable cause that a person has
committed a “public offense” making him removable, may also be controversial depending upon its application. Under
the INA, certain misdemeanor state convictions may be grounds for deportation. See infra text accompanying footnote
86; CRS Report RL32480, Immigration Consequences of Criminal Activity, by Yule Kim and Michael John Garcia.
Because Arizona law defines a “public offense” to include misdemeanors and offenses of laws of other states,
application of this provision could raise legal issues. There may be little precedent for warrantless arrests for out-of-
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State Efforts to Deter Unauthorized Aliens: Legal Analysis of Arizona’s S.B. 1070
person’s immigration status to be verified with federal authorities before he is released. This
provision may raise both preemption and due process concerns if it is interpreted to require the
continued detention of a person awaiting status verification, even after all other legal grounds for
detaining the person have been extinguished.63
Issues might also be raised with respect to the provision authorizing any legal resident of Arizona
to file suit to challenge any policy of a state or local government entity that “limits or restricts the
enforcement of federal immigration laws to less that the full extent permitted by federal law.”64
This authority might be seen as helping to ensure that state and local agencies comply with all
applicable federal immigration statutes, and that these entities do not impede the federal
government’s ability to carry out its immigration enforcement activities (e.g., by restricting their
employees from sharing of immigration information with federal authorities).65 Alternatively, it
might plausibly be interpreted more expansively to allow suits challenging whether Arizona
officials are actively enforcing federal immigration law to the fullest extent possible.
In sum, immigration enforcement provisions contained in S.B. 1070 that might, individually or
collectively, be interpreted as cooperative facilitation of federal enforcement practices might also
be open to interpretation as encouraging an independent state enforcement effort that is
preempted under federal law.
Criminalization of Immigration-Related Conduct
Provisions of S.B. 1070 criminalizing immigration-related conduct also may be subject to
preemption challenges. Those provisions of S.B. 1070 addressing issues that have traditionally
been subject to state regulation and upon which federal law remains silent seem least susceptible
to legal challenge. More serious preemption concerns may be raised by provisions that
criminalize matters already regulated by federal immigration law. Of this latter category, the most
serious preemption arguments likely exist where state law attempts to reach past traditional police
powers to regulate matters closely related to the entry and removal of aliens from the United
States, and the conditions of their lawful presence within the country. State laws addressing such
matters appear most susceptible to preemption challenges, as federal law is arguably intended to
wholly occupy this field.
(...continued)
state misdemeanors (or for in-state misdemeanors not committed in an officer’s presence) with an apparent expectation
that the arrestee will be detained and deported.
63 Although federal law requires immigration authorities to respond to any inquiry by a federal, state, or local agency
seeking to verify a person’s immigration status, it does not require such a response to be prompt. See 8 U.S.C.
§ 1373(c). There may be instances where immigration authorities cannot immediately provide requested verification
or status information.
64 S.B. 1070, § 2, as amended by H.B. 2162, § 3.
65 Indeed, H.B. 2162 amended the original language of S.B. 1070 to specify that a person could bring suit against those
government entities that were in violation of PRWORA and IIRIRA provisions which bar states and localities from
implementing policies which restrict communication with federal authorities regarding immigration matters. H.B. 2162,
§ 3.
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State Efforts to Deter Unauthorized Aliens: Legal Analysis of Arizona’s S.B. 1070
Criminalizing the Hiring of Persons Picked Up Along Roadways
Section 5 of S.B. 1070 makes it a misdemeanor offense under Arizona law for an occupant of a
motor vehicle stopped on the roadway to attempt to hire or hire and pick up passengers for work
at a different location, if the motor vehicle blocks or impedes the normal movement of traffic. The
law also imposes a misdemeanor penalty upon those persons who enter a stopped motor vehicle
to be hired and transported to work at a different location, if the vehicle blocks or impedes the
normal traffic flow. Although these provisions cover conduct that often facilitates the employment
of unauthorized aliens, the provisions criminalize conduct without regard to the participants’
citizenship or immigration status.66
It is well established that not every state law which tangentially touches upon immigration
matters is preempted.67 Further, courts have stated that when a state acts pursuant to its historic
police powers, there is a presumption against preemption of the state law, unless federal law
evidences a “clear and manifest purpose” to supersede state action.68 The regulation of the hiring
of persons along busy roadways appears well within a state’s traditional powers, and federal law
is silent on this matter. Accordingly, it does not appear that this provision facially poses a serious
preemption issue, though it is possible that preemption issues could be raised in its application
(e.g., if the law was only applied when law enforcement suspected that the prospective employee
was an unauthorized alien).
Occasionally, local laws barring solicitation of employment along public streets have been
stricken by the courts as violating the First Amendment.69 The underlying legal theory is that
streets are important public forums where the government can impose only narrowly tailored
restrictions on speech to serve significant government interests. The requirement in S.B. 1070
that premises a violation on the blocking or impeding of normal traffic may make the provision
less vulnerable to First Amendment attack, but the state might nevertheless eventually bear a
burden of showing that there are alternative public places for soliciting employment and that
other activity that can impede traffic (e.g., solicitation of charitable contributions) is similarly
regulated.
Criminalizing Alien Smuggling Activities
More significant preemption arguments might be raised against the provisions of S.B. 1070
imposing criminal penalties upon alien smuggling activities. Under INA § 274, the federal
government has criminalized various activities relating to the transportation of unauthorized
aliens into or within the United States, as well as the harboring of such aliens in the country, or
66 S.B. 1070, § 5 also makes it a misdemeanor for an unlawfully present alien to knowingly apply for work, solicit work
in a public place, or perform work as an employee or independent contractor in Arizona. This provision is discussed
elsewhere in this report.
67 DeCanas, 424 U.S. at 355. See also League of United Latin American Citizens v. Wilson, 908 F.Supp. 755
(C.D.Cal., 1995)(striking down portions of state measure that sought to deter unauthorized migration through various
state enforcement activities, but upholding portion criminalizing the making or use of false documents to conceal the
“true citizenship or resident status” of a person, because state had a legitimate interest in “criminalizing conduct that is
dishonest and deceptive”).
68 Ray v. Atlantic Richfield Co., 435 U.S. 151, 157 (1978)(quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230,
(1947)). But see United States v. Locke, 529 U.S. 89, 108 (2000) (“an ‘assumption’ of nonpre-emption is not triggered
when the State regulates in an area where there has been a history of significant federal presence”).
69 E.g., Comite de Jornaleros v. City of Redondo Beach, 475 F. Supp. 2d 952 (C.D. Cal. 2006).
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State Efforts to Deter Unauthorized Aliens: Legal Analysis of Arizona’s S.B. 1070
encouraging or inducing such aliens to come to or reside in the United States.70 For criminal
liability to attach, the offender must generally act with knowledge or in reckless disregard of the
alien’s unlawful status.
Even prior to the enactment of S.B. 1070, Arizona law already imposed criminal penalties for
certain activities that are likely also subject to criminal penalty under INA § 274. Arizona’s
“human smuggling” statute, which was enacted in 2005, generally makes it a felony under state
law for any person, for profit or commercial purpose, to transport or procure transportation for an
unauthorized alien, when the offender knows or has reason to know the person’s unauthorized
status.71 S.B. 1070 makes a minor amendment to this statute that does not affect its substantive
scope. More significantly, section 5 of the S.B. 1070 adds a separate criminal offense under state
law for any person, “who is in violation of a criminal offense,” to transport or harbor
unauthorized aliens, or encourage or induce such aliens to come to or reside in the state, when
such activities are done in knowing or reckless disregard of the alien’s unauthorized status.72 The
purpose of the phrase “who is in violation of a criminal offense” is unclear. The offenses
described in section 5 of S.B. 1070 would almost always constitute criminal offenses under INA
§ 274, meaning that any offense under section 5 would presumably be committed by a person
“who [was also] in violation of a criminal offense” under the federal alien smuggling statute. On
the other hand, the phrase “who is in violation of a criminal offense” could be interpreted in a
more limited manner to only permit persons to be prosecuted under the new Arizona law for
smuggling-related activities when they were also engaged in criminal conduct not described
under the state statute.
In sum, Arizona has established criminal penalties under state law, pursuant to the 2005 “human
smuggling” statute and the new offense created under section 5 of S.B. 1070, for similar conduct
to that which is prohibited under the federal alien smuggling statute.73 Because Arizona’s alien
smuggling laws operate in an area where the federal government exercises authority via INA §
274 and other immigration statutes, arguments may be raised that these laws are preempted.
Federal law does not expressly preempt state or local measures criminalizing activities related to
alien smuggling (though a provision of the federal alien smuggling statute impliedly authorizes
states and localities to make arrests for violations of the statute74). Presumably then, any
70 8 U.S.C. § 1324. See also CRS Report RL34501, Alien Smuggling: Recent Legislative Developments, by Yule Kim
and Michael John Garcia.
71 ARIZ. REV. STAT. § 13-2319 (2009). Although the federal alien smuggling statute also criminalizes the transport of
unauthorized aliens, for liability to attach transport must be done in furtherance of an alien’s unlawful presence,
whereas the Arizona statute requires that the transport be done with knowledge or in reckless disregard of the alien’s
unlawful status and for profit or a commercial purpose. The new smuggling offense added by S.B. 1070 more closely
mirrors the language of the federal statute concerning when criminal liability for alien transport attaches. Arizona is not
the only state that criminalizes alien smuggling activities. See 21 OKL. ST. ANN. § 446 (2009).
72 S.B. 1070, § 5.
73 It should be noted that although smuggling offenses under Arizona law closely resemble offenses under the federal
alien smuggling statute, the substantive scope of these offenses is not wholly identical. Notably as well, Arizona state
and federal district courts have interpreted the state’s preexisting human smuggling statute to cover persons who
conspire to smuggle themselves into the United States. See State v. Barragan-Sierra, 219 Ariz. 276, 196 P.3d 879
(Ariz. App. Div. 1, 2008). See also We Are America/Somos America, Coalition of Arizona v. Maricopa County Bd. of
Sup’rs, 594 F.Supp.2d 1104 (D. Ariz. 2009) (rejecting field preemption challenge raised by persons charged under
Arizona law with conspiring to smuggle themselves).
74 INA § 274(c), 8 U.S.C. § 1324(c) (“No officer or person shall have authority to make any arrest for a violation of any
provision of this section except officers and employees of the Service designated by the Attorney General, either
individually or as a member of a class, and all other officers whose duty it is to enforce criminal laws.”).
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State Efforts to Deter Unauthorized Aliens: Legal Analysis of Arizona’s S.B. 1070
preemption challenge against the smuggling provisions of S.B. 1070 (or Arizona’s preexisting
“human smuggling” statute) would be based on arguments that federal alien smuggling
restrictions occupy the regulatory field and preclude enforcement of similar state laws, or upon
arguments that the Arizona smuggling statute directly conflicts with or otherwise frustrates the
purposes of federal immigration law and policy.
The historic police power of states generally permits them to define and punish criminal activities
occurring within their territory.75 Arizona’s criminalization of smuggling activities occurring
within its jurisdiction has been held by reviewing courts to fall within the scope of its traditional
police powers,76 and a presumption may exist that Congress’s imposition of criminal penalties
upon alien smuggling was not intended to preclude states from enacting and imposing measures
consistent with federal law.77 On the other hand, courts have recognized that a presumption
against preemption does not exist in cases where a state “regulates in an area where there has
been a history of significant federal presence.”78 Given that federal regulation of alien smuggling
has been both long-standing and pervasive in scope,79 it could be argued that there is no
presumption against preemption of Arizona’s alien smuggling laws.80
Even assuming that Arizona’s laws concerning alien smuggling are not entitled to a presumption
against preemption given the degree of federal activity in this area, the measures might
nonetheless be deemed valid if they are consistent with pertinent federal laws and objectives.81
Thus far, state and federal courts that have considered challenges to Arizona’s 2005 human
smuggling statute have rejected field preemption arguments against the statute’s enforcement.82 In
2009, the U.S. District Court for Arizona upheld the statute against a field preemption challenge
in the case of We Are America/Somos America, Coalition of Arizona v. Maricopa County Board of
Supervisors. The plaintiffs in the case, who had been charged with conspiracy to violate the
Arizona statute, argued that the statute was unenforceable on field preemption grounds, as it
75 See e.g., Abbate v. United States, 359 U.S. 187, 195 (1959) (“States under our federal system have the principal
responsibility for defining and prosecuting crimes.”).
76 See, e.g., State v. Flores, 218 Ariz. 407, 412-413, 188 P.3d 706, 711-712 (Ariz. App. Div. 1, 2008) (finding that
“Arizona’s human smuggling law furthers the legitimate state interest of attempting to curb ‘the culture of lawlessness’
that has arisen around this activity by a classic exercise of its police power”); Barragan-Sierra, 196 P.3d at 890
(holding that Arizona’s human smuggling statute was a valid exercise of its police powers). Cf. Plyler v. Doe, 457 U.S.
202, 225 (1982) (recognizing that “States have some authority to act with respect to illegal aliens, at least where such
action mirrors federal objectives and furthers a legitimate state goal”).
77 See DeCanas, 424 U.S. at 357 (“[W]e will not presume that Congress, in enacting the INA, intended to oust state
authority to regulate … [employment of unauthorized aliens] in a manner consistent with pertinent federal laws. Only a
demonstration that complete ouster of state power including state power to promulgate laws not in conflict with federal
laws was ‘the clear and manifest purpose of Congress’ would justify that conclusion.”).
78 Locke, 529 U.S. at 108.
79 Statutory proscriptions against the illegal importation of aliens into the United States can be found as far back as
1875. Act of March 3, 1875, 18 Stat. 477, §§ 2-4. The modern alien smuggling statute predates the INA, and courts
have interpreted it to broadly cover many forms of assistance provided to unauthorized aliens. See generally CRS
Report RL34501, Alien Smuggling: Recent Legislative Developments, by Yule Kim and Michael John Garcia.
80 See Maricopa County Bd. of Sup’rs, 594 F.Supp.2d at 1111 (appearing to find that a presumption against preemption
did not exist with respect to Arizona’s “human smuggling” statute, but nonetheless holding that the statute was not
preempted by federal law).
81 See DeCanas, 424 U.S. at 357.
82 Maricopa County Bd. of Sup’rs, 594 F.Supp.2d at 1114; Barragan-Sierra, 219 Ariz. at 287-288; Flores, 218 Ariz. at
412-413.
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State Efforts to Deter Unauthorized Aliens: Legal Analysis of Arizona’s S.B. 1070
impermissibly duplicated federal immigration law in object and effect.83 The district court noted
that the plaintiffs did not argue that the Arizona statute was in disharmony with the INA, but only
that it was duplicative. The court rejected the plaintiffs’ field preemption challenge, finding that
plaintiffs had failed to demonstrate, “either based upon the language or the legislative history of
the INA, that ‘Congress intended to preclude harmonious state regulation touching on the
smuggling of illegal aliens….’”84 The district court’s ruling is currently on appeal with the Ninth
Circuit. If the ruling is upheld, it would not appear likely that those provisions of S.B. 1070
establishing additional alien smuggling offenses under Arizona law would be susceptible to a
field preemption challenge solely because they mirrored federal laws penalizing alien smuggling.
It is possible that Arizona’s criminalization of alien smuggling might nonetheless be subject to
preemption challenges on other grounds. For example, even state laws that are duplicative of
federal law may be subject to challenge on preemption grounds if they “stand[ ] as an obstacle to
the accomplishment and execution of the full purposes and objectives of Congress.”85 It could be
argued, for example, that when Congress established criminal penalties for alien smuggling, it did
so under the expectation that offenders would not also be subject to additional criminal penalties
under state law. Potential tension may arise between federal and state policies if the federal
government declined to prosecute alien smuggling conduct that was subsequently prosecuted by
Arizona. Such tension might be particularly significant when the federal government declines to
prosecute a non-citizen for an alien smuggling offense, with the intention of permitting the alien’s
continued presence in the United States, only for the alien to be convicted of the offense in state
court. Not only might a state conviction make the alien deportable, but it might also disqualify
him from being eligible for many legal forms of relief from deportation (e.g., asylum or
temporary protected status).86
Although this argument already has been raised in at least one of the legal challenges to Arizona’s
“human smuggling” statute,87 thus far the reviewing courts have concluded that the punishment of
alien smuggling activities is consistent with federal objectives to deter that activity.88
Nonetheless, it is uncertain whether other courts would reach similar conclusions,89 as the degree
83 Maricopa County Bd. of Sup’rs, 594 F.Supp.2d at 1111.
84 Id. at 1112 (quoting Barragan-Sierra, 196 P.3d at 890).
85 Crosby, 530 U.S. at 373 (2000) (quoting Hines, 312 U.S. at 67).
86 For example, the INA defines certain offenses as “aggravated felonies,” whether committed in violation of federal or
state law, including any offense described in the federal alien smuggling statute. See INA § 101(a)(43), 8 U.S.C.
§ 1101(a)(43). Conviction for an “aggravated felony” is a ground for deportation and also makes an alien ineligible for
most forms of relief from deportation. A conviction for an offense under Arizona’s “human smuggling” statute would
generally appear to fall under this definition. Although the new alien smuggling statute created by S.B. 1070 only
imposes a misdemeanor penalty for a first-time offense, courts have recognized that certain misdemeanors fall under
the INA’s definition of “aggravated felony.” See, e.g., Biskupski v. Attorney General of U.S., 503 F.3d 274 (3rd Cir.
2007) (holding that misdemeanor offense of federal alien smuggling statute constituted an “aggravated felony” under
the INA); United States v. Gonzalez-Tamariz, 310 F.3d 1168 (9th Cir.2002) (state misdemeanor battery conviction
constituted “aggravated felony”). Misdemeanor offenses may sometimes have immigration consequences, even if they
do not fall under the definition of “aggravated felony” used by the INA. See generally CRS Report RL32480,
Immigration Consequences of Criminal Activity, by Yule Kim and Michael John Garcia.
87 See We Are America/Somos America, Coalition of Arizona v. Maricopa County Bd. of Sup’rs, No. CIV 06-2816,
2007 WL 2775134 , *6-7 (D. Ariz., Sept. 21, 2007) (court order in the Maricopa County Bd. of Sup’rs litigation
recognizing that Arizona’s human smuggling statute was consistent with federal immigration policy, and noting that
federal government has discretion to mitigate some of the immigration consequences of a state conviction by exercising
waiver authority over application of certain INA provisions).
88 See id.; Barragan-Sierra, 196 P.3d at 890; Flores, 218 Ariz. at 412.
89 For example, a few state and federal courts have considered preemption challenges to local ordinances that bar the
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State Efforts to Deter Unauthorized Aliens: Legal Analysis of Arizona’s S.B. 1070
to which states may impose additional criminal sanctions upon activities already regulated by the
INA remains an unsettled issue.
Criminalizing Violations of Federal Alien Registration Requirements
Section 3 of S.B.1070 establishes criminal penalties under Arizona law for violations of federal
requirements concerning alien registration. The INA generally prohibits a visa from being issued
to any alien seeking admission to the United States until he has registered with immigration
authorities.90 Moreover, any unregistered alien present in the United States who is over the age of
14 must apply for alien registration with immigration authorities within 30 days of entry (aliens
under 14 must apply for registration within 30 days of reaching their fourteenth birthday).91
Registration requirements are enforced in part by INA § 266(a), which makes it a misdemeanor
offense, subject to imprisonment for up to six months and/or a fine, for an alien to willfully fail or
refuse to file a registration form required under federal immigration law.92 Moreover, INA §
264(e) requires all registered aliens who are at least 18 years of age to carry with them and have
in their personal possession “any certificate of alien registration or alien registration receipt card
issued” to them.93 Failure to comply with this requirement constitutes a misdemeanor, and is
subject to imprisonment for not more than 30 days and/or a fine.94 It should be noted that
although an alien without legal authorization to be in the country is deportable under the INA,
unlawful presence is not a crime under either federal or Arizona law.95 Indeed, an alien who is
(...continued)
harboring or renting of property to unauthorized aliens. These courts have generally either concluded that the
ordinances are preempted by federal immigration laws, or have enjoined enforcement of the ordinances pending trial on
account of the preemption concerns they raise. See, e.g., Lozano v. City of Hazleton, 496 F. Supp.2d 477 (M.D. Pa.
2007) (finding that local prohibition on renting or leasing dwelling units to unauthorized aliens was preempted by
federal law, in part because it affected aliens who had not yet been ordered removed, and whose immigration status
could ultimately be adjusted by the federal government to permit their continued, legal presence); Garrett v. City of
Escondido, Order Granting Plaintiffs’ Application For Temporary Restraining Order, 465 F.Supp.2d 1043 (S.D. Ca.
2006) (granting temporary restraining order against local ordinance imposing civil and criminal penalties upon persons
renting property to unauthorized aliens, in part because serious field preemption concerns existed because of the federal
alien smuggling statute). See also State of New Hampshire v. Barros-Batistele, Case. No. 05-CR-1474, 1475 (N.H.
Dist. Ct. August 12, 2005) (lower state court ruling dismissing on field preemption grounds trespassing charges against
an alien on account of his suspected unlawful entry in the United States, as the regime of “offenses, sanctions and
penalties” established by the INA left no room for supplemental action by the states), available at
http://www.courts.state.nh.us/district/criminal_trespass_decision.pdf.
90 8 U.S.C. § 1301. This requirement may be waived in the case of nonimmigrants entering the United States under
INA §101(a)(15)(A) (ambassadors and diplomats) or INA §101(a)(15)(G) (representatives to, and officials and
employees of, international organizations). INA § 221(b), 8 U.S.C. § 1201(b).
91 8 U.S.C. § 1302. For additional discussion regarding alien registration, see CRS Report RL31570, Immigration:
Alien Registration, by Andorra Bruno.
92 8 U.S.C. § 1306(a).
93 8 U.S.C. § 1304(e). Accordingly, an alien who was not issued a registration certificate or card would not be in
violation of this section. United States v. Mendez-Lopez, 528 F.Supp. 972 (N.D. Ok. 1981) (alien who unlawfully
entered the United States and had not registered with immigration authorities was not subject to criminal penalties
under INA § 264(e), because the provision attaches liability only to those persons who fail to carry an “issued”
document).
94 8 U.S.C. § 1304(e).
95 The only situation where unlawful presence is itself a crime is when an alien is found in the country after having
been formally removed or after voluntarily departing the country while a removal order was outstanding. INA § 276, 8
U.S.C. § 1326.
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unlawfully present in the United States has not necessarily engaged in conduct that would make
him criminally liable under alien registration laws.96
Pursuant to S.B.1070, a person is subject to criminal penalty under Arizona state law if he is
determined to be guilty of a violation of INA § 264(e) (failure to carry registration documents) or
INA § 266(a) (willful failure to complete a registration document). In enforcing the statute, an
alien’s immigration status may be determined through verification with immigration authorities.
Initially, S.B. 1070 made a first-time offense a misdemeanor subject to fine and imprisonment for
up to six months, and subsequent offenses were felonies. If aggravating factors existed, offenses
would have been subject to more significant felony penalties.97 H.B. 2162 amended this provision
to make all offenses misdemeanors, with available penalties being lesser than or equal to those
imposed directly under federal law.98
Even as amended, this provision may face legal challenge, as the courts have recognized alien
registration to be an area where federal law is intended to operate exclusively, precluding
additional regulation by the states. In the 1941 case of Hines v. Davidowitz, the Supreme Court
ruled that a Pennsylvania statute requiring aliens to register with the state was preempted by the
Federal Alien Registration Act of 1940.99 Although the federal law did not expressly preempt state
laws concerning alien registration, the Court held that the federal act was intended to preempt
states from imposing their own alien registration requirements. Examining the legislative history
of the federal law, the Court concluded that Congress had intended to establish “a single
integrated and all-embracing system” for the registration of aliens. This system precluded the
enforcement of state laws that “inconsistently with the purpose of Congress, conflict or interfere
with, curtail or complement, the federal law, or enforce additional or auxiliary regulations”
related to alien registry.100
It might be difficult to reconcile the alien registration penalties imposed by S.B.1070 with the
Supreme Court’s ruling in Hines. One possible argument against a preemption challenge is the
fact that the Arizona statute does not establish different requirements for alien registration than
those employed by the federal government. Rather, the Arizona statute arguably seeks to bolster
compliance with federal alien registration requirements by enabling violators of those
requirements to be prosecuted under Arizona law. However, although state laws that mirror
96 For example, a registered alien who overstayed his visa would not have committed a criminal offense (presuming he
carried his registration with him at all times and notified immigration authorities of any change in his address), even
though he was unlawfully present. Further, although all nonregistered aliens who are present in the country are required
to register with the federal government, criminal liability generally only attaches if the alien willfully fails to apply for
registration within 30 days of entry. Accordingly, an unauthorized alien present in the country less than 30 days, or who
has been in the United States longer than 30 days but is unaware of alien registration requirements, would not be
criminally liable. See I.N.S. v. Lopez-Mendoza, 468 U.S. 1032, 1056-1057 (1984) (Brennan, J., dissenting) (describing
some of the situations where an unauthorized alien would not have committed a criminal violation of alien registration
laws). See also Bryan v. United States, 524 U.S. 184, 191 (1998) (“As a general matter, when used in the criminal
context, a ‘willful’ act is one undertaken with a ‘bad purpose.’ In other words, in order to establish a ‘willful’ violation
of a statute, the Government must prove that the defendant acted with knowledge that his conduct was unlawful.”)
(internal quotations omitted).
97 S.B. 1070, § 3.
98 H.B. 2162, § 4.
99 The requirements of the 1940 Act were largely incorporated into the INA. Although criminal penalties concerning
failure to register were imposed by the 1940 Act, criminal penalties concerning failure to carry registration documents
were added by the INA in 1952.
100 Hines, 312 U.S. at 66-67.
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federal requirements are generally deemed consistent with federal objectives, there are some
areas where the courts have recognized that even supplementary state regulation is precluded.101
The Hines Court appeared to indicate that alien registration is one of those areas. When the
federal government has “established rules and regulations touching the rights, privileges,
obligations or burdens of aliens as such, the statute is the supreme law of the land. No state can
add to … the force and effect of such … statute….”102
A reviewing court might interpret the Court’s ruling in Hines as precluding states from imposing
additional criminal penalties upon federal alien registration violations, separate and apart from
those already imposed under federal law. The Constitution’s protections against double jeopardy
do not preclude prosecutions for the same acts or omissions by separate sovereigns.103 Such
prosecutions may not only result in additional criminal penalties for the alien, if convicted, but
also have consequences upon an unauthorized alien’s ability to qualify for certain forms of relief
from removal available to otherwise deportable aliens.104 Although H.B. 2162 amended S.B. 1070
to reduce available penalties for state violations of alien registration requirements, so that they are
now lesser or equal to those available under federal law, the imposition of any state penalty for
violations of federal alien registration requirements might arguably be considered an “additional
or auxiliary regulation” that has been preempted.
Arguments could also be raised that enforcement of a state statute imposing criminal penalties for
violations of federal alien registration requirements would undermine the purposes behind the
creation of the federal system. Congress established a federal system for alien registration
because it perceived a need for “one uniform national … system.”105 One of the motivations for
establishing a single federal system of alien registration, according to the Hines Court, was
because Congress believed that additional state requirements could lead to harassment of “law-
abiding aliens” and affect U.S. relations with the foreign states from which they came.106 It could
be argued that states might interpret and enforce federal registration requirements differently from
both the federal government and each other, resulting in inconsistent interpretation and
101 Locke, 529 U.S. at 115 ( “It is not always a sufficient answer to a claim of pre-emption to say that state rules
supplement, or even mirror, federal requirements.”).
102 Hines, 312 U.S. at 62. See also Pennsylvania v. Nelson, 515 n.5 (discussing the Hines ruling and stating that “the
coincidence between the state and federal laws in the … case was so great that no real purpose was served by the state
law”). Even if states are preempted from adding to the force of a federal criminal law through the imposition of
additional state criminal penalties, it does not necessarily follow that a state would be preempted from arresting a
person for a violation of that federal law, as the arrest would not add to the force and effect of the federal statute. See
2002 OLC Opinion, supra footnote 45, at 7-8 (distinguishing preemption issues raised when a state makes an arrest for
a violation of federal law with those raised when a state enacts legislation that conflicts with or intrudes upon a field
occupied by federal law). Cf. Gonzales, 722 F.2d at 474-475 (federal immigration law was not intended to preempt
state authority to arrest persons for criminal offenses under the INA).
103 See Bartkus v. People of State of Ill., 359 U.S. 121 (1959); United States v. Lanza, 260 U.S. 377 (1922); State v.
Berry, 133 Ariz. 264, 650 P.2d 1246 (Ariz. App., 1982) (finding that double jeopardy clauses of Arizona and U.S.
Constitutions did not bar successive prosecutions under federal and Arizona law for same conduct). At one time,
Arizona barred state convictions for acts or omissions which had previously been tried by either the federal government
or another state, but this statutory prohibition appears to have been eliminated. ARIZ. REV. STAT. § 13-112 (1980). Other
restrictions might nonetheless still apply.
104 These consequences would have been more serious, and likely more susceptible to preemption challenge, under the
originally enacted version of S.B. 1070. Prior to amendment by H.B. 2162, S.B. 1070 imposed in many cases
significantly higher penalties for alien registration violations than those imposed for the same offenses under federal
law. See S.B. 1070, § 3.
105 Hines, 312 U.S. at 71.
106 Id.
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application of federal registration rules.107 On the other hand, it could be argued that state laws
like those of Arizona do not threaten the existence of a uniform national registration system
because they apply federal standards rather than establishing their own, separate rules. It remains
uncertain whether a reviewing court would interpret state statutes criminalizing violations of
federal alien registration requirements as being harmonious with federal policy, or instead view
them as “an obstacle to the accomplishment and execution of the full purposes and objectives” of
the federal alien registration system.108
It should be noted that, even if states are preempted from establishing “additional or auxiliary
regulations” related to alien registry, this does not necessarily mean that they are preempted from
enforcing federal alien registration requirements by arresting criminal offenders with the
expectation of transferring them to federal law enforcement custody. As previously discussed, it
seems well recognized that states have implied authority to make arrests for many criminal
violations of the INA, so long as those constitutional requirements concerning the ability to stop,
detain, or arrest persons are satisfied and such arrests are permissible under state law.109 Arguably,
this authority extends to making arrests for criminal violations of federal alien registration
requirements.110 This issue has not been definitively resolved, however, and it is possible that
there may be limitations upon a state’s ability to stop, detain, or arrest a person for a suspected
criminal violation of federal alien registration requirements.111
Criminalizing the Solicitation or Performance of Work by Unauthorized
Aliens
Prior to the enactment of the Immigration Reform and Control Act of 1986 (IRCA, P.L. 99-603),
federal immigration law did not comprehensively address the employment of unlawfully present
aliens, and regulation of such matters was thought to primarily be an issue governed by state law.
States were understood to have “broad authority” to regulate employment relationships within
107 Issues of differing interpretation could potentially arise, for instance, with respect to the scope of the federal
requirement that aliens carry a registration document or certificate that they were issued “at all times.” INA § 264(e), 8
U.S.C. § 1304(e). It is possible that some states would interpret this requirement to allow, for example, an alien to only
have constructive possession of a required document, while other states might interpret this provision more strictly. See
Benitez-Mendez v. I.N.S., 760 F.2d 907 (9th Cir. 1983) (stating that alien would not be in violation of INA § 264(e) if
he left papers in nearby car while he worked, because he would be in constructive personal possession of required
documents).
108 DeCanas, 424 U.S. at 363.
109 See supra “III. Overview of Preemption,” at 6-7.
110 See 1996 OLC Opinion, supra footnote 40, 1996 WL 33101191, at *3 (“absent knowledge of an established federal
policy of not prosecuting such offenses, state police may, in our opinion, legally detain alien suspects for disposition by
federal agents when there is reasonable suspicion that the suspects have violated or are violating the two commonplace
misdemeanor provisions of the INA, 8 U.S.C. § 1304(e) (lack of alien registration documents) or § 1325 (illegal entry),
or other criminal provisions of the INA”); U.S. Attorney’s Criminal Resource Manual, § 1918, Arrest of Illegal Aliens
by State and Local Officers (discussing state and local law enforcement officers’ ability to make arrests for criminal
offenses of the INA, including for criminal violations of the INA’s alien registration requirements), available at
http://www.justice.gov/usao/eousa/foia_reading_room/usam/title9/crm01918.htm.
111 See 1996 OLC Opinion, supra footnote 40, 1996 WL 33101191, at *11 (interpreting Ninth Circuit’s ruling in
Mountain High Knitting, Inc. v. Reno, 51 F.3d 216 (9th Cir. 1995), as suggesting that state authority to arrest an alien
for a criminal violation of federal registration requirements may be legally suspect if there is reason to believe that the
federal government will not prosecute the offender for the violation).
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their territory to protect workers and state fiscal interests.112 In DeCanas v. Bica, decided a decade
prior to the passage of IRCA, the Supreme Court recognized that states were largely free to
implement measures restricting the employment of unauthorized aliens within their territory, at
least so long as such restrictions were focused “directly upon ... essentially local problems and
[were] tailored to combat effectively the perceived evils.”113 The Court recognized that a state
might have legitimate reasons for restricting the employment of unauthorized aliens, particularly
in times of high unemployment, in order to protect the fiscal and economic interests of both the
state and its lawfully residing labor force.114
With the enactment of IRCA, Congress amended the INA to establish a scheme to combat the
employment of unauthorized aliens, and this system is now “central to the policy of immigration
law.”115 The INA now generally prohibits the hiring, referring, recruiting for a fee, or continued
employment of aliens lacking authorization to work in the United States.116 Violators may be
subject to cease and desist orders, civil monetary penalties, and (in the case of serial offenders)
criminal fines and/or imprisonment. In establishing this system, Congress also expressly
preempted any state or local measure “imposing civil or criminal sanctions (other than through
licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment,
unauthorized aliens.”117
In recent years, some states and localities concerned with the employment of unauthorized aliens
within their jurisdictions have attempted to supplement federal law with enforcement measures of
their own, including by denying or revoking business licenses of entities who have hired
unauthorized aliens. Many of these measures have been subject to legal challenge, with courts
reaching conflicting rulings as to their permissibility.118 In 2007, Arizona enacted the Legal
Arizona Workers Act, which authorized state courts to suspend or revoke the business licenses of
entities found by state officials to have knowingly or intentionally hired aliens who were not
authorized under federal law to work in the United States.119 Arizona also required employers
within the state to confirm the employment eligibility of workers via the E-Verify program, a
generally voluntary program operated by the Department of Homeland Security and the Social
Security Administration that enables employers to verify an employee’s work eligibility. In 2009,
the Ninth Circuit upheld the Arizona law, which had yet to be enforced, against a challenge that it
112 DeCanas, 424 U.S at 356.
113 Id. at 357.
114 The DeCanas Court described some of the reasons why a state might legitimately act to restrict the employment of
unauthorized aliens:
Employment of illegal aliens in times of high unemployment deprives citizens and legally admitted aliens of jobs;
acceptance by illegal aliens of jobs on substandard terms as to wages and working conditions can seriously
depress wage scales and working conditions of citizens and legally admitted aliens; and employment of illegal
aliens under such conditions can diminish the effectiveness of labor unions.
Id.
115 Hoffman Plastic Compounds, Inc. v. N.L.R.B, 535 U.S. 137, 147 (2002) (internal quotations omitted).
116 INA § 274A; 8 U.S.C. § 1324a.
117 INA § 274A(h)(2); 8 U.S.C. § 1324a.
118 For further discussion, see CRS Report RL34345, State and Local Restrictions on Employing, Renting Property to,
or Providing Services for Unauthorized Aliens: Legal Issues and Recent Judicial Developments, by Yule Kim, Jody
Feder, and Alison M. Smith.
119 Ariz. H.B. 2745 (2008). Further information regarding the act, as amended, is available at http://www.azag.gov/
LegalAZWorkersAct/.
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was facially preempted by the INA and other federal measures.120 A petition for review has been
filed with the Supreme Court, and the Court has invited the U.S. Solicitor General to submit a
brief expressing the views of the executive branch regarding the issues raised by the case.121
Section 5 of S.B. 1070 establishes new measures to deter the employment of unauthorized aliens
within Arizona. Most significantly,122 S.B. 1070 makes it a misdemeanor offense for an
unlawfully present alien, lacking authorization to work in the United States, “to knowingly apply
for work, solicit work in a public place or perform work as an employee or independent
contractor in this state.”123 The approach taken by S.B. 1070 to deter the employment of
unauthorized aliens is markedly different from that established under IRCA, potentially raising
preemption concerns.
On its face, Arizona’s imposition of criminal penalties upon unlawfully present aliens who seek
employment in the state does not appear to be expressly preempted by the INA. The regime
established by the INA to deter the employment of unauthorized aliens imposes sanctions upon
employers, rather than alien employees (though aliens may be subject to penalty if they use
fraudulent documents to circumvent work eligibility requirements124). While the INA, as
amended by IRCA, contains a provision expressly preempting states and localities from imposing
criminal or civil penalties upon employers of unauthorized aliens, this provision does not
expressly preempt state sanctions against unauthorized alien employees.
An examination of the legislative history behind the enactment of IRCA suggests its focus upon
employers was intentional. Although there appears to have been some consideration given to the
possibility of penalizing unauthorized aliens who sought employment in the United States,
Congress did not pursue this option. Describing the legislative history and purposes of IRCA in
1990, the Ninth Circuit stated that in establishing a federal regime to deter the employment of
unauthorized aliens, “Congress quite clearly was willing to deter illegal immigration by making
jobs less available to illegal aliens but not by incarcerating or fining aliens who succeeded in
obtaining work.”125 Although the INA was amended in 1990 to establish civil penalties for
120 Chicanos Por La Causa, Inc. v. Napolitano, 558 F.3d 856 (9th Cir. 2009). The court cautioned, however, that “If and
when the statute is enforced, and the factual background is developed, other challenges to the Act as applied in any
particular instance or manner will not be controlled by our decision.” Id. at 980.
121 Chamber of Commerce of U.S. v. Candelaria, 130 S.Ct. 534 (2009).
122 Section 5 of S.B. 1070 also makes minor modifications to the Legal Arizona Workers Act, though these
amendments do not seem to immediately raise any significant issues. It also imposes penalties upon the roadside hiring
of laborers. The legal implications of these penalties are discussed supra, “Criminalizing the Hiring of Persons Picked
Up Along Roadways,” at 12.
123 S.B. 1070, § 5.
124 INA § 274C, 8 U.S.C. § 1324c.
125 National Center for Immigrants’ Rights, Inc. v. I.N.S., 913 F.2d 135 (9th Cir. 1990) rev’d on other grounds, 502
U.S. 183 (1991) (“While Congress initially discussed the merits of fining, detaining or adopting criminal sanctions
against the employee, it ultimately rejected all such proposals…. Instead, it deliberately adopted sanctions with respect
to the employer only.… Although some continued to argue for restraints against the employee, the approach of
controlling employment through employer not employee sanctions was adjudged by Congress to provide the only
realistic and appropriate solution.”). See also, e.g., House Jud. Comm., H.Rept. 99-682 (1986)(I), at 48 (“Employment
is the magnet that attracts aliens here illegally or, in the case of nonimmigrants, leads them to accept employment in
violation of their status. Employers will be deterred by the penalties in this legislation from hiring unauthorized aliens
and this, in turn, will deter aliens from entering illegally or violating their status in search of employment…. Now, as in
the past, the Committee remains convinced that legislation containing employer sanctions is the most humane, credible
and effective way to respond to the large-scale influx of undocumented aliens.”).
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immigration-related document fraud, including the presentation of fraudulent documents to
demonstrate work eligibility,126 the federal regime does not impose any penalties against aliens
solely on account of working or seeking employment in the United States.
Although federal law does not expressly preempt state laws that impose criminal penalties upon
unauthorized aliens who work or seek employment, it could be argued that it impliedly does so.
In establishing a comprehensive scheme to deter employment of unauthorized aliens, Congress
consciously chose to target employers for sanction rather than unauthorized aliens themselves. A
state’s imposition of criminal penalties upon alien employees might be deemed inconsistent with
federal policy. A court’s assessment of a preemption challenge against the Arizona measure may
depend on how broadly it considers the field that Congress intended to occupy when enacting
IRCA.
IV. Racial Profiling Issues
In the 1968 case of Terry v. Ohio, the Supreme Court held that the Fourth Amendment permits a
law enforcement officer to stop and briefly detain a person when the officer reasonably suspects
that the person has committed a crime.127 Reasonable suspicion may not be based on a mere
hunch, but instead upon “specific reasonable inferences which [the officer] is entitled to draw
from the facts in light of his experience.”128 Section 2 of S.B. 1070, as amended by H.B. 2162,
generally requires that in the context of a lawful stop, detention or arrest by state and local law
enforcement pursuant to the enforcement of a state or local law, law enforcement must determine
the person’s immigration status, if practicable, when “reasonable suspicion exists that the person
is an alien … who is unlawfully present in the United States.”129 Some have expressed concern
that this provision may lead to the harassment of certain racial and ethnic groups by Arizona law
enforcement. The Arizona statute does not expressly prohibit law enforcement from relying, at
least in part, upon an individual’s racial or ethnic background when assessing whether to pursue
an inquiry into the person’s immigration status; instead, as amended by H.B. 2162, it provides
that law enforcement may not consider the race, color, or national origin of an individual when
determining whether there is reasonable suspicion to believe the person is an unlawfully present
alien, “except to the extent permitted by the United States or Arizona Constitution.”130
At least partially to address concerns that enforcement of S.B. 1070 would lead to constitutionally
impermissible “racial profiling,” Arizona Governor Jan Brewer issued an executive order on the
same day she signed the bill into law, which requires law enforcement officers to undergo training
concerning the implementation of S.B. 1070. Among other things, such training is intended to
“provide clear guidance to law enforcement officials regarding what constitutes reasonable
126 INA § 274C, 8 U.S.C. § 1324c.
127 392 U.S. 1 (1968).
128 Id. at 27.
129 The act does not require a determination to be made when “the determination may hinder or obstruct an
investigation.” Further, a person is presumed not to be an unlawfully present alien if he can provide specified
documentation. S.B. 1070, § 2.
130 H.B. 2162, § 3. Prior to amendment, S.B. 1070 provided that race, color, or national origin could not be the “sole
factor” considered in determining whether there was reasonable suspicion to believe a person was an unauthorized
alien, except to the extent permitted by the U.S. or Arizona Constitutions. S.B. 1070, § 2.
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suspicion, and shall make clear that an individual’s race, color or national origin alone cannot be
grounds for reasonable suspicion to believe any law has been violated.”131
Whether or not it is constitutionally permissible for race, ethnicity, or national origin to be
considered as a factor by Arizonan authorities when determining whether to inquire into a
person’s immigration status may depend upon a number of considerations. On several occasions,
courts have decided cases involving law enforcement authorities stopping persons for suspected
immigration violations on account of those persons’ suspected Mexican ancestry. Supreme Court
jurisprudence holds that race or ethnicity cannot be the sole factor giving rise to a law
enforcement stop for suspected immigration violations, but that at least in cases near the U.S.-
Mexican border, stops may be partially based on race.132 Nevertheless, the Court has suggested
that a different conclusion might be reached if stops based partially on Mexican ancestry occur in
places farther removed from the U.S.-Mexican border.133
In 2000, the Ninth Circuit, sitting en banc, ruled that the Border Patrol could not take into account
Hispanic origin when making stops in Southern California, concluding that in areas “in which the
majority—or even a substantial part—of the population is Hispanic,” as was the case in Southern
California, the probability that any given Hispanic person “is an alien, let alone an illegal alien, is
not high enough to make Hispanic appearance a relevant factor in the reasonable suspicion
calculus.”134 This ruling would seem to preclude Arizona law enforcement from using Hispanic
origin as a factor in the “reasonable suspicion” test in areas with similar demographics as
Southern California.
In sum, court jurisprudence indicates that Arizona law enforcement may not stop persons for
suspected immigration-related violations solely on account of such persons’ race or ethnicity, but
that at least in certain circumstances, suspicion may partially be based on such considerations.
Additional considerations, including population demographics, may also affect the weight to
which suspicions based on race or ethnicity may be permissibly given.
V. Conclusion
In recent decades, Congress has increasingly focused federal immigration policy on the daily
incidents of alien residency. Concomitantly, Congress has enlarged the opportunities for states to
become involved in enforcing immigration law. S.B. 1070 is in the vanguard of testing the legal
limits of these increased opportunities, though H.B. 2162 modified some of its more legally
ambitious efforts. To a large extent, the legal fate of Arizona’s attempts to supplement federal
immigration enforcement efforts may depend on how its individual provisions are implemented.
Until then, it may be difficult to determine whether Arizona’s assertion of concurrent authority to
affect unauthorized immigration is regarded as complementing federal efforts or as being
131 Arizona State Executive Order 2010-09, Establishing Law Enforcement Training for Immigration Laws, Apr. 23,
2010, available at http://www.azgovernor.gov/dms/upload/EO_201009.pdf.
132 Compare United States v. Brignoni-Ponce, 422 U.S. 873 (1975) (ruling unconstitutional a roving stop of a vehicle
by the Border Patrol near the U.S.-Mexican border, when the stop was based solely on the vehicle occupant’s apparent
Mexican ancestry) with United States v. Martinez-Fuerte, 428 U.S. 543 (1976) (permitting the stopping of persons at
fixed inspection checkpoints near the Mexican border when such stops were partially based on race).
133 Martinez-Fuerte, 428 U.S. at 563, n.17.
134 United States v. Montero-Camargo, 208 F.3d 1122, 1132 (9th Cir. 2000).
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counterproductive to them. At least some other states and localities that see themselves as heavily
impacted by unauthorized immigration likely will join Arizona on any new ground that S.B. 1070
establishes. And this potential for diverse and possibly fragmented immigration enforcement
doubtless will be among the many issues considered by the courts as legal challenges to S.B.
1070 proceed.
Author Contact Information
Michael John Garcia
Yule Kim
Legislative Attorney
Legislative Attorney
mgarcia@crs.loc.gov, 7-3873
ykim@crs.loc.gov, 7-9138
Larry M. Eig
Specialist in American Public Law
leig@crs.loc.gov, 7-7896
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