Posted by Caroline Cincotta, from the ACLU Immigrants' Rights Project on the ACLU Blog of Rights:
From The ACLU Immigrants' Rights Project has released an issue brief
on the criminalization of undocumented immigrants. In recent years,
states and localities around the country have increasingly attempted to
use state and local laws to impose criminal penalties on undocumented
immigrants, and the federal government has increasingly chosen to
criminally prosecute individuals who violate federal immigration laws
rather than rely on the extensive federal civil enforcement scheme.
The use by states and localities of criminal laws to go after
undocumented immigrants simply for being undocumented is generally
unlawful, because the federal government has sole power to regulate
immigration. For example, in 2005, two New Hampshire sheriffs arrested and prosecuted several undocumented immigrants
for "criminal trespass," accusing them of being in New Hampshire
unlawfully solely because they were undocumented. The state court that
heard the case concluded (PDF) that the state law could not be used in that way because only the federal government can regulate immigration.
More important, the federal government's decision to prosecute more
immigration violations criminally has diverted resources from
prosecution of serious violent and property crimes. As federal
prosecutions for immigration law crimes such as illegal entry have
increased dramatically, with prosecutors choosing to pursue 97 percent of all such crimes referred to them,
federal prosecutors have had less time for prosecutions for gun
trafficking, public corruption, organized crime, and white-collar
crime. Prosecutors currently only pursue charges on about 50 percent of
white collar crimes sent to them by law enforcement. Localities and
states that attempt to expend criminal justice resources targeting
undocumented immigrants may reduce public safety overall.
Adoption of state and local criminal laws against undocumented
immigrants has often been driven by misleading rhetoric about "criminal
aliens," as well as by reliance on inaccurate statistics suggesting
that all undocumented immigrants are criminals or a dangerous threat to
communities. Local and state officials also often misunderstand the
nature of the criminal provisions in federal immigration law. In fact,
mere unlawful presence in the United States has never been a crime.
When considering immigration reform legislation in 2005, Congress
specifically rejected a provision that would have made unlawful
presence in the United States a federal crime.
In addition, immigrants are not more likely to commit
crimes than other residents of the United States. Studies have shown
that increased immigration does not lead to increased crime and that
immigrants are less likely to be incarcerated for violating
criminal laws than non-immigrants. And a study of those immigrants most
likely to be undocumented has concluded that they are not only
substantially less likely to be incarcerated than non-immigrants, but
may even be less likely to be incarcerated than other immigrants to the
United States.
Criminalization of undocumented immigrants is a misguided policy
that may harm public safety and violate federal law. The entire Issue
Brief — which contains more information on these issues, including
links to the cited studies — can be found here.