50 Pages Posted: 31 Mar 2008
In the immigration policy debate, the question of who enforces our immigration laws can be as significant as what those policies are. And on that question, a significant and startling trend in immigration law has emerged: the shifting of enforcement responsibilities once held exclusively by government officers to private parties such as employers, landlords, and public carriers. These laws obligate private parties to ensure that they provide their goods and services only to those with legal immigration status; private parties who fail to do so face civil and criminal penalties.
This article maps the expansion of private enforcement laws and weighs their costs and benefits. On the benefit side, private enforcement has strong intuitive appeal. According to advocates, the laws reduce illegal immigration by eliminating the pull factors that draw immigrants here; moreover, this additional enforcement is provided at little cost to our national and local governments. These touted benefits have motivated Congress and local legislatures across the country to consider expanding the obligations of private immigration enforcement to educators, medical care providers, and even charities.
But the reality is that private enforcement laws do not make effective immigration policy. Drawing on the nation's 21 year experience with federal employer sanctions, I observe that private enforcement laws have not reduced illegal immigration. Rather, these laws have been plagued by enforcement problems that undermine their effectiveness: enforcer confusion about their legal obligations, fraudulent documents that threaten the verification process, and political ambivalence about enforcement. Moreover, the laws have resulted in substantial discrimination against those who look or sound foreign. The laws have succeeded in conveying a symbolic message of tough immigration policies, but in the final analysis, the real costs of private immigration enforcement outweigh this symbolic benefit and counsel against their use.
Keywords: immigration law, employer sanctions, immigration law enforcement, private party enforcement
Suggested Citation: Suggested Citation
Pham, Huyen, The Private Enforcement of Immigration Laws. Georgetown Law Journal, Vol. 96, No. 3, 2008. Available at SSRN: https://ssrn.com/abstract=1114192