Unforgiving of Those Who Trespass Against U.S.: State Laws Criminalizing Immigration Status

University of Tennessee Legal Studies Research Paper No. 140

Loyola Journal of Public Interest Law, Vol. 12, Issue 2 (Spring 2011), pp. 331-364

34 Pages Posted: 18 Feb 2011 Last revised: 19 Apr 2017

Karla Mari McKanders

University of Tennessee College of Law

Date Written: February 16, 2011

Abstract

Since around 2005, states and localities have been using criminal trespass laws to target undocumented immigrants for unlawful presence. Specifically, in April 2010, Arizona passed SB 1070: Support Our Law Enforcement and Safe Neighborhoods Act. SB 1070 creates crimes involving trespassing by “illegal aliens” and harboring or concealing unlawful aliens. This paper argues that state trespass laws that criminalize unlawful presence of immigrants are unconstitutional regulations of immigration and are a preempted exercise of state power. In evaluating the constitutionality of state trespass laws that criminalize immigration status, this paper proceeds in three parts. The first part of the paper details how as a sovereign nation, U.S. laws have excluded undesirable categories of people from admission and have attempted to criminalize specific immigration violations. The second part explains and critiques the sections of SB 1070 that create separate state criminal offenses for violating federal immigration laws - namely unlawful presence or criminal trespass. The third part analyzes the constitutionality of the criminal provisions of SB 1070 that make it a state crime to be unlawfully present in the state in relation to specific provisions of the INA and federal immigration policy. The paper concludes that state trespass laws that criminalize unlawful presence of immigrants and attempt to delegate immigration enforcement to state officials are unconstitutional regulations of immigration and are therefore a preempted exercise of state power.

Suggested Citation

McKanders, Karla Mari, Unforgiving of Those Who Trespass Against U.S.: State Laws Criminalizing Immigration Status (February 16, 2011). Loyola Journal of Public Interest Law, Vol. 12, Issue 2 (Spring 2011), pp. 331-364. Available at SSRN: https://ssrn.com/abstract=1762747 or http://dx.doi.org/10.2139/ssrn.1762747

Karla Mari McKanders (Contact Author)

University of Tennessee College of Law ( email )

1505 West Cumberland Avenue
Knoxville, TN 37996
United States
(865) 974-5710 (Phone)

HOME PAGE: http://www.law.utk.edu/faculty/mckanders/index.shtml

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