State Efforts to Deter Unauthorized Aliens: Legal Analysis of Arizona’s S.B. 1070

Michael John Garcia
Legislative Attorney

Kate M. Manuel
Legislative Attorney

Larry M. Eig
Specialist in American Public Law

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.

As amended, S.B. 1070 is scheduled to go into effect on July 29, 2010. Several lawsuits have been filed challenging the constitutionality of S.B. 1070 and seeking to preliminarily enjoin its enforcement. The U.S. Department of Justice (DOJ) is among those challenging S.B. 1070, alleging that its provisions, both separately and in concert, are preempted because they exceed states' roles with respect to aliens, interfere with the federal government's enforcement of immigration laws, and undermine U.S. foreign policy objectives.


Date of Report: July 12, 2010
Number of Pages: 27
Order Number: R41221
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Immigration-Related Worksite Enforcement: Performance Measures

Andorra Bruno
Specialist in Immigration Policy

In the spring of 2009, the Department of Homeland Security (DHS) issued new guidance on immigration-related worksite enforcement. In the words of DHS, the updated guidance "reflects a renewed Department-wide focus targeting criminal aliens and employers who cultivate illegal workplaces by breaking the country's laws and knowingly hiring illegal workers." Under the guidelines, DHS "will use all available civil and administrative tools, including civil fines and debarment, to penalize and deter illegal employment." According to 2008 estimates, there are some 8.3 million unauthorized workers in the U.S. civilian labor force.

DHS's U.S. Immigration and Customs Enforcement (ICE) is responsible for immigration-related worksite enforcement, or enforcement of the prohibitions on unauthorized employment in Section 274A of the Immigration and Nationality Act (INA). The INA §274A provisions, sometimes referred to as employer sanctions, make it unlawful for an employer to knowingly hire, recruit or refer for a fee, or continue to employ an alien who is not authorized to be so employed. Today, ICE's worksite enforcement program is focused primarily on cases that involve critical infrastructure facilities and cases involving employers who commit "egregious violations" of criminal statutes and engage in worker exploitation.

Employers who violate INA prohibitions on the unlawful employment of aliens may be subject to civil monetary penalties and/or criminal penalties. Criminal investigations may result in defendants being charged with crimes beyond unlawful employment and being subject to the relevant penalties for those violations.

Various measures are available to examine the performance of ICE's worksite enforcement program. They include Final Orders for civil monetary penalties, administrative fines, administrative arrests, criminal arrests, criminal indictments and convictions, and criminal fines and forfeitures. In addition to examining annual changes and trends in the various performance measure data, these data can be considered in relation to the estimated size of the unauthorized workforce or the potential number of employers employing these workers. When considered in this context, ICE's worksite enforcement program can seem quite limited.

Enforcement activity by the Department of Labor (DOL) is also relevant to a discussion of federal efforts to curtail unauthorized employment. DOL, which is responsible for enforcing minimum wage, overtime pay, and related requirements, focuses a significant percentage of its enforcement resources on a group of low-wage industries that employ large numbers of immigrant—and presumably large numbers of unauthorized—workers.

Related background information can be found in CRS Report RL33973, Unauthorized Employment in the United States: Issues, Options, and Legislation.


Date of Report: June 24, 2010
Number of Pages: 15
Order Number: R40002
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Trafficking in Persons: U.S. Policy and Issues for Congress

Liana Sun Wyler
Analyst in International Crime and Narcotics

Alison Siskin
Specialist in Immigration Policy

Trafficking in persons (TIP) for the purposes of exploitation is believed to be one of the most prolific areas of international criminal activity and is of significant concern to the United States and the international community. The overwhelming majority of those trafficked are women and children. According to Department of State estimates, roughly 800,000 people are trafficked across borders each year. If trafficking within countries is included in the total world figures, official U.S. estimates are that some 2 to 4 million people are trafficked annually. However, there are even higher estimates, ranging from 4 to 27 million for total numbers of forced or bonded laborers. As many as 17,500 people are believed to be trafficked to the United States each year. Human trafficking is now a leading source of profits for organized crime syndicates, together with drugs and weapons, generating billions of dollars. TIP affects virtually every country in the world.

Since enactment of the Victims of Trafficking and Violence Protection Act of 2000 (P.L. 106- 386), the Administration and Congress have aimed to address the human trafficking problem. The Trafficking Victims Protection Reauthorization Act of 2005 (TVPRA of 2005), which President Bush signed into law on January 10, 2006 (P.L. 109-164), authorized appropriations for FY2006 and FY2007. The 110th Congress passed The William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (P.L. 110-457, signed into law on December 23, 2008). The Act, among other provisions, authorizes appropriations for FY2008 through FY2011.

On June 16, 2009, the State Department issued its ninth annual, congressionally mandated report on human trafficking. In addition to outlining major trends and ongoing challenges in combating TIP, the report provides a country-by-country analysis and ranking, based on what progress foreign countries have made, from April 2008 through March 2009, in their efforts to prosecute, protect, and prevent TIP. The report categorizes countries into four "tiers" according to the government's efforts to combat trafficking. Those countries that do not cooperate in the fight against trafficking (Tier 3) have been made subject to U.S. foreign assistance sanctions. The Tier 3 group named in 2009 includes a total of 17 countries: Burma, Chad, Cuba, Eritrea, Fiji, Iran, Kuwait, Malaysia, Mauritania, Niger, North Korea, Papua New Guinea, Saudi Arabia, Sudan, Swaziland, Syria, and Zimbabwe. In September 2009, President Barack Obama determined that two Tier 3 countries will be sanctioned without exemption (Cuba and North Korea) and that six Tier 3 countries will be partially sanctioned (Burma, Eritrea, Fiji, Iran, Syria, and Zimbabwe).

Obligations for global and domestic anti-TIP programs, not including operations and law enforcement investigations, totaled approximately $99.4 million in FY2008. The second session of the 111th Congress may continue to exercise its oversight of TIP programs and operations. Related policy issues include how to measure the effectiveness of the U.S. and international responses to TIP, including the State Department's annual TIP rankings, the use of unilateral sanctions, and how to balance border control and law enforcement efforts against TIP perpetrators with victim prevention and rehabilitation efforts. Other issues are whether to include all forms of prostitution in the global definition of TIP, and whether sufficient efforts are applied to addressing all forms of TIP, including not only sexual exploitation, but also forced labor and child soldiers.


Date of Report: May 20, 2010
Number of Pages: 56
Order Number: RL34317
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Immigration Legislation and Issues in the 111th Congress

Andorra Bruno, Coordinator
Specialist in Immigration Policy

Karma Ester
Information Research Specialist

Chad C. Haddal
Analyst in Immigration Policy

Yule Kim
Legislative Attorney

Margaret Mikyung Lee
Legislative Attorney

Alison Siskin
Specialist in Immigration Policy

Ruth Ellen Wasem
Specialist in Immigration Policy

The Speaker of the House and the Senate Majority Leader have pledged to take up

comprehensive immigration reform legislation at some point in the 111th Congress. It is unclear

what the components of any immigration reform proposals that Congress may consider will be. In

the past, comprehensive bills have addressed border security, enforcement of immigration laws

within the United States (interior enforcement), employment eligibility verification, temporary

worker programs, permanent admissions and, most controversially, unauthorized aliens in the

United States.

The 111th Congress has considered various immigration issues and has enacted a number of

targeted immigration provisions. It has passed legislation (P.L. 111-8, P.L. 111-9, P.L. 111-68,

P.L. 111-83) to extend the life of several immigration programs—the E-Verify electronic

employment eligibility verification system, the Immigrant Investor Regional Center Program, the

Conrad State J-1 Waiver Program, and the special immigrant visa for religious workers—all of

which are currently authorized until September 30, 2012. Among the other subjects of legislation

enacted by this Congress are refugees (P.L. 111-8, P.L. 111-17) and border security (P.L. 111-5,

P.L. 111-32, P.L. 111-83).

This report discusses these and other immigration-related issues that have seen legislative action

or are of significant congressional interest. Department of Homeland Security (DHS)

appropriations are addressed in CRS Report R40642, Homeland Security Department: FY2010

Appropriations, and, for the most part, are not covered here.


Date of Report: May 6, 2010
Number of Pages: 16
Order Number: R40848
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People Crossing Borders: An Analysis of U.S. Border Protection Policies

Chad C. Haddal
Analyst in Immigration Policy

Since at least the 1980s, the border has played a central role in U.S. policy discussions. Policymakers have for years debated the best strategy for providing border protection. What has emerged from these efforts has been a generally agreed upon framework of mission and goals. However, some question whether the strategy has been sufficiently mapped out in a comprehensive fashion. The broad framework currently in place is generally supported by a collection of agency or function-specific strategic elements that show some commonalities. 

For congressional policymakers, the current state of border protection strategy presents at least three questions: (1) What does the current border protection framework consist of? (2) Is it working? and (3) Are there more effective alternatives to achieve border protection? This report addresses these three questions through two competing models for conceptualizing a border protection system, through the analysis of existing documentation and data, and through the presentation of various legislative options. 

For critics and advocates of U.S. border protection policy, there are a host of competing policy alternatives for how to effectively protect the border. While some individuals want more enforcement and stricter admission criteria, others want to lessen these restrictions. Ultimately, the policy choices are rooted in competing visions of what U.S. border policy should look like. These visions can be grouped into at least two camps: (1) the unilateral security model based on a metaphorical "fortress" and (2) an interdependence (or cooperation-based) model based on a metaphorical "complex organism." 

The current border protection framework can be understood as consisting of a mission, three goals, and five strategic elements. The mission is securing and managing the U.S. border. The current border protection framework can be summarized as obtaining effective control of the borders, safeguarding lawful trade and travel, and identifying and disrupting transnational criminal organizations. Finally, the five strategic elements to achieve these goals consist of Department of Homeland Security leadership, deployment of layered security, maximizing domain awareness, promotion of a shared agency culture, and expansion of the border through international and domestic partnerships. 

Analysis of available data suggests that despite some support for the viability of the current border protection approach in its present state, it is not seemingly providing sufficient deterrence to overcome labor market demand for illegal workers. Yet, definitive conclusions of effectiveness cannot be made because the current border protection operation is an incomplete version of what policymakers envisioned. 

The border protection framework goals are necessarily vague, as the breadth of the threats and activities at the border are wide. But these goals are rooted in the notion that a strategy based on enforcement can ultimately prevent or deter most actions that are undesirable. This assumption has been the source of much debate and continues to be the source of skepticism in certain circles. As suggested above, few conclusive claims about the effectiveness of the current border protection framework can be made. Yet, even if enforcement-only measures do provide some level of deterrence and prevention against border violations, these efforts are both costly and do not necessarily address the underlying causes of such activities. Moreover, they can have unintended consequences. This report will not be updated.


Date of Report: May 13, 2010
Number of Pages: 58
Order Number: R41237
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