Authority of State and Local Police to Enforce Federal Immigration Law

Michael John Garcia
Legislative Attorney

Kate M. Manuel
Legislative Attorney

The power to prescribe rules as to which aliens may enter the United States and which aliens may be removed resides solely with the federal government, and primarily with Congress. Concomitant to its exclusive power to determine which aliens may enter and which may stay in the country, the federal government also has the power to proscribe activities that subvert this system. Congress has defined our nation’s immigration laws in the Immigration and Nationality Act (INA), a comprehensive set of laws governing legal immigration, naturalization, work authorization, and the entry and removal of aliens. These requirements are bolstered by an enforcement regime containing both civil and criminal provisions. Deportation and associated administrative processes related to the removal of aliens are civil in nature, while certain violations of federal immigration law, such as smuggling unauthorized aliens into the country, carry criminal penalties. Congressional authority to prescribe rules on immigration does not necessarily imply exclusive authority to enforce those rules. In certain circumstances, Congress has expressly authorized states and localities to assist in enforcing federal immigration law. Moreover, there is a notion that has been articulated in some federal courts and by the executive branch that states may possess “inherent” authority to assist in the enforcement of federal immigration law, even in the absence of clear authorization by federal statute. Nonetheless, states may be precluded from taking actions if federal law would thereby be thwarted.

At least until the Supreme Court’s decision in the 2012 case of Arizona v. United States, there had been considerable legal debate concerning the power of state and local police to enforce federal immigration law in the absence of express authorization in federal statute. For decades, the prevailing view had been that states were not precluded from arresting persons for criminal violations of the INA, but were generally preempted from arresting persons for civil violations making them removable. More recently, however, some courts (and the Department of Justice (DOJ) in a 2002 legal opinion) took the view that state and local police were not preempted from arresting persons for any violation of federal immigration law, including immigration status violations. A few states subsequently passed measures that authorized state police to arrest certain categories of aliens who committed immigration status violations making them removable. In Arizona, however, the Supreme Court held that states are generally preempted from arresting or detaining aliens on the basis of suspected removability under federal immigration law. Such action may be taken only when there is specific federal statutory authorization, or pursuant to “request, approval, or instruction from the Federal Government.”

This report discusses the authority of state and local law enforcement to assist in the enforcement of federal immigration law through the investigation and arrest of persons believed to have violated such laws. It describes federal statutes that expressly permit state and local police to enforce immigration law directly, and discusses the Supreme Court’s ruling in Arizona v. United States and significant, pre-Arizona lower court decisions concerning the ability of states and localities to assist in immigration enforcement. The report also briefly examines pre-Arizona opinions on the issue by the DOJ’s Office of Legal Counsel. This report does not directly address legal issues raised by states and localities enacting their own immigration-related sanctions, including measures intended to supplement federal law through the imposition of additional criminal or civil penalties. For further discussion of the legal implications of such measures, see CRS Report R42719, Arizona v. United States: A Limited Role for States in Immigration Enforcement, by Kate M. Manuel and Michael John Garcia, and CRS Report R41991, State and Local Restrictions on Employing Unauthorized Aliens, by Kate M. Manuel.


Date of Report: September 10, 2012
Number of Pages: 27
Order Number: R41423
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Unauthorized Aliens’ Access to Federal Benefits: Policy and Issues

Ruth Ellen Wasem
Specialist in Immigration Policy

Federal law bars aliens residing without authorization in the United States from most federal benefits; however, there is a widely held perception that many unauthorized aliens obtain such benefits. The degree to which unauthorized resident aliens should be accorded certain rights and privileges as a result of their residence in the United States, along with the duties owed by such aliens given their presence, remains the subject of debate in Congress. This report focuses on the policy and legislative debate surrounding unauthorized aliens’ access to federal benefits.

Except for a narrow set of specified emergency services and programs, unauthorized aliens are not eligible for federal public benefits. The law (§401(c) of P.L. 104-193) defines federal public benefit as 

any grant, contract, loan, professional license, or commercial license provided by an agency of the United States or by appropriated funds of the United States; and any retirement, welfare, health, disability, public or assisted housing, postsecondary education, food assistance, unemployment benefit, or any other similar benefit for which payments or assistance are provided to an individual, household, or family eligibility unit by an agency of the United States or by appropriated funds of the United States. 

The actual number of unauthorized aliens in the United States is unknown. Researchers at the Pew Hispanic Center estimate that there were 11.2 million unauthorized immigrants living in the United States in March 2010. Calculations by Pew Hispanic Center demographer Jeffrey Passel based on the 2008 March Current Population Survey (CPS) estimated that the number of persons living in families in which the head of the household or the spouse was an unauthorized alien was 16.6 million. There were 8.8 million unauthorized families, which he defines as a family unit or solo individual in which the head or spouse is unauthorized. A noteworthy portion of the households headed by unauthorized aliens are likely to have U.S. citizen children, as well as spouses who may be legal permanent residents (LPRs), and are referred to as “mixed status” families. The number of U.S. citizen children in “mixed status” families has grown from 2.7 million in 2003 to 4.5 million in 2010. Passel estimates that one in three children who have a parent who is unauthorized is also considered poor according to the federal poverty rate.

Although the law appears straightforward, the policy on unauthorized aliens’ access to federal benefits is peppered with ongoing controversies and debates. Some center on demographic issues (e.g., how to treat mixed-immigration status families). Others explore unintended consequences, most notably when tightening up the identification requirements results in denying benefits to U.S. citizens. Still others are debates about how broadly the clause “federal public benefit” should be implemented, particularly regarding tax credits and refunds. .

Date of Report: September 17, 2012
Number of Pages: 25
Order Number: RL34500
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Arizona v. United States: A Limited Role for States in Immigration Enforcement

Kate M. Manuel
Legislative Attorney

Michael John Garcia
Actg Section Research Manager/ Legislative Attorney

On June 25, 2012, the Supreme Court issued its much-anticipated decision in Arizona v. United States, ruling that some aspects of an Arizona statute intended to deter unlawfully present aliens from remaining in the state were preempted by federal law, but also holding that Arizona police were not facially preempted from running immigration status checks on persons stopped for state or local offenses. In reaching these conclusions, the Supreme Court made clear that opportunities for states to take independent action in the field of immigration enforcement are more constrained than some had previously believed.

In recent years, several states and localities have adopted measures intended to deter the presence of unauthorized aliens within their jurisdiction. An Arizona measure enacted in 2010, commonly referred to as S.B. 1070, arguably represents the vanguard of these attempts to test the legal limits of greater state involvement in immigration enforcement. The major provisions of S.B. 1070 can be divided into two categories: (1) those provisions seeking to bolster direct enforcement of federal immigration law by Arizona law enforcement, including through the identification and apprehension of unlawfully present aliens; and (2) those provisions that criminalize conduct which may facilitate the presence of unauthorized aliens within the state.

Before S.B. 1070 was scheduled to go into effect, the Department of Justice (DOJ) brought suit to preliminarily enjoin many (but not all) of S.B. 1070’s provisions, arguing that they were likely preempted by federal immigration law and therefore unenforceable under the Supremacy Clause. The district court granted the DOJ’s motion to preliminarily enjoin four of the Arizona law’s provisions, and the injunction was upheld by the U.S. Court of Appeals for the Ninth Circuit. The Supreme Court thereafter granted certiorari to review the case.

The eight Justices who decided the case (Justice Kagan recused herself) were asked only to consider whether the four enjoined provisions of S.B. 1070 were facially preempted by federal law. They did not consider other constitutional challenges to the validity of the Arizona law, including claims that enforcement of S.B. 1070 could lead to impermissible racial profiling. A majority of the Court found that the Arizona measure’s criminal sanctions for alien registration violations and upon unauthorized aliens who seek employment in the state were preempted by federal law. The Court also ruled invalid a provision authorizing the warrantless arrest of aliens who have criminal offenses that constitute grounds for removal under federal immigration law. However, the sitting Justices unanimously agreed that federal law did not facially preempt a provision which requires Arizona police whenever practicable, to investigate the immigration status of persons reasonably suspected of being unlawfully present when such persons are stopped, detained, or arrested pursuant to the enforcement of state or local law—at least so long as the investigation does not extend these persons’ detention by state or local law enforcement.

In ruling that three provisions of S.B. 1070 were facially preempted, and suggesting that a fourth provision could be susceptible to as-applied challenges, the Court clarified that opportunities for independent state action in the field of immigration enforcement are limited. In particular, the Court’s decision would suggest that mirroring federal law when imposing criminal penalties upon conduct that could facilitate the presence of unauthorized aliens within a jurisdiction does not suffice to avoid preemption. Similarly, while finding that measures requiring or authorizing immigration status checks by state and local officers are not facially preempted, the Court suggested that the application of such measures could lead to new constitutional challenges.


Date of Report: September 10, 2012
Number of Pages: 22
Order Number: R42719
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Immigration Provisions of the Violence Against Women Act (VAWA)

William A. Kandel
Analyst in Immigration Policy

The Immigration and Nationality Act (INA) includes provisions to assist foreign nationals who have been victims of domestic abuse. These provisions, initially enacted by Congress with the Immigration Act of 1990 and the Violence Against Women Act (VAWA) of 1994, afford benefits to abused foreign nationals and allow them to self-petition for lawful permanent resident (LPR) status independently of the U.S. citizen or LPR relatives who originally sponsored them. Congress reauthorized VAWA with the Battered Immigrant Women Protection Act of 2000, which also created the U visa for foreign national victims of a range of crimes—including domestic abuse—who assisted law enforcement. A second reauthorization in 2005 added protections and expanded eligibility for abused foreign nationals.

VAWA expired in 2011. On November 30, 2011, Senator Leahy introduced S. 1925, the Violence Against Women Reauthorization Act of 2011. It was referred to the Committee on the Judiciary and reported favorably on February 7, 2012. On April 26, 2012, the Senate passed it by a vote of 68 to 31. In the House, Representative Adams introduced H.R. 4970 (To reauthorize the Violence Against Women Act of 1994) on April 27, 2012. It was referred to the House Judiciary Committee where it was reported favorably on May 8, 2012. The House passed the bill in the nature of a substitute on May 16, 2012, by a vote of 222 to 205.

H.R. 4970 and S. 1925 both include provisions that would mandate background information on restraining and protective orders issued against the sponsoring U.S. based petitioners and prohibit marriage brokers from marketing information about foreign nationals under age 18. Both bills would allow children to continue to apply for protections and legal status under VAWA in the case of the death of their self-petitioner parent, a protection currently afforded only to child applicants for lawful permanent status under family-based immigration provisions of the INA. Both bills would extend VAWA coverage to derivative children of deceased petitioners as well as protect U visa petitioners under age 21 and derivative children of adult U visa petitioners from “aging out” of eligibility after filing a U visa petition. They would exempt VAWA self-petitioners, U visa petitioners, and battered foreign nationals from removal proceedings if their financial circumstances classified them as inadmissible on “public charge grounds.” Finally, both bills would allow U visa petitioners with conditional LPR status to obtain hardship waivers removing their conditional status in cases of bigamy.

S. 1925 contains provisions that would expand protections and eligibility to foreign national victims of domestic abuse. Among other provisions, the bill would expand the definition of abuse under the U visa provisions to include “stalking.” It would also expand the annual number of U visas issued from 10,000 to 15,000 for a limited number of years. It would require more extensive background checks on each U.S. citizen who petitions on behalf of an alien fiancé or fiancée using the National Crime Information Center’s Protection Order Database. Inconsistencies regarding self-disclosures of past abuse would be disclosed to the foreign national. In addition, the bill would establish federal criminal penalties for specified broker violations, misuse of information obtained by international marriage brokers, and failures of U.S. clients to make required self-disclosures. Finally, the bill would permit U and T visa holders in the Commonwealth of the Northern Mariana Islands (CNMI) to count time physically present in the Commonwealth toward the three-year continuous U.S. presence requirement for adjusting their status to legal permanent residence.


Date of Report: August 28, 2012
Number of Pages: 38
Order Number: R42477
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Unauthorized Alien Students: Issues and “DREAM Act” Legislation

Andorra Bruno
Specialist in Immigration Policy

The 109th and 110th Congresses considered, but did not enact, comprehensive immigration reform legislation that included large-scale legalization programs for unauthorized aliens. In the aftermath of these unsuccessful efforts, some interested parties have urged the President and Congress to pursue more limited legislation to address the status of unauthorized alien students. Such legislation is commonly referred to as the “DREAM Act.”

Unauthorized aliens in the United States are able to receive free public education through high school. They may experience difficulty obtaining higher education, however, for several reasons. Among these reasons is a provision enacted in 1996 that prohibits states from granting unauthorized aliens certain postsecondary educational benefits on the basis of state residence, unless equal benefits are made available to all U.S. citizens. This prohibition is commonly understood to apply to the granting of “in-state” residency status for tuition purposes. Unauthorized alien students also are not eligible for federal student financial aid. More broadly, as unauthorized aliens, they are not legally allowed to work and are subject to being removed from the country.

Multiple DREAM Act bills have been introduced in recent Congresses to address the unauthorized student population. Most have proposed a two-prong approach of repealing the 1996 provision and enabling some unauthorized alien students to become U.S. legal permanent residents (LPRs) through an immigration procedure known as cancellation of removal. While there are other options for dealing with this population, this report deals exclusively with the DREAM Act approach in light of the considerable congressional interest in it.

In the 111th Congress, the House approved DREAM Act language as part of an unrelated bill, the Removal Clarification Act of 2010. However, the Senate failed, on a 55-41 vote, to invoke cloture on a motion to agree to the House-passed DREAM Act amendment and the bill died at the end of the Congress. The House-approved language differed in key respects from earlier versions of the DREAM Act.

Bills to legalize the status of unauthorized alien students (S. 952, H.R. 1842, H.R. 3823) have again been introduced in the 112th Congress. It is unclear, however, whether any of these measures will be considered.

On June 15, 2012, the Obama Administration announced that certain individuals who were brought to the United States as children and meet other criteria would be considered for relief from removal. Under a memorandum issued by Secretary of Homeland Security Janet Napolitano on that date, these individuals would be eligible for deferred action for two years, subject to renewal, and could apply for employment authorization.


Date of Report: June 19, 2012
Number of Pages: 29
Order Number: RL33863
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