Cecily Zamora
Immigration law enforcement in the United States has been a contentious issue, with the federal government, state governments, and local law enforcement agencies all playing a role. While the federal government, led by the Department of Homeland Security (DHS), has the exclusive power to set rules on immigration, states and local law enforcement agencies have also been involved in enforcement, albeit with limitations. The DHS houses sub-agencies such as U.S. Customs and Border Protection, which inspects individuals entering the country, and Immigration and Customs Enforcement (ICE), which arrests those without authorization. States and localities have cooperated with ICE through the 287(g) program, but this has been controversial, with sanctuary cities limiting cooperation due to concerns about federal overreach and community safety. The anti-commandeering doctrine prohibits the federal government from compelling states to enforce federal immigration laws, and courts have affirmed states' discretion in setting law enforcement priorities. This dynamic between federal supremacy, state sovereignty, and individual rights has resulted in a complex landscape of immigration law enforcement in the United States.
| Characteristics | Values |
|---|---|
| Immigration laws enforcement | Federal power |
| State power | |
| Local power | |
| Federal agencies | U.S. Department of Homeland Security (DHS) |
| U.S. Citizenship and Immigration Services (USCIS) | |
| U.S. Customs and Border Protection | |
| Immigration and Customs Enforcement (ICE) | |
| State enforcement | Criminal provisions of the INA |
| Civil provisions of the INA | |
| State and local law enforcement agencies | |
| State and local officers | |
| State and local governments | |
| State and local law enforcement | |
| State and local authorities | |
| State police powers |
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What You'll Learn
Federal vs state enforcement
The enforcement of immigration laws in the United States is a complex and evolving area of law that involves both federal and state authorities. While the federal government has exclusive power over immigration policy, the involvement of state and local law enforcement agencies in immigration enforcement has been a subject of debate and legal challenges.
Federal Enforcement
The federal government, through the Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE), plays a primary role in enforcing immigration laws. The DHS is responsible for ensuring the detention and removal of aliens who violate immigration laws, and it can enter into agreements with states to involve local law enforcement in immigration enforcement. The ICE, under the DHS, handles the investigation and enforcement of immigration laws, including the detention and removal of illegal aliens.
State and Local Enforcement
State and local law enforcement agencies have a more limited role in immigration enforcement. They can assist federal agencies in specific circumstances, such as when there is a direct impact on domestic security and counter-terrorism needs, as seen in the case of Florida's agreement with the DHS. State and local officers can also inquire about the immigration status of individuals during their normal duties, but their authority to enforce immigration laws is restricted.
While some argue that state and local officers have better knowledge of their communities and should have a more active role in immigration enforcement, critics highlight the potential for civil rights abuses and the diversion of resources from traditional law enforcement duties. The enforcement of immigration laws by states has also been challenged in court, with critics arguing that a "patchwork" of state laws would not effectively address the country's immigration issues.
In summary, while federal authorities take the lead in enforcing immigration laws, state and local agencies can provide assistance and support within certain boundaries. The balance between federal and state enforcement is a delicate one, with legal challenges and policy debates shaping the evolving landscape of immigration enforcement in the United States.
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State and local law enforcement agencies
However, this dynamic has evolved over time, and the federal government has sought to expand the role of state and local law enforcement agencies in immigration law enforcement. Several jurisdictions have entered into agreements under INA §287(g) to enable their law enforcement agencies to undertake new, limited duties related to immigration law enforcement. As of December 2024, U.S. Immigration and Customs Enforcement (ICE) had 60 such agreements in 16 states under the 287(g) program, also known as the jail enforcement model (JEM).
The JEM authorizes deputized officers to interrogate suspected non-citizens arrested on state or local charges to ascertain their immigration status. These officers can issue immigration detainers, allowing them to hold non-citizens for up to 48 hours beyond their scheduled release. Another model within the 287(g) program is the warrant service officer (WSO) approach, where ICE trains and certifies state and local law enforcement officers to execute ICE administrative warrants and perform arrest functions within jails or correctional facilities.
While voluntary cooperation between federal and state agencies is common, efforts to compel state law enforcement to enforce federal immigration laws are contentious. This controversy stems from the anti-commandeering doctrine, which prohibits the federal government from forcing states to implement federal programs. The rise of "sanctuary cities," where state and local cooperation with federal immigration enforcement is limited, further underscores the complexity of this issue.
Despite the expansion of state and local involvement in immigration law enforcement, concerns have been raised about inadequate training, finite local resources, potential civil rights violations, and negative impacts on community relationships. These considerations highlight the delicate balance between federal immigration enforcement and local public safety efforts, prompting ongoing discussions about the appropriate role of state and local law enforcement agencies in this context.
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The role of the executive branch
The executive branch, led by the US Department of Homeland Security (DHS), plays a crucial role in enforcing immigration laws in the United States. The DHS houses several sub-agencies that work together to execute immigration policies and ensure compliance with federal statutes.
One of the key sub-agencies within the DHS is the US Citizenship and Immigration Services (USCIS). The USCIS is responsible for receiving and adjudicating applications for immigration benefits, such as visas, residency permits, and naturalization. They process the necessary paperwork and conduct interviews to determine an individual's eligibility for immigration benefits.
Another important sub-agency is the US Customs and Border Protection (CBP). CBP officers are tasked with inspecting individuals entering the country at ports of entry, including airports and land border crossings. They verify travel documents, conduct screenings, and detain individuals who attempt to enter the country without authorization. CBP officers also play a crucial role in preventing the illegal trafficking of people, drugs, and contraband across US borders.
Additionally, Immigration and Customs Enforcement (ICE) is a vital component of the DHS's immigration enforcement efforts. ICE agents are responsible for identifying and apprehending individuals who are in the country without legal status. They conduct investigations, make arrests, and facilitate the removal of unauthorized immigrants from the United States. ICE also collaborates with local law enforcement agencies through the 287(g) program to enhance community safety and address cross-border crimes.
The executive branch, through the DHS, also establishes regulations and policies that guide the work of its sub-agencies. These regulations supplement the laws enacted by Congress, providing a framework for the consistent and fair enforcement of immigration laws. The DHS publishes rules and guidelines that its sub-agencies must follow when processing applications, conducting inspections, and making enforcement decisions.
Furthermore, the executive branch coordinates with other federal departments to ensure comprehensive immigration enforcement. For example, the Secretary of Homeland Security works closely with the Secretary of State and the Secretary of the Treasury to establish visa bond systems and address issues related to the trafficking and smuggling of alien children into the country. The collaboration across different departments ensures a unified approach to immigration enforcement and the protection of national security.
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The anti-commandeering doctrine
The doctrine has been invoked by sanctuary jurisdictions to justify non-cooperation with federal immigration enforcement, such as Immigration and Customs Enforcement (ICE). For example, in McHenry Cty. v. Raoul, the Seventh Circuit upheld an Illinois law prohibiting state agencies from contracting with the federal government to house immigration detainees. The court acknowledged that while the law increased costs for the federal government, it did not violate intergovernmental immunity as it did not obstruct or discriminate against the federal government's lawful operations.
However, there are limits to the anti-commandeering doctrine. Intergovernmental immunity prohibits states from actively obstructing or discriminating against federal immigration enforcement. In United States v. King County, the Ninth Circuit held that a county executive order restricting ICE flights from using a specific airport violated intergovernmental immunity by unlawfully discriminating against operators contracted with ICE. This case highlights the legal boundary between permissible non-cooperation and impermissible interference, where states cannot actively hinder federal immigration operations.
While the anti-commandeering doctrine provides a strong constitutional barrier against mandating state participation in immigration enforcement, voluntary cooperation is still lawful. For instance, the federal government can enter into agreements with state and local law enforcement agencies, authorising them to perform the functions of immigration officers under the supervision of the Department of Homeland Security. These agreements, known as 287(g) agreements, allow for state and local involvement in immigration enforcement while respecting the limits of the anti-commandeering doctrine.
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Immigration and Customs Enforcement (ICE)
ICE has two primary and distinct law enforcement components, Homeland Security Investigations (HSI) and Enforcement and Removal Operations (ERO), each with its own independent mission statements. HSI is focused on the disruption of transnational crime, whereas ERO is responsible for the apprehension, detention, and removal of undocumented immigrants. ERO maintains facilities to detain people suspected of being illegally present in the United States and posing a reasonable threat to residents' safety.
ICE also has three supporting divisions: Management and Program Administration, the Office of Principal Legal Advisor (OPLA), and the Office of Professional Responsibility (OPR). ICE maintains offices throughout the United States and at major diplomatic missions overseas. While ICE personnel includes special agents and officers, they do not patrol American borders; that role is performed by the Border Patrol or U.S. Customs and Border Protection.
ICE is the largest investigative arm of the Department of Homeland Security and contributes to the FBI's Joint Terrorism Task Force. The agency was formed under the Homeland Security Act of 2002, following the September 11 attacks, by combining the functions and jurisdictions of several border and revenue enforcement agencies.
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Frequently asked questions
The US Department of Homeland Security (DHS) is responsible for enforcing immigration laws in the US. It houses sub-agencies such as US Citizenship and Immigration Services (USCIS), US Customs and Border Protection, and Immigration and Customs Enforcement (ICE).
State and local law enforcement agencies can assist federal immigration authorities in enforcing immigration laws. However, their involvement is generally limited to criminal provisions, and they cannot directly enforce civil provisions. The federal government cannot compel states to enforce federal immigration laws due to the anti-commandeering doctrine.
There are controversies and legal challenges regarding the extent of state involvement in immigration law enforcement. Some states have adopted sanctuary city policies, limiting cooperation with federal immigration enforcement. Critics argue that federal immigration policies are inadequate, while others oppose state involvement due to concerns about taxpayer costs and community safety.
