The ACLU Immigrants' Rights Project has released an issue brief on the criminalization of undocumented immigrants. In recent years, states and localities around the country have increasingly attempted to use state and local laws to impose criminal penalties on undocumented immigrants, and the federal government has increasingly chosen to criminally prosecute individuals who violate federal immigration laws rather than rely on the extensive federal civil enforcement scheme.
The use by states and localities of criminal laws to go after undocumented immigrants simply for being undocumented is generally unlawful, because the federal government has sole power to regulate immigration. For example, in 2005, two New Hampshire sheriffs arrested and prosecuted several undocumented immigrants for "criminal trespass," accusing them of being in New Hampshire unlawfully solely because they were undocumented. The state court that heard the case concluded (PDF) that the state law could not be used in that way because only the federal government can regulate immigration.
More important, the federal government's decision to prosecute more immigration violations criminally has diverted resources from prosecution of serious violent and property crimes. As federal prosecutions for immigration law crimes such as illegal entry have increased dramatically, with prosecutors choosing to pursue 97 percent of all such crimes referred to them, federal prosecutors have had less time for prosecutions for gun trafficking, public corruption, organized crime, and white-collar crime. Prosecutors currently only pursue charges on about 50 percent of white collar crimes sent to them by law enforcement. Localities and states that attempt to expend criminal justice resources targeting undocumented immigrants may reduce public safety overall.
Adoption of state and local criminal laws against undocumented immigrants has often been driven by misleading rhetoric about "criminal aliens," as well as by reliance on inaccurate statistics suggesting that all undocumented immigrants are criminals or a dangerous threat to communities. Local and state officials also often misunderstand the nature of the criminal provisions in federal immigration law. In fact, mere unlawful presence in the United States has never been a crime. When considering immigration reform legislation in 2005, Congress specifically rejected a provision that would have made unlawful presence in the United States a federal crime.
In addition, immigrants are not more likely to commit crimes than other residents of the United States. Studies have shown that increased immigration does not lead to increased crime and that immigrants are less likely to be incarcerated for violating criminal laws than non-immigrants. And a study of those immigrants most likely to be undocumented has concluded that they are not only substantially less likely to be incarcerated than non-immigrants, but may even be less likely to be incarcerated than other immigrants to the United States.
Criminalization of undocumented immigrants is a misguided policy that may harm public safety and violate federal law. The entire Issue Brief — which contains more information on these issues, including links to the cited studies — can be found here.