Abstract

Excerpted From: Erika Nyborg-Burch, The War on Immigrants, UCLA Law Review 416 (July 2026) (356 Footnotes) (Full Document)

The intersection of state criminal law and federal immigration enforcement--part of a phenomenon termed “crimmigration”--has entered a new and contentious phase. Traditionally, the federal government has held exclusive authority to set immigration policy and enforce immigration law. Yet state criminal law has increasingly influenced who is subjected to federal removal proceedings, through local arrests, state court convictions, and referrals to federal law enforcement. While these developments blur jurisdictional lines between federal and state enforcement authority, the U.S. Supreme Court has continued to demarcate immigration regulation as federal civil law. Now, a surge of state legislation is radically challenging this paradigm. These new state laws criminalize mere immigration status and authorize criminal courts to impose unprecedented punishments that neither the federal nor state criminal systems had previously sanctioned. This shift toward state criminal enforcement raises profound constitutional concerns.

Consider the following scenarios. In Oklahoma, Jane was pulled over for driving with a broken taillight. Officers arrested her for “impermissible occupation,” a new state offense that criminalizes mere presence without formal immigration status. After months in pretrial detention separated from her family, Jane was sentenced to a year in prison and ordered to leave the state within seventy-two hours of her release. Jane is unsure if Immigration and Customs Enforcement (ICE) officers will be there waiting to arrest her. Jane now faces banishment from the community she calls home.

In Texas, John was arrested while at a work site and charged with “illegal entry.” The arrest separated John from his spouse, a lawful permanent resident, and their three children. If convicted, state law mandates his removal from the United States even though, under federal immigration law, he could qualify for cancellation of removal and potentially obtain a green card. These federal protections are not available in state criminal court.

In Tennessee, Jay was charged with driving under the influence and reckless endangerment with a deadly weapon (Jay’s car). The arresting officer noted Jay’s foreign license and accent, and the prosecutor escalated the charge by introducing evidence that Jay was not lawfully present in the United States. If established, this fact authorizes the judge to impose a life sentence without the possibility of parole--a significant sentence enhancement--solely based on Jay’s lack of formal immigration status.

These three scenarios highlight a troubling trend in immigration federalism, where multiple states are now using state criminal law to enforce their own immigration policies. This Article is the first to identify and systematically examine how state criminal enforcement of these newly enacted immigration crimes destabilizes immigration federalism, distorts criminal law, and erodes individual rights.

Since the late nineteenth century, the Supreme Court has consistently struck down state efforts to directly regulate immigration, deeming such laws an impermissible overreach into core federal authority. Just over a decade ago, in Arizona v. United States , the Court reaffirmed that the federal regulatory framework preempts states from creating parallel state crimes for federal immigration law violations, or policing those immigration violations without federal authorization. Despite this well-established precedent--and perhaps emboldened by recent shifts in the Court’s composition--several states have begun to directly regulate immigration through their criminal legal systems. By enacting criminal laws that impose incarceration and banishment on noncitizen defendants, these states challenge the federal government’s longstanding authority over the admission, exclusion, and removal of noncitizens. In purporting to transform violations of federal civil law into state criminal offenses or sentence aggravators, these laws single out immigrants for unprecedented and disproportionate punishments. Like the War on Drugs and the War on Crime that preceded it, this War on Immigrants invokes the specter of criminality, here coded through racialized tropes of immigrant invasion, to recast migration as crime and transform the criminal system into a primary instrument of immigration enforcement.

This Article is the first to unpack the emerging crimmigration regime by identifying four legislative models that each use criminal law to formally or effectively control immigration and banish noncitizens. First, the ““Crimmigration Loop” laws criminalize immigration status itself, using prosecution for immigration crimes to trigger federal enforcement. For instance, Oklahoma’s House Bill 4156 criminalizes “impermissible occupation”-- presence without federal immigration authorization--and imposes incarceration followed by banishment from the state. Second, “Short-Circuiting Crimmigration” laws bypass federal authority, with states enforcing their own immigration policies. Texas’s Senate Bill 4, for example, requires state courts to issue removal orders against undocumented noncitizens independent of federal action. Third, “Collapsing Crimmigration” laws enhance penalties for non-immigration crimes based solely on immigration status, as seen in Tennessee’s Senate Bill 2770, which imposes the state’s second harshest sentence on undocumented individuals, leading to de facto banishment through lifetime incarceration. Finally, “Muscular Proxy Criminalization” laws target offenses disproportionately committed by undocumented immigrants. For example, Florida’s House Bill 1589 imposes heightened penalties for second or subsequent convictions for driving without a license in a state where undocumented noncitizens cannot obtain one.

This Article demonstrates, first, that each legislative model poses a direct challenge to federal supremacy in immigration law. What began in the 1990s with federal legislation authorizing state cooperation with federal enforcement--through screening for civil immigration violations during arrest and post-conviction--has evolved into states asserting independent criminal authority over immigration. Many of these laws go beyond “mirroring” federal immigration crimes, imposing criminal penalties that include exile, deportation, and banishment where federal law does not. They also prevent noncitizens from accessing federal protections, including those enshrined in international obligations like asylum and protections under the Convention Against Torture. By authorizing enforcement outside of or even contrary to federal law, these state laws challenge federal authority to a greater degree than the laws the Court struck down in Arizona v. United States .

Second, and beyond federalism concerns, this Article shows how these laws undermine core criminal law principles and contravene constitutional protections. Although the Court has ruled that entering the country without permission is not an ongoing federal crime, states have criminalized mere presence in their jurisdiction after crossing U.S. national borders without federal authorization. By making undocumented presence a state crime, these laws violate Eighth and Fourteenth Amendment constitutional prohibitions against imposing criminal liability for status offenses and run afoul of the principle of concurrence. Their penalty structures also depart from existing sentencing frameworks, imposing disproportionate punishments like actual or effective banishment--through state removal orders and extreme sentences--where state law would otherwise be more lenient.

Third, enforcing these laws transfers discrimination based on immigration status to state prosecutors and judges, sanctioning racialized law enforcement as a matter of law and practice. These prosecutions violate defendants’ equal protection rights, while policing these offenses threatens the Fourth Amendment rights of entire communities.

Overall, this new War on Immigrants marks a stark departure from established legal norms and poses serious threats to constitutional principles. By framing migration as a legitimate basis for state criminal enforcement, it shifts the traditional balance between federal immigration authority and state criminal law while emboldening discriminatory state criminal enforcement. By targeting noncitizens for prosecution and punishment, these statutes undermine defendants’ constitutional protections, with parallels to other regulatory realms where state criminal law increasingly constrains individual rights. As states continue to push the boundaries of their authority to criminalize and punish, it becomes critical to identify, unpack, and rigorously examine this expanding crimmigration frontier.

This Article takes up that challenge in three parts. Part I traces the federal immigration system’s increasing reliance on the criminal legal system as a gateway to civil immigration enforcement. As states were given a larger role in screening for immigration enforcement, they began leveraging their criminal legal systems to shape federal immigration outcomes. Still, Arizona v. United States curtailed more direct attempts by states to control immigration policy through criminal law, limiting their role in immigration enforcement. Part II argues that the new wave of state criminal laws destabilizes this understanding of the relationship between state criminal law and immigration enforcement. It categorizes four legislative models that usher in a new crimmigration regime by harnessing state criminal law to more directly effectuate removal of noncitizens. Each model turns immigration status into a basis for criminal liability and introduces new forms of punishment that differentially burden noncitizens. Part III critically examines how this deployment of criminal law in the War on Immigrants violates constitutional principles that limit state authority and vitiates protections under federal and state constitutional law. It raises concerns under the Eighth Amendment, Fourteenth Amendment, and Fourth Amendment regarding the criminalization of status, differential liability for noncitizens, disproportionate punishments, and the sanctioning of discriminatory policing.

[ . . . ]

The new War on Immigrants challenges established constitutional principles defining the federal government’s authority to regulate immigration and the limitations on state police power. Despite the Court’s rejection of state efforts to directly enforce federal immigration laws in Arizona , a new wave of state legislatures is testing these constitutional boundaries. By enacting laws that criminalize immigration status and impose unprecedented and disproportionate punishments on noncitizens, these state laws undermine fundamental constitutional rights and fracture immigration policy. This Article has articulated four legislative models that make up an emerging state crimmigration regime--the Crimmigration Loop, Short-Circuiting Crimmigration, Collapsing Crimmigration, and Muscular Proxy Criminalization--collectively reshaping both criminal law and immigration enforcement to wage a War on Immigrants.

This evolution in crimmigration threatens the constitutional rights of individuals subjected to prosecution by criminalizing status itself. The punishments it purports to authorize, including de jure and de facto banishment, contravene the Eighth Amendment’s prohibition against cruel and unusual punishment and erode the principle of proportionality in sentencing. Despite the promises of equal protection under the law, the new crimmigration embeds discrimination into the criminal code and sanctions discriminatory policing practices. This targeted enforcement disproportionately impacts people of color, exacerbates existing inequalities, and threatens the Fourth Amendment rights of entire communities. It also undermines the coherence of federal immigration law by fracturing immigration policy across state and county lines. The resulting patchwork of state enforcement mechanisms often conflicts with federal statutory protections, including protections designed to advance humanitarian values and fulfill international obligations. Finally, this crimmigration regime empowers state law enforcement to levy both state criminal punishment and state immigration enforcement against noncitizens prosecuted under these new state statutes.

These constitutional and human costs compel a critical reevaluation of crimmigration law. In some sense, the War on Immigrants that states are waging is the natural consequence of decades of policymaking framing immigration regulation as necessary for national security and public safety. To address this latest manifestation of that stigmatizing discourse, policymakers should work toward decoupling immigration enforcement from criminal law. Efforts could include repealing the federal statutes that criminalize border crossing and limiting state and local participation in immigration enforcement. These changes must be accompanied by a deliberate shift in the discourse surrounding immigration--challenging narratives that dehumanize migrants, acknowledging the complex factors driving migration, and recognizing that those without formal status are members of communities throughout the country. Only by dismantling the conditions that have given rise to the War on Immigrants can we hope to protect the rights of all individuals within our borders through a coherent, just approach to immigration policy.

Assistant Professor, Florida State University College of Law. J.D., Yale Law School; B.A., Brown University.