Guest post by Marie Provine, Professor emerita in the School of Social Transformation at Arizona State University. Her research has spanned inequalities within the law, access to justice, and law enforcement in relation to minority and immigrant communities. She is also the co-author (with Monica Varsanyi, Paul Lewis, and Scott Decker) of the forthcoming book, Punishing Immigrants: Local Law Enforcement on the Front Lines (University of Chicago Press). This post is the third installment of the Border Criminologies Themed Week on Internal Border Policing organised by Leanne Weber.

We are human photo
There are good reasons why immigration policy should come from the national level alone, and in many nations it does. But in the United States there’s something wrong with this simple, top-down image. Deportation and policies concerning legal admission and removal remain in federal hands, but at the local level in some places, there are laws designed to encourage self-deportation, which is immigration policy-making on a limited scale. A century of decisions from the nation’s highest court that immigration policy is the sole domain of the federal government hasn’t deterred states and cities from entering this domain, and at present, they’re pushing to have their say as never before. Sometimes the conflict between levels is sharp, such as when the state of Arizona adopted SB 1070 in an attempt to shame the federal government into more active enforcement by creating its own criminal sanctions and a policing protocol designed to increase arrests leading to deportation of unauthorized immigrants. In that case, the US Supreme Court, in a carefully calibrated decision, reiterated its position that the national government makes immigration policy, but it left significant power to get the enforcement process underway at the state level.

Often, however, local immigration policy-making occurs in uncontested spaces where federal officials seldom tread. Municipal identification cards, for example, extend a warm welcome to immigrants without legal status while the federal government, even with an aggressive deportation policy, has no obvious means of interfering. There are also areas related to health and welfare and access to public services that the federal constitution leaves to the states and municipalities. These often involve matters of immense concern to residents, including eligibility for driver’s permits and other licenses, standards for admission to state institutions of higher learning, regulations that affect access to housing, and eligibility for reduced tuition. These are zones where states can show their disdain or their acceptance of immigrants lacking legal status. The federal government isn’t in a position to interfere unless it has taken a segment of the unauthorized population under its wing, as it has with youth who qualify under the President’s Deferred Action for Childhood Arrivals (DACA) initiative. States and municipalities also have options with respect to local law enforcement. They can minimize involvement with federal immigration agents, or encourage these contacts. The result is a patchwork of enforcement that depends on where one lives. With their vast discretion over whom and when to stop, cite, and arrest, police officers and sheriffs can make life difficult for immigrants, especially those who lack legal status to remain in the country.

Number of years in which each state passed one or more immigration-related laws between 2005 and 2013
Immigration enforcement in the United States, in short, is a multi-scalar, multi-local affair consisting of a number of policies designed by various levels of government in various places that operate to encourage or discourage a vulnerable population from continued residence. As a result, it’s impossible to speak generally about the degree to which unauthorized immigrants are accepted or rejected, or to say with certainty whether they’re relatively secure in their residence or highly vulnerable to being arrested and eventually deported.

Can this patchwork non-system be blamed on the federal government’s apparent inability to agree on a comprehensive immigration policy? Yes and no. Federal inaction provides a convenient rationale for local political leaders eager to get involved. There’s irony in this situation―the issue of deportation of settled immigrants is too hot to handle at the national level, while at the grassroots local leaders are drawn to issues like this that arouse public passions. If and when the federal government does enact comprehensive immigration reform, the ‘noise’ of conflicting local policies will probably subside somewhat, but no federal law will eliminate all local lawmaking designed to ‘send a message’ to immigrants and their backers and opponents. We should also bear in mind that messages from the grassroots may further delay any comprehensive federal solution to the dilemma of millions of immigrants who reside in the United States without legal status, but with a strong moral claim to remaining and living in peace.

Themed Week on Internal Border Policing:

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How to cite this blog post (Harvard style):

Provine, M. (2015) The Boundaries of Belonging and the Immigration Policy Patchwork. Available at: http://bordercriminologies.law.ox.ac.uk/us-immigration-policy-patchwork/ (Accessed [date]).