Federal vs. State Immigration Law

Immigration laws in states can differ from federal immigration laws. Texas is a good example of this. So let’s cover what you need to know about federal immigration laws compared to state immigration laws.

For a non-U.S. citizen seeking a pathway to entry to the United States, the structure of America’s constitutional system – namely the division of powers and responsibilities between the federal government, the states, and the various branches of each – can be confusing.

As a general premise for understanding how immigration law works, federal and state governments can be thought of as the “head” and the “hands.”

The federal government, chiefly through Congress, makes immigration policy, decides who may immigrate to the United States, and establishes the procedures for doing so.

When it comes to policing the legal right to live, work, and enjoy the privileges of being in the United States, such a role often falls to state law enforcement. These people work in ranging degrees of cooperation with the federal Immigrations and Customs Enforcement agency (ICE) based on the state. This article discusses how federal and state immigration laws are different and how they come together to enforce immigration policy in the United States.

Why Are Federal and State Immigration Laws Different?

Federal and state immigration laws differ due to the “plenary,” or absolute, authority that the United States government has under the U.S. Constitution regarding the immigration of foreign nationals. This authority is in stark contrast to the minimal authority that the states have.

Specifically, the U.S. Congress has established rules for immigration with the passage of the Immigration and Nationality Act (the “INA”) in 1952 and the Immigration Reform and Control Act (the “ICRA”) in 1986. As part of these laws, ICE was created by Congress and given the federal mandate to “protect America from cross-border crime and illegal immigration that threaten the national security and public safety…through the enforcement of more than 400 federal statutes,” according to ICE’s website.

However, it is well known that no federal agency operating from Washington, D.C., can be large enough or staffed up enough to adequately ensure effective operations on the ground. Thus, law enforcement officers at the state, county, and local levels provide assistance to ICE with investigations, detentions, and arrests. Notably, the political climate of the United States has led to a wide-ranging condition of how much help law enforcement is willing to provide to ICE in each state.

For their residents’ health, safety, and well-being, states have passed laws governing what programs and resources may be available to immigrants. In addition, states govern what privileges should be denied to immigrants without proper documentation and to what extent law enforcement officers should enforce federal and state laws. Unlike federal laws, these state laws have nothing to do with determining who may or may not legally be in the United States.

Key Differences Between Federal Immigration Law and State Immigration Law

The best way to explain the differences between federal and state immigration laws is to provide an overview of some of the immigration laws enacted in Texas.

Like other states, the Texas Legislature has passed legislation limiting undocumented immigrants’ access to public benefits, directs state and local police to check the legal residence status of arrestees, and other mandates that affect immigrants. For example, sheriffs and other officers in some Texas counties have been directed to cooperate with federal authorities in enforcing federal immigration law under §287(g) Immigration and Customs Enforcement (ICE) ACCESS Program. In addition, under another federal program known as “Secure Communities,” all arrestees are fingerprinted and run through a federal database that checks their criminal record and immigration status.

Also, the State of Texas has laws on the books requiring state agencies and public colleges to check the status of applicants using E-Verify. This national clearinghouse flags when illegal immigration issues exist.

Texas also restricts access to its Temporary Assistance for Needy Families (TANF) program to U.S. citizens and legal residents only. At the polls, Texas laws prevent undocumented immigrants from voting. Access to public education for the children of illegal immigrants is allowed due to a federal Supreme Court decision. The children of illegal immigrants may attend public universities for in-state tuition. Basic services like the protection of the police, response of a fire department, and medical care –services deemed to be necessary to protect life and safety – are not denied to anyone in Texas based on immigration status.

As can be seen from the types of laws the Texas Legislature has enacted, Texas immigration law at the state level affects the day-to-day life of immigrants, as opposed to whether or not they have legal status in the United States, which remains under federal control.

Finding the Best Immigration Attorney

The attorneys at Lamb & Turner PLLC are on your side, and we know exactly what to do to help guide you. For over 30 years, we have worked on countless Texas immigration matters to help our clients. We truly understand your situation, and we will do everything in our power to help you!

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