Immigration Article of the Day: The War On Immigrants by Erika Nyborg-Burch
The War On Immigrants by Erika Nyborg-Burch, 73 UCLA Law Review (forthcoming 2026)
Abstract
An alarming resurgence of discourse equating border crossing with invasion and migrants with criminality dominates national and state politics, fueling an unprecedented wave of state criminal immigration legislation. Although scholars have extensively critiqued crimmigration-the decades-long fusion of immigration enforcement and criminal lawthis Article identifies a novel and more extreme phenomenon. Drawing on dehumanizing notions of “illegality,” states are directly criminalizing undocumented presence and targeting noncitizens for unprecedented punishments. This new crimmigration regime destabilizes immigration federalism, distorts criminal law, and erodes individual rights. This Article is the first to critically examine and evaluate this emerging legislative trend. It offers a typology of four new legislative models that collapse the lines between criminal and immigration law. Through distinctive mechanisms, each model converts undocumented presence into a state criminal offense punishable by actual or effective banishment. The Article argues that these new statutes distort the traditional crimmigration framework and imperil fundamental constitutional principles. By criminalizing immigration status and authorizing discriminatory enforcement, they erode foundational protections for criminal defendants, legitimize racialized profiling for immigration status, and impose draconian punishments grossly disproportionate to any underlying conduct. Moreover, by embedding civil immigration violations into state criminal law, these statutes fragment federal immigration policy and flout established international legal norms. In exposing how these new state-level offenses amplify the existing dangers of crimmigration, this Article challenges the constitutionality and efficacy of intertwining migration regulation with the criminal processes. It argues that decoupling immigration and criminal law is essential to restoring constitutional safeguards, urging repeal of statutes that criminalize border-crossing and permit state involvement in immigration enforcement. Ultimately, it emphasizes the imperative of preserving constitutional protections for all who call this country home.
KJ