Immigration Law and the Myth of Comprehensive Registration

Source: Nancy Morawetz and Natasha Fernández-Silber, UC Davis Law Review, Vol. 48 no. 1, November 2014

This Article identifies an insidious misconception in immigration law and policy: the myth of comprehensive registration. According to this myth proponents of which include members of the Supreme Court, federal and state officials, and commentators on both sides of the immigration federalism debate — there exists a comprehensive federal alien registration system; this scheme obligates all non-citizens in the United States to register and carry registration cards at all times, or else face criminal sanction.

In truth, no such system exists today, nor has one ever existed in American history. Yet, federal agencies like U.S. Border Patrol refer to such a system to justify arrests and increase enforcement statistics; the Department of Justice points to the same mythic system to argue statutory preemption of state immigration laws (rather than confront the discriminatory purpose and effect of those laws); and, states trot it out in an attempt to turn civil immigration offenses into criminal infractions. Although this legal fiction is convenient for a variety of disparate political institutions, it is far from convenient for those who face wrongful arrest and detention based on nothing more than failure to carry proof of status. Individuals in states with aggressive “show me your papers” immigration laws or under the presence of U.S. Border Patrol are particularly at risk.

In an effort to dispel this dangerous misconception, this Article reviews the history of America’s experimentation with registration laws and the ultimate dissolution of each of these efforts. It describes the true state of registration today, dissecting the requirements imposed by federal law. Finally, it calls for a moratorium on enforcement of the registration laws and concludes that, going forward, the project of registration should be abandoned in light of contemporary values and resource constraints.