15 Tulsa J. Comp. & Int'l L. 155 (2007-2008)
Attrition through Enforcement: A Rational Approach to Illegal Immigration

handle is hein.journals/tulcint15 and id is 159 raw text is: ATTRITION THROUGH ENFORCEMENT: A RATIONAL
APPROACH TO ILLEGAL IMMIGRATION
Kris W. Kobach*
For years, the public debate about illegal immigration in the United States
has been gripped by a false dichotomy. We have been told that there are only
two choices in addressing the fact that twelve to twenty million aliens are
unlawfully present in the United States: either attempt to round them up and
remove them all, or grant a massive amnesty and provide all (or virtually all)
illegal aliensI legal status.
Professor of Law, University of Missouri (Kansas City) School of Law. A.B. 1988, Harvard
University; M.Phil. 1990, Oxford University; D.Phil. 1992, Oxford University; J.D. 1995, Yale
Law School. During 2001-2003, the author was White House Fellow and Counsel to U.S.
Attorney General John Ashcroft, serving as the Attorney General's chief adviser on immigration
law and border security. The author is also lead counsel representing the municipalities of
Hazleton, Pennsylvania, and Valley Park, Missouri, and counsel advising the state of Arizona in
the defense of illegal-immigration-related statutes and ordinances.
1. I use the term illegal alien because it is a legally accurate term used repeatedly in the
immigration laws of the United States. See, e.g., 8 U.S.C. § 1356(r)(3)(ii) (2006) (expenses
associated with the detention of illegal aliens); 8 U.S.C. § 1366(l) (2006) (the number of illegal
aliens incarcerated in Federal and State prisons). Another phrase that is used throughout the
immigration laws of the United States is alien not lawfully present in the United States. See,
e.g., 8 U.S.C. § 1229a(c)(2) (2006) (the alien has the burden of establishing... (B) by clear and
convincing evidence, that the alien is lawfully present in the United States); 8 U.S.C. §
1357(g)(10) (2006) (for any officer or employee of a State or political subdivision of a State...
(B) otherwise to cooperate with the Attorney General in the identification, apprehension, detention,
or removal of aliens not lawfully present in the United States.). This term, however, is a bit too
cumbersome for a writing of this nature. A third term, unauthorized alien, is found in federal
immigration laws, but is limited to the employment context. See, e.g., 8 U.S.C. § 1324a(a) (2006)
([m]aking employment of unauthorized aliens unlawful); 8 U.S.C. § 1324b(a)(1) (2006) (other
than an unauthorized alien, as defined in section 1324a(h)(3) of this title). In contrast, the
ambiguous terms undocumented immigrant and undocumented alien do not appear anywhere
in the immigration laws of the United States. See, e.g., 8 U.S.C. § 1 l01(a)-(i) (2006).
Accordingly, I will use the shorter of the two appropriate terms recognized by federal statute,
namely illegal alien.

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