The Arizona law regarding immigration has become the topic of many debates. Proponents and opponents have lined up in defense of their respective positions. So what is all the fuss? At the center of the debate is the notion that this law has, for the first time, allotted to the State the power to enforce federal immigration laws. As has been said, however, that with great power comes great responsibility and it is this delicate balance that has caused the greatest tension between the two sides.
The Arizona law becomes effective this July but what does it exactly allow? It allows the State of Arizona to regulate immigration by establishing a separate state offense for any person who violates provisions of the federal immigration law regarding registration and carrying registration documents. It gives local police officers authority to investigate, detain and arrest people based on “reasonable suspicion that the person is unlawfully present [in the United States] and verify that status with the federal government, except to the extent that it would hinder an ongoing investigation.”
The law itself, however, does not define what constitutes “reasonable suspicion” that a person is undocumented. Further, it is unclear how a law enforcement officer would know if an immigration determination would hinder an investigation at the time that the officer is expected to make such a determination. The Courts, have, in some instances, found “reasonable suspicion of undocumented status” to include not having proper identification or evasive behavior. The vagueness of these terms, understandably, is what is causing the confusion and fear within immigrant communities.
Even though under the law, a person would be presumed to be in the country lawfully if they could show valid government ID or tribal identification, not all States check immigration status when issuing a driver’s license or id. Thus, any U.S. citizen with a driver’s license from a State that does not require proof of citizenship or immigration status may be at risk unless they obtained and carried a passport when in Arizona. It is these types of provisions that have caused many to question the legitimacy of the Arizona statute.
Additionally, the law does not prohibit officers from relying on race or ethnicity in deciding who to investigate so long as it is not the “sole” reason for the investigation. Therefore, if the police officer can articulate even one single additional criteria for the investigation, under the statute, the investigation would be permissible. Likewise, it gives police officers authority to conduct warrantless arrests of persons where the officer has probable cause to believe the individual has committed any public offense that makes those persons deportable. The issue with such broad authority is that most police officers have not been trained on the enforcement of immigration laws and the concern is that many U.S. citizens and lawful permanent residents will be wrongfully detained and investigated. Adding to this concern is the incredible complexities that exist in current immigration laws; determining if a person is “deportable” is often the product of careful and specialized scrutiny not often easily ascertainable. This is one reason that there is growing concern that the provisions of the law will be used to target individuals based on race.
Another concerning aspect to the law is that it allows Arizona residents to sue the State, any county, city or town if it fails to enforce immigration laws “to the full extent permitted by federal law.” The State, county, city or town would, then, be required to pay a penalty of $1,000 – $5,000 per day, with the fine being paid the State’s Gang and Immigration intelligence Team Enforcement Mission (GITEM) Fund. Attorneys’ fees would be awarded to the successful party. These provisions subject local governments to unreasonable and potentially frivolous litigation by private citizens with an anti-immigrant agenda. Even if a municipality is later vindicated in court, it may still have to incur the costs of defense; a cost that would be ultimately paid by the taxpayers of the State of Arizona.
Finally, the Arizona law also has created other penalties for relatively harmless behavior. For example, it makes it a misdemeanor to attempt to hire or pick up day laborers to work at a different location if the driver is impeding the normal flow of traffic. It also makes it a misdemeanor for a worker to get into a car if it is impeding traffic. Lastly, it criminalizes the solicitation of work (by a gesture or nod) by undocumented immigrants in any public place. Arguably, these provisions are repetitive as traffic hazards are already addressed by most State criminal statutes. A greater issue, however, is that these provisions are likely to be found unconstitutional by the courts because parts single out the speech of immigrant day laborers for criminalization. Notwithstanding, the solicitation of work has been found by courts across the county to be protected speech under the First Amendment.
The State of Arizona, in taking immigration related enforcement in its own hands, has reenergized the call for Comprehensive Immigration Reform on the national level. With issues of enforcement, security and the question of what to do with the nearly 10 million undocumented individuals in the United States still unresolved, Arizona has attempted to try and force a resolution that has evaded a unified federal approach; the problem with such an alternative, however, is that it often creates more issues than it resolves. Thus, after July, it remains to be seen if Arizona’s approach will sweep into other State legislatures or if the Federal government will find it necessary to deal with an issue that can no longer be ignored. Under either scenario, non-citizens can expect an immigration policy that will tighten the boarders and limit avenues for legitimate migration.
As of the date of this article, Arkansas, Colorado, Delaware, Georgia, Idaho, Indiana, Maryland, Michigan, Minnesota, Mississippi, Missouri, Nebraska, Nevada, New Mexico, North Carolina, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Texas, Utah—have introduced or are considering introducing similar legislation. Absent federal changes in Immigration policies and law, it is likely that States will continue the trend of enforcing Immigration laws; a trend that is likely to continue a hostile environment for noncitizens.
Sharma-Crawford, Attorneys at Law is a firm deeply experienced in the complexities of immigration litigation. Whether you are facing criminal or civil litigation in state, federal or immigration court – the caring professionals at Sharma-Crawford can help you navigate through the complex legal system. For more information, please call (913) 385-9821 or visit www.Sharma-Crawford.com. The choice of a lawyer is an important decision and should not be based solely on advertisements. The information contained in this article is general information and should not be considered legal counsel.