FAIR PLAY / SUBSTANTIAL JUSTICE

questionable provisions in Arizona’s new immigration bill

Posted in Uncategorized by Ryan Locke on April 15, 2010

From JURIST:

The Arizona House approved [press release] a bill [SB 1070 materials] Tuesday that would establish one of the strictest illegal immigration [JURIST news archive] policies in the nation. The bill would criminalize being in the US without proper documentation and would give law enforcement officers increased ability [NYT report] to require individuals suspected of being illegal immigrants to provide proof of their legal status. The proposal has been heavily criticized by immigrant rights groups. Chris Newman, Legal Director of the National Day Laborer Organizing Network condemned the bill [press release] as “the most anti-immigrant legislation the country has seen in a generation.” The bill now moves to the Senate, where it is expected to be approved and sent to Governor Jan Brewer, who will likely approve the final version.

Reading through the bill for the first time, there are several provisions that jump out as being bad ideas.

1.  11-1051(B). This provision requires police officers to make a reasonable attempt to determine the immigration status of any person whom the officer has reasonable suspicion to believe is unlawfully present in the United States.  Note that the officer cannot use race, color, or national origin in order to sustain a reasonable suspicion determination (just like an officer’s reason for searching someone can’t be that he’s black).

But how will these officers determine reasonable suspicion without race, color, or national origin?  That the alleged unlawful alien “appeared nervous” when talking to police?  That the alleged unlawful alien was “present in a high-crime area” or “had shifty eyes” or “ran as soon as the police arrived”?  Maybe unlawful aliens ride in the back of pickup trucks more often, or drink Mexican beer, or grow facial hair more often than lawful aliens.  But who knows?  Keep in mind that subsection (J) indemnifies officers for messing this up unless they’re acting in bad faith.

This is the provision that will get the most attention from the media, probably characterized as creating a police state in Arizona.  While I don’t think things will get that bad, the reasonable suspicion standard is a poor prophylactic because it’s so prone to reverse-engineering.  There’s little to prevent an office from  stopping someone, finding out they’re an unlawful alien, and then make up some reasonable suspicion that allows the stop in the first place.

2.  13-1509. This section essentially parrots 8 USC 1304(e) and 1306(a), which are federal laws criminalizing not having your alien registration card with you at all times and not registering and being fingerprinted.  The section also forces the unlawful alien to pay jail costs and a fine of $500.

Unless Arizona has a large population of wealthy yet unlawful aliens, there is no way that the costs of this section will be offset by the payment provisions.  Are these things that we want to waste our money prosecuting and jailing unlawful aliens for?  Even if you’re super law-and-order and want to remove the unlawful aliens back to wherever they’re from, why not just hand them off to the federal government?  Keep in mind that prisons are where drug cartels recruit most of their US members.

A special mention goes to subsection (G): “Any record that relates to the immigration status of a person is admissible in any court without further foundation or testimony from a custodian of records if the record is certified as authentic by the government agency that is responsible for maintaining the record.”  I’m sure the Arizona legislature merely forgot about the Confrontation Clause, Crawford, and the recently-decided Melendez-Diaz.

3.  13-2929. This section criminalizes a host of third-party behaviors where the person knew or recklessly disregarded the fact that the alien was unlawfully present and: (A)(1) transported the alien in furtherance of their illegal presence, (A)(2) concealed, harbored, or shielded the alien from detection, or (A)(3) encouraged or induced the alien to reside in Arizona.  The penalty is a fine of at least $1,000.

Right off the bat, we know that the (A)(3) encouragement provision violates the First Amendment.  I can tell people to do whatever I want–save the classic shouting-fire-in-a-crowded-movie-theater example–and the First Amendment protects me.  If I told all unlawfully present aliens to move to Arizona (“I hear the weather’s nice”), my speech is not inciting a violation of the law that is both imminent and likely because I’m advocating lawless action at some indefinite future time.  Read Hess v. Indiana, 414 U.S. 105 (1973), for more on that point.  But if I bought some unlawfully present aliens plane tickets to Arizona, then I’d probably rightly run afoul of this section.

Also distressing is the effect this section will have on aliens who have a legitimate need for third-party services.  What about the unlawful alien who is a victim of domestic violence?  Under this section, an emergency women’s shelter would be fined for harboring the alien and perhaps transporting the alien if the shelter picked them up.  Say the shelter never asks the woman about her immigration status.  If she only speaks Spanish, is that enough knowledge to prove reckless disregard?  What if she appears ethnically Mexican?

4.  13-3883. This section authorizes any peace officer to make an arrest without a warrant when he or she has probable cause that the person to be arrested has committed any offense that makes the person removable from the United States.  Note that there are no restrictions to unlawful aliens; this section seemingly applies to LPRs too.

The problem is that immigration law is hard.  Does this mean that every peace officer in Arizona needs to be trained in what offenses make someone removable from the United States?  If the Courts of Appeals can’t agree on what “moral turpitude” means, what do we tell the cops?  If a legal permanent resident (LPR) shoplifts a lollypop from the grocery store–or eats a few grapes in the produce isle–thereby committing petit larceny, can he or she get arrested for committing a removable offense?  Does the phrase “makes the person removable” mean that the offense is capable of causing removal, or will likely result in removal?

I understand that Arizona’s upset at the federal government for perceived sloppy immigration enforcement, but this bill is costly and difficult to implement.

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