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Arizona's New Immigration Law

by Harry DeMell

Arizona's new immigration law is a bad idea whether you are a restrictionist or a supporter of comprehensive immigration reform. The reasons are different for each but the idea of a state taking extreme measures points to the failure of congress and the administration to take meaningful action to correct what is becoming a system that is failing the immigrant community, business's need for labor, the American economy and the efficient execution of government.

There is chaos on our southern border.

From the point of view of the people who passed this bill, it will be a disaster. If they get what they want, they might criminalize the immigration system. Didn't any of them think that once aliens are stopped and arrested by state police on criminal charges they have all the constitutional rights guaranteed to criminals by the constitution? Those rights include everything from Miranda warnings, to the right to counsel to the right to be tried by an article three court or state court with criminal jurisdiction, to jury trials. Is this what they want?

This will be a windfall for the legal community. Litigation, assigned counsel, a larger government apparatus all point to a big payday for the lawyers.

Immigration courts and judges do not have criminal jurisdiction. This cannot go anywhere good by the standards of the restrictionists. You will have federal district courts dismissing indictments for all the same reasons that they now use in a criminal context.

The federal courts might use the doctrine of preclusion to dismiss the whole law as unconstitutional putting the rights of states to control this area in any way into doubt. State actions that might make sense could be stopped under this doctrine.

It is also possible that a political backlash will develop that will put into question the seats of some of the state legislators that supported this matter.

It's obvious that emotion came before intelligence when this bill was passed.

The amnesty lobby should not be too proud of their position on this issue either. (Please note that I did not call them pro-immigrant.)

There is a real dangerous situation brewing in Mexico. The drug violence is getting out of hand and could lead to civil war. If you think that this is not possible think again. The drug cartels are running northern Mexico as though they are the government in large areas. If this goes on it becomes a fact. The Mexican Federal government will not be a true government if they let this escalate. The Mexican government has a duty to its people to get this matter under control. The only question is how and when.

As a border state, Arizona also must protect its people. That state has a real duty to its people. It goes beyond undocumented workers coming across to fill jobs. It has to do with the transportation of drugs, weapons and money across the border. It has to do with preventing the drug violence in Mexico from spilling over our border. The federal government is not doing their job in this area and this latest piece of legislation is a desperate attempt to correct that situation.

The Arizona example has the potential of spreading to other states and could be the first salvo in an anti-immigrant backlash. For some, the reasons will be racist and for some political. Some may worry about jobs and some about overpopulation. These groups might be united in creating an environment where immigrants are much less welcome. This in turn could move us away from meaningful and sustainable immigration reform later.

Washington has a responsibility to protect the American people. The federal government has dropped the ball. Border protection is real and necessary. Washington is unable to cope with the problem. With the summer recess and elections around the corner, congress doesn't want to create another controversial issue. The administration is exhausted after a difficult health care fight.

A large obstacle is that there are no real proposals to deal with the problem of border security in an objective way. We spend stimulus money on every partisan political program when congress wants to grease their political machines but real money for border security seems allusive.

There are administrative actions that might be taken. The administration is transporting alien respondents in removal cases from the northeast to prisons to those along the Mexican border. This is taking valuable prison space away from those protecting our borders. By redefining mandatory detention to include orders of supervision the administration can free up thousands of beds for those who should be detained.

By changing policy to stop the practice of issuing notices to appear against every violation, DHS can free up a significant amount of court time to deal with those caught at the border.

By acknowledging that Arizona and other border states have a legitimate interest in protecting its citizens the federal government can support reasonable efforts to police the vast open spaces and assist Arizona in their efforts.

Congress needs to provide the money to hire more border guards. The administration will soon need to station troops along the border to check the violence that is pouring over the border. It should not be the policy of our government to use the military to police the borders but if we do not stem this cross border problem soon we will have no choice.

Those of us who are pro-immigrant understand that abuse of the system will have long term detrimental effects. Too much criminalization as well as a weak border protection program will lead to a long term bad situation for the American people.

What we need is a sustainable immigration policy that is both humane and supports the American economy. We cannot get there until we secure our borders. Those who expose a restrictionist position do not understand our history or position in the world. Those who would open our borders with little restriction also do not understand our responsibility to our families and our country for a safe environment.

We need more less political rhetoric and more sane action. Who will stand up for a sane solution?

Copyright 2010, by Harry DeMell

About The Author

Harry DeMell is an attorney practicing exclusively in the area of visa, immigration and nationality law since 1977. He is a member of AILA and has been a member of the AILA's annual planning committee, participated in their lobbying efforts, and is a mentor to other members.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.