New Arizona Law Engulfs Immigration Debate
Originally published on the Migration Information Source www.migrationinformation.org, a project of the Migration Policy Institute.
May 17, 2010
Policy Beat in Brief
A controversial new law in Arizona granting broad authority to state and local law enforcement agents to target unauthorized immigrants has focused national and international attention on the larger immigration debate in an unprecedented way.
Underscoring the debate's polarizing and contentious nature, the law has elicited strong reactions on both sides from legislators and civil rights, business, and other groups not traditionally concerned with immigration.
A lawsuit challenging the law was filed in federal court today. Also, organizations have cancelled conventions and meetings scheduled to take place in Arizona, city councils from San Francisco to Boston have encouraged boycotting the state, and legislators in at least nine other states have proposed similar legislation.
The Support Our Law Enforcement and Safe Neighborhoods Act (SB 1070), which Governor Jan Brewer signed April 23 and the Arizona legislature further amended April 29, is scheduled to take effect in late July.
The new law requires Arizona state and local law enforcement officers to question the immigration status of anyone they stop for possible violations of any state or local law or ordinance if an officer has a "reasonable suspicion" that an individual is an unauthorized immigrant. Officers are authorized to arrest and detain individuals who cannot provide proof of their legal status in the United States, in order to request verification of detainees' legal status from the federal government.
In addition, SB 1070 makes it a state crime for noncitizens to fail to carry proof of their immigration status, already a federal offense, and it authorizes residents of Arizona to bring lawsuits against municipalities and law enforcement agencies that limit or restrict the enforcement of immigration law.
The new law also makes it a crime to transport or "harbor" an unauthorized immigrant, including a family member, if a person knows or "recklessly disregards" the fact that the individual does not have legal status. A limited exception is provided for child-protection workers and medical attendants providing emergency medical care.
Both critics and proponents of SB 1070 have characterized it as the "toughest" immigration enforcement law any state has passed.
According to a May 12 NBC/Wall Street Journal poll, 64 percent of Americans overall support SB 1070. However, 70 percent of Hispanic respondents oppose it.
Opponents and Supporters of SB 1070
Opponents of SB 1070, claiming the law would invite widespread racial profiling, have compared the law to the civil rights struggles of earlier years. They have sought federal-government intervention and court injunctions to stop the law from taking effect, as well as called for boycotts to penalize Arizona.
Supporters of the law have alleged that SB 1070 prohibits racial profiling because it specifically states that a law enforcement officer shall not consider an individual's "race, color, or national origin" when determining whether an individual is a suspected unauthorized immigrant.
Many supporters echoed Brewer's assertion that the measure is necessary because of recent surges in violence along the US-Mexico border and the fact that the federal government has failed to stop drug smuggling and illegal entries. In signing the measure into law, Brewer stated that the legislation was needed to "solve a crisis we did not create and that the federal government has refused to fix."
Local and National Response to SB 1070
The passage of SB 1070 has divided the Arizona body politic and the state's law enforcement agencies. Passed exclusively along party lines — no Democrats supported the measure, and all Republicans except for one voted in favor of it — SB 1070 seems to highlight electoral calculations of both Arizona politicians and Brewer, who is facing a heated race in this year's Republican gubernatorial primary.
Public and law enforcement officials in Arizona have been divided over the new law's impact on public safety. Proponents say SB 1070 will help Arizona police find and arrest drug smugglers and wanted criminals. Opponents argue that the law will jeopardize public safety by making immigrants afraid to contact the police.
Phoenix Mayor Phil Gordon, who oversees the largest city in Arizona, wrote in an editorial for the Washington Post that he found the law "discriminatory" and thought that it would lead to national humiliation for the state. In Pima County, Sheriff Clarence Dupnik announced that he would direct his officers not to enforce SB 1070, saying it would lead to racial profiling. Other law enforcement agents, including Sheriff Joe Arpaio of the Maricopa County Sheriff's Office, voiced strong support for the measure.
At the national level, President Barack Obama was among the first to criticize the Arizona law. He characterized the legislation as one that "threatens to undermine the basic notions of fairness we cherish as Americans, as well as the trust between police and their communities that is so crucial to keeping us safe."
Days later, the Obama administration announced that a team of lawyers at the Justice Department would be examining the law's constitutionality. Attorney General Eric Holder, responding to questions about SB 1070's potential effect on local policing, said the administration might bring its own legal challenge.
Homeland Security Secretary Janet Napolitano, a former governor of Arizona, voiced her own reservations about SB 1070. While testifying before the Senate Judiciary Committee in April, Napolitano told senators that she did not think that the Arizona law was a "value-added" to law enforcement because it would place an undue barrier between crime victims and the police.
Immigrant advocates have urged public protests against the law. During the annual May 1 immigrants' rights rallies, tens of thousands of protesters across the country voiced opposition to the Arizona law and asked Congress to pass immigration reform. According to media reports, roughly 50,000 people marched in Los Angeles, while 25,000 marched in Dallas, and 6,500 marched in New York. Rallies in Chicago and Milwaukee each attracted close to 10,000 people.
In response to calls for boycotts by major Hispanic civil rights groups, many national organizations announced their intent to cancel meetings and conventions previously planned to be held in Arizona. A representative from the Arizona Hotel and Lodging Association told media outlets in early May that 19 groups had cancelled events. In an interview with CNN on May 13, Mayor Gordon stated that boycotts over SB 1070 had already cost the state $150 million.
Several city councils, including those in Boston, Oakland, Boulder, Los Angeles, and San Francisco, passed resolutions condemning the Arizona law and urging city businesses to avoid travel to Arizona.
In Phoenix, the Suns basketball team donned jerseys reading "Los Suns" to show support for opposition to SB 1070. The Major League Baseball player's union also issued a statement voicing concerns about the law, noting that it could negatively affect foreign-born baseball players and their families.
International Response to SB 1070
Mexico has weighed in as well. The government formally warned its citizens travelling to Arizona that they should be prepared to show proof of their legal status and could face police questioning.
Also, two Mexican universities halted their foreign exchange student programs with Arizona universities, voicing concerns over the potential for police harassment. The World Boxing Council has said it will not authorize Mexican boxers to fight professionally in Arizona.
Bishop Desmond Tutu of South Africa wrote a column in the Huffington Post strongly criticizing the Arizona law. The piece reinforced comparisons with the apartheid era in South Africa made by some immigrant advocates.
Future of SB 1070
Whether the new law will go into effect remains to be seen. Civil rights groups and many legal scholars believe SB 1070 is unconstitutional because it preempts federal law and interferes with federal immigration-enforcement efforts. They also believe the law's enactment will create a climate hostile to the fundamental due-process and equal-protection guarantees of the Fourteenth Amendment.
On April 29, the National Coalition of Latino Clergy and Christian Leaders launched one of the first legal challenges to SB 1070, the same day that a Tucson police officer filed a separate suit. On May 17, the American Civil Liberties Union, along with the Mexican American Legal Defense and Education Fund, the National Immigration Law Center, National Association for the Advancement of Colored People, the National Day Labor Organizing Network, and the Asian Pacific American Legal Center, filed another lawsuit.
The passage of the Arizona law has raised speculation that other states will introduce similar legislation. On May 5, Pennsylvania State Representative Daryl Metcalfe introduced HB 2479, the Support Our Law Enforcement and Safe Neighborhoods Act, which is modeled after SB 1070. Pennsylvania Governor Edward Rendell, however, has already said he will veto the measure if the state legislature passes it.
State politicians in Ohio, Texas, Missouri, and Utah have announced plans to introduce similar pieces of legislation, while gubernatorial candidates in Iowa and Colorado have voiced their support for such a measure.
The prospects for any actual legislation being passed, however, are not certain. Many states may wait to see whether the courts uphold the Arizona law.
SB 1070 and Immigration Reform
The Arizona law generated a quick frenzy among congressional leaders to mobilize support for comprehensive immigration reform. Senate Majority Leader Harry Reid (D-NV), along with several other Democratic senators, introduced a new "blueprint" outlining a comprehensive immigration reform proposal.
Senator Charles Schumer (D-NY), who has been leading efforts to introduce an immigration reform bill in the Senate, sent a letter to Brewer, asking her to request that the Arizona legislature delay implementation of SB 1070 for one year, so that Congress would have a chance to consider national immigration reform legislation.
Whatever energy the passage of SB 1070 generated, however, was quickly dampened. In April, the only Senate Republican willing to work on immigration reform, Lindsey Graham (R-SC), said he felt that immigration reform legislation would have to be postponed until 2012 at the earliest.
Speaking to reporters aboard Air Force One in late April, Obama noted that Congress had already taken on many controversial issues during his presidency and that it may not have the political "appetite" to deal with immigration reform this year.
Lieberman Bill on Revocation of Citizenship. Senators Joseph Lieberman (I-CT) and Scott Brown (R-MA) have introduced a bill that would allow the US Department of State (DOS) to petition to revoke the citizenship of American nationals found to have participated in foreign terrorist organizations or supported hostilities against the United States. The bill's introduction came days after a naturalized US citizen from Pakistan, Faisal Shazad, was arrested in connection with a failed attempt to set off a car bomb in Times Square. The revocation process would apply to citizens born in the United States and naturalized US citizens. Under current law, the government can move to revoke the citizenship of individuals found to have served in foreign armies, sworn allegiance to foreign countries, or formally renounced their citizenship. Citizens are given the opportunity to contest a DOS finding that their citizenship should be revoked, both with DOS and with the district courts.
More Delays for "Virtual Fence." In another sign that the Department of Homeland Security is moving away from the program known as the "virtual fence," Customs and Border Protection (CBP) Commissioner Alan Bersin told senators that the original proposal for SBInet was "not practicable" in the near future and that his department no longer intended to implement the program as originally envisioned. DHS launched SBInet, a component of the Secure Border Initiative, in 2006, offering a multimillion-dollar contract to Boeing to build an integrated system along the Southwest border. The program has faced significant delays in implementation. Homeland Security Secretary Janet Napolitano recently announced she would redeploy $50 million intended for SBInet to other border security projects.
Increase in Mexican Asylum Approvals. The US government is approving an increasing number of Mexican nationals' applications for political asylum, according to recent numbers from USCIS and the Executive Office for Immigration Review (EOIR). The government approved 254 such cases in fiscal year (FY) 2009, more than three times as many cases as were approved in FY 2002. According to media reports, the number of Mexican nationals applying for political asylum has also increased due to growing instability along the US-Mexico border and violent confrontations between the Mexican police and powerful drug cartels.
TPS Renewals for Honduras, Nicaragua. US Citizenship and Immigration Services (USCIS) will grant an 18-month extension of temporary protected status (TPS) to current TPS recipients from Honduras and Nicaragua. Immigrants who hold TPS are eligible to apply for work authorization and are granted protection against deportation. The US government initially designated Honduras and Nicaragua for TPS in 1999, after both countries were devastated by Hurricane Mitch.
Court Case on Oklahoma's E-Verify Law. A federal appeals court has denied a petition from the state of Oklahoma requesting that the entire appeals court rehear a case involving Oklahoma's 2007 immigration enforcement law. In February, a three-judge panel of the circuit court struck down portions of the Oklahoma Taxpayer and Citizen Protection Act of 2007, saying that federal law preempted some sections. The law would have made it a discriminatory practice for an Oklahoma business to fire a US citizen or lawful permanent resident while employing an unauthorized immigrant in the same position, and would have required businesses to pay additional taxes if they did not confirm that their independent contractors were authorized to work.
Permission for Muslim Scholar to Enter the United States. Tariq Ramadan, a Swiss Muslim scholar who was denied entry to the United States for six years on the grounds that he had provided material support to terrorism, was admitted to the United States in April. Ramadan's admission came after a federal appeals court ruled in his favor, and Secretary of State Hillary Clinton announced that her department would reverse its previous decision in Ramadan's case. After the State Department revoked Ramadan's visa in 2004, a coalition of academic organizations challenged the decision in federal court, arguing that their First Amendment rights to hear Ramadan speak were violated when the United States denied his visa.
Department of State Support for Haitian Relief Efforts. DOS will make additional contributions totaling $10.5 million to further help support relief efforts for Haitian nationals displaced by the January 12 earthquake. The additional money, which will be given to the United Nations High Commissioner for Refugees, the United Nations Children's Fund, and the Pan American Health Organization, is intended to assist families in the Dominican Republic that are housing displaced Haitians, and to help fund nutrition, water sanitation, and antitrafficking programs in Haiti and the Dominican Republic. The United States previously contributed $4 million to the International Organization for Migration to help fund repatriation-assistance programs for displaced Haitians.
German Nationals and "Global Entry" Program. DHS plans to allow certain German nationals to participate in the CBP "Global Entry" program for expedited immigration and customs processing at airports. Launched as a pilot in 2008, the program allows authorized US citizens and permanent residents to bypass long lines for US immigration and use automated travel kiosks to gain admission to the United States. Germany is the second country to sign an agreement for its nationals to enroll in Global Entry; the United States already has a similar agreement with the Netherlands.
State and Local Policy Beat in Brief
- Read the Second Circuit Court's decision in Ramadan's case.
- Read the Department of State press briefing announcing that Ramadan would be allowed to apply for a visa.
- Read more about the Ramadan case in the August 2009 Policy Beat.
Appeal of Recent Ruling in Farmers Branch. The city council in Farmers Branch, Texas, voted unanimously to appeal a recent ruling by a federal district court judge that held that a 2008 ordinance aimed at preventing unauthorized immigrants from renting housing was unconstitutional. Ordinance 2952 would have required would-be renters to obtain a "rental license" from the city and would have denied licenses to anyone who did not hold valid immigration status. Ordinance 2952 is the third Farmers Branch housing ordinance since 2006 targeting unauthorized immigrants.
H-1B Workers in Louisiana Case. A California recruitment agency must pay $1.8 million to Filipino teachers brought to the United States on H-1B visas, according to an administrative law judge's ruling in Louisiana. The ruling found that forcing the teachers to pay $5,000 per person and requiring them to sign contracts obliging them to pay 10 percent of their annual salaries to the agency violated various labor laws. The H-1B visa program allows US employers to petition for highly skilled foreign-born workers. Some school districts have used the program to fill job openings for math, science, and special education teachers.
New Pardon Process for Immigrants in New York. New York Governor David A. Paterson plans to establish a five-member panel to review the criminal convictions of legal immigrants seeking pardons from the state in order to avoid deportation. The decision follows the governor's recent pardon of Qing Hong Wu, a 29-year-old lawful permanent resident and technology executive whose citizenship application unearthed his conviction for crimes he committed as a teenager; he was detained last fall as a criminal alien. Since the mid-1990s, the list of criminal offenses that may render a legal immigrant "deportable" has steadily grown. The new panel will consider an immigrant's rehabilitation and ties to the United States in making its recommendations.
Washington State Decision on Plaintiff's Immigration Status. The Washington State Supreme Court ruled in a 7-2 decision that a jury should not have been allowed to hear evidence that the plaintiff in a worker's compensation case was an unauthorized immigrant because of the risk of "substantial prejudice" in the case. In Salas v. Hi-Tech Erectors, the plaintiff, a former construction worker, alleged that his severe injuries from a fall on the job were caused by a faulty ladder that did not comply with safety codes. During the plaintiff's jury trial, the jury learned that the plaintiff did not have legal status in the United States. The plaintiff alleged this information was irrelevant to his damages claim and only served to prejudice the jury.
Originally published on the Migration Information Source www.migrationinformation.org, a project of the Migration Policy Institute.
About The Author
Muzaffar Chishti a lawyer, is director of Migration Policy Institute (MPI) office at New York University School of Law. His work focuses on US immigration policy, the intersection of labor and immigration law, civil liberties, and immigrant integration.
Claire Bergeron is a paralegal at the National Immigrant Justice Center in Chicago. In 2007 and 2008 she worked as an intern and research assistant at the nonpartisan Migration Policy Institute (MPI), where she co-authored reports on Social Security “no-match” letters and the USCIS naturalization backlog. A graduate of Northwestern University, Ms. Bergeron obtained her BA cum laude in legal studies and anthropology in June 2007. While at Northwestern, Ms. Bergeron wrote two theses on US immigration, earning the Legal Studies Department “thesis of the distinction” award in 2006 for her research on due process standards for detained immigrants. Ms. Bergeron is a member of the Phi Beta Kappa honor society.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.
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