Today, Arizona Governor Jan Brewer signed into law what the New York Times is characterizing as the country’s toughest immigration law. Although immigration falls within the federal legislature’s province, Arizona has acted in the face of what it sees as the failure of Washington to address the issues raised by a large, undocumented immigrant population. While states cannot assume the authority to establish who is lawfully present in the United States or deport those who are not, its law enforcement officials can report to federal immigration authorities an individual’s unlawful presence in the United States – as often, and increasingly, happens in the context of an arrest or prosecution by local authorities. Arizona’s new law goes a (large) step further by incorporating federal immigration offenses into state criminal law, requiring all state and local officials to make a reasonable attempt to determine the immigration status of all individuals with whom they come into contact, requiring all immigrants to carry papers proving their status at all times, and authorizing law enforcement officials to arrest those suspected of being removable aliens. The law has raised concerns about racial profiling and is criticized as authoritarian.
For any lawful contact made by a law enforcement official or agency of this state or a county, city, town, or other political subdicision of this state where reasonable suspicion exists that the person is an alien who is unlawfully presented in the United States, a reasonable attempt shall be made when practicable to determine the immigration status of the person. The person’s immigration status shall be verified with the federal government pursuant to 8 United States Code Section 1373(c).
A law enforcement officer, without a warrant, may arrest a person if the officer has probable cause to believe that the person has committed any public offense that makes the person removable from the United States.
The law clearly targets day laborers and those who hire them by making it a crime to use a vehicle to attempt to hire individuals, as well as to “enter a motor vehicle that is stopped on a street, roadway or highway in order to be hired by an occupant of the vehicle and to be transported to work at a different location”, in either case “if the vehicle blocks or impedes the normal movement of traffic”. In addition to criminalizing smuggling and trafficking the law, also makes it a misdemeanor offense for a person, “in violation of a criminal offense” (which would include immigration infractions, such as failing to have proof of immigration status, under the new law) to transport, move, conceal, harbor or shield an “unlawful alien” if “the person knows or recklessly disregards the fact that the alien has come to, has entered or remains in the United States in violation of the law.”
If it survives a constitutional challenge intact, it is unclear how the law may – whether in its implementation or through the fear it generates – impact the provision of public services or other areas where local government touches the lives of individuals. The implications in the area of law enforcement are rather apparent and would appear to be in direct conflict, for example, with the U-Visa program which grants temporary status to noncitizens who have been the victim of a (usually violent) crime and assist law enforcement and/or prosecutors in pursuing charges against the person responsible. For an explanation of the rights of undocumented immigrant children to public education, see the National Education Association‘s paper Immigration Status and the Right to a Free Public Education.
For more information and analysis of immigration issues in the United States, see the websites of the Migration Policy Institute, International Organization for Migration, Catholic Legal Immigration Network, American Immigration Lawyers Association, and Inter-American Commission’s Special Rapporteurship on Migrant Workers and their Families.
Update: On April 28, 2010, the Inter-American Commission on Human Rights issued a press release expressing its concern over the Arizona law and, in particular, the “high risk of racial discrimination in the implementation of the law” and “the criminalization of the presence of undocumented persons”.