Q&A: Impact of the Arizona Immigration Law

This Thursday, the Arizona immigration law (SB 1070) will go into effect, as long as a federal judge – who heard challenges to the pending law last week – does not rule otherwise. A recent CNN.com article reports, it’s unclear whether the judge will rule before the law takes effect, or whether she will wait to see how it plays out in practice.

We asked Tucson, Arizona immigration attorney, Tarik Sultan, with Wolf & Sultan P.C. for his perspective on the law and how it will impact the people living throughout the state.

1)  Under this new law, what is the obligation of police to investigate people who may be in the US illegally?

The law purports to require that an officer question persons about their immigration status if they have a “reasonable suspicion” that the person may not be lawfully in the United States.  SB1070 was amended soon after it was signed into law, to clarify that the officer must initiate the immigration inquiry during a “lawful stop, detainment or arrest.” 

The relevant section states:

For any lawful stop, detention or arrest made by a law enforcement official or a law enforcement agency of   this state or a law enforcement official or a law enforcement agency of a county, city, town or other political subdivision of this state in the enforcement of any other law or ordinance of county, city or town or this state where reasonable suspicion exists that the person is an alien and is unlawfully present in the United States, a reasonable attempt shall be made, when practicable, to determine the immigration status of the person, except if the determination may hinder or obstruct an investigation.

Any person who is arrested shall have the person’s immigration status determined before the person is released. The person’s immigration status shall be verified with the federal government pursuant to 8 United States code section 1373(c). A law enforcement official or agency of this state or a county, city, town or other political subdivision of this state may not consider race, color or national origin in implementing the requirements of this subsection except to the extent permitted by the United States or Arizona Constitution.

A person is presumed to not be an alien who is unlawfully present in the United States if the person provides to the law enforcement officer or agency any of the following:

1. A valid Arizona driver license.

2. A valid Arizona non-operating identification license.

3. A valid tribal enrollment card or other form of tribal identification.

4. If the entity requires proof of legal presence in the United States before issuance, any valid United States federal, state or local government issued identification.

As reflected in the statute, last minute changes applied to this involve even low-level municipal ordinances.  Thus, an officer who encounters a person for issues such as a barking dog complaint, lawn violations, and the like must undertake questioning of the person’s immigration status if the officer has a “reasonable suspicion” that the person is not in the U.S. lawfully.

In fact, an email from one of the main architects of the Arizona law, Kris Kobach, reflects the drafters’ intention of using low-level, non-criminal ordinances as a pretext to question people in Arizona about their immigration status.  In that email, dated April 28, 2010, Mr. Kobach wrote to State Sen. Russell Pearce (R-AZ), the principal sponsor of SB1070:

“But there is one additional point that he suggested – which you will certainly agree with.  When we drop out ‘lawful contact’ and replace it with ‘a stop, detention, or rest (sic), in the enforcement a violation of any title or section of the Arizona code’ we need to add ‘or any county or municipal ordinance.’  This will allow police to use violations of property codes (ie, cars on blocks in the yard) or rental codes (too many occupants of a rental accommodation) to initiate queries as well.”

The “reasonable suspicion” standard in SB1070 is a term of art in the criminal law context.  An officer has a reasonable suspicion based upon the totality of the circumstances involved, and there is no specific set of factors to consider in making that determination (nor is there particular weight to be assigned to those factors).

Certainly, the officer is supposed to be able to articulate the set of facts that led him to be suspicious, and that suspicion must be reasonable.  However, “reasonable suspicion” is by no means a high standard.  It involves something less than “probable cause,” which is in turn even less than a preponderance of the evidence (defined as a 50.01% probability or higher).  Therefore, the requisite reasonable suspicion that triggers the duty on the officer to inquire into a person’s immigration status is something less than a 50% chance of probability.  In other words, it need not even be “likely” that the person is in the U.S. illegally in order to trigger the requirement of SB1070 to be questioned.

2)  Does someone who is hassled by police – and turns out not to be an illegal immigrant – have options for recourse?

A great deal has been written about the law’s provision that Arizona residents may sue the State, any county, city or town if it fails to enforce federal immigration law “to the full extent permitted by federal law.”  The State, county, city or town would 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 are also to be awarded to the prevailing party.  But little has been written about what happens when a law enforcement agency or officer is sued for “over-enforcing” this law or violating a person’s constitutional rights.

A person in this situation is free to file a complaint with the law enforcement agency, if the person feels that he or she was unfairly or illegally targets for immigration questioning.  There are a number of civil forms of relief, and the Civil Rights Division at the Department of Justice (which has sued in federal court to stop the implementation of SB1070) may also be contacted.  SB1070 states that the taxpayers of Arizona will indemnify law enforcement officers from liability for their actions enforcing the new Arizona law.  If a county, city or town that employs the law enforcement officer is found liable for the violation of civil rights that would result in further expense to the taxpayers of the state.

If you feel your rights have been violated, you should contact an attorney to seek advise on recourse.

3)  Do you think this new law will disproportionally target Hispanic people, rather than illegal immigrants for other counties?

Proponents of SB1070 have pointed to the amendment, added after passage of the law, which states that race may not be taken into account in enforcing the law.  Only time will tell, but in a border state such as Arizona, it is difficult to conceive of ways in which an officer will manifest a reasonable suspicion without race playing a factor.  The Governor of Arizona, in defending the facial challenge to SB1070, states that this amendment “cures” any concerns of racial profiling.  That argument may persuade the federal courts to let the law go into effect.  However, if the law is implemented, there will likely be subsequent challenges that the law, as implemented, has resulted in racial targeting.

4)  For those people – illegal or not – who are worried about this law, what words of advice, given your immigration experience, can you give them to be best prepared for these changes?

The principle advice is to carry evidence of your lawful status in the U.S., including any of the items listed in the statute above.  If you are not sure about your documentation, contact an immigration attorney to inquire and seek useful documentation.

If questioned, always be courteous and NEVER lie to an officer about your immigration status, as that may lead to much larger problems.  Similarly, if you are not sure about your citizenship status, never assume you are a citizen of the United States.  A non-citizen who makes a false claim to citizenship is permanently inadmissible to the United States.

5)  Are there any elements of this law that are being misrepresented or not even mentioned by the media?

There are a number of elements that are misrepresented in the media, but perhaps the most fundamental problem is the assumption that the federal government itself (DHS) knows who is legal and who is not.  SB 1070 states:

On determining whether an employee is an unauthorized alien, the court shall consider only the federal government’s determination pursuant to S.B. 1070 8 United States Code section 1373(c). The federal government’s determination creates a rebuttal presumption of the employee’s lawful status. The court may take judicial notice of the federal government’s determination and may request the federal government to provide automated or testimonial verification pursuant to 8 United States Code section 1373(c).

The Author is not a removal expert, and primarily practices business immigration.  But even I have encountered a large number of persons who are U.S. citizens and are not aware of it themselves.  Certainly the government was not aware of their status as citizens.  Many of the people were in deportation proceedings at that time I was hired.  After demonstrating that the people were in fact U.S. citizens, the deportation cases were terminated.  It is also not unusual for a foreign national to be accused of not having the proper status, when they in fact are in proper immigration status.  Immigration and Citizenship law is extremely complex, and is not competently verified through a 30-second computer search by an ICE clerk responding to an Arizona officer who is detaining a person based upon a reasonable suspicion (again, not a high standard).

To make the Department of Homeland Security’s determination the sole evidence that an Arizona court may consider in determining whether person is lawfully in the U.S. is simply reckless and extremely poor policy.  It goes without saying that U.S. citizens will be detained while officers attempt to verify their immigration status with DHS.

6)  If the law does go into effect this week, given you are located in the Tucson area, how do you expect people to react? Are most people in support of this law, or not?

Polls suggest that 57% of Arizonans currently support SB1070, and Governor Jan Brewer has been defiant in the face of criticism about the law.  Law enforcement agencies are undergoing training in how to enforce the law, as well as how to deal with concerns of racial profiling.  Many are skeptical of how an officer could articulate a reasonable suspicion in a border state without race being a factor in the calculation.

If the law is allowed to go into effect as written, the initial reaction may be somewhat anticlimactic.  As news reports of how U.S. citizens and lawful residents surface, the debate will be rekindled in due course.

No matter where people fall on the issue of SB1070, I think we can all agree that it has not been good for the State’s reputation.  Convention and tourism has taken a hit, with the Mayor of Phoenix stating that the capital city alone will suffer losses of $90 million due to boycotts.  As a state suffering through a devastating recession, and with the costs of SB1070 enforcement (including legal expenses in defending the law and its enforcement) unknown, this truly is the beginning of a long debate on the efficacy of such state immigration laws.

The biggest effect of SB1070 may in the end be a practical one, rather than a legal one.  State Sen. Pearce indicated that it is meant to be a law of attrition, and that the hope is to drive illegal immigrants out of Arizona by making life sufficiently uncomfortable for them.  Certainly, some have indicated an intention to leave Arizona for another state.  But the substantial numbers who remain will live in fear of the law, and that raises substantial public policy issues.

If a house is burglarized, the victims should not feel that they cannot call the police because someone in the family is not legal.  Or if a person who is illegally in the U.S. is witness to a hit and run, that person will not stay to help the victims or provide the police with information on the suspects.  People will not be able to rely upon, seek the aid of, or cooperate with law enforcement because of their fear of detection.  Such an environment will make us all less safe.  Driving a sizeable portion of the State population further underground is a public policy decision that cuts both ways.

The Tucson Sector of Border Patrol is the highest volume area of illegal immigration.  Tucson and Nogales are the main cities affected in that Patrol Sector.  It is notable that the first lawsuit filed against SB1070 was by a Tucson policeman, who protested that the law will damage his ability to interact with and protect the community he serves.  The Sheriff of Pima County, which includes Tucson, referred to SB1070 as a “stupid, racist law.”  The Sheriff of Santa Cruz County, which includes the border town of Nogales, also came out against SB1070, saying that the Arizona law undermines his law enforcement priorities in his jurisdiction.  Indeed the Arizona Association of Chiefs of Police issued the following statement: “The provision of the bill remain problematic and will negatively affect the ability of law enforcement agencies across the state to fulfill their many responsibilities in a timely manner.  While AACOP recognizes immigration as a significant issue in Arizona, we remain strong in our belief that it is an issue most appropriately addressed at the federal level.”

One thing is certain: until Congress acts to pass a comprehensive immigration law that addresses the undocumented, we will be left with a patchwork of state laws that will make enforcement more difficult than ever.