Arizona’s ‘Papers Please’ Law

Arizona’s ‘Papers Please’ Law

It’s not just a mirror image of federal law, and allows some
profiling. But, in theory, no more than what the courts permit already.

June 3, 2010

Summary

We’ll leave it to others to decide whether Arizona’s new immigration
law is a good thing or a bad thing — but here we try to straighten out
some of the confusing factual claims. First, a quick summary. Contrary
to what the law’s defenders often say, the new statute does more than
merely mirror federal law. For example:

  • It’s a state crime for an illegal immigrant to apply for a job, or
    to solicit work publicly.
  • The law also makes it a misdemeanor for a citizen driving a vehicle
    to stop to hire anyone if that “impedes” traffic.
  • Citizens will be able to sue officials or agencies whose policies
    interfere with vigorous enforcement of federal immigration law.

On the much-discussed issue of whether the law permits or encourages
“racial profiling,” we find:

  • The amended law allows police to consider “race, color or national
    origin” when deciding whether to ask somebody for proof of citizenship,
    but only to the extent already deemed constitutional by the courts.
  • It remains to be seen how police will interpret the law’s
    anti-profiling language in practice. State officials tell us they have
    yet to work out what factors police should be trained to use to
    establish “reasonable suspicion” of illegal status.
  • Federal officials are open to criticisms similar to some of those
    being made about Arizona’s law. A federal manual for training state and
    local officials says they may consider whether a person has a “thick
    foreign accent” or looks “out of place” when deciding whether to ask
    them about their immigration status.

Finally, we examine a widely circulated chain e-mail written by an
Arizona state senator who supports the law, and find her claims to be
misleading. The violence against ranchers that she describes is real,
but it is the work of Mexican crime cartels, not illegal immigrants.

Analysis

Frog: "Reading helps you know what you're talking
about."

Frog: “Reading helps you know what you’re talking about.”

Recently,
Arizona Gov. Jan Brewer posted a video that uses a
frog puppet to mock critics of the state’s new immigration law for not
having actually read it. We’re asked to sing along with the amphibian as
he croaks, “reading helps you know what you’re talking about.”

Well, we’ve read it (take that,
frog!). Below, we try to address a few of the questions and
misperceptions that seem to go hand-in-hand with the get-tough statute
that targets illegal aliens.

According to a report by the Pew
Hispanic Center
, there were an estimated 500,000 illegal immigrants
living in Arizona in 2008. The state wants that number to drop. In its
first paragraph, the new law says that “the intent of this act is to
make attrition through enforcement the public policy of all state and
local government agencies in Arizona.”

Doesn’t
the Arizona law just mirror federal immigration law?

Brewer has
responded
to critics of her state’s law – commonly referred to as
S.B. 1070 – by saying it replicates federal law.

Brewer, April 30: Our law
mirrors federal law. So, why is it bad for Arizona to mirror federal
law? No one was crying out in the wilderness about the federal law being
wrong or racial profiling. I don’t get it. It’s spin.

To a degree, she’s right. Arizona’s new
statute
contains provisions that criminalize, at the state level,
certain conduct that’s already a violation of federal immigration law.
For instance, immigrants are required under both state and federal laws
to carry their alien registration documents or other applicable records
at all times – in federal law that’s under 8
USC sec.1304
and 8
USC sec. 1306
.

Other parts of the state law, though, don’t exist at the federal
level. They include section 5A, making it illegal for a driver to stop
and attempt to hire or to hire and pick up passengers, if that action
impedes traffic; for a person to get into someone’s vehicle in order to
be hired; or for an illegal alien to apply for work or solicit work
publicly in the state. Most of this is aimed at day laborers and those
who hire them.

Another example: Section 2H allows any
citizen to sue an official or agency in the state who “adopts or
implements a policy that limits or restricts the enforcement of federal
immigration laws to less than the full extent permitted by federal law.”

And section 2B of the new law requires law
enforcement officers to try to check the immigration status of anyone
they lawfully stop if they have “reasonable suspicion” the person might
be an unauthorized immigrant. (More on this provision later).

But
why the outcry?
These people are here illegally,
right?

There are plenty of features of the law
that critics find objectionable. Among them are the penalties. Under
federal law, violations of immigration statutes by someone in the U.S.
illegally may in some cases be punished with a jail sentence but are
often penalized by deporting the
individual instead, if the government proves its case to a judge through
a comprehensive set of procedures. Arizona, lacking the authority to
deport anyone, will enforce jail sentences laid out in its new law for,
say, failing to carry one’s immigration authorization documents or
soliciting day work by the side of the road, said Mary Giovagnoli,
director of the Immigration Policy Center, a pro-immigrants’ rights
group. While the federal system is far from perfect (thousands of people
are locked up in federal
detention centers
indefinitely awaiting deportation decisions), the
addition of new immigration crimes at the state level with jail time
attached isn’t the answer, she added.

Some Arizona police chiefs and other state
officials oppose the law, in no small part because of the provision
allowing citizens to sue them, as described above. Fans of that measure
see it as a way to get authorities to enforce the law. But Phoenix
Police Chief Jack Harris
suggested it’s at best superfluous
in terms of helping local law
enforcement combat serious crime.

Harris, April 30: Proponents of this
legislation have repeatedly said that the new law provides a tool for
local law enforcement, but I don’t really believe that that’s true or
accurate. We have the tools that we need to enforce laws in this state
to reduce property crime and to reduce violent crime, to go after
criminals that are responsible for human smuggling, to go after
criminals that are responsible for those home invasions, kidnappings,
robberies, murders.

He and some other Arizona chiefs say the statute could actually hurt
their efforts to fight serious crime because they will have to devote
time and resources to enforcing the immigration provisions. The law also
will make illegal immigrants who are crime victims or witnesses more
leery of cooperating with law enforcement, they
predicted
.

Perhaps the single biggest reason this law is so controversial is
that immigration – like, say, foreign policy – always has been the
purview of the federal government. The feds’ authority is rooted in Article
I, section 8
of the U.S. Constitution, which gives Congress the
power to “establish a uniform rule of naturalization.” As a practical
matter, said Kevin Johnson, an immigration law expert and dean of the
University of California at Davis School of Law, it’s unworkable for
states to have their own immigration laws, “just like states can’t have
their own foreign policies.” He noted that “the federal government is
more inclined to consider the national interest.” For that reason,
Johnson believes that legal challenges to the law – several
have already been filed, and the Obama administration is also
considering a lawsuit
– are likely to succeed under the federal
preemption doctrine, which is based on the Constitution’s Article VI,
clause 2. Known as the supremacy clause, it says that federal law shall
bind “judges in every state” even if state law contradicts it.

At the same time, at
least 22 other states
are considering legislation similar to
Arizona’s.

Does
the law allow racial or ethnic profiling?

There’s been so much controversy about this question that the
legislature went back and amended
the law
the week after it was signed by the governor. The final
version requires police to try to determine the immigration status of
any person who has been stopped, detained, or arrested and “reasonable
suspicion exists that the person is an alien.”  Could reasonable
suspicion be based on skin color or a Mexican accent? Here’s what it
says:

Senate Bill 1070: 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.

The unamended version said race et al., couldn’t be the “sole”
factors. But the statute doesn’t detail what “reasonable suspicion”
might include. And the phrase “except to the extent permitted” by the
federal or state constitutions leaves even more ambiguity, because
courts have upheld the use of race or ethnicity in some circumstances.
In an annotated version of the law reprinted by The
Arizona Republic
, University of Arizona law professor Gabriel
Chin writes that there are “many open questions” regarding whether race
could be used in enforcing S.B. 1070. But he also said, “I am deeply
surprised that anyone construes this law to prohibit racial profiling.”

Ediberto Roman, a professor of law at Florida International
University, goes even farther. “It’s pretext to try to suggest that
there is no discriminatory purpose,” he told us. “Given that there is a
lack of any other basis in terms of how they’re going to enforce it,
it’s pretty clear that we’re looking to focus on a particular target
group.”

Though the law only allows officials to ask for proof of citizenship
in the case of “legal stop, detention or arrest,” this doesn’t limit the
questioning to suspected criminals — it can include those who are
detained as victims of or witnesses to a crime, or people accused of
violating local ordinances like noise laws or loitering laws. Roman is
concerned that police will be more likely to both stop and to question
those who they think look like immigrants. “The legislature was pretty
careful in following criminal procedure notions, but it’s the discretion
in how the law enforcement will use criminal procedure [that] is how
the racial profiling comes into play,” he said.

Lyle Mann, director of the state government’s Arizona Peace Officer
Standards and Training Board (AzPOST), which provides curricula and
standards for law enforcement training, assured us that Arizona’s law
enforcement officials will be instructed in the letter of the law, which
prohibits considering race or ethnicity as a factor. AzPOST is
developing a training curriculum for law enforcement departments on how
to go about enforcing S.B. 1070. The outline
for the program shows that AzPOST will be laying out guidelines for
what constitutes “reasonable suspicion,” but Mann wasn’t able to tell us
yet what they will be. He did say, however, that they would focus on
how to avoid profiling while upholding the law. “While I can’t tell you
what will be the list of factors for reasonable suspicion,” he said,
“I can tell you one factor that will not be listed is race, nationality
or ethnicity.” Still, ultimately individual departments will have
control over what they consider “reasonable.” Mann told us: “Making use
of the training is individual agencies’ decision. But we happen to
believe that everybody will use our product, because it’s a good
product.”

Some of the same criticism that is aimed at state law enforcement on
the subject of profiling also can be leveled at the feds. Under section 287(g)
of the federal Immigration and Nationality Act, state and local
officials can be authorized to enforce federal immigration law after
receiving four
weeks of training
. But listed in the training manual for that
program, according to the New York Timesare
several factors
that authorities can use to begin questioning an
individual’s immigration status that include: “Does the subject have a
thick foreign accent or appear not to speak English?” and “Does the
subject’s appearance look like it is ‘out of place’?” According to the Times,
federal officials said they were revising the manual and that several
other factors must be considered.

The Arizona law also prohibits state or local officials from
prosecuting illegal immigration “to less than the full extent permitted
by federal law.” As Chin and three other Arizona law professors wrote in
a recent
report
: “Since federal law permits race to be a ‘relevant factor’
in determining reasonable suspicion for stops and inquiries, the
combined effect of these provisions may be to require state
actors to use race to the full extent permitted by federal law.”

According to the Supreme Court case United
States v. Brignoni-Ponce
, “Mexican appearance” can be a factor
justifying an immigration stop. But 24 years later the Ninth Circuit
Court of Appeals, in United
States v. Montero-Camargo
, ruled that “Hispanic appearance is not,
in general, an appropriate factor” for determining suspicion, especially
in areas with large Hispanic populations. “This makes it more complex
whether race can be a factor in an immigration stop in the Ninth
Circuit’s jurisdiction, which includes Arizona,” Johnson told us.

So, does the law allow racial or ethnic profiling? It may, though no
more than it’s already allowed under current law. But that’s a different
question from whether or not such profiling will be used to a greater
extent by Arizona law enforcement as a result of the legislation, which
remains to be seen.

Sylvia
Allen’s Claims

State Sen. Sylvia Allen, who voted in favor of the bill, wrote a defense
of her vote which has been widely forwarded as a chain e-mail. Some
readers have asked us whether Allen is the real author of the piece,
because they find the letter’s many punctuation errors suspicious. She
is, but Allen’s office told us that an early draft of the piece was
leaked, possibly by a family member. They sent us a corrected version,
but the one with errors is already enshrined in the e-mail.

In her piece, Allen cites complaints by Arizona ranchers about
violence and vandalism on their property committed by “illegals.” She
refers to testimony by several ranchers, who addressed
the Arizona Senate on April 13, 2010. But the testimony makes it clear
that the violence is not committed by people who try to emigrate to find
work, but by gangs who exploit those people to move drugs. Patrick Bray
of the Arizona Cattlemen’s Association told us that the drug cartels
responsible for violence on the Arizona border are not “immigrants” –
they are headquartered in northern Mexico, but move back and forth
across the border for drug trade. They go 30 or 40 miles into the United
States, Bray told us, and then head back south. They will use would-be
immigrants to move drugs across the border under threat, but the gang
members themselves are not trying to live or get work in Arizona, which
is the situation covered by the new law. It’s “a complete coincidence”
that the law was passed while ranchers were trying to raise awareness of
border violence, Bray told us.

The ACA doesn’t take a position on the immigration law, Bray said,
though its members appreciate the way it’s drummed up interest in
Arizona. The law addresses a separate issue that may not have any effect
on the violence Allen cites. “Our focus is completely on border
security,” he said. “The law didn’t put any resource or assets on the
border, but it certainly has gotten the attention of the nation and this
administration. … We would agree that securing the border is a separate
issue from immigration reform [but] we do have significant trouble with
a very well-organized criminal syndicate down in Mexico.”

Allen’s piece conflates border security with immigration law, and
undocumented immigrants with Mexico-based criminal organizations. These
are related — the
same groups
may be involved in smuggling humans and drugs across
the border. But they are not the same thing.

The e-mail has several factual problems, as well. It says that
“rancher Rob Krantz [sic] was murdered by the drug cartel on his home
ranch.” The leading theory is that he was killed by a drug smuggler, but
the circumstances of Robert Krentz’s death are still under
investigation
. And if the theory proves true, this has nothing to do
with immigrants living in Arizona. The piece also references ranchers
finding “Koran bibles,” but there is no such thing – the Koran and the
Bible are different texts. Bray did tell us that it’s true that the
smugglers are not all of Mexican origin, and said that some were Middle
Eastern (others, he said, are Chinese or Russian). As for the statistic
that “In the last few years 80% of our law enforcement that have been
killed or wounded have been by an illegal,” an Arizona Department of
Public Safety spokesperson told us the department doesn’t  separate out
crimes that have been committed by citizens versus non-citizens. Allen’s
office told us that she wasn’t sure of the statistic’s provenance. “We
did manage to search out via newspaper and court convictions that 7 of
24 officers who were killed between 1998 and 2008 were killed by
illegals,” Allen’s assistant Karen Winfield said. “That’s nearly a third
during that time period. We are also working our way through public
testimony that was recorded at hearings here in the Senate to see if we
can pick up the 80 percent number there and figure out who said it.”

We would also note, as we have
previously
, that crime rates were at historic lows in 2008 in
Arizona, the most recent year for which figures are available. The
violent crime rate was the lowest since 1966, while the property crime
rate was the lowest since 1971.

by Viveca Novak and Jess Henig

Correction, June 4: We have corrected the name of the state board
that provides training for law enforcement officers in Arizona to
the
Arizona Peace Officer Standards and Training Board. We were missing the
word “Officer” in the original version of this story.

Sources

Silverleib, Alan. “Arizona
governor signs changes into immigration law
.” CNN.com. 1 May 2010.

Chin, Gabriel. Annotated
version of SB 1070
. Arizona Republic. Accessed 2 Jun 2010.

Interview with Ediberto Roman, professor of law, Florida
International University. 28 May 2010.

Interview with Lyle Mann, director, Arizona Peace Standards and
Training Board. 28 May 2010.

Arizona Peace Standards and Training Board. “Law
Enforcement Training on Immigration Laws Training Program Outline
.”
19 May 2010.

U.S. Immigration and Customs Enforcement. “Delegation of
Immigration Authority Section 287(g) Immigration and Nationality Act
.”
18 Aug 2008.

Archibold, Randal C. “Arizona
Law Is Stoking Unease Among Latinos
.” The New York Times.
27 May 2010.

Chin, Gabriel et al. “Arizona
Senate Bill 1070: A Preliminary Report
.” 23 May 2010.

United
States v. Brignoni-Ponce
. 422 U.S. 873. U.S. Supreme Court. 30 Jun
1975.

United
States v. Montero-Camargo
. No. 97-50643. U.S. 9th Circuit Court of
Appeals. 13 May 1999.

E-mail from Kevin Johnson, dean, University of California at Davis
School of Law. 28 May 2010.

Kelley, Jim. “State
Senator Sylvia Allen responds to SB1070
.” Tucson Citizen. 1
May 2010.

Interview with Patrick Bray, Arizona Cattlemen’s Association. 12 May
2010.

Francis, David. “Mexican
drug cartels move into human smuggling
.” San Francisco
Chronicle
. 31 Mar 2008.

Archibold, Randal C. “Ranchers
Alarmed by Killing Near Border
.” The New York Times. 4 Apr
2010.

Interview with Harold Sanders, Arizona Department of Public Safety.
26 May 2010.

Karen Winfield, assistant to Arizona State Sen. Sylvia Allen. E-mail
sent to FactCheck.org. 1 Jun. 2010.

Newton, Casey, and Ginger Rough. “Arizona
governor signs bill revising new immigration law
.” Arizona
Republic
. 1 May 2010.

State of Arizona. Senate
Bill 1070
. Enacted 23 Apr 2010, revisions enacted 30 Apr 2010.

Unlawful employment of aliens. 8
USC sec. 1324a
. Accessed 27 May 2010.

Forms for registration and fingerprinting. 8
USC sec. 1304
. Accessed 27 May 2010.

Hsu, Spencer S. “U.S.
police chiefs say Arizona immigration law will increase crime
.” Washington
Post
. 27 May 2010.

Nowicki, Dan. “Claims
muddle debate over law
.” Arizona Republic. 16 May 2010.

Archibold, Randal C. “Arizona
Law Is Stoking Unease Among Latinos
.” The New York Times.
27 May 2010.

Novak, Viveca et al. “Sunday Replay.”
FactCheck.org. 3 May 2010.

Giovagnoli, Mary, director, Immigration Policy Center. Interview with
FactCheck.org. 3 June 2010.

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