By Linda Rahal
Chief Operating Officer
Trow & Rahal, PC
Issues around immigration have been making headlines in the last few months, primarily due to the recently passed Support Our Law Enforcement and Safe Neighborhoods Act, introduced as Arizona Senate Bill 1070.
Almost everyone, it seems, has an opinion about the law.
In the Miss America Pageant, a judge asked the runner up contender from Oklahoma a question about the law in Arizona that focused on whether it allowed ethnic profiling.
She said, “I’m a huge believer in States’ Rights. I think that’s what is so wonderful about America, and think it’s perfectly legal for Arizona to create that law. But I’m against illegal immigration, but I’m also against racial profiling, so I see both sides of this issue.”
A second grader in Maryland asked First Lady Michelle Obama what would happen to her mother if she doesn’t have the right papers.
“My mom … she says that Barack Obama is taking everybody away that doesn’t have papers.”
Mrs. Obama replied: “Yeah, well that’s something that we have to work on, right? To make sure that people can be here with the right kind of papers, right? That’s exactly right.”
The girl said: “But my mom doesn’t have any …”
Mrs. Obama replied: “Well, we have to work on that. We have to fix that, and everybody’s got to work together in Congress to make sure that happens. That’s right.”
Since that comment, many have asked whether sufficient “reasonable suspect” would have been raised to arrest the child’s mother if she had been in Arizona under the new Arizona law.
Understanding the Law
These are just some of the issues raised by the Arizona law. To assess what the law allows, it is necessary to read what the law says. There was a first draft of the law, and then there is an amended law.
The first draft of the law said:
For any lawful contact made by a law enforcement official or agency of this state or a county, city, town or other political subdivision of this state where reasonable suspicion exists that the person is an alien who is unlawfully present in the United States, a reasonable attempt shall be made, when practicable, to determine the immigration status of the person.
In fact, this first law was quite broad as it referred to “any” law enforcement official or agent of the state or county or city or town or other political subdivision shall make a reasonable attempt to assess immigration status where there was any lawful contact.
This would presumably include someone coming forth as a witness to a crime, or talking to a crossing guard, or any similar daily contact with a state or local agent.
The law was subsequently tightened up and the amended reads:
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 A COUNTY, CITY OR TOWN OF 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. . . . A law enforcement official or agency. . . 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 amended version is definitely tighter, but it doesn’t resolve all of the controversy. For instance, consider the example above of a crossing guard. If the guard stops someone from walking against his direction, is that a lawful stop? Is the crossing guard a law enforcement official?
I don’t know the answer to this, but it highlights the fact that some questions still exist with regard to how the amended law is written.
Other Questions to Consider
As I read through this law, several questions come to mind that I feel need to be addressed.
1. What is really a STOP under the law?
Presumably, this could be for jaywalking or trespassing, if that is an offense under state, county or municipal law in Arizona. Who gets stopped for these offenses? Probably not everyone, but they can be used now as a means to check the legal status of someone.
2. What is reasonable suspicion that the person is an alien AND is unlawfully present in the United States?
Is the fact that a person is not carrying a driver’s license or other I.D. sufficient for reasonable suspicion? It seems to be under this law.
3. Another concern is having police or a law enforcement official of the state, county, city, town or other political subdivision within Arizona check the lawful status of the people stopped.
The law indicates that a person will be presumed legal if they can present the following:
• valid Arizona driver license;
• valid Arizona non-operating identification license, valid tribal enrollment card or other form of tribal identification;
• any valid U.S. federal, state or local government issued identification.
There are so many other types of documents that can be shown to establish lawful status in the U.S. However, many of them are somewhat obscure such as a receipt to show that you have an application to adjust status to permanent residence pending with the U.S. Citizenship and Immigration Service (CIS); or you have a receipt to show that your request for an extension of your nonimmigrant visa status is pending with the CIS.
If someone presents one of these types of documents, what will the law enforcement agent do? Likely bring the person into custody and then have it assessed. Presumably a person could be detained overnight to assess one’s lawful status.
4. Also, does this law now mean that every person in Arizona has to carry I.D. with them at all times?
What if someone out jogging or walking a dog gets stopped for jaywalking or trespassing and doesn’t have an I.D. on him? Does this person get taken into custody?
While the law has been tightened, the intent of the original law remains the same.
Arizona was forced to amend it so that people could not be stopped based solely on racial profiling. In a statement by Governor Jan Brewer on April 30, 2010, she stated that the changes in the law “make it crystal clear and undeniable that racial profiling is illegal, and will not be tolerated in Arizona.”
Is this really crystal clear? How is a law enforcement officer going to make a decision on whom to STOP for minor infractions of city or local code?
There is still much to be concerned about with this law, despite the attempt to restrict it to law enforcement agents instead of any state or local agent, and despite the statement in the law that race, color, and national origin cannot be used.
About Linda Rahal
Linda Rahal is an immigration attorney and the Chief Operating Officer of Trow & Rahal, which represents companies and individuals in navigating the immigration process for visas, green cards, citizenship, and other immigration related matters. The firm also assists companies in preparing corporate immigration policies, conducting I-9 and compliance audits, and developing immigration related strategies for owners and employees.
Linda received her JD degree, magna cum laude, from the American University, Washington College of Law in 1992; and earned her BA degree, cum laude, in International Relations from Tufts University in 1986. Linda has been a member of the American Immigration Lawyers Association (AILA) for over 10 years. She is also a member of District of Columbia and Maryland Bar Associations, as well as the American Bar Association.
Linda’s reputation within the legal community has led to selection by her peers for inclusion in several prestigious publications, including The Best Lawyers in America, the International Who’s Who of Business Immigration Lawyers, and the Martindale-Hubbell Bar Register of Preeminent Lawyers.