Category Archives: Immigration Law

Our Voice: Illegal Immigrants And Arizona’s Controversial Immigration Law

Someone asked me this morning why it wouldn’t be a good thing to deport all of the illegal immigrants back to wherever they belong… and it struck me that this individual was probably referring to the recent decision on the controversial Arizona state immigration law.  I told this good hearted soul that in theory removing illegal immigrants isn’t a bad thing at all, what makes the Arizona Law so controversial, amongst other arguments, are two critical things:

First, in what manner does the law choose to pursue the identification of illegal immigrants? Second, what about the power to establish a consistent immigration policy specifically granted to the Federal Government in the U.S. Constitution?

Just yesterday, Arizona Federal Judge Susan Bolton decided to block the looming activation of some key components of Arizona’s proposed new anti-immigration legislation.

The provisions blocked include:

  • Provisions which would require Arizona law enforcement to investigate the immigration status of all individuals they stop if the officers simply suspect that they are illegally in the United States;
  • Mandatory detention of individuals stopped, even for minor offenses, which would usually result in a ticket, if they cannot verify on the spot that they aren’t in the United States illegally;
  • Provisions for arrest without any warrant of anyone deemed by police to be illegal.  Other parts of the law will go into force as determined by the Arizona State Legislature.

I explained this to my good friend, whom I know has a good heart and ethical soul, and yet he seemed unconvinced… His response was, so what’s the problem?  I couldn’t believe it, I looked at him and asked, so its ok for police to stop someone because they “look” like they might be illegal?  What about American citizens of Hispanic or Latino descent? Legal resident aliens? How about tourists from other countries? Why should they have their rights violated?  The new law would demand that they have their identification on them at all times or face mandatory incarceration… not the simple ticket for driving without your license, for example… My dear good hearted friend looked confused for a second, and then responded… You may have a point, but it still seems like a good idea to remove illegal immigrants…

Still quite flummoxed by good hearted’s continued resistance, I resorted to the Constitutional argument, recognizing that as a lawyer, my dear friend would have to relent and recognize the controversy of the issue.  I told him that all that the Federal Judge did was assert a basic principle of Constitutional law, that the federal government has the power to create and implement immigration policy for all the states collectively. Article 1, Section 8 of the US Constitution gives Congress the authority “to establish an uniform Rule of Naturalization.” Many folks think that it was one of the most logical and practical concepts enshrined by the Founders. I mean, the United States is a big place… as big as all of Europe, and that size is a strength, and also a challenge.  It seems like pretty simple common sense that all of the states should utilize a common immigration policy, as once someone has physical access to one state, they have access to them all, unless we want to require border checks in between every individual state… but that was off the point…

Good Hearted did relent, he agreed that the policies seemed a bit over the top, and probably unconstitutional.  He did, however, still argue that deporting illegals was a good idea… and lot’s of people agree. Immigration reform is a hot topic, and one supported by everyone from liberals to hard core conservatives and libertarians… the issue is how to reform it. Perhaps the real value in this Arizona law is to raise the issues, and give an example of how we do not want that reform accomplished.

Ambrose Law Group

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Our Voice: Legalized Racial Profiling in the U.S.?

“They come to our country and refuse to learn our language.”

“They work for less money than we can afford to because they’re used to a lower standard of living.”

“They raise the costs for the rest of us in so many areas, and then just send they money they make back to their home country.”

Are the above quotes about today’s problems with illegal Mexican immigrants?

Or do they reference Benjamin Franklin’s fears of German immigrants back in 1751, when he said:

“Why should Pennsylvania, founded by the English, become a Colony of Aliens, who will shortly be so numerous as to Germanize us instead of our Anglifying them… ?”

As Franklin’s quote and the many other letters he wrote about the German immigrant problem show, the idea of the United States losing its identity to “outsiders” of one race or another is not a new one.  While most of us are proud that our country is a “melting pot,” some also fear that one ingredient might become too strong and ruin the rest of the soup.

Benjamin Franklin feared that the overwhelming ingredient would be German.  That fear didn’t come true.  Today, new legislation passed in Arizona shows that the feared ingredient is Mexican.

Arizona’s new law (SB 1070) requires local and state police to stop everyone they “reasonably suspect” is an undocumented immigrant.  If the suspect fails to produce papers to prove their legal right to be in the country, the police must arrest them.

This, of course, begs the question:  What does an undocumented immigrant look like?

When asked, Arizona Governor Jan Brewer could only say “I don’t know what an undocumented person looks like.”

More importantly, what factors need to be present for a police officer to have “reasonable suspicion” that a person is an undocumented immigrant?  Now, to be fair, the bill does state that the police “may not solely 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.”  Without this language, the law would never pass the review of the Supreme Court.  With it, the law probably will.

The key word there, though, is “solely.”  If a police officer stops someone of Mexican descent, Courts will throw out the arrest if the officer admits that he did it only because the person looked Mexican.  Is a policeman really going to say “Oh yeah, I stopped that guy because he looked Mexican.”  Isn’t it more likely he’d have a whole laundry list of other factors that he can claim he considered?  All they need to do is come up with one, and the decision to stop the person wasn’t “solely” based on national origin.

  • “He was driving a van without windows in the back, and those are often used to transport illegal immigrants.”
  • “He was on the corner outside Home Depot, and illegal immigrants often wait there to be picked up for home improvement projects.”
  • “He was buying a Spanish-language newspaper, and illegal immigrants are less likely to be able to speak the English language.”

Which of the above would be enough?  Who knows?  The law definitely doesn’t tell us, but experience says that Courts will give the police a free pass on every one.

What’s worse is that a person who is stopped has to show papers to prove their citizenship.  Anyone who has filled out employment paperwork knows that a drivers’ license alone is not proof of citizenship.  But how many of us walk around with our passports or birth certificates?  If you look like an undocumented immigrant and want to visit Arizona, now is your chance to potentially become national news.

At the end of the day, it’s clear exactly what this legislation is about.  If you’re tall, blond-haired, and blue-eyed, it’s pretty unlikely the Arizona State Police are going to stop you on suspicion of being an undocumented Swedish immigrant, even if you’re speaking Swedish right in front of them.  This is legislation born of fear: the same fear that consumed Benjamin Franklin when he warned of the impending German takeover of our culture.  It’s the same fear that led to the holding of U.S. Citizens of Japanese descent in concentration camps during WWII.  As foretold by Franklin D. Roosevelt:

“So, first of all, let me assert my firm belief that the only thing we have to fear is fear itself—nameless, unreasoning, unjustified terror which paralyzes needed efforts to convert retreat into advance.”

When we let fear write our laws, we erode the fabric of what this great country is all about, whether it’s fear of losing our national identity or fear of terrorist acts.  When we use this fear to justify stripping U.S. citizens of their right to walk the streets without having to show their passport to every cop who asks to see it, we betray everything that America has fought so hard to be.

You see, it’s not the rights of the undocumented immigrant that are at stake here.  It’s the rights of the legal immigrant who still has an accent and other features he can’t change that are at issue.  This law legalizes his harassment by the police, who are now required to stop and question him to determine his legality.  Is that how we welcome our immigrants into the melting pot these days?  By turning up the heat?

bill@ambroselawgroup.com

I’d love to hear what you think.  Please feel free to comment and respond below, whether or not you agree with what I’ve written.

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Filed under Immigration Law, Our Voice - Op/Ed, Search and Seizure