Immigration enforcement laws
Immigration enforcement laws

In April 2010, Arizona passed two bills addressing immigration, SB 1070 and HB 2162. These measures introduced new state standards, penalties, and offenses for the enforcement of immigration laws and were set to take effect on July 29, 2010. The legal challenge filed by the Department of Justice before the laws could take effect concerned their constitutionality. On July 28, the request for an injunction was granted in part and the provisions relating to state law enforcement officials determining immigration status during any lawful stop were enjoined.; To qualify for the card, you must submit your alien registration documents.; If you are an unauthorized alien, you are not allowed to apply for employment.; and permission for warrantless arrests if there is probable cause the offense would make the person removable from the United States. On November 1, 2010, the 9th U.S. Circuit Court of Appeals heard Arizona Gov. Jan Brewer's appeal of the injunction, which was first issued on April 10 by Judge Susan

In April 2010, Arizona enacted two laws addressing immigration, SB 1070 and HB 2162. These laws added new state requirements, crimes, and penalties related to the enforcement of immigration laws and were to become effective on July 29, 2010. Before the laws could go into effect, the U.S. Department of Justice filed a lawsuit asking for an injunction against these laws arguing that they are unconstitutional. On July 28, Judge Bolton granted the request for an injunction in part and enjoined those provisions related to state law officers determining immigration status during any lawful stop; the requirement to carry alien registration documents; the prohibition on applying for work if unauthorized; and permission for warrantless arrests if there is probable cause the offense would make the person is removable from the United States. Arizona Governor Jan Brewer appealed the injunction and arguments were heard by the 9th U.S. Circuit Court of appeals on Nov. 1, 2010. On April 11, 2011, the court upheld the injunction.

Note: In January, the country's highest court held hearings on a separate Arizona legislation passed in 2007 that compels employers to use a voluntary federal work verification system and punishes businesses that hire illegal immigrants. The Supreme Court upheld Arizona's 2007 measure requiring E-Verify usage by employers, which is punishable by suspension or loss of their business license, on May 26, 2011. The Immigration Reform and Control Act of 1986 (IRCA) forbids states and local governments from imposing civil or criminal penalties on those who employ, recruit, or refer for a fee unauthorized aliens. Citation: 8 U.S.C. 1324a(h). The Supreme Court, in a 5-3 decision, agreed that the language in IRCA did not preempt the state because it was a licensing regulation permitted by the law. “Although Congress had made the program voluntary at the national level, it had expressed no intent to prevent States from requiring participation,” the court said. The ruling on the case is “CHAMBER OF COMMERCE OF UNITED STATES OF AMERICA v. WHITING ( No. 09-115)

Governor Brewer signed Senate Bill 1070, the "Support Our Law Enforcement and Safe Neighborhoods Act," on April 23, 2010. The Arizona Legislature passed SB 1070 on Monday, April 19, and Governor Brewer approved it later that day. Trespassing, harboring, or transporting illegal immigrants is now a crime in Arizona under SB 1070.

The first instance of its kind in the United States, if it is lawful, appears to be the trespassing provision. Only a few states have attempted to establish a state trespassing penalty for unlawful presence, according to NCSL's most recent research. Bills were proposed but failed in Arizona in 2008 and 2009; Texas in 2009; Colorado in 2008 and in California in 2007.

Arizona Peace Officers Standards and Training Board to develop a training program for law enforcement personnel and agencies that would ensure they implemented SB 1070 by federal immigration laws, protected the civil rights of all people, and respected the privileges and immunities of the United States citizens. The executive order also demands that the board provide clear standards for what constitutes reasonable suspicion. The board is to submit a list of the various forms of identification that establish a presumption that someone is not an illegal immigrant in the United States.

Arizona SB1070 has come under fire for both the implementation and constitutionality of the law. The expenses to the state in enforcing federal immigration law, especially during economic downturns; how "reasonable suspicion" of immigration status will be interpreted; and the strict list of documents that may be used to establish lawful presence are just a few of the issues. Constitutional concerns have been raised by legal challenges, including due process, equal protection under the 14th amendment, the prohibition on unreasonable search and seizure under the 4th amendment, and preemption under the Supremacy Clause of the U.S. Constitution.

During the legislative session, which lasted from April 24 to April 29, the Arizona Legislature passed and the governor signed HB 2162, which included provisions intended to address racial profiling. HB 2162 modified SB 1070 to state that law enforcement officials may not use race, color, or national origin when implementing the provisions of the bill unless permitted by the US or Arizona Constitutions. The revised law clarifies the original law's language concerning "probable cause" by restricting state and local police to making only reasonable attempts to determine someone's immigration status while conducting a lawful stop, detention, or arrest (the previous wording referred to a "lawful encounter"). HB 2162 also required that a lawful stop, detention, or arrest be in the execution of any other law or city ordinance of a county, city, or town of this state.

HB 2162 cut the initial penalties in SB 1070 for state or local authorities sued by legal residents and found guilty of restricting enforcement of federal law. The fine for individuals who fail to complete or carry an alien registration card was changed from $500 to $100 for the first offense under the legislation.

On July 29, 2010, the bill was due to go into effect (90 days after the conclusion of the regular legislative session.) On July 28, 2010, certain provisions of the legislation stayed.

Similar Bills 

Similar bills have been introduced in six state legislatures as of November 10: South Carolina, Pennsylvania, Minnesota, Rhode Island, Michigan, and Illinois. On April 29, Representative Eric Bedingfield proposed HB4919 in South Carolina; on May 13, Senator Grooms sponsored SB 1446 in Illinois. On May 5, Pennsylvania Representative Daryl Metcalfe introduced House Bill 2479. Minnesota Rep. Steve Drazkowski introduced HB 3830 on May 6. On May 18, Rhode Island Representative Palumbo introduced HB 8142. On June 10, Michigan Rep. Meltzer introduced H 6256; S 1388 was put forward by Senators McManus, Cropsey, Allen, and Brown on June 15th.; On August 11, Representative Agema sponsored House Bill H6366. On November 3, Representative Ramey introduced H6937 in the Illinois Senate. (The legislative sessions in Minnesota, Rhode Island, and South Carolina have ended.)

Resolutions

Arizona's immigration law has been the subject of two resolutions in the state legislature. The California Senate, Illinois House, and New York Senate have introduced resolutions opposing the Arizona legislation, whereas Tennessee has passed a resolution in support of it. The Michigan House has introduced both pro-and anti-law proposals.

In response to recent Arizona state laws relating to illegal immigration, the California SCR 113 urges various state and private organizations to cease financial assistance to Arizonan firms. The resolution was submitted on June 23. 

The Illinois HJR 119 asks the Arizona Legislature to repeal SB1070 and urges the president and Congress to act quickly on comprehensive immigration reform. The bill was introduced on May 4, passed by the House on May 7, and is now pending in the Senate.

HR 291 in Michigan asks for the repeal of SB 1070 and urges companies and public and private organizations to avoid doing business with or in Arizona. On May 26, the resolution was submitted.

The resolution, which was passed on July 4, expresses support for Arizona's new legislation regarding immigration and cautions against any boycott of Arizona companies. The bill was introduced on June 9.

The New York SR 5081 denounces racial profiling as a policy and requests collaboration on all levels of government to pass immigration laws and policies. The measure was passed on May 4.

Tennessee HJR 1253 congratulates Arizona on its Centennial and honors the state legislature and Governor Jan Brewer for their efforts to defend its people and border. On June 19, 2010, after becoming law without the governor's signature, HJR 1253 was put in motion.

Court Challenges

The first challenges to the law were filed by three people (two police officers and one researcher) on behalf of the Coalition of Latino Clergy, as well as equal protection, due process, and preemption under the Supremacy Clause. The National Immigration Law Center (NILC), a group of attorneys, and MALDEF filed a class-action lawsuit against the state of Arizona on behalf of several organizations. They are seeking an irreversible injunction. According to the lawsuit, SB1070 is unconstitutional because it violates the Supremacy Clause, the First Amendment right to freedom of speech, the Fourth Amendment's guarantee of protection from unreasonable searches and seizures, and the Equal Protection Clause article II section 8 of Arizona's constitution. The complaint was filed May 17 in the U.S. District Court for the District of Arizona.

On July 6, 2010, the US Department of Justice filed a lawsuit against Arizona Governor Jan Brewer and other state officials in the US District Court for the District of Arizona seeking a permanent injunction of SB 1070. The lawsuit claims that Arizona SB 1070 is preempted by federal law (8 U.S.C. 1101, and following sections) and by US foreign policy, both of which are unconstitutional, according to the Supremacy Clause and the Commerce Clause of the United States Constitution.

On July 15, the earlier lawsuits filed in Utah, Colorado, and New Mexico were argued before a federal court judge in Arizona. The requests for preliminary injunctions and to dismiss are heard by U.S. District Judge Susan Bolton.

On July 28, the request for a preliminary injunction was partially granted and partly denied by Judge Bolton. The following sections were denied legal force (on appeal) and remain set aside: Section 2B, which required law enforcement officials to determine immigration status in every lawful stop.; Section 3, creates state crimes and fines for failing to carry government-issued alien identification documents; Section 5 makes it a crime for an unauthorized alien to apply for or perform work in Arizona without the proper documentation.; and Section 6 allows an officer to arrest someone without a warrant if the officer has reasonable cause to believe the individual has committed a public offense that makes him or her removable from the United States.

Summary of SB 1070 and HB 2162

Immigration Law Enforcement

Prohibits state and local law enforcement from interfering with the enforcement of federal immigration laws.

The bill prohibits state and local law enforcement from asking about a person's immigration status as part of a lawful stop, detention, or arrest in the implementation of any other local or state legislation or ordinance where there is reasonable suspicion that the individual is an alien who is unlawfully present unless it would impede or obstruct the investigation.

Requires the immigration status to be verified with the federal government for anyone who is arrested.

The law also forbids police from taking race, color, or national origin into account when implementing these provisions. , except as permitted by the US or Arizona Constitutions.

These IDs are presumed to be valid: Arizona driver's license or ID; tribal enrollment card or ID; and valid federal, state, or local government-issued identification, if the issuing entity demands proof of legal presence before issuance, among other things.

These rules do not apply or authorize REAL ID.

Allows lawful residents to sue states or municipalities that ban the enforcement of federal law. Officers are indemnified unless they acted in bad faith. Each day the policy is in effect, violating organizations must pay a civil penalty of at least $500 for each day the policy is in effect.

Failure to Comply With an Alien Registration Document

8 USC 1304(e) or 1306(a), depending on the jurisdiction, is a federal statute that establishes state-level penalties for providing stolen identity information. Stipulates that immigration status may be determined by a person empowered by the federal government to verify an alien's legal status, or U.S. Immigration and Customs Enforcement, or U.S. Customs and Border Protection.

8 USC 1304(e): Aliens must produce their registration or receipt cards, and penalties are incurred if they don't. Every alien who is 18 years of age or older at all times should have with him and in his possession any certificate of alien registration or alien registration purchase card issued to him under subsection (d) of this section. Any non-citizen who does not follow the provisions of this subsection shall be fined not more than $100 for each offense or sentenced to thirty days in prison, or both. 8 USC 1306 (a): Willful failure to register. Any alien who is required to submit an application for registration and to be fingerprinted in the United States who willfully fails or refuses to do so, as well as any parent or legal guardian who is obligated to apply for the registration of a foreign national, shall face a misdemeanor charge and may be fined not more than $1,000 if convicted or be imprisoned not more than six months, or both.

Unlawfully Collecting Passengers for Work

It is a class 1 misdemeanor to hire on a street, road, or highway if the car prevents or inhibits normal traffic movement.

The bill states that police cannot consider race, color, or national origin when implementing the provision except as permitted by the U.S. or Arizona constitution.

Unlawful Transporting or Residing with Illegally Present Aliens

It is a felony in California for someone guilty of a criminal infraction to transport an alien, conceal, harbor, or shield one. If a person carelessly disregards the fact that he or she is here illegally, it is also against the law. The vehicle may be seized or immobilized. Child protective services, first responders, ambulance, and emergency medical technicians are exempt. Offenders are guilty of a class 1 misdemeanor and face a fine of at least $1,000 if they do not comply with the regulations.

This bill prohibits law enforcement from using race, color, or national origin to enforce the provision except as permitted by the US or Arizona Constitution.

Employer Sanctions

The employer will likely argue that they were entrapped, and therefore provided the affirmative defense of being entrapped. However, they must acknowledge the major sections of the violation. The burden of proof rests with the business to demonstrate that law enforcement officials caused the violation.

Employers must maintain a record of employment verification for the duration of an employee's job or for three years, whichever is longer.

Miscellaneous

The bill also allows peace officers in the enforcement of human smuggling laws to stop and arrest someone if they have a reasonable suspicion that the person violates any civil traffic law.

Penalties and fines under this bill are to be allocated to the Department of Public Safety's Gang and Immigration Intelligence Team Enforcement Mission Fund.

Links

https://srcd.onlinelibrary.wiley.com/doi/10.1002/sop2.1

https://www.ncsl.org/research/immigration/analysis-of-arizonas-immigration-law.aspx

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