Friday, April 23, 2010

Arizona Immigration Law SB 1070

The "Support Our Law Enforcement and Safe Neighborhoods Act," Arizona SB1070, just [update here; update on proposed change here] signed by Governor Jan Brewer, is the "toughest" anti-immigration state law in the United States.

Constitutional challenges are sure to follow. [update here; DEPARTMENT OF JUSTICE lawsuit analysis update here].  UPDATE: PORTIONS OF STATUTE ENJOINED BY FEDERAL DISTRICT JUDGE.

State laws seeking to regulate immigration status are always subject to preemption challenges given the federal government's plenary power over immigration and nationality.  Moreover, equal protection challenges to immigration regulations by states will be scrutinized more carefully by the courts than regulations by the federal government.  A good overview of these issues is by Juliet Stumpf, States of Confusion: The Rise of State and Local Power over Immigration, available on ssrn here.


The new Arizona law allows state officials to inquire into the immigration status of any person based upon "reasonable suspicion":

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.

The statute also prohibits localities from adopting any policies that allow less than full enforcement of the immigration laws, thus prohibiting so-called sanctuary provisions.

Additionally, section 13-1509 provides that a person is guilty of the crime of trespassing if the person is both:  "present on any public or private land in this state" and in violation of federal immigration statutes.  The statute further provides that there is no eligibility for "suspension or commutation of sentence or release on any basis until the sentence imposed is served."

The statute also has an anti-solicitation of workers (often called day laborers) provision of the type that has been held unconstitutional under the First Amendment, see Town of Herndon v. Thomas, MI-2007-644 (Va. Cir. Ct. Aug. 29, 2007) Comite de Jornaleros de Redondo Beach v. City of Redondo Beach, 475 F. Supp. 2d 952, 962 (C.D. Cal. 2006).

The statute has already garnered some critical commentary from our colleagues on Immigration Law Prof.  MALDEF has issued a statement that it will challenge the statute.  The United States Department of Justice will reportedly examine the constitutionality of the statute as instructed by President Obama.


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Very good law. Everywhere around the World apply severe sanctions to illegal immigrants.
Why the United States have to be different?. What is the behaivor of Mexico with the cuban immigrants?; they apply hard hand over illegal cubans who are only looking for freedom, arrest them and send them back to Cuba, so, why they ask for a different behaivor?
The new Immigration Law S.B. 1070, is something good for our Country, to protect citizens against many delinquents and gangs, who are coming to U.S. to make our life in danger.
Good for the Arizona Governor, she have my support... and all states of USA have a good sample to apply the same law.

Posted by: Luis Regino Delgado | Apr 24, 2010 3:53:24 AM

The Constitution is only a partial arbiter of this debate. Ultimately, as recognized in our Declaration of Independence, people have a right to protect themselves by force when their government fails to do so, as it clearly has to date. Representative Steve King of Iowa has noted that illegal aliens have caused 12 death per day to US citizens plus another 13 per day from drunk driving or just over 10,000 per year. We went to war over 3600 deaths in 9/11 so if anyone thinks citizens in the Southwest are not reaching a boiling point, just watch.

Posted by: mike | Apr 24, 2010 4:28:03 PM

I teach college in Arizona. Many of our students are sons and daughters of parents who brought them here when quite young. These children went through K-12, and entered and finished college. Many of them were the finest students I have ever had. Prepared, ready to work, and never had to be pandered to and pampered like ill prpared students who cannot read or write past the 7th grade level, and tell me what they do and do not need to know for college. Once through 12th grade, or college, wiht high marks, these graduates have no where to go. They are the future engineers, doctors, lawyers of this country working at the drugstore, construction. They are not "taking jobs" from"us". They ARE now us. There is no "home" to go to in Mexico. What you are asking for with a law like this is to ferret out and deport upstanding people who want no more than to participate. The law is terrifying mothers who will not now bring infants to the hospital until it is costly and possibly too late to save them. The law is preventing people from going to the police and reporting real crime in their neighborhoods because they are too scared to be a witness. The law is making children afraid of those who should protect them from harm. The people I know here in Arizona are upstanding and hard working, pay taxes. There are gangs and drugs, and crime in every country. And plenty of US citizens are involved.

My father was Jewish in Lithuania, where people were arrested because they "looked Jewish". How about arresting people because they look like mortgage brokers. They are the ones that brought this country to the brink of a recession, cost thousands of people their retirement and their homes. THEY are the criminals that don't pay their taxes, and rip the rest of us off.

This law is not about immigration. If the US was really concerned about immigrants, then the US companies in Mexico would pay a living wage so people would stay home. If the US was really concerned then it would not support dictators in Central America that people have needed to flee from. This law ia about posturing. There is no money to support our police force in Arizona to do the patrolling they need for normal crime. Now, that money is divided by chasing after students in school, and workers in our work force. I hope that your skin is not brown, because if it is, you will probably be stopped and asked for your papers, just like in Nazi Germany. God Bless America, it needs it.

Posted by: inArizona | Apr 25, 2010 5:24:55 PM

Next time I see an American in Mexican beaches, I will approach and ask for proper ID if they dont have any legal pasport, we will kick ther butts of our land!!This wouldnt be fair right?? Who do you think you are for drawing lines in the world, GOD is soo mad with USA, God may have mercy on you, not all mexican enter USA seeking for a better way of life, for dreams of having a job, house and medical care for their families, there are a lot of us who only like to shop and spend our money in your country!!! Just look around? What do you see? Who's picking tomatoes, oranges, building houses, roads?? Arizona Governor, why are you doing this?? You are causing hate between races, mostly hate against mexicans, we are neighbors and neighbors are supposed to help each other.

Posted by: june | Apr 25, 2010 6:11:24 PM

"where reasonable suspicion exists that the person is an alien who is unlawfully present in the United States."

Just how would such reasonable suspicion be found? The statute gives no guidance to law enforcement officers on this point. I would like to see a good 4th Amendment claim on this statute (Terry and Beck).

Even more interesting would be if the appellate court instructed the Arizona leg to expand on this point.

Posted by: Darren | Apr 25, 2010 6:24:07 PM

One other point I would like to make about this statute. Many of those who support it are so-called 10thers. All about State's rights. Yet they also oppose state bills to legalize pot, gay marriage, physician assisted suicide, etc, etc. They hate activist judges on Roe V. Wade but have no problem with Citizens United or Caballes.

The lion's share of the blame for this has to lie with the media. How many times have we read a story or seen a telecast saying "the Republicans said x, the Democrats said y," now here is a Republican and Democrat to say why or why not.

Loving the Constitution must go beyond only loving it when unless its doctrine flies in the face of your personal interests.

Posted by: Darren | Apr 25, 2010 8:10:54 PM

It amazes me how mentally blind some people are. S.B. 1070 is not about sending Mexicans back to Mexico. The law is only referring to people (all races) that are breaking US immigration laws; that’s it! This give Law Enforcers 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.

Then you have publicity seekers like Al Sharpton that are trying to turn this into a racial issue. Sharpton himself is a raciest; otherwise he would be out of a job. This is not a racial issue; it’s strictly Law Enforcement against people breaking US laws.

Posted by: Ken | Apr 26, 2010 8:08:12 AM

WOW, after reading these comments, i am stunned as the audacity of it all. I have downloaded the SB 1070 in question, and find that this law complies with the U.S. Constitution, as well as with the federal immigration laws enacted but NOT enforced. Those whom are crying foul, are no more better than the socialists in office in washington d.c.
Arizona has to do something to combat the gangs, the lawlessness the drug and human importation into Arizona. The ones who oppose this law should be concerned with these issues, an not some generated fake issue that does not exist.
It is much as with ACORN, SEIU, and other socialistic groups.
Thanks Arizona for at least attempting to curb the violence.
Also, since the state line of Arizona does butt with old mexico, they have the right make such laws.

Posted by: RABBI JOSIAH | Apr 26, 2010 11:26:58 AM

I lived right next to San Isidro (border passing in San Diego) FewI had to show my green card to i times nmigration officers, it was part of the "coyote environment", they were always very descent with me (no problems) I had the same positive encounter with regular highway patrol officers during traffic violations or routing checks. I was alaways, treated with respect and courtesy. This is my own experience after living
near border, some 30 years ago (as hispanic), now I see that many police officers, and inmigration officers are of hispanic descend, I believed some radical groups are politizacing and inciting to violance this issue. Enforcing the law in the borders in necessary, and maybe too late, California and Texa must do the same. I WAS A LAWFUL RESIDENT NOW I AM A US CITIZEN.

Posted by: Luis E. Campos | Apr 26, 2010 11:43:07 AM


I’ve posted this elsewhere but:
I guess reasonable suspicion will be case by case (as with 4A cases), but here are some examples that might show probable cause: a person (or 300) is found to have used forged documents to get a job at Ranch Market; a u-haul truck is pulled over for a traffic violation and there are 67 people stuffed in the back; people are being held hostage by human smugglers because they haven’t paid their fee to those smugglers.

Granted, in each case one might want a bit more information (e.g., an admission from 1 of the 67 as to the fact that he was being smuggled into the county, which would cast suspicion on the other 66). All three examples are from the news in the last month.

Posted by: mahtso | Apr 26, 2010 12:25:21 PM

Reasonable suspicion is not just a hunch one has about something. It exsists when you can articulate, i.e.,form an opinion about the situation at hand and state your belief as to why a crime has, is, or will happen, and once again, it can not be just a mere hunch such as the color of one's skin. Arizona law enforcement deal with reasonable suspicion all the time, its the same standard for you and me when dealing with law enforcement.

Posted by: Davis | Apr 26, 2010 12:51:11 PM

Beck v Ohio: "good faith on the part of the arresting officer is not enough. If subjective good faith alone were the test, the protections of the Fourth Amendment would evaporate, and the people would be secure in their persons, houses, papers, and effects, only in the discretion of the police."

So, let's say there is a Home Depot where illegal immigrants hang out looking for work. This same Home Depot employees legal immigrants who gather outside wearing no uniforms on their lunch break.

The Arizona law basically states that law enforcement not only could but SHOULD go to both groups and demand proof of citizenship.

Now yes, reasonable suspicion is generally defined among LE agencies. But this law is different as it seems to single out a specific type of illegal immigrant, those from Mexico, South America, etc.

Plus, because there is no underlying reason to seize required, LEOs are at least encouraged or at most required to, whenever practical, to seize anyone who they reasonably believe to be illegal.

Therefore, the bill is vague on RS, therefore giving broad powers to LE, and negatively and disproportionally impacts a certain race of people (namely, Hispanics).

Whatever the intent of the legislature, and illegal immigration is a problem on many fronts, this law is just flawed. It is patently unconstitutional (imo) and should either be revised or struck down.

Posted by: Darren | Apr 26, 2010 6:58:26 PM

My partner's coworker asked her what she thought about this new law. The coworker is from the Dominican Republic (here legally) and he thought it was shameful and will be applied in racist ways. My partner feels the same way, seeing it as the government denying people rights and recognition, and then punishing them later for not being the "right" kind of person based on manufactured classifications.

She then asked him what he thought about same-sex marriage and other limitations applied to LGBT people. He was unable to answer her question, seemingly unable to apply the same frustration he felt just seconds prior.

I thought this was interesting parallel.

Posted by: Jen | Apr 27, 2010 7:31:18 AM

I am wondering how is the "not susspicious" aspect according this law. white and blue eyed people??? I am agree that every country must have laws that protect their citizens and safety but I this law is promoving racism.

Posted by: Frederick | Apr 27, 2010 8:53:32 AM

This New Law Is Not Right For Mexicans. Some Mexicans Have Been Here For A Long Time. Their Just Here To Work So They Can Have A Money And A Better Life. Is Not Right That Now They Made This Law For Mexicans.

Posted by: TRAVIS | Apr 27, 2010 9:43:13 AM

Immigration is a tradition in Human history. Immigration was everywhere even before Laws were created. If you check the local History you will realize that the Native American (on both sides of the current border) were there and aliens coming from the North became -with violence- the owners of their territories. Do you believe Native Americans requested their documents to enter into their territories?
Immigration is only one. With documents or without. Immigrants/workers benefit all here, there and in between. But now after centuries of getting the benefits Arizona realize its crisis and want to fix it budget at the Immigrant expense. That's using humans as commodities.

Posted by: f | Apr 27, 2010 10:23:58 AM

If you are in the country legally you have nothing to be concerned about, but if you are in the country illegally then you should be worried. I don´t think they are doing this out of malice just to harrass people of latin origin, it´s because of the problems that are happening, the violence and bottom line they are upholding the current immigration law. In most Latin countries the laws are a joke and are not upheld but in the states they are and if you are in this country following the laws is something you should respect and get used to.

Posted by: Ricardo | Apr 27, 2010 12:57:51 PM

I'm an American Indian, born in this country and state, and I DO support Governor Brewer and SB 1070. It's about time we get a person in the State Capital that has a spine! Our former Governor (Napolitano) wasn't helping us feel very secure. This state is OUR home and we should not have to feel unsafe. Now she is in charge of "HOMELAND SECURITY?" What a big fat joke!!!! (She is) I say that Tea Partiers and Native Americans form a "wall" around our state capital and tell these "refried bean swastika banditos" to leave OUR state and OUR country. We DO NOT Need You!!! I think it is time for an AMERICAN CITIZEN UPRISING!!!! Now let's get a plan together, we need to take this country BACK!!! I'm sick and tired of hearing about their (illegal aliens) rights. What rights??!!! Are you a citizen of this country? HELL NO!! What rights do you have? I have the right to free speech, right to bear arms, and the right to keep illegal aliens out of our country and state. And the biggest thing is that since I am a citizen of the UNITED STATES OF AMERICA, I "belong" in this country!!! BOO YA!!!

Posted by: Shirley | Apr 27, 2010 5:05:59 PM

For those of you that posted if you are legal you have nothing to worry about. Let me tell you something everyone that is brown skined should be worried. This is going to affect anyone that looks latin. I heard an ignorant woman saying i would be proud to show that i am here legally... She is ignorant...and exceptionally white too so she has nothing to worry about thats why she can say i wouldnt care...As a US citizen and my parents as well it would b demeaning to have to show and be proving that i am here legally I have the same rights as every other citizen and this is just a law suit waiting to happen because i doubt that legal hispanics will allow such treatment not for being mexican or central american but just because they are brown...

Posted by: cici | Apr 27, 2010 5:24:09 PM


Posted by: cici | Apr 27, 2010 6:43:44 PM


Posted by: cici | Apr 27, 2010 6:45:37 PM

Beware-o, Mexicanos illegalos! Americans are muy angry-o at our government-o! We no longer want tens of millions of illegal immigrant-os! Return to Mexico now-o! Arizona no longer welcomes you!

Posted by: El Mojado | Apr 27, 2010 6:49:47 PM

Las leyes se hicieron para lograr la justicia y la equidad entre los individuos y naciones. Soy Mexicano y vivo en México y lamento mucho que un país que se jacta de ser seguidor de la libertad y la democracía implemente leyes que van en contra de la libre circulación. No va con los principios de otros que les dieron patria y libertad a ustedes pues si vivieran se apenarían de la forma en como manchan y atropellan los derechos humanos. Somos muchos los que dejaremos de vacacionar y comprar en Arizona hasta que no modifiquen esta insultante y arbitraria ley.

Posted by: RPL | Apr 27, 2010 7:04:36 PM

I was born in to a family of two illegal parents and from a family of illegal immigrants who all later were legalized. My family owns one of the most successful business in New York. All employed and created by immigrants who came to tihs country illegally. We now employ over 300 hundred people. These are the type of people this law will deport and never allow to help this country flourish!

This law is absurd. What makes a person suspicious of being an illegal immigrant? Can someone here please explain that to me!! How can I tell the difference? Racial profiling will MOST CERTAINLY occur due to this law. Of mules, coyotes and other criminals should be deported, I fully support that. But people who have spent most of their lives here, looking for a better future and aiming to become something. We should be greatful that people see America as such a great nation full of oppotunities. Immigrant students are just as bright and thoughtful as american students but are very limited because of the curret laws that exist. Why not step up border control and just let those who are here remain here and help America become a better nation. Of course when a crime is committed send them off there is no objection there.

The whole talk about gangs and violence coming from illegal immigrants is complete BULL SHIT! of course Arizona puts those statistics so ignorant people like you support this law! Most of those gangs form because of the racism that exists, as protection. I am not saying I agree with them just that you should understand why they form. And as for the violence and drugs. America is #1 comsumer of drugs! Those of you who are supporting these laws probably have brought drugs from these people or have children who are doing it now. We give them the reason to come and stay here because we consume what they have!

It brings me so much anger, tears and disgust seeing what this country, one I love and adore, for allowing my family to succeed as much as it has, is coming to. I am shamed, truly shamed!

Posted by: Catherine Perez | Apr 27, 2010 7:56:48 PM

Look at it from the perspective of right-wing terrorists (Nichols, McVeigh, Roeder, von Brunn). Let's say then that a state requires law enforcement to seize and question anyone they reasonably suspect to fit the definition of a domestic terrorist.

So, who do they look for: white, right-leaning activists who purchase diesel fuel or firearms. What would the right in this country say.

They would say that you cannot harass the majority of law-abiding folk because a vocal minority advocates illegal activity. They would say that while combating terrorism is important, said law would go too far and violate civil liberty.

The point is you cannot define reasonable suspicion in this manner without profiling. It seems to me that, once again, a section of society is fine with profiling so long as they are not the group being profiled.

Posted by: Darren | Apr 27, 2010 8:28:49 PM

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