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Analysis of Arizonas immigration law

Arizona's Immigration Enforcement LawsAmerican Flag

Introduction
 

Supreme Court Ruling:  See more information on the immigration ruling that took place Monday, June 25

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 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 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 cout upheld the injunction.

Note: The U.S. Supreme Court heard arguments on a separate Arizona law enacted in 2007 that mandates use of a voluntary federal employment verification system and penalizes employers who hire unauthorized workers.  On May 26, 2011, the Supreme Court upheld Arizona’s 2007 law that required the use of E-Verify by Arizona employers, punishable by suspension or revocation of the employer’s business license. The Immigration Reform and Control Act of 1986 (IRCA) preempts any state or local law from imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens. Citation: 8 U.S.C. 1324a(h). The Supreme Court, by a 5-3 vote, found that language in IRCA did not preempt the state because it was a licensing law permissible under IRCA. The E-Verify program also did not preempt the state: “although Congress had made the program voluntary at the national level, it had expressed no intent to prevent States from mandating participation.” The ruling on the case is “CHAMBER OF COMMERCE OF UNITED STATES OFAMERICA v. WHITING ( No. 09-115). Chamber of Commerce v. Whiting
 

Background

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SB 1070, “Support Our Law Enforcement and Safe Neighborhoods Act,” was  approved by the Arizona Legislature on Monday, April 19, and signed into law by Governor Brewer on Friday, April 23, 2010. SB 1070 includes provisions adding state penalties relating to immigration law enforcement including trespassing, harboring and transporting illegal immigrants, alien registration documents, employer sanctions, and human smuggling. 

The trespassing provision appears to be the first of its kind to be enacted in the United States. In the most recent reports by NCSL on state immigration laws, few states have attempted to create a state trespassing violation for unlawful presence. Bills were introduced but failed in Arizona in 2008 and 2009; Texas in 2009; Colorado in 2008; and California in 2007. 

On the same day she signed the bill, Governor Brewer issued Executive Order 2010-09 requiring the Arizona Peace Officers Standards and Training Board to establish training to ensure law enforcement officials and agencies apply SB 1070 consistent with federal laws regulating immigration, protecting the civil rights of all people and respecting the privileges and immunities of United States citizens. The executive order also requires clear guidance on what constitutes reasonable suspicion. The board is to provide a list of the specific forms of identification that provide a presumption that a person is not an alien unlawfully present in the United States. 

A series of questions have been raised about the implementation and constitutionality of Arizona SB1070. Some concerns include the costs to the state for enforcing federal immigration law, particularly in tight budget times; how “reasonable suspicion of immigrant status” will be interpreted; and the narrow list of documents eligible to demonstrate lawful presence. Court challenges have raised constitutional issues 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.

On April 29, the last day of legislative session, the Arizona Legislature approved and the governor signed HB 2162 that included provisions intended to address the racial profiling concerns.  HB 2162 amended SB 1070 to specify that  law enforcement officials cannot consider race, color or national origin when implementing the provisions of the original law, except as permitted by the U.S. or Arizona Constitution. The law clarified the original law’s language around “reasonable suspicion” by requiring state and local law enforcement to reasonably attempt to determine the immigration status of a person only while in the process of a lawful  stop, detention or arrest (the original language referred to “lawful contact.”) HB 2162 also stipulated that a lawful stop, detention or arrest must be in the enforcement of any other law or ordinance of a county, city or town of this state.

HB 2162 lowered the original fines in SB 1070 for state or local entities sued by legal residents and found guilty of restricting the enforcement of federal law from a minimum of $1,000 to $500 for each day the policy is in effect. The law also lowered the fine for people who fail to complete or carry an alien registration document from $500 to $100 for the first offense.

The law was scheduled to go into effect on July 29, 2010 (90 days after the end of regular legislative session.) Parts of the law, however, were enjoined on July 28, 2010. 

Similar Bills 

As of November 10, similar bills had been introduced in six state legislatures:  South Carolina, Pennsylvania, Minnesota, Rhode Island, Michigan and Illinois.  South Carolina HB4919 was introduced by Representative Eric Bedingfield on April 29 and SB 1446 by Senator Grooms on May 13.  Pennsylvania HB 2479 was introduced by Representative Daryl Metcalfe on May 5. Minnesota HB 3830 was introduced by Representative Steve Drazkowski on May 6.  Rhode Island HB 8142 was introduced by Rep. Palumbo on May 18.  Michigan H6256 was introduced by Representative Meltzer on June 10;  S1388 was introduced by Senators McManus, Cropsey, Allen and Brown on June 15; and H6366 was introduced by Representative Agema on August 11. Illinois H6937 was introduced by Representative Ramey on November 3, 2010.  (Note that the Minnesota, Rhode Island and South Carolina legislative sessions have ended.)

Resolutions

Six resolutions have been introduced in legislatures that address Arizona’s immigration law.  The California Senate, Illinois House, and New York Senate introduced resolutions opposing the Arizona law, while Tennessee enacted a resolution supporting it.  Resolutions both supporting and opposing Arizona’s law were introduced in the Michigan House.

California SCR 113 urges various state and private entities to withhold financial support of Arizona businesses in response to recent Arizona state laws relating to illegal immigration. The resolution was introduced on June 23. 

Illinois HJR 119 calls upon the Arizona Legislature to repeal SB1070 and asks Congress and the president to act quickly to enact comprehensive immigration reform.  The joint resolution was introduced May 4, adopted by the House on May 7, and is pending in the Senate.

In Michigan, HR 291 urges repeal of SB 1070 and asks Michigan businesses and public and private organizations to refrain from doing business with or in the state of Arizona.  The resolution was introduced on May 26.

Michigan HR 295 expresses  support for Arizona's new legislation regarding immigration and opposes any boycott of Arizona businesses.  The resolution was introduced on June 9.

New York SR 5081 denounces policy that encourages racial profiling and asks cooperation on all levels of government to enact immigration policies and laws.  The resolution was adopted on May 4. 

Tennessee HJR 1253 commends Arizona on its upcoming Centennial and salutes the initiative of the Arizona Legislature and Governor Jan Brewer in their actions to protect their citizens and the border.  HJR 1253 became law without the governor’s signature on June 19, 2010.

Court Challenges

Three individuals (two law enforcement officials and one researcher) and the Coalition of Latino Clergy filed the first challenges to the law based on equal protection, due process and preemption under the Supremacy Clause. A coalition of organizations including the ACLU, National Immigration Law Center  and MALDEF filed a class action lawsuit against Arizona counties seeking a permanent injunction.  The lawsuit states that SB1070 violates the Supremacy Clause, the First Amendment right to freedom of speech, the Fourth Amendment right to freedom from unreasonable searches and seizures, and the Equal Protection Clause guarantee of equal protection under the law, and Article II, Section 8 of the Arizona Constitution.  The lawsuit was filed May 17 in the U.S. District Court for the District of Arizona.

On July 6, 2010, the U.S. Department of Justice filed a lawsuit in the U.S. District Court for the district of Arizona seeking a permanent injunction of SB 1070.  The civil action states that SB 1070 is preempted by federal law (8 U.S.C. 1101, and following sections) and by U.S. foreign policy, and violates the Supremacy Clause and the Commerce Clause of the U.S. Constitution.  The lawsuit and supporting documents are available online at  http://www.justice.gov/opa/pr/2010/July/10-opa-776.html.

On July 15, U.S. District Judge Susan Bolton heard arguments on a request for preliminary injunction filed by the earlier lawsuits and on Arizona’s request to dismiss those lawsuits. Arizona's request to dismiss can be found here: http://www.ncsl.org/documents/immig/2010ArizonaDismiss.pdf

On July 28, Judge Bolton granted in part and denied in part the motion for preliminary injunction.  The sections that were barred from taking effect (pending appeal) were:  Section 2B, requiring law enforcement officers to determine immigration status during any lawful stop; Section 3, creating state crimes and penalties for failure to carry federally-issued alien registration documents; Section 5 making it unlawful for an unauthorized alien to knowingly apply for or perform work in Arizona; and Section 6, permitting an officer to make a warrantless arrest if the officer has probable cause to believe the person has committed any public offense that makes the person removable from the United States. Judge Bolton's ruling can be found here: http://www.ncsl.org/documents/immig/2010Arizonaboltonruling.pdf

Governor Brewer’s appeal, filed on August 26, 2010, can be found at http://azgovernor.gov/dms/upload/AppellantsOpeningBrief.pdf

The summary below highlights the major provisions of the Arizona laws.
 

Summary of SB 1070 and HB 2162 

 

Enforcement of Immigration Law

Prohibits state and local law enforcement from restricting enforcement of federal immigration laws.

Requires state and local law enforcement to reasonably attempt to determine the immigration status of a person involved in a lawful stop, detention or arrest in the enforcement of any other local or state law or ordinance where reasonable suspicion exists that the person is an alien and is unlawfully present, except if it may hinder or obstruct an investigation.

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

Stipulates that law enforcement cannot consider race, color or national origin when implementing these provisions, except as permitted by the U.S. or Arizona Constitution.

Specifies a presumption of lawful presence with these IDs: Arizona driver license or ID; tribal enrollment card or ID; valid federal, state or local government issued identification, if the issuing entity requires proof of legal presence before issuance.

Stipulates that these provisions do not implement or authorize REAL ID.

Allows legal residents to sue state or localities that restrict enforcement of federal law. Indemnifies officers unless they acted in bad faith. Violating entities must pay a civil penalty of at least $500 for each day the policy is in effect.

Willful Failure to Complete or Carry an Alien Registration Document

Creates a state violation comparable to federal law in 8 USC 1304(e) or 1306(a) and creates state penalties of jail costs and $100 for a first offense. Stipulates immigration status may be determined by a law enforcement officer authorized by the federal government to verify an alien’s immigration status; or U.S. Immigration and Customs Enforcement or U.S. Customs and Border Protection.

NOTE:  The federal provisions mentioned in the Arizona law are included here for easy reference. 
8 USC 1304(e): Personal possession of registration or receipt card; penalties. Every alien, eighteen years of age and over, shall at all times carry with him and have in his personal possession any certificate of alien registration or alien registration receipt card issued to him pursuant to subsection (d) of this section. Any alien who fails to comply with the provisions of this subsection shall be guilty of a misdemeanor and shall upon conviction for each offense be fined not to exceed $100 or be imprisoned not more than thirty days, or both. 8 USC 1306 (a): Willful failure to register. Any alien required to apply for registration and to be fingerprinted in the United States who willfully fails or refuses to make such application or to be fingerprinted, and any parent or legal guardian required to apply for the registration of any alien who willfully fails or refuses to file application for the registration of such alien shall be guilty of a misdemeanor and shall, upon conviction thereof, be fined not to exceed $1,000 or be imprisoned not more than six months, or both.)

Unlawfully Picking Up Passengers for Work

Makes it a class 1 misdemeanor for an occupant of a motor vehicle to hire on a street, roadway or highway if the vehicle blocks or impedes the normal movement of traffic; or to enter a vehicle to be hired and transported; or for an unauthorized alien to knowingly apply for work, solicit work in a public place or perform work as an employee or independent contractor.

Stipulates that law enforcement cannot consider race, color or national origin in the enforcement when implementing the provision, except as permitted by the U.S. or Arizona Constitution.

Unlawful Transporting or Harboring Unlawful Aliens

Stipulates that it is unlawful for a person who is in violation of a criminal offense to transport an alien; conceal, harbor or shield an alien; or encourage an alien to come to this state, if the person recklessly disregards the fact the person is here unlawfully. The vehicle may be immobilized or impounded. Provides exceptions for child protective services, first responders, ambulance or emergency medical technicians. Violators are guilty of a class 1 misdemeanor and subject to a fine of at least $1,000.

Stipulates that law enforcement cannot consider race, color or national origin in the enforcement when implementing the provision, except as permitted by the U.S. or Arizona Constitution.

Employer Sanctions

Provides employers with the affirmative defense that they were entrapped, but they must admit the substantial elements of the violation. The employer has the burden of proof to show law enforcement officer induced the violation. 

Requires employers to keep a record of employment verification for the duration of the employee’s employment or 3 years whichever is longer.

Miscellaneous

Authorizes peace officers in the enforcement of human smuggling laws to lawfully stop a person if they have a reasonable suspicion to believe the person is in violation of any civil traffic law and to arrest a person without a warrant if the officer has probable cause to believe the person has committed any public offense that makes the person removable from the United States.

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

 


 

Resources:

Arizona legislature: 

Senate Bill 1070 http://www.azleg.gov/DocumentsForBill.asp?Bill_Number=1070 

House Bill 2162 http://www.azleg.gov/DocumentsForBill.asp?Bill_Number=2162

Governor’s executive order: http://www.azgovernor.gov/dms/upload/EO_042310_EO201009SB1070.pdf

Arizona Peace Officers Standards and Training Board training information on SB1070: http://www.azpost.state.az.us/SB1070infocenter.htm

 

Prepared by Ann Morse
Program Director
National Conference of State Legislatures
Revised July 28, 2011

 

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