By Kate McCarroll
On April 23, 2010, Arizona Governor Jan Brewer signed into law the nation’s toughest bill aimed at undocumented immigrants. The law, known as the Support Our Law Enforcement and Safe Neighborhoods Act (S.B. 1070), touched off protests across the United States, re-ignited the immigration debate, and caught the attention of federal and state legislatures throughout the country.
This information is provided as background on the Arizona law, as well as the resulting immigration-related discussion in Michigan.
Arizona Law S.B. 1070
Arizona law S.B. 1070 was enacted to address the growing concern in Arizona regarding the presence of undocumented immigrants in the state, and the federal government’s perceived failure to enforce immigration laws.
S.B. 1070, which takes effect on July 28, 2010, contains provisions which include:
• Making the failure to carry immigration documents at all times a state crime.
• Giving a private right of action for any person to sue a city, town or county for not enforcing immigration laws.
• Authorizing law enforcement officers to detain an individual to make inquiries into his/her immigration status if he/she cannot produce valid documents, and to hold the person until his/her immigration status is verified.
• Making it unlawful for a person to transport an unauthorized immigrant if he/she knows or recklessly disregards the fact that the immigrant is in the U.S. illegally.
• Mandating that any vehicle used to transport an unauthorized immigrant be impounded.
The most hotly debated portion of the law gives state, local and municipal police the authority to detain those suspected of being in the United States illegally, a responsibility that has historically been delegated to federal authorities. The bill requires law enforcement officers to demand documentation of immigration status where a “reasonable suspicion” exists that a person may not be in the country legally.
Legal precedent dictates that whether a “reasonable suspicion” exists must be based on “articulable facts.” Opponents of the law point out that the only “articulable facts” that could exist that would make it reasonable to assume that someone is not in legal immigration status would be ethnically based, such as skin color, accent, and language. This, then, would be racial profiling, and contrary to the Fourteenth Amendment (Equal Protection Clause) of United States Constitution.
On April 30, 2010, in response to critics, Governor Brewer signed an amendment to S.B. 1070, which reiterates that in enforcing the law, officers may not consider the race, color, or national origin of the individual being questioned. Opponents remain unconvinced that profiling will not occur.
Critics also argue that the law interferes with the comprehensive and complex federal immigration system, and the federal government’s exclusive authority to carry out these regulations, in violation of the Supremacy Clause of the U.S. Constitution. Opponents point out that even if a state arrests an individual who is not in legal immigration status, the federal government alone has the authority and jurisdiction to charge him/her with immigration violations, to conduct a court hearing if required, and to remove the person from the United States.
On May 17, 2010, the American Civil Liberties Union and a coalition of civil rights groups filed a lawsuit in Federal District Court challenging the constitutionality S.B. 1070. Numerous other civil and immigrant rights groups have joined the litigation.
On July 6, 2010, the United States Department of Justice also filed suit in Federal District Court, and requested that the Court issue a preliminary injunction to delay enactment of the law.
Michigan Proposed Law H.B. 6256
In response to Arizona’s law, state legislators throughout the country have taken up the immigration debate. To date, more than 20 states are considering similar legislation.
In Michigan, several state legislators have voiced their support for Arizona’s new law. On June 10, 2010, Representative Kim Meltzer introduced a bill (H.B. 6256) similar to that of Arizona’s legislation. Hearings on the proposed bill are currently underway.
This measure contains provisions which:
• Require law enforcement officers to determine the immigration status of a person stopped, detained or arrested in the course of enforcement of any law or ordinance where reasonable suspicion exists that the individual is an unauthorized immigrant.
• Make the failure to carry immigration documents at all times a state crime.
• Give a private right of action for any legal resident of Michigan to sue a city, town or county for not enforcing immigration laws.
• Authorize law enforcement officers to detain an individual to make inquiries into his/her immigration status if he/she cannot produce valid documents, and to hold the person until his/her immigration status is verified.
Arizona’s immigration enforcement law, S.B. 1070, has been a catalyst to re-ignite the immigration debate across the nation. Whatever the outcome of pending legal actions, we are hopeful that the increased media attention and political discussion turns the spotlight to the need for comprehensive immigration reform, aimed at protecting our borders, ensuring fair working conditions for all U.S. workers, reuniting families, and continuing to welcome those who follow legal means to obtain the benefits of our great country.
Kate McCarroll is an associate attorney with Kerr, Russell & Weber, where she practices immigration and nationality law.
