Cornell Journal of Law and Public Policy

Introduction

In 2009, there were approximately 11.1 million illegal immigrants in the United States.[1]  In an attempt to address the rampant illegal immigration in Arizona,[2] the Arizona State Legislature passed the Support Our Law Enforcement and Safe Neighborhoods Act, known as Senate Bill 1070 (S.B. 1070).[3]  The bill requires Arizona law enforcement officials to verify the immigration status of an arrested, stopped, or detained individual upon reasonable suspicion that the individual is unlawfully present in the United States; authorizes the warrantless arrest of a person if there is probable cause to believe the person committed an offense that makes the person removable from the United States; and criminalizes the failure to apply for or carry alien registration papers and for illegal aliens to apply for, solicit, or perform work in the United States.[4] Opponents of this controversial law claim that S.B. 1070 discriminates against Hispanics regardless of their citizenship status, and fear that it will lead to harassment and discrimination of Arizona’s Hispanic population. [5]  Other critics of S.B. 1070 fear the law will lead to fear and distrust in Arizona communities, increased crime and litigation, and some likened Arizona state officials’ authority to demand aliens’ registration papers to Nazism.[6] On July 6, 2010, the United States government filed suit against the state of Arizona in the United States District Court for the District of Arizona, challenging the constitutionality of S.B. 1070, arguing that federal immigration law preempted certain provisions of the Arizona law.[7]   On July 28, 2010, the District Court enjoined S.B. 1070 § 2(b), the provision which requires police officers to make a reasonable attempt to determine the immigration status of stopped, detained, or arrested persons upon reasonable suspicion that the person is in the United States illegally; § 3, the provision criminalizing the failure to apply for or carry alien registration papers; § 5(c), which imposes criminal sanctions upon illegal aliens who applied for or performed work within the state; and § 6,  which allows police officers to arrest a person without a warrant if there is probable cause to believe that the person committed an offense that makes the person removable from the United States, on the grounds that federal immigration law preempted these provisions.[8]  On July 29, 2010, Governor Jan Brewer filed an expedited appeal of the preliminary injunction in the Ninth Circuit Court of Appeals.[9]  Although the Ninth Circuit heard oral argument on November 1, 2010, it has not yet issued a decision.[10] Part I of this blog will provide an overview of federal immigration law.  Part II will argue that federal law does not preempt S.B. 1070, including the provisions the District Court of Arizona enjoined.  Finally, Part III will propose that Arizona amend S.B. 1070 to address concerns that the law will lead to racial discrimination, restrictions on civil liberties for United States citizens and legal residents, and criminal penalties for lawful immigrants.

1. Overview of Federal Immigration Law

The federal government regulates immigration through the Immigration and Nationality Act (“INA”), which establishes the conditions and procedures under which an alien may enter and be removed from the United States.[11]  Although immigration is “unquestionably exclusively a federal power”[12], the INA nevertheless authorizes cooperation between federal and state governments in order to enforce the immigration laws.  Pursuant to 8 U.S.C. § 1357(g), the Attorney General may authorize a state officer to investigate, apprehend, or detain aliens in the United States, provided that the officer has had training regarding federal immigration laws.[13]  Furthermore, the Law Enforcement Support Center (“LESC”) is required to provide immigration status information to state and federal law enforcement agencies regarding aliens suspected, arrested, or convicted of criminal activity.[14]   In addition, the Immigration Reform and Control Act of 1986 (“IRCA”) imposes sanctions upon employers who knowingly hire illegal aliens.[15]

1. Federal Law Does Not Preempt S.B. 1070

Federal law preempts a state immigration law if: (1) the state law constitutes a regulation of immigration; (2) Congress intended to preclude states from regulating in the subject matter of the state law; or (3) the state law is contrary to Congress’s objectives.[16]  Federal law does not preempt S.B. 1070 because the state law does not regulate immigration; it does not regulate or proscribe a condition of admission, naturalization, or residence in the United States.[17]  Moreover, Congress did not intend to preclude states from regulating in the area of immigration because federal law allows cooperation between state and federal governments to enforce federal immigration laws.[18]  Furthermore, S.B. 1070 mirrors the federal objective of penalizing illegal immigration[19] and falls within the states’ police power.[20] Despite the District Court’s ruling, federal law does not preempt § 2(b), which authorizes Arizona police officers to determine the immigration status of arrested or detained individuals upon reasonable suspicion that the individual is in the United States illegally with assistance from the federal government.[21]  Federal law does not prevent local police from interrogating or arresting individuals suspected of violating federal immigration law[22]; therefore, Arizona can arrest or detain an individual upon reasonable suspicion that the individual is in the United States illegally, determine the individual’s immigration status with the assistance of LESC[23], and transfer the individual to Immigration & Customs Enforcement (“ICE”) for deportation proceedings.[24]  If the federal government finds responding to Arizona’s inquiries too burdensome, it could authorize Arizona state officials to determine the immigration status of arrested or detained individuals themselves under § 1357(g).[25] Furthermore, federal law does not preempt § 5(c), which imposes sanctions upon illegal aliens who seek employment in the United States, not their employers.[26]  Since IRCA imposes sanctions upon employers who employ illegal aliens but not the employees, § 5(c) does not conflict with or impede the enforcement of IRCA.[27]  Moreover, since employment is part of the states’ police power[28], Arizona should have the authority to regulate the employment of illegal aliens, which affects the employment of citizens and legal residents.[29] Despite the District Court’s ruling, federal law does not preempt § 3, which imposes criminal penalties on aliens who failed to carry registration documents.[30]  State governments have the authority to criminalize conduct relating to illegal immigration if they do so in similar terms to federal law.[31]  Here, § 3 defines the state crime as a violation of federal statues 8 U.S.C. §§ 1304(e) and 1306(a), which criminalize the failure to apply for or carry alien registration documents.[32]

1. Proposed Amendments to S.B. 1070

Although federal law does not preempt S.B. 1070, the Arizona law raises other policy considerations, including the concern that the law will lead to racial profiling and discrimination.[33]  In order to alleviate this concern, Arizona should amend S.B 1070 § 2(b) to require that officers need probable cause that an individual is unlawfully present in the United States before determining the individual’s immigration status, instead of reasonable suspicion.  Probable cause requires more proof and more reliable information to support a police officer’s belief that the individual committed a crime than the reasonable suspicion standard.[34]  Moreover, the Supreme Court held that probable cause is the proper standard involving determinations of immigration status.[35] Opponents of S.B. 1070 are concerned that § 6, which allows a police officer to make a warrantless arrest if the officer has probable cause to believe that the person has committed any offense that makes the person subject to deportation, will lead to racial profiling because police officers are unfamiliar with federal immigration law and will make arbitrary decisions based upon race, ethnicity, or national origin.[36]  One solution to this problem is to require that Arizona police officers obtain a warrant before making the arrest; since a judge must sign a warrant[37], the judge would be more familiar with federal immigration law and better able to assess whether there was probable cause that the individual committed a deportable offense.  Alternatively, the Attorney General could authorize Arizona police officers to perform the functions of immigration officers.[38]  Under federal immigration law, immigration officers have the power to make warrantless arrests of aliens who committed removable offenses if the officer has reason to believe the alien will escape before the officer can obtain a warrant.[39]  If Arizona police officers were authorized to perform the functions of immigrations officers, they would be able to make the warrantless arrests described in § 6 and would receive training on federal immigration law[40], reducing the risk that the arrests would be made based on racial discrimination. Critics of S.B. 1070 also fear that legal aliens lacking registration documents will be subjected to criminal sanctions under § 3.  Aliens eligible for suspension of deportation proceedings under the Violence Against Women Act (“VAWA”) or the Battered Immigrant Women Protection Act (“BIWPA”), political asylum, T or U immigrant status, temporary protected status (TPS), or nonimmigrant admission to the United States through the Visa Waiver program do not receive registration documents.[41]  Arizona should amend § 3 to exempt persons who have permission to remain in the United States under any of the above asylum provisions.  Imposing criminal sanctions upon these individuals wrongly levies criminal penalties on legal immigrants, and is contrary to the Congressional policy of protecting individuals who qualify for these protections from deportation.[42]

Conclusion

            States should have the authority to regulate immigration issues within their own borders.  Although a uniform nationwide immigration scheme is desirable, preventing states from legislate regarding immigration concerns affecting their citizens ignores the needs of individual states to address problems particular to each state.  However, S.B. 1070 presents genuine policy concerns, including the risk of racial profiling, restrictions on civil liberties, and the imposition of criminal sanctions upon legal aliens who lack registration documents.  If S.B. 1070 is amended to address these concerns, the law will strike a balance between respecting the states’ authority to regulate immigration within their own borders, and protecting state residents from racial discrimination, erroneous deprivation of liberty, and unlawful criminal penalties.