The Spanish Prisoner: The Unequal Burdens of Arizona's Immigration Law

· Wednesday, August 4, 2010

In 1941, the Supreme Court overturned a Pennsylvania law that required non-citizens to register with the state, carry an "alien identification card" and present it to police officers upon demand.

The court said the law conflicted with a federal policy, based on treaty obligations and the constitutional principle of equal protection, that sought to "protect the personal liberties of law-abiding aliens" and keep them "free from the possibility of inquisitorial practices and police surveillance," including "indiscriminate and repeated interception and interrogation by public officials."

U.S. District Judge Susan Bolton cited that decision last week when she issued a preliminary injunction that prevents Arizona from enforcing major provisions of its new immigration law. Although Arizona did not create its own alien registry, its avowed aim of preventing "the unlawful entry and presence of aliens" can be accomplished only by imposing the sort of "distinct, unusual and extraordinary burdens" that troubled the Supreme Court in 1941.

Under one of the provisions that Bolton blocked, police officers who encounter someone they think might be in the country illegally are required to make "a reasonable attempt" to determine his immigration status. This obligation is triggered by "any lawful stop, detention or arrest," including those associated with trivial offenses such as jaywalking, failing to leash your dog and biking on a sidewalk.

If the suspect is from one of the 36 nations whose citizens are allowed to visit the U.S. for up to 90 days without a visa -- Spain, say -- the police can look at his passport to verify his citizenship and see when he entered the country.

But those two facts do not necessarily show he is lawfully present in the United States, since the Visa Waiver Program imposes various other requirements: Participants are not allowed to study, work or represent a foreign news organization in the U.S., and they may not fall into any of several banned categories, including drug addicts, people with communicable diseases and people with "physical or mental disorders" that pose a danger to themselves or others.

Still, maybe looking at a passport counts as a "reasonable attempt." If an arrest occurs, however, the law says "the person's immigration status" must be "determined before the person is released." That requires checking with Immigration and Customs Enforcement -- although even ICE's records are not conclusive, since they may be based on misinformation about an individual's background or plans.

Bolton's injunction, which she issued in response to a lawsuit by the Obama administration, focuses on the concern that such inquiries would "divert resources from the federal government's other responsibilities and priorities," including "national security objectives." But as other challenges to Arizona's law emphasize, investigating the immigration status of anyone suspected of being "unlawfully present in the United States" also imposes a burden on people who seem foreign, especially Latinos who are here legally but are superficially indistinguishable from those who are here illegally.

Because of the mandate to identify unauthorized residents, minor offenses that police otherwise might overlook -- crossing in the middle of the street, or driving with a broken tail light or slightly above the speed limit -- become excuses for stops. Brief stops become long stops. Warnings become citations. Citations become arrests. People who would have been cited and released for a misdemeanor such as marijuana possession, underage drinking or disorderly conduct are instead locked up until their immigration status can be verified.

In addition to foreign tourists, Bolton noted, these escalating deprivations of liberty would affect asylum applicants, "people with temporary protected status, U and T non-immigrant visa applicants (and) people who have self-petitioned for relief under the Violence Against Women Act."

Even legal permanent residents and U.S. citizens -- who are under no obligation to carry Arizona-approved identification but could be detained if they don't -- would be subject to "distinct, unusual and extraordinary burdens" because of the way they look and sound. How would that look and sound to people who thought Americans believed in equality before the law?

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Comments

Jennifer

Interesting to know I went with many students at school, illegal but having no accent or "immigrant" demeanor. I believe that the Sheriff's manhunt of 100 people in a community, turning up 6, took away time to investigate murders, kidnappings, and rapes. How much are we spending to house all these people we are holding for a 2 years and deporting? And now when they try to leave America we are arresting them and still jailing them. It makes no sense to me, I'm a republican but I cannot stand by on racist immigration. Greta Van Buren mentions "birth right citizenship" and talked about rich Chinese people coming to birth in the U.S. at private hospitals. They had doctors and appointments, had their kids with their own money, and leave after the birth of their child. Could it be that China forcibly sterilizes women that bear female offspring unlicensed? Could it be that they would like an American birth at a hospital where they don't have to worry about a human rights violation? Let be honest there are no real answers here, but REPUBLICANS HAVE VOWED NOT TO REFORM IMMIGRATION UNLESS EVERYONE IS SENT BACK. I DEMAND THE REDUCE THEIR SALARIES BECAUSE MAYBE THEY WON'T FEEL LIKE WASTING AMERICAN MONEY AND TIME BY REFUSING TO GIVE FAMILIES WORKING HARD IN AMERICA A CHANCE.

What about all the U.S. citizens married to an illegal alien? Wouldn't it solve the problem of a one parent family if we legalized? Otherwise that one U.S. citizen will receive benefits with the partner gone, how can they survive if Republicans have cut child care assistance.

So many arugments its sickening we cannot do this fairly.

Posted August 4, 2010 at 12:29:02 AM


Marcus

The immigration laws treat the symptoms, not the causes. Get rid of welfare for non-US citizens. Impose huge fines on businesses that hire illegals. Citizenship or legal status must be proved to attend public schools. Get rid of the bi-lingual spanish requirements. If we don't accommodate all immigrants language-wise, then we should not accommodate any.

Time spent finding and ejecting illegals would be GREATLY reduced if we eliminate the government sponsored motivations for coming here in the first place. If they come here to work and pay taxes and assimilate, then great, come on in. But all this goes back to US citizens vs our government representatives. That is where the fight is for just about all of our current ills. So, let's fight that one and take care of our problems at the root cause and stop fighting the results of bad policies and philosophies. Let's get people in public service that truly understand their role as servants and not masters.

Posted August 4, 2010 at 10:27:27 AM


pete

The Mexican legal immigrants have place themselves in the same position as "moderate" muslims. By refusing to stand up against law breakers (illegal immigrants, drug dealers, coyotes, murderers) they place themselves under the blanket of mis-trust and suspicion.

If they want to put an end to all the crap they must stand up and speak out against the criminals in their midst!

And those who enter the US illegally ARE criminal!

Posted August 4, 2010 at 12:46:10 PM


Faith Mendes

Marcus said it very well. I think if anyone from any country is in the United States of America illegally, they have already committed a crime and should be deported. Then, they don't become a burden to taxpayers of the United States of America. We USA citizens need to stand up for ourselves by voting people into office that will serve the citizens! Everyone now serving in the House of Representatives and Senate should be voted out and new blood voted in. There should also be a law that Representatives and Senators can only serve two four-year terms.

Posted August 4, 2010 at 1:24:30 PM


Tim

Sorry Jacob, but your hypothetical escalation by police of trival offenses to "become excuses for stops" reminds me of Obama's hypothetical doctors who remove tonsils rather than prescribing cough medicine because it pays them more money.

Posted August 4, 2010 at 1:47:24 PM


Caseace

It is a game of attrition. We MUST seal the border first and foremost. It is a fact that it will not eliminate, however it will most definetly reduce the influx of illegals, terrorists, drugs and cross border crimes that are currently causing havoc in border towns and states. Once the border is less porous then we can address the people that are alresdy here. Over time some will return to their home country, evil doers will be jailed and or deported and the rest will eventually assimilate. NO one imagines that every single illegal will be rounded up and sent back whence they came. Just look at the current climate where we can't even get the President to abide state law let alone federal law. Also it is easy for all hand wringers to lament the plight of the poor Mexican from the comfort and security of your home. Imagine not being able to leave your kids, dogs, valuables unattended as you watch stange desperate people over run your neighborhood. Let us not get into over the top hyperbole but instead work out common sense incremental solutions that given time will work itself out and yes I too agree that they should not receive any citizen paid (taxes) benefits. But we must first eliminate the free for all that passes for a border into this soveriegn nation of ours.

Posted August 4, 2010 at 2:06:45 PM


jOHN

When illegals decide to follow the law of the land, when they cannot continue to be a burden and get a free ride financially on the back of The American Taxpayer, then I can begin to find some sympathy. IF you try any of the things that the marchers are demanding in the protests of THE LAW while working or residing in Mexico --- YOU GO TO JAIL, NO FOOD , DIRTY WATER AND LIMITED HYGENE. TIT FOR TAT

I know because I worked in Mexico for 3 years. I am fluent in Spanish. and " Frankly my dear, I don't give a d*mn". Cheap tomatoes are not cheap when you factor in the WHOLE P & L of cost

Posted August 4, 2010 at 8:50:31 PM


Robert USN, Ret.

Well said jOHN! Meanwhile, if one lives near the southern border, as do I, "keep 'er loaded, and one in the chamber!" Only realistic defense in this area! Talk, or shoot! Do not mix up those two efforts! People who do not live in the area of greatest infiltration, seem to not understant the depredations, criminal activity, mischief (leaving water spigots running), animal kill, and other criminal depredations of this Republic. Add TERM LIMITS on the next ballot! All our problems do not come from Mexico---many come from Washington, DC!

Posted August 5, 2010 at 11:51:37 PM


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