As has been discussed frequently, today Arizona governor Jan Brewer signed the most drastic anti-immigrant law in American history, or at least in the last 100 years. I think it's basically the "Kick Mexicans Act of 2010."
In my opinion the law is plainly unconstitutional and will probably be struck down, at least in part, very soon, maybe next week. I hope some smarter lawyers than me will elaborate on this in comments a bit. I'm not an expert on things like racial profiling and 4th & 5th Amendment law.
Here is the text of the law that was signed today: http://www.azleg.gov/...
This is a short diary that is actually in the nature of a diary: I want to blog this down, where I can come back to it. This is an important story.
I thought people might like to see the exact text of the most onerous parts of this law. In my opinion as an immigration lawyer with more than 20 years of experience, the most awful are these:
For any lawful contact made by a law enforcement official or agency of this state or a country, 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 person's immigration status shall be verified with the federal government pursuant to 8 United States Code section 1373(c).
Sec. 2, Title 11, Chapter 7, Arizona Revised Statutes, new section 11-1051(B). Emphasis added: note that the two duties set forth in this section apply to all government officials in the state, and they are both MANDATORY. This is really radical.
and
A law enforcement officer, without a warrant, may arrest a person if the officer has probable cause to believe that the person has committed any public offense that makes the person removable from the United States.
Sec. 2, Title 11, Chapter 7, Arizona Revised Statutes, new section 11-1051(E).
What, pray tell, is 8 U.S. Code sec. 1373(c). That's part of the Immigration and Nationality Act and was enacted in 1996. The entire section reads as follows:
8 USCS 1373 Communication between government agencies and the Immigration and Naturalization Service
(a) In general.
Notwithstanding any other provision of Federal, State, or local law, a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual.
(b) Additional authority of government entities.Additional authority of government entities. Notwithstanding any other provision of Federal, State, or local law, no person or agency may prohibit, or in any way restrict, a Federal, State, or local government entity from doing any of the following with respect to information regarding the immigration status, lawful or unlawful, of any individual:
(1) Sending such information to, or requesting or receiving such information from, the Immigration and Naturalization Service.
(2) Maintaining such information.
(3) Exchanging such information with any other Federal, State, or local government entity.
(c) Obligation to respond to inquiries. The Immigration and Naturalization Service shall respond to an inquiry by a Federal, State, or local government agency, seeking to verify or ascertain the citizenship or immigration status of any individual within the jurisdiction of the agency for any purpose authorized by law, by providing the requested verification or status information.
The Department of Homeland Security is notorious as the U.S. federal agency with the lowest morale, after Bush broke the federal employee unions. It has the dumbest and meanest officers (with some exceptions, of course). And it has been ravaged by years of outsourcing and mismanagement by Bush-era MBA types who are not lawyers and don't understand immigration law.
On top of this, U.S. immigration law is very notoriously convoluted, confusing, and inconsistent. You have to understand that it is often EXTREMELY difficult, even for an experienced immigration lawyer, to determine a person's immigration status.
I could write for 30 pages, but this law is an absolute recipe for disaster, and for thousands of civil rights violations and atrocities. There are many, many ways to be in lawful immigration status without having a green card. It is absolutely impossible to train every state employee (see above) including all law enforcement to have any clue whatsoever about this.
Moreover, it is absolutely insane to think that you can call the USCIS (the successor to the old INS) and get an accurate answer on somebody's immigration status! The chance of error is overwhelmingly high. And the chance of somebody rotting in jail for weeks while USCIS fails to follow up on an inquiry is outrageously high.
The first section above is unclear. It does not give law enforcement authority to detain somebody while the USCIS inquiry (which is mandatory) is being made. But you can bet that cops will interpret it that way.
Monsters! Fools! Tinpot fascists!
There is a later section of the law that makes a felony for a person to be caught twice without "ze proper papers," but I'll save discussion of that for later.
Quickie diary. I'm too steamed to think as coldly as I usually do in law practice.
Damn. There are going to be thousands and thousands of Hispanics and others who get really beat up by this law, and nearly all of them won't have a way to fight back.
Time for the boycotts! Time for a general strike! Time to bring Arizona to its economic knees.
The American Immigration Lawyers Association had an upcoming big conference in Scottsdale, Arizona. They've just canceled it and are boycotting the state. May this be followed by millions of individuals.
Oh, John McCain, that great mavericky immigration reform advocate? Oh, he's all in favor of giving these new "tools" to law enforcement. There is a special place in hell for that guy with South Park Satan.