Q&A: Understanding Arizona’s immigration law

Reporting from Phoenix —  Unless it is halted by a judge, Arizona’s new immigration law is set to take effect July 29.

Civil rights groups have filed suit against the law, arguing that immigration is the purview of the federal government and that SB 1070 will promote racial profiling.

What does the law do?

The law essentially mandates that local governments in Arizona enforce immigration laws. The provision that has received the most attention is the creation of a new state crime: failure to possess proper immigration documents.

SB 1070 also forbids local entities, such as city councils or police departments, from making it a policy to ignore federal immigration laws. It allows people to sue if such a policy is formulated.

However, it may take months or years to learn the effects of the law because judges will probably rule on how it can be implemented.

What are police required to do under the law?

If officers stop, detain or arrest people while enforcing other laws or ordinances and reasonably suspect they are in the country illegally, they have to try to determine their status if it’s practicable.

In other words, police don’t have to determine someone’s legal status if there’s a shootout going on. They also get a pass if inquiring would hinder an investigation — by scaring off witnesses, for example.

If police find that the people they’ve stopped are illegal immigrants, do the police have to arrest them?

No. The law is silent on what police must do once they determine someone is in the country illegally.

What else must police do under the law?

Anyone arrested in Arizona cannot be released until police check with the federal government to determine whether that person is in the country legally.

Some read this to mean that it doesn’t matter if suspects have birth certificates and passports — the federal government must confirm their status before they are freed. Others contend that the requirement only applies to suspected illegal immigrants.

Also, authorities must alert the federal government when any illegal immigrant convicted of a crime of any severity is released from custody or pays a fine to resolve a case.

Are police required to turn convicted illegal immigrants over to the federal government?

No, just to notify federal immigration agents.

How does this change things?

Currently, all law enforcement officers in the country, unless forbidden by management, are allowed to check on the immigration status of people they stop or arrest. This makes checking a requirement.

Police departments generally notify federal immigration officials when violent criminals who are illegal immigrants are being released from jail. SB 1070 makes it mandatory, and applies to low-grade offenders as well as violent felons.

Is this the same as federal law?

No. Although many of the crimes in SB 1070 are modeled on existing federal crimes, federal law does not require local police officers to check immigration status. There’s also no right under federal law for people to sue local agencies that have policies against enforcing immigration laws.

Does SB 1070 require people who are legally in Arizona to carry “papers”?

No. The law specifies that certain documents can be shown to police to demonstrate someone is in the country legally — an Arizona driver’s license or state ID card, tribal membership card or any other U.S. government ID that is only issued to legal residents. (Several states, including New Mexico, give driver’s licenses to illegal immigrants, so those licenses wouldn’t suffice.) There’s no requirement that people carry these documents, however.

The question of papers arises from the most prominent of the new crimes in SB 1070, called willful failure to complete or carry an alien registration document. It’s a misdemeanor modeled on a rarely enforced 1940 federal statute. But SB 1070 says that anyone in the country legally cannot be convicted of this crime.

Paradoxically, therefore, legal residents are not required to carry their documents.

From a practical perspective, however, some people may wish to carry proof of legal residency or citizenship if they believe they will be questioned by authorities about their status. And the federal statute that SB 1070 borrows from does require legal immigrants to carry their paperwork.

Is racial profiling allowed under this law?

The law bars consideration of race “except to the extent permitted by the United States or Arizona Constitution.” Courts have allowed police to consider race if, for example, they have a report of a suspect of a certain race fleeing from a crime.

Border Patrol agents have been given slightly more leeway in specific immigration investigations to consider race; it’s unclear whether courts would extend those abilities to Arizona police.

Critics contend that there’s no way to enforce the law without racial profiling. The law’s authors disagree.

What are the other new crimes under this law?

The law makes it a misdemeanor for illegal immigrants to work in Arizona and also outlaws the solicitation of work or any hiring that impedes traffic, a provision aimed at day laborers and those who employ them.

The law also makes it a misdemeanor to transport, harbor or shield an undocumented immigrant “in furtherance of their illegal presence,” or encourage one to come to Arizona. But to be guilty of this misdemeanor, someone must be committing another criminal offense at the same time.

This last misdemeanor mirrors a federal law that is the subject of much judicial debate. Courts have ruled it is illegal to help an undocumented immigrant move through the United States but does not bar such acts as driving them to school or the hospital.

Some worry that courts could interpret the state law to mean that anyone transporting illegal immigrants anywhere could be guilty of this crime. The authors say it’s clear SB 1070 applies only in the same situations as the federal law, such as helping an undocumented immigrant sneak into the country.

[email protected]