WHAT DOES THE RULING BY THE US SUPREME COURT REGARDING ARIZONA IMMIGRATION LAW MEAN FOR THE ILLEGAL IMMIGRANT
The ruling by the US Supreme Court on the infamous Arizona immigration law in Arizona v. the United States (6/25/2012) is pure victory for immigrants contrary to what some pundits are saying.Understand that out of the four Arizona pieces of legislation that the Obama administration opposed before the Supreme Court, only one was upheld.
The Arizona law provision that was upheld is the one allowing law enforcement to ask for ‘legal papers’ from immigrants upon a ‘lawful stop’. This means that law enforcement cannot indiscriminately ask one to produce papers just because they suspect that one does not hold legal status. According to the Court’s ruling, a stop during which local enforcement may ask for legal papers must be ‘lawful’. A lawful stop is one based on ‘reasonable suspicion’ that one has or is about to commit a serious crime. For the everyday law abiding immigrant, how many times have you been stopped under suspicion of wanting to commit a serious crime or having committed a serious crime?. Not that many times. Furthermore, many States including notorious Virginia have been asking people’s immigration status during routine traffic stops anyway since 9-11. Under the new ruling by the US Supreme Court, local authorities are not permitted to hold persons for prolonged period of times even after they determine that the person they have accosted is not in legal immigration status. To water down the ruling, the Supreme Court held that immigrants are not required to carry their legal papers everywhere!. This means that if one is stopped, one is only required to verbally tell local enforcement what his or her status is without producing papers to prove it!.
In addition, there is something we need to understand; State(read local) databases are not linked to the Department of Homeland Security database and so local law enforcement cannot just log into a computer, click some characters and determine that a person is illegal. They have to contact Immigration and Customs Enforcement (ICE) for confirmation and even ICE sometimes is not sure of one legal status from the DHS database. ICE must then come and pick the person stopped and promptly charge him or her with an immigration violation. Reality is that ICE is overstretched and most times does not have resources to respond to all calls from local enforcement who have stopped illegal immigrants on minor state law violations. This is in fact the reason why most states are frustrated – precisely the fact that ICE has not been promptly responsive to their calls asking them to come and picked up illegal immigrants that state law enforcement accost. Remember state law enforcement are not permitted to detain anyone based on an immigration violation and hence must call ICE to pick up the arrestee within hours. This does not happen!. The only way ICE comes in is if the person accosted is detained on charges of state law violation and is placed in a county or state detention center in which case ICE places a detainer. In any case, there are many laws in the books that protect even those immigrants that are netted under the permissible provisions of the Arizona law and similar provisions by other states. For instance, since the Supreme Court has ruled that immigration papers can only be demanded if a stop is lawful, many will argue that a stop where immigration papers were requested was unlawful- that is, not based on reasonable suspicion e.t.c. This means that there cannot be widespread and indiscriminate targeting of immigrants by local law enforcement.
Most importantly, as expected, the Supreme Court ruled that regulation of immigration law is the sole preserve of the federal government. This means states cannot pass laws that regulate immigration. The furthest states can go in that regard which does not even come close to regulation of immigration is passing laws that mandate their law enforcement to inquire into legal status of persons that they have ‘lawfully stopped’. And even after they do so, they lack the teeth to take any further steps other than to contact ICE which might not respond promptly as has been the case and the reason for widespread frustration from the states.
My opinion is that given this ruling, things will remain as they are and not any worse for the immigrant. The current state of affairs is that if one is arrested and detained by law enforcement which would be the case only if one is suspected of committing a serious crime, ICE will not be involved. However, ICE will be involved if one is incarcerated in a state or county penitentiary. This is nothing new. It has been going on for a long time. In this regard, we have to understand that ICE’s enforcement priorities are aimed at deporting only those who commit serious crimes and not to expel every illegal immigrant. That explains the June 2011 and June 2012 presidential directives. Both emphasize that ICE should focus their resources and enforcement priorities on expelling aggravated felons and those who have committed crimes that are a danger to the community. As a lawyer, I have had ICE drop deportation cases of clients who have been here illegally for years or have violated immigration laws and basically declined to pursue their deportation, and just ‘left them alone’. Believe me, if you are a law abiding immigrant you have nothing to worry about. Its not that bad folks!
Lastly, the ruling by the Supreme Court is a blessing for the illegal immigrant. The Court has confirmed to the American public that it is the Federal Government that has the mandate under the constitution to fix the immigration mess. The American public will expect the federal government and not the states to resolve the immigration problem. This means that the federal government will be pressured into passing comprehensive immigration reform or face the wrath of the public. In fact, the states will push for the federal government to ‘do something about immigration’ because they themselves cannot do anything as dictated by the Supreme Court’s ruling. Comprehensive immigration reform will be a gain for the immigrant any way you look at it.
By Regina Njogu, Esq.
