The Bill
By now most people have heard about the pending legislation regarding illegal immigration in Arizona. The most controversial features of S.B. 1070 include the following:
- allows a state, county, or town official/agent to inquire the immigration status of an alien if the official/agent has reasonable suspicion that the alien is not in the U.S. legally;
- makes it a criminal trespass if an alien fails to carry proof of his/her legal status in any private or public land in Arizona;
- makes it a crime to transport an illegal alien in Arizona, if the government can prove that the driver knows or reckless disregards of the alien's immigration status;
- allows private citizens to sue the state, county, city, or town for not enforcing federal immigration law.
Problems
While I think we should enforce our federal immigration law, I am very concerned on the negative effects this bill has on people who are in the U.S. LEGALLY.
Vague Definition
First of all, there is no clear definition of "reasonable suspicion." Is speaking English with an accent good enough to cast reasonable suspicion on the immigration status of a person? If yes, then I may be stopped a lot by police officers when I visit Arizona!
Second, how do you define "reckless disregard" of an alien's immigration status? If someone at school/church asked me to give him a ride, should I inquire about his immigration status before saying yes? For example, if a boy who came from Australia had overstayed his visa in the U.S. since age 2 and speaks English with no accent, I probably would not know or check his illegal status and I could get arrested for giving him a ride. What about driving an alien who had overstayed his visa because his flight to go home was cancelled due to natural diasters like earthquake or volcanic ash? Because I knew of his illegal status, I could be arrested when I drove him to the airport and sent him home!
Big Inconvenience, Could Even Be Unconstitutional
It is even more problematic to require an alien to carry proof of legal status whenever he/she is in Arizona. It is true that federal law requires permanent residents to carry their green cards with them wherever they go. But what about citizens? Do all citizens need to bring their birth certificate, naturalization certificate, or passport when they go to shop at a local grovery store or their neighbor's home? If yes, then it would be a big inconvenience for any citizen who lives or visits Arizona. If only naturalized citizens need to do that, then we are definitely making them second-class citizens and it is a clear violation of the equal protection clause of the 14th Amendment. What about non-immigrant visa holders like students or H-1B workers? Do they need to bring their passports or USCIS documents with them wherever they go in Arizona? This could particularly affect those who are visiting from other states. For example, it is totally possible for an H-1B worker who worked in the U.S. after graduation to drive to Arizona to visit the Grand Canyon and got arrested for not carrying his H-1B approval notice to prove his current legal status when he stopped at a gas station! To make things even worse, because it is a crime for not carrying his proof of legal status in Arizona, the poor guy could be deported and barred from entering the U.S. in the future! That does not make sense to me and I hope it will never happen.
Now some people may argue that a driver's license would be a good enough proof for legal status. However, as of 2009, four states still issue driver's license to illegal aliens. Moreover, many states have issued driver's license to students and temporal visitors as long as they can prove their legal status at the time of issuance. Therefore, aliens who have overstayed their visas can nonetheless hold valid driver's license.
Hurting Arizona Financially
Needless to say, allowing private citizens to sue their local government for not enforcing immigration law and attaches civil penalties to it would drain the financial resources of the local government in Arizona. Can a resident of Arizona sue the city officials for not arresting my neighbor who has overstayed his visa? If yes, then people who are running out of money could find a new way to make some.
This legislation could potentially hurt tourism in Arizona as well. Aliens, legal or not, may want to avoid Arizona to ensure they are safe. Would that be a good thing for towns who rely on the millions of tourists who visit the Grand Canyon and other scenic places in the state? I think so.
Conclusion
I know some of the examples I have used are a bit extreme, but those are possible and undesirable effects of the AZ legislation. We should not tolerate any violation of law, but this particular Arizona legislation is going to create more problems than solving them.
Disclaimer: Information included in this post does nto constitute as legal advice and receipt of this page does not establish attorney-client relationship. For specific inquries, please contact my office for an appointment.
