PHOENIX, Ariz. -- Carmen Lopez doesn’t want to turn on the TV these days. With the U.S. Supreme Court expected to rule on Arizona’s immigration law any day now, she says watching the news just makes her more worried.
Lopez has been supporting her three children by herself since February, when her husband was deported to Mexico days after Phoenix police pulled him over for speeding and asked for his papers.
The so-called “Papers, Please” provision, which requires Arizona police to ask for people’s immigration status during routine stops, was temporarily blocked by a federal judge. But police still ask individuals for their papers at their own discretion, as happened in the case of Lopez’s husband.
Now a decision by the U.S. Supreme Court will determine whether this provision will go into effect, making it a requirement for police to inquire about an individual’s immigration status based on “reasonable suspicion.”
And immigrants like Lopez fear this will lead to more police encounters like the one that got her husband deported.
Three other provisions of the 2010 law that were blocked by a lower court could also be reinstated by the Supreme Court justices. These include the requirement for penalties for not having legal documents to be in the state; making it a crime to seek employment as an undocumented immigrant; and the authorization of warrantless arrests of individuals.
Legal observers and immigrant rights activists agree that the justices are more likely to reinstate the “Papers, Please” portion of SB 1070 that would make it mandatory for local law enforcement to inquire about a person’s immigration status and detain him or her indefinitely to get the answer.
One of the fundamental questions now is, if this portion of the law goes into effect, how will Immigration and Customs Enforcement (ICE) respond when contacted by local law enforcement?
“I think the real impact of this is going to be what policy does ICE adopt as a result of these encounters at the street level,” said Muzaffar Chishti, director of the Migration Policy Institute at the New York School of Law.
A local spokesperson from ICE declined to comment about their policy before the Supreme Court ruling is issued.
Getting ready to implement the law
Expecting a favorable ruling, Governor Jan Brewer is wasting no time in getting Arizona police ready to begin enforcing the controversial law. This week she issued an executive order for the Arizona Peace Officers Standard and Training Board (AZPOST) to redistribute a 90-minute DVD among law-enforcement in Arizona no later than June 15 on the enforcement of SB 1070.
AZPOST created the video to train law-enforcement two years ago, in the midst of criticism against the law by several police chiefs, among them former Phoenix Police chief Jack Harris, that the law would distract police from law-enforcement priorities and could open the door to racial profiling.
The Phoenix Police Department – the largest in the state – recently reviewed its policy to comply with the portions of SB 1070 that did go into effect in 2010. They are now waiting to hear back from the Supreme Court to see if any changes will need to be made.
One of the portions of SB 1070 that did go into effect opens the doors for police departments to face lawsuits if they have any regulations that prohibit their officers from cooperating with ICE.
“An organization can’t make a policy which prohibits its people from contacting ICE,” explained Tommy Thompson, a spokesperson for the Phoenix Police Department. But that doesn’t mean police would wait on the phone indefinitely to hear back from ICE whether someone is in the country legally or not, he added.
Thompson said it is not mandatory for police to call immigration authorities. There’s discretion, too, when it comes to a victim or witness of a crime.
But immigrant rights groups like PUENTE are concerned that most officers in the police department and Maricopa County Sheriff’s Office seem to use that “discretion” to call ICE.
A Supreme Court ruling could generalize this to all law-enforcement in the state.
“Each police officer will have new power. If that police officer just wants to stop someone because of the color of their skin, he’ll be able to do it,” said Carlos Garcia of PUENTE. “The federal government created this very problem, by using programs like Secure Communities.”
Under the national Secure Communities program, police are required to send the fingerprints of anyone they arrest through a federal immigration database. It is one of the reasons many people without documents are detected by ICE and deported once they come in contact with local police.
A record 1.5 million people have been deported under the Obama administration.
“For us now, this looks like a competition to see who can deport us better,” said Garcia. “It’s hypocritical for the federal government to file lawsuits and launch investigations while they continue to work and help law-enforcement to deport people.”
The case before the court
The U.S. Supreme Court accepted an appeal to a ruling on SB 1070 that was filed by Arizona Governor Brewer. Brewer filed the appeal in response to a Department of Justice (DOJ) lawsuit that argued the state law was pre-empted by federal law.
During oral arguments at the Supreme Court last April, the Obama administration’s Solicitor General Donald Verrilli tried to persuade the justices to look at the overall impact the law could have when all of its provisions worked together. He said it could lead to “massive incarceration of people who are illegally present” and raise concerns over U.S. relations with other countries.
The argument didn’t seem to convince some of the justices.
“Can't you avoid that particular foreign relations problem by simply deporting these people? Look, free them from the jails?” asked Justice Antonin Scalia.
Justices paid particular attention to the provision that mandates local police to ask about someone’s immigration status during a traffic stop. Alabama’s immigration law HB 56 has a similar provision that, unlike SB 1070, has gone into effect.
Chief Justice John Roberts pointed out that mandating local police in Arizona to run immigration checks by calling immigration authorities wouldn’t interfere with federal priorities, since the decision of whether to take the person into custody for removal was still left up to the federal agencies.
“It seems to me that the federal government just doesn't want to know who is here illegally or not,” said Roberts.
Justice Anthony Kennedy, considered to be the swing vote, didn’t seem to buy into the federal government’s argument either.
“Can we say, or do you take the position, that a state must accept within its borders a person who is illegally present under federal law?" he asked.
Justice Sonia Sotomayor observed that the federal government’s argument wasn’t “selling very well” and inquired mostly about the constitutional implications of detaining a person for an indefinite period of time in order to determine his or her immigration status.
Justice Elena Kagan recused herself from the case because of her role as a former solicitor general for the Obama administration. This opens the door for a 4-4 split decision. In the case of a tie, the lower court ruling would stand. But that would mean the Supreme Court would not issue an opinion elaborating on its reasoning, leaving no legal precedent for other states to follow.
At least five other states are waiting to hear back from the U.S. Supreme Court ruling.
If portions of SB 1070 are allowed to go in effect, the five states that have enacted copycat laws -- Alabama, Utah, South Carolina, Indiana and Georgia -- would move forward with the parts of their laws that have been placed on hold, said Chishti.
Other states that are holding off in passing similar legislation could see a Supreme Court decision as a green light. But, Chishti added, they would also have take into consideration the economic consequences of anti-immigrant laws, such as the “business backlash” faced by Georgia, Arizona and Alabama.
“Then there’s the cost of litigation,” he said. “Despite the fact that they may uphold the Arizona law, all of these state legislations are going to be challenged.”
It’s only the beginning
Any decision the high court makes won’t be the end of the legal challenges surrounding SB 1070. It is most likely only the beginning. That’s because it would open the door for pending lawsuits by civil rights groups that have been in limbo to move through the Federal District Court in Phoenix under Judge Susan Bolton, the same judge who previously enjoined portions of the law.
“This is a decision to preliminary enjoin while the lawsuit is pending,” said Dan Pochoda, lead attorney at the American Civil Liberties Union (ACLU) from Arizona.
“It’s not a final decision,” he said. It may be the end for this particular lawsuit, but there are other lawsuits that have been waiting in the wings and will now move forward.
Some of these lawsuits challenge Arizona’s immigration law on entirely different grounds than the question of federal pre-emption that was brought before the Supreme Court.
For example, the ACLU and the Mexican American Legal Defense and Educational Fund (MALDEF) are representing a lawsuit brought by community groups that challenges SB 1070 on the grounds that this type of legislation would lead to racial profiling – an argument that was conspicuously absent from the Supreme Court hearing.
Pochoda said it is unclear at this time whether or not these groups would ask for an immediate stay of SB 1070 based on the racial profiling argument or if they’ll wait to gather evidence if portions of the law do go into effect.
Renewed calls for prosecutorial discretion
Arizona groups like PUENTE and young activists of the DREAM Act movement (legislation that could help legalize students raised in the United States) are planning to continue the push for the federal government to take action and halt the deportation of immigrants and undocumented youth raised in the U.S.
On June 23, organizers are holding a vigil calling for the shut down of Tent City –one of the outdoor jail facilities administered by Sheriff Joe Arpaio – known for his crackdown on illegal immigration and allegations of abuse of power. Arpaio is also facing criticism due to the recent deaths of Latinos in his custody.
Garcia said they are planning a national bus tour of undocumented families who will reveal their status, challenging the government to arrest them. This could potentially open the doors for some of them to fight in court to stay in the U.S., or at the least saturate the system forcing action, he says.
The group wants to push the Obama administration to fulfill what it set out to do in a memo issued by ICE’s director John Morton in June 2011. The memo included criteria for prosecutorial discretion in deciding whether someone should be deported or not.
But critics say these guidelines have not been put into place in practice.
“There hasn’t been real prosecutorial discretion,” Garcia argued.
Morton called on ICE attorneys and employees to refrain from pursuing non-citizens with close family, educational, military, or other ties in the U.S. and instead spend the agency’s limited resources on those who pose a serious threat to public safety or national security.
“I think this discussion of prosecutorial discretion will become essential to the real impact of the SB 1070 decision,” said Chishti. “It’s going to be a matter of priorities.”
In the meantime, immigrants like Carmen Lopez continue to worry for their U.S. citizen-children, who want to remain in Arizona and refuse to go to Mexico, a country they don’t know.
“Obama promised us something,” said Lopez. “But he hasn’t done anything.”
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