I was at church on Sunday when a fellow parishioner decided to engage me on the Arizona anti-immigration Law. His main point was this: ”it is exactly like federal law.” When I explained to him that it was not actually “exactly” like federal law and that in fact there is no federal law allowing for racial profiling and arresting people because they look “illegal,” he would not believe me (keep in mind, we are at church).
I have heard repeatedly over the last month, from folks who may have read the Arizona law, but who have NOT read the federal law, that the Arizona law is somehow nothing more than an extension of what the Federal government already does. Nothing could be further from the truth. In fact, the Arizona law is classic Kris Kobach. When he worked in the Attorney General’s office under Ashcroft, he took Section 263 of the INA (written as part of the Alien Registration Act of 1940 — this law is how we put thousands of Japanese into internment camps), and turned it into “Special Registration” or NSEERS. NSEERS was designed to have Muslim men who had come into the U.S. legally come and “register” with the then INS. NSEERS did not require anyone who entered illegally come in and register (that is true). The program is considered an failure, as it produced no viable evidence of anyone involved in terrorist activities. It did lead, however, to 13,000 Muslim men being arrested, jailed and placed in removal proceedings, so perhaps Kobach did achieve his goal.
That said, and to make the argument that the Arizona law mimics federal law, Kobach has now taken Section 264(e) of the same Alien Registration Act of 1940, and included it in the new Arizona law (A.R.S. 13-1509). Section 264(e) makes it a federal misdemeanor, punishable by 30 days in jail and/or a $100 fine, to fail to carry one’s ”certificate of alien registration or alien registration receipt car issued to him pursuant to subsection (d).” Now subsection (d) of the INA 264 says: ”every alien in the United States who has been registered and fingerprinted under the provisions of the Alien Registration Act, 1940, or under the provisions of this Act shall be issued a certificate of alien registration or an alien registration receipt card in such form and manner and at a such time as shall be prescribed under regulations issued by the Attorney General.” That alien registration document refers to the registration document created under the section of law that Kobach previously used to remove Muslim men from America. However, in case you were thinking that this federal statute was actually being used, a search of court records reveals no prosecutions federally for this offense, and the last citation to the statute in an immigration appeals court case 32 years ago.
So, while technically true that federal law does require anyone required to “register” to carry proof of that registration with them at all times, in reality, enforcement of this law has been suspended for decades for good reason–the law has not kept up with the changes in immigration law. There are now dozens of ways to prove one’s legal status, many of which do not even include proof (e.g. Canadians who enter by showing a passport are given no proof of entry). The law is basically unenforceable, or other words, broken.
A bigger issue, however, is the provision in the Arizona, that is causing the most outage — the racial profiling provision found in Section 3 of HB2162, now A.R.S. Section 11-1051. This is the big lie. This provision does NOT have any federal immigration statutory counterpart. There is a federal regulation that reads as follow:
8 CFR 287.8(b)(2) If the immigration officer has a reasonable suspicion, based on specific articulable facts, that the person being questioned is, or is attempting to be, engaged in an offense against the United States or is an alien illegally in the United States, the immigration officer may briefly detain the person for questioning.
The question becomes this. What are “articuable facts” to a trained ICE or CBP officer of a person’s illegal presence in the United States, versus what those facts are to a Maricopa County Deputy Sheriff? Let’s not kid ourselves, this new Arizona law will lead to racial profiling, and thus creates the strong possibility that it is unconstitutional. Kobach knows he is pushing the envelope on constitutionality here. He has repeatedly played this game at the expense of cities and counties around the United States. His plan is clear, keep getting gullible and politically ambitious politicians to pass marginally constitutional laws, in the hopes of establishing the outer fringes of what is unconstitutional on the issue of immigration enforcement (e.g. mandatory e-verify vs. housing discrimination).
So, Section 11-1051 is an attempt to establish how much “profiling” will be allowed in Federal law. Kobach wrote:
“[F]or any ”lawful” stop, detention or arrest (actually he wrote “contact” but then realized after passage that this would fail constitutional muster so he had the AZ folks change it) made by a law enforcement official or a law enforcement agency of this state, . . . county, city, town . . . in the enforcement of any other law or ordinance of a county, city or town or this state (to make sure to include housing violations and cars on blocks in the yard, because you know those are signs of ”illegals”), where ”reasonable suspicion” exists that the person is an alien and is unlawfully present in the United States, a reasonable attempt shall be made, when practicable, to determine the immigration status of the person, . . . .
Do you really believe that a statute this vague, ambiguous and downright inflammatory actually will pass constitutional muster? I hope not, because it does not. Now, tell me this–What does this language mean? The term “reasonable suspicion” is nowhere defined in the Immigration and Nationality Act. So, what is “reasonable suspicion” that someone “is an alien unlawfully present?” Is it the clothes they wear? Their haircut? Perhaps the car they drive? The person’s accent? Or, do you just know it when you see it, like pornography.
Perhaps the problem here is Kobach. Do we really want a man on a mission to aggrandize himself (and make a living on the lawsuits he causes to be filed by the laws he writes) to be the puppet-master behind these ambitious blinded politicians? Isn’t a dialogue on the most effective way to curb illegal immigration, without passing unconstitutional laws denigrating entire races of people? Surely we, as a society, are capable of agreeing on a solution that enforces our borders, punishes bad employers, secures America, AND provides compassion to people, energizes our economy, supplies needed labor and investment, and provides for an appropriate flow of immigrants and non-immigrants in the future. I just hope we come to a solution before Kobach dreams up his next unconstitutional nightmare.