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What's really new about Arizona's new approach to illegal immigrants [UPDATED]

May 14, 2010 |  6:05 pm

Boosted by the attention from other bloggers and KFI-AM's John and Ken, our online poll about the City Council's boycott of Arizona drew an overwhelming response from supporters of the Grand Canyon State's latest crackdown on illegal immigrants. Take the results with a grain of salt; the poll wasn't scientific. But the clear message from legions of commenters was that council members and other opponents of the law had it misconstrued; it is, as one put it, "the already established federal law!"

That's close to the truth, but not quite.

The main difference is that SB 1070, Arizona's new law, gives state and local law enforcement officers the same authority as federal immigration officers to stop a person and determine his or her immigration status. Specifically, all that's needed is a "reasonable suspicion" (a well-understood legal standard) that the person is in the country illegally.

Like every other state, Arizona has long had the ability to check the immigration status of inmates and detainees, and to turn over to the feds the ones determined to be in the country illegally. SB 1070 extends the immigration-enforcement functions to cops on the beat, whose interpretation of "reasonable suspicion" may be quite different from that of a Border Patrol or Immigration and Customs Enforcement agent. The only guidance provided in the law is that officers "may not solely consider race, color or national origin" when enforcing its requirements.

The new law would also make it a crime in Arizona for noncitizens to be in the state without carrying the proper federal registration papers. And it effectively sets up a swift route to deportation, requiring that federal immigration officials be notified immediately when anyone found guilty of a state law (e.g., the new lack-of-registration crime) is ready to be discharged. Once in federal custody, the detainee would be deported voluntarily or by court order, although he or she could contest the deportation in court.

The stage thus would be set for deporting more nonviolent but illegal border crossers, something that law enforcement agencies haven't placed a high priority on. The federal government in particular has focused its enforcement efforts on felonious illegal immigrants who've broken laws beyond the immigration codes, and has shifted its workplace sanctions from illegal workers to the companies that employ them. But under SB 1070, local agencies wouldn't be free to set their own crime-fighting priorities. It would empower citizens to sue any state or local official or agency that "limits or restricts the enforcement of federal immigration laws to less than the full extent permitted by federal law."

Whether such an effort will reduce the state's rate of violent crimes or crimes against property is subject to some debate. According to the Immigration Policy Center, a harsh critic of SB 1070, crime rates have been dropping in Arizona in recent years despite the number of illegal immigrants; in fact, they've been falling faster in states with the highest number of immigrants than in the rest of the country.

Update, Monday, 1:16 p.m.: As several commenters pointed out, SB 1070 wasn't Arizona's last word on the subject. The legislature subsequently passed HB 2162, which bars state officers from checking a person's immigration status unless a) the person was legally stopped "in the enforcement of" a state law or local ordinance, and b) the officer had reasonable suspicion that the person was an illegal alien. HB 2162 also flatly prohibited officers from considering race, color or national origin when enforcing its provisions.

The new limitation in a) raises the bar a bit, effectively barring officers from striking up a conversation with someone and asking to see his or her papers. Now, they can't ask that question unless he or she changes lanes without signaling, jaywalks, loiters or commits some other infraction. I wonder, though, if it might also allow officers to detain everyone in a car that's stopped for an illegal lane change. If so, the chances increase that citizens and legal residents will be detained because they failed to carrying their papers -- think 15-year-old students or people getting a lift to the gym. Whether that's a realistic risk depends on aggressively the new law is enforced and how the courts interpret the "in the enforcement of any other law or ordinance" clause.

Commenters have also noted a provision in California law requiring state and local authorities to determine the immigration status of the people they arrest, then alert the feds of any apparent illegal border-crossers. Significantly, however, the law does not apply to routine traffic stops, nor does it require aliens to carry their immigration papers at all times. In essence, it does what other states typically do, which is focus California's enforcement efforts on illegals who commit other, non-immigration-related crimes.

Of course, many of the commenters on this post have argued that every illegal immigrant is a law-breaker, and none of them should be spared the consequences. Mitchell Young offered an interesting analogy on Saturday to the "broken windows" theory of policing in high-crime areas: tolerating some illegal immigration (say, by those who pick crops) encourages permissiveness toward other forms of criminality. I'm not persuaded by that argument, but read it for yourself on the second page of comments below.

-- Jon Healey

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