Maryland Bar Bulletin
Publications : Bar Bulletin : August 2010

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 BAR BULLETIN FOCUS: IMMIGRATION LAW

A new CNN poll shows that 81 percent of Americans are in favor of some type of immigration reform that would allow illegals who have been residing here for years to have some way of obtaining legal status in this country if they paid back taxes and had a job. Yet, the struggle in Arizona seems to concern getting rid of those illegally here. SB 1070, an immigration law signed into law by Governor Jan Brewer in April 2010, continues to cause uproar across the country, having far reaching social, legal and economic consequences on the Grand Canyon State of Arizona. Like an iceberg, the tip above is far smaller than the underlying ice below. Many protests, lawsuits and boycotts have resulted, as well as claims of challenges to the 14th Amendment to the Constitution charges of racial profiling. Lately, Senator Kyl of Arizona proposed eliminating citizenship by birth to children of those illegally here. Anti-immigration groups claim that SB 1070 and its amendment would not be necessary had the U.S. federal government provided the security from kidnapping and drugs coming across the border from Mexico.

The U.S. Department of Justice filed a lawsuit on July 6, 2010, against this law, referring to the Supremacy Clause, which declares that any state law that contradicts the federal law is preempted according to the U.S. Constitution, Article VI.  On July 28, 2010, Phoenix District Court Judge Susan Bolton enjoined key provisions of the Arizona controversial law SB 1070. She blocked certain of the most controversial provisions, stating that Federal government had authority over immigration and that local police could not make decisions over immigration status. Arizona promptly responded by filing an appeal at the Ninth Circuit of the preliminary injunction in United States v. Arizona. An expedite request by the state was refused, but the oral argument is set for early November 2010.

In an effort to guide Congress to pass comprehensive immigration reform, President Obama presented on July 1, 2010, the following points to revitalize what he called a broken immigration system:

  • Requiring undocumented immigrants to pay a fee for illegally residing in U.S.;
  • Requiring them to take English classes;
  • Allowing them to get in line for legalized status.

Seven new lawsuits against this Arizona law have been filed since April 2010. U.S. District Judge Susan Bolton will hear the seven law suits that have currently been filed as legal challenges to the new Arizona law. The seventh lawsuit, by police officers, focuses on the “vague and ill-defined factors” to question someone’s legal status.

Ten states currently support Arizona’s immigration law: Michigan, Utah, Alabama, Florida, Nebraska, Pennsylvania, South Carolina, South Dakota, Texas and, most recently, Virginia. All claim that the Federal government is trying to negate the power of the states to verify immigration status through lawsuit rather than by legislation.

What Does SB 1070 Require?

Currently, the law requires “reasonable suspicion” to presume that 1) the person is an alien unlawfully present in the U.S. and 2) that the person has broken any law or ordinance of county, city or town or state. Clearly, this could be minutia – anything from a traffic stop to loitering in the wrong place. The law then requires law enforcement agency to transfer the person to federal custody and facility. This gives a law enforcement officer authority to determine legal status and also allows civil penalties and fines of $500 – $5,000 for each day that the lawful permanent resident brings action against the state, as well as court costs and attorney fees if the resident prevails on adjudication. This is a small penalty for false imprisonment and all the related legal and social ramifications and consequences that the person suffers. However, it certainly puts the law enforcement officer in a “Catch 22” situation. It also is grossly unfair to the permanent resident who must take a costly legal action to get any benefit for the government’s mistake.

Racial profiling violates the 5th and 14th Amendments of the U.S. Constitution. Our Supreme Court has held that police checkpoints and questioning near borders is legal for those suspected of being illegals. In 2007 alone, over 600,000 non-citizens were incarcerated in state jails while waiting for immigration removal proceedings.

Although the law states that the officer may not consider race, color or national origin to enforce this law, it also says “except as permitted by the U.S. or Arizona Constitution.” Furthermore, unless the officer acts in bad faith, he is indemnified from any suit or proceeding.

Unfortunately, the law does not stop here, for it criminalizes the person who transports, moves, conceals, harbors or shields the unlawful alien as a Class 1 misdemeanor, with a fine of $1,000 for each illegal immigrant.

Economic Effects of SB 1070

According to the Immigration Policy Center, 27 percent of immigrants (294,541 people) as of 2007 were naturalized U.S. citizens. Nearly one-third of Arizonians are Latino or Asian. Latinos currently comprise 11.7 percent of Arizona voters, so clearly this is a problem for the Federal government, which seeks their support. Currently, there are more immigrants in Arizona than in San Jose, California. Billions of dollars and thousands of jobs are being added to the Arizona economy by Latino and Asian consumers and businesses. The U.S. Census Bureau’s Survey of Business Owners claims over 35, 000 Latino-owned businesses, more than 10,000 Asian-owned businesses and over $44 billion in economic output by immigrants. Thus, according to the Perryman Group, Arizona would lose over $26.4 billion in economic activity and approximately 140,324 jobs.

The real question Arizona must ask is whether it can afford this bill socially, economically, politically and legally even though a large majority of Arizonians support this bill.

Danielle L. C. Beach is the Managing Partner of Beach-Oswald Immigration Law Associates, PC, in Washington, D.C.


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Publications : Bar Bulletin: August 2010

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