Wording in Arizona Bill

[Usui Takumi 1,562]

In a previous thread that has gone way off topic it was noted (primarily thanks to Jim)that police can not arrest illegal immigrants unless they committed a public offense that is grounds for removal. Therefore a simple moving violation doesn't allow police to arrest anyone.

But can they detain them and transport them to a Federal location? Obviously most police won't want to deal with this but does the law allow them to detain and transport them. Also does this law allow law enforcement to take illegal immigrants from courtrooms for minor offenses such as red light ticket fines to federal locations?

I'll just post the sections where I am making these conclusions. Hopefully Jim might stop by as well.

A. NO OFFICIAL OR AGENCY OF THIS STATE OR A COUNTY, CITY, TOWN OR

OTHER POLITICAL SUBDIVISION OF THIS STATE MAY ADOPT A POLICY THAT LIMITS OR

RESTRICTS THE ENFORCEMENT OF FEDERAL IMMIGRATION LAWS TO LESS THAN THE FULL

EXTENT PERMITTED BY FEDERAL LAW.

B. FOR ANY LAWFUL CONTACT MADE BY A LAW ENFORCEMENT OFFICIAL OR AGENCY

OF THIS STATE OR A COUNTY, CITY, TOWN OR OTHER POLITICAL SUBDIVISION OF THIS

STATE WHERE REASONABLE SUSPICION EXISTS THAT THE PERSON IS AN ALIEN WHO IS

UNLAWFULLY PRESENT IN THE UNITED STATES, A REASONABLE ATTEMPT SHALL BE MADE,

WHEN PRACTICABLE, TO DETERMINE THE IMMIGRATION STATUS OF THE PERSON. THE

PERSON'S IMMIGRATION STATUS SHALL BE VERIFIED WITH THE FEDERAL GOVERNMENT

PURSUANT TO 8 UNITED STATES CODE SECTION 1373©.

C. IF AN ALIEN WHO IS UNLAWFULLY PRESENT IN THE UNITED STATES IS

CONVICTED OF A VIOLATION OF STATE OR LOCAL LAW, ON DISCHARGE FROM

IMPRISONMENT OR ASSESSMENT OF ANY FINE THAT IS IMPOSED, THE ALIEN SHALL BE

TRANSFERRED IMMEDIATELY TO THE CUSTODY OF THE UNITED STATES IMMIGRATION AND

CUSTOMS ENFORCEMENT OR THE UNITED STATES CUSTOMS AND BORDER PROTECTION.

D. NOTWITHSTANDING ANY OTHER LAW, A LAW ENFORCEMENT AGENCY MAY

SECURELY TRANSPORT AN ALIEN WHO IS UNLAWFULLY PRESENT IN THE UNITED STATES

AND WHO IS IN THE AGENCY'S CUSTODY TO A FEDERAL FACILITY IN THIS STATE OR TO

ANY OTHER POINT OF TRANSFER INTO FEDERAL CUSTODY THAT IS OUTSIDE THE

JURISDICTION OF THE LAW ENFORCEMENT AGENCY.

Edited April 27, 2010 by Sousuke

[JimVaPhuong 4,863]

Thanks for the invite.

By strict interpretation of the wording of the text, they would have to determine that the alien was illegal before they could transport them. It says "an alien who is unlawfully present". This means that the actions described in paragraph B would have to be done first.

The text of the law doesn't require the alien to commit any crime in order to be remanded to ICE or other federal authorities. If they are determined to be illegal, then paragraph D gives them the authority to hand them over. The purpose of paragraph C appears to be that they are required to hand them over to the feds, but only after they serve their time and/or pay their fine for the other crime they are convicted of.

[Usui Takumi 1,562]

So strictly speaking, unless an illegal immigrant committed a public offense that was removable, the police can only:

1. Detain and transport an illegal if the illegal confesses to being illegal.

2. Detain the alleged illegal immigrant at the point of contact and contact ICE to come and take the person for questioning.

3. Report to ICE the person's name / whereabouts ie. home, work for future investigation.

[Dan J 277]

The biggest problem is with Part B.

Lawful contact can include anything contact with the police. Including reporting a crime, being questioned as a witness to a crime, and any other case where you might talk to police but not be inolved or charged with crime.

This could actually lead to an increase in crime in certain communities, due not a lack of cooperation from witnesses and victims over a fear of deportation.

[TBoneTX 45,304]

B. FOR ANY LAWFUL CONTACT ... A REASONABLE ATTEMPT SHALL BE MADE, WHEN PRACTICABLE, TO DETERMINE THE IMMIGRATION STATUS OF THE PERSON.

This seems like an "out" -- or a blanket "in." Because I'm as curious as is Sousuke (and thanks for refocusing this topic in a new thread, si man), I meant to call some abogados... er, lawyers on Monday to ask exactly what the Constitutional implications are. Does "lawful contact," for example, mean that a puerco... er, officer can (for example) enter a Chinese restaurant and: either question the (Chinese) staff & the Hispanic customers to see who confesses or looks nervous, or simply see who looks nervous or runs? Does that constitute "reasonable articulable suspicion"?

I also need to ask whether -- to avoid accusations of (or actual) "profiling," the state of Arizona would or could set up roadblocks, such as drunken-driving checkpoints or what CBP does already, to stop & question EVERYBODY about their citizenship status. The Supreme Court has, in the past, approved "temporary" roadblocks for the purpose of specific crime-checking, but not for general questioning. I can see the slippery slope down to "Your papers, Comrade!" coming... but, again, I need to consult the abogados, si man.

Edited April 27, 2010 by TBoneTX

[Pinocchio Liberal 268]

This seems like an "out" -- or a blanket "in." Because I'm as curious as is Sousuke (and thanks for refocusing this topic in a new thread, si man), I meant to call some abogados... er, lawyers on Monday to ask exactly what the Constitutional implications are. Does "lawful contact," for example, mean that a puerco... er, officer can (for example) enter a Chinese restaurant and: either question the (Chinese) staff & the Hispanic customers to see who confesses or looks nervous, or simply see who looks nervous or runs? Does that constitute "reasonable articulable suspicion"?

I also need to ask whether -- to avoid accusations of (or actual) "profiling," the state of Arizona would or could set up roadblocks, such as drunken-driving checkpoints or what CBP does already, to stop & question EVERYBODY about their citizenship status. The Supreme Court has, in the past, approved "temporary" roadblocks for the purpose of specific crime-checking, but not for general questioning. I can see the slippery slope down to "Your papers, Comrade!" coming... but, again, I need to consult the abogados, si man.

You seem a bit nervous!

[TBoneTX 45,304]

You seem a bit nervous!

I'd call it more "disquieted." I don't question the law from the left ("it's racist, bigoted, prejudiced against whomever"), but rather from the right: If we have a Constitution (Fourth, Fifth, & Fourteenth Amendments, plus "presumption of innocence" under common law), what are the practical effects & long-term potential implications of this law if it's implemented? An example of a practical effect is whether this law modifies & magnifies whatever Arizona's "stop & identify" or "failure to identify" law now is. Every state has the right to establish such a law (courtesy of the Supreme Court's awful ruling in "Hiibel"), but does this one -- or when would this one -- impinge upon Constitutional precepts that still exist in more or less their pure form? See the second paragraph of my earlier message, si man.

I really ought to place a call to the abogados right now, si man... film at 11.

[Usui Takumi 1,562]

I'd call it more "disquieted." I don't question the law from the left ("it's racist, bigoted, prejudiced against whomever"), but rather from the right: If we have a Constitution (Fourth, Fifth, & Fourteenth Amendments, plus "presumption of innocence" under common law), what are the practical effects & long-term potential implications of this law if it's implemented? An example of a practical effect is whether this law modifies & magnifies whatever Arizona's "stop & identify" or "failure to identify" law now is. Every state has the right to establish such a law (courtesy of the Supreme Court's awful ruling in "Hiibel"), but does this one -- or when would this one -- impinge upon Constitutional precepts that still exist in more or less their pure form? See the second paragraph of my earlier message, si man.

I really ought to place a call to the abogados right now, si man... film at 11.

That is/was my thought as well, that this law would be just another tool at police disposal to further their investigation/arrest powers on everyone including citizens.

But it appears that their hands are still tied and rely on Federal help.

Time will tell I suppose. One thing I can say for certain, most Arizona police will probably ignore this law in most cases....its too much hassle for them. Yes if they stop a coyote van with lots of people in side they'll act, but if its just a family in a pickup truck etc they'll issue the ticket and move on without asking any immigration questions. I'm sure there will be certain precincts/departments who will enforce this to the T. but they'll be far and few between.

[TBoneTX 45,304]

That is/was my thought as well, that this law would be just another tool at police disposal to further their investigation/arrest powers on everyone including citizens.

Time will tell I suppose. One thing I can say for certain, most Arizona police will probably ignore this law in most cases....its too much hassle for them. Yes if they stop a coyote van with lots of people in side they'll act, but if its just a family in a pickup truck etc they'll issue the ticket and move on without asking any immigration questions. I'm sure there will be certain precincts/departments who will enforce this to the T. but they'll be far and few between.

Interesting & perceptive, si man. I have just finished speaking with an abogado (immigration, & unfortunately not Constitutional), & here are his thoughts:

Regarding the making of stops: The puerco (officer) may continue to operate under the principle of reasonable articulable suspicion (RAS). This can be as simple as "you look nervous" or someone is "acting" nervous. It's completely subjective.

Regarding the language in the Arizona law of "any lawful contact...": Yes, the puerco CAN enter (e.g.) a Chinese restaurant, claim RAS that certain staff or occupants look nervous, and demand their papers. However, this may be too much work (see next item).

Examples of a stop: [1] A pickup truck full of Mexican-looking people is stopped for speeding. The puerco can then demand everyone's papers. [2] It appears that the puerco can stop such a truck purely to demand their papers, because they are likely day-laborers, which constitutes RAS.

Roadblocks: Regarding my question about the establishment of roadblocks in order to stop EVERYONE (to avoid the accusation of "racial profiling," the abogado says that these would be "way too much work" for most puerco agencies. Furthermore, roadblocks are currently permissible only under extremely limited circumstances (the Supreme Court's ruling in the Michigan case regarding drunken-driving checkpoints), & that roadblocks can be established only when there's a high likelihood of danger to the general public from drunken drivers.

Fourth/Fifth Amendment overlap: When asked, a person must identify himself adequately to a puerco (this is the case now in states that have "stop & identify" or "failure to identify" laws). The person cannot flatly refuse to provide this information without repercussions. He may, however, say "I am not resisting. I am neither agreeing nor refusing to provide my identification at this time. Rather, I wish to premise my decision to agree or refuse on advice from an attorney." (This presumes, of course, that the person's English and knowledge are adequate to state this.)

Fourteenth Amendment (equal protection under the law): We won't know how this will play out until the Supreme Court decides, which might not be for years. Conceivably, cases of unfair profiling or harassment could be made by lawful citizens of foreign origin or descent; on the other side, equally strong cases could be made by native-born or legally naturalized citizens who claim that their own rights are being infringed because of the up-sucking of taxpayer-funded services & resources by illegal aliens. This will be interesting. Further, the law could be upheld because of the rationale that the State is filling a hole in enforcement that the Federal government is failing to act on.

Real or perceived infringements: Avoid arguing with puercos at the scene. Rather, be CERTAIN to obtain the puerco's name & badge number, write down every detail as soon as possible thereafter, learn how to contact any witnesses, & pursue perceived civil-rights violations later with the help of an attorney.

Federal amnesty: Too hot an issue; remote prospects that anything substantive will happen.

Some other states may follow Arizona's lead, but likely not many, and not Texas.

Perhaps most important for most VJ members (in any U.S. state) now: Any LPR who has a green card must carry the ACTUAL green card at all times. Fear of the card's potential loss or theft is not a viable rationale for not carrying it, and carrying a color photocopy of the card is not an acceptable substitute.

Ergothuswithforthly, unless I'm missing something that a Constitutional abogado would point out, I'm pretty much left straddling the fence: Si man, the Fourteenth Amendment rights of USCs are indeed being infringed upon if the drain on taxpayer-funded services exceeds what any illegal-alien taxpayers (there are some) might be paying in; but no man, I don't believe that assurance of "the Fourth & Fifth Amendments won't be trampled upon" should rely chiefly upon a casual assumption that puerco agencies will find enforcement of this law to be too much work or too much of a hassle.

Thoughts, si man?

[TBoneTX 45,304]

I'm sure there will be certain precincts/departments who will enforce this to the T. but they'll be far and few between.

Addendum (purely personal conjecture): Enforcement may be forced upon them by an official need for accountability (from the State), or -- more likely -- from the public ("Sheriff, how well are you adhering to this law that we so vehemently favor? We won't re-elect you if you aren't enforcing it to our satisfaction!"), and by civil-rights attorneys who demand official statistics when they sue departments for real or perceived infringements. Edited April 27, 2010 by TBoneTX

[Usui Takumi 1,562]

Well to add, I think for Arizona we've already been saying this, if a person is in AOS carry your paperwork (though as Trompe said in another thread, there is no guarantee that will be enough proof to a LEO.

I never thought "looking nervous" was probably cause? I'm sure LEO use it occasionally, don't get me wrong.

The other thing I'm not sure of that you mention is this. Obviously in a vehicle, police need a reason to pull you over (unless its a DUI checkpoint etc.) Does suspecting that a person in the vehicle is illegal give the police a right to stop that vehicle?

I would have said no because that is not standard legal contact.

Edited April 27, 2010 by Sousuke

[TBoneTX 45,304]

if a person is in AOS carry your paperwork (though as Trompe said in another thread, there is no guarantee that will be enough proof to a LEO.

Some may know what it is; others would certainly (and perhaps immediately) seek counsel from superiors or from the Feds (a CYA action).

I never thought "looking nervous" was probably cause? I'm sure LEO use it occasionally.

(Sadly) Si, man; & si, man.

Does suspecting that a person in the vehicle is illegal give the police a right to stop that vehicle?

Puercos can conjure up any reasonable articulable suspicion that they care to, sigh man, such as "you were weaving" to justify a stop that is really meant to check someone's papers. They can also say "I stopped you because your taillight is broken" and smash it with their nightstick during their stop of you, thus "justifying" their RAS for having stopped you in the first place. (This action has happened, usually on rural roads at night.)

[Dan J 277]

Well to add, I think for Arizona we've already been saying this, if a person is in AOS carry your paperwork (though as Trompe said in another thread, there is no guarantee that will be enough proof to a LEO.

I never thought "looking nervous" was probably cause? I'm sure LEO use it occasionally, don't get me wrong.

The other thing I'm not sure of that you mention is this. Obviously in a vehicle, police need a reason to pull you over (unless its a DUI checkpoint etc.) Does suspecting that a person in the vehicle is illegal give the police a right to stop that vehicle?

I would have said no because that is not standard legal contact.

Legal contact in itself is actually very broad. It would mean that the police can question a witness or victim of a crime about their legal status and hand them off to ICE, if they suspect or the person mentions they might be illegal.

I think in that case, it will lead to illegal aliens and people that might look like illegal aliens to be targeted by criminals, since they have incentive whatsoever to report the crime.

[JimVaPhuong 4,863]

So strictly speaking, unless an illegal immigrant committed a public offense that was removable, the police can only:

The law isn't specific about illegal immigrants committing a public offense that would make them removable. The law says an officer can arrest ANYONE if they have probable cause to believe they committed such an offense. Except for immigration related offenses, pretty much all removable offenses are crimes, regardless who commits them.

Here's a potential gray area: You have an encounter (lawful) with a police officer. He suspects you may be illegal, so he asks to see your identification. You don't have any. He asks about your legal status. You say you are a US citizen. It is illegal for a non-citizen to claim to be a US citizen - a removable offense. If the officer suspects you are illegal, he now has probable cause to believe you've committed a removable offense. You can be placed under arrest.

1. Detain and transport an illegal if the illegal confesses to being illegal. Sure.

2. Detain the alleged illegal immigrant at the point of contact and contact ICE to come and take the person for questioning. I don't see anything about turning them over to federal authorities until they've determined they are illegal.

3. Report to ICE the person's name / whereabouts ie. home, work for future investigation. Sure. They can do that now.

The other thing I'm not sure of that you mention is this. Obviously in a vehicle, police need a reason to pull you over (unless its a DUI checkpoint etc.) Does suspecting that a person in the vehicle is illegal give the police a right to stop that vehicle?

I would have said no because that is not standard legal contact.

My reading of the law indicates that the lawful contact has to occur first.

[Usui Takumi 1,562]

No. 2 I based from this "A REASONABLE ATTEMPT SHALL BE MADE,

WHEN PRACTICABLE, TO DETERMINE THE IMMIGRATION STATUS OF THE PERSON. THE

PERSON'S IMMIGRATION STATUS SHALL BE VERIFIED WITH THE FEDERAL GOVERNMENT

PURSUANT TO 8 UNITED STATES CODE SECTION 1373©." ie. they contact ICE, and either over the radio or in person ICE determines their status.

Regarding the US citizenship lie...thats pretty scary! That means that a hispanic US citizen CAN be taken if the police think he is lying about citizenship. Even if the person was stopped for a simple moving violation.

"The law isn't specific about illegal immigrants committing a public offense that would make them removable. The law says an officer can arrest ANYONE if they have probable cause to believe they committed such an offense. Except for immigration related offenses, pretty much all removable offenses are crimes, regardless who commits them."

Thats why I was asking about the arrestable offense thing awhile back, this part of the law is redundant.

Edited April 27, 2010 by Sousuke