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The Volokh Conspiracy » Shedding Light on the AZ Immigration Law

The Volokh Conspiracy » Shedding Light on the AZ Immigration Law.

Eric Rasmusen says:

ARIZONA SENATE BILL 1070 LEGAL ISSUES RAISED BY ARIZONA’S NEW STATUTE REGULATING IMMIGRATION Gabriel J. Chin,* Carissa Byrne Hessick,** Toni Massaro,*** and Marc L. Miller**** May 23, 2010

Eric Rasmusen comments, erasmuse@Indiana.edu

(1) Which web address is it? The second, I think. Clarify footnote 1:

“1 The documents at issue are SB 1070, 49th Leg., 2d Sess., Arizona Session Laws Ch. 113, http://www.azleg.gov/FormatDocument.asp?inDoc=/legtext/49leg/2R/laws/0113.htm as amended by HB 2162, 49th Leg., 2d Sess. http://www.azleg.gov/legtext/49leg/2r/bills/hb2162c.pdf

(2) Since the statute is only 11 pages long, include it as an appendix to your paper.

(3) You write on page 3: “• When a person is stopped or detained, presentation of an Arizona driver’s license or another specified form of identification may be sufficient to show legal status or citizenship. Id.”

The statute establishes a presumption. I think “may be sufficient” is misleading in your statement.

It isn’t clear whether the presumption of legality is even rebuttable, even if the person stopped is obviously an illegal alien. It would be useful for you to discuss that— how is this kind of language interpreted in other contexts?

“A person 13 is presumed to not be an alien who is unlawfully present in the United States 14 if the person provides to the law enforcement officer or agency any of the 15 following: 16 1. A valid Arizona driver license….”

(4) You write:

“May Arizona police arrest or stop based on undocumented status alone?

Yes. Under existing precedent, state and local law enforcement can arrest for violation of federal offenses. Almost all people who came here without any documentation and do not have authorization to be here committed some criminal violation of federal immigration law, such as entry without inspection in violation of 8 U.S.C. § 1325. Therefore, being undocumented will often constitute probable cause for this offense. In addition, SB 1070 makes clear that an officer can arrest for any deportable offense. A.R.S. § 13–3883(A)(5).”

That’s useful to point out. You might clarify further: even before the new law, Arizona police COULD stop people based on “reasonable suspicion exists that the person is an alien and is unlawfully present”, and were free to use “racial profiling” as you define it. And as you say jn the passage below, even before the law, police could question someone even without reasonable suspicion or any suspicion at all:

“How can the police tell if someone is undocumented?

They can ask. The police need no reasonable suspicion or probable cause to ask any question of any person, so long as officers do not create the impression that answers are required. So a common way for the police to determine immigration status will be for them simply to ask an individual where they were born and how they got to the United States.”

You should emphasize that the new law says that now “a reasonable attempt shall be made, when practicable, to determine the immigration status of the person,” so the police MUST make a reasonable attempt if they are stopping somebody for something else. That part of the law is directed against police departments unwilling to use authority they had even under the old law.

You say on page 16 that:

” Section 11–1051 may be read to require police officers in Arizona to voluntarily inquire about immigration status when they have a reasonable suspicion that someone is not a legal resident, even if they do not have power to stop that person.”

How could anyone possibly read Section 11–1051 that way? Your next paragraph says that it’s because Section 11–1051 doesn’t mention what police must do if they haven’t stopped someone, but that would be an amazing interpretive stretch. The statute doesn’t say anything about whether police have to question citizens observed wearing white shirts either, but we don’t think that means maybe they have to question them all.

More reasonably, the law does not require the police to stop someone even if they are virtual certain that he is an illegal alien— perhaps because he even tells them he is. (And you might mention that that is true for violations of any law, if I’m right on that— if someone comes up to a policeman and confesses to murder, current law allows the policeman to say, “That’s nice” and ignore it, doesn’t it?)

(5) Put your email addresses on the paper, to increase the probability of comments. (I’ll just send this to the first author, Gabriel Chin.)

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