Understanding SB 1070

Important Provisions

Unless the new law is invalidated by a court or prevented from going into effect as scheduled, starting July 29, 2010, some points to keep in mind are:

1. Police stops. NOTE: This section was preliminarily enjoined by Judge Susan Bolton on July 28, 2010. Immigration status will become very important every time the police in Arizona make a stop or arrest, even for a civil infraction, because if based upon reasonable suspicion, detention in a local jail is mandated until immigration status is determined, unless the person can produce acceptable ID. Specific state and federal identification papers are recognized as acceptable ID. According to the training materials issued to Arizona law enforcement officers, this is a chart that police officers will use to determine valid ID's.

The chart however does not include certain valid forms of showing immigration status, such as a permanent resident card, valid visa in a foreign passport, border crossing card, certificate of citizenship, certificate of naturalization, or other federal immigration document. The chart is much narrower than the list of documents acceptable for employment verification purposes by employers.

Detaining a person without acceptable ID pending confirmation of status means taking the person to jail and holding him/her until federal immigration can confirm the detainee's current immigration status. This is also a big change from the practice before SB 1070, when the person was simply turned over to the federal immigration authorities or less frequently, field-released. Under the new law, if confirmation is received that the person is in the U.S. illegally, likely a state law crime will be charged under SB 1070, which is also new, and/or the person will be held or else transferred to federal immigration custody to await deportation proceedings.

However, pre-SB 1070 practice will likely not change dramatically as to when and how officers preliminarily effectuate stops and ask questions about immigration, since officers had discretion to inquire about immigration papers upon making a stop or arrest and to turn people over to the federal authorities for immigration violations even before SB 1070 was enacted.

The new law has a provision for law enforcement officers"when practicable" to determine the immigration status of a person if reasonable suspicion exists that the person is an alien illegally in the U.S. Traininig materials make clear that officers have discretion to determine what is practicable in the field and may take into account factors such as:

• The number of other officers on the scene.
• The volume of other calls requiring attention.
• Location of the stop.
• Availability of backup.
• How important the situation seems in light of other duties.
• Ease of contacting immigration authorities for verification.
• Current availability of immigration information.

Instructions given to Arizona officers in training are very precise that race and national origin alone are not a proper basis for determining reasonable suspicion.

Even with reasonable suspicion determinations and practicability factors resolved in favor of questioning, the officers still do not have to pursue immigration status, "if the determination may hinder or obstruct an investigation."

These provisions taken together mean that officers will have considerable discretion case-by-case to inquire (or not) into the immigration status of a person and what to do about illegal status, up until a decision is made to press the issue of immigration in connection with a particular stop.

However, there is no time frame by which a person who is detained must be released or be brought before a magistrate. For example, if a U.S. citizen or permanent resident were reasonably suspected of being illegal and did not have access to proper documentation, he or she must be detained, which likely means jailed under S.B. 1070 until the documents were found or the Government was able to confirm legal status. Uncertain length of delay could happen in a variety of ways. If the card of a permanent resident had expired, the fact of expiration alone would not necessarily make the person illegal under federal law, yet the sufficiency of this documentation under S.B. 1070 has not yet been clarified. In another example, the federal government has begun to use electronic-only I-94 authorizations for temporary visits of travellers from certain countries. There is no physical visa or I-94 to show anyone, because the authorization is digital, and thus no tangible proof of legal status exists to present upon a stop. Some visas are issued by foreign consulates whose records are not accessible within the Department of Homeland Security but must be requested through the Department of State to the consulate abroad, which could take considerable time and expense to pursue. Weekends, an overloaded switchboard to the U.S. Government for other S.B. 1070 verifications, or other logistical impediments could also result in a significant time delay while a hapless and innocent person remained detained indefinitely, without access to a magistrate.

Detention without a deadline for release or appearance before a magistrate is likely a provision that will encounter heightened scrutiny in the federal courts based on historic constitutional law grounds. Even hardened criminals have greater rights. They are entitled to be brought before a magistrate within 24 hours of arrest or they must be released from custody under Ariz. Code Crim. Procedure Section 4.1(a). S.B. 1070 has no provision for bringing a person detained upon reasonable suspicion before a magistrate within any specified time frame. The right to counsel and other legal rights of the detainee pending clarification of status are similarly unclear.

2. New crimes. NOTE: This section was preliminarily enjoined by Judge Susan Bolton on July 28, 2010. Just being present and an illegal immigrant in the state also consitutes a new crime of "willful failure to complete or carry an alien-registration document." This is entirely new under SB 1070, and its meaning is legally murky. There are two possible fact situations involved in unlawful presence: first, having entered the United States on foot or by boat without having presented oneself to an immigration official, and second, in an entirely different scenario, having an expired authorization that was initially and lawfully granted but is no longer valid. The statute, ARS section 13-1509 is not very clear about either situation. It does reference two federal statutes, 8 U.S.C. section 1304(e) and 1306 (a). They have been on the books since 1940 but they have been mostly ignored up until now. The distinction between not having any documents and having documents that show expired authorization can be important in federal immigration law, but legally it makes no difference under SB 1070, according to state officials. The statute defining the new offenses is not drafted in a way that necessarily supports the state's position on expired documents, and in any event the awkward use of federal statutes and the inconsistency with federal law creates an issue about meaning and supremacy of federal law, so expect to see heated legal battles on this issue until the appeals courts resolve the finer points.

Punishment: Class 1 misdemeanor, for a first offense, punishable by a fine of up to $100 and up to 20 days of jail time. Subsequent offenses are punishable by up to 30 days of jail time. A.R.S. § 13-1509(H). Jail costs must be paid by the person jailed. A.R.S. § 13-1509(D).

If you are in Arizona and have a possible claim to US permanent residence or citizenship but are curently without papers, please contact Messing Law Offices to schedule a confidential attorney-client initial consultation.

3. Enhanced crimes. NOTE: This section was NOT preliminarily enjoined by Judge Susan Bolton on July 28, 2010. A new provision that frightens many Arizona citizens and legal residents criminalizes actions to transport, conceal, harbor or shield an illegal immigrant with knowledge or reckless disregard of unlawful status. There are specific exceptions to transportation for persons providing emergency, public-safety or public-health services, but it is unclear whether giving rides to customers, friends or family members, or providing housing to them, or renting or selling homes and apartments to persons without valid papers is covered by it . Federal law tends to criminalize transportation or harboring only when the assistance given is direct and substantial in relation to immigration, such as a case of alien smuggling, or a cab driver hired to transport undocumented passengers from the border to a metropolitan area. State law tracks the language of the federal statutes, but state training materials for officers seem to suggest a more attenuated connection, and again final rulings will have to come from the higher courts. In the meantime, having a car passenger or houseguest who is undocumented could cause legal problems in an investigation or stop by police or civil inspectors where another crime could be charged.

Punishment: the crime is a class 1 misdemeanor with a fine of at least $1,000 and additional penalties as a felony where the offense involves ten or more immigrants. A.R.S. § 13-2929(D), including a fine of $1,000 per immigrant involved.

SB 1070 also deals with attempts by illegal workers to find employment, solicitation of work on public ways that obstructs traffic, and certain amendments to the e-verify law. NOTE: The portion outlawing unauthorized aliens from seeking work was preliminarily enjoined by Judge Susan Bolton on July 28, 2010. Other portions relating to seeking work or obstructing traffic were not.

Precautions

Although law enforcement is taking great pains to make clear to federal officials, media and the general public that state and local law enforcement behavior in enforcing SB 1070 is beyond reproach, it is possible to encounter an experience with law enforcement that is stricter than what is being officially encouraged.

In such a climate, EVEN WITH THE PRELIMINARY INJUNCTION IN PLACE, it may be prudent to:

• Carry suitable ID. Carry a form of ID that is listed by the state as suitable proof of status, many of which are listed above and others that are not included in the chart above but that are displayed on our immigration sample document page. If travelling with children who are not U.S. citizens, have proper immigration identification for them as well. For U.S. citizen children who could be profiled as foreign because of distinctive ethnic characteristics or accents, carry a birth certificate or obtain a U.S. passport for them and carry the documents at all times with them.
• Conduct I-9 audits. If you operate an Arizona business, conduct an in-house audit of employees' I-9's, particularly if you have company vehicles that are used by employees, who if they actually are undocumented, could also cause confiscation by police of a vehicle in which they are riding.
• Exercise caution. Weigh, to the extent practical, the SB 1070's unclear prohibitions against transporting, housing or employing undocumented persons, particularly in areas with a reputation for zealous enforcement of immigration laws, such as by Maricopa County Sheriff's Office or within Pinal County.
• Get help with immigration. Check with an immigration attorney to determine professionally if an immigration benefit is available and to retain, gain or re-establish legal immigration status. If applications are pending, obtain documentation of this fact and a letter of explanation from the attorney addressed "To Whom It May Concern", and keep them with you at all times. Contact Messing Law Offices for a free seven minute telephonic consultation or to schedule an initial consultation.
• With the preliminary injunction in place, this recommendation is no longer applicable. Travel by alternative routes. Avoid passing through Arizona if you travel, are unsure about the immigration status of anyone in your party, and have a reasonable alternative route.
• Remain cool if stopped. Be polite if stopped for a check in Arizona. Do not show fake documents or make false immigration claims. If undocumented, consider providing only your name, and if you are not free to leave, you may legally state that you refuse to be questioned outside of the presence of counsel and ask for a lawyer at public expense if you cannot afford a lawyer. However, you could be detained, charged criminally, and eventually turned over to immigration for deportation.

Legal Challenges

A number of court cases have been filed to challenge the new law, including one brought by the Federal Government. Click here to read about court challenges to SB 1070.

Click here to view the text of the 2010 Arizona immigration law, SB 1070 as amended by HB 2162.