Immigration Law
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Important Provisions

1. Police stops. NOTE: This section was preliminarily enjoined by Judge Susan Bolton on July 28, 2010. ( A parallel provision in Alabama's immigration was not.)

Under S.B. 1070 immigration status could have become very important every time the police in Arizona made a stop or arrest, even for a civil infraction, because if based upon reasonable suspicion, detention in a local jail was mandated until immigration status could be determined, unless the person were able to produce acceptable ID. Specific state and federal identification papers were recognized as acceptable ID. According to the training materials issued to Arizona law enforcement officers, police officers would have used this chart to determine valid ID's.

Other valid forms of ID showing immigration status were inexplicably left off, 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 even much narrower than the list of documents acceptable for employment verification purposes by employers.

Detaining a person without acceptable ID pending confirmation of status meant taking the person to jail and holding him/her until federal immigration confirmed the detainee's immigration status. This would have been 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, a practice that continues under the preliminary injunction. Under the provisions of the new law, absent the injunction, if confirmation were to have been received that the person was in the U.S. illegally, likely a state law crime would also have been charged , which also was new.

However, pre-SB 1070 did not dramatically change prior practice 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, which also continues under the injunction.

The new law contained 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 made clear that officers had discretion to determine what is practicable in the field and 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 were very precise that race and national origin alone were not a proper basis for determining reasonable suspicion.

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

These provisions taken together mean that officers had considerable discretion case-by-case under SB 1070 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. This was a restatement of what occurred in practice before S.B. 1070 was enacted, though it had been watered down considerably in the legislative process from other more stringent rules.

However, there was no stated time frame by which a detained person had to be released or 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 was required under S.B. 1070 to be detained, which likely meant jailed until the documents were found or the Government was able to independently confirm legal status. Unacceptably lengthy 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's status criminalizing provision was unclear. 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 directly 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 was an issue before the federal courts based on historic constitutional law grounds.

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 consituted a new crime of "willful failure to complete or carry an alien-registration document." This is entirely new under SB 1070, and its meaning was unclear. 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 was not very clear about either situation. It did reference two federal statutes, 8 U.S.C. section 1304(e) and 1306 (a). They have been on the books since 1940 but they were mostly ignored before SB 1070. The distinction between not having any documents and having documents that show expired authorization can be important in federal immigration law, but legally it made no difference under SB 1070, according to state officials. The statute defining the new offenses was not drafted in a way that necessarily supported the state's position on expired documents, and in any event the awkward use of federal statutes and the inconsistency with federal law created an issue about meaning and supremacy of federal law, which was a partial basis for a grant of a preliminary injunction of SB 1070. A similar statute in Alabama was also enjoined at the appellate level.

Punishment under SB 1070 (also enjoined): 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 were made punishable by up to 30 days of jail time. A.R.S. § 13-1509(H). Jail costs had be paid by the person jailed. A.R.S. § 13-1509(D)(also enjoined).

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 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. This provision even has some immigration lawyers wondering if giving a ride to the immigration court to an undocumented client is still legal. 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 lesser 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 enjoined.

Precautions

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. SB 1070's unclear prohibitions against transporting, housing or employing undocumented persons require caution with such matters, 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.
• [Removed under preliminary injurnction.]
• 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 if the police so decide to proceed.

Legal Challenges

A number of court cases were brought challenge the new law and ones like it, including ones filed 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.