After the Supreme Court struck down the heart of Arizona's anti-immigrant SB 1070 law on Monday, President Obama expressed concern over the one provision that the high court let stand for the time being:
"I am pleased that the Supreme Court has struck down key provisions of Arizona's immigration law. ... A patchwork of state laws is not a solution to our broken immigration system -- it's part of the problem.At the same time, I remain concerned about the practical impact of the remaining provision of the Arizona law that requires local law enforcement officials to check the immigration status of anyone they even suspect to be here illegally. I agree with the Court that individuals cannot be detained solely to verify their immigration status. No American should ever live under a cloud of suspicion just because of what they look like."
Hooray for the Justice Department's bold challenge to the Arizona law and copycat attempts in other states. However, there is a basic hypocrisy in the president's "concern" over section 2(B) that the Supreme Court punted on, awaiting word on how state courts would interpret its limits and how Arizona police would implement the law.
First some background. The Supreme Court struck down three of four key provisions of SB 1070. Arizona acted improperly by trying to enact its own immigration laws by making it a crime to be an unregistered immigrant and to solicit work in the state. Arizona also could not authorize its police to arrest immigrants who they believe are deportable; in other words the state cannot help ICE enforce federal immigration laws unless asked to do so by the feds.
However, for now, under section 2(B) of SB 1070, if Arizona police validly stop a person for violation of a state law, in the process they can also ask for immigration papers if there is "reasonable suspicion" that the person is unlawfully present in the United States. The section also requires state and local authorities to determine the immigration status of any person placed under arrest, regardless of whether the person is suspected of being in the country unlawfully.
The president's critique of the Court's inaction on section 2(B) is ironic, because in fact, under the current ICE "Secure Communities" program (S-Comm) which Obama's Department of Homeland Security has expanded, his administration has essentially implemented a section 2(B) process across the nation without the consent of the states. As part of normal enforcement practices, state law enforcement agencies who fingerprint individuals submit those fingerprints to a state identification bureau. The prints are then routed to the FBI to ascertain whether there are any outstanding warrants for the individual. But under S-Comm, the fingerprints are automatically sent by the FBI to ICE's immigration database to initiate an immigration status background check; if there is a "hit" or there is a question as to someone's legal status, FBI sends a message to various departments within ICE, and the law enforcement agency is also informed. ICE then determines whether to order the local police to hold the person for pick up by ICE.
ICE has taken the position that the sharing of fingerprints for immigration enforcement purposes is mandatory whether or not a state consents. States such as Illinois, New York, and Massachusetts have objected to this process, but ICE has ignored the states' requests to opt out of this process.
All too often, victims of crimes, minor offenders, and even crime witnesses have been swept up by S-Comm. Reports that domestic violence victims have been rounded up because of S-Comm are common. More than one-third of individuals arrested under S-Comm have a U.S. citizen spouse or child; Latinos comprise 93 percent of individuals arrested through S-Comm, even though they are only about 75 percent of the undocumented population. There is little wonder why, at oral argument in the SB 1070 case, U.S. attorneys arguing against the law refused to point out that there was a racial profiling problem with section 2(B). That would have been more duplicity.
If President Obama is really concerned about the effects of section 2(B) and that "no American should ever live under a cloud of suspicion just because of what they look like," then he should order an end to the Secure Communities program.
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Josh Bowman: By the Time I Get to Arizona -- What SB 1070 Means Now
Is running the fingerprints of an arrestee through an ICE database really the same as papers please? The problemwith these laws is that a US Citizen might be unduly harasssed. The problem is not than an illegal immigrant might get caught. That's the chance people take when they come here without proper documentation.
AZ police are far from powerless to enforce immigration since the only provision of 287 (g) that has been suspended is the roving immigration patrols that have been superseded by the fact that now all AZ police will fill this function.
The balance of 287 9g) is still in force and under teh balance of the program, state and local officers will continue to have extensive immigration enforcement power, including issuing immigration detainers, processing people for immigration violations, and preparing immigration charging documents.
Not so! 2 (b) strikes at sanctuary policies by requiring police to do their job. Any state or city police already have that right : -
Muehler v. Mena, “Even when officers have no basis for suspecting a particular individual, they may generally ask questions of that individual"
Rojas v. City of New Brunswick, A city and its police department had authority to investigate and arrest people for possible violations of federal immigration laws.
United States v. Rodriguez-Arreola, A state trooper did not violate the defendant’s rights by questioning him about his immigration status after pulling him over for speeding.
United States v. Hernandez-Dominguez, "A state trooper, who has executed a lawful stop, has general investigatory authority to inquire into possible immigration violations."
Not so even without secure communities, by law, information has to be shared with the feds:-
Section 434 of the Welfare Reform Act and Section 642 of the Immigration Reform Act state that:
“notwithstanding any other provision of Federal, State, or local law,” no state or local entity may be prohibited or restricted from reporting information to federal authorities. These laws expressly forbids restraints on communications with federal officials, including the sharing of information relating to peoples illegal immigration status, thereby targeting “don’t tell” sanctuary policies that banned local cooperation with federal authorities.
New York City challenged their constitutionality and the Second Circuit upheld the statutes and nullified New York City’s Executive Order 124, which prohibited local officials from providing federal authorities with immigration status information.
Even special order 40 merely states that people should not be stopped for the sole reason of determining immigration status.
Not so:
United States v. Santana-Garcia, “that state law enforcement officers have the general authority to investigate and make arrests for violations of federal immigration laws,’ & “federal law ‘evinces a clear invitation from Congress for state and local agencies to participate in the process of enforcing federal immigration laws.’”
People are entered in the NCIC and FBI databases in a variety of ways. Government employees and service members are fingerprinted as is anyone with a security clearance.
Or people who are arrested.
The same is true of SecComm. All immigrants and visa holders are entered in it as well as people detained and recorded by CBP, ICE and the State Department. But to be in the computer, they must have had contact with American law enforcement or federal agencies before.
Mr. Hing, being a lawyer, must know that American citizen criminals also would rather not have their history known.
They would rather not be asked for ID because it might lead to their arrest, incarceration and separation from their families.
And they would certainly appreciate not being run through any number of computers that might have information of other things they have done.
But that is the way law enforcement in the US does things. If your ID looks fishy, they will ask questions.
However, the people who object to carrying ID can go to a country just South of the US where the lawmen will take a $100 bill as proper ID anytime. If they want to be in a nation of laws, they should first follow them.