HUMAN RIGHTS AND SOCIAL JUSTICE BRIEFING 1:
Arizona's Immigration Law - S.B. 1070
Guest Blogger: Prof. Josiah Heyman, University of Texas-El Paso
Arizona's controversial immigration law, S.B. 1070, is being challenged by the Obama administration. A U.S. District Court is currently weighing in on the constitutionality of this measure. Immigration law is an important and complex issue that demands citizens' full attention and comprehension, especially now when the issue is front and center. This briefing, by a long-time immigration scholar, aims to fulfill this need.
This guest blog is the first in a series of Issue Briefings from the Human Rights and Social Justice Committee of the Society for Applied Anthropology, written by anthropologist Josiah Heyman, Chair of the Department of Anthropology at University of Texas-El Paso, and long-time scholar of U.S. immigration policies. Prof. Heyman writes:
"Arizona law S.B. 1070, as amended by H.B. 2162 (S.B. 1070 henceforth), presents applied social scientists, and the publics with which they are connected, with several important issues. The core issue is that unauthorized migrants, and the communities that include them (which are often heavily Latino, but also African, Caribbean, and Asian) will be subject to intensified surveillance by state and local police, and criminal arrest, detention, and penalty as consequences. Interior policing as opposed to border policing of immigrants and deportation of unauthorized people by the federal government has roughly quadrupled in the last half-decade. Such deportations are disruptive of families and communities, and should be a concern of applied social scientists even when done by the federal government. But S.B. 1070 expands this concern to the much more pervasive interaction between state and local police and immigrant-heavy communities. It constitutes a key emergence point in the diffusion of a state and local enforcement approach to immigration restriction, previously approached mainly as a federal issue.
S.B. 1070 also raises the issue of the overlap in the U.S. imagination and in policing practice between Latino identity, phenotypes, and "illegalness," even when unjustified by actual citizenship and immigration status. It signals the continuing importance of addressing migration issues, in the face of delays in passing federal comprehensive immigration reform legislation and the hidden issue of human and civil rights in border and immigration enforcement. At the same time, it is inappropriate to use the national failure to pass comprehensive immigration reform to excuse Arizona for the sorts of laws it passes and actions in some cases it tolerates. Finally, anxieties about the U.S.-Mexico border, realistic and imaginary, substantially motivated the passage of S.B. 1070, point toward the need for engagement with border issues.
S.B. 1070 Basics
S.B. 1070 is a complex law, with a number of unprecedented elements. The most important component is that it creates an Arizona state crime of being undocumented that is parallel to, but different from the federal administrative violation of unauthorized status and the crime of entry without inspection. Specifically, for any non-citizen not authorized to be in the United States, it is an Arizona state crime to fail to carry a federal immigration document issued to the person or to fail to register under a specific federal statute. By making this an Arizona crime, it gives probable cause for Arizona state and local police to make immigration-status based warrantless arrests.
The law gives the police specific mandates to enforce this law. The police must make efforts to determine the immigration status of anyone they have reasonable suspicion of being undocumented, when lawfully stopping, detaining, or arresting a person, except when that would interfere with an investigation. In other words, police (given a set of subjective suspicions) must inquire into immigration status in any sort of enforcement, with limited exceptions for investigations, even if the underlying encounter has nothing to do with immigration. Many police departments previously had policies or practices of not inquiring into immigration statuses when that was irrelevant to the violation or situation at hand. When the per-son is arrested under S.B. 1070, their immigration status must be determined before they can be released. An Arizona driver's license is presumptive evidence of authorized or citizen status. Any violation that can lead to federal administrative deportation is grounds for warrantless criminal arrest in Arizona.
In developing the "reasonable suspicion" of undocumented status needed to detain a person to determine their actual immigration status, officers may not consider race, color, or national origin except to the extent allowed by the United States or Arizona constitutions. However, courts have allowed race/ethnicity to be elements of just such reasonable suspicion for immigration violations, though not exclusively so (e.g., supposed racial appearance plus clothing, vehicle, language, non-verbal behavior, etc). State and local agencies are disallowed from restricting enforcement of immigration laws, enforceable by private lawsuits. Private lawsuits can overturn community-chosen local policies delineating a line of separation between police activities and immigration enforcement.
S.B. 1070 also makes it a crime for non-authorized immigrants to work or solicit work, a parallel set of crime to federal laws. It makes a crime of such persons hiring or being hired if the new employee enters a car that is blocking traffic. These provisions are aimed at day laborers, although they cover a wider range of people and situations. The bill makes human smuggling an Arizona crime in addition to already being a federal crime, using fairly specific language. Finally, when a non-citizen who is unlawfully present is discharged after conviction of a crime, federal authorities must be notified.
Historical and Contemporary Contexts
The modern U.S.-Mexico boundary was established in 1848-1853 by a U.S. war of aggression. Mexican-origin populations were stranded north of the border, including in Arizona, as well as many autonomous Native American peoples. Starting with the era of intensive capitalist development in the late 19th century, northward migration from Mexico to the U.S. has been nearly constant, due to the unceasing labor demand from the colossus of the north. What has changed are U.S. policies toward these migrants, and their treatment in the law.
In the late nineteenth century, a series of key court decisions established the precedence of the federal government over state and local governments in immigration and naturalization. After a period when migration from Europe and Asia was largely halted by highly discriminatory quotas, the "new immigration" started in 1965. U.S. legal immigration from Latin America, Asia, and elsewhere grew because of changes begun that year in visa allocation, while unauthorized migration (mostly from Mexico) grew because of the termination of the 1942-1965 "Bracero" guestworker (legal, temporary migration) program.
An immigration reform in 1986 attempted to stop unauthorized migration by legalizing some of the resident unauthorized population and by penalizing employers of unauthorized workers. The latter measure was little en-forced and the 1986 legislation did not solve the problem of future flows. Employment demand in the United States and imbalanced, disruptive development in sending nations combine to drive migration. Inequality between the global North and South, radical changes caused by globalization, illusory dreams of income and consumption, and increasing linkages in a connected world all promote migration. The network connections of families and friends bring loved ones to be with economic migrants. Legal visas are unavailable for most unskilled workers, despite the economic circuits, while family reunification visas are badly backlogged for a number of nations, especially Mexico. Legal migration is thus an option for many people, but not for numerous others. Arguably, the economy of U.S. border states has benefited from inexpensive Mexican labor, documented and undocumented, and from extensive commerce with Mexican. The U.S. side of the migration process, such as labor demand, is deeply embedded and largely unmarked, while the costs, suffering, dangers, and most of the legal penalties, are born by the unauthorized migrants, who are visible and stigmatized.
Unauthorized migration thus has continued to the present. At this time, the best estimates are that there are about 12 million unauthorized persons in the United States, roughly 4% of the U.S. population. The unauthorized population in Arizona grew rapidly in the 2000s, to an estimated 500,000 (of a state total of 6.6 million). This was during a period of overall rapid population growth in and internal migration toward Arizona (2000-2008 growth of 31%), creating a boom construction sector, in turn employing many migrants. About 59% of the U.S. unauthorized total are from Mexico; however, the overall size of this population, the proportion from Mexico, and the proportion who enter without inspection through the southwestern border (as opposed to those who overstay visitor and other visas) is lower than the usual image in the public mind (e.g., only about 60% of all unauthorized migrants go through the border with Mexico). Currently, legal immigration flows outnumber unauthorized en-trances. Invasion or flood metaphors are thus inaccurate.
From 1993 onward, there has been a huge buildup of federal immigration enforcement at the southwest border, including an increase of the Border Patrol to 20,000 officers and approximately 700 miles of wall. Surveys in Mexico of past and future migrants show that this enforcement does not deter people from attempting the crossing and that prior to 2009, did not successfully halt their ultimate entry. Since 2009, unauthorized flows have slowed, but it is unclear if this is because of slumping U.S. job markets or that for the first time, border enforcement has worked. One effect of the changes in enforcement after 1993 has been to displace the unauthorized entrances along the border, in particular to Arizona, which has become a focal point of dangerous modes of entry (walking across deserts and mountains), human smuggling, temporary shelter, and transportation to other states. Meanwhile, a comprehensive immigration solution like that of 1986, but without some of its obvious flaws, has repeatedly been proposed in Congress but has failed to pass.
State and local actions against unauthorized migrants re-emerged during the 1990s, focusing in particular on preventing unauthorized people and their families (often with U.S. citizen children) from accessing health and other social services. Such laws were passed, but have been struck down repeatedly. In the 2000s, an organized initiative began to write more sophisticated laws on a national basis, but to diffuse them to each individual state legislature and some municipal governments. This initiative's key organization is the Immigration Law Reform Institute, especially law professor Kris Kobach, who substantially drafted Arizona's legislation. Related legislation previously passed in Arizona in 2007, penalizing businesses that employ the unauthorized through denials of business licenses among other measures (similar laws were enacted in Oklahoma). These laws have mostly been sustained in courts (since they focus on clearly state domains, such as licenses, though some Oklahoma provisions were struck down) but they have rarely been enforced.
Although many laws penalize both migrants and those that hire them, migrants are far more powerless than members of the dominant society (i.e., actual businesses) within the unauthorized migration system. In the mean time, local police and sheriff's departments in Arizona (and other locations) have approached immigrants in very different ways, but one noticeable actor has been Maricopa County (Phoenix area) Sheriff Joe Arpaio, who has conducted street sweeps and other roundups of Latinos in order to identify unauthorized migrants to be held for deportation. S.B. 1070 would legalize the arguably extra-legal operations of Mr. Arpaio."
To see the full Issue Briefing please visit:
http://www.sfaa.net/committees/humanrights/AZImmigrationLawSB1070.pdf
Josiah Heyman is Professor of Anthropology and Chair of the Sociology and Anthropology Department, University of Texas at El Paso. His scholarship on border and immigration enforcement issues, as well as other aspects of anthropology, includes three books and over fifty scholarly articles and book chapters. He has done ethnographic field research with officers of U.S. border agencies, as well as other regional topics. He is a member of the Border and Immigration Task Force and President of the Board for the Border Network for Human Rights, and was former chair of the SfAA Public Policy Committee. His vision of positive, practical alternatives to current migration policies can be found in his book, Finding a Moral Heart for U.S. Immigration Policy (American Anthropological Association, 1998).
These issue briefings are commissioned by the SfAA's Human Rights and Social Justice Committee in an effort to educate our members, our students, and the general public on timely matters relating to social justice or human rights. It is the hope that policymakers, media, and the general public will come to appreciate an anthropological perspective on contemporary issues.