On July 28, 2010, Senate Bill 1070 will go into effect in Arizona. Supporters from the right and opponents from the left have been battling over the propriety of 1070 since before Governor Brewer signed the controversial measure on April 23 of this year, and the debates–both legal and political–will continue. Polls show that between 50 and 60 percent of Americans are in favor of the Support Our Law Enforcement and Safe Neighborhoods Act, and that number is even higher in Arizona. Proponents say the law is aimed at criminal aliens, drug smugglers, and human traffickers; others allege that the law takes aim at all Hispanics. Governor Brewer added fuel to the debate last week when she said that most “illegal” immigrants are drug mules, from which even many conservative political figures quickly stepped back.
As an immigration attorney, SB 1070 and the debates surrounding it are frustrating. Immigration law is second only to the federal tax code in complexity, and the validity of someone’s physical presence in the United States can often be incredibly difficult to ascertain. While SB 1070 holds itself out to be an uber-strict and no-nonsense approach to “illegal” immigration, I do not think it is. Rather, it creates an entire new world of issues for Arizona law enforcement who continue having absolutely no authority over the ultimate fate of “illegal” aliens.
So, I am offering my list of the eleven things you need to know about immigration law to truly understand SB 1070. Beyond that, you decide.
1. Being in the United States without authorization from the Department of Homeland Security is not a federal crime. Except in very rare instances (e.g. unlawful re-entry after deportation), being in the United States without permission is a regulatory violation of an administrative code, specifically the Immigration and Nationality Act. It is not a crime. Aliens found to be in the United States in violation of the Act are not subject to any criminal prosecution and can only be detained in relatively rare circumstances relating to serious criminal convictions. So, any law that characterizes all individuals who have either entered or remained in the United States without authorization as criminals is wholly inconsistent with federal law.
2. There is no such thing as an “anchor baby.” Birthing a child in the United States does not entitle “illegal” parents to remain here lawfully. When the child turns 21-years old, he or she can file an immigrant petition for a parent, which is–of course–21 years from now. Further, barring rare circumstances relating to previous petitions, a parent will not be able to benefit from that petition if he or she spent more than one year in the United States without authorization.
3. Immigration laws permit individuals to remain in the United States during adjudication of petitions and applications. If an individual applies to either obtain, extend, or change his or her status in the United States, he or she is generally authorized to remain in the country pending an adjudication of that application or petition. In most cases, the only proof he or she will have of that authorization will be a petition/application receipt, which does not comply with the SB 1070 requirements. Further, even if a petition/application has been denied, it may be under further review via the appeals process. No evidence of the sort required by SB 1070 is provided to individuals under those circumstances.
4. Contrary to popular understanding, people who are caught in the United States without authorization to be here are not just put on a bus back to Mexico. Aliens enjoy due process of law. Unless there is a previous or outstanding order of removal against an alien, he or she cannot be removed from the United States without having been afforded the opportunity to appear in removal proceedings before the Department of Justice. In removal proceedings, an Immigration Judge must first determine whether an alien is removable. If he or she is removable, then the burden shifts to the alien to apply for some form of relief from removal. There are numerous ways in which an alien unlawfully present in the United States can still qualify to remain her permanently. If the Judge ultimately orders the alien’s removal, he or she may appeal to the Board of Immigration Appeals, then to the federal court system. In many courts, this process can take years and years, during which the alien is often given work authorization. So, a “caught” alien can actually end up in a much better–albeit temporary–position, often obtaining legal work authorization for the first time ever.
5. In removal proceedings, an alien who entered and/or remained in the United States without authorization may still obtain lawful permanent residency. Be it through NACARA, Cancellation of Removal, Asylum, Adjustment of Status, Temporary Protected Status, or a host of other applications, an alien may be able to convert their status to permanent residency even after being “caught” in the country without authorization.
6. Not all immigrants are criminals. This is just common sense. As an immigration practitioner, it would be tremendously unfair to characterize all (or even most) individuals in the United States without authorization as criminals.
7. Many law enforcement agencies already notify DHS when they have an individual in custody who they believe is in the United States without authorization, even if they are not ultimately charged with a state crime. In Los Angeles, for example, law enforcement agencies routinely notify Immigration and Customs Enforcement (ICE) when they have an individual in custody who they believe may have immigration issues. ICE will then place a hold on that individual, which allows them a short period of time after the scheduled release to take him or her into DHS custody. It is important to note that, as mentioned above, most people are released from DHS custody within a few hours. The mandatory detention rules require DHS to detain only certain individuals, most of whom have committed serious or repeated crimes. Others are generally released to appear in removal proceedings and are home by dinnertime.
8. Even in Arizona, not all “illegal” immigrants are Hispanic. Again, common sense. I, for one, will be on the edge of my seat waiting the first Canadian student visa overstay to be prosecuted under SB 1070.
9. Determining whether a criminal conviction has rendered an alien “removable” is something a lot of lawyers cannot even do. Part of SB 1070 deals with lawful residents who law enforcement believes to have committed an offense that renders him or her removable. Removability is a much larger word that its 12 letters let on. In fact, it is such a large word that I do not even know where to start in explaining it. Suffice it to say that a full review of removability can be found in section 237 of the Immigration and Nationality Act, and that it depends as much on an individual’s criminal history as it does his current offense. There are many immigration attorneys who do not handle criminal immigration because it is simply too tricky. Even so, SB 1070 puts it in the hands of law enforcement to make these types of legal determinations. Good luck with that.
10. Not everyone has a viable way to immigration lawfully to the United States. So many people are under the misconception that anyone could qualify for a green card if they put forth the requisite effort. As a result of that legal misunderstanding, many people feel that “illegal” immigrants are line-cutting cheats who were not willing to put in the hard work or money to “fix their papers.” This is generally not so. First, most visitor visa applications from Mexico, Central America, and other high-volume countries are denied by U.S. Consulates abroad. So, for many, even visiting the United States is not an option. Second, there are two primary means by which to immigrate: family and work. For each, Congress allocates a limited number of visas per year–tens of thousands fewer than those who desire them. This has created a backlog of, in some cases, decades. So, the pathway of legal immigration, even for those with some “in,” is difficult and requires a level of patience that many Americans could not fathom.
11. ”Illegal immigrants” come in all shapes and sizes, some of which will surprise you. SB 1070, to me, has a profound “others” tone to it. Proponents often use words like “those people” and “illegals” to define a huge and diverse category of people. Historically, that mentality has not led to fine hours. So, let us infuse the debate with some compassion and a recognition that “those people” are not all criminal drug mules coming to the U.S. to wreak havoc on our citizens. Here are a few examples of “illegal” aliens that do not fit the usual description. These are not rare cases, and they are real. A woman who was in the process of obtaining her green card through marriage to a U.S. citizen, but her husband was killed in a car accident prior to getting the official approval. A young man with a student visa whose family have been hit hard by the economy and can no longer afford tuition. A man who was brought to the U.S. by DHS to testify against a human trafficker, but whose testimony was no longer needed because of a plea deal. A family who was relocated to the U.S. after the father was promoted to a manager in his multinational business, but now he has been laid off. A pregnant woman visiting the U.S. as a tourist whose family was killed during a government coup during her trip and could not go home. The list goes on and on.
Now, aside from the obvious constitutional issues involved, none of this is to say that Arizona is completely out of line in its general efforts. DHS is not anywhere close to being large or effective enough to deal with all of the immigration problems facing the United States, and Arizona has had enough. The problem with SB 1070, though, is that it does not change that. In fact, it may create even lengthier timelines for removing individuals, which means the people they are trying to deport will be around even longer. In my view, if Arizona had really wanted to take a strong stand, they would have made all offenses under SB 1070 punishable by removal to be carried out by the state. I am quite sure that some skilled lawmaker could draft something that effectuates that penalty while giving the appropriate nod to the U.S. Constitution (much like SB 1070). Would it ultimately withstand legal scrutiny? Surely not, but think of all the “illegals” that could be deported in the meantime.
In the wake of SB 1070, other states are reportedly considering implementing their own versions of the ban on “illegal” immigrants. Having one state enforcing federal immigration law in its own terms will be enough of a strain on DHS; having a patchwork of state immigration laws around the country could be absolutely debilitating. DHS readily admits that there are tens of thousands of people in the United States with outstanding orders of removal, and that they do not have the resources to carry out those removals. So, they prioritize, first seeking out criminal aliens with removal orders, then getting to the others when they have time. Just like with Netflix, you can have a million “illegal” aliens waiting for processing, but you can only handle one at a time. Arizona and other states will do nothing more than add to and complicate the queue. Since the federal government has no current plans to quadruple the size of DHS, it seems that the most prudent way to address the approximately 15 million people in the U.S. without authorization would be a mix of both enforcement and comprehensive immigration reform. Heightened enforcement deals with the front of the line, and reform would confer lawful status on qualified individuals in the queue.
At the end of the day, SB 1070 is going to be quite successful in doing some of what it was intended to do: keeping “illegal” immigrants out of Arizona. But at what cost in the long term…
Juliana L. Butler, Esq. of Allen + Butler Group, LLP contributed to this article.