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THE PROGRESSIVE REVIEW - July 15, 2010
Suing Arizona Is Just the Beginning,
Immigrant Rights Groups Say
by: Yana Kunichoff
truthout|Report
The decision by the Department of Justice to sue Arizona
over its harsh immigration legislation is expected to block
implementation of the law, but immigrant rights activists
argue that this is only the first step to minimizing the
harmful impact of unfair enforcement practices.
Under Arizona's SB 1070 law, police officers are allowed
to question anyone suspected of being an undocumented
immigrant - signed into law in April 2010, it instructs
any immigrant to "at all times carry with him... any
certificate of alien registration or alien registration
receipt card issued to him" and has earned Arizona the
nickname of the "show me your papers" state.
The complaint, filed by the Department of Justice (DOJ)
in a federal court in Phoenix, calls for an injunction on
the grounds that the Arizona law violates the supremacy
clause of the Constitution, which says oversight of
immigration enforcement is solely the prerogative of the
federal government.
"Although a state may adopt regulations that have an
indirect or incidental effect on aliens, a state may not
establish its own immigration policy or enforce state laws
in a manner that interferes with federal immigration law,"
said the DOJ's request for an injunction. "The State of
Arizona has crossed this constitutional line."
In a statement released shortly after the DOJ announcement,
the Immigration Policy Center said: "While we applaud the
administration's decision to challenge the constitutional-
ity of the Arizona law, we urge it to also look inward
and correct other policies and programs that confuse
the relationship between federal and state authority to
enforce immigration laws."
This sentiment was echoed in interviews Truthout conducted
with representatives from No More Deaths, the Center for
Human Rights and Constitutional Law, the Arizona Advocacy
Network and the National Day Laborers Organizing Network.
Danielle Alvarado, a spokesperson for No More Deaths, which
works to provide humanitarian aid to migrants, said, while
the DOJ lawsuit was a first step, SB 1070 was only "a
symptom of the anti-immigrant sentiment. It is not just
about one piece of legislation."
Alvarado said her organization and others plan to continue
a planned mobilization in Arizona on July 29, the day SB
1070 was planned to take effect, to protest "the fact
that we're living in a state where those types of laws are
passed in the first place."
According to the Immigration Policy Center, "the Department
of Justice should rescind an Office of Legal Counsel memo
issued in 2002 which opened the door for greater state
action by reaching the, politically motivated, decision
that states had inherent authority to enforce immigration
laws. In addition, the Department of Homeland Security
should rescind the 287(g) agreement in Maricopa County,
Arizona where it has become clear that the agreement is
being abused."
Under section 287(g) of the Immigration and Nationality
Act, the federal government can enter into immigration
agreements with state and local law enforcement agencies.
Eight agencies in Arizona have already signed agreements
with the Department of Homeland Security (DHS), which
allows them the authority to "verify or ascertain an
alien's immigration status." Maricopa County, home of
Sheriff Joe Arpaio, is particularly infamous for its
treatment of immigrants.
Under SB 1070, the state's officers would need to use
federal immigration databases provided by the DHS to
assess immigration status, which critics such as the
AFL-CIO say could mean "the federal government will be
complicit in the racial profiling that lies at the heart
of the Arizona law."
Sunita Patel, a staff attorney at the Center for Constitu-
tional Rights, said it is very likely that the injunction
will be granted. This law is, "to many of us in the civil
rights community, a pretty compelling case of where the
supremacy clause should be evoked," she said, noting the
section of the Constitution which calls federal authority
is "the supreme law of the land." Therefore, "the federal
government has exclusive jurisdiction over the borders
and that means immigration law."
Patel said she welcomed the decision by the DOJ especially
because, from the perspective of an employee of an organi-
zation which litigates racial profiling, "this law is
going to really exacerbate a problem that already exists
in Arizona where undocumented and immigrant brown-skinned
people feel that they are under siege by the police. This
is just going to create an unjust and immoral situation."
The hearing to decide whether to grant an injunction based
on the DOJ lawsuit against Arizona's law will be held on
the 22nd of July, only days before the bill is expected to
be implemented.
Earlier that day in the same courtroom, the federal court
in Phoenix will hear an argument against the bill put
forward by a lawsuit filed by the American Civil Liberties
Union (ACLU) in conjunction with other organizations.
Unlike the DOJ lawsuit, which focuses on provisions 1-6 in
Arizona's immigration bill, the ACLU lawsuit considers the
entire bill invalid on the basis of arguments including
preemption, a violation of an individual's First Amendment
rights and the possibility of racial profiling.
Though the DOJ suit says SB 1070 will "cause the detention
and harassment of authorized visitors, immigrants and
citizens who do not have or carry identification documents"
and ignores "humanitarian concerns," this is not the main
focus of its argument.
Daniel Pochoda, legal director of the Arizona ACLU, said he
does not expect the narrower focus of the DOJ lawsuit to be
an obstacle to getting an injunction.
The DOJ lawsuit said it recognizes that "Arizonans are
understandably frustrated with illegal immigration" but
argues that addressing the issue "through a patchwork of
state laws will only create more problems than it solves."
This lawsuit will be closely watched across the country,
as at least 20 states consider restrictive immigration
legislation similar to SB 1070.
Lucas Guttentag, director of the ACLU Immigrants' Rights
Project, said he hopes the administration's lawsuit will
serve as "a cannon shot across the bow of other states
that may be tempted to follow Arizona's misguided
approach."
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