Arizona Faces A Losing Streak Of Immigration Laws

By Jude Joffe-Block
December 24, 2014
Maricopa County Sheriff's Office
The Maricopa County Sheriff's Office released this photo to accompany a 2012 press release about arrests made under the human smuggling statute.

PHOENIX - In a Phoenix courtroom last month, three immigrant defendants wore black and white striped uniforms and shackles on their wrists.

They were each charged with felonies for using someone else’s identity to work. They were asking a judge for bonds so they could go home to await their trials.

The judge agreed, ordering bonds for each ranging from $300 to $3,500.

While all this may sound routine, it’s a actually a major shift in Arizona policy.

For nearly eight years Arizona banned unauthorized immigrants accused of certain crimes from getting bail, requiring them instead to be jailed for months while waiting for trials. Many would agree to plead guilty to felonies, resulting in their deportations. Voters approved the law, known as Proposition 100, in 2006 as a way to ensure these defendants would not abscond.

This fall, the Ninth Circuit Court of Appeals struck down Proposition 100 for violating due process. The U.S. Supreme Court has so far declined to intervene.

So last month, Arizona had to reverse its policy. And that’s becoming something of a pattern.

Just this week, Arizona had to stop denying driver’s licenses to young immigrants who arrived illegally as children, due to an order from the Ninth Circuit.

Dan Pochoda of the ACLU of Arizona says only “very little” of the anti-illegal immigration regime that gave Arizona a national reputation is left today.

The ACLU of Arizona challenged many of Arizona’s laws in federal court.

Big portions of the state’s most famous immigration law, SB 1070 have been struck down. So was a policy that charged unauthorized immigrants with felonies for conspiring to smuggle themselves under the state’s anti-human smuggling law. Then ultimately the entire anti-human smuggling law was also invalidated.

“Much of it has been dismantled,” Pochoda said referring to the network of policies Arizona used to combat illegal immigration. “Both in terms of legislation and in terms of the [Maricopa County] Sheriff’s Office, and [the sheriff’s] abusive actions that literally terrorized Latino communities.”

Last year a federal judge found the Maricopa County Sheriff’s Office racially profiled Latino drivers.

As a result of two separate federal lawsuits, Sheriff Joe Arpaio is ending his immigration-related enforcement.

U.C. Davis law professor Gabriel Jack Chin says Arizona’s legislature played an important role trailblazing ways states could regulate illegal immigration on their own.

“They were willing to experiment, like in a laboratory,” Chin said.

Chin says the crafters of these laws knew some would fail in the courts.

“They were just hoping to come up with some legal techniques, with some anti-immigrant measures, that would survive and therefore could be exported to other states,” Chin said,

State Representative John Kavanagh was one of the Arizona lawmakers who helped pass these laws. He admits some were always long shots. He called a provision that made it a state offense to be in the country illegally a “kind of a prayer added to 1070.”

There have been some victories for state immigration policies.

In 2011, the U.S. Supreme Court upheld an Arizona law that makes it possible to penalize employers who higher unauthorized immigrants, though the law has rarely been used.

The next year the high court allowed what Kavanagh calls “the heart and soul” of SB 1070 to take effect. That’s the provision that requires police to check immigration status if they have a suspicion someone is in the country illegally.

“We reaffirmed the historic right of local police to do immigration enforcement,” Kavanagh said.

But advocates continue to challenge that provision in a federal lawsuit, arguing it leads to racial profiling and unconstitutional detentions.  

This week the Tucson Police Department scaled back its enforcement of the provision, citing the fact that federal agents rarely respond to police officers’ immigration checks.

Plus the Obama administration says its limiting which immigrants here illegally it will deport.

So where does that leave the anti-illegal immigration movement in Arizona?

“I think the most useful thing we can do is get a president in office that will enforce existing laws,” Kavanagh said. “And get Congress to appropriate money to secure the border.”

Kavanagh said that is a better focus than passing more state policies on immigration.

“Over the last 10 years we have pretty much passed everything we could,” he said.