An Education: Arizona SB1070 Part II

This morning I was contemplated writing something else instead of the continued teachings on Arizona's immigration law. After careful thought and much hand-wringing, I decided to continue my discourse on the immigration law. So here we go.....


The link to Arizona's immigration law: http://www.azleg.gov/legtext/49leg/2r/bills/sb1070h.pdf

Continuing with Arizona Revised Statues Art 8, Title 11, Section 1051:

C. IF AN ALIEN WHO IS UNLAWFULLY PRESENT IN THE UNITED STATES IS CONVICTED OF A VIOLATION OF STATE OR LOCAL LAW, ON DISCHARGE FROM IMPRISONMENT OR ON THE ASSESSMENT OF ANY MONETARY OBLIGATION THAT IS IMPOSED, THE UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT OR THE UNITED STATES CUSTOMS AND BORDER PROTECTION SHALL BE IMMEDIATELY NOTIFIED.

This portion of the statute requires any unlawfully present alien to be turned over to ICE upon their release or payment of fine. Ok it says notify ICE but let's read on...

D. NOTWITHSTANDING ANY OTHER LAW, A LAW ENFORCEMENT AGENCY MAY SECURELY TRANSPORT AN ALIEN WHO THE AGENCY HAS RECEIVED VERIFICATION IS UNLAWFULLY PRESENT IN THE UNITED STATES AND WHO IS IN THE AGENCY'S CUSTODY TO A FEDERAL FACILITY IN THIS STATE OR TO ANY OTHER POINT OF TRANSFER INTO FEDERAL CUSTODY THAT IS OUTSIDE THE JURISDICTION OF THE LAW ENFORCEMENT AGENCY. A LAW ENFORCEMENT AGENCY SHALL OBTAIN JUDICIAL AUTHORIZATION BEFORE SECURELY TRANSPORTING AN ALIEN WHO IS UNLAWFULLY PRESENT IN THE UNITED STATES TO A POINT OF TRANSFER THAT IS OUTSIDE OF THIS STATE.

Now once someone is verified to be an unlawfully present alien, the law allows the agency currently holding the unlawfully present alien to transport said alien to a federal facility. This is one section of the law that actually places a burden on taxpayers. Arizona taxpayers will have to pay for their local agency to transport the alien who is unlawfully present. The law doesn't actually state this; but, who else will pay?

E. EXCEPT AS PROVIDED IN FEDERAL LAW, OFFICIALS OR AGENCIES OF THIS STATE AND COUNTIES, CITIES, TOWNS AND OTHER POLITICAL SUBDIVISIONS OF THIS STATE MAY NOT BE PROHIBITED OR IN ANY WAY BE RESTRICTED FROM SENDING, RECEIVING OR MAINTAINING INFORMATION RELATING TO THE IMMIGRATION STATUS, LAWFUL OR UNLAWFUL, OF ANY INDIVIDUAL OR EXCHANGING THAT INFORMATION WITH ANY OTHER FEDERAL, STATE OR LOCAL GOVERNMENTAL ENTITY FOR THE FOLLOWING OFFICIAL PURPOSES:

This seems a little big-brotherly to me. The passage basically gives any state agency the authorization to maintain and share information about immigration status of anyone the agency comes in contact with. Now, the times this applies is when an agency has under lawful contact requested the immigration status of a person suspected to be in the country illegally. The real gist though is to allow the free-exchange of information among the state agencies without any restrictions by anyone in the state. Of course there are the acts this information are to be used for:

1. DETERMINING ELIGIBILITY FOR ANY PUBLIC BENEFIT, SERVICE OR LICENSE PROVIDED BY ANY FEDERAL, STATE, LOCAL OR OTHER POLITICAL SUBDIVISION OF THIS STATE.

This is a beautiful aspect of the law. SO the free-exchange of information about aliens will be allowed prior to ensuring the person is eligible for benefits. In essence, if you're in the country illegal, no welfare for you!

2. VERIFYING ANY CLAIM OF RESIDENCE OR DOMICILE IF DETERMINATION OF RESIDENCE OR DOMICILE IS REQUIRED UNDER THE LAWS OF THIS STATE OR A JUDICIAL ORDER ISSUED PURSUANT TO A CIVIL OR CRIMINAL PROCEEDING IN THIS STATE.
3. IF THE PERSON IS AN ALIEN, DETERMINING WHETHER THE PERSON IS IN COMPLIANCE WITH THE FEDERAL REGISTRATION LAWS PRESCRIBED BY TITLE II, CHAPTER 7 OF THE FEDERAL IMMIGRATION AND NATIONALITY ACT.
4. PURSUANT TO 8 UNITED STATES CODE SECTION 1373 AND 8 UNITED STATES CODE SECTION 1644.

The other three are just other examples of purposes for sharing information among agencies.

F. THIS SECTION DOES NOT IMPLEMENT, AUTHORIZE OR ESTABLISH AND SHALL NOT BE CONSTRUED TO IMPLEMENT, AUTHORIZE OR ESTABLISH THE REAL ID ACT OF 2005 (P.L. 109-13, DIVISION B; 119 STAT. 302), INCLUDING THE USE OF A RADIO FREQUENCY IDENTIFICATION CHIP.

This is a curious section of the law. It basically states this section (1051) does not enact the REAL ID ACT of 2005. I had never heard of this act. Here is a link for information about the act. This act might be fodder for a later discussion....
http://www.ncsl.org/IssuesResearch/Transportation/RealIDActof2005Summary/tabid/13579/Default.aspx

G. A PERSON WHO IS A LEGAL RESIDENT OF THIS STATE MAY BRING AN ACTION IN SUPERIOR COURT TO CHALLENGE ANY OFFICIAL OR AGENCY OF THIS STATE OR A COUNTY, CITY, TOWN OR OTHER POLITICAL SUBDIVISION OF THIS STATE THAT ADOPTS OR IMPLEMENTS A POLICY OR PRACTICE THAT LIMITS OR RESTRICTS THE ENFORCEMENT OF FEDERAL IMMIGRATION LAWS TO LESS THAN THE FULL EXTENT PERMITTED BY FEDERAL LAW. IF THERE IS A JUDICIAL FINDING THAT AN ENTITY HAS VIOLATED THIS SECTION, THE COURT SHALL ORDER THAT THE ENTITY PAY A CIVIL PENALTY OF NOT LESS THAN ONE THOUSAND DOLLARS AND NOT MORE THAN FIVE THOUSAND DOLLARS FOR EACH DAY THAT THE POLICY HAS REMAINED IN EFFECT AFTER THE FILING OF AN ACTION PURSUANT TO THIS SUBSECTION.

Here the state is telling all agencies of the state, if they fail to follow the stature, anyone can turn the agency in, and the agency will be fined for each day it fails to follow the law. This is another aspect of the law preventing a sanctuary city.

H. A COURT SHALL COLLECT THE CIVIL PENALTY PRESCRIBED IN SUBSECTION G OF THIS SECTION AND REMIT THE CIVIL PENALTY TO THE STATE TREASURER FOR DEPOSIT IN THE GANG AND IMMIGRATION INTELLIGENCE TEAM ENFORCEMENT MISSION FUND ESTABLISHED BY SECTION 41-1724.

Straightforward detailing where any fines collected via this stature will go in the state fund.

I. THE COURT MAY AWARD COURT COSTS AND REASONABLE ATTORNEY FEES TO ANY PERSON OR ANY OFFICIAL OR AGENCY OF THIS STATE OR A COUNTY, CITY, TOWN OR OTHER POLITICAL SUBDIVISION OF THIS STATE THAT PREVAILS BY AN ADJUDICATION ON THE MERITS IN A PROCEEDING BROUGHT PURSUANT TO THIS SECTION.

This is a curious aspect of the law. Basically, if an agency is accused of violating the law and is subsequently found not guilty, the court costs for that agency in its defense can be awarded. This aspect of the law is not fully defined as to who will pay the court costs. In the end, I'm sure it is the taxpayer.

J. EXCEPT IN RELATION TO MATTERS IN WHICH THE OFFICER IS ADJUDGED TO HAVE ACTED IN BAD FAITH, A LAW ENFORCEMENT OFFICER IS INDEMNIFIED BY THE LAW ENFORCEMENT OFFICER'S AGENCY AGAINST REASONABLE COSTS AND EXPENSES, INCLUDING ATTORNEY FEES, INCURRED BY THE OFFICER IN CONNECTION WITH ANY ACTION, SUIT OR PROCEEDING BROUGHT PURSUANT TO THIS SECTION IN WHICH THE OFFICER MAY BE A DEFENDANT BY REASON OF THE OFFICER BEING OR HAVING BEEN A MEMBER OF THE LAW ENFORCEMENT AGENCY.

Basically, if a police officer is accused of violating the law by following the actions of the agency, then that police officer, as long as they did not act in bad faith (intentional deception or dishonesty), will be reimbursed for their court costs by the agency they for which they worked. To me this sounds like a "I was following orders" defense. I'm sure there was a good reason to try to protect individuals who follow the orders of an agency which is in violation of the state law.

K. THIS SECTION SHALL BE IMPLEMENTED IN A MANNER CONSISTENT WITH FEDERAL LAWS REGULATING IMMIGRATION, PROTECTING THE CIVIL RIGHTS OF ALL PERSONS AND RESPECTING THE PRIVILEGES AND IMMUNITIES OF UNITED STATES CITIZENS.

This is another section not voiced by the opponents of the law. The state is basically stating, in carrying out this law, the agency must still protect civil rights of everyone (including aliens in the country illegally) and must still respect the privileges and immunities of US citizens. I like the part that privileges and immunities are not stated for all persons; they are reserved only for citizens.

Tomorrow I will finish my discussion. Instead of going line-by-line as I have done for the first section of the law, I will give an overview of what the other sections of the law entail.

Mike

Reference:
Merriam-Webster's dictionary of law. (1996). MA: Merriam-Webster.