IMMIGRATION ISSUES: Associate Attorney, Aaron Hall: Arizona Anti-Immigrant Law Casts Shadow on Cinco de Mayo Celebrations

Happy Cinco de Mayo! Well, maybe not the happiest for those in Arizona. On May 5, 1862, the Mexican army triumphed in a battle over the French and spawned an annual commemoration which has evolved into a passionate celebration of Mexican culture and heritage. As people of all origins across America observe this day by going to parades, fesitivals , or just by enjoying some Mexican cuisine and a margarita, all is not well for Mexican-Americans.

Frustration and exasperation over the failure of the federal government to address this country's broken immigration system has led to the passage of Arizona Senate Bill 1070, a law which will make being present in Arizona without immigration status a state crime and require Arizona police officers to ask for proof of legal status based on "reasonable suspicion." Unfortunately, the new Arizona law is ill-conceived and will inevitably result in the unfair and illegitimate detention of United States citizens, permanent residents, and those here in legitimate non-immigrant status. The new Arizona law will also create an inherently offensive system of law enforcement through racial profiling.

United States citizens, lawful immigrants, and those here in other lawful status will be detained if they cannot produce a document showing their status on the spot. The problem is that many people may not be able to produce such documents for various reasons. Some people may not have ready access to birth certificates due to having lost it, due to having had it stolen or destroyed, due to family separation mental illness, homelessness or a myriad of other reasons. These people, having committed no other offense, could be detained for hours or days while they seek a way to prove legal status. Also, certain persons in lawful status simply will not be able to show proof of such based on the complications inherent in immigration law. For example:

People with with pending applications for extension or change of status will have an I-94 card that is expired, but while the application remains pending, they are in a period of stay authorized by the attorney general;

Students are admitted for duration of status and their I-94 cards do not have an expiration date;

Applicants who have applications for adjustment of status that are pending are in a period of stay authorized by the attorney general but will not have a document to prove it;

Individuals who have conditional permanent residence based on a marriage and have filed a petition to remove the conditions but have not yet received the actual card;

Individuals who are in removal proceedings or have cases on appeal.

Furthermore, the legal determination as to whether an individual is in lawful status is one that often requires thorough investigation or litigation, during which the person presumably could be detained under Arizona law. An officer on the street does not have the time, training or resources to make such a determination on the spot. Yet, under the new law, the police department can be sued by any private citizen if that citizen does not believe the police are enforcing the new law and he or she thinks they should.

Apart from those who are lawfully here who would inevitably be harmed by this law, the very notion that any of us can be required to produce papers at any time to prove our right to be in Arizona based on some nebulous concept of "reasonable suspicion"is an affront to individual liberties. Though the law says that race, alone, cannot form the basis for reasonable suspicion, we have yet to hear other specific factors that would combine with race to form a "reasonable suspicion." It seems that race and accent will clearly be the dominant factors in forming this determination. Unfortunately, this is likely to cause fear of and animosity towards law enforcement by immigrant communities, including U.S. citizens and documented and undocumented immigrants. Such distrust and fear will only hamper state police in investigating serious crimes which truly deserve the attention of their talent and resources.

Federal action must be taken to secure our border and fix the current irretrievably broken system. This Cinco de Mayo will feature an annual celebration of the wonders and contributions of Mexican culture in America against the backdrop of Arizona Senate Bill 1070--a law which demands a wasteful use of resources, inevitable mistaken detention of U.S. citizens and others in lawful status who have committed no other offense, costly litigation against the state, and a repugnant institutionalization of racial profiling. In Arizona, Mexican Americans will suffer the brunt of this clumsily drawn attempt to address our broken system. All of us, however, should recognize this legislation as a call to demand federal action in the form of comprehensive immigration reform. Only after such a reform can we have secure borders, sensible and enforceable immigration policies, and a future of fifth days of May where we can celebrate the cultural richness and economic benefits of legal immigration without the shadow of hastily drawn patchwork laws like Arizona Senate Bill 1070.

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