The road to immigration reform in the United States is filled with potholes, disappointments, and broken promises. According to Esther Olavarria, the Deputy Assistant of Homeland Security for Policy who spoke at the University of Miami Law School in January, “[The United States’] family immigration system and employment immigration system has not been reformed since 1990.” In fact, the last bipartisan attempt to create a comprehensive immigration system pitched by Senator Kennedy and the Bush administration in 2001 failed after the terrorist attacks on September 11th, 2001, caused national security to take center stage on policymakers’ agendas. Ever since, immigration has been a hot campaign topic for politicians, but few, once in office, has made it a priority to fix the issues of our convoluted federal immigration system.
Arizona’s immigration bill, SB1070, signed into law by Governor Janice Brewer on April 23, 2010, is the direct product of the frustration surrounding the nation’s inactivity towards enacting real immigration reform. In a border state with approximately 250,000 to 350,000 undocumented immigrants, according to Urban Institute estimates, and an unemployment rate approaching 10%, according to the U.S. Bureau of Labor Statistics, it is difficult to ignore immigration issues. Even though in 2011, the U.S. Immigration and Customs Enforcement agency removed 396,906 illegal immigrants from the United States, the largest number in the agency’s history, Arizona was not satisfied. With the signing of the SB1070 bill in 2010, Arizona became the first state to pass an immigration bill so controversial that it brought immigration issues back to center stage.
What is left of SB1070?
After bringing immigration back to the table, three of the four sections of Arizona SB1070 were found unconstitutional by the U.S. Supreme Court in July. The Justices’ arguments primarily centered on the Supremacy Clause, which allots certain powers to the federal government. Farrin Anello, Lecturer in Law and Supervising Attorney at the University of Miami School of Law Immigration Clinic, told the HPR that Section 3 of SB1070 was held unconstitutional because saying the “failure to carry registration documents is a crime intrudes on the field of alien registration that the federal government has pervasively regulated.” Section 2, which declared it a misdemeanor for an undocumented worker to apply for work, was also held as unconstitutional; the federal law known as IRCA deliberately penalizes only the employer, not the individual. Section 6 was similarly annulled because it granted local police the power to arrest someone without a warrant. Section 6 would have essentially “allowed state police who have no training on dealing with immigration issues to deport someone without dealing with federal officers,” stated Anello. All three sections meant for the “state to grab power on its own,” and were thus held unconstitutional.
The one section that was not shut down by the Supreme Court, however, was the most controversial part of the bill and has caused multiple protests throughout immigrant rights groups in the United States. Further, many states have emulated this part of the law. The infamous Section 2b of the Arizona SB1070 bill differs from Section 2, according to Anello, in that “it does not authorize local police to arrest anybody new, at least in theory, but it says that anybody you have arrested, you have to have their immigration status determined before you arrest them.” This was seen as compatible with federal law, because “just checking someone’s immigration status,” does not conflict in any way with federal immigration policy.
Have papers, no problem?
Although legally, Section 2b is not seen as a problem, in practice, the section has created much controversy. The problem in executing this law is that there will now be an incentive for local police to start seeing themselves more as immigration officers, even though they may not have the proper training. Thus, racial profiling is likely to be an issue. People may be asked for their immigration status when they’re being pulled over for a parking ticket. Say an individual is stopped by an officer because the individual was suspected for a crime. Even if it turns out they didn’t commit a crime, they could still be held by the police until their immigration status was determined. People could be detained for longer periods of time, because it takes time to determine people’s immigration status. With Section 2b in play, says Anello, “what might be a fifteen minute traffic stop could be waiting a whole day for the police to check your status.”
In our complex immigration system, with various exceptions and nationality-specific policies, such as the wet foot dry foot policy that protects Cuban refugees, Anello explains, “it isn’t always clear if you could get permission to stay or not. It isn’t something an untrained officer could do this quickly and so a lot of people are going to be held in prison that shouldn’t be.” The Supreme Court, in having upheld Section 2b of the Arizona immigration bill, has given state officials more power than they are trained for. The question now is, what will it mean to have a state or local police officer trying to figure out someone’s immigration status?
Section 2b: The Future of Immigration Policy in the United States
Towards the end of the interview, Farrin Anello commented that “a lot of the state laws are passed for political advantage or because of frustrations and angers against a system that [states] don’t think are working very well.” The Supreme Court’s decision this summer made it clear that states were not to interfere with the federal immigration system, even if they felt immigration issues were not being addressed properly at the federal level. In addition, their decision to uphold Section 2b could lead to many repercussions. Various other states have now enacted laws similar to Section 2b, as its “constitutional” status has allowed states to feel more empowered. With Section 2b and others like it being implemented today, it will likely come before the Supreme Court again. But for now, according to Anello, “it’s more a message of ‘let’s wait and see’.” Section 2b and its constitutionality in implementation will have to be tried “one by one in court.”
The future of immigration policy in the United States continues to be ambiguous; the Supreme Court’s decision only managed to bring immigration back into current debate. Indeed, much will depend on whether the administration will ever make immigration their priority. There is a lot that needs to be done, and people all across the spectrum are frustrated at the way immigration laws work. The SCOTUS decision this summer may have discouraged states from changing the federal immigration system in general, but in leaving the window of Section 2b open, states will still continue to try to push the federal government to take immigration off the back burner and implement new, clear immigration policy.
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