By: Karen Siciliano Lucas
The Supreme Court came so close to blocking Arizona’s “papers, please” mandate in June and its failure to do so has serious consequences for immigrant advocates and the communities they serve. In addition to claiming that the Court could not really tell what the mandate meant, it also drew a distinction between arresting or detaining someone for possible unlawful presence (which states cannot do on their own) and simply “communicating” with the federal government about someone’s immigration status (which states can do).
In practice, this is a false distinction. And it is one that will continue to permit biased, pre-textual police behavior to shape the federal removal process; it is also one that puts CLINIC affiliates on the front lines of the need to meet an increased demand for charitable legal services and state and local advocacy efforts.
For example, one evening last July, while talking a stroll through a park near their home in Somerton, Arizona, husband and wife Jose and Mariana were stopped by a Yuma County sheriff’s deputy. The deputy asked for ID. He did not say why.
While Mariana is a naturalized U.S. citizen, Jose is not. But with help from an attorney at a CLINIC affiliate, Jose had filed a petition to adjust his immigration status. So Jose showed the deputy his expired visa and his foreign passport and then explained that his adjustment petition was pending. The deputy called a U.S. Customs and Border Patrol (CBP) and detained Jose in the park for two hours until a CBP agent arrived.
Jose told the CBP agent the same thing he had told the deputy: that he had already filed a petition to adjust his status, and that the federal government was considering it. Like the deputy, the CBP agent disregarded this information. He sent Jose to the Florence Detention Center.
This is one of many such stories that CLINIC and its affiliates hear. Initial stop and arrest decisions made by local law enforcement can directly result in deportation. And because of “Secure Communities” and other federal/state partnerships, this will continue regardless of what happens with Arizona’s “papers, please” mandate.
After the Court’s decision, the U.S. Department of Homeland Security (DHS) withdrew some immigration enforcement authority from Arizona police and instructed its own agents to respond differently to police in the field. This could have helped Jose. But if the deputy had simply booked Jose into jail – or if the CBP agent had ignored the instruction – it wouldn’t have helped at all.
Advocates should not allow the federal government to ignore its choice to deeply intertwine local police actions with their removal process. It is not credible to claim that “communicating” status for enforcement purposes is not the same as enforcement. And the government should not be allowed to avoid accountability for the initial law enforcement decisions upon which it relies.
For more information on Arizona's SB 1070 at the Supreme Court and community education tools for advocates, see the resources available on the CLINIC website here.
*Karen is the State & Local Advocacy Attorney in CLINIC’s Center for Immigrant Rights