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July 14, 2010

Host: Ted Simons

Immigration Law Lawsuits

  • University of Arizona law professor Gabriel Jack Chin discusses some of the arguments in the various lawsuits that have been filed challenging Senate Bill 1070.
  • Gabriel Jack Chin - University of Arizona law professor
Category: Immigration   |   Keywords: immigration, sb 1070, university of arizona,

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Ted Simons: Much of the governor's support has been tied to Arizona's new immigration law. It takes effect July 29th unless a judge decides to put it on hold. Several lawsuits have been filed challenging senate bill 1070. A federal judge has hearings scheduled for those cases tomorrow and July 22nd. Here to walk us through some of the legal argument assist University of Arizona law professor Jack Chin. Good to have you here. Thanks for joining us.

Jack Chin: Thank you.

Ted Simons: Let's start with the federal suit and get to the others later. The federal suit, your general thoughts on the tenor of this particular challenge.

Jack Chin: Basically the federal suit says immigration is a federal responsibility. The United States has the authority to pass the laws, to enforce the laws, to make the decisions about how the laws are going to be applied, and SB 1070 says the department of justice takes over that federal authority in a way that the constitution prohibits.

Ted Simons: So we're talking preemption by way of supremacy clause.

Jack Chin: Part of it is that the SB 1070 is preempted through the supremacy clause. Part is that SB 1070 conflicts with particular provisions of the immigration and nationality act. But there's a larger argument. There's -- which is that states simply don't have the power to regulate immigration. Consistent with the federal scheme, inconsistent with the federal scheme, they just can't pass laws that directly regulate immigration as they claim SB 1070 does.

Ted Simons: And supporters of SB 1070 will say that this simply mirrors federal law. Does it?

Jack Chin: No. It doesn't mirror federal law. And it doesn't mirror federal law in two senses. First, the SB 1070, and here I'm talking about the four crimes that are either created in SB 1070 or amended in SB 1070. The crimes are not the same as the federal crimes. One of them, for example, in SB 1070, criminalizes looking for work or working if you're undocumented. That similar supply not a crime in federal law. So Arizona says if you're undocumented and you work, you should go to jail. The federal code doesn't make that a crime at all. So that's not mirroring federal law, mirroring federal policy. It's a different policy. And the other statutes are more or less different. They cover different things. The Arizona versions of federal statutes cover different things. They have different exceptions. It doesn't mirror federal law in that sense. But there's a larger sense in which it doesn't mirror the law, and the core of the argument and the one who support SB 1070 are really going to have to grapple with is that SB 1070 basically sets up one response to finding an undocumented person in Arizona. Criminal prosecution. That's the thing that happens under SB 1070. The immigration and nationality act has a variety of responses. It allows the federal immigration authorities to do any one of a number of things. Criminal prosecution is a possibility, in some cases. But also civil deportation. And then the immigration and nationality act has a number of relief provisions. It has a number of ways, even for someone undocumented, to be allowed to stay in the United States. If they qualify for asylum, for example, if they are a witness in a criminal case. There are various ways for somebody who is today undocumented to be arrested by federal authorities and put in proceedings, but make an argument that winds up with them yeting a temporary or permanent Visa. So that's the core of the department of justice argument that what the Arizona law does is take people who under federal law are allowed to remain in the United States ultimately, and puts them in jail. That's the problem.

Ted Simons: And they are allowed to remain in some cases by way of federal law because of a variety of things. Humanitarian interests, foreign policy concerns, a number of things have to be balanced, correct?

Jack Chin: Exactly. Exactly. The immigration nationality act is not singularly focus order keeping people out. It also lets people in. But even with undocumented people, it doesn't say if you're undocumented, then our goal is to get rid of you. It allows people for humanitarian reasons such as the asylum program, to be allowed to stay if in their home country they will be subject to persecution or torture. It also allows the United States to let people stay if it's in the interest of the United States. For example, if someone has been trafficked, they're undocumented, but they've been brought to the United States, let's say to work in some sort of organized crime operation, let's say as a prostitute, well, there are Visas available to such people to allow them to stay to testify. And as a witness in a criminal prosecution against the people who trafficked them. And obviously there's a great public interest in having somebody like that be able to stay and offer testimony to enforce the law in other areas.

Ted Simons: And yet supporters of SB 1070 say the last thing they want is for these people to stay. The law was designed to dissuade these folks from coming here and if they're here, to dissuade them from staying.

Jack Chin: Well, and that's the problem. That's the argument of the department of justice, the argument of the United States, that the immigration and nationALiTY act is more complicated. Sometimes it allows people to stay, temporarily or permanently. Sometimes just because you're undocumented that doesn't mean you forfeit every possibility of legally remaining in the United States. And sometimes those are associate the with powerful federal interests, that is, fighting crime, or foreign relations, for example. It may be I suspect that is the case that we will get -- the United States will get more cooperation out of, say, Mexico, if they handle the undocumented problem in a way that Mexico perceives as humane. If Mexico thinks that the United States is unreasonably harsh, they might not cooperate. And it might control the border better if Mexico cooperate. It will be more effective, the border will be more secure if we can persuade Mexico to cooperate and we can't simply force them to cooperate if they don't want to.

Ted Simons: Interesting. There are other legal challenges, six other, I believe, and these range from an individual, legal immigrants in Washington, DC to a couple of police officers, one in Phoenix, the other in Tuscon. I think the latest suit had to do with the training video that law enforcement is involved with. Talk with us about these suits and how they differ from the federal challenge.

Jack Chin: The federal challenge goes to the core of Arizona's authority to pass a law like this. The other challenge is, either borrow the same ideas, but with less credibility. Because it's one thing for an organization or an individual to say that Arizona is wrongly usurping federal authority, that's another thing for the federal government to say that. If the federal government says, hey, you are interfering with our foreign policy, you are interfering with our execution of the laws, which the constitution gives to us, that's much more credible than an organization or individual saying it. The individual lawsuits and the lawsuits by other organizations are interesting because they raise other issues. But a lot of them are issues that speculate about what's going to happen in the future. So an individual officer filed the lawsuit saying he might be forced to take a risk of breaking the law, by racially profiling, or being sued which SB 1070 allows lawsuits against agencies that don't sufficiently enforce the law. But he might find himself in a dilemma or he might not. Legal noncitizens in the United States might be unfairly targeted or they might not. Those suits depend on how the law is actually applied. And what's interesting and I think more fundamental about the federal suit is -- and the ACLU and MALDEF suit as well, which raises the same arguments, and this is just -- regardless of how it's applied even fits applied scrupulously, which presumably it will be, it's still unconstitutional.

Ted Simons: You were not necessarily surprised that racial profiling was not more prominent if at all in the federal challenge. Why is that?

Jack Chin: Because a lot of people don't know this, even people -- even lawyers, but the United States Supreme Court and the Arizona Supreme Court have both held that racial profiling is legal in the immigration context. Apparent Mexican ancestry is the phrase, can be used as evidence that a person is not a U.S. citizen and therefore it can be the basis for an investigation. It can't be the sole factor. There have to be Mexican appearance by itself doesn't constitute regional suspicion or probable cause.

Ted Simons: Is that all law enforcement officers or just border patrol?

Jack Chin: It has been used by non-- this case that I'm talking about, I read it as establishing the framework for determining reasonable suspicion or probable cause that a person is not in the country legally, I read it as annuity not creating special powers for the border patrol, but establishing the kind of evidence that support reasonable suspicion or probable cause. This case certainly has been used by nonborder patrol law enforcement, nonfederal law enforcement, as setting the structure for what counts as reasonable suspicion.

Ted Simons: Quickly, last question, with that in mind, would you be surprised if the attorney general, Eric holder, went ahead and filed a second suit with racial profiling as the feature?

Jack Chin: There would have to be strong evidence that local law enforcement was stopping people solely because of Mexican appearance F they're stopping people because of apparent Mexican appearance and other factors that suggest that the person is undocumented, at the moment I think that's legal.

Ted Simons: All right. Very good. Thank you so much for joining us. We appreciate it.

Jack Chin: Thank you.