I had an opportunity yesterday evening to listen to some discussion regarding the new Arizona law regarding the ability of state and local law enforcement officials to arrest persons unlawfully present in the United States, and was frankly surprised to learn some aspects of the new law.  First, it had been my impression for years as a criminal defense attorney, working with immigrants in like situations, that police tend to make basic inquiry regarding a person's legal status in conjunction with even routine traffic matters; however, what they did with this information varied greatly by jurisdiction and local state's attorney's policies.  I have had countless cases involving persons unlawfully present whose bad day starts with a broken taillight or expired registration.   

My analysis of the law is a little different than straight-forward policy or political analysis, namely, I am thinking about the criminal legal aspects of the law and not all the political punditry associated with this hot topic.  From a criminal legal perspective, from the vantage point of a lawyer regularly engaged in representing persons illegally in the US, my assessment is fairly neutral with regard to the law.  The law clearly states that local law enforcement must consult with federal immigration officials to determine the lawful status of any individual arrested on grounds of "trespass to public or private property" by virtue of their questionable immigration status.  That means that local police or state's attorneys are not making any final decisions as to a persons undocumented or unlawful status, as that continues to remain with USICE (US Immigration and Customs Enforcement) officials.  From a policy perspective, that's not all bad.  

Recently, federal immigration enforcement practice has become more enlightened and streamlined vis a vis detention of unlawfully present individuals.  A few years back, everyone got detained if they were here illegally, and were required to pay a substantial cash bond to secure their release pending outcome of immigration removal (deportation) proceedings.  Now, most everyone, excepting criminal offenders, get an order of supervision and are released on their own recognizance to appear at future proceedings.  What did this mean in plain words: if someone who is not legally present in the US is stopped for an innocuous traffic violation, they may be detained by local authorities after consulting with USICE with regard to their status and then held until immigration picks them up and transfers them to federal custody (normally less than 72 hours).  This is called a "federal detainer."  However, after USICE picks them up and processes the person at Immigration, they are oftentimes released with this Order of Supervision (like probation) and required to report monthly while they are awaiting an appearance before an Immigration Judge (sometimes weeks or months depending on the region).

Arizona's law has a lot of very specific state issues contained within it, particularly those affecting employment of illegal individuals, and trespass to land issues.  It also addresses important issues respecting human trafficking, since these are the channel routes for passage into the US and points beyond.  Everyone thinks that only Mexicans enter the US via these channel routes, however, many of the immigrants entering the US through Arizona and Texas emanate from central and south America.  Oftentimes these individuals suffer greatly on their journey starting in Honduras and Nicaragua, particularly during their transit passage through Mexico to the staging areas in the US-Mexican border regions.  

As an attorney practising in federal and state criminal courts, I believe that "due process" under law is the fundamental principle which rises above most of the laws and policy-driven decisions affecting their enforcement.  Simply put, if the law is applied in an incorrect manner by the police, Courts, judges, and lawyers, will address these shortcomings and deficiencies in the legal process.  A simple example will suffice: if an individual is charged with DUI, that person has a bundle of rights to examine and determine whether the charge should apply and whether or not to plead guilty.  That's what attorneys  do for people, and I think that's what they are generally doing in our society as a whole.  If an individual is suspected to be illegally present in the US, I cannot think of a single client that does not know and understand the consequences of his unlawful entry or re-entry into the US, but there is a constitutional system in place which allows he or she to raise any defenses before removal pursuant to immigation laws. 

What are some of these defenses "du jour" and how might they be applied is the subject of my next entry on this website.  

By the way, here's the Arizona bill for your review:  http://www.azleg.gov/legtext/49leg/2r/bills/sb1070s.pdf

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