Mike Kueber's Blog

April 25, 2010

Illegal immigration and racial profiling in Arizona

Filed under: Issues,Politics — Mike Kueber @ 5:33 am

This past Friday Arizona enacted an immigration law that many have characterized as America’s toughest.  Proponents, including Arizona Governor Jan Brewer, argue that the law will provide law enforcement officers with another tool in fighting crime.  Opponents express concern that Hispanics in Arizona will be subjected to racial profiling.  Before weighing in on the racial-profiling issue, I decided to read the new law.  

Arizona’s Senate Bill 1070 is titled Support Our Law Enforcement and Safe Neighborhoods Act.  Section 1 of the bill makes clear that its intent is not to deal with illegal immigrants who are engaged in illegal activity, but rather to facilitate “the cooperative enforcement of federal immigration law… to make attrition through enforcement the public policy of all state and local government agencies in Arizona.”  This statement stands in stark contrast to the standard refrain we have heard through the years from various public employees that it was not their job to be “immigration cops.”  Well, that is no longer true for state and local government agencies in Arizona.

Section 11-1051 contains the guts of the new law:

  • B. For any lawful contact made by a law enforcement official or agency of this state or a county, city, town or other political subdivision of this state where reasonable suspicion exists that the person is an alien who is unlawfully present in the United States, a reasonable attempt shall be made, when practicable, to determine the immigration status of the person.  The person’s immigration status shall be verified with the federal government pursuant to Title 8 United States Code Section 1373(c).  [This Code section authorizes communications between state/local officials and INS regarding immigration status.]

It is difficult to directly attack SB 1070 because its narrow objective is to enforce existing federal immigration law.  To directly attach the law is to condone law-breaking.  So critics of SB 1070 attack it indirectly.  President Obama’s two-pronged attack is typical in warning that the law threatens “to undermine basic notions of fairness that we cherish as Americans, as well as the trust between police and our communities that is so crucial to keeping us safe.” 

Obama’s first prong of concern is racial profiling, which is generally understood to be something like “stopped while driving black.”  But Governor Brewer has explicitly declared that she will not allow racial profiling of Hispanics in Arizona.  In fact, she has already ordered state officials to develop a training course for officers to learn what constitutes reasonable suspicion someone is in the U.S. illegally. 

I have been unable to learn if ethnicity can be considered with other factors in deciding that a “reasonable suspicion exists” that a person is in America illegally.  I assume, but do not know, that AZ Border and Immigration personnel routinely consider ethnicity when looking for illegal immigrants.  The problem seems analogous to looking for terrorists post-9/11, where the target individuals are predominantly from a single ethnicity.  If a large majority of illegal immigrants in Arizona are Hispanic, shouldn’t law enforcement be able to consider that as a factor in deciding whether there is reasonable suspicion?   

If giving any consideration to skin color is considered unfairly discriminatory against Hispanic-Americans (and perhaps it is), I wonder if enforcement of  this law could be directed against any person, regardless of color, who is stopped by police for some other reason and then doesn’t speak English or have identification, like a driver’s license.  That would be non-discriminatory, as it would be applied against Anglos and African-Americans, too. 

Obama’s second prong of concern is that this law enforcement activity will cause an estrangement between the police and Hispanics.  Or it will render illegal immigrants vulnerable to lawbreakers because illegal immigrants will be unable to call on the police for help.  While that may be true, this is not a call for Obama to make.  Rather it is a call for the state of Arizona to make, and they have made it.

Urban Legend #1 – Cardinal Roger M. Mahony of Los Angeles went further than Obama and said the ability to demand documents was like “Nazism.”  I couldn’t find anything in the law relating to this demand for documents, so perhaps Mahoney is speculating that Hispanics will voluntarily carry documents to avoid extended hassles with the police.  Of course, there are situations where all people are required to have documents, such as a drivers license when driving or a green card when a non-citizen is visiting America, and failing to have that document might cause reasonable suspicion.

Urban Legend #2 – Proponents of SB 1070 assert that the law specifically prohibits racial profiling.  In fact, the term “racial profiling” is never used in the law.  Proponents may be referring to Paragraph J in the law, which says the law “shall be implemented in a manner consistent with federal laws regulating immigration, protecting the civils rights of all persons and respecting the privileges and immunities of United States citizens.”

President Obama is using the passage of SB 1070 to renew his push for comprehensive immigration reform in Washington.  Of course, he and most Democrats will want reform to include some form of amnesty/path to citizenship for illegal immigrants, and it is not clear whether any Republicans will agree to this. 

Personally, I believe some long-term illegal immigrants (those in U.S. for more than 10 years) who have been productive and otherwise law-abiding should be offered a path to citizenship.  This path seems appropriate, not only because America is humane and generous, but also because America is partly to blame for allowing these immigrants to take roots here.  (Mis raices estan aqui, according to John Wayne.)  Analogous legal concepts of statute of limitations and adverse possession suggest that there is justice in providing long-term illegal immigrants with a path to citizenship.

Until the federal government acts, however, all illegal immigrants in Arizona will be under heightened risk of deportation.  The law takes effect 90 days after the Legislature adjourns, although there will almost certainly be judicial challenges.  Let’s hope that SB 1070 prompts the federal government to start doing its job of passing good legislation.


  1. Well said Mike. I agree with your view on this.

    Comment by John Lee — April 26, 2010 @ 2:40 am | Reply

  2. Thanks, John. This issue is really dynamic (I’ve re-written my post three times) and the reporting has been horrible. Everyone seems to repeat the same glib arguments, without getting down to the core. Everyone talks about racial profiling, but I’m still not sure how they define the term. Depending on how you define racial profiling, it may be inherently illegal or it may be permissible. That would be a good place to start.

    Comment by mkueber001 — April 27, 2010 @ 5:50 am | Reply

  3. […] have previously opined that the DREAM Act was too narrow because it focused only on children.  Comprehensive immigration reform should also address other […]

    Pingback by End of the line for the DREAM Act? « Mike Kueber's Blog — December 20, 2010 @ 3:21 pm | Reply

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