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ACLU of Virginia weighs in on Supreme Court decision on Arizona immigration law

The U.S. Supreme Court this morning handed down a mixed decision in Arizona v. United States, a case challenging that state’s SB 1070 law, which is based on the controversial Prince William County ordinance that was cast aside as unworkable in 2008. While throwing out provisions making it a state crime to be in the country illegally and to make it a state crime to seek work, the Court refused to say that the Arizona “show me your papers” law was invalid on its face, without additional facts and an interpretation of the law by the Arizona Courts.

“The Supreme Court’s refusal to void the “show me your papers” provision is deeply disappointing for civil liberties advocates and those in the immigrant community,” said ACLU of Virginia Executive Director Claire Guthrie Gastañaga. “The decision leaves the law unsettled and will likely result in a patchwork of conflicting local and state immigration laws and disparate enforcement across the nation. Implementing a national policy differently based solely on where you live violates our notion of fundamental fairness and equality under the law.”

“Virginia already has 50 laws on the books that directly impact foreign-born Virginians,” added Gastañaga. “Today’s decision by the Supreme Court does not change the state laws of Virginia.  It clarifies to some extent what the Virginia General Assembly can and cannot do to regulate immigration in the future. We urge the legislature not to interpret the Court’s decision on the “show me your papers” provision as a license to pass even more restrictive laws than our current statewide check on arrest statute. This decision leaves open the possibility that the Arizona law could still be preempted by federal law if applied in a manner that disrupts federal immigration policy. Moreover, civil rights cases challenging racial profiling and making other constitutional claims will continue and additional cases will be brought wherever broader “show me your papers” provisions are enacted.”

“Virginia has already experimented with an Arizona-style ‘show your papers’ law in Prince William County. It didn’t work,” said Tim Freilich, Legal Director of the Legal Aid Justice Center’s Immigrant Advocacy Program. “The Arizona approach destroyed the County’s reputation, divided communities, and devastated the local economy and housing market, contributing to the highest foreclosure rates in the state.”

“There are always going to be extremists calling for even more aggressive laws and enforcement in Virginia,” said Michel Zajur, President of the Virginia Hispanic Chamber of Commerce. “But Virginia’s leaders have charted a more sensible approach over the past decade that protects Virginia’s global reputation as a great place to do business while addressing concerns about the impacts of the broken federal immigration system.”

“Laws, like SB 1070, harm citizens and non-citizens alike,” said Edgar Aranda-Yanoc, Chair of the Board of Directors of the Virginia Coalition of Latino Organizations. “It’s impossible to enforce ‘show me your papers’ laws without racial profiling or targeting individuals based on how they look or sound or what their last name is. History teaches us that the last time Virginia followed in the footsteps of Alabama, Georgia, and South Carolina, things didn’t go so well.”

“There is no appetite for forcing everyone-including U.S. citizens-to carry identification with them at all times,” said Jon Liss, Executive Director of Virginia New Majority. “We can do better than that, and we should learn from mistakes made in Prince William and in Arizona. After all, Virginia is a state that has long valued individual liberty and freedom from government intrusion.”

At issue in Arizona v. United States was the constitutionality of four provisions in SB 1070:

Section 2B: The “show me your papers” provision. Requires that during any stop, detention or arrest (typically traffic stops), if an officer has “reasonable suspicion” that the person is an undocumented immigrant, the officer must determine immigration status.

Section 3: Alien registration crime. Makes it a crime under Arizona state law to violate any of the federal alien registration statutes (relating to registration and carrying registration documents).

Section 5C: Working while undocumented crime. Makes it a crime under Arizona state law for an undocumented immigrant to work or solicit work without authorization.

Section 6: Warrantless arrests. Permits Arizona officers to make warrantless arrests if there is probable cause to believe that the person has committed a crime that makes the person removable.

The Supreme Court upheld the “show me your papers” provision in 2B against a facial challenge but held out the possibility the law could be preempted if applied in a manner that disrupts federal immigration enforcement or policy. The court voided as preempted Section 6 that allows warrantless arrests, Section 3 that would have made it a state crime not to carry immigration papers, and Section 5C, that would have made it a state crime for an immigrant to work or to solicit work unless authorized by federal law to do so.

Virginia has a long history of enacting anti-immigrant laws. The Commonwealth now has about fifty laws that directly affect foreign-born Virginians, ranging from gun restrictions to limits on public benefits and drivers licenses to mandated reporting of undocumented persons who check into a mental health facility. Virginia also has one of the strictest immigration enforcement approaches in the nation. For example, an opinion of the Attorney General says that state and local law enforcement already have authority to enforce criminal violations of immigration laws.

Virginia’s leaders say they have sought to strike a balance that upholds the rule of law while still recognizing that Virginia’s economy depends on hardworking immigrants, both documented and undocumented. Nonetheless, the record is one in which the weight of legislative and enforcement efforts has fallen hardest on hard-working people simply trying to raise a family and live the American dream.

Since 2008, Virginia law has mandated that all persons arrested and taken into custody have their immigration status checked twice – on arrest and, again, if convicted. Since 2010, Virginia’s participation in the Secure Communities program means the fingerprints of those arrested and taken into custody are automatically sent to the federal immigration database which notifies Immigration and Customs Enforcement (ICE) of violators. Virginia law also has a presumption against bail for persons without legal presence. And, Virginia already has a warrantless arrest provision that allows state and local police to take anyone into custody who they determine has committed a felony and returned to the U.S. without authority after being deported.

The Pew Foundation has reported that the population of unauthorized immigrants in Virginia fell by about 100,000 to 210,000 between 2007 and 2010.

Today’s decision in Arizona v. U.S. deals only with certain legal claims brought by the U.S. Justice Department. The lawsuits brought by the ACLU and civil rights coalition partners will continue against S.B. 1070 and five similar state laws in Georgia, Indiana, Utah, South Carolina, and Alabama. Those cases include additional constitutional claims not raised in this case, including the First Amendment’s protection of expressive activity, the Fourth Amendment’s bar on unreasonable searches and seizures and the Fourteenth Amendment’s prohibition of discrimination on the basis of race, ethnicity, alienage and national origin.

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