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Arizona law 'basic constitutional doctrine'

| Thursday, July 8, 2010

Just like Arizona, the federal government requires immigrants to carry registration documents.

The difference is that federal officials rarely enforce the law, said Peter Spiro, a Temple University law professor who specializes in immigration issues. The Justice Department sued this week to prevent Arizona's immigration law from taking effect this month.

"It's technically consistent with the federal law, but really only technically," Spiro said. "I think the courts are going to see through this."

Arizona lawmakers were careful to ensure their bill does not directly violate provisions of federal law, legal experts said Wednesday. Still, Spiro believes there's a "pretty good chance" courts will strike down the Arizona law for infringing on the discretion of law enforcement officers and federal officials.

Mike Hethmon, general counsel at the Immigration Reform Law Institute in Washington, helped draft the Arizona legislation. He sees it as complementing federal rules.

"It's not different at all," Hethmon said. "It's intentionally designed to mirror elements and terms of the federal law. ... It's basic constitutional doctrine of concurrent enforcement."

Parts of the Arizona law, he said, were designed to eliminate "sanctuaries" where local and federal law enforcement officials were not policing immigration laws aggressively.

"The lawmakers in Arizona perceived the federal government not enforcing the immigration law, and they wanted to be able to enforce the laws," said Valerie May, principal partner of the May Law Group, a Downtown firm that specializes in immigration issues.

Under the Arizona law, police are required to determine whether anyone they stop during the enforcement of other laws is in the United States legally. The person would be presumed to be here legally if carrying an Arizona driver's license or some other document showing proof of legal residence.

Without such identification, police could hold a person until determining his or her immigration status with the federal government. If the person is in the state illegally, the law allows the officer to take the person to a federal facility for illegal immigrants.

To make sure local law enforcement and social service agencies uphold the law, the Arizona provision allows a private citizen to sue an agency in state court. A judge could fine an agency up to $5,000 a day for every day it is not in compliance after the complaint is filed.

The Arizona law does not account for people who are undocumented in the United States but not expelled by the federal government, said David Leopold, a Cleveland immigration attorney who is president of the American Immigration Lawyers Association. That could be someone seeking asylum or protection from prosecution and human trafficking, he said.

"If you're Hispanic and you're living in Arizona, citizen or not, you're going to be looking over your shoulder," Leopold said. "It creates a climate of fear."

The Arizona law is a symptom of a broken immigration system, May said. She works with immigrants in Pittsburgh who stayed in the country longer than allowed, and she was surprised to see the federal government challenging the Arizona law when it appears to have stepped up enforcement locally. Six of her clients are in detention centers awaiting a ruling on their status.

Pennsylvania could enact a provision similar to the Arizona law, but May said it likely wouldn't have the same impact because this state has fewer illegal immigrants than border areas do.

"The issues are more pressing there because it's something they have to deal with daily," she said.

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