Arizona Immigration Law, Part II: Police Officers’ Questioning, and New Alien Residence Control System in Japan
Vincent A. @ ELC Research International
Police Officers’ Questioning
Today, we learn about events around the world through mass media such as TV or newspapers. In modern society, the mass media might be seen as indispensable to our lives in this sense. However, we have to be very careful when we receive information from the mass media. That is, we should not unconditionally believe everything we hear or read. Every event which occurs has many facets and can be viewed from many standpoints, whereas it seems that only one or two of those viewpoints can be reported by the media. Furthermore, the media is required to provide coverage designed to be attractive to its wide consumer base, which in turn naturally leads to the result that the media’s coverage seems average or homogenous. Thus, we often experience that different media sources provide similar reports, taking essentially the same standpoint, despite the fact that any particular occurrence or subject area can be approached from many directions.
The new Arizona Immigration Law can not be exempted from the above analysis of news reporting. Although there have been plenty of negative reports criticizing racism or infringement of human rights, which can be a topic guaranteed to get the attention of audiences and readers, other, less well known aspects, of the issue have not been covered. When examining the issue of the new Arizona Immigration Law it is best to keep in mind that there may be bias in the media. Furthermore, the most critical issue, that is, whether the Arizona Immigration Law is really effective in maintaining social order in the state of Arizona, has not been discussed much so far.
In Part II of this article, the Arizona Immigration Law will be scrutinized further by contrasting it with the Japanese Immigration Control Act and the Alien Registration Act, particularly with regard to the right of police officers to question individuals.
The Arizona Immigration Law section regarding police officers’ right to stop and question individuals has been the one most criticized as being discriminatory. The actual section reads as follows (*1).
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 8 United States Code Section 1373(c).
E. A law enforcement officer, without a warrant, may arrest a person if the officer has probable cause to believe that the person has committed any public offense that makes the person removable from the United States.
The words “reasonable suspicion” (objective grounds sufficient to doubt) and “probable cause” (objective grounds sufficient to believe that the person has committed a crime) used in this clause are legal terms which refer to judicially created grounds for the police officers’ action of briefly stopping a citizen or arresting him/her. In depth text interpretation will be put off for the time being. Let’s focus, instead, on how such a regulation would be understood, in practice, by front-line police officers struggling with everyday criminal behaviour. Probably, it would be understood as follows:
“When you encounter an alien about whom you are suspicious in regard to the matter of illegal residence, you should question the individual without hesitation about his/her residential eligibility. If the person does not show a verifying document or he/she acts suspiciously, you may arrest the person at once and continue the investigation by taking him/her to the police station.”
While the Arizona Immigration Law has been drafted specifically to control what is seen as a burgeoning illegal immigration problem, the expression of the regulation quoted above is far too blunt. It sounds like a police commander’s instructions to officers in the morning briefing before they go on patrol, outlining “today’s crackdown plan.” The regulation can be construed as stating that all foreigners may be regarded as criminals. It is quite insulting to “aliens,” even before one considers the question of whether the regulation is racially discriminatory toward Hispanics.
As has been discussed in Part I, in Japan the right to question residential status is not limited to police officers. It is legally extended to immigration control officers and immigration inspectors as well as marine safety officers, drug enforcement officers and Public Security Agency officers, all of whom have the right to investigate and arrest. Furthermore, even personnel who work in the alien registration section of any national or local public organizations and those who work in employment bureaus are similarly authorized. However, in Japanese culture, courtesy is considered very important, so Japanese people would never formulate what could be considered such “ill-mannered” legislation as the Arizona Immigration Law which was aimed at “guests” who visit Japan from overseas. In fact, the legal structure built around immigration is somewhat more elegant in Japan.
Every foreigner who has legally entered Japan has a passport with a landing permission seal given by an immigration control officer and those foreigners staying in Japan more than 90 days have an alien registration card. Thus, in Japan, the regulations are so prescribed that, “. . .if an officer such as a police officer asks, in the performance of his duties, a foreigner to show his/her passport or alien registration card, the foreigner must show it” (*2).
Namely, in contrast to the Arizona Immigration Law which “instructs” the police officers how to treat suspicious individuals, the regulation in Japan requests the foreigners to show their passports or alien registration cards in case an officer such as a police officer needs to see it as part of his or her duties. This remarkable contrast can be expressed in a different way: while the Arizona Immigration Law sounds strident and almost hysterical in the way it suggests that all foreigners are criminals, based, perhaps, on an ethical view that human nature is basically evil, in Japan, similar regulations are constructed with sufficient courtesy, assuming that every foreigner will have a proper passport or alien registration card, based on the contrasting ethical view that human nature is innately good.
However, a courteous regulation does not mean a limitlessly liberal one. In fact, the requirements are quite severe. In Japan, firstly, foreigners have an obligation to carry their passport at all times or, an alien registration card, for foreigners 16 years old or older who have registered as aliens (*3). Failure to carry one’s passport may be punished by a fine of not more than 100,000 yen (approx. U.S. $1,000), and the individual failing to carry the alien registration card may be assessed a fine not more than 200,000 yen (approx. U.S. $2,000). Furthermore, if a foreigner refuses to show his/her passport as required by an officer, a fine of not more than 100,000 yen will be imposed. The punishment is heavier for the refusal to show an alien registration card; it can be punished by imprisonment of one year or less with or without labour, or a fine of not more than 200,000 yen. Therefore, when a police officer is suspicious for any reason about a certain foreigner and asks him or her to show his or her passport or alien registration card, if the foreigner is not carrying the passport or alien registration card and can not show it to the officer, the person could be subject to punishment (*4).
Furthermore, as discussed in Part I, in Japan the Immigration Control Act was revised in 2000 to clearly state that illegal residence is a criminal offence. Consequently, if a foreigner without a passport or registration card does not even remember his or her passport number or registration number, and the police officer, as a result, is unable to contact the Immigration Bureau to check the residential status of such a foreigner, the police officer will naturally strongly suspect that a crime, i.e., unlawful stay or unlawful overstay, is being committed. In such a case, an examination of the foreigner’s personal effects or a body search may be carried out on the spot. Or, the foreigner may be requested by the police to go to a nearby police station voluntarily.
The severity of immigration regulations in Japan with regard to police checks of foreigners’ residential status is not very different from those of the Arizona Immigration Law described above. Despite that, there seems little possibility that the immigration control regulations in Japan will be accused of being racially biased as is the case with the Arizona Immigration Law. Why? The reason would be that: in Japan, the legal system in place in the area of immigration control is composed of a multilayer structure wherein a number of moderate regulations are woven together. This is a strikingly different to the Arizona Immigration Law which is composed of a monolayer structure, aiming at solving the perceived illegal immigrant problem by relying on authoritarian power, that is, by “threatening” foreigners with arrest unless they show verification of their immigration status. Arizona may consider itself to be in a state of emergency and such measures justified; however, it illustrates a fundamentally different way of thinking or way of solving a matter, between Japan and the state of Arizona, and one evidence, perhaps, of a significant cultural difference.
More Control in Japan: New Alien Residence Control System
Japan, having more courteously applied, but severe regulations for illegal residence, is now introducing a new Alien Residence Control System, coming into effect in 2012, as a measure to further tightening the regulations (*5).
Under the current Alien Registration Act, foreigners staying in Japan more than 90 days must be registered. The registration application form requires details from the applicant such as: passport number, birth date, applicant’s address in his/her home country, occupation, place of residence in Japan, the name of the person who represents the household where the applicant stays and, if the applicant is the person representing the household, the names and birth dates of all the household members. While the residential status and the period of stay in Japan are determined by the Immigration Bureau of the Ministry of Justice, the alien registration application should be submitted to the city or town office of the place where the foreigner resides. The reason why the city or town office manages the registration work may be that when a foreigner staying in Japan for months or years begins his or her life at their place of residence, he or she may take various social services such as the national health insurance and school registration if the applicant has a child, and the information recorded in their alien registration is the base for determining the appropriate social services to be delivered. Under the existing system, all the information collected by the alien registration office at the city or town office is supplied to the Ministry of Justice (Immigration Bureau) where the collection of residential and social data of registered foreign nationals is overseen.
The alien registration system described above will be replaced by the new alien residence control system in 2012. What is intended with this new system is obviously the centralized control of information by the Immigration Bureau. Under the new system, the initial alien registration and subsequent registration of any change such as address change, having been managed by the city or town office in the old system, will be completely administered by the Immigration Bureau. What does it mean? It means that the Immigration Bureau will thereafter control everything directly; that is, alien immigration control, alien residence control and alien departure control. With this tightened control, the illegal residence or illegal employment of foreigners based on false marriage or fake student status will be regulated more severely. In this sense, the new alien residence control system is a measure for further strengthening “No More Stay” which is a part of the Japanese Immigration Bureau’s slogan of “No More Attempts, No More Entry and No More Stay” initiated in 2000 to control illegal immigration (*6).
After the new system begins, foreigners who are going to stay in Japan more than 90 days receive, in addition to a landing permission, an alien residence card having an IC chip issued by the Immigration Bureau at the entry airport or seaport of Japan. The residence card will have a record concerning the name, birth date, residential status, period of stay, working restrictions, place of residence in Japan, etc. On the other hand, the recorded data will be supplied from the Immigration Bureau to the city or town office of the place where the foreigner is going to reside, so that the foreigner can gain access to appropriate social services at that place. The foreigners will, of course, have an obligation to carry their residence card at all times.
In Part III, in the next issue, a few less well known issues concerning the Arizona Immigration Law will be considered, with comparison to immigration control in Japan, as discussed in Part I and Part II.
[Proofreading: David Gordon-MacDonald]
*1: The author believes that it is essential to refer to the text of the related law to understand a legal matter, and actually this is usually very helpful in getting a clearer picture of the matter in question. However, it is quite infrequent that the text itself is carried by newspapers or the like, probably because it is hard to interest readers in the technical language of the legal arena.
*2: Immigration Control Act, Article 23, Clause 2 and Alien Registration Act, Article 13, Clause 2
*3: Immigration Control Act, Article 23, Clause 1 and Alien Registration Act, Article 13, Clause 1
*4: In practice, there may be cases wherein, even if the foreigner does not carry his/her passport or alien registration card, the punishment is not inflicted once his/her legal residence is verified.
*5: In 2009, the revised Immigration Control Act to introduce the new system was approved.
*6: For details of this Immigration Bureau’s control slogan, please refer to Part I of this series.
This article is a revised version of the article entitled “Arizona Immigration Law: What’s the Problem? [Part II] Police Officers’ Questioning, and New Alien Residence Control System in Japan” printed in Japonism Victoria, vol. 5 no.7, 2010 published by Japanese Canadian Community Organization of Victoria.
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