Arizona Immigration Law, Part III: Let’s focus on the most critical issue
Vincent A. @ ELC Research International
In the State of Arizona, in 2007, two years before the Immigration Law passed, an act called the “Legal Workers Act” for regulating illegal employment was passed (*1). According to this act, if a business owner knowingly employs an alien having no work permit, the owner shall be punished by suspension of their business license and probation for a certain period. During the probation period, if the owner again knowingly employs a worker without proper work documents, the business permit will be cancelled. Since this regulation is extraordinarily severe for both of the business owners and undocumented workers, local employers’ associations and human right groups have taken action, resulting in a hearing started last December in the U.S. Supreme Court. The plaintiff’s grounds that the Legal Workers Act is unconstitutional are basically the same as those of the federal government appeal against the Arizona Immigration Law: only the federal government has legal authority over immigration into the U.S. and state governments cannot provide immigration control.
On the other hand, currently, at least seven states in the U.S. are going to follow Arizona’s example in order to control illegal immigration. Thus, for good or ill, this law is becoming a model for regulation of illegal immigration in the United States. Furthermore, while in the U.S. every child born in the country has birthright citizenship, more than a dozen states in the U.S are considering cancelling such birthright citizenship for children of illegal immigrants (*2).
Now, in Part III, the final part, we will focus on the most critical issue with regard to the Arizona Immigration Law.
The Immigration Law: Does Arizona really need it?
The Arizona Immigration Law has been highly controversial, but was it really necessary? Let’s begin with an overview of immigration control in U.S. federal law.
In recent years, immigration regulation in the U.S. has become more and more severe, and the procedure has been changed frequently, adding procedures such as mandatory fingerprint registration, for example. Basically, under U.S. federal law, all aliens who apply for a visa to enter the U.S. must complete alien registration (Immigration and Nationality Act, Article 261). Aliens who entered the U.S. without a visa using a visa waiver program or the like have to undergo alien registration if they stay in the U.S. more than 30 days (INA, Article 262). When alien registration is completed, an alien registration card (I-94 Card) is issued. All aliens who have completed alien registration should carry the registration card with them at all times. If an alien fails to do so, a fine of $100 or less could be levied, or a term of imprisonment of 30 days or less could be imposed (INA, Article 264). The violation is considered to be a misdemeanor (petty offense) with a relatively light penalty, which is distinguished from a felony (serious offense) with a heavy penalty. Even so, it is still a crime and becomes part of an individual’s criminal record.
On the other hand, a green card (Foreign Registration Receipt Card) is issued and given to legal immigrants who have obtained permanent residence authorization. These immigrants have a similar duty to carry the green card with them at all times. Finally, aliens who stay in the U.S. for only a short time do not need to complete alien registration but are obliged to carry the visa and passport with them at all times (*3).
Under U.S. federal law, as described above, all aliens who legally reside in the U.S. should always carry ID with them. Therefore, it is possible to distinguish illegal immigrants having no ID or other documents through more rigorous examination by police officers.
If police officers’ examination of individuals becomes more rigorous, it would mean that more aliens who left their ID at home may be punished by a fine or detained at a police station until their residential eligibility is proved. Undoubtedly, this would be very unpleasant for aliens who are actually staying legally. However, it is something that must be borne, as a crackdown on illegal immigrants is inevitable in U.S. society.
One problem remains, however. That is, there can be difficulty in distinguishing U.S. nationals having no ID from illegal immigrants. The U.S. does not have a family registry system or a health insurance system like that of Japan. Thus, the social status of people cannot be proved by a document such as a residential certification or a health insurance card. While status can be proved by a driver’s license or a student ID card, a lot of people have neither of them. In fact, unfortunate occurrences have begun to be noted in Arizona: some Hispanic Americans having no ID have been detained by police.
How can such occurrences be avoided? The answer is relatively simple. That is, ID cards should be given to those having U.S. nationality. For example, British Columbia, where we reside, has a unique identification card available, called the BC ID. A similar ID system could be introduced in Arizona. While even an alien can be registered by the BC ID system, the Arizona ID system could be limited to U.S. nationals. Because all Americans living in the state would be subject to registration, the system would be entirely free from the problem of racial discrimination. Furthermore, since this ID system is exclusively for U.S. nationals, it is completely separate from the state’s immigration regulation. Thus, it does not violate the U.S. constitution.
Examination by Police Officers
In order to disclose illegal immigrants based on the presence or absence of ID, the ability of police officers to question is crucial. So, can police officers conduct such examinations without the prescription provided by the Arizona Immigration Law which specifies police officers’ duty in this regard? Perhaps, the answer is “Yes”.
According to the Arizona Immigration Law, police officers are obliged to inquire about the residential eligibility of a suspicious person if there are any “reasonable suspicion” (objective grounds) to doubt their residence status. Furthermore, police officers are authorized to arrest a person without a warrant if there are any “probable cause” (objective grounds) to believe that the person has committed a crime which can lead to deportation (Article 8). However, the words “reasonable suspicion” and “probable cause” were not first used in the Arizona Immigration Law. Rather, these are legal terms having already been juristically established in the U.S. jurisprudence.
Namely, in America, not limited to the State of Arizona but also in any other states, if there is reasonable suspicion, police officers are authorized to question an individual and, if there is probable commission of a crime, they are authorized to arrest a suspicious person on the spot. Since illegal entry and illegal residence constitute criminal acts which fall under the penalties of imprisonment or compulsory deportation, in every state police officers will, in principle, be able to detain a suspicious person unless their nationality as an American, or their residential eligibility, can be proved.
Actually, however, police officers have often not made gone as far as to inquire about the residential eligibility of Hispanics. This is not because they are legally unauthorized to do so. Rather, it is because police officers have been anxious about the consequences — that making such inquiries would provoke Hispanics’ antipathy and Hispanics would, therefore, no longer be cooperative in other criminal investigations (*4). So, it could be said that, despite the fact that police officers have the authority to make inquiries under the current legal system, the Arizona Immigration Law has intentionally obliged police officers to engage in such inquisitorial activity possibly because police officers, anxious about the alienation of Hispanics would be reluctant to do so.
However, if the need were only to push reluctant police officers to inquire about the residential eligibility of a suspicious person, it wouldn’t be necessary to draft legislation, and such severe legislation that it has caused the Arizona product boycott campaign. Instead, it could have been done much more quietly within the walls of each police station simply through police commanders telling police officers to crackdown on suspicious persons by doing more detailed checks. In Part II, when the text of the Arizona Immigration Law concerning the police officers’ inquiries was considered, the author mentioned that the regulation was too direct and it sounded like a police commander’s instructions to police officers in the morning briefing before they go on patrol, outlining “today’s crackdown plan.” Perhaps that is a sign of how the matter is best handled: by instructions given discreetly in each police detachment, designed to give police officers a push in a certain direction, and definitely not by legislation.
Behavioral Style of Americans
We have looked at less severe solutions for regulating illegal immigration, including the introduction of an Arizona ID system and raising the rate of detailed inquiries by police officers. By being more discreet and judicious the regulation of illegal immigration could have been satisfactorily accomplished without causing extensive criticism and allegations of racial discrimination and human rights infringement. Instead, the Arizona government has rejected such milder solutions and has chosen the current Arizona Immigration Law. Why?
In brief, it may be a matter of behavioral style. It could be a simple result of the emergence of a behavioral style peculiar to Americans. That is, even when the situation could be improved little by little if efforts are made carefully and tenaciously, Americans tend to recklessly rely on naked power and open attacks on the opponent, attempting to solve the problem quickly and easily. The U.S. did so in Vietnam and in Afghanistan and Iraq as well. And, of course, they failed in all of these countries. The author is wondering whether the Arizona Immigration Law, which is becoming the model for illegal immigration regulation in the U.S., is a similar type of error.
Namely, the author believes that the most serious issue in regard to the Arizona Immigration Law is that the law has antagonized the Hispanics for no reason. Despite the fact that there are other ways to regulate illegal immigration, the State of Arizona has chosen the worst possible one. The hostility and distrust of Hispanics toward American white society caused by the Arizona Immigration Law will not soon fade away, and the influence thereof will come to the surface little by little in the coming years. Even if the number of illegal immigrants is decreased by this law and social order in Arizona is apparently restored, there will be a swelling tide of negative consequences such as noncooperation with police, unwillingness to pay taxes and the like. The prosociality of Hispanics, that is, their motivation to help improve society and make it more livable, will undoubtedly be weakened.
Even with the above-mentioned Arizona ID system, in which illegal immigrants having no ID would be revealed by police officers’ inquiries, there would be antipathy among Hispanics, the main target of such an exercise. However, there still remains a possibility of talking reasonably about the issues with Hispanics and seeking consensus. The Arizona government and the Hispanic community could openly discuss the importance of social norms such as the idea that staying in a law-governed country illegally is ultimately bad for a society and all its members.
The problem of illegal immigrants in Arizona is a problem of the State of Arizona on one hand, and it is the problem of Hispanics living in the State of Arizona, on the other. Politicians in Arizona need to show the wisdom to create a dialogue over the immigration question with Hispanics. However, the immigration law has probably made any such possibility unlikely for the foreseeable future.
[Proofreading: David Gordon-MacDonald]
*1: Arizona Revised Statues §23-211 to § 23-214
*2: “States plan crackdown on immigration but risk Latino ire”, Reuters, January 4, 2011
*3: Mexico citizens having a Border Crossing Card are excluded.
*4: “Immigration advocacy groups to challenge Arizona law”, The Washington Post, Apr. 25, 2010
This article is a revised version of the article entitled “Arizona Immigration Law: What’s the Problem? [Part III] Let’s focus on the most critical issue” printed in Japonism Victoria, vol. 6 no.1, 2011 published by Japanese Canadian Community Organization of Victoria.
You can download the PDF version of this article from the following link: