Copland and Brenner

Table of Contents

1. Arizona Takes on Immigration: The Month in Review
2. New York: Governor’s Panel Expands Pardon Consideration

1. Arizona Takes on Immigration: The Month in Review

   On April 23, Arizona Governor Jan Brewer signed into law the Support Our Law Enforcement and Safe Neighborhoods Act, Senate Bill 1070 (S.B. 1070). The intent of the law, as set forth in the legislation itself, “is to make attrition through enforcement the public policy of all state and local government agencies in Arizona. The provisions of this act are intended to work together to discourage and deter the unlawful entry and presence of aliens and economic activity by persons unlawfully present in the United States.” The April 23 law is available online at http://www.azleg.gov/FormatDocument.asp?inDoc=/legtext/49leg/2r/laws/0113.htm.

   The main proponent: As reported in The New York Times on April 19, the law was written by Arizona state senator Russell Pearce, who “had long been considered a politically incorrect embarrassment by more moderate members of his party.” In 2006, “he came under fire for speaking admirably of a 1950s federal deportation program called Operation Wetback, and for sending an e-mail message to supporters that included an attachment – inadvertently, he said – from a white supremacist group.” In 2007, “he appeared in a widely circulated photograph with a man who was a featured speaker at a neo-Nazi conference. (Mr. Pearce said later he did not know of the man’s affiliation with the group.)” That being said, the Times article stated, “he has shown an uncanny knack to capitalize on this border state’s immigration anxiety.”

   The Times article, and others, point out that some question “whether Mr. Pearce’s personal experience motivates him.” On his legislative web site (a link is at http://www.azsenate.gov/), his personal information states that, “[m]y son, Sean was shot and critically wounded while serving a homicide warrant on an illegal alien on Dec. 16, 2004. What made this so unusual was that I was at the Brookings Institute talking about the nation’s failed immigration policies in Washington D.C. when I was handed a note, stating, ‘There is an emergency at home, call immediately.’” Senator Pearce’s own web site (http://www.russellpearce.com/) notes that he himself was “shot in the chest and hand and critically wounded in the line of duty by gang members,” and describes himself as “[o]ne of the most outspoken advocates for stopping the illegal invasion, securing our borders and enforcing our laws.” He has authored propositions to make English the official Arizona state language and to prevent any illegal alien who sues a U.S. citizen from receiving punitive damages.

   Major provisions: As enacted on April 23, the Arizona statute would:

   - prohibit state or local officials or agencies from limiting or restricting the enforcement of federal immigration laws to less than the full extent permitted by federal law.
   - require, “for any lawful contact” (emphasis added) by a law enforcement officer or agency, that “where reasonable suspicion exists that the person is an alien who is unlawfully present” in the U.S.A., a “reasonable attempt” be made “to determine the immigration status of the person, except if the determination may hinder or obstruct an investigation.” The statute specifies that law enforcement authorities “may not solely consider race, color or national origin in implementing this provision,” (emphasis added) such that these factors could be among the criteria considered.
   - penalize lawful permanent residents for “willful failure to complete or carry an alien registration document” (i.e., a permanent resident card, or “green card”). Such failure is a misdemeanor for aliens 18 years of age and older pursuant to federal immigration law at 8 USC 1304(e), with a penalty of up to $100 and/or imprisonment up to 30 days. The Arizona statute would subject violators to an additional state monetary penalty of “at least five hundred dollars for a first violation,” which would be a misdemeanor in certain cases. Under certain circumstances, however (e.g., while in possession of a dangerous drug, a precursor chemical to make methamphetamine, a deadly weapon, dangerous instrument, or property used to commit an act of terrorism; or if the person was previously convicted under this section, removed from the U.S.A. or accepted “a voluntary removal”), the violation would be a felony. In addition to monetary penalties, a violator would be subject to imprisonment and payment of jail costs.
   - make it unlawful for “an occupant of a motor vehicle” stopped on a road to hire/attempt to hire and pick up passengers for work at a different location “if the motor vehicle blocks or impedes the normal movement of traffic.”
   - likewise make it unlawful for a person to enter a motor vehicle in order to be hired under such circumstances.
   - make it unlawful for a person unlawfully present in the U.S.A. and who is an unauthorized alien to knowingly apply for work, solicit work, or perform work as an employee or independent contractor.
   - prohibit transporting or moving, concealing, harboring, shielding (or attempts to do any of the foregoing), or encouraging or inducing an alien to enter Arizona, if the person “knows or recklessly disregards the fact that” the alien is in the U.S.A. in violation of law; vehicles used in violation of these provisions would be subject to immobilization or impoundment
   - authorize police officers to make warrantless arrests in certain instances, including those in which the person to be arrested has “committed any public offense that makes the person removable from” the U.S.A.

   Effective date: Under Arizona law, “[m]ost legislative enactments become effective 90 days after the close of the legislative session. The purpose of the 90-day interim period is to allow opponents of enacted legislation time to circulate referendum petitions to prevent the legislation from taking effect until the voters have the opportunity to approve or reject it at the next election. If no valid petition is filed with the Secretary of State within 90 days, the measure takes effect on the 91st day (known as the general effective date) or on some later date specified in the bill.” See Arizona Legislative Manual at www.azleg.state.az.us/council/legman.pdf. Under these provisions, the earliest that the law of April 23 could go into effect would be July 28, 2010.

   Reaction to the new law: Challenges to the new law ensued virtually immediately. Lawsuits were filed against the state, including one by Martin Escobar, a Tucson police officer, and one by the National Coalition of Latino Clergy and Christian Leaders, which allege (among other things) that the statute is in violation of constitutional protections. The Mexican government, as well as a range of elected officials in the U.S.A., spoke out in opposition to the law. The American Immigration Lawyers Association (“AILA”) informed members that its Board of Governors decided to change the location of the organization’s fall 2010 conference, which had been scheduled to take place in Scottsdale. The Major League Baseball Players Association, the Arizona Diamondbacks and other sports organizations issued statements expressing concerns about the new law, noting that a number of players could face problems as a result of the law despite valid U.S. immigration status.

   On April 28, an organization called “One Arizona” filed papers with the Arizona Secretary of State to require a voter referendum. In order to get on the ballot, the group will need to obtain at least 77,000 signatures.

   Statutory amendments: Whether or not a result of the outcry, the Arizona legislature revisited S.B. 1070 and, on April 30, passed House Bill 2162 to address certain concerns regarding the earlier statute. For example, rather than “contact” with a law officer, there must instead be a “stop, detention or arrest” made in order to trigger the requirement that an officer make a reasonable attempt to ascertain a person’s immigration status. In addition, the amended statute specifies that law enforcement authorities “may not consider race, color or national origin in implementing” the provision requiring such a reasonable attempt to ascertain status; the modifier “solely” was deleted. Elsewhere, the statute now repeatedly notes that “race, color or national origin” may not be considered in enforcing its provisions, except to the extent permitted by the U.S. or Arizona constitution.

   On a negative note, a “stop, detention or arrest” triggering the “reasonable attempt” requirement now applies to “the enforcement of any other law or ordinance of a county, city or town” of the State of Arizona, such that no violation of any criminal law is required. Various reports have noted that a municipal code violation, such as one relating to a residential structure, could trigger a status inquiry requirement under the amended language. The amended statute is online at http://www.azleg.gov/FormatDocument.asp?inDoc=/legtext/49leg/2r/laws/0211.htm.

2. New York: Governor’s Panel Expands Pardon Consideration

   On May 3, Governor David A. Paterson issued a press release announcing the creation of a panel to assist him “in reviewing pardon applications of legal immigrants facing deportation as a result of criminal convictions.” The impetus behind the action is that “deportation can cause a significant injustice in particular cases, which can only be remedied by the Governor’s exercise of a pardon.”

   As background, in 1996 two major pieces of legislation – the Anti-Terrorist and Effective Death Penalty Act (“AEDPA”) and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRAIRA”) – were enacted, amending the Immigration and Nationality Act (“INA”). These laws expanded the definition of “aggravated felony,” with far-reaching consequences. The amended law defined an aggravated felony to include a number of specific crimes, such as the murder, rape or sexual abuse of a minor, drug trafficking crimes, and illicit trafficking in firearms. Many would agree that such offenses should be deemed aggravated felonies. However, among the laundry list of aggravated felonies is a catch-all for “a crime of violence [ ] for which the term of imprisonment [is] at least one year.”

   In turn, the definition of “crime of violence” in the U.S. Code was amended to include any felony offense that by its nature involves a risk that force may be used. Moreover, it became irrelevant whether a term of imprisonment is suspended, as long as the term imposed is at least one year. The expanded definition of “aggravated felony” lowered the applicable penalty threshold so that convictions for many lesser crimes were brought within its scope for the first time. Importantly, the expanded definition of “aggravated felony” at section 321 of IIRAIRA specified that “the term applies regardless of whether the conviction was entered before, on, or after the date of enactment of this paragraph.” (emphasis added) Suddenly, an alien who was eligible for adjustment of status to permanent resident (a “green card”) on September 29, 1996 could become removable on September 30 – simply by operation of law.

   Because AEDPA and IIRAIRA eliminated to a great extent any judicial review of discretionary agency determinations, the executive branch has operated largely by administrative fiat. The consequences to non-citizens, their families and loved ones, their employers and their communities, have been devastating. Governor Paterson’s press release recognizes this, and notes that some aliens come to the attention of immigration authorities only “years later, when, for instance, they apply for citizenship or to renew their permanent resident status.”

   The gubernatorial authority to issue pardons is not new, of course. Generally stated, Section 237(a)(2)(A)(vi) of the INA specifies that convictions for certain crimes of moral turpitude, aggravated felonies, or high speed flight under 18 USC Section 2250, which would otherwise render an alien deportable, shall not apply “if the alien subsequent to the criminal conviction has been granted a full and unconditional pardon by the President” or the governor of any state.

   Persons questioning whether they should request a pardon are well advised to seek an evaluation of whether the INA protections would apply under the facts of their case.