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Immigration Quandary- Racial Profiling or Border Control OR ELIMINATION OF THE 14TH AMENDMENT THREAT?

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Senator Russell Pearce

Arizona state senator Russell Pearce, a Republican, wants to deny citizenship to children born on US soil to illegal immigrants. Lawyers say that would clearly defy the 14th Amendment. (Ross D. Franklin/Associated Press)

Arizona’s SB 1070 and its amendments raised claims of a return to German Nazism and Russian communism by the Catholic Archbishop of Los Angeles and led to protests as well as even pro-Obama TV channels jumping on the bandwagon encouraging a nationwide boycott of the law.  Like an iceberg, the tip above is far smaller than the underlying dangerous ice.  Now the 14th Amendment is about to be challenged.  This amendment of the U.S. Constitution allows birthright citizenship to children born in the U.S., regardless of the immigration status of their parents.

This amendment was reinstated after the Civil War due to the 1857 “Dred Scott” decision that denied citizenship to U.S born children of slaves.  Arizona, like any other state, cannot repeal the 14th Amendment, but it can create a challenge to it in the Supreme Court.  Other states, such as Texas and California, have tried without success to challenge birthright citizenship but so far without success.

CLAIMS OF ANTI-IMMIGRATION GROUPS

Now some are even claiming that California’s low education level is due to immigrants’ lowering of the standards.  Others claim that the housing crisis has been brought on by illegal immigrants buying properties they could not afford.  Yet others claim that the Supreme Court case of Plyler v. Doe should be challenged since elementary and secondary education should not be paid for by legal U.S. citizens for illegal immigrants.  In short, immigrants both legal and illegal have been targeted as scapegoats by uninformed or well meaning persons lacking proper information.

REACTION BY PRO-IMMIGRATION GROUPS

Groups have boycotted meetings or suggested removing financial support of events such as the All-Star Game of Major League Baseball scheduled for Phoenix, Arizona claiming players and fans will be profiled because of the color of their skin.  The Immigration Policy Center has sought to inform the nation of statistics showing the benefit of immigrants to the country economically and have tried to explain why these policies will not work or stop illegal immigration.

PROS and CONS FOR ARIZONA

Approximately, 80% of Arizonian legal residents support Governor Jan Brewer in her signing of this bill, citing security from kidnapping, drug cartels, killings and flow of dangerous elements across the Mexican border as reasons for this law.  Even Senator John McCain, formerly a strong immigration supporter, has publicly announced his reasons for the need of this bill.   Other reasons include hostility towards illegals often perceived in a bad economy to be taking jobs from other legals in an already difficult and declining job market.  Over 12% of the current workforce of Arizona are illegals as there is so much agricultural work there that others do not want to do.   SB 1070 is Arizona’s attempt to control the constant flow of illegal immigrants across a fluid border with Mexico. This failure of the federal government to stop the incursion has resulted in a devastating law for this generation and future generations if it is not halted.

Those against the law argue that racial profiling is inevitable.  Those in favor argue that they are stepping in to the void created by federal inaction and that the law is merely requiring the carrying of a green card of permanent residency which was already a federal law requirement.

This law will probably withhold constitutional challenges as the statute (8 USC § 1304) requires permanent residents to carry their green cards (I-551) “at all times”.  Federal documentation of legality would be a green card or work visa.  The problem lies in the lack of understanding that there are a number of variations of legal status including pending legal status or valid refugee status which do not have this type of documentation.  Another problem is that the legality of the principal may not be currently available due to the quota backlog of the State Department or extended delays by Citizenship and Immigration Services (CIS).   No less troubling is the fact that few non-immigration specialist and certainly not law enforcement officers have little knowledge on the complex intricacies and various status levels of legality in immigration.  Yet another problem is that of derivatives whose parents or spouse may be legal and their cases still pending in the CIS backlog for approval.

What does SB 1070 Require?

Currently, the law requires “reasonable suspicion” to presume that 1) the person is an alien unlawfully present in the U.S. and 2) that the person has broken any law, or ordinance of county, city or town or state.  Clearly, this could be minutia and could be anything from a traffic stop to loitering in the wrong place.  The law then requires law enforcement agency to transfer the person to federal custody and facility.  This gives a law enforcement officer authority to determine legal status AND it also allows civil penalties and fines of $500-$5000 for each day that the lawful permanent resident brings action against the state as well as court costs and attorney fees if they prevail on adjudication.   This is a small penalty for false imprisonment and all the related legal and social ramification and consequences that the person suffers.  However, it certainly puts the law enforcement officer in a “Catch 22” situation.  It also is grossly unfair to the permanent resident who must take a costly legal action to get any benefit for the government’s mistake.

Racial profiling violates the 5th and 14th Amendments of the U.S. Constitution.  Our Supreme Court has held that police checkpoints and questioning near borders is legal for those suspected of being illegals.  In 2007 alone over 600,000 non-citizens were incarcerated in state jails while waiting for immigration removal proceedings.

Although the law states that the officer may not consider race, color, or national origin to enforce this law it also says “except as permitted by the U.S. or Arizona Constitution.”  Furthermore, unless the officer acts in bad faith, a rather subjective standard in the eyes of the beholder, he is indemnified from any suit or proceeding.

Unfortunately, the law does not even stop here for it criminalizes the person who transports, moves, conceals, harbors or shields the unlawful alien as a Class 1 misdemeanor with a fine of $1000.00 for each illegal immigrant.

CONCLUSION

Yet, despite all these arguments, the conundrum exists as in August 2010 even the birthright citizenship may be attacked as proposed by Senator Russell Pearce, the architect of SB 1070.  This legislation aims at targeting “anchor babies” of those principally of Mexican descent and comes closely on the heels of SB 1070.  The law is too nebulous for police to enforce and in some counties police have refused to do so. Furthermore, the law encourages alienage and nationality rather than criminality as the determining factor.  As far as the proposed legislation to take away citizenship from those born here, a new generation of illegals having known no other country would be created.  Those born here would have to be encumbered with carrying passports or birth certificates to distinguish them from any other person born and raised here.  The consequences economically, socially, politically and culturally would all be negative.

SOURCES

1.  Arizona: Then They Came After (the U.S. Citizen) Children, ImmigrationProf Blog, June 13, 2010, http://lawprofessors.typepad.com/immigration/2010/06/arizona-then-they-came-after-the-us-citizen-children.html.

2. John Winn, Arizona Law Will Triumph in Court, Wash. Times, May 14, 2010, at B4.

3. Ending Birthright Citizenship Would Not Stop Illegal Immigration, Immigration Policy Center, June 15, 2010, http://www.immigrationpolicy.org/just-facts/ending-birthright-citizenship-would-not-stop-illegal-immigration.

4. James Ho, Margaret Stock, Eric Ward & Elizabeth Wydra, Immigration Policy Center, Myths and Facts about Birthright Citizenship (2009), http://www.immigrationpolicy.org/sites/default/files/docs/Birthright%20Citizenship%20091509.pdf.

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