Arizona SB 1070 Ruling
Step Up the Fight Against Federal Government Profiling and Criminalization of Immigrants
On July 29 in Phoenix and many other cities, including New York City, Boston and Chicago, people took their stand against government attacks on the rights of workers and immigrants. The day marked the first day of implementation of Arizona’s racist profiling law, SB 1070. The numerous actions and signs made clear that the peoples will continue their fight for rights and the ruling by federal Judge Susan Bolton July 28, concerning SB 1070, would not change that. Many recognized that the main demands for an end to raids, deportations, racist government profiling and criminalization of immigrants and workers, remain unmet by President Barack Obama. The federal government, far from addressing these issues, instead argued in court that Arizona did not have authority to impose such policies — only the federal government does!
The failure of the federal government to solve issues raised by SB 1070 can also be seen in the fact that while the federal government argued that SB 1070 was “criminalizing unlawful presence,” it has continued to expand its hated programs, like “Secure Communities” and “287g,” which are criminalizing immigrants on a far broader scale. It is these federal programs, which empower local and state law enforcement to act with impunity against immigrants, that provided the model for Arizona’s SB 1070. The judge said as much, stating she issued an injunction against portions of SB 1070 “Because the federal government’s ability to enforce its policies and achieve its objectives will be undermined by the state’s enforcement of statutes that interfere with federal law, even if the Court were to conclude that the state statutes have substantially the same goals as the federal law.”
Given reality on the ground, where deportations continue at record rates, racist government profiling programs like “287g” and “Secure Communities” are being expanded and plans for a biometric ID requirement for all workers are being made, protesters across the U.S., in Mexico and elsewhere were firm in their stand on the need to step up the fight for immigrant, worker and human rights. The federal government remains a main target.
The federal government brought the lawsuit against Arizona in part to appear to oppose the more blatant profiling the law contained. However, the arguments made in court were not focused on racist profiling or due process. As the judge stated, “The United States argues principally that the power to regulate immigration is vested exclusively in the federal government, and that the provisions of SB 1070 are therefore preempted by federal law.”
It is certainly true that immigration is a federal matter. Arizona did not argue otherwise. Indeed, they stated that the law was based on federal law, which is also certainly true. As the judge indicated in her statement, the state statutes have “substantially the same goals” as federal law. And her ruling refers to similarities between SB 1070 and federal law.
The judge did issue a temporary injunction against certain portions of SB 1070, such as arrests based on “reasonable suspicion of being undocumented” and the “show me your papers” clause. This is the very least required but far from what is needed to address the problems raised by SB 1070 and federal immigration laws and policies.
Conditions are bringing to the fore that both sides are wrong, in that both federal and state governments are defending and acting to perpetuate the crimes of racist profiling, collective punishment and attacks on immigrant, worker and human rights. Refusal by the federal government to end “Secure Communities,” CAP and similar programs, to end the raids and deportations, are evidence of this. President Obama could take such actions and they are a far more effective means of contending with current problems. Deportations are done at the discretion of ICE, authorization to police agencies in Arizona and elsewhere are done at the discretion of the federal government and can be removed. Obama can readily take such actions, but consistently refuses to do so.
The federal government, which is responsible for immigration, is perpetuating and expanding its racist profiling programs and ICE terrorism, all while attempting to appear concerned about immigrants. It is striving to require states to comply with its profiling and criminalizing of immigrants, using “Secure Communities” and “287g” even when local and state forces oppose such actions. The federal government is more guilty than Arizona, in that it is committing these crimes nationwide and abdicating its social responsibility to solve these problems. Its emphasis on federal authority then is not so as to use this authority to defend the rights of immigrants, but rather to show Arizona and all the states that their policing agencies will come under the command of the Office of the President and do what it dictates.
Further, when the federal government acts to make it mandatory to have federally issued biometric IDs for all workers, and to have “zero tolerance” for anyone without documents, and to have “auxiliary units” and National Guard on the border to enforce its mandate, it will be considered legitimate because it is the federal government doing it, not Arizona. Plans for essentially imposing SB 1070 nationwide, and extending it to all workers, are already in place with New York Senator Chuck Schumer’s immigration plan, fully backed by Obama. And the latest news indicates Obama will go forward with parts of this plan, using executive authority, not legislation. The lawsuit serves to divert from these plans and from the crimes of the federal government. It makes it appear the federal government will defend at least civil rights, while in fact it continues down the path of fascism and war and arrangements necessary for this. These include unifying the policing forces nationwide under federal command, and strengthening federal and executive authority.
Both federal and state authority are clashing with conditions, conditions that demand recognition of the rights of all and modern governments that guarantee these rights. They are also making clear that to achieve such a government, empowerment of the people themselves, with their stand to defend rights, is required. This necessity and stepping up efforts to achieve it is increasingly on the minds of all those fighting for rights. An integral part of this, as the many signs at the recent actions emphasized, is We Will Not Comply with government efforts to criminalize and silence us and will instead step up the fight for the rights of all.
We Will Not Comply with SB 1070 or Federal Crimes!
Judge Blocks Some of Arizona’s Profiling Law
On July 28, a day before Arizona’s racist profiling law was to go into effect, Federal Judge Susan Bolton issued a ruling that blocks only some of the law’s arbitrary and racist content. The federal government had filed a lawsuit mainly challenging sections 1-6 of Senate Bill (SB) 1070, which has 13 sections in all. The federal government based their challenge not on the racist profiling and broad attacks on the rights of workers and immigrants that the law contains, but rather that Arizona was interfering in the federal government’s authority over immigration matters. As the judge put it, the federal government argued that “The power to regulate immigration is vested exclusively in the federal government, and that the provisions of SB 1070 are therefore preempted by federal law.” More specifically, the federal government demanded that it has sole authority to determine the role and priorities of federal agencies acting in the states, like Immigration and Customs Enforcement (ICE), as well as the role local and state police will play in immigration enforcement.
It is significant that the arguments presented, and the ruling, enable the federal government to continue and expand its various programs that involve racist government profiling, unjust detentions and deportations — such as “Secure Communities” and CAP — while also forcing local and state law enforcement to act solely under federal authority. The ruling does not speak to or even use the terms racist profiling. As well, policing agencies in Arizona that have been sanctioned by the federal government to carry out immigration law, such as Sheriff Joe Arpaio in Phoenix, are still free to implement their racist attacks and police sweeps that terrorize immigrant communities. Indeed, Arpaio did just that July 29 and again July 30.
Judge Bolton ruled that four specific portions of SB 1070 would likely be ruled unconstitutional, based on federal authority over immigration. She issued a preliminary injunction for these sections, meaning they are not to be implemented. Arizona appealed the ruling so the case will now go before the full 9th Circuit Court of Appeals.
The four portions blocked from implementation include some of those most vigorously opposed by peoples across the U.S. as well as in Mexico and elsewhere. They include:
• requiring local police to determine immigration status of anyone they “lawfully” stop, detain, or arrest, if there is “reasonable suspicion” that they could be undocumented (Portion of Section 2)
• mandatory detention of anyone arrested until police determine their immigration status (Portion of Section 2)
• requiring all non-citizens to carry documentation proving their status and to register with the federal government, making it a crime to not carry documents (Section 3)
• making it a crime for undocumented workers to work or solicit work (Portion of Section 5)
• authorizing arrests without warrants of anyone police have “probable cause” to believe has committed a public offense that makes the person deportable (Section 6).
The judge ruled that for these portions of the law, the government would likely win and would suffer irreparable harm if they were implemented. An injunction stopping implementation of just these portions was issued. Anticipating this possibility, SB 1070 was written with a “severability clause” that allows portions to be ruled unconstitutional while the rest of the law remains.
Bolton let stand those sections of SB 1070 which make it a crime of “human smuggling” to knowingly transport undocumented people (Section 4). This makes it a crime, for example, to transport undocumented family members, provide transportation services for day laborers and farmworkers, for religious and rights groups to transport undocumented workers and families, etc. The law also provides for impounding the vehicles used in transporting undocumented people (section 10). Both of these are aimed at criminalizing families and workers and those who assist them, while diverting attention from the actual human traffickers.
Judge Bolton also let stand those portions that require all local officials to fully enforce immigration law and allows individuals to sue for any failure to do so (portions of Section 2). This was aimed at sanctuary cities, where local government mandates that police refuse to enforce immigration law, and at any reluctance by local police to enforce SB 1070 because it required profiling and criminalizing those guilty of no crime.
She let stand the section making it a crime to stop a motor vehicle to pick up day laborers and for such workers to get into a vehicle, if it impedes normal traffic. It is up to police to decide what “impedes” normal traffic. This section is aimed at intimidating and criminalizing day laborers and also enabling police to target or favor particular construction are agricultural companies.
All of these portions, which are serious attacks on the rights of workers and immigrants, are now being enforced. By supporting the section banning sanctuary cities, Bolton’s ruling is targeting the right of local cities to oppose federal government crimes of profiling and collective punishment of immigrants.
Ruling Concerning the “Reasonable Suspicion” Portion, Section 2
For Section 2, which was a main target of the many protests and additional lawsuits for its open profiling and attack on rights, the main argument given was that the federal government would be inundated with state requests concerning immigration status and be diverted from pursuing more serious problems, including “national security” matters. As the federal government argued, it would “impermissibly shift the allocation of federal resources away from federal priorities.” The problem then was not profiling, but that the federal government has sole authority to decide these matters. By arguing in this manner, the profiling that the federal government does whenever ICE conducts its sweeps and mass arrests, remain valid. Indeed, SB 1070 requires local and state forces to work with the federal government to “fully enforce” immigration law.
In addressing the portions of Section 2 that were blocked, the judge did speak to the likelihood that it would mean detention of documented permanent residents or even citizens. As the federal government also argued it “Conflicts with federal law because it necessarily imposes substantial burdens on lawful immigrants in a way that frustrates the concern of Congress for nationally-uniform rules governing the treatment of aliens throughout the country.” The judge added, citing the Supreme Court Hines ruling, that such uniform laws are supposed to “protect the personal liberties of law-abiding aliens through one uniform national … system  and to leave them free from the possibility of inquisitorial practices and police surveillance.” Requiring law enforcement officials to determine the immigration status of every person arrested “burdens lawfully-present aliens because their liberty will be restricted.”
It should be noted here that the preoccupation is not with blocking racist profiling and providing due process for all persons, as mandated by the Constitution. And it is certainly not with the rights of the millions of undocumented workers and their families, who are the main target of the ICE-police sweeps and SB 1070. Instead concern is expressed for “lawfully present aliens” who might get caught up in the sweeps. In this manner, the government’s arguments and the ruling supporting them, contributes to government efforts to divide the immigrant community and direct debate away from the rights of all and into what the government claims is “lawful” or “unlawful.” Even the judge admits that it is not a federal crime to be in the country without documentation.
The ruling also affirms that if the federal government is the one conducting the profiling and sweeps, with local and state officials working under federal authority, then detentions and state requests concerning immigration status are fine. Indeed, the federal government’s “Secure Communities” program requires exactly that. Local and state law enforcement agencies participating are required to send the fingerprints of anyone arrested (not convicted but simply arrested) to ICE for confirmation of immigration status. The federal government is working to extend the program to every jail in the country. It currently exists in 467 jurisdictions in 26 states, including parts of Arizona, California, Texas and Florida, all with large immigrant populations.
“Secure Communities,” along with the government’s CAP and 287(g) programs, have all given rise to widespread profiling, unjust and often illegal mass detentions and deportations. In focusing its arguments against Arizona’s SB 1070 on the issue of federal authority, the federal government made certain its authority to pursue the federal racist anti-immigrant programs was untouched and even affirmed. All while making it appear the federal government opposed profiling.
Ruling on “Show Your Papers” Section 3
For this section, the judge again relied mainly on federal authority to regulate registration of immigrants. The government gave the argument that Section 3 “interferes with comprehensive federal alien registration law, seeks to criminalize unlawful presence and will result in the harassment of aliens.” The judge ruled that it “stands as an obstacle to the uniform, federal registration scheme and is therefore an impermissible attempt by Arizona to regulate alien registration.”
What is significant here is that the backdrop for the current immigration debate is the fact that the federal government has failed to provide comprehensive immigration reform that affirms that rights of workers and immigrants. At the same time, it has imposed programs, like “Secure Communities,” that are enforcement based. Many of the families already contending with separations and deportations, including of people who have been living and working in the country for years, would be surprised to hear the federal government is concerned about “criminalizing unlawful presence.” The federal government has systematically been criminalizing those who are documented and undocumented such that even military veterans are being deported for minor infractions from decades ago.
It is the federal government that has provided the blueprint for the Arizona law and promoted the atmosphere of more and more enforcement measures. This includes the border death wall responsible for thousands of deaths and sending 1200 National Guard to the border August 1.
In addition, the current proposal by Democrats, presented by New York Senator Chuck Schumer, has the same measures contained in the Arizona law. If implemented, it would require not only immigrants but all workers to register and secure a biometric ID in order to work. It would make it a crime for immigrants not to register with the government and there would be “zero tolerance for illegal entry and re-entry into the U.S.” All foreign nationals would have to register and be fingerprinted. “Secure Communities,” which is now voluntary, would become mandatory nationwide, meaning the profiling the programs impose would be legitimized nationwide. It would promote civilian “border patrol auxiliary units,” much like the civilian posses used by Sheriff Arpaio, to participate in mass sweeps of immigrant communities. Thus, the concern of the federal government is not with criminalization of immigrants, but that only the federal government is authorized to impose such laws and the role of the states is to submit to ICE and other federal agencies in enforcing these federal laws.
Branding immigrants as “lawful” or “unlawful” is part of the effort to prepare acceptance for Obama’s plans for biometric work ID’s for all workers. Promoting the notion now that there are sections of the working class that are “unlawful” or “illegal” and others that are “lawful,” all determined solely by the federal government, prepares the grounds for acceptance of far broader impunity against all workers in the future. The government will utilize its plans for biometric work ID’s for all workers to brand anyone not issued such ID as “unlawful,” and subject to imprisonment, or potentially labor camps. The court case assists in promoting these false divisions and criminalization of workers, while diverting from the broad attack on immigrant, worker and human rights by the federal government.
Ruling on Criminalizing Workers, Section 5
Section 5 makes it a crime for undocumented people to work or solicit work. Here too the federal government argues that Congress has chosen not to criminalize undocumented workers simply for working. This is consistent with the need for such workers as a pool of cheap labor, especially in the agricultural and service sectors of the economy. Now, however, in the context of increasing militarization of the border and society as a whole, the federal government is moving in the direction of more fully controlling the workforce as a whole — hence Schumer’s proposal for biometric ID for all workers. As with Section 3, the federal government is dictating that only it can provide such laws, so as to guarantee that they are national in scope and place the federal police agencies in command. It is not so much a federal vs. state’s rights issue, as it is an effort by the Office of the President to put in place arrangements whereby it commands all the policing forces, federal, state and local. And it commands the entire workforce and decides who does and does not work. It is using immigration as a vehicle to achieve these fascist arrangements, while claiming to oppose the criminalization of undocumented workers.
Ruling on Arrests Without Warrants, Section 6
Section 6 of SB 1070 allows an officer to arrest a person without a warrant “if the officer has probable cause to believe that the person to be arrested has committed any public offense that makes the person removable from the United States.” Again the argument made is not that arrests without warrants are crimes in themselves. Instead, it is that federal immigration law is too complicated for an individual officer to know what is and is not a deportable offense. This no doubt is true. The federal government itself changes which crimes are considered felonies, aggravated felonies and misdemeanors and the various states also have varying laws. Immigration law is very complex.
What stands out here is that the arguments made by federal government, and supported by the judge, are presented as though the debate on immigration is occurring in a vacuum. The fact that the federal government has been carrying out warrantless arrests of immigrants on a mass scale and deporting large numbers of people for minor infractions does not even enter into the discussion. Indeed, it is the federal government which has provided this model for Arizona and all the states, and taken the lead in mass sweeps using warrantless arrests in communities, much as it did when SB 1070 was first passed in April. Broad protests have been organized in many states opposing these sweeps and the collective punishment of whole communities, which are federal government crimes.
The federal government is also acting to deport record numbers of people, many not criminals at all. For example, an October 2009 Department of Homeland Security (DHS) report found that 57 percent of immigrants identified through its CAP program in FY 2009 had no criminal convictions, up from 53 percent in FY 2008. Another recent study showed that the majority of immigrants placed under an ICE detainer were arrested for a misdemeanor, including minor traffic violations, as their most serious charge. In 2008, 58 percent of the detainers were placed on those charged with misdemeanors, up from 38 percent in 2007 and 34 percent in 2006. In addition at least 26,000 citizens were swept up, detained and sometimes deported through these federal government programs. 88,000 children, who are citizens, have lost a parent to unjust deportation. In filing suit against Arizona then, the government is not trying to stop racist profiling and deportations. It is trying to make it appear that it is against these crimes, while diverting from the fact that it is increasing the very same measures nationwide and forcing local and state police forces to do the same, under federal command.
Taken overall, the ruling lets stand serious attacks on the rights of workers and immigrants. While those living in Arizona and the many who have stood to oppose SB 1070 are no doubt glad that at least some of the worst portions of the bill are temporarily blocked, they remain angry about government refusal to address their serious concerns about collective punishment, mass deportations and separations of families, criminalization of workers, and increasing attacks on rights.
Through their demonstrations and demands for legalization and an end to deportation and criminalization, the people are showing that whether at the state or federal level, attacks on immigrants must not stand. Now is the time to stand together and step up the fight for the rights of all.
Some Facts on Federal Government’s Racist Profiling Programs
While the federal government has been promoting its lawsuit against Arizona’s SB 1070 as an effort to defend immigrants, it has continued to expand its own programs that profile immigrants and deport people at a record rate. These include the federal government’s “Secure Communities” and CAP (Criminal Alien Program). Together they are responsible for the majority of deportations being done by DHS’s Immigration and Customs Enforcement (ICE).
ICE has set a quota of 400,000 deportations for this fiscal year. This is nearly 10 percent above the Bush Administration’s 2008 total and 25 percent more than the number of people deported in 2007. These detentions and deportations separate families, target mainly workers and include thousands of citizens and documented immigrants. ICE admits at least 5 percent of those targeted just by “Secure Communities” are citizens.
The government has received $550 million to systematically expand these programs. “Secure Communities,” for example, has expanded from 14 jurisdictions in 2008 to 467 jurisdictions in 26 states today, including all of Florida and Virginia and parts of Texas, Arizona and California. Many states, like New York, are not yet participating. The government is striving to have all jurisdictions in all states participating by 2013.
The Department of Homeland Security (DHS) put both programs in place and neither is mandated by law. These programs can readily be terminated by President Barack Obama and replaced with policies that recognize immigrant and human rights. Instead they are being expanded and the atmosphere of government profiling and impunity against immigrants increasing.
While Obama has been moving away from open mass workplace raids, he has been increasing ICE raids into immigrant communities, imposing collective punishment and terrorizing communities and whole cities. This includes, for example, an ICE raid using 800 federal, state and local agents to raid four cities in Arizona, including Tucson and Phoenix, right at the time Arizona’s SB 1070 was being debated. A massive show of force, including helicopters, heavily armed agents and police vehicles was unleashed. In the end 47 people were arrested.
Both programs require local police and sheriffs to provide fingerprints of anyone arrested — not convicted — to ICE. ICE determines if the individual is documented or not and then can arbitrarily put them on a “detainer,” to be held for ICE. The person can be held for 48 hours after resolution of their charges and regardless of whether charges are dropped, they are acquitted or are only convicted of minor offenses, like traffic violations.
According to ICE statistics for “Secure Communities” for 2008-09, only 9 percent of all those targeted were level 1 offenders, which includes crimes like murder, robbery and major drug offenses. Five percent were citizens. People with Level 2 and 3 offenses, which include many non-violent misdemeanors, account for 86 percent of those deported. If statistics from CAP are any indication, most of this 86 percent are level three, non-violent petty misdemeanors.
CAP, which is supposed to mainly target Level 1 offenders, accounts for more than 48 percent of all deportations. This includes many who have lived and worked in the country for years. In Fiscal Year (FY) 2006, ICE charged 67,000 immigrants through the CAP program, a figure that more than doubled the following fiscal year to 164,000. In FY 2008, CAP agents charged 221,000 noncitizens.
Many people charged are not criminals at all. An October 2009 Department of Homeland Security (DHS) report found that 57 percent of immigrants identified through the CAP program in FY 2009 had no criminal convictions, up from 53 percent in FY 2008. Another recent study showed that the majority of immigrants placed under an ICE detainer were arrested for a misdemeanor as their most serious charge. In 2008, 58 percent of the detainers were placed on those charged with misdemeanors, up from 38 percent in 2007 and 34 percent in 2006.
“Secure Communities” and CAP, along with similar government programs that involve local and state police agencies reporting to the federal government, also serve to strengthen federal control over state and local police. They develop working relations based on the federal government being in command, and local and state enforcement agencies submitting to them, even in situations where this is counter to local law. This includes San Francisco, for example, which prohibits local law enforcement from forwarding fingerprints of anyone not convicted of a violent crime, while “Secure Communities” requires that they forward the fingerprints of anyone arrested.
Obama could easily eliminate these and similar programs and replace them with programs that respect worker and immigrant rights. Instead, Obama and the Democrats are pushing for these profiling programs, which are currently voluntary, to become mandatory nationwide.
In addition the government has the “287g” program, which refers to the portion of the law that mandated it. This program provides for the federal government to train local and state police forces to enforce immigration law. The federal government has to authorize the local and state agencies, after which they can enforce immigration law. Perhaps one of the most well-known examples of 287g in action is Sheriff Joe Arpaio, in Phoenix. Since being authorized by the federal government, he has conducted 17 raids into Phoenix communities, paraded arrested immigrants in shackles down the street, forced them to wear pink underwear, and housed them in tents. The federal government has not withdrawn his authorization despite his flagrant profiling, elimination of due process and other violations of the law.
The “287g” programs are also being extended nationwide, with similar results, in terms of racist government profiling, arbitrary detentions and deportations. There is no indication that the federal government plans to revamp this program to prevent these crimes and the mass humiliation imposed. In fact, like CAP and “Secure Communities,” they are being expanded.
The number of human remains recovered on the Arizona-Sonora border since October 1, 2009 has reached 153, reports the Tucson-based Coalición de Derechos Humanos. The data is comprised of medical examiner reports from Pima, Yuma, and Cochise counties, and is an attempt to reflect more accurately the human cost of brutal U.S. border and immigration policies.
While the U.S. body politics is engaged in a one-sided discussion around “security” and “enforcement,” communities continue to witness tragedy and death on the U.S.-Mexico border. Rather than directly addressing this issue, politicians and most organizations have ignored it. Since 1995, when the first 14 deaths along the Arizona border occurred, Derechos Humanos has been a voice in the wilderness demanding justice. Fifteen years and more than 2,000 deaths later, there is no end in sight to the unnecessary carnage on the U.S.-México border.
The count to date includes ninety-eight (98) males, nineteen (19) females, and thirty-six (36) individuals of unknown gender. The identities of approximately one hundred seven (107) of the recovered individuals remain unknown, which is approximately 69.9 percent of the total recovered thus far this fiscal year. This number is a 22.4 percent increase from last year, when the total of recovered remains as of June 30, 2009 was one hundred twenty-five (125). Approximately thirty-six (36), or 23.5 percent of the remains were skeletal.
‘Unknown gender’ indicates that not enough of a body was recovered to determine gender, and without DNA, which is costly, it is impossible to know even this basic information about the individual, making identification and return to their families even more difficult. The dramatic increase in these unknown gender cases are a troubling indicator of what might be to come as people are pushed out into more and more isolated areas, making rescue and detection less likely and death more certain. It is unknown how many remains are currently near the border but have not yet been discovered.
The continued increase in the recovery of skeletal remains indicates that more and more individuals are being funneled into more isolated and desolate terrain of the Arizona-Sonora border. This “Funnel Effect,” which has been documented by the Binational Migration Institute, has shown that the practice of sealing traditional crossing points ultimately pushes migration into the deadliest areas. The extent of this crisis is not known as the numbers of human remains recovered in neighboring states are not available.
We call on this Administration and this Congress to respond to their first responsibility as human beings, and call for an end to policies that violate basic human rights and dignity. It is time for a meaningful and honest dialogue on migration and our responsibilities, with most critical question: Will the deaths continue?
While these deaths and the policies that fuel them are unconscionable, we are deeply saddened to see the calluses that have grown on the hearts of those that continue to ignore such suffering. We must remember that we are all human beings, brothers and sisters who must share the earth, and the death and abuse of the least of us will eventually hurt us all.
The complete list of recovered remains is available on the Coalición de Derechos Humanos website: http://www.derechoshumanosaz.net
This information is available to anyone who requests it from us and is used by our organization to further raise awareness of the human rights crisis we are facing on our borders.