Arizona Bill Would Criminalize the Presence of Undocumented Immigrants in the State

By Valeria Fernández, FI2W contributor

PHOENIX, Arizona — Undocumented immigrants in Arizona could face jail terms for simply being in the state under a series of bills gathering momentum in the state legislature.

Sen. Pearce, author of the bill

Sen. Pearce, author of the SB 1175 bill

A bill approved Wednesday by a Senate committee (SB 1175) would allow any police officer to arrest an undocumented immigrant under charges of trespassing on state land. Those jailed would have to pay the cost of their own incarceration.

“If this bill passes, it would be the first state in the nation making illegal presence a crime,” said Alessandra Soler-Meetze, Executive Director of the Arizona Civil Liberties Union (ACLU). “The implications are tremendous. What it means is that anyone who is in this country without proper documentation is going to be charged and arrested.”

Soler-Meetze argues that the bill is unconstitutional because states don’t have the power to enforce federal immigration laws. She cited a case in 2005 in which police in New Hampshire used state law to arrest undocumented immigrants on trespassing charges. A court later dropped the cases because they conflicted with federal law.

The Arizona bill includes a number of provisions, among them one against “sanctuary policies” that would restrict any government agency or city from limiting immigration enforcement.

The legislation is part of a package of bills being pushed by Republicans in the Arizona House and the Senate, who want to grant more powers to local law enforcement to detain, prosecute and incarcerate undocumented immigrants.

“There’s no greater threat to our community than the illegal immigration invasion,” said Republican Sen. Russell Pearce, author of SB 1175.

Pearce argues that what he calls “sanctuary policies” put handcuffs on law enforcement in efforts to fight spikes in crimes that Pearce correlates with illegal immigration. The trespassing bill would make it a misdemeanor to be in the state illegally. A person arrested twice under the law would be charged with a felony.

State Rep. Ben Miranda, a Democrat, opposes the measure. “We don’t have the public resources to be enforcing these laws, which are going to be used to intimidate people,” he said.

That was the reason given by former Governor Janet Napolitano, a Democrat, when she vetoed a similar bill in 2006. Napolitano, now U.S. Secretary of Homeland Security, said in her veto letter that this was an unfunded mandate for local law-enforcement.

Some political observers argue that this time around the bill might have a better chance since Jan Brewer, a Republican, is in the governor’s office.

The possibility has religious leaders and human right groups in the state worried.

“This is going to cause confusion in the immigrant community seeking help,” said Magdalena Schwartz, pastor of the Disciples of the Kingdom church in Mesa, AZ. “They will hide in the shadows and won’t report crimes, it would be a human tragedy.”

Schwartz believes this is an attempt by Republican legislators to deport the largest possible number of immigrants before Congress enacts federal immigration reform.

Despite historical opposition from local police departments to fulfilling the duties of the federal government, these measures are getting support from some law enforcement agencies in the state. Among them is the Maricopa County Sheriff’s Office (MCSO), led by Sheriff Joe Arpaio, currently under investigation over allegations of racial profiling during immigration arrests.

The ACLU and others are concerned that expanding the state laws will increase the likelyhood of racial profiling by police.

During a panel hearing on Wednesday, Mark Spencer, president of the Phoenix Law Enforcement Association (PLEA), voiced support for the trespassing bill.

“We understand what the costs of illegal immigration are all about,” said Spencer, who presented a list of the names of police officers who were killed in the line of duty by undocumented immigrants.

Among those he mentioned was the case of officer Nick Erfle, who was shot and killed by an undocumented immigrant with a previous criminal record in 2007.

Spencer said the bill would give more tools to police officers to detain undocumented immigrants and turn them over to immigration authorities.

Other measures currently making their way through the legislative body include a bill that would prohibit restrictions on local agencies’ enforcement of immigration laws and another that would make it a crime for day laborers to seek work on the streets.

Arizona has been at the forefront of enacting state measures aimed at controlling illegal immigration. In 2007, the state legislature passed one of the toughest employer sanctions laws in the nation for companies that knowingly hire undocumented labor.

According to the National Conference of State Legislatures (NCSL), during the first quarter of 2009, a total of 1,040 bills and resolutions related to immigrants and refugees were introduced in all 50 state legislatures. Over the same time period twenty five states enacted 35 laws and adopted 40 resolutions.

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