New Arizona immigration law and ID demands

We’ve been getting a lot of questions about the new Arizona “immigration” law, S.B. 1070, which we mentioned earlier in this blog.

As we read the text (PDF) of the law it imposes no new requirement to show ID credentials or other evidence of identity.  On the contrary, it gives people even more reasons to invoke their right to remain silent, never voluntarily to provide any evidence (including ID credentials or other evidence of identity) that might be used against them, and never to consent to any search (including searches for ID credentials or other evidence of identity).

The portion of the new law relevant to requests or demands for ID is as follows:

For any lawful contact made by a law enforcement official or a law enforcement agency of this state or a law enforcement official or a law enforcement agency of a county, city, town or other political subdivision of this state where reasonable suspicion exists that the person is an alien who is unlawfully present in the United States, a reasonable attempt shall be made, when practicable, to determine the immigration status of the person… A person is presumed to not be an alien who is unlawfully present in the United States if the person provides to the law enforcement officer or agency any of the following:

1. A valid Arizona driver license.
2. A valid Arizona nonoperating identification license.
3. A valid tribal enrollment card or other form of tribal identification.
4. If the entity requires proof of legal presence in the United States before issuance, any valid United States federal, state or local government issued identification.

So the police officer is required, if (1) they are in lawful contact with you and (2) they have “reasonable suspicion”, to “attempt… to determine” your immigration status.  But that obligation is on the officer, not on you.  Nothing in this section purports to create any obligation on you to assist in that “attempt .. to determine” your status, to answer any questions, to carry or produce or display ID, or to consent to a search for evidence of identity or immigration status.

Since the police are under this obligation only when they are in “lawful contact” with you, the first thing you can do is not to consent to any contact with law enforcement officers, and to terminate any such contact as soon as possible by walking away immediately unless you are expressly forbidden or physically restrained from doing so.  Once you are no longer in lawful contact with an officer, they need a new lawful basis to establish any new contact.

Most of the misunderstanding of the law comes from the provision quoted above that “A person is presumed to not be an alien who is unlawfully present in the United States if the person provides to the law enforcement officer or agency any of the following” identity credentials.

That language is deceptive. Under the law, to be “an alien who is unlawfully present in the United States” is a crime. Under the U.S. Constitution, you are already entitled to a presumption of innocence of any crime.

The obligation on the police to determine your immigration status is limited to those cases in which they already have a “reasonable suspicion” that you are “an alien who is unlawfully present in the U.S.”, and there is no guarantee (as there would be if the presumption clause were proceeded by, “Notwithstanding any basis for such reasonable suspicion”) that the presumption of innocence won’t be overcome by whatever provided the basis for that suspicion.

(The risk that even if you are a U.S. citizen the police might think otherwise, in spite of any evidence, and that the Feds might detain or even deport a U.S. citizen, is very real. Academic and journalist Jacqueline Stevens, for example, has extensive documentation in her blog of examples of detained and deported U.S. citizens, including those from Arizona. She reports that, “A systematic examination of thousands of individual case files for detainees in southern Arizona between 2006 and 2008 revealed that just over one percent were deemed US citizens by an immigration judge.”)

So under this law, showing satisfactory ID serves only to entitle you to a presumption to which you are already Constitutionally entitled, may not be sufficient to overcome whatever provided the basis for the “reasonable suspicion” that led to the attempt to determine your status — and may itself provide further evidence against you, if for example the name on your ID matches the name of a person previously found to be an illegal alien.  Under this law, there is nothing to be gained, and much potentially to be lost, by voluntarily showing ID, even valid ID, or answering any questions.

The bottom line is what the police will say in a Miranda warning, after they arrest you: “Anything you say can and will be used against you.”

Of course, if everyone law-abiding voluntarily waives their rights, answers questions about their immigration status, consents to searches (for ID or anything else), or shows ID to police on request, they may come to consider declining to do so as, in itself, a reasonable basis for suspicion.  So the best way to defend your rights is to use them: Don’t talk to police about your immigration status or anything else, terminate any police encounter as soon as possible, never consent to any search, and assert your right to remain silent and to consult a lawyer.

This isn’t limited, unfortunately, to Arizona.  In a growing number of places — we’ve heard most recently from activists in Moreno Valley, Riverside County, CA — local law enforcement agencies are using funds from the Department of Homeland Security or state agencies, ostensibly for purposes such as drunk-driving checkpoints, to set up checkpoints used as immigration and general law enforcement dragnets.

For more on your rights if you are stopped or questioned by police, see the excellent “10 Rules for Dealing With Police” video from FlexYourRights.org video, which includes optional Spanish subtitles and additional features for non-US citizens on the DVD.

For specific information about highway checkpoints in Arizona, visit Arizona-based CheckpointUSA.org and their Roadblock Revelations blog.

Heightened penalties like these, imposed on the basis of ID-based status determinations, highlight the danger that any kind of checkpoint can be converted overnight from a “mere” ID check to an ID-based control point. In effect, these checkpoints and ID checks are the germ of a new, virtual Berlin Wall, a new “Silicon Curtain”, to divide place from place, person from person, and family member from family member.  The earlier we resist these incursions against our rights, the more effectively we can do so.  We all can help by saying, “no” to ID requests, warrantless questioning, and requests to consent to searches for ID or anything else, whether at home, on the street, or at the airport.

19 Responses to “New Arizona immigration law and ID demands”

  1. Captain Moroni Says:

    So in effect, your sayin that this law has NO TEETH?

  2. New Arizona immigration law and ID demands | RevolutionRadio.org Says:

    [...] PapersPlease.org We’ve been getting a lot of questions about the new Arizona “immigration” law, S.B. 1070. [...]

  3. Microsoft Bob Says:

    Arizona is one of a few states with a “Stop and Identify” law:

    http://www.azleg.gov/FormatDocument.asp?inDoc=/ars/13/02412.htm&Title=13&DocType=ARS

    This new law establishes criminal penalties. So if the officer suspects you are violating this law, they can use the stop-and-identify statue to require you to produce ID (see Hiibel).

    I believe if you refused to provide any ID you would simply be detained under the stop and identify statue that has been on the books for 5+ years.

    Thus it is technically correct there is no “papers please” in this law, but the effect of this law with others already on the books still leads to that situation for all practical purposes, as far as I can tell.

  4. Able Freeman Says:

    The trouble is that no matter what the law or constitutional limitation, the implication will only put more impetus in the unlawful requests and grabs for wallets that have been occurring all along. The leos are all ready violating the presumption of innocence. Do you really expect that in Arizona this law will do anything but make it worse in practice?

  5. Checkpoint USA Says:

    Microsoft Bob said:

    “Arizona is one of a few states with a “Stop and Identify” law:

    http://www.azleg.gov/FormatDocument.asp?inDoc=/ars/13/02412.htm&Title=13&DocType=ARS

    This new law establishes criminal penalties. So if the officer suspects you are violating this law, they can use the stop-and-identify statue to require you to produce ID (see Hiibel).

    I believe if you refused to provide any ID you would simply be detained under the stop and identify statue that has been on the books for 5+ years.

    Thus it is technically correct there is no “papers please” in this law, but the effect of this law with others already on the books still leads to that situation for all practical purposes, as far as I can tell.”

    I’ll be writing about this in more detail on my blog but the Arizona Legislature has effectively shot itself in the foot with this one.

    In Hiibel v Nevada, the U.S. Supreme Court ruled in pertinent part that stop and identify statutes based upon reasonable suspicion were only Constitutional when the individual being compelled to provide his name doesn’t have a reasonable belief that his name will be used to incriminate himself or assist in his prosecution:

    “In this case petitioner’s refusal to disclose his name was not based on any articulated real and appreciable fear that his name would be used to incriminate him, or that it “would furnish a link in the chain of evidence needed to prosecute” him”

    With the advent of this new Arizona law designed to identify aliens so as to prosecute them for not carrying their immigration papers, seeking employment in violation of the law or trespassing, a person’s name will indeed be used to incriminate or furnish a link in the chain of evidence necessary to prosecute. As such, the Hiibel ruling doesn’t apply and the stop and identify statute must be ruled unconstitutional in such circumstances.

  6. En Deep Says:

    BULL SHEET! Arizona is already a police state… Wikipedia definition “Police State”: http://en.wikipedia.org/wiki/Police_state …and has been so for years now. This is just another effort to accomplish that. Try telling any of this to f-ing Arpaio’s lynch mob, good luck with that. He has one goal in life, ultimate power and achieving that through total dictatorship. Read the definition of a “Police State” and try to tell me Arizona isn’t one.

    And no I’m not hispanic or latino, I’m chalk white.

    For a law with no teeth Arpaio certainly has already sunken his teeth into it, did you see his interview on CNN? I hope the state of Arizona gets sued into bankruptcy over this and has no choice but to be consumed by California!

  7. Papers, Please! » Blog Archive » Universal fingerprinting and national ID card to be included in “immigration reform” bill Says:

    [...] we find most disturbing is that, even as people across the country are speaking out against the badly-drafted attempt by the state of Arizona to impose an ID requirement in the guise of “immigration enforcement”, members of Congress from both parties think [...]

  8. Papers, Please! » Blog Archive » Arizona radio call-in discussion on S.B. 1070 Says:

    [...] We’ll be on the Jay Lawrence Show on KTAR (92.3 FM) in Phoenix this Sunday, May 2nd, from 7-8 p.m. Arizona time (7-8 p.m. PDT, 4-5 p.m. EDT) to discuss and take calls on the new Arizona “immigration enforcement” law, S.B. 1070, and its implications for ID demands. [...]

  9. Kim Smith Says:

    Isn’t this law basically a copy of existing federal law? Obviously the people of Arizona are alarmed at the rate of illegal immigrants that are spilling over their border with Mexico into the state. So what are they to do? Just sit back while the whole state implodes? It is clear the feds have no intention of honoring their duty to secure the border. So Arizona has to take these measures. It is a sad situation all around.

  10. Bill Says:

    “A person is presumed to not be an alien who is unlawfully present in the United States if the person provides to the law enforcement officer or agency any of the following:

    1. A valid Arizona driver license.
    2. A valid Arizona nonoperating identification license.
    3. A valid tribal enrollment card or other form of tribal identification.
    4. If the entity requires proof of legal presence in the United States before issuance, any valid United States federal, state or local government issued identification.”

    In addition to all the other problems with this law, apparently residents of other states may not be able to adequately prove they are legally in the United States. A Colorado driver’s license wouldn’t do it, nor would a driver’s license from any other state. In my case, I would have no identification meeting the requirements, even though I am an American citizen.

    Since it’s not acceptable as identification, one could presume that my Colorado driver’s license is therefore not acceptable for any other purpose in Arizona, including driving. Sounds like a great way to keep American citizens of other states out of Arizona.

  11. Chris Parker Says:

    Under U.S. Immigration Law, being unlawfully present in the United States (as well as working without employment authorization) is a civil violation, not a criminal violation as the author suggests. You are not entitled to the consititutional presumption of innocence because of this, and the burden of proof is on you to prove that you are legally present. This was done intentionally by Congress to make it much easier to deport people by depriving them of their rights to trial and conviction by a unanimous jury, etc. Everyone should know that these rights don’t apply to detention for deportation purposes. Likewise, an order of deportation is not a criminal conviction, and if you leave the country during the proceedings, you are free! (and the proceedings must be terminated without an order being issued)

    The only related criminal provision in the Immigration & Nationality Act is that is a crime to *enter* the United States illegally. For that charge, the presumption of innocence does apply. But for merely being here, without knowing how you got here, there is no presumption of innocence. And surely if you tell the officer you entered the U.S. illegally, you are not going to be reasonably presumed to be lawfully present without providing some immigration documentation.

    My biggest problem with this law is that the Arizona police departments seem to saying the proof you need to provide to benefit from the law’s presumption of lawful presence is your original immigration document. But if you read through the list of 4 items, there are supposed to be alternatives. Nor will the Arizona police departments provide immigration document registration or issue local ID cards or certify and record copies to make them acceptable in lieu of the original. So, it appears that the police departments, from the onset, are stating that they are not going to implement enforcement of this law according to its own provisions, which is a very bad sign of what may be about to happen. They are not being reasonable either expecting every non-citizen (and implicitly any citizen whose general appearance is suspiciously foreign) to be to personally carry their original proof of status with them all the time—that’s a good way to lose an immensely important and hard to replace document and for someone actually illegal to find it and fraudulently use it to show themselves to be legal.

    As for item #4, this is supposed to qualify out of state license and ID cards as sufficient to presume lawful presence. The only limitation is that the government entity must be verifying lawful presence in conjunction with the issuing of the identification. For example, New York will not issue an original driver’s license or ID card without proof of citizenship or lawful status, and for non-permanent residents (including H1-B workers) will mark the ID card as “Visitor” and set the expiration date to be the same as the immigration status expiration. So, Arizona is supposed to be accept New York licenses and ID cards (assuming Arizona knows the state, county, and local entity’s ID issuing rules) under this provision. However, if Colorado gives out licenses even to illegal aliens, then its licenses will not be honored. It’s just the Real ID debate all over again!

  12. Edward Hasbrouck Says:

    Chris Parker says, “Under U.S. Immigration Law, being unlawfully present in the United States (as well as working without employment authorization) is a civil violation, not a criminal violation as the author suggests.” But we didn’t suggest that unlawful presence is a crime “under U.S. immigration law” but rather that being an alien would be an element of the new crime under Arizona state law of “Willful failure to complete or carry an alien registration document” if required to do so.

  13. Chris Parker Says:

    If you look at it more closely, you’ll see all the Arizona law really does is mirror the federal law and provide directives and authorities to its police officers to enforce the federal law. All federal laws are said to be inherently state laws in principle because the federal government derives all of its authorities (including lawmaking and law enforcement authorities) from constitutionally delegated state authority. That’s one of the cards that the AZ governor is probably going to play when the Justice department tries to attack the validity of this law.

    Below is the pertinent parts of the text of the AZ law that I believe you are referring to as “Willful failure to complete or carry an alien registration document”:

    13-1509. Willful failure to complete or carry an alien registration document

    A. IN ADDITION TO ANY VIOLATION OF FEDERAL LAW, A PERSON IS GUILTY OF WILLFUL FAILURE TO COMPLETE OR CARRY AN ALIEN REGISTRATION DOCUMENT IF THE PERSON IS IN VIOLATION OF 8 UNITED STATES CODE SECTION 1304(e) OR 1306(a).

    B. IN THE ENFORCEMENT OF THIS SECTION, AN ALIEN’S IMMIGRATION STATUS MAY BE DETERMINED BY:
    1. A LAW ENFORCEMENT OFFICER WHO IS AUTHORIZED BY THE FEDERAL GOVERNMENT TO VERIFY OR ASCERTAIN AN ALIEN’S IMMIGRATION STATUS.
    2. THE UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT OR THE UNITED STATES CUSTOMS AND BORDER PROTECTION PURSUANT TO 8 UNITED STATES CODE SECTION 1373(c).

    F. THIS SECTION DOES NOT APPLY TO A PERSON WHO MAINTAINS AUTHORIZATION FROM THE FEDERAL GOVERNMENT TO REMAIN IN THE UNITED STATES.

    G. ANY RECORD THAT RELATES TO THE IMMIGRATION STATUS OF A PERSON IS ADMISSIBLE IN ANY COURT WITHOUT FURTHER FOUNDATION OR TESTIMONY FROM A CUSTODIAN OF RECORDS IF THE RECORD IS CERTIFIED AS AUTHENTIC BY THE GOVERNMENT AGENCY THAT IS RESPONSIBLE FOR MAINTAINING THE RECORD.

    H. A VIOLATION OF THIS SECTION IS A CLASS 1 MISDEMEANOR, EXCEPT THAT THE MAXIMUM FINE IS ONE HUNDRED DOLLARS AND FOR A FIRST VIOLATION OF THIS SECTION: THE COURT SHALL NOT SENTENCE THE PERSON TO MORE THAN TWENTY DAYS IN JAIL AND FOR A SECOND OR SUBSEQUENT VIOLATION THE COURT SHALL NOT SENTENCE THE PERSON TO MORE THAN THIRTY DAYS IN JAIL.

    For the most part, all this section says is AZ is going to directly enforce INA 264(e) [8 USC 1304(e)] and INA 266(a) [8 USC 1306(a)]. Those sections already represent criminal penalties in the federal statute, and the AZ law actually doesn’t change anything. Subsection (F) even deactivates the entire AZ section for anyone who has legal immigration status. Here is the text of the referenced federal sections:

    INA: ACT Sec. 264 [8 U.S.C. 1304] - FORMS AND PROCEDURE
    (e) Every alien, eighteen years of age and over, shall at all times carry with him and have in his personal possession any certificate of alien registration or alien registration receipt card issued to him pursuant to subsection (d). Any alien who fails to comply with the provisions of this subsection shall be guilty of a misdemeanor and shall upon conviction for each offense be fined not to exceed $100 or be imprisoned not more than thirty days, or both.

    INA: ACT Sec. 266 [8 U.S.C. 1306] - PENALTIES
    (a) Any alien required to apply for registration and to be fingerprinted in the United States who willfully fails or refuses to make such application or to be fingerprinted, and any parent or legal guardian required to apply for the registration of any alien who willfully fails or refuses to file application for the registration of such alien shall be guilty of a misdemeanor and shall, upon conviction thereof, be fined not to exceed $1,000 or be imprisoned not more than six months, or both.

    Ok, it is the INA 264(e) section of the federal law that I’ve always had a beef with to begin with, and its interpretation is the pivotal issue I see with this AZ law. First of all, it is my understanding that at one point the USCIS Office of General Counsel had interpreted the phrase, “shall at all times carry with him and have in his personal possession” to mean that you can’t give your certificate to someone else to use and should always know where it is and be able to get it if needed, not that you have to carry around the original document with you like a prisoner’s ankle bracelet (and only in that format would it be practical). As a result, I have always believed that carrying around a copy or certified copy of the original (specifically marked to be a copy so it can’t be classified as a forgery or counterfeit attempt) for daily use and keeping the original in the safe deposit box would meet the requirements of the statute. After all, the intent is not to willfully disregard the statute, but rather to protect the original document from being lost,misplaced,or stolen while still carrying around the same information and having it readily available. Since INS/DHS almost never enforces this section (and the fine amount is so low that it is impractible for them to do so), we don’t have any judicial precedents on exactly what the judges feel this section actually requires, and I think that is sorely needed if Congress doesn’t re-think this section soon.

    However, referrring back to the AZ law, I don’t think AZ really could enforce INA 264(e) under their state law, because as soon as the police officer or judge sees that the person is lawfully present in the U.S. (which a copy or certified copy could evidence), the entire AZ section becomes totally inapplicable under section F. And so AZ is left right where it started—does ICE want to prosecute this, and the answer is no because it is truly a ridiculous requirement today with electronic verification systems available and Real ID.

    The bottom line is the AZ law’s “Willful failure to complete or carry an alien registration document” changes nothing. The problem is that the state, cities, and police departments haven’t announced any programs yet to make enforcement implementation a practical matter, but the state is required under the U.S. constitution to provide “equal protection” to all persons within its jurisdiction, which the federal law does not do, so nobody (citizen,non-citizen,illegal alien) knows what to expect from its police officers once this goes into effect. I suspect the state judges will rule that the police departments cannot apply a DOUBLE STANDARD in investigating immigration status between people who claim to be U.S. citizens or not, and the state will have to accept a host of documents like Real ID’s, certified copies, locally issued Immigration ID’s, etc. to comply.

  14. Chris Parker Says:

    Also, you might have noticed, section B of the AZ law shown above in fact doesn’t even authorize AZ police officers to enforce the section, only federal officers.

    Section C is what throws the monkey wrench:

    C. A LAW ENFORCEMENT OFFICIAL OR AGENCY OF THIS STATE OR A COUNTY, CITY, TOWN OR OTHER POLITICAL SUBDIVISION OF THIS STATE MAY NOT CONSIDER RACE, COLOR OR NATIONAL ORIGIN IN THE ENFORCEMENT OF THIS SECTION EXCEPT TO THE EXTENT PERMITTED BY THE UNITED STATES OR ARIZONA CONSTITUTION.

    That is only a restrictive clause; it doesn’t grant state/local police officers any specific authority to enforce the section but restricts any authority they may have (which is none). It is a legal nullity in my opinion at this time.

  15. Chris Parker Says:

    BTW - Looks like there is some initial police training material available on the implementation of this law

    http://agency.azpost.gov/supporting_docs/ArizonaImmigrationStatutesOutline.pdf

    Needs more work, but public guidance like this would be helpful to the state.

  16. Immigration, Individual Rights, and the Constitution | Connor's Conundrums Says:

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  17. jasmin Says:

    brown pride

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