Legislation

FAIR Legislative Update April 26, 2010


Amnesty Forces Outraged by Tough Arizona Law

Last week, Arizona Governor Jan Brewer signed tough immigration enforcement legislation (See FAIR’s Legislative Update, April 19, 2010) into law. Amnesty supporters have expressed outrage at the new law, which they claim is fueled by “anti-immigrant hysteria.” (See, e.g.,AZFamily News, April 13, 2010).

Even before Governor Brewer announced she would sign SB 1070, amnesty proponents filled the airwaves and cyberspace with incendiary and hyperbolic rhetoric in an attempt to whip up opposition. Chris Newman, legal director of the National Day Laborer Organizing Network, claimed the bill “appears to mandate racial profiling” (Los Angeles Times, April 13, 2010). Reform Immigration for America – an umbrella group of pro-amnesty organizations – radically claims that the bill “enshrines hate into our country’s laws.” (See Reform Immigration for America’s Blog). Another well-known pro-amnesty group, America’s Voice, featured on its website a blog posting entitled “What the #$@!, Arizona?”, which claims that that the bill is “inhumane” and “would discriminate against Latinos.” (See America’s Voice Blog, April 22, 2010). Not to be outdone, Cardinal Roger Mahony suggested that Arizonans were “now reverting to German Nazi and Russian Communist techniques whereby people are required to turn one another in to the authorities on any suspicion of documentation.” (Cardinal Roger Mahony Blogs L.A., April 18, 2010). The Rev. Al Sharpton has said that he is ready to travel to Arizona and march in the streets to protest the new law. (The Washington Post, April 25, 2010).

But, counter to these claims, Arizona’s law provides a carefully crafted set of rules that proscribe how Arizona law enforcement officers are to inquire about immigration status. First, an Arizona law enforcement officer must engage in lawful contact with the individual in question. (SB 1070, §2). That means that the stop or contact must survive any challenge with respect to the 4th Amendment’s protections against unreasonable search and seizure. Then, if an officer has conducted a lawful stop, the officer must also have “reasonable suspicion” that an individual is unlawfully present before inquiring about immigration status. (Id.). Importantly, the Arizona law expressly states that a law enforcement official “may not solely consider race, color, or national origin” in implementing this provision, including forming a reasonable suspicion. (Id.)

Then, if an Arizona law enforcement officer has reasonable suspicion that the person is an alien unlawfully present in the United States, the officer must make a “reasonable attempt…when practicable, to determine the immigration status of the person.” (SB 1070, §2). Importantly, SB 1070 creates a presumption of lawful presence if an individual presents: (1) a valid Arizona driver’s license, (2) a valid Arizona I.D. card, (3) a valid tribal I.D. card, and (4) any valid federal or state I.D. that requires proof of legal presence before issuance. If the officer verifies with ICE that the person is an illegal alien the officer may (1) hold the alien for transfer to federal custody pursuant to an ICE detainer; if the officer has probable cause to believe the person “has committed any public offense that makes the person removable from the United States,” the person may be arrested without a warrant. §6. Finally, SB 1070 requires that these provisions be implemented in a manner that is consistent with all federal immigration and civil rights laws. (Id.).

Commenting on SB 1070 Friday, President Obama first acknowledged that his administration has failed to stop illegal immigration, but then condemned Arizona – one of the states hit hardest by the federal government’s failures – for attempting to find a solution: “Our failure to act responsibly at the federal level will only open the door to irresponsibility by others. That includes, for example, the recent efforts in Arizona.”  (CNN, April 23, 2010). Calling the new law “misguided,” Obama then noted that he has “instructed members of [his] administration to closely monitor the situation and examine the civil rights and other implications of this legislation.” (Id.). Obama concluded: “But if we continue to fail to act at the federal level, we will continue to see misguided efforts opening up around the country.” (Id.). Obama’s Secretary of Homeland Security, Janet Napolitano, has called the Arizona bill “misguided” as well. (ABC News, April 26, 2010).

Mexican officials have condemned the new law, as well. (The Hill, April 24, 2010). Noting that the government of Mexico had lobbied against passage of the Arizona bill, Mexican Secretary of Foreign Affairs Patricia Espinosa said: “The government of Mexico regrets that, despite the overtures made at all levels by Mexican federal and state officials, the legislators who passed this measure and the governor of Arizona have not taken into account the valuable contributions of migrants to the economy, society and culture of Arizona and the United States of America.” (Id.). Espinsoa continued: “Criminalization is not the way to resolve undocumented immigration. The existence of cross-border labor markets requires comprehensive, long-term solutions. Shared responsibility, trust and mutual respect must be the bases for addressing the shared challenges in North America.” (Id.). In addition, the Mexican Senate passed a unanimous resolution urging Governor Brewer to veto the bill just prior to her signing it into law. (Id.).

A new poll from Rasmussen Reports indicates that the attitudes expressed by Obama and other opponents of the new law are not indicative of the attitudes of the people of Arizona. The poll found “70% of likely voters in Arizona approve of the legislation, while just 23% oppose it.” (Rasmussen Reports, April 21, 2010).  FAIR President Dan Stein commented on Governor Brewer signing the bill into law: “Faced with mounting costs, lost jobs and violent crime resulting from mass illegal immigration, Gov. Brewer has acted responsibly to protect Arizonans. In signing S.B. 1070, Gov. Brewer has responded to the will of the people and risen above the incendiary rhetoric of those who are maliciously attempting to divide Arizonans along ethnic lines.” (Press Release, April 23, 2010).

Amnesty Forces Cry Foul; Leadership Moves Full Steam Ahead on Amnesty

Last week, tensions over immigration reform hit a new high when the Arizona legislature passed, and Governor Jan Brewer signed into law a tough enforcement-oriented immigration bill. (See FAIR’s Legislative Update, April 19, 2010).  According to President Obama, the Arizona law, which directs law enforcement to check immigration status when there is a reasonable suspicion that an individual is illegally in the U.S., threatens “to undermine basic notions of fairness that we cherish as Americans.”  (WhiteHouse.gov, April 23, 2010).  He criticized the enforcement measure and expressed that Congress must enact sweeping amnesty in order to prevent the states from taking action to combat illegal immigration at the local level.  He stated, “[I]f we continue to fail to act at a federal level, we will continue to see misguided efforts opening up around the country.”  (Id.).  Obama added that, “The American people demand and deserve a solution,” and urged Congress to move forward with an overhaul of the nation’s immigration laws. (Id.).  Obama, however, was alluding to amnesty as the only acceptable “solution,” rather than enforcement of U.S. immigration laws. Id.

Even before the president’s comments, however, he and Congressional Leaders were feeling intense pressure from amnesty advocates to move legislation forward. Early in the week, Congressman Luis Gutierrez (D-IL) threatened Democratic Leaders by saying he would encourage Hispanics to stay home during the November elections if Congress does not immediately take up amnesty legislation. In an interview withThe Hill, Gutierrez said that Latinos have lost patience with Obama, and promised an “escalation” of activism to force immigration reform to the top of Democrats’ agenda.  (The Hill, April 20, 2010).  “There’ll probably be civil disobedience.  There will probably be a number of different actions.  What we have to do is break through this wall of silence, because we’re invisible.”  (Id.; See video of The Hill’s interview with Congressman Gutierrez).

Within 24 hours of Gutierrez’s statements, sources from Capitol Hill reported that President Obama was calling Republican Senators Scott Brown (MA), George LeMieux (FL), Dick Lugar (IN), Lisa Murkowski (AK), and Judd Gregg (NH) seeking support for the bill being drafted by Senators Chuck Schumer (D-NY) and Lindsay Graham (R-SC). (Politico, Apr. 21, 2010).   However, none of these Senators appeared immediately ready to jump on board the amnesty train. Senator Brown’s spokeswoman said, “Sen. Brown told the president that he would review any legislation if it came before the Senate, but he believes that the immediate focus should be on fixing the economy and creating jobs.”  (Politico, Apr. 20, 2010)  Nevertheless, sources say Democrats are now preparing to move forward on “comprehensive” immigration reform with or without Republican support. (See, e.g. CNN’s John King USA, Apr. 21, 2010) 

But the decision to take up amnesty legislation next has proven controversial for many on Capitol Hill, as doing so would necessarily prioritize immigration over climate change legislation.  D.C. insiders have widely expected the Senate to focus on a climate change and energy bill, but at a leadership meeting last week, Senate Majority Leader Harry Reid and House Speaker Nancy Pelosi agreed that immigration legislation could go first.  (The Washington Post, April 21, 2010).  A Democratic aide confirmed, “Immigration is gaining steam; climate change may suffer.”  (Politico, April 23, 2010). 

Senator Graham, who has also been working on climate change legislation with Senators Kerry and Lieberman, did not welcome this news, saying, “What bill are we going to take up?  What are we going to do?  I mean, you’ve done nothing to lay the groundwork for this.”  (The Washington Post, April 23, 2010).  Graham threatened that a sudden turn to immigration “destroys the ability to do something on energy and climate.”  (Politico, April 22, 2010).  On Saturday it seemed that Graham’s threats were sincere, as he walked out of the climate-change bill negotiations.  (CNN, April 26, 2010).  He released a letter stating, “Moving forward on immigration – in this hurried, panicked manner – is nothing more than a cynical political ploy.”  Id.  Graham’s move forced Kerry and Lieberman to postpone the unveiling of the climate bill, which was scheduled for Monday.  But Graham apparently had a rapid change of heart, and was back in discussions with his two Democratic co-authors by Sunday morning.  (Los Angeles Times, April 26, 2010).

Senate Republicans are dubious about the likelihood of an immigration bill moving forward. Senator Jeff Sessions (R-AL) observed, “There is little enthusiasm in Congress to pass legislation that would legalize millions of unlawful residents to compete with out-of-work Americans for needed jobs, further driving down pay and draining government resources.”  Id.  Vulnerable Democrats who are facing reelection are also likely to balk at taking up another divisive issue that is unpopular with most voters.  Id.  Whether or not Democrats take up amnesty legislation, there will be electoral consequences no matter which decision is made.  Aides in both the Senate and the House have said that each chamber is only willing to address one piece of contentious legislation before the midterm elections, and at this point it is not clear whether the climate change or the amnesty forces will prevail.

Stay tuned to FAIR for more information on this developing issue.

Senators McCain and Kyl Propose Ten-Point Border Security Plan

Amid escalating violence along the U.S.-Mexico border (See, e.g., FAIR’s Legislative Updates from April 5, 2010 and April 12, 2010), Arizona Senators John McCain and Jon Kyl last week proposed “a 10-point comprehensive border security plan.” (See Press Releases: Sen. McCainSen. Kyl). According to McCain and Kyl, their plan seeks to “combat illegal immigration, drug and alien smuggling, and violent activity along the southwest border.” (Id.).

The McCain/Kyl plan calls for:

(1) An immediate deployment of 3,000 National Guard Troops to the Arizona/Mexico border, coupled with a requirement to hire 3,000 more Customs and Border Protection (CBP) agents by 2015;

(2) Continuation of Operation Streamline in Arizona’s two Border Patrol Sectors. Operation Streamline is a highly successful, zero-tolerance program that targets illegal aliens for immediate prosecution upon apprehension at or near the border.

(3) An increase of $40 million for Operation Stonegarden, “a program that provides grants and reimbursement to Arizona’s border law enforcement for additional personnel, overtime, travel and other related costs related to illegal immigration and drug smuggling along the border”;

(4) Offering “hardship duty” pay to Border Patrol Agents assigned to rural, high-trafficked areas;

(5) Completing the 700 mile U.S.-Mexico border fence and building “double- and triple- layer fencing at appropriate locations along the Arizona-Mexico border”;

(6) Increasing the number of mobile surveillance systems and unmanned aerial vehicles in place along the Arizona-Mexico border;

(7) Increasing funding for radio communications and interoperability between federal, state, and local officials involved in border apprehensions;

(8) Funding additional Border Patrol stations;

(9) Fully reimbursing state and local governments for the costs of incarcerating criminal aliens; and

(10) Reimbursing state and local governments “for costs associated with prosecuting and pre-trial detention of federally-initiated criminal cases declined by local offices of the United States Attorneys.” (See Press Releases: Sen. McCainSen. Kyl).

In a conference call with reporters last week, McCain and Kyl said they will soon introduce legislation to implement their border security plan. (Associated Press, April 20, 2010). The proposal has already drawn support from local law enforcement officials in Arizona, including Cochise County Sheriff Larry Dever, whose office is investigating the recent murder of Arizona rancher Rob Krentz by a suspected illegal alien: “While we have the nation’s attention, it’s important that we strike now and we get these suggestions implemented now, because I really feel the window of opportunity will close very quickly.” (Id.). McCain echoed Dever’s comments: “The communities in Arizona that suffer the negative impacts from illegal border crossings and the lawlessness along the southern border deserve the full support of the federal government.” (Id.). The prospects for a future McCain/Kyl border security bill are unclear.

Senator Sessions Spars with Obama’s Top Civil Rights Attorney 

While testifying before the Senate Judiciary Committee last Tuesday, Thomas Perez, head of the Justice Department Civil Rights Division, sparred with Senator Jeff Sessions (R-AL) on the topic of hate crime statistics.  (See webcast of "Oversight of the U.S. Department of Justice, Civil Rights Division", April 20, 2010).  Senator Jeff Sessions (R-AL), the ranking Republican on the committee, questioned Perez on several topics, including his public statements that hate crimes against Hispanics are on the rise.  In statements to the press last month, Perez misrepresented FBI crime statistics by claiming that hate crimes against Latinos are on the rise.  (See FAIR’s Legislative Update, March 1, 2010).  His allegation stirred controversy because it directly contradicted the most recent FBI hate crimes data, which actually shows that in every category regarding hate crimes against Hispanics, there was a substantial drop from the previous year. (FBI 2008 Hate Crimes Report). 

Sessions pressed Perez on this significant misrepresentation, asking Mr. Perez for his sources to back up his statements. Perez responded that he would provide all the data sources he had, “including the FBI and the Southern Poverty Law Center.” (See webcast of "Oversight of the U.S. Department of Justice, Civil Rights Division", April 20, 2010).  Whether Mr. Perez, the nation’s top civil rights attorney, is relying on “data” from the SPLC to bolster his claim is uncertain, but FAIR will continue to monitor the situation to make sure the record is set straight.