Publications

May, 2010

ARIZONA’S IMMIGRATION ENFORCEMENT LAW IS VIOLATIVE OF DUE PROCESS AND FEDERAL EXCLUSIVE JURISDICTION

An unconstitutional and anti-immigrant law recently passed by Arizona may be opposed by Motions to Suppress. Any evidence the police may turn up as to any undocumented individual detained or arrested by the police may fight to remain here because this police enforcement will be found by the Federal Courts to be contrary to due process and an invasion of the exclusive jurisdiction of the federal government. We can assist any one arrested as a result of this unconstitutional law.

Arizona recently enacted a strict immigration enforcement law because the State Legislature believed that the Federal government has failed to protect the State from an influx of illegal aliens. The new law passed by Arizona is the most peremptory in the nation. Other states may follow Arizona’s lead that could lead to a national crisis.

This law enables any police officer to request any individual for proof of identification if the police officer believes on reasonable suspicion that the individual is an undocumented alien. Reasonable suspicion is not defined by the statute. The law permits a police officer to randomly select anyone the officer believes looks foreign. It would appear this opens a wide door for targeting individuals with dark skin or who may be wearing what the officer deems to be inappropriate clothing for an American. A policeman unaccustomed to deal with indigenous American Indians might consider their look to be foreign because the Indian is wearing a feather or smoking a peace pipe.

This Arizona law contravenes our Constitution for two reasons:

1. The law illegally invades the exclusive jurisdiction over immigration granted to the Federal government by the Constitution. There is no provision in the Constitution for the Federal government to delegate enforcement to State police officers. If an individual State, as it appears may now happen decides to make its own immigration rules, and various other States decide to do the same, the result will have a crazy quilt of immigration rules. This would lead to chaos. The founding fathers decided in the Constitution that the immigration law must be uniform. The Arizona law that permits its police officers to decide who is and who is not a U.S. citizen totally contravenes the delegated powers of Congress;
   
   
2. The Arizona law also violates due process that has been defined by
   Federal Courts as available to every person in the U.S., not just to citizens. In almost a century of Court precedents, a police officer may not detain or arrest any person without probable cause or reasonable suspicion that a person is committing a crime. A police officer may not detain or arrest an individual because a police officer thinks this person looks suspicious or because his/her clothing looks unusual. If the officer detains or arrests someone without probable cause or reasonable suspicion of the person’s having committed a crime, any unlawful evidence found on the person will be suppressed by a Federal Judge because it violates due process.

In due course the Arizona law will be challenged and the Federal Courts will suppress any evidence of illegality found after the detention and arrest as the poisoned fruit of a poisoned tree. In sum the Arizona law will be declared void and of no effect because it illegally interferes with exclusive federal jurisdiction and because it violates due process as defined by the Federal Courts for almost a century.

One area of good may come out of this police-like practice, and that is it may stimulate Congress to finally enact immigration reform. A new immigration law would avoid piecemeal State enforcement, and hopefully allow over 12 million undocumented aliens to come out of the shadows into the light. The nation has for over two centuries enjoyed great blessings from immigration: our culture, our sciences, and arts, and our economy have all been enriched by the skills, imagination, and the hard work of immigrants.

If you need help or advise, call us at 212-944-9420.

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New York Immigration Lawyers > Immigration Publications > May 2010