Right off the bat, let us point out that we are not immigration attorneys.
However, as attorneys that deal with laws and statutes every day, we do
know that what people believe a law says is often very different than
what it actually does say. Arizona's new immigration law appears to
be a perfect example.
The section of the law that is the most controversial reads: "For
any lawful contact made by a law enforcement official or a law enforcement
agency, 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
Those opposed to the law focus on the words "reasonable suspicion",
arguing that such vague language will allow police officers to pick someone
out of a crowd based on their appearance and force them to produce citizenship
papers. To them, this constitutes racial profiling and discrimination
because it is based solely on appearance.
Those who support the law focus on the words "For any lawful contact",
which mean that a police officer must already have a person detained or
in custody for some other suspected crime before they even get to question
whether a person is an alien. And if, and when, they do form a "reasonable
suspicion" that the person is an illegal immigrant, ethnicity cannot
be the only factor. So here's how it works: An officer pulls over
a speeding van this is the "lawful contact". The officer notices
that the driver appears nervous and agitated, is acting evasive, and the
van is loaded beyond capacity with numerous individuals. Further, they
are on a stretch of road known for smuggling people into the U.S. At this
point, based on all the factors, if the officer suspects the occupants
are illegal immigrants and that suspicion is reasonable, he can then attempt
to confirm their status. If they produce proper documents, the inquiry
ends there. If they cannot produce identification, a further inquiry will
be made. Interestingly, although you may have pictured those in this scenario
as being Hispanic, whether they appear to be Hispanic, Middle-Eastern,
or Asian makes no difference. NOTE: Contrary to popular belief, the law
does not require people to carry "citizenship" papers, other
than those already commonly carried, such as driver's licenses, state
identification cards, green cards and visas.
Are there situations where an officer will "create" a contact
in order to justify a preexisting suspicion that a person is an illegal
alien (i.e., "I thought you had a broken tail light")? Perhaps.
But there are legal remedies in place if such abuse occurs, such as the
shifting of legal burdens and disallowing wrongfully obtained evidence.