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Purpose of the Law:

  • To ensure “the cooperative enforcement of federal immigration laws throughout all of Arizona;”
  • To “make attrition through enforcement the public policy of all state and local government agencies in Arizona;” and
  • To “discourage and deter the unlawful entry and presence of aliens and economic activity by persons unlawfully present in the United States.”

What the Law Requires:

  1. Cooperation of and assistance by state and local officials in the enforcement of federal immigration laws to “the full extent permitted by federal law.”
    • During the course of “any lawful stop, detention, or arrest” made by any state or local law enforcement officer “in the enforcement of any other law or ordinance,” if the officer determines that there is reasonable suspicion that the person is an illegal alien, “a reasonable attempt” shall be made to determine the immigration status of the person by verifying immigration status with the federal government pursuant to federal law (8 U.S.C. 1373(c)).
      • In determining whether reasonable suspicion that an individual is illegally present, the law specifically prohibits unconstitutional profiling based on “race, color, or national origin in implementing” this section of the law.
      • The law specifically states that an individual is presumed to be lawfully present if he or she provides a valid Arizona driver’s license or identification card, a valid form of tribal identification, or valid identification issued by any U.S. federal, state, or local entity that requires proof of legal presence as a requirement of issuance.
      • An individual’s immigration status may be determined ONLY by Immigration and Customs Enforcement (ICE), Customs and Border Protection (CBP), or a law enforcement officer authorized by the federal government to make such a determination.
    • ICE or CBP must be notified any time an illegal alien is released from imprisonment or fined following conviction of a violation of state or local law.
    • No state agency, county, city, town or other political subdivision of Arizona may enact or enforce a sanctuary policy in violation of federal law (8 U.S.C. 1644).
      • No official or agency may be prohibited or restricted from communicating with federal authorities for the following official purposes:
        1. Determining eligibility for public benefits, services, or licenses;
        2. Verifying a claim of residence if such determination is required by law;
        3. Determining whether an alien is in compliance with federal registration requirements (8 U.S.C. 1302-1304).
      • Any legal resident of Arizona may file suit against any official or agency or the state or a political subdivision that enacts or enforces a sanctuary policy in violation of federal law. If the court finds a violation has occurred, the official or agency may be fined (the money would go to the Gang and Immigration Intelligence Team Enforcement Mission Fund) and the person who brought the suit may be awarded court costs and reasonable attorney fees.
  2. Compliance with certain federal immigration laws at the state level.
    • Violation of the federal law requiring that all aliens over the age of 13 and present in the United States for 30 days or longer must register with the federal government (8 U.S.C. 1302) is now also a violation of Arizona law.
    • Violation of the federal law requiring all aliens over the age of 17 to carry their alien registration document with them at all times (8 U.S.C. 1304) is now also a violation of Arizona law.
    • Just as under federal law, violation of these new state laws is a misdemeanor carrying a penalty of no more than 30 days in jail.
  3. Day laborers and those who hire them to obey traffic laws and hiring laws.
    • It is a misdemeanor for a person seeking to pick up day laborers and transport them to a work site to block or impede the flow of traffic in order to pick up the workers.
    • It is a misdemeanor for day laborers to enter a motor vehicle to be transported to a work site if that motor vehicle blocks or impedes the flow of traffic to pick them up.
    • It is a misdemeanor for an illegal alien to knowingly apply for work, solicit work in a public place, or perform work as an employee or independent contractor in Arizona.
  4. Compliance with Arizona’s E-Verify law.
    • Existing Arizona law requires every Arizona business to use E-Verify to verify the employment eligibility of every new hire. The new law requires all Arizona businesses to keep a record of such verification for the duration of the employee’s employment or for three years, whichever is longer.

Recommended Reading List for President Obama, Attorney General Eric Holder, and Homeland Security Secretary Janet Napolitano

(Along with those who, not having read either federal immigration law or the Arizona law, believe it is “misguided” or “unconstitutional,” or have called for a boycott of Arizona, including Arizona’s own Rep. Grijalva and the City Councils of San Francisco, Los Angeles, and others)

Note: The Supreme Court has stated clearly and often that the U.S. Constitution gives Congress “plenary power” over immigration policy, meaning that Congress has virtually unlimited authority to regulate immigration into the United States. The Supremacy Clause of the Constitution says that federal law supersedes conflicting state law. In immigration matters, the courts have consistently held that this means that states may enact immigration-related laws that go as far as, but no further than, duly enacted federal laws, except in areas where Congress has specifically preempted state action. (The primary example of Congress preempting state action is 8 U.S.C. 1324b(h)(2), which prohibits states and localities from “imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens,” which is why states and localities must tie E-Verify mandates to the issuance of business licenses.) Congress has not preempted state or local action regarding any of the federal laws that the new Arizona law seeks to enforce, so long as the state law goes no further than existing federal law. The Arizona law was drafted meticulously to ensure that it complies fully with the U.S. Constitution and with federal immigration laws.

  1. The Arizona law (SB 1070, as amended by HB 2162)—don’t worry, it’s not that long, so it shouldn’t take more than an hour to read, and that’s if you read every single word. You really should read it, though, before you publicly state whether it is misguided (President Obama) or unconstitutional (AG Holder), or whether you would have vetoed it (Secretary Napolitano). For folks like Rep. Grijalva, reading it probably won’t make much difference for you, since your goal is open borders, rather than the rule of law.
    • Pay special attention to the FOUR separate prohibitions on racial profiling in the bill (11-1051(B); 13-1509(C); 13-2928(D); and 13-2929(C))
    • Also note that the only individuals who are authorized under the law to determine an alien’s immigration status are: (1) ICE officials; (2) CBP officials; and (3) law enforcement officers “authorized by the federal government to verify or ascertain an alien’s immigration status.”
  2. 8 U.S.C. 1302—This is the federal law, first enacted in 1940, that requires every alien over the age of 13 who plans to remain in the United States for 30 days or longer to register with the federal government and be fingerprinted.
  3. 8 U.S.C. 1304—This is the federal law that requires that “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” by the Federal government.
  4. 8 U.S.C. 1373—This is the federal law, enacted in 1996, that prohibits states and localities from enacting or adopting so-called sanctuary policies that prohibit state or local officials from communicating with Federal officials regarding the legal status of individuals with whom they come into contact while performing their official duties. It also requires federal immigration authorities to respond to all inquiries by state and local officials about the immigration status of individuals. This section is the reason that the Law Enforcement Support Center (LESC) was created—so that ICE officials would be available 24 hours a day, seven days a week to verify the immigration status of individuals at the request of state and local law enforcement officials for a duly authorized purpose.

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Tags:  
Interior Enforcement
Illegal Immigration
state policies