Arizona’s Immigration Law Survives

Posted on Wed 09/16/2015 by


20080110_cutlerBy Michael Cutler ~

It has been said, “Nature abhors a vacuum.”  The vacuum created by the administration where the effective enforcement of our nation’s immigration laws were concerned motivated Arizona Governor Jan Brewer (pictured) and her state’s legislature to enact an immigration law, SB 1070, that largely paralleled sections of the current federal immigration laws.

20110421_JanBrewer1On April 23, 2010 Arizona Governor Jan Brewer signed Arizona’s immigration into law SB 1070.

You might think that the law and the controversy that surrounded it are hardly newsworthy today, more than 5 years after SB 1070 was enacted.  However, today that law is back in the news.  On September 6, 2015 the Los Angeles Times reported, “U.S. judge dismisses challenge of Arizona’s SB 1070 immigration law.”

It is that headline and the report on the decision rendered by U.S. District Court Judge Susan Bolton on September 5, 2015 that makes this issue worthy of consideration today.  Furthermore, on a personal note, the court’s decision is one I find personally satisfying.  I assisted the law firm that defended Arizona and SB 1070 by providing a declaration in support of that important law.

Given the most recent court decision we need to take a look back at the background concerning SB 1070 and also at the way that most news organizations portrayed the Supreme Court decision as being against that law.  The reality is far more nuanced and very important.  The Supreme Court upheld certain components of SB 1070 including, significantly, the right of law enforcement to question individuals they encounter during routine duties as to their immigration status.

The law firm retained by Governor Brewer to defend her, her state and SB 1070, reached out to a number of experts to mount a defense against the lawsuit.  I was one of many experts who were contacted.  Justicia Dockets & Filings posted a document, “Governor Brewer and the State of Arizona’s Response to Motion for Preliminary Injunction” that provided the exhibit index that included the declarations of these experts and is worth reviewing to understand the necessity and reasonableness of SB 1070.

The website FindLaw posted a description of the Arizona law.  Here is how the article on that website began:

Arizona Immigration Law (S.B. 1070) 

On April 23, 2010, Arizona Gov. Jan Brewer signed into law Senate Bill 1070 aimed at preventing illegal immigration that has significantly affected the Mexico-bordering state over many decades. The new law, entitled Support Our Law Enforcement and Safe Neighborhoods Act, would require law enforcement officials to enforce existing federal immigration laws in the state by checking the immigration status of a person they have “reasonable suspicion” of being in the U.S. illegally. An immigrant found without proper documentation would be charged with a misdemeanor

Although the law says nothing about deportation, it allows law enforcement agencies to immediately transfer a person it believes is in violation of any U.S. or state laws into Customs or Border Protection, and subsequently, to a federal facility in the state.

The FindLaw article addressed this DOJ lawsuit in the article thusly:

Under the doctrine of preemption, the Supremacy Clause of the United States Constitution (Article VI, Section 2) stands for the principle that federal law “preempts” (or trumps) state law in matters arising out of federal law. Because immigration laws and policy are federal in nature, the Arizona immigration law is being challenged on the grounds that it overstepped its exercise of power under the U.S. constitution. The U.S. Justice Department filed a lawsuit against Arizona in early July of 2010, arguing that immigration law is the domain of federal, not state, law. 

Aliens who enter the United States without inspection are, in essence, trespassing on the United States.  The misleading term “undocumented” does address a serious issue — the fact that there is no reliable way to determine the true identities of these foreign nationals.  There is no way to determine when, where or how they entered the United States.

The fact often willfully ignored by the advocates for immigration anarchy is that these aliens may have violated America’s borders and immigration laws for more sinister purposes than to simply seek unlawful employment.  They may be fugitives from justice in other countries.  They may have entered the United States to perpetrate crimes or terrorist acts.  The point is that we have no way of knowing anything about these millions of individuals and what we don’t know can most certainly hurt us.

On November 10, 2014 Californians for Population Stabilization (CAPS) posted my commentary “Lack of Intelligence in Failures to Enforce Immigration Laws” in which I explained how failures to routinely enforce our immigration laws under the administration’s executive orders and policy decisions are undermining the integrity of the immigration system and also depriving our law enforcement agencies of a fertile avenue of intelligence.

Although I provided this quote from the 9/11 Commission Staff Report on Terror Travel previously, it would be worth considering that quote, once again:

Thus, abuse of the immigration system and a lack of interior immigration enforcement were unwittingly working together to support terrorist activity. It would remain largely unknown, since no agency of the United States government analyzed terrorist travel patterns until after 9/11. This lack of attention meant that critical opportunities to disrupt terrorist travel and, therefore, deadly terrorist operations were missed.

The point is that by not enforcing our immigration laws the recognized concept of “randomness” is taken off the table as are opportunities for law enforcement to gather intelligence and cultivate informants.  Simply stated, the concept of randomness can be thought of as being in the wrong place at the wrong time.  Terrorists and spies attempt to maintain a low profile.  Once they enter a country they go to great lengths to not do anything that calls attention to them.  By considering the immigration component of the identity of a person lawfully stopped by police, any alien who is in violation of law may be subject to being identified.

In point of fact, a number of the 9/11 terrorists were encountered by police officers prior to the attacks of 9/11.  Had any of them been taken into custody, it is possible the attacks could not have been carried out.

On January 9, 2002 the BBC ran a story, “Hijacker ‘pulled over by police’” that included this account of how one of the 9/11 hijackers was stopped by police for speeding.  The excerpt notes that other hijackers had been similarly stopped by police:

US authorities have released a videotape of one of the 11 September hijackers who was pulled over by Maryland state troopers only two days before the attacks. 

Ziad Samir Jarrah, a Lebanese citizen, is believed to have taken the pilot’s controls on the United Airlines Flight 93 that crashed into fields in Pennsylvania. 

He becomes the third of the four men believed to have piloted the hijacked planes to have been pulled over by authorities for speeding in the months before the attacks on New York and Washington. 

Superintendent of state police David B Mitchell described Jarrah as “extremely calm and cooperative” when speaking to Joseph Catalano, the trooper who stopped him for speeding in a rented car. 

Failures to take the true nature of our immigration laws into account where issues of national security are concerned were the focus of my September 24, 2014 article for FrontPage Magazine, “‘Sanctuary Cities’ or ‘Safe Havens’ for Terrorists?” and my January 22, 2015 article for that same publication, “Sleeper Cells: The Immigration Component of the Threat.”

Michael Chertoff, a former Secretary of Homeland Security mentioned the strategy of randomness in his book, “Homeland Security: Assessing the First Five Years.”  Page 109 contains this paragraph:

Randomness is a second critical tool in helping detect dangerous individuals or items threatening the country and key infrastructure.  Since terrorists are inveterate planners, we can thwart their ability to execute their plans by introducing an element of randomness in our detection techniques.  We deploy hundreds of detection canine teams on a random basis.  Combining select members of the Coast Guard, Transportation Security Administration, and other la enforcement groups we have formed Visual Intermodal Prevention and Response teams that can move suddenly into airports.

On February 16, 2006 the House Committee on Homeland Security, Subcommittee on Security, Infrastructure Protection and Cybersecurity conducted a hearing on the topic,  “The President’s FY 2007 Budget: Risk-Based Spending at the Transportation Security Administration.” 

Kip Hawley, who was at the time of the hearing the Administrator for Transportation Security, also noted the concept of randomness as a counterterrorism strategy in his prepared testimony stating:

“Randomness contributes to increased security by making it more difficult for potential terrorists to plan and carry out attacks.”

The 9/11 Commission noted that terrorists who attacked the United States or sought to attack the U.S. first needed to enter the country and then needed to embed themselves in the country.  They exploited vulnerabilities in the immigration system to achieve both goals.

Additionally, when a police officer stops a driver for committing a violation of vehicle and traffic laws, the officer may either issue a summons or arrest the driver.  In essence the officer conducts a sort of “bail hearing” during that car stop.

A motorist who is unable to provide valid identity documents is unlikely to show up for traffic court as required by the summons issued by the police officer.  In such instances the police officer should consider taking that individual into custody.  An individual who is unable to provide proof of identity may also be concealing other issues that could include his/her being a fugitive and posing a threat to officer safety and community safety.

Immigration status and ties within the community or lack thereof go to the likelihood that the driver will appear at the hearing voluntarily.

Police routinely photograph and fingerprint those they take into custody as a part of the process to properly identify those individuals they take into custody.  Immigration status and country of citizenship of individuals stopped by law enforcement are valid identifiers that must be taken into account.

In point of fact, I addressed these and other issues in my declaration in support of SB 1070.

Back in 2010 Governor Brewer and the state legislature of Arizona decided that enactment of SB 1070 was the right action to take to combat rampant crime in their beleaguered state in which kidnappings conducted by illegal alien members of transnational gangs were a daily occurrence in the state’s capital, Phoenix, Arizona.  Calls by Arizona’s governor to DHS for assistance went largely unheeded.

Speaking from personal experience, acquired during my 30-year career with the former Immigration and Naturalization Service (INS) effective use of immigration laws can provide a powerful weapon against aliens who are engaged in criminal activities in the United States.  Yet the current administration as well as previous administrations did not seek to use this important tool to protect public safety and national security.  The laws are already on the books but what has been lacking is the political will to enforce those laws.  This lack of will is evidenced by a lack of resources to enforce our immigration laws, especially from within the interior of the United States.

The Obama administration reacted far more rapidly to the enactment of SB 1070 than it ever did to the crimes committed by criminal aliens and the drug cartels inside the United States.  The Department of Justice (DOJ) immediately filed a law suit to prevent the implementation of Arizona’s immigration law.  Simply stated, the federal government was not about to enforce our immigration laws and would react swiftly to make certain that the states and cities that wanted those laws enforced would be stopped in their tracks.

This lack of cooperation by the federal government was not a new phenomena; the Bush administration was not much more supportive.  While Border Patrol Agents Ignacio Ramos and Jose Compean were prosecuted when they engaged a drug trafficker in an effort to arrest him when he was found operating along the dangerous US/Mexican border, the Bush administration sent Border Patrol agents — including elements of the elite BORTAC unit — to secure the Iraqi border against terrorists and insurgents.

However, no previous administration has done more to undermine our immigration laws and leave our borders wide open than the Obama administration.  While the administration has claimed to be securing our nation’s borders, the true lack of integrity to the borders of the United States can be found in the irrefutable fact that heroin and cocaine have never been cheaper or more available than they are today.  Those substances are not manufactured in the United States and are illegal.  Therefore every gram of those substances provides clear evidence of a failure of border security.

On July 27, 2015 Californians for Population Stabilization posted my article, “Heroin Epidemic: The Real Metric for Determining Border Security,” and my August 14, 2015 article for FrontPage Magazine,  “American Kids Pay Heavy Price for Obama’s Border Failure,” dealt with this issue.

What must not be overlooked is that states and other jurisdictions that are eager to enforce immigration laws to ensure the safety and well being of the residents of their jurisdictions are denied assistance by the administration.  Furthermore, when states and cities react to the failure of the federal government to enforce the immigration laws by enacting their own statutes that parallel the federal immigration laws they are likely to encounter resistance by the United States Department of Justice.

However, states and cities that openly declare themselves to offer “Sanctuary” to illegal aliens never face adverse consequences for their actions that obstruct the federal government in its efforts to enforce the immigration laws of the United States.  Such jurisdictions are also violating federal statutes that deal with smuggling-related felonies of aiding, abetting, encouraging, inducing, harboring and shielding aliens illegally present in the United States.  The section of law contained within the Immigration and Nationality Act that addresses this issue is 8 U.S. Code § 1324 – Bringing in and harboring certain aliens.

On July 16, 2015 Californians for Population Stabilization posted my commentary, “Sanctuary Cities and Collateral Damage” in which I noted:

Our nation’s military services have deployed extremely expensive and increasingly sophisticated “smart weapons” to all but eliminate collateral damage among the civilian population. These weapons are being deployed in our efforts to combat ISIS and other terror organizations in the Middle East, while doing everything possible to not injure or kill noncombatants.

However, where immigration is concerned, a different sort of collateral damage is being inflicted on Americans citizens, right here, inside the very borders of our nation. The carnage is directly attributable to policies of local and state politicians who have declared their jurisdictions to be “sanctuaries” for illegal aliens. By openly ignoring our immigration laws, these cities and states are attracting illegal aliens, and the criminal aliens among them, thereby undermining our immigration laws that were enacted to protect America and Americans.

The immigration policies and executive orders of the Obama administration have virtually turned America into a “Sanctuary Country.”

It is encouraging that U.S. District Court Judge Susan Bolton rendered a just and commonsense decision in the case of SB 1070.

It is time other judges showed similar intelligence, commonsense and consideration for our nation and for our citizens.

FamilySecurityMatters Contributing Editor Michael Cutler is a Senior Fellow at CAPS (Californians for Population Stabilization) where his articles focus on border security and immigration issues especially where they impact national security, community safety, the economy and a host of other issues.