SB 1070

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Arizona’s new immigration law has its supporters and critics, but do both sides understand what the legislation means? Rep. John Kavanagh explains some of the provisions of the law.

Richard Ruelas:
Good evening, and welcome to "Horizonte." Arizona's new immigration law draws support as well as criticism across the country, but do people on both sides know what's in the legislation?

> And a documentary about the social and economic impact of an immigration policy similar to SB 1070 that became law in Virginia. Those stories next on Horizonte."

Thank you for joining us. I'm Richard Ruelas, in tonight for Jose Cardenas.

> People know it as SB 1070, and Arizona's new law to fight illegal immigration. As the disagreements on both sides of the law continue, we wandered, do people understand what the legislation actually says? Joining me now to explain some of the provision is one of the lawmakers who supports the law, state representative John Kavanagh. Thanks for joining us this evening.

John Kavanagh:
Thanks for having me.

Richard Ruelas:
We were hoping with this time we have here to not actually go through the merits of the law, whether it should be law or not. But just simply to take some time to go through it almost line by line to see what's in it, hopefully our viewers find that instructive. Let's start at the top. Section one mentions the intent of the law. I think we have the wording up. "The legislature declares the intent of this act is to make attrition through enforcement. The public policy of state and local government agencies in Arizona. The provisions of this act are intended to discourage and deter unlawful entry and presence of aliens. And economic activity by those persons." Could you explain a little bit about what attrition through enforcement is?

John Kavanagh:
Sure. It's not round-ups. Round-ups are un-American, and they create a lot of fear, even among people who would not be subjected to round-ups. And people are uneasy about that. I'm uneasy were that. So the tactic that this bill uses is basically attrition. As police officers go about their regular duties, when they contact somebody who's broken some other law, and they reasonably suspect that they might be here illegally, they're allowed to pursue a line of questioning and if in fact their suspicions rise, they will check on this person's immigration status and if they're illegal, the person will be removed through the usual processes. So rather than round-ups, slowly you'll have illegal immigrants being apprehend and removed. And of course the deterrent effect which was also mentioned, when people realize that if they're illegal that they may be picked up any time during routine police work, they may decide not to come here or if they are here, they'll leave on their own.

Richard Ruelas:
Because it's a slow process to do the attrition, do you think more the -- the law's effect will be more through voluntarily leaving?

John Kavanagh:
The deterrent effect is the most powerful part of this law. And we've already had newspaper information, mostly from reporters interviewing people in the illegal immigrant community, which seem to suggest that a lot of them have decided to move elsewhere.

Richard Ruelas:
I guess we that after the employer law and some of the others, essentially make life difficult here and someone who is here really might choose live elsewhere.

John Kavanagh:
This is but one prong. We also removed benefits several years ago, we have the employers sanction law to take away jobs. It's slowly making it unattractive to be an illegal immigrant in Arizona. And -- attrition.

Richard Ruelas:
And let's dive into what actually the law says, and I think the confusion comes, we had SB 1070, which gets a lot of attention, and quickly after there was a house bill that made some revisions. I guess today we'll try to go through with a what those were. Article 8 of SB 1070 which was revised by the house bill later. For any lawful stop, detention, or arrest, made by law enforcement official, we stop there, the original bill SB 1070 said for any lawful contact some officers can check immigration status. It's been changed to stop, detention, or arrest. Describe why that was made.

John Kavanagh:
People were concerned that officers would stop individuals just based upon suspicion of immigration status. And some people felt that that was a little too broad, and opened -- could open up the possibility of racial profiling and abuse.

Richard Ruelas:
Because contact could just be an officer walking down the street --

John Kavanagh:
well, the intent of that law was, if the officer observed something from a distance, that made him or her think the person might be here illegally, that that could start the contact. But in reality, there's very few things that would make somebody just watching somebody think they're here illegally. Short of running away from a federal detention center in an orange jumpsuit, I can't think of anything that would trigger it. So you have to first break some law, and that's why the officers contacted you, and the immigration questions can only follow that initial police contact if there is additional separate reasonable suspicion that you could be here illegally.

Richard Ruelas:
We'll go through that language. The next part of it, I guess because of the stop, detention, or arrest, the next part mentions in the enforcement of any other law or ordinance in a county, city, or town, I imagine that got people thinking overgrown weeds, barking dog, but I guess that's a clarification of what a stop, detention, or arrest is.

John Kavanagh:
But I'm glad you mentioned that. This is not going to be overgrown weeds and ordinances that are enforced by usually civilian inspectors. These -- this questioning which follows the break-in of some law or ordinance, can only be conducted by an Arizona post certified police officer. This snot going to be the local weed inspector says, you didn't cut your grass, oh, by the way. They will not have the authority to do this. It's police officers only, after they stop you because you broke some of the law, and even then, only after separate facts make them reasonably suspect that you could be here illegally.

Richard Ruelas:
Let's bring up the language that brings up reasonable suspicion, which is load with a lot of commas. A lot of caveats. "Reasonable suspicion exists if 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 that person." I guess how do you define reasonable suspicion, but an officer has to have something more than just a hunch?

John Kavanagh:
Reasonable suspicion is in the area of knowledge between a hunch and probable cause. A hunch is really not much, and that can be open to a lot of abuse. Probable cause is the level that would let you arrest somebody for a crime. A reasonable suspicion was a level of knowledge for police action that was created by the U.S. Supreme Court in 1968. And the famous Terry versus Ohio case. Up until now, it's been used for other crimes. Usually burglary and trespass, and drug dealing and stuff like that. We've extended it to being in the country illegally. Now, police officers are trained in reasonable suspicion. And with respect to immigration law, every officer in Arizona before this law becomes effective, is going to receive about two hours of extra training telling them what factors can be used to construct reasonable suspicion for illegal presence, and just as importantly, what factors cannot be used.

Richard Ruelas:
I imagine in the extreme case, an officer would have to explain before a judge or jury what made them reasonably suspicious.

John Kavanagh:
Yes. With all will Terry stops, the officer has to, before a judge, articulate everything that made that officer have reasonable suspicion, and it is not a subjective standard. It's an objective standard. So the judge will look at the fact and say, would a reasonable person knowing that have had that level of knowledge?

Richard Ruelas:
A section in the same paragraph, it says a person is presumed not to be an alien if they present one of some documents. A driver's license, an I.D. card from the state, a tribal enrollment card. Or a proof of legal presence from a state that checks status. A person is presumed not to be an alien if they have a driver's license. That assumes reasonable suspicion? I'm presumed to be a citizen just by walking around the street.

John Kavanagh:
The burden of proof is always with the state. You don't have to prove you're here illegally. The officer has to basically proof that you're not here illegally. Or at least get reasonable suspicion to question you and at that point he'll call ICE to make the final determination. But the important fact with respect to the law here is that that statement about you can show these documents and you're presumed, that's a protection. If you're being questioned, the minute you show one of those documents, you're now presumed to be legal, questioning ends, you're on your way, assuming you didn't break the law.

Richard Ruelas:
Aren't I presumed to be here legally if I assert I'm a citizen of the United States?

John Kavanagh:
That's correct. But let's say that the facts are such that they actually create reasonable suspicion, you're not here illegally. The minute you present that card, it's like a get out of jail free card.

Richard Ruelas:
Did you -- I guess if I decide to ride with 14 other guys in the back of a pickup and cover myself with a tarp, that might cause reasonable suspicion and I'm here --

John Kavanagh:
not under this law. Under this law, unless you were driving that vehicle and speeding, officer has no right to go beyond to even question you at that point. Under this law, under existing law, you can -- even before this law was pass, most officers in that situation would hold and would do -- request immigration check. That's a preexisting long-stand right of local police to enforce immigration law. But under this law, you couldn't be asked because you didn't commit that original violation of a law which triggered the question.

Richard Ruelas:
OK. And I guess it's hard to -- can you think after scenario where -- that you get out of jail free card works, someone with a valid driver's license is reasonably suspiciously acting as if --

John Kavanagh:
let me give you a typical scenario. A person goes through a stop sign and he's pulled over for traffic violation. Police officer says, license and registration, he says, I don't have my license. Why not? It was suspended. Oh, well give me your name and date of birth. A police can go on the radio with that information. He gets it, he calls in, comes back. Hey, there's no record of your having a driver's license in Arizona under this thing. Maybe the person says, it was a Guatemalan driver's license. Oh, you're from guatemala.
Yeah, but now I'm here legally. You see, he's been caught in lies, and contradictions. At this point if he said, wait, I am a resident of state X, which checks for citizenship and shows that card, now he's presumed to be legal and this Avenue of immigration questioning stops. He just has to worry about his stop sign violation.

Richard Ruelas:
OK. The next section of law deals with the will for failure to complete or carry a registration document. Originally when this bill was introduced it dealt with trespassing. Making trespassing a -- making being here illegally trespassing. Do you know it was changed?

John Kavanagh:
Because we didn't want to be accused of superseding federal law, which you can't do.

Richard Ruelas:
Now you've adopted federal law into state --

John Kavanagh:
it makes it cleaner and constitutional.


Richard Ruelas:
The slide that was already up once, but the law says a person needs to carry an alien registration document if they have one, apparently, if they are authorize by the federal government. If they are required to register they need to have the document except this section does not apply a person who maintains authorization from a federal government to remain in the U.S. Section F. It seems like if you are here legally and have you the alien registration document, the law says you don't need to carry it? The federal law says you need to carry it, but state --

John Kavanagh:
I think what we're saying there, if you don't have the documents that you're supposed to have, but you have court papers that say maybe you're in the middle of a deportation hearing, and you have a temporary trite stay here, you can present those documents and that would be just as good as an alien registration card, passport or whatever else your legal proof of residence is.

Richard Ruelas:
And then the penalties have been lessened under the house bill that modified it, some of the penalties have been lessened. Do you know why?

John Kavanagh:
Our intention is not to fill Arizona jails and prisons with illegal immigrants. Our intention is to enable local law enforcement officers to apprehend them and quickly turn them over to the federal authorities for removal. So that's why we have no desire to put these people -- and they will not be put in local jails. They will be very quickly deported, except in cases where they've committed serious crimes.

Richard Ruelas:
OK. And I guess we're -- this is almost like a health care bill. The unlawful stopping, I guess the one key here that might -- you might want to get out to people is that someone needs -- I guess explain the unlawful stopping. You need to be blocking traffic.

John Kavanagh:
That is a section about day labor. It makes it a misdemeanor to stand on or near a roadway looking for labor and in so doing, you impede traffic. It also makes it illegal if you're in a car looking to hire somebody, to stop in a roadway and impede traffic.

Richard Ruelas:
Impede traffic, okay.


John Kavanagh:
That is for the -- that involves day laborers.

Richard Ruelas:
but if you go to a home depot you're OK, right?

John Kavanagh:
Assuming you're in the parking lot, which is private property, and not-

Richard Ruelas:
It also makes it unlawful for someone unlawfully present in the United States to knowingly apply for work or perform work. If we define work, do you have to prove that someone is being paid or --

John Kavanagh:
yes.

Richard Ruelas:
So someone who is a friend volunteering who -- it.

John Kavanagh:
No, that would be labor.

Richard Ruelas:
OK. Another section I guess this will be the last one, unlawful transporting. I guess the key here," it's unlawful for a person who is in violation of a criminal offense to transport or move to a tempt to transport". Also to "move an alien in the state in the further ordinance of the illegal presence of the alien." There's two sections. In violation of a criminal offense meaning you've got to be stopped for something else.

John Kavanagh:
There were people concerned, church groups, that our volunteers are transporting a church member who is illegal, and they could get stopped and the volunteer goes to jail. Not so. Two things have to occur before you're guilty of transporting an illegal. First, the state has to prove that -- you knew the person was an illegal alien. Secondly you have to be committing some other criminal act. And this is really more about human smuggling and things like that.

Richard Ruelas:
And the further ordinance of the illegal presence gets to the idea that I knew the person in my car, but violation or criminal offense, it's not just running a stop sign, it's -- it.

John Kavanagh:
It could be -- a stop sign is not criminal. A criminal speeding could be, but we're talking more here about drug dealing, kidnapping, the more serious crimes.

Richard Ruelas:
I'm going to ask the studio for just one minute if we can talk about one last section which hasn't gotten a lot of attention. It deals with the employer sanctions law. And it's the last slide that I gave the studio to put up. "It is an affirmative defense to a violation of the employer sanction law. If the employer was entrapped." Why did this get in there? Has there been discussion of employers fearing they're entrapped as we investigate businesses who hire?

John Kavanagh:
There's been very little enforcement of the employer sanction law. Mostly because there's no subpoena power which we tried to get in but we couldn't. The business community is concerned, and we simply put in the language that if you're entrapped you're not guilty.

Richard Ruelas:
Did this come from the business community?

John Kavanagh:
They wanted it. It's not necessary, because entrapment is already a defense for any crime in the people code. You can't entrap people, they're not -- that's a defense. But they feel more comfortable, so sometimes we put -- we put a lot of things in to placate people. We put the section in about how police only have to ask this when practical. If there's a bank robbery down the street, they won't think they have to keep asking somebody about their immigration.

Richard Ruelas:
The entrapment was to keep the chamber of commerces happy. Representative, hopefully that was illuminating for our viewers. Thank you for joining us.

John Kavanagh:State Representative;

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