Upcoming Supreme Court SB 1070 decision

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The Nation awaits the Supreme Court’s ruling on SB 1070. Carmen Cornejo, from CADENA, a DREAM Act advocacy group; Antonio Bustamante, attorney and member of the Board of Directors for Los Abogados; Tim La Sota, attorney from Rose Law Group; and Evelyn Cruz, a clinical law professor and the Director of the Immigration Law and Policy Clinic for the ASU Sandra Day O’ Connor College of Law; talk about the potential decision, the politics, and what it means for Arizona.

Richard Ruelas: We've heard many guesses as to when the United States Supreme Court will issue its ruling on Arizona's senate bill 1070, but it has yet to render one. Here to discuss the upcoming decision from the court on SB 1070 is Carmen Cornejo from Cadena, a DREAM Act advocacy group; Antonio Bustamante, a civil rights attorney and a member of the board of directors for Los Abogados. Tim La Sota, from Rose Law Group -- he was part of the team representing Cochise County Sheriff Larry Dever since the beginning of SB 1070 litigation; and Evelyn Cruz, a clinical law professor and the director of the immigration law and policy clinic for ASU's Sandra Day O'Connor College of Law. Thank you all for joining us this evening. There's a lot of ground to cover. Let's start with reading some tea leaves. When do we get a decision and what do you think the justices will do with SB 1070?

Tim La Sota: I think we'll get a decision either Monday or Thursday of the upcoming week. It has to be then because they have to go on vacation by July. So I don't think there's any question it will be this week. I think they're going to uphold the law, at least in large part. I think there's a good chance they uphold the whole thing.

Richard Ruelas: Especially the part about the stops, the reasonable suspicion?

Tim La Sota: The problem is they've sort of tried to couch -- they've been saying all these terrible things will happen under 1070 but the law has never gone into effect so it's an awkward legal argument for the Obama administration.

Richard Ruelas: Last night, there was a half-hour program I think unprecedented that gave a primer on SB 1070 and what to do if you're stopped. What is your sense as to what the community's feeling about SB 1070?

Carmen Cornejo: There's a lot of fear in the community about what is coming up, and we are very disappointed that the ruling might be upheld as some of the legal research I mean, consensus is, so we are really concerned about like the spread of panic in the population, that they will leave the state again. We are telling the people to take things easily, to calm down and to hear the advice of some of the lawyers that are coming forward with some advice.

Richard Ruelas: Professor, there's a lot of discussion, especially the part of SB 1070 that seems to get the biggest attention is the reasonable suspicion aspect, the fact that officers might be able to -- if they think someone might be in the country illegally, might take steps, now that we're dealing with it possibly going into effect, what do you think reasonable suspicion would constitute on a practical level?

Evelyn Cruz: The three different cases over the years have discussed what it is. Obviously, this is an unprecedented situation because most of the cases have been in very specific locations, such as at the border or an airport or a bus station, and here, the question is where a person would be. Now, many of the police officers will likely take a very cautious approach by indicating that if a person has a driver's license, they'll stop the discussion there. Then there's a lot of leeway as to what conversations you can have with a person you have stopped. It's likely a lot of the cases in which a person will indicate that they're undocumented will fall under a non-protected conversation with the police officer.

Richard Ruelas: A non-protected conversation meaning you start wading into where are you from?

Evelyn Cruz: You start indicating where you're from. The court has been very careful in explaining where you have your Fourth Amendment rights. And for the most part, unless you feel that you are not free to go, whatever information you give to that police officer is not protected and it's not -- and they don't have to warn you that it's not protected. So a lot of it -- there will be very few cases in which we step into the realm that there might be a violation of the Fourth Amendment because unfortunately most of the time, people do not understand when do the Fourth Amendment rights kick in.
Richard Ruelas: Take us through what a traffic stop might look like and what advice you would give to someone who doesn't have papers, what would they say to an officer in one of those situations?

Antonio Bustamente: They should say absolutely nothing to the officer, period. The problem is people don't understand that and people feel a huge compulsion to talk to authority, thinking it's the right thing, it's the absolute dumbest thing to do.

Richard Ruelas: It's a lot easier to say in this setting, I'll say no to an officer versus when the officer is asking you.

Antonio Bustamente: Exactly. There are lawyers who talk and they know better.

Richard Ruelas: That's why we have you on.

Antonio Bustamente: It's because of the social pressure and the psychological effect and nervousness and a bunch of other things go into the mix of why people start talking, even if they're intellectually aware of doing a dumb thing.

Richard Ruelas: What advice would you give to someone who's undocumented in the community and stopped by the police?

Tim LaSota: I think the advice I would give them for that is they probably shouldn't come here with proper right to enter the country.

Richard Ruelas: Sure, but there's a civil libertarian in you, as well. What do you do if an officer stops you? What should you say?

Tim LaSota: I think it's pretty funny. The criminal defense attorney in him and if I could paraphrase you, you've got a fifth amendment right to shut up for god's sake, shut up. If I were a criminal defense attorney or someone who did immigration law, that's probably what I would say but I think before that, I would say look, we have processes for entering the United States legally. We are a welcoming country, despite some of the sort of characterizations I think that some have put, especially on this state, I know the state's not a country but I think we are a welcoming place, but every other country in the world almost has rules for entering and most people are used to complying with those rules.

Richard Ruelas: Do you think silence is the mantra in the undocumented community?

Carmen Cornejo: The undocumented students which I work with a lot, their parents, their siblings, they're knowing their rights and staying silent and don't provide any information to the authorities about the names and date of birth and that's it.

Evelyn Cruz: There's a question on the table, not just about individuals who are undocumented but just the general public because the idea is that the police officer should inquire as to whether the person's in the United States illegally or not. If they're suspicious of the person's status. That's the question. When do you figure that suspicion?

Richard Ruelas: Antonio and Tim are both going to the "Y" and they don't have their license with them, that's the scenario you're talking about.

Evelyn Cruz: It's a good question about

Antonio Bustamente: Hang on a second.

Richard Ruelas: Let's talk about -- [ Overlapping Speakers ]

Richard Ruelas: You obviously have had conversations with law enforcement, how does a law enforcement agency handle this? Do they expect this is going to come into play?

Tim LaSota: We have an immigration and customs enforcement whose job it is to essentially identify people who are in the country illegally. We have a border patrol that does that, they've done that for decades. Our law enforcement is used to having to make those decisions in a republic that is governed by a Constitution -- hang on, let me finish. In a Constitution where individuals have a lot of rights and that's what our police are trained to do. They're trained to understand what is reasonable suspicion. They do it in every other realm of the criminal justice system.

Richard Ruelas: Do you think if this goes into effect, we will see stops where people are asked and detained under SB 1070? Will it happen a lot, a little?

Tim LaSota: I don't think it will happen a tremendous amount. Police already have the authority. It's just that their police chiefs cannot tell them not to do it, under 1070, the police chiefs can basically not order them not to report someone to ice.

Richard Ruelas: The handcuffs coming off, as I think the senator said.

Carmen Cornejo: Definitely. I feel like the reasonable suspicion, I fall into that category and my children, too, and especially me, I'm a Hispanic woman, I have an accent, my grammar is not perfect all the time, so I think that I'm a perfect target for this reasonable suspicion effect if I forget my driver's license at home.

Richard Ruelas: Are you saying this is happening a lot now without this law. Where is it happening? Do you mean Maricopa county?

Antonio Bustamente: In every part of the state of Arizona, in particular in Maricopa county or with less frequency we believe in pima county. Racial profiling is a fact of life and it's interesting. The folks who don't believe it in are not the victims of it. The folks who are acutely aware of it are the members of the African-American and Latino communities and other groups of people who are minorities in the sense that they look different, speak differently, dress differently and they're a target. You don't look like the majority, focus on you. It's not every officer but it's too many officers who do that.

Evelyn Cruz: There's plenty of studies who have found what percentage of the population believes that there is patient profiling and it is generally higher in the minority groups. But what the Supreme Court in oral arguments had a concern about how long someone would be detained and there's an issue about whether or not they will in their decision address that question.

Richard Ruelas: And Scalia asked a very pointed question to the attorney representing the federal government are we concerned about how this applies to people who have no right to be here in the first place?

Evelyn Cruz: It is as written, not as applied or challenged. And it's important to note that because their hands are in tied and this is a discussion -- you don't write something that will directly be against the Constitution. It does occasionally happen but for the most part, you try not to. It is in how it's applied. That raises the concern about -- [ Indiscernible ] There's a possibility that the message in the community, in the Latino community, especially will be received as one as they don't care about my civil rights.

Richard Ruelas: And that was a point that Scalia asked, should we be concerned about the civil rights of the people who don't have the right to be in the country?

Tim LaSota: I think there are certain rights that apply whether you're here legally or not here legally. Off-right to trial if for criminal offenses here and that applies if you're here legally or not. Going back to a progressive point. I don't think there's any question, law enforcement is going to enforce this -- they're going to be very careful in how they enforce this. I think there's going to be a lot of public scrutiny on law enforcement, which I think is generally a good thing. We expect our police to be able to do their jobs with the -- in the public eye. So I think that's good and I think some of these horror stories we're hearing and the way that some of the communities are being sort of frightened about this, I think it's just -- it's not going to turn out to be the major news event it's been portrayed as.

Richard Ruelas: The first citation under 1070 is going to get a lot of attention. Legally, what do you see the struggle being over that first case? Where are the legal spots that someone can fight a 1070 type action, especially when we talk about a traffic stop type violation?

Antonio Bustamente: There is a number of constitutional issues that any defense attorney is going to look at. Whether there was reasonable suspicion in the first place, what does that mean in the given case or the case that's at hand, how did an officer make the determination and how did the officer reach a decision that there was reasonable suspicion to believe that someone is here without status or without authority? And that's going to be one of the first areas. And then there will be a lot of other technical reasons lawyers will try to see whether the statute or SB 1070, especially section 2 -- 2b is being applied in a constitutional matter. That's the section that observers believe is most likely to be proclaimed by the U.S. supreme court as enforceable. Right now, it is not enforceable under a preliminary injunction.

Richard Ruelas: You would be talking about not you but the legal community who will be representing an immigrant or a citizen say stopped under this would be looking at taking an application of the law up to an appellate court, not just the law as written? Okay. Carmen, you talked about silence being a mantra. There's a group of students that talked about not being silent. Has this discussion of 1070 entered into the DREAM act students?

Evelyn Cruz: Definitely. They see being out as a powerful tool of demonstrating and advocating and also to fight this as what they see as an unjust law. It gives them more space to maneuver and provide information to the community and their parents about how to deal with this law. They're trying to find out and see information about how this might be a violation of their civil rights.

Richard Ruelas: For if -- if a DREAMer is cited under 1070, would this affect their ability to apply for this new deportation policy?

Tim LaSota: It's up to the federal authorities whether they want to initiate removal proceedings and if they don't want to do so, it doesn't matter if they're then arrested for an immigration violation. The feds have the ultimate decision on what to do with the individual.

Richard Ruelas: Even if it's a state violation, it depends on what the adjudication is?

Tim LaSota: There's that state law crime for being an illegal alien without identification. I guess presumably they could be charged under that statute. The actual issue as to whether they are deported rests exclusively with the federal government.
Richard Ruelas: Asking you to sort of put on a political hat, what did the Obama administration's action do politically to the rhetoric we've seen about illegal immigration?

Antonio Bustamente: One thing it did is take the sting out of the notion that children who cannot commit a crime because they cannot form the mental capacity under the law to commit a crime ought not be punished by circumstances or the act of their parents in having brought them here. It is a point that is fundamentally unfair to punish a child and let them go, for example, through our entire educational system after their parents have worked and paid property taxes, because Latinos own homes, they're paying for the schooling of their children, and for the rest of society to invest in all that, you have these beautiful, brilliant children who are being told they cannot go forward with life unless they are wealthy and can pay tuition at our state universities. We lost an investment in those beautiful people. And they've lost their future. And for what? So they can flip hamburgers until they're 30 or 40 years old instead of becoming PhDs, holding master's degrees or going into business and do the things that someone with lawful status in the country can enjoy? It makes no sense for the society.

Carmen Cornejo: And the timing was perfect because the ruling is coming next week. I think it's going to give the DREAMers peace of mind.

Tim LaSota: The timing was perfect right before the election.

Richard Ruelas: And Mitt Romney today was speaking about what immigration reform would look like under him if he was elected, as well.

Tim LaSota: Yeah. I think he said that he would address it in a civil manner. I didn't catch the whole thing. I just saw the headline. I think it is interesting that President Obama when he was pressed on this just last year at a high school, he said he couldn't do this. It sounds like he can do it if it's right before an election.

Evelyn Cruz: He has been doing it for the last two years. We had the department of homeland security indicated to Congress that they can only deport 4,000 people and that they have over 30,000 at the smallest level in the court. So they initiated two years ago a process in which they were defining which way to run -- the individuals who were not targeted because they were not a priority for deportation given limited resources we have. Now, it is true that the decision was done very recently, but the impetus of it has been around for at least two years.

Richard Ruelas: We'll be speaking to someone who has deferred deportation status, coming up after this. Also, we want to thank you for joining us tonight on "Horizonte."

Carmen Cornejo:CADENA, a DREAM Act advocacy group; Antonio Bustamante:Attorney, Member of the Board of Directors for Los Abogados; Tim La Sota:Attorney, Rose Law Group; Evelyn Cruz:Clinical Law Professor, Director of the Immigration Law and Policy Clinic for the ASU Sandra Day O' Connor College of Law;

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