The Center for Immigration Studies–which describes itself as “low-immigration, pro-immigrant”–celebrated the passage of new anti-illegal immigrant legislation in Arizona (Federalism Lives!): 

State lawmakers have passed a bill to make it a state crime to reside in the state without proof of lawful U.S. residence.  The legislation also empowers police officers to check a suspect’s immigration status. 

The legislation has yet to be signed by the governor, and will likely face court challenges from pro-immigration groups.  According to Time Magazine, if enacted, the new law would give Arizona police the right to stop anyone on “reasonable suspicion” that they may be an illegal immigrant.  It also allows the police to arrest anyone who is not carrying a valid driver’s license or identity papers.  The legislation provides:  

For any lawful contact made by a law enforcement official or agency of this state or a county, city, town or other political subdivision of this state 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 person.  The person’s immigration status shall be verified with the federal government pursuant to 8 United States code section 1373(c). 

CIS hopes that that the legislation will encourage other states to follow suit: “More states should follow Arizona’s lead and flex their federalist muscles.”  The proposed law has been harshly criticized for many reasons, including that it will encourage racial profiling. 

But how will such legislation impact asylum seekers? 

For better or worse, many asylum seekers enter the United States at the Mexican border.  The Washington Times recently reported on a Somali asylum seeker who attempted to enter illegally and was detained in California.  I myself (located in Washington, DC) have litigated a number of asylum cases for Ethiopians who have made the long journey from Ethiopia through Africa, South and Central America, and Mexico into the United States.  Some asylum seekers evade capture, enter the U.S., and file affirmative asylum applications.  Others are detained at the border and file for asylum while held in detention.  Certainly, people crossing the border in this manner present a security concern for our country.  Many, however, are legitimate asylum seekers with a real fear of returning to their countries. 

People who are detained at the border, determined to have a “credible fear” of persecution, and found not to present a security threat, are released (usually after paying a bond) and ordered to present their asylum cases before an immigration judge.  Such people have little evidence of lawful status in the United States–usually just some papers from ICE (Immigration and Customs Enforcement) ordering them to report to the IJ.  Such papers could easily be created by anyone with a printer, so they cannot serve as ID documents.  Also, having entered illegally, such asylum seekers are generally not eligible for a work permit, which some asylum seekers use as an ID.  If asylum seekers who enter at the border cannot prove their legal status in the U.S., they will face arrest under the new Arizona law. 

The law might also cause problems for aliens granted withholding of removal under INA § 241(b)(3) or withholding under the UN Convention Against Torture.  Such aliens are eligible for work permits, which can serve as an ID card.  However, the work permits are issued for one year at a time, and aliens must reapply every year for their work permits.  If the card arrives late (or if the alien forgets to apply on time), the old permit might expire before the new card arrives.  This is a common occurrence and will likely leave the alien with no valid ID since an alien’s driver’s license expires concurrent with the work permit.  The result is that aliens in valid legal status, who have been deemed at risk for persecution or torture in their home countries, will be vulnerable to arrest under the new Arizona law.

We can only hope that the legislature will address these problems before the new law goes into effect.