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Local legislators, immigration advocates say nation needs comprehensive reform

This article first appeared in the St. Louis Beacon, June 25, 2012 - Monday morning, the Supreme Court handed out its ruling on SB1070, the Arizona immigration law that has brought out scorn and support around the country. 

Of the four provisions in question, the court ruled that federal powers trumped three but upheld a fourth provision that allows state and local police officers to attempt to determine immIgration status if a person is stopped or detained for any other reason. 

After the ruling Monday morning, John Ammann took the time to read the full opinion. 

“It’s the strongest message they could have sent that this is wrong-headed, what states and municipalities have tried to do, taking immigration into their own hands,” said Ammann, a professor of law and the director of law clinics at St. Louis University, as he made his way through the court’s decision. 

The provisions struck down are:

  • No. 3, which made it a crime for people to fail to apply for or carry immigration documentation.
  • No. 5, which made it illegal for the undocumented to apply for a job, and
  • No. 6, which authorized police to arrest undocumented people without a warrant.

Vanessa Crawford Aragon, executive director of MIRA, or Missouri Immigrant and Refugee Advocates, was happy to see the court affirm what immigrant advocates have long been saying: Immigration is a federal matter. 

"We can't have a 50-state patchwork," she said. "That is a very important part of this ruling."

2B or not 2B?

The provision left in place, which got the most attention for the potential for racial profiling, was 2B. That allows state and local police to try to determine immigration status if that person is stopped or detained for any other reason. 

This does not preempt federal law, according to the ruling because “it is impossible to make such a finding without a factual record concerning the manner in which Arizona is implementing these provisions — something the government’s pre-enforcement challenge has pretermitted,” or neglected.

In other words, they want to see how it all plays out. 

Ammann noted the decision left open the possibility for 2B to be challenged in the future. The wording of the provision allows police to determine status not just upon arrest, which they already can do under several programs working with ICE, but also on stops. 

And that, Crawford Aragon says, raises the possibility of racial profiling. The provision says that police can determine a person's status when they've been stopped for a legal reason, she says, but normally, "you stop people and find a legal reason to ask for their papers after, so it's disappointing."

Ken Schmitt, a lawyer with U.S. Legal Solutions, says that there are still private challenges to the provision and that it's possible that, in practice, evidence might show that the provision skews federal resources in such a way that the courts may decided the federal government does trump the state in 2B as well. 

(Start update) Jalesia McQueen Gadberry, an attorney who also works in immigration, saw the court's upholding 2B differently, though. States should have the right to secure their territory, she said, agreeing with the opinion by Justice Antonin Scalia, which she recommends reading for a different perspective on the ruling.

"I think it just speaks to the sovereignty of the state," she said. "How it's going to be implemented is another story." (End update)

Evren Senol, a naturalized U.S. citizen originally from Cyprus, was surprised by the court's ruling and disappointed that 2B was upheld. Overall, he said, laws like the one Arizona and other states have enacted are shortsighted.

"Because of the economic difficulty, we lost sight of how this country was founded," said Senol, a Realtor. "People believe that immigrants are all the problems we have, when, if you really look at it, we benefit from those immigrants."

Many civic leaders in St. Louis agreed with that sentiment last week when a new coalition was formed to try and bring more immigrants to St. Louis, sighting clear economic benefits to the city. 

Joe Reagan, president and CEO of the St. Louis Regional Commerce and Growth Association and a coalition member, said the ruling made clear that immigration was a federal issue.

“Right now in St. Louis the road is clear for us to go forward with our conversation and ask how do we become the most welcoming city in America.”

Missouri's law on immigration

The Missouri General Assembly passed a wide-ranging immigration law in 2008 that, among other things, required law enforcement to look up the immigration status of any individual charged and confined to jail if verification of nationality or immigration status cannot be made from documents or after a reasonable effort on the part of the arresting agency.

State Sen. Scott Rupp, a Wentzville Republican who handled that bill in 2008, said in a telephone interview that “everything we addressed is still on the books and is working very well and won’t be affected.”

Rupp, who is running this year for secretary of state, continued : “And really, I think it makes Missouri’s laws stand even higher on the totem poles of states that have strict laws that have not run aground on any constitutional issues.”

Rupp contrasted Missouri's law on hiring the undocumented with Arizona's different approach. “The decision of theirs was it’s not a crime for an illegal immigrant to actively seek work. That’s what they threw out. In Missouri, you cannot knowingly hire an illegal immigrant. We went after it by saying, ‘OK, the businesses that are knowingly hiring, those are the ones who are knowingly violating the law. So we went after it in a different respect.”

Rupp said Missouri also allows law enforcement to be trained to enforce federal immigration law, which he added “gets rid of the whole issue of ‘well, you’re trying to enforce federal law and you can’t do that and that’s a legal  loophole."

(Start update) Missouri Gov. Jay Nixon said in an interview that his staff is still researching the high court's action, but that it appears the decision "will not affect or impact our law enforcement efforts in Missouri." (End update.)

Talk of the day

The biggest headline, at least for Ammann, concerned who wrote and signed on to the decision itself. Justice Anthony Kennedy wrote the majority, joined by Justices Roberts, Ginsburg, Breyer and Sotomayor. 

“Roberts signed it,” Ammann said, citing the chief justice’s conservative leanings. “That’s going to be the talk of the day.”

As a reminder, this all began, at least legislatively, in April 2010 when Arizona Gov. Jan Brewer signed SB 1070 into law. Several other states, including Alabama, Georgia, Indiana, Utah and South Carolina, had similar statues to Arizona’s. 

But now, Ammann says, states and municipalities should think twice before enacting their own immigration laws. It’s a waste of money, he said, and won’t stand up in court.

Another important point, for Schmitt, was the provision that made it a crime for people to fail to register or carry immigration documentation. Many people use the term illegal immigrant, Schmitt said, and if the court had upheld that, that would have been accurate.

"They're not committing a continual crime, it's a civil offense," he said of being undocumented, and he hopes the court's ruling will help underscore that message.

On the national scene

Of course the national, state and local debates over immigration are no where near an end. Last week, the president announced a plan to keep young undocumented immigrants, known as DREAMers, from being deported if they meet certain guidelines, but unlike the DREAM Act, the policy offers no path to citizenship. Many people, including lawyers and DREAMers, are waiting to see how the policy is enacted before they react. 

U.S. Rep. Luis V. Gutierrez, D-Chicago, said in a statement that the court “dealt a blow to the anti-immigrant movement, but also dealt a blow to Latinos and immigrants living in the United States

“A central part of the law, which requires state and local law enforcement to check someone's citizenship status in the course of their duties, was upheld and will sanction pretextual stops and racial profiling,” said Gutierrez, who is chairman of the immigration task force of the Congressional Hispanic Caucus.

“This gives a green light to Arizona sheriffs and others to use someone's clothing, accent, or appearance to take them to jail and hold them until their immigration status, if any, is sorted out.”

Gutierrez went onto say that police “are highly unlikely to stop an individual with the last name of Kennedy or Roberts on suspicion of not being a legal U.S. citizen, but if you are a Gutierrez or Martinez – watch out.”

“In our nation's history, the Supreme Court has been at its best when it expands freedom and demands that all Americans are treated fairly,” Gutierrez said. “This court fell short of that ideal today. Leaders who understand that allowing police to target anyone they choose, including American citizens, simply based on the way they look, or the sound of their voice, is wrong and has no place in our great country.”

Monday morning, GOP presidential candidate Gov. Mitt Romney released a statement citing the need for a president who will "pursue a national immigration strategy ... I believe that each state has the duty -- and the right -- to secure our borders and preserve the rule of law, particularly when the federal government has failed to meet its responsibilities. As candidate Obama, he promised to present an immigration plan during his first year in office. But four years later, we are still waiting.”

Obama, in a statement of his own, invited Congress to step up to the plate.

"I will work with anyone in Congress who’s willing to make progress on comprehensive immigration reform that addresses our economic needs and security needs, and upholds our tradition as a nation of laws and a nation of immigrants. And in the meantime, we will continue to use every federal resource to protect the safety and civil rights of all Americans, and treat all our people with dignity and respect."

Regardless of the political back and forth, the court’s ruling on Arizona, sends a clear message, Ammann says. 

“I hope that this really puts the brakes on the anti-immigration movement across the country,” he said, saying he read the ruling as a victory for immigrants and immigrant advocates. Amman was particularly moved by a few paragraphs toward the end of the ruling.

They read, in part: “The history of the United States is in part made of the stories, talents, and lasting contributions of those who crossed oceans and deserts to come here.

"The national government has significant power to regulate immigration. With power comes responsibility, and the sound exercise of national power over immigration depends on the nation’s meeting its responsibility to base its laws on a political will informed by searching, thoughtful, rational civic discourse. Arizona may have understandable frustrations with the problems caused by illegal immigration while that process continues, but the state may not pursue policies that undermine federal law."

Beacon reporters Jason Rosenbaum and Robert Koenig contributed to this report.