Local law enforcement officer in Phoenix, Arizona. Photo by Kevin Spencer.

In the absence of national comprehensive immigration reform, Arizona’s state legislature passed the controversial Arizona Senate Bill 1070, also known as the Support Our Law Enforcement and Safe Neighborhoods Act (“the Act”). The legislation requires a police officer to inquire into the immigration status of individuals whom the officer has reasonable suspicion are in the country illegally and to detain those individuals who cannot prove their legal immigration status. Similar legislation has been proposed by other states throughout the U.S. The potential discriminatory impact of the Act on asylum seekers, and victims of trafficking in persons and domestic violence is of particular concern. Human trafficking victims applying for U or T visas, domestic violence victims, and asylum seekers who have entered the U.S. illegally or whose lawful status has expired may be undocumented for the purposes of the Act.

The Act creates a new state crime of “[w]illful failure to complete or carry an alien registration document.” However, a person is only guilty of a misdemeanor if he or she violates 8 U.S.C.§ 1304(e) or § 1306(a), requiring individuals to carry a federal government issued Alien Registration Certificate or Receipt Card, Certificate of Alien Registration, or Alien Registration Receipt Card. The Act is not applicable to individuals who have valid visas or other grounds to remain in the U.S.. Under the Act, a person is presumed to be lawfully present in the U.S. if the person provides the law enforcement officer any of the following: a valid Arizona driver license, non-operating identification license, tribal identification, or any valid U.S. federal, state or local government issued identification.

Individuals who have applied for asylum are permitted to remain in the U.S. while awaiting adjudication of their application; however, they may only carry with them forms that they submitted or receipt notices they have received from U.S. Citizenship and Immigration Services (USCIS). Not only does the Act fail to provide instructions for police if an alien claims that his or her application is pending, itis also silent about whether USCIS receipt notices for pending applications may qualify under the fourth category of valid proof of lawful presence. This ambiguity in the law gives law enforcement broad discretion, which may lead to abuse and the unjustified detention of individuals who have initiated the process to legalize their status in the U.S. Failure to recognize USCIS receipt notices carried by an asylum applicant and unlawfully detaining an individual awaiting adjudication of his asylum application contravenes Article 31 of the 1951 Convention Relating to the Status of Refugees, as modified by the 1967 Protocol, prohibiting countries from penalizing refugees because of illegal entry if they are fleeing persecution. As a state party to the 1951 Convention and protocol, the U.S. is bound by Article 31.

The Act also endangers human trafficking victims, most of whom are undocumented immigrants. Some enter the U.S. legally and willingly, but their immigration status expires after they are enslaved; while others are forced to travel to the U.S. through legal means or are voluntarily smuggled, only to find themselves enslaved upon arrival. Even after a human trafficking victim escapes, he or she may still be vulnerable to arrest and detention under the Act. Victims of trafficking awaiting T or U visas may lack the Act’s required proof of lawful presence. By criminalizing the failure to produce this proof, the Act punishes the victims instead of the traffickers.

Local Arizona law enforcement is in a difficult position, because they have to uphold Arizona law, while the United States is bound by its obligation under the trafficking Convention and Protocol. The Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime, states that a country should provide for the physical safety of trafficking victims within its territory and adopt appropriate measures allowing victims to stay temporarily or permanently. Although the U.S. provides protective measures for victims of trafficking through the T and U visa programs, the Act threatens the effectiveness of these programs, because victims may be subject to arrest and detention while they wait for their visa to be granted, remaining undocumented in the meantime.

Undocumented immigrant victims of domestic violence or child abuse are also vulnerable and less likely to come forward and seek help under the new Act. The Immigration and Nationality Act (INA) § 212(a)(6)(A)(ii) provides a waiver to domestic violence victims who unlawfully entered the U.S. This waiver allows victims of domestic violence to remain in the U.S. through a self-petition for legal status under the federal Violence Against Women Act of 1994 (VAWA), as a spouse of a U.S. citizen or legal permanent resident. The victims must file a police report in order to begin the visa application process. However, the Act adds an additional element of fear of law enforcement, which may discourage victims from reporting abuse.

In seeking to reshape its immigration policy, the U.S. has both domestic and international legal obligations to protect vulnerable groups. However, the Act falls short of protecting these vulnerable groups. U.S. immigration policy, whether formulated by states or the national government, must conform to U.S. obligations under international law.