Immigration Status Checks

By: Attorney Gary K. Silberman, Esq.

Section 2(B) of S.B. 1070 provides that when a lawful stop, detention or arrest is made by an Arizona law enforcement official and reasonable suspicion exists that the person is unlawfully present in the United States, a reasonable attempt must be made to determine the immigration status of the person. The court found that this provision should be enjoined, based on a number of reasons.

First, the court found that mandating an immigration check for all arrestees in Arizona would place an unacceptable burden on federal resources. DHS is required by statute to respond to all immigration status inquiries. This law would increase the number of inquiries in a significant manner.

Second, the court found that additional burdens would be placed on lawful immigrants who were arrested. This determination was based on the finding that Congress intended to regulate immigration in a way that protected the rights of law-abiding aliens, by having a uniform national system. As a side note, the court also recognized the potential constitutional problems with the necessary lengthening of detention for lawfully-present aliens and citizens, while immigration status is determined.

With regard to lawful stops, both lawfully present aliens and U.S. citizens in Arizona “would be in continual jeopardy of having to demonstrate their lawful status to non-federal officials. The court agreed with the plaintiff that there are several categories of lawfully-present aliens who are not required under federal law to carry documentation regarding their immigration status.

Status checks for U.S. citizens would also prove to be problematic, since most do not have an entry in a DHS database. Moreover, the same impermissible burden on federal resources would take place if law enforcement personnel were required to perform a status check every time a lawful stop took place. (Although not mentioned by the court, this was exactly what happened to Eduardo Carabello, a U.S. citizen born in Puerto Rico, who was living in Chicago when he was arrested in May of this year. Even though bail was set, Carabello had to spend the weekend in jail while law enforcement officials attempted to verify his immigration status. They were unable to do so, since he was not an immigrant.)

For these reasons, the court found that the United States, as plaintiff, was likely to prevail in its challenge to this section of the Arizona law.