Arizona’s major metropolitan areas have seen some interesting developments in immigration law and policy as of late.  A few days ago, the notorious former sheriff of Maricopa County was convicted of criminal contempt for violating an injunction against his office barring its wide-spread racial profiling in the name of immigration enforcement.  (This is only the most recent in a serious of consequences resulting from Sheriff Arpaio’s widespread and frequent immigration “sweeps.”)  And a few months ago, the Tucson sector of the U.S. Border Patrol revitalized an initiative to criminally prosecute anyone who attempts to cross the border unlawfully, with a focus on first-time offenders.  Clearly, officials in this state are seeking out ways to intensify federal efforts to enforce immigration law. 

The Supreme Court held five years ago, in litigation involving Arizona’s SB 1070 legislation, that state immigration initiatives that are preempted by federal immigration law are not valid.  However, like the federal 287(g) program that enabled Sheriff Arpaio’s office, the Tucson initiative involves a federal entity delegating immigration enforcement power to state and local police.  Furthermore, the Court left intact a provision in the Arizona legislation allowing police officers to stop and arrest someone if they believe the person to be an undocumented immigrant, and mandating that police officers check the immigration status of anyone whom they arrest or detain.  While the former provision was criticized last year by the Arizona attorney general in a nonbinding opinion, it seems that states are not banned by the Court from becoming involved in federal immigration enforcement. 

Nonetheless, the criminalization of violations of civil immigration law under the Tucson initiative, and the related involvement of state and local police in federal immigration enforcement, may do more harm than good.  As an initial matter, the Tucson policy creates impetus for the very issue that landed Sheriff Arpaio in hot water, in that it gives border patrol officers and law enforcement another justification for expending resources to detain and arrest citizens and others for whom no criminal charges could be filed.  In any case, 565 noncitizens were prosecuted during the first month of the initiative’s reboot, resulting in an additional burden on the criminal justice system.  Since the Tucson initiative is being furthered under Operation Streamline, these noncitizens may be charged and sentenced in groups, in possible violation of due process.  Some may not have the money to pay the fines associated with conviction and may serve time in the prison system, which already houses civil immigration detainees.

These noncitizens will then be placed into removal proceedings.  Here, their cases may be hampered by ineffective assistance of counsel, if their criminal attorneys have not amply advised them of the potential immigration consequences of the criminalization of their border crossing.  Or they may face procedural slowdowns, for instance, if immigration judges are not sure whether and how their criminal convictions for crossing the border should amplify the penalties they face under immigration law.  Certainly, before any of this occurs, they will become part of the immigration court backlog, in part because of the decreased likelihood of receiving prosecutorial discretion under the current administration (as I discussed in an interview with Phoenix’s local NPR program).  It is unclear if and when they will eventually be deported.  

These conceivable effects of the Tucson initiative illustrate a fundamental problem associated with restrictive immigration federalism:  Those comprising state or local law enforcement, even if they have been authorized or are being forced to further immigration policy by the federal government itself, do not have the purview and bandwidth to structure their approach to immigration enforcement in ways that mitigate the larger problems plaguing our national immigration system.  Furthermore, criminal law enforcement has only blunt and forceful instruments at its disposal to do the nuanced work of civil immigration enforcement.  As a result, it’s not likely to be effective enough to warrant the costs of its use (or, as in the case of Sheriff Arpaio, its misuse).

Unfortunately, Texas is heading in the same direction as Arizona.  In addition to entering into several new 287(g) agreements this week, the state has passed immigration enforcement legislation that, among its many concerning elements, includes a SB 1070-type “show me your papers” provision and forces not only local police, but also members of local governing bodies, public attorneys and even college campus security to engage in immigration enforcement.  One important reason for state legislatures and courts, and even for cities, to limit—instead of expand—the participation of local police in immigration enforcement is to disaggregate criminal and civil procedure.  Another is because the continued involvement of state and local actors in federal immigration enforcement may, in fact, reduce the quality and success of immigration policy nationwide even as measured by those averse to a progressive immigration framework.  

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