Two-sided immigration battle pits border control against migrant worker program

Jul 20, 2012

The Arizona Supreme Court last month shot down three of four provisions of the state’s immigration law, making it clear that it’s Congress that holds the immigration policy key. The original law was passed in 2010 but most of the provisions were blocked last year by an appeals court decision.

In a 5-3 ruling, the court backed the section that requires police to check the immigration status of people they detain for any reason. It did, however, eliminate the provision that allowed police to stop anyone they may suspect is in the state illegally.

The courts voted against the section which created a misdemeanor criminal offense for “willful failure to complete or carry an alien registration document.” The court ruled that, with respect to alien registration, Congress intended to preclude states from enacting or enforcing their own complementary or auxiliary regulations.

The court struck down the section of the law that made it a crime for illegal aliens to “knowingly apply for work, solicit work in a public place or perform work.”

The court ruled that the 1986 Immigration Reform and Control Act (IRCA) provided a comprehensive framework for regulating employment by immigrants not authorized to work. IR- CA did not impose criminal penalties on unauthorized immigrants seeking work or engaging in work, and the imposition of such penalties by Arizona is thus preempted by federal law.

It also struck down the provision that authorized the police to arrest any immigrant they believe has committed a deportable offense, saying that allowing states to impose their own penalties for federal offenses “would conflict with the careful framework Congress adopted.”

The court decision stated, “A decision on removability requires a determination whether it is appropriate to allow a foreign national to continue living in the United States. Decisions of this nature touch on foreign relations and must be made with one voice.”

Supporters of immigration reform were glad to see at least one provision remain, but also believe this is just the beginning.

“The justices upheld the provision of most concern to immigrant rights advocates, requiring police to check the immigration status of people they stop for other reasons who they suspect are in the country illegally,” said ImmigrationWorks USA President Tamar Jacoby. “But even that part of the opinion is tenuous, and it’s far from certain what will happen next... The fight over who should make immigration law, Washington or the states, is far from over. But [the] ruling, consistent with the mood in many states, is a stunning reversal of recent trends.”

Secretary of Agriculture Tom Vilsack told reporters that the Supreme Court decision does not solve a problem but rather points to the need for Congress to enact comprehensive immigration reform. He credited Congress’ failure to act on immigration problems as the push for states such as Arizona to attempt to address the issues on their own.

“Colorado’s families, businesses, law enforcement and communities have suffered mightily from congressional inaction—from farmers facing growing labor shortages to hardworking and educated young people with few options for the future to business owners struggling to retain top talent for hightech jobs and mountain resorts dealing with an unworkable visa system. We should take this ruling as yet another cue that we need to do the work to address this problem,” said Colorado U.S. Sen. Michael Bennet.

According to Western Growers, an ag group supporting producers in California and Arizona, there is strong support for a streamlined and sensible guest worker program allowing immigrant farm workers to come into the country legally. In a survey the organization conducted with the Tarrance Group, a national polling firm, 70 percent of the voters said they support a guest worker program.

“It is clear that American voters aren’t caught up in the harsh rhetoric claiming immigration reform should be about punishing hard working farm workers or leaving American family farmers without a work force. Americans know that we need a practical and well-regulated national program that allows immigrants to come out of the shadows to work here on our farms,” said Tom Nassif, Western Growers president and CEO.

“The fact of the matter is that Americans know farm work is and will continue to be done by foreigners, and they accept that reality. That’s why an overwhelming majority of voters in both parties support a smarter way for the federal government to handle agricultural guest workers who help produce the healthy food on our plates.”

More than 85 percent of survey respondents agree that both creating these legal channels for temporary immigrant farm workers, and developing the ability to register and track them will improve the nation’s security and allow for better control of the border, according to the Tarrance Group survey data.

Seventy-eight percent of likely voters favored withholding Social Security and Medicare taxes taken from the paychecks of temporary migrant farm workers. As an incentive, the program would refund Social Security taxes to the workers after they return to their home country, according to Western Growers. Medicare taxes would go to wards covering any costs of treating uninsured patients in local hospitals.

The Arizona Cattlemen’s Association members were still working on digesting the court’s outcome. While supportive of an immigration program allowing for guest workers, the local ranchers are frustrated with the issues that stem from the border proximity.

According to Patrick Bray, executive vice president of the Arizona Cattle Growers’ Association, the Arizona cattle industry remains 100 percent focused on securing the border.

Opponents of Arizona’s immigration enforcement launched a new effort just last week aimed at overturning the court’s single ruling.

A coalition of civil rights groups, religious leaders and business organizations that have previously challenged the law filed a new request last Tuesday seeking a court order that would prevent police from enforcing the rule requiring officers to check the immigration status of people they stop. They argue that Latinos in Arizona would face systematic racial profiling and unreasonably long detentions under the law.

“In a state that’s more than 30 percent Latino, requiring police to act as immigration agents is an invitation to racial profiling on a massive scale,” Omar Jadwat, a senior staff attorney with the American Civil Liberties Union Immigrants’ Rights Project, told reporters. “Police chiefs know these laws don’t work and we now hope the courts will send that message to the politicians as well.”

Last year, James K. Chilton Jr. shared his chilling story of living on the border, where there is little to no border control, with the U.S. House of Representatives.

“We are challenged by the fact that four miles of the southern boundary of our ranch is the international border. The border is not signed or marked and consists of a five-strand barbed wire fence similar to most ranch fences. Our ranch house and headquarters are located 19 miles from the border. We have been burglarized twice by drug packers on their way back to Mexico. Our losses have been great and our sense of security in our own country has been severely damaged. We live with weapons near our bed, at the doors, in our vehicles and attached to our saddles,” Chilton wrote.

Chilton estimates 20,000 to 30,000 illegal immigrants cross through his ranch every year, and he says he fears for his life, suspecting a criminal from south of the border murdered his friend and fellow rancher, Rob Krentz.

In March of 2010, the body of Krentz and his dog were found shot to death on his ranch. Authorities still do not know who killed Krentz. — Traci Eatherton, WLJ Editor