May 19, 2010

A Latina immigrant victim of sex trafficking gets locked up for months. A 40-year lawful resident is deported for shoplifting. Sounds like Arizona's new immigration law - but it isn't. Under current U.S. federal immigration law, cases like these happen every day.

Arizona's law will require police to stop, question and arrest anyone they reasonably suspect of being in the country illegally. People will be able to sue cities or towns they believe aren't being vigilant enough in arresting undocumented migrants. As a result, police officers will be under pressure to make an arrest, even when in doubt, rather than risk a lawsuit. Expect a lot of wrongful arrests and arbitrary detentions, including of people lawfully in the country.

Trouble is, under federal immigration law, a lot of migrants already are detained who shouldn't be. In certain circumstances federal immigration law mandates the detention of people who are legally in the country and are neither dangerous nor at risk of absconding.

The law allows deportation of a person with a green card if the person has served a prison sentence, even for a minor nonviolent crime. It offers judges no chance to keep families together even when the person facing deportation is a military veteran with a drug conviction stemming from an addiction developed during service in Vietnam.

The Arizona law requires the police, already busy enough fighting violent crime, to enforce immigration laws. But under existing federal immigration laws, which have been described as "second only to the tax laws" in their complexity, some 60% of people brought before immigration courts go through all their hearings without an attorney.

While citizens and legal immigrants in Arizona will be at risk from the new law, federal immigration law already often leads to injustices against those populations. People with a right to remain in the country are sometimes swept into police custody, immigration detention and deportation. Human Rights Watch has documented cases of lawful refugees arrested by police in Arizona and subjected to months in detention before they were able to clear up their status. Women trafficked to Arizona by criminal prostitution rings sometimes spend months in immigration detention before the government finally accepts their status as victims rather than as criminals.

We have talked to family members of mentally disabled lawful residents who were erroneously subjected to deportation hearings because they lacked the cognitive skills to defend themselves in court. The media has even uncovered instances in which U.S. citizens were detained and deported because of the extraordinary powers handed to local police and the immigration service under federal immigration law.

Legal challenges to Arizona's law are likely to slow things down significantly before its sweeping provisions are fully unleashed. That's a good thing. But those who are shocked by the Arizona law should broaden their protests and efforts at reform to include provisions of federal immigration law that result in harsh and unjust treatment, without any assistance from the Arizona legislature.