June 17, 2010

Analysis: Enforcing Arizona immigration law will be hard Read more: http://www.azcentral.com/arizonarepublic/local/articles/2010/06/17/20100617arizon

A legal analysis by the Maricopa County Attorney's Office asserts that Arizona's new immigration law will be difficult to enforce because it is based on outdated sections of federal law with very narrow legal parameters.

The analysis was presented Friday to 16 prosecutors from across the state during a training session for the Arizona Prosecuting Attorneys' Advisory Council, known as APAAC.

Neither interim County Attorney Rick Romley nor the deputy county attorneys who made the presentation would comment. The Arizona Republic obtained a copy of it through a public-records request to APAAC.

The analysis resembles an evaluation made by law professors at the University of Arizona, which also pointed out potential enforcement problems with Arizona's new immigration law.

The law makes it a state crime to be in the country illegally. It states that an officer engaged in a lawful stop, detention or arrest shall, when practicable, ask about a person's legal status when reasonable suspicion exists that the person is in the U.S. illegally.

"I am of the opinion right now that it's going to be difficult to enforce, but as with any new law, we're going to do our best," said Chief Deputy Yavapai County Attorney Dennis McGrane, who attended the APAAC meeting by telephone.

According to the wording of the new statute, its misdemeanors are charged if the defendant is in violation of certain federal statutes. Those federal statutes say the violator must be over 14 years old, that he or she has 30 days to register as an alien, and is in violation if willfully failing to carry registration documents.

That specificity creates potential state prosecution problems.

Most illegal immigrants are prosecuted under a federal statute against illegal entry into the country, not failure to provide documents.

According to the University of Arizona evaluation, the registration cards referenced in the U.S. Code are not currently used.

The county attorney's presentation raised concerns prosecutors will have to address with the police agencies they counsel.

Among them is whether asking about immigration status is practicable when an officer doesn't speak Spanish and the nearest Spanish-speaking officer is two hours away.

The county attorney's presentation also raised issues prosecutors will have to consider in court.

The phone call to federal Immigration and Customs Enforcement agents, which the law's supporters tout to show how easily enforced the law would be, has no evidentiary value when it comes to prosecuting someone for failing to carry documents.

Of particular concern for prosecutors is how Arizona's new law interacts with the federal immigration law on which it is based.

The pertinent section of the U.S. Code was passed in 1940, just before World War II, to monitor certain foreign nationals who were in the country legally but were suspected of sedition. Few, if any, cases have been brought under the law in many years.

That law requires immigrants to register if they are in the country for more than 30 days and are older than 14. Under current conditions, however, no one who entered illegally could possibly register.

"If they didn't go through the actual border crossing, and there's no proof of when they came through, how do I show how long they've been here?" asked John Pombier, a prosecutor in Mesa.

Furthermore, the analysis suggests that only those over age 14 could be charged, and prosecutors would have to prove a willful attempt to evade registration to make their case.

Greenlee County Attorney Derek Rapier said prosecutors' scrutiny of Arizona's immigration law is not unusual. It's an exercise they go through with new laws after every legislative session. But more people are paying attention to how this bill plays out on the street and in courtrooms.

Yuma County Attorney Jon Smith compared the new bill to another of Arizona's efforts to curb illegal immigration.

Lawmakers passed a bill targeting those who smuggle humans for profit with similar intentions, but it was ultimately more difficult to get a conviction than first thought, he said.

For example, it's a legal given that prosecutors cannot base a case solely on a confession of being in the country illegally. There has to be a body of other evidence to show that a crime was committed.

"On paper, you were able to see it, but in practice it was difficult," Smith said. "With (the law against willful failure to carry documents) you could look at a major impact or you could see a minimal impact, I don't know. It'll be one of the more difficult ones to enforce."

Reach the reporters at michael.kiefer@arizonarepublic .com and jj.hensley@arizonarepublic.com.

Read more: http://www.azcentral.com/arizonarepublic/local/articles/2010/06/17/20100617arizona-immigration-law-enforcement.html#ixzz0r84ByY50

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