Arizona's tough new immigration law is slated to take effect Thursday, but the nation's immigration enforcement agency has not indicated whether it will cooperate with police who are trying to enforce it.
Without cooperation from Immigration and Customs Enforcement, much of the law would become unenforceable: Police would have no way of determining, from federal authorities, the legal status of suspected illegal immigrants as the state law requires. And that would severely hamper efforts to arrest them for violations of the law.
As a result, local police officers might have to release suspected illegal immigrants if they can't determine their status.
"If the Department of Homeland Security says, 'SB 1070 is unconstitutional, don't cooperate,' . . . then much of what is going on here shuts down. Not necessarily all of it, but a lot of it," said Gabriel Jack Chin, a University of Arizona criminal-law professor who co-authored a legal analysis of the law.
Police officers sometimes contact ICE to check the immigration status of suspected illegal immigrants, and if ICE determines the people are in the country illegally, it usually responds to pick them up.
But officials from Homeland Security, which oversees ICE and the Border Patrol, have refused to disclose the agencies' plans for dealing with SB 1070, which is expected to launch a flurry of calls for assistance from local police. They will say only that they are monitoring a federal lawsuit that is seeking to block the 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.
State Rep. John Kavanagh, who sponsored the House version of the law, said ICE's role, as its name implies, is immigration enforcement, so it should assist and take any illegal immigrants apprehended by state and local police enforcing the new law. But he said the Obama administration is trying to block the agency from cooperating for political reasons. The Department of Justice has sued to keep the law from taking effect, saying it usurps federal responsibility.
"ICE is caught between a 'Barack' and hard place, pun intended," said Kavanagh, R-Fountain Hills. "The Obama administration is clearly putting ICE in the middle of a political battle, and when you do that to law enforcement, that is extremely dangerous and I really object to that."
Kavanagh said lawmakers, when writing the law, did not anticipate that federal authorities might not to cooperate.
"But I will tell you this," Kavanagh said, "every suspected illegal immigrant that we refer to ICE and ICE declines to assist with, we will record the name of that individual if we have to release them, and any crimes, any murders, and rapes they commit will be on Barack Obama's administration's conscience and not ours."
The law, signed by Gov. Jan Brewer on April 23, includes a provision that allows people to sue law-enforcement agencies that refuse to enforce the law. But the provision, Kavanagh said, applies only to state and local agencies, not federal authorities.
ICE officials said they are waiting to see whether the law survives court challenges contending that the law is unconstitutional and could lead to racial profiling.
"The DOJ has filed a lawsuit in regards to this law and the outcome of that suit will inform the government's action going forward," the immigration agency said in a statement emailed to The Arizona Republic.
The statement also said that the agency's priority is to go after illegal immigrants who pose a danger to communities.
"ICE is focused on smart, effective immigration enforcement that focuses first on criminal aliens who pose a threat to our communities. ICE uses lawful discretion on a case-by-case basis to en- sure that throughout all our programs we are meeting our priorities," the statement said.
John Morton, the director of ICE, has indicated he doesn't like the law. In May, he told a Chicago newspaper that his agency would not necessarily process illegal immigrants referred to them by Arizona police under the law. And earlier this month, Morton said he understood the frustration many communities feel over the issue of illegal immigration, but he did not think it was a good idea for more states to pass similar laws.
"I don't think that 50 different immigration enforcement laws is the answer to our immigration problems," Morton told the Associated Press.
In its written statement, the agency said that ICE works every day with local law enforcement in Arizona and around the country.
The agency has signed so-called 287(g) agreements with nine law-enforcement agencies in Arizona that either allow local officers to enforce federal immigration laws or allow jail officials to identify illegal immigrants booked into jails to be processed for deportation. Only one other state, Virginia, has as many.
ICE also is using a federal database in jails in seven counties in Arizona to identify illegal immigrants previously removed from the United States or wanted for a serious crime in another country. ICE plans to expand the program to jails throughout Arizona by next year, officials said.
In 2006, ICE created a unit to respond to calls for assistance from local police, primarily when they encounter groups being held in drophouses or being transported in smuggling vehicles. The unit, staffed 24 hours a day, was created after former Gov. Janet Napolitano and some law-enforcement agencies complained that police were being forced to release suspected illegal immigrants into the community because ICE often lacked the manpower to respond.
During the current fiscal year, which began Oct. 1, the Law Enforcement Agency Response unit has responded to 892 calls for assistance from local police in the Phoenix area and made 3,528 arrests, according to ICE officials.
The unit, however, mainly responds to calls from law-enforcement agencies in the Phoenix area, and along Interstate 17 between Phoenix and Flagstaff, and Interstate 40, which are well-known human smuggling corridors.
History of cooperation
Officials from several law-enforcement agencies in Arizona said they have a good working relationship with ICE, and they do not expect that to change if the law takes effect.
In general, when police officers encounter suspected illegal immigrants, they can call ICE's 24-hour hotline to check the person's status. Police also transport suspected illegal immigrants to ICE's detention center on Central Avenue near downtown Phoenix. In southern Arizona, police also turn over suspected illegal immigrants to the Border Patrol.
At some jails in Arizona, including Maricopa County's jails, immigration status is checked for every person booked on a state or local charge. Those found to be in the country illegally are held to be processed for possible deportation.
Every person sentenced to state prison in Arizona also has his or her immigration status checked. Illegal immigrants and legal immigrants convicted of deportable offenses are turned over to ICE after completing their sentences.
"I am sure they are going to be overwhelmed with phone calls, but I am sure we will just take it as it comes," said Sgt. Robert Bailey, a spokesman for the Arizona Department of Public Safety.
Sgt. Tommy Thompson, a spokesman for the Phoenix Police Department, said officers frequently contact ICE when they encounter smuggling vehicles loaded with illegal immigrants as part of crime investigations or other situations. Whether calls to ICE will increase under the law "remains to be seen," Thompson said, but he expects ICE will continue to respond.
"We are assuming that if we contact ICE, they will be there," Thompson said.
Maricopa County Sheriff Joe Arpaio, who has conducted a controversial crackdown on illegal immigrants for the past several years, said ICE continues to take custody of immigration violators netted during his crime suppression operations and worksite raids even though they were not charged with any state crimes.
"I'm concerned that they might change their policy and not pick up these people unless they are accused of a violent crime," Arpaio said.