In the four months since the presidential election, the GOP's sudden interest in Latino constituencies and immigration reform has been dramatic. So has its change in tone. For instance, Sen. Lindsay Graham (R-S.C.), has publicly atoned for party behavior like Republican presidential candidate Mitt Romney urging undocumented immigrants to "self-deport." Arizona Senators Jeff Flake and John McCain have returned to their pre-2008 posts at the right flank of Washington's bi-partisan push for immigration legalization.
In this climate, it's tempting to forget how just a couple years ago the country was embroiled in a nearly insurrectionist attempt by state-level Republicans to pre-empt federal authority, enact harsh laws that would scare immigrants into leaving, and transform their every interaction with a state employee into a potential path to deportation.
So, what did happen to the anti-immigrant rampage in the states? Is that all history now?
Not quite, but we're getting there.
The tide started turning last June when the Supreme Court struck down three major provisions of Arizona's notorious SB 1070. Without the high court's intervention, the law would have made working a crime for undocumented immigrants; required all immigrants to obtain and then carry their papers at all times; and allowed police to make warrant-less arrests of suspected non-citizens.
The ruling didn't completely defuse the right's prize incendiary device. Section 2B, the part critics called the "show me your papers" provision, survived the high court challenge, clearing the path for a new round of racial profiling and rights abuses in Arizona, and in Alabama, South Carolina and Georgia, which had passed their own versions of 1070.
"The tide is turning overall, and the nationwide wave of anti-immigrant hysteria may have crested," says Jothathan Blazer, an attorney at the ACLU who focuses on state issues. "but serious threats in a number of states and localities remain.
States in Retreat
Last year, the number of proposed state immigrant bills dropped by 44 percent, according to the National Conference of State Legislatures (NCSL). "States waited for the Supreme Court to rule [on SB 1070]," says Ann Morse, of the NCSL, adding, "so far this year, no omnibus state enforcement bills have been introduced."
Even in places where public officials still advocate for SB 1070-like laws, the edges appear to have softened a bit. Last Monday, Alabama decided not to ask the Supreme Court to consider a portion of HB 56, their 1070 copycat, which required public schools to ask their students about their immigration status. That part of Alabama's law, which otherwise mimicked Arizona's 1070, was already blocked by a federal appeals court in August. The state's decision Monday was to respect that inunction and take their fight on the matter no further.
Back in Arizona, meanwhile, a federal appeals court yesterday upheld a lower court's decision to block a lesser known portion of SB 1070 that made it illegal for day laborers and employers to arrange a hire when the employers' car is in a roadway.
Elsewhere, hobbled by the Supreme Court's decision, Republican state legislators still invested in anti-immigrant legislating are getting creative and a little weird in crafting bills. Mississippi State Representative Becky Currie introduced a bill in January that would have required cops to take photos of anyone driving without a license. It was not clear how officials would use the photos or where they'd be stored, but groups including the Mississippi Immigrant Rights Alliance protested at the state Capitol, saying the bill's author intended to intimidate non-citizens. Instead of introducing bills to make life harder for immigrants, Republicans in some states have been reduced to blocking policies that make immigrants' lives easier. After President Obama announced that young undocumented immigrants who came to the country as children, so-called DREAMers, could apply for work permits and protection from deportation, Republican governors and Department of Motor Vehicle administrators in Arizona, Michigan, Iowa, North Carolina and Nebraska declared that they would not issue driver's licenses to them. Tennessee legislators are considering similar action. Now, following organized protest from DREAMers, some of these restrictions are falling away. Michigan, North Carolina and Iowa recently reversed their no-license-for-you positions. Other states are trumpeting the fact that they will allow these youth (so-called "DACA recipients") to drive legally. In a move that would have been politically radioactive just a few months ago, Republicans in Pennsylvania have actually supported pro-immigrant legislation--state DREAM Act provision that would allow undocumented residents to pay in-state tuition rates at public universities. "It's not a Republican or Democratic issue. People deserve to have that barrier taken away," said Republican state Sen. Lloyd Smucker. "I see it as an investment and the right thing to do."
Meanwhile, facing a strong push from immigrant rights groups, Democrats are stepping up efforts to protect non-citizens from deportation. Last Wednesday, the New York City Council passed two laws that together refuse to honor Immigration and Customs Enforcement requests to hand local prisoners over to the federal agents,except those convicted of serious crimes. The law is a direct rebuke to Secure Communities, the Department of Homeland Security's flagship deportation program. Lawmakers in at least thee states--Massachusetts, Connecticut and California--are working on similar bills.
The Life and Death and Afterlife of SB 1070
The sway toward sanity in the states does not mean an end to conflict over immigrant rights. Because the Supreme Court upheld Section 2B, Arizona advocates report that police departments in counties across the state are asking suspects about their immigration status in discriminatory ways and detaining immigrants without cause.
Cesar Valdes, a 20-year-old community college student in Phoenix, was held in a city jail for 15 hours after police stopped him as he drove his brother to high school. Valdes, an undocumented immigrant, had recently started the DACA application process, which ACLU lawyers say should have protected him from immigration detention. But when he failed to produce a driver's license during the stop, the officer pulled Valdes from his car and drove him to the county jail. Valdes says police didn't read him his Miranda rights and that he was held because the local police were waiting on ICE to take him.
Ten hours after he was arrested, Valdes appeared before a judge, who ordered the county release him, but the sheriff refused and returned him to a crowded cell in the 4th Avenue jail in Phoenix. ICE officials finally looked at the case 15 hours later, and within two minutes, Valdes says, police released him on the grounds that he'd applied to DACA.
Sources from the ACLU of Arizona says that since 2B took effect, the group has received hundreds of calls about possible rights violations related to the provision. So far, it has documented more than 50 examples of individuals, including U.S. citizens and legal permanent residents, who say they were victims of racial profiling and unlawful or prolonged detentions.
Attorneys from the Southern Poverty Law Center say they're hearing similar reports from Alabama, South Carolina and Georgia. These patterns leave the "show me your papers" provisions vulnerable to additional legal challenge.
Dan Pochoda, legal director of the Arizona ACLU, says the group is "looking to address the whole of the law, which we know results to racial profiling." But despite the growing number of cases filling the ACLU's filing cabinets, most legal experts say there's a long way to go before they'll have be able to gather enough evidence to take down the remaining section of SB 1070.
In the meantime, Pachoda says, "there are a lot of legal strategies that come before full injunction. For individual police departments that are profiling, a major suit for damages can be a deterrent."
And legal action may now be necessary, even in jurisdictions that don't have long histories of racial profiling. Take Flagstaff in Northern Arizona. The police chief of this liberal outpost told the Arizona Daily Sun, "[T]he Flagstaff Police Department will not tolerate officers stopping an individual based upon their race." Yet observers say 1070 has been implemented there in legally questionable ways. Data are hard to come by, but Luis Fernandez, a criminology professor at Northern Arizona University, has heard reports of Flagstaff police stopping suspected undocumented immigrants without cause and calling federal immigration officials.
"There's a lot of confusion and a lot more discretion from individual cops," Fernandez says. And he adds, "the only way they know who to stop is by race."