Still a mystery whether Arizona's tough immigration law is working

Court decisions and federal immigration priorities have muddled the full impact of Arizona’s toughest-in-the-nation immigration law so much that it’s unclear how what’s left of SB 1070 is being implemented — and whether it violates people’s rights.

Three years after the law started requiring law enforcement officers to call immigration authorities if they suspected someone they stopped was in this country illegally, questions linger about “how local police departments have implemented the law, how they’ve been training officers, how it’s playing out in communities,” said Victoria Lopez, with the ACLU in Arizona.

“The question of whether law enforcement is engaging in unconstitutional policing as a result of a law on the books that requires them to ask about legal status is still an important question to continue asking,” Lopez said.

Even the law’s staunchest supporters concede SB 1070 has not been as effective as they expected it would be. But that’s not the law’s fault, said Russell Pearce, one of its chief architects. He puts the blame squarely on police chiefs who refuse to enforce it and a president who refuses to deport people in this country illegally.

Since the controversial immigration law passed in 2010, the courts have struck down most of its key provisions. But Section 2b, which requires officers to call the Border Patrol if they suspect illegal status remains in place.

The Supreme Court ruled that provision did not trump federal law, but it left the door open for future challenges if police targeted a particular group or prolonged detentions solely to complete an immigration check.

“If properly implemented, 2b should not lead to federal constitutional violations, but there is no denying that enforcement of 2b will multiply the occasions on which sensitive Fourth Amendment issues will crop up,” Justice Samuel Alito wrote in his opinion of the court’s ruling. “These civil-liberty concerns, I take it, are at the heart of most objections to 2b.”

A coalition of immigrant-advocacy groups, including the ACLU, appealed a September decision by federal judge Susan Bolton that the plaintiffs had failed to prove the law violates the Constitutional rights of those subjected to immigration checks and that its intent is to discriminate.

Advocates point to several cases in which they say people were detained longer than it would take to deal with the original reason they were stopped. They have even sued the Pinal County Sheriff’s Department and settled a case with the South Tucson Police Department. (See box accompanying this story for details on the lawsuits.)

CITED AND RELEASED

In the last five months, Leonardo Garcia-Guzman was stopped twice by police officers. He was detained for more than an hour each time, referred to the Border Patrol each time and released each time by federal authorities.

The first stop was in July, when an Oro Valley police officer stopped Garcia-Guzman for rolling through a red light while making a right turn.

The officer cited him for having no license, expired insurance and running a red light. He also called a tow truck and the Border Patrol because he said Garcia-Guzman admitted to being in the country illegally.

The following morning, the Border Patrol released him because he didn’t meet the federal government’s priorities for deportation.

A few months later, Garcia-Guzman was stopped by a Pima County Sheriff’s deputy for making an improper turn. This time, he showed a Mexican driver’s license that the officer suspected was fake.

The deputy called the Border Patrol, saying Garcia-Guzman had admitted to being in the country illegally.

In his report, the deputy noted the previous Oro Valley stop and wrote that the driver’s license Garcia-Guzman produced looked cheaply made, had a suspicious date of birth listed and seemed to be expired. The license doesn’t have an expiration date but contains the word “expedición,” which means “issued” in Spanish. The date of birth is included below the photograph in small red numbers.

It took the Border Patrol 48 minutes to get to the location of the stop at La Cholla Boulevard and River Road, stretching the total time to 1 hour 40 minutes.

Waiting 48 minutes for the Border Patrol is unacceptable, Pima County Sheriff Chris Nanos said. But every case is unique, he said, and in this instance it was part of the officer’s investigation.

“The deputy is out there, running things, checking,” Nanos said, and trying to figure out who the driver was because he believed the license to be fake.

The Supreme Court has said an immigration check should not prolong the stop. But some police chiefs and sheriffs say they are willing to wait for the Border Patrol “a reasonable amount of time” if the officers are able to, or longer if they conduct an arrest or a lengthy investigation.

But that definition of “reasonable” varies. In reports reviewed by the Star, Tucson police officers noted released people after 20 to 45 minutes because the Border Patrol took too long to arrive.

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In more than 100 cases in which the Border Patrol responded to a call from Tucson police, the average call time was nearly 90 minutes. By comparison, calls in which the Border Patrol declined to respond averaged about 50 minutes.

In June 2014, Tucson police started tracking SB 1070 checks, noting what time a stop was made and whether immigration officials responded. But 90 percent of the fields that indicate when the stop ended are blank.

Officers are supposed to call an operator after they’re done, but they don’t always do so. That doesn’t concern Tucson Police Chief Roberto Villaseñor because most SB 1070 checks his officers have to run through the operator are cases that involve an arrest, even if the person is cited and released.

“If they have a suspended driver’s license, that’s a criminal arrest, and the timeline is not so set in stone,” he said. “It comes back to discretion of the officer and the situation in the field.”

The police have great discretion, said Kevin Johnson, dean of the University of California, Davis school of law. “If there is a close case, the officers can say they will make an arrest and hold the person for immigration authorities.”

It’s tough to say whether officers are using their discretionary power to arrest people just to enforce immigration laws, Johnson said.

“I would want to know how many people were detained, held for immigration officers, and ultimately not charged with a crime,” he said. “In those instances, one can conclude that the ‘arrest’ is really designed for immigration removal purposes.”

For example, an officer could delay giving someone a ticket for driving on a suspended driver’s license until Border Patrol agents arrive if he is still processing paperwork or investigating. Local officers can also enforce federal criminal law, including criminal immigration violations.

But in cases with allegations that officers held someone just for an immigration check, the court “will look at logs when the call was made, does it make sense, does it seem they are dragging their feet, how long it takes compared to a typical stop,” said Omar Jadwat, a senior attorney with the ACLU.

Nation “looking at Arizona”

Law enforcement officers in Southern Arizona — where cooperation with the Border Patrol is long-standing — referred people to immigration agents long before SB 1070.

The five sanctuary cases in Arizona, where immigrants sought refuge in churches to avoid being deported, initiated with a stop or incident with a local police officer before the law went into place.

The way Oro Valley Police Chief Daniel Sharp sees it, it’s not his agency’s job to enforce immigration laws. But if immigration officials can respond quickly, then officers have a duty to notify the Border Patrol just as they would assist any other agency, Sharp said. Oro Valley officers referred five people to the Border Patrol last year and six so far this year.

Neither Oro Valley nor the Pima County Sheriff’s Department created policies to implement the law because they said it didn’t change the way they do business. Pima County deputies have referred more than 260 people to the Border Patrol so far this year, fewer than in previous years.

Garcia-Guzman and his wife, Analy Guzman, talked about leaving Tucson after SB 1070 passed. Instead, they decided to stay in Tucson and build a life here. Their children are active in soccer and are doing well in school.

“I didn’t want to leave,” Analy Guzman said. “This is my home.”

Both of them are part of a coalition of grass-roots organizations created after the law passed. The group hosts “know your rights” seminars and offers support when someone is stopped by the police and referred to immigration. During those sessions Garcia-Guzman learned what to do and say if stopped by authorities, which he points to as evidence that he did not admit to the Oro Valley and Pima officers that he was in the country illegally.

When the Supreme Court issued its decision about SB 1070, Justice Alito wrote that Section 2b did not take away the federal government’s power to weigh each case individually.

“The discretion that ultimately matters is not whether to verify a person’s immigration status but whether to act once the person’s status is known,” he wrote.

Last year the federal government decided to focus on deporting convicted criminals, recent border crossers and people who pose a threat to national security. Since then, the Border Patrol has released people, like Guzman-Garcia, who have lived many years in the United States and have community ties, U.S. citizen children and no criminal records.

It’s been five years since SB 1070 passed and three since Section 2b was implemented. However the legal battles play out could become a model for the nation, said Johnson, the dean at UC-Davis.

“A lot of people are looking at Arizona,” he said. “This is an issue that’s got the nation thinking.”