Scholars Sidebar: AZ self-smuggling crime altered fed power over immigration long before SB 1070

In a new article, immigration law scholar Ingrid V. Eagly argues that Arizona changed the face of immigration policing before the state legislature enacted the infamous SB 1070. Ingrid V. Eagly, Local Immigration Prosecution: A Study of Arizona Before SB 1070, 58 U.C.L.A. L. Rev. 1749 (2011). Eagly, a professor at U.C.L.A. School of Law, focuses on a state anti-smuggling statute, Ariz. Rev. Stat. Ann. § 13-2319, enacted in 2005 and its zealous use by local prosecutors against immigrants to argue that “Arizona has already altered federal power over immigration through its control over crime.” Eagly, 58 U.C.L.A. L. Rev. at 1754.

Local prosecutors and willing law enforcement officers, including Maricopa County’s sheriff Joe Arpaio, have combined the felony anti-smuggling statute, initially intended to target human smugglers, with the state’s conspiracy statute, Ariz. Rev. Stat. Ann. § 13-1003(A), “to reach beyond prosecution of the smugglers…and prosecute the migrants being transported….” Eagly, 58 U.C.L.A. L. Rev. at 1759.

In other words, migrants are being charged with smuggling themselves. The practical result, writes Eagly, is that “the smuggling law criminalizes unlawful presence,” even though unlawful presence is not a federal crime; rather, it’s a civil violation of immigration law. Eagly, 58 U.C.L.A. L. Rev. at 1773.

To make the situation more extreme, because a separate Arizona statute prohibits bail in some cases involving undocumented defendants, “defendants charged with alien smuggling are now rarely, if ever, released on bond,” she writes. Eagly, 58 U.C.L.A. L. Rev. at 1765.

Criminalizing self-smuggling has had a trickle effect through the criminal system. “Arizona’s smuggling crime and its application to criminalize self-smuggling effectively enlarged the legitimate domain of criminal suspicion. In turn, more criminal suspicion opens the door for more stops, interrogations, and searches, regardless of whether criminal charges are ever filed. And, by making alienage an element of the smuggling crime, more questioning regarding citizenship status and more arrests of noncitizens are folded into the daily work of local police.” Eagly, 58 U.C.L.A. L. Rev. at 1777-1778.

More prosecutions of immigration-related activity naturally affects the federal government since it’s the federal government and no other body that can determine whether a particular individual lacks authorization to be in the United States. As Eagly explains, “state involvement requires federal authorities to respond to inquiries from police in the field regarding immigration status.” Eagly, 58 U.C.L.A. L. Rev. at 1784.

No matter how much they wish otherwise, states, including Arizona, “cannot prosecute immigration crime on their own. Instead, they remain in a symbiotic relationship with the federal government. Federal agents must aid in investigating alienage—and eventually in proving immigration status beyond a reasonable doubt in court.” Eagly, 58 U.C.L.A. L. Rev. at 1787.

But because the anti-smuggling statute has been found to be within the state’s traditional police power there is no conflict with the federal government’s exclusive authority to regulate immigration.  Put differently, the preemption-based litigation strategies used against SB 1070 and copycat legislation are irrelevant.

Local prosecutors, in other words, have displaced the President when it comes to this significant feature of immigration policing in Arizona. As Eagly summarizes the state of affairs, “Within the state court, where the President has no authority to dictate policy, the type of defendant, nature of immigration violation, and severity of punishment reflect Maricopa County’s discretionary choices.” Eagly, 58 U.C.L.A. L. Rev. at 1805.

This is a concerning—perhaps alarming—trend. Arizona has found a way to police immigration without any of the preemption problems facing SB 1070. “Arizona has not gone so far as to claim that it can create its own civil immigration system for granting green cards and deporting migrants….However, by claiming state power to criminally punish migration violations, local officials point out that they can obtain civil regulatory effects….By making migrants felons, prosecutors made them ineligible for most forms of relief from removal, barred them from future legal immigration, and subjected them to enhanced federal criminal penalties if they later returned to the United States.” Eagly, 58 U.C.L.A. L. Rev. at 1812.

Frightening.