Dear Atty. Lou,
I have a cousin who lives in Tucson, Arizona and is married to a green card holder. Her authorized stay expired in 2005. A petition has been filed on her behalf but she was not able to adjust her status yet. I read in the newspaper that in Arizona, an immigration law was passed making illegal immigrants criminals? Will transferring to another State assist my cousin from avoiding prosecution? Please enlighten me on this matter.
Concerned Relative
Dear Concerned Relative,
Generally, an individual who is staying in the US beyond her authorized stay is in violation of immigration law. She may be considered as illegal (a TNT) but not a criminal. The fact that she is a “TNT” is ground for the federal agents from the Immigration and Customs Enforcement to file removal proceedings and have her deported back to her homeland.
Illegal immigrants are not criminals until last week’s passage of a law in the State of Arizona. This law is in effect only in that State. Governor Jan Brewer of Arizona signed into law the Anti Immigration Enforcement Law or SB 1070 making illegal immigrants criminals. According to the provision of this law, a state or local police may investigate status of an individual based on “reasonable suspicion” that a person is in the country illegally. This new state law is due to take effect in 90 days unless the constitutionality of the law is challenged in court. Civil rights groups like the American Civil Liberties Union are preparing to challenge the constitutionality of this law in court.
This anti immigrant State law gives law enforcement officers the authority to stop and question people about their immigration status based on ‘how they look.’ Although the provision of the law specifically prohibits the use of race or nationality as the sole basis for immigration check, still the question remains on what the standards for ”reasonable suspicion” are. Is it the appearance of looking like a foreign born, speaking with a strong accent or simply just looking illegal based on the color of one’s skin? It is anticipated that most of the suspects will be the Latinos and non white immigrants which obviously will be racial profiling. A police officer may stop and question a Filipino in Arizona who is simply driving her car or walking through the mall about her immigration status pursuant to the new law. This will create fear among immigrants especially those who are awaiting for their visas to be issued. More families will be separated as a result of investigation and arrests of suspected undocumented aliens.
There is indeed a reason to be alarmed with the Arizona’s anti immigrant law. While this is only applicable in the State of Arizona and may be subject to be declared unconstitutional in court, at least four more states are looking into enacting similar law. President Obama criticized this state law as “misguided”. However, his administration should now take aggressive steps to solve the country’s immigration problem by passing the comprehensive immigration law that will rightfully fix our broken immigration system. There is no better time than now.
Atty. Lou
(Lourdes Santos Tancinco Esq .is a partner at the Tancinco Law Offices, a Professional Law Corp. Her office is located at One Hallidie Plaza, Suite 818, San Francisco CA 94102 and may be reached at 415 397 0808, email at law@tancinco.com. The content provided in this column is solely for informational purposes only and do not create a lawyer-client relationship. It should not be relied as legal advice. This column does not disclose any confidential or classified information acquired in her capacity as legal counsel. Consult with an attorney before deciding on a course of action. You may submit questions to law@tancinco.com)
