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Greg Siskind on Immigration Law and Policy

VIRGINIA AG THUMBS NOSE AT ARIZONA

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It takes a lot of razzle dazzle for a state attorney general to make national headlines on a regular basis, but Virginia Attorney Generaly Ken Cuccinelli is doing his best. His latest attention-grab is his issuing an opinion yesterday that law enforcement officers in the state can ask anyone in the state they stop for another reason about their immigration status. He draws an odd distinction - that officers have the discretion to ask or not ask and are not required to do so. This just seems to make racial profiling even more likely and doesn't at all address the big reason for Judge Bolton's injunction - that this power is reserved for the federal government under the Constitution.

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  1. Jack's Avatar
    "that this power is reserved for the federal government under the Constitution."

    Not sure what specific power you're referring to which is reserved but I'll address questioning:

    "His latest attention-grab is his issuing an opinion yesterday that law enforcement officers in the state can ask anyone in the state they stop for another reason about their immigration status."

    That's Supreme Court precedent--Muehler v. Mena--no reasonable suspicion of immigration law violation required to question status when lawfully detained on non-immigration related matter (questioning not a seizure and creates no Fourth Amendment right) where the immigration status inquiry does not prolong the detention.


    "He draws an odd distinction - that officers have the discretion to ask or not ask and are not required to do so."

    It's straight out of Footnote 12 of Bolton's ruling:

    Many law enforcement officials already have the discretion [italicized] to verify immigration status if they have reasonable suspicion, in the absence of S.B. 1070; Section 2 of S.B. 1070 removes that discretion by making immigration status determinations mandatory wherepracticable. (See Pl.'s Mot. at 26; Defs.' Resp. at 20.)

    http://webcache.googleusercontent.com/search?q=cache:ktEYt0wOQcMJ:www.azd.uscourts.gov/azd/courtinfo.nsf/983700DFEE44B56B0725776E005D6CCB/%24file/10-1413-87.pdf%3Fopenelement+bolton+decision+arizona&cd=5&hl=en&ct=clnk&gl=us


    "This just seems to make racial profiling even more likely..."

    Maybe so but what many consider racial profiling is already a piece of cake since the Whren case which relates to pretext stops.


    Congress has plenary power and Bolton had to work around their intent that INS never hang up the phone on a status inquiry--"Obligation to respond to inquiries"

    http://www.law.cornell.edu/uscode/8/usc_sec_08_00001373----000-.html

    Arguably, this statute trumps DOJ's claim that mandatory status inquiries would burden federal resources. Congress mandates a response and even if it's an unfunded or underfunded mandate, in the statute's obligation they don't allow discretion for the Executive to limit status inquiries. So it seems like Bolton invented a compromise which is not completely logical or consistent from either the pro-concurrent enforcement side or anti-concurrent enforcement view. This article has an analysis of some of these issues:

    http://www.nytimes.com/roomfordebate/2010/7/28/whats-next-on-arizonas-immigration-law/a-decision-full-of-contradictions
  2. Another Voice's Avatar
    This AG first made waves when he forgot to acknowledge slavery along with the governor, now this.... you can say that there is an agenda here!!! You can put lipstick on a pig but in the end it is still a pig.
  3. Tundra/Desert's Avatar
    Thanks for the thorough analysis, Jack. There has to be middle ground between mandatory and potentially indefinite detention and no enforcement.
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