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Isabel Garcia: The most racist section of the legislation was upheld by the Supreme Court

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PAUL JAY, SENIOR EDITOR, TRNN: Welcome to The Real News Network. I’m Paul Jay in Baltimore.

The U.S. Supreme Court decided on the Arizona immigration law on Monday, and I guess here’s a little bit of what it means. If you’re standing outside a Home Depot—and you meaning someone who’s here illegally and, when in Arizona, most likely Latino—and you’re standing next to someone at this Home Depot that doesn’t look Latino, and both of you are standing there looking for a casual job, and someone comes around and you both nod, well, according to the Supreme Court, that in itself cannot be made illegal by the state, if I understand this correctly. These are to do with federal laws. On the other hand, if both of you throw a piece of chewing gum wrapper on the ground and both of you, Latino and someone who don’t look Latino, get charged with littering, well, then the police officer still has the right to decide which one of you he’s going to ask to prove is in the country legally. In other words, there’s still a subjective decision-making power on the part of the policeman. And that is been called by the governor of Arizona a victory. In other words, the Supreme Court, she says, defended the heart of the law. Well, the Obama administration is saying it’s mostly a victory because several of the other provisions of the law were struck down. But President Obama says he is still concerned about this other issue.

Now joining us to talk about all of this is Isabel Garcia. She’s the cochair of the human rights organization Derechos Humanos in Tucson, Arizona. She’s a criminal defense and immigration lawyer. She’s on the board of the national network for immigrant and refugee rights. Thanks very much for joining us, Isabel.

ISABEL GARCIA, COCHAIR, COALICIÓN DE DERECHOS HUMANOS: Thank you very much for the invitation.

JAY: So first of all, did I get it right, essentially, this provision that allows a policemen to subjectively decide, if he’s already arresting somebody for something else, he can decide, based on his own judgment, that he thinks the person might be in the country illegally and ask them to prove that? And I suppose if they can’t, they could be deported. So is that right?

GARCIA: For the most part it is, because, of course, you’re talking about a crime being committed. It’s not necessarily that.

JAY: No, I said arrested. I don’t think—if I said a crime being committed, I didn’t mean that. I meant arrested.

GARCIA: Well, even arrested. If they decide to give you a loitering or a littering ticket, that’s not a criminal function; however, that detention or brief encounter is lawful, and within the context of that investigation, if a police officer has reasonable suspicion to believe you are in violation of the federal immigration laws, yes, they can detain you and hold you for a border patrol agent to come and actually physically arrest you and take you away.

In your scenario, you talked about people being here in the country illegally. We have to, of course, clarify—and I think we should clarify it to the Supreme Court—that over half of the undocumented people in this country never did anything illegal. Illegal means you’ve committed a crime, and the only crime really we’re talking about is unlawful entry—entry into the country without inspection is a misdemeanor crime in the United States at the borders. But half of the people at least come in lawfully and then simply violate their conditions, just like any other administrative hearings. I want to make that clarification, because when people say, oh, illegal alien, they’re using wrong terminology.

JAY: And that’s why the terminology undocumented workers is used instead?

GARCIA: Absolutely, because it really is an improper name to call them, illegal, when only half of those people that are here without documents literally crossed without inspection, which is what makes it the crime. Violating conditions of your student visa, tourist visa, whatever visa you have, or if you overstay your visa, you aren’t an illegal because of that. And so that’s the number one clarification. But otherwise your examples are pretty correct.

JAY: And is the governor of Arizona correct that the Supreme Court in fact kept what she considers the heart of the bill, in which case this isn’t really any victory for the Obama administration?

GARCIA: I hate to say it, but I believe that the governor is correct. The crux of their law is to be a racist. In other words, they’ve said attrition through enforcement—they’re trying to get rid of undocumented Mexicans, and really not just Mexican migrants. But the laws that led up to 1070 were attacks on my rights to vote, demanding proof of citizenship in order to vote, putting up all kinds of other measures, such as, like, their own employer sanctions. We have our own smuggling laws. All of these laws, of course, are not just for the undocumented worker. But I would have to say that I agree with her, yes.

Did the Supreme Court rule that the criminal provisions, both relating to seeking work, something that immigration thought was a crime, or the crux of it, being an undocumented person in Arizona, they wanted that to be a misdemeanor criminal offense, to be without your documents. So yes, the Supreme Court actually ruled that those violated the Constitution.

And we believe that this was preempted, too, because really the enforcement of immigration laws, the very first person on the line are the police officers. And now the Supreme Court is giving those local police officers authority to make that determination, at least to inquire, when you’ve got an area of the law that is very complicated, very—.

JAY: Just to be clear, what the Supreme Court struck down was that a police officer who thought somebody was in the country in—I’ll use their terminology—illegal, but using your terminology, undocumented—but I sure—I suppose the policeman thinks of it that way. But, at any rate, either case, under the existing—or the legislation Arizona passed, they could do so without probable cause. They just had to somehow divine it through their own imagination and—.

GARCIA: It’s reasonable suspicion, whatever that is.

JAY: Which is essentially what you’re saying, racial profilings. And so that was struck down. So that’s not without significance that they struck that down, ’cause a lot of people could have been harassed far more easily that way.

GARCIA: Oh, no, that has not been struck down. That was what was upheld. The crux of allowing local law enforcement to ask you about your papers and then detain you for immigration and border patrol to show up, that was upheld.

JAY: No, but hold on. I may be misunderstanding this. I thought they can only do that if you’re arrested or given a ticket or something for something else; they can’t just walk up to you on the street.

GARCIA: That’s correct. But we live under pretextual stops all the time. We have people who are stopped because they said, you didn’t do a complete stop, you have a crack in your windshield. Those, we believe, are pretextual stops. After that—and they claim that’s—let’s assume it’s a valid stop for running a red light. Then the officer, if they have this reasonable suspicion, they can then begin to inquire, in violation of Fifth Amendment rights [inaud.] in due process.

JAY: No, I understand that. But what was struck down is they can’t do it without anything. They need some probable cause. They can’t just come get you off the street. Even if they make something up, they’ve got to at least do that.

GARCIA: They upheld the ability of police officers to detain you and question you based on reasonable suspicion once they have stopped you. And that is part of SB 1070, that they would have to do it in relationship to an existing investigation, let’s say, into, you know, a cracked windshield. What they struck down was the criminal offense part of it. It is not a crime, it cannot be a state crime to be an undocumented person. That’s where they said preemption rules.

JAY: Right. And that—they also struck down (I guess it’s an extension of what you just said) the Arizona law that said you must have some form of government identification.

GARCIA: That’s correct. That was struck down. In other words, to be held for a crime—you cannot do that.

What they’ll do is what they do in Tucson. Here in Tucson we have a TPD policy that is basically 1070 without the criminal provision. We have a policy that says that a Tucson police officer, if they have reasonable suspicion, after they’ve stopped you for something legitimate, even if it’s pretextual, if they have a reasonable suspicion, they can detain you for 20 minutes until the border arrives. And because we’ve got thousands of agents here—.

I want to make very clear, though, that the most pernicious part of this law was upheld, which was permitting the hundreds of thousands of law enforcement officers, that they can be engaged in the enforcement of immigration law. They tried to couch it and say, no, they can make that initial determination and then would give you over to the border patrol or, you know, Homeland Security, and then they can decide what to do with you. Well, they’ve allowed the local law enforcement to be involved in federal immigration enforcement when they’re able to question you about your status as well as detain you—remember, detain you.

Let’s say that you had a civil traffic ticket, right, that you had a cracked windshield. That’s not a criminal ticket here. It’s a civil infraction. But within that, they see that I’m Mexican or I can’t speak English or I have a Mexican drivers license. That is what is utilized by police officer in this city and in this state to detain you until a border patrol agent gets you.

So is it a real win for our communities? Not so much.

JAY: So what do you expect will be the response from your communities?

GARCIA: The community is, of course, divided between being absolutely terrified to go out to buy groceries, to the youthful and the rest of the community to be in resistance. We will not comply. It’s very clear that we believe this is an unfair, discriminatory law, and we will not comply.

What that means, of course, is we have tomorrow to look forward to. But we have already had a press conference with many participants from many sectors, from clergy to labor, elected officials, business people. And we are going again at 4:30 today, 4:30 tomorrow to begin protest of a prolonged nature. And we believe that there will be, eventually, a call for some kind of massive civil disobedience if in fact there is enforcement of this law.

You’ve got to remember it’s not only police agencies we’re talking about, but this gives license for everybody to discriminate. It gives societal approval. Just the discussion of 1070 caused otherwise good people to begin to talk about undocumented people in a very foul way, people asking for documents at the schools and employment at restaurants, at other places. It empowers those racists to come forward and infect, really, society as well.

So it’s not relegated to the judicial realm at all, even though that is the primary impact, because we’re talking about a mother on Friday who was on her way home, was stopped by a police officer who immediately racially profiled [saÊ’] (she didn’t speak any English), called the border patrol, and they hauled her away. And we are looking right now to see if she’s already been deported.

We are less than an hour away from the border. Therefore, border patrol agents come here in a matter of minutes, and then we’re whisked, because now we have almost 23,000 border patrol agents alone who really don’t have much to do, because, as all studies have shown, the flow of migrants from Mexico has absolutely almost stopped. They’re not going to say, oh, well, we shouldn’t have a job anymore. So what they’re doing is cooperating with local law enforcement all across this country. If it hasn’t gotten to you because we are at the border, it will soon come to you.

JAY: And it’s also—other states are passing similar laws.

GARCIA: Absolutely. Many states were poised to proceed with their racist laws, and they had stopped to see what the Supreme Court would decide. With this decision, we can bet that there—Mississippi, Alabama, Utah, many states across this country are going to enact 1070 without the criminal provision, period.

JAY: And in terms of any kind of redress, I guess at the state level there’s some attempt to campaign to overthrow the law. Is there anything else that can be done at the federal level? Or is this now in a state-by-state fight?

GARCIA: Well, no, those of us that are involved in this kind of work are also plaintiffs in the other lawsuit by MALDEF and the ACLU that directly attack the equal protection arguments that we have that Justice Roberts said, oh, if you’re talking about racial profiling, I don’t even want to talk about it. For some reason, he didn’t want a reality that exists for us now, he did not want that talked about, yet Justice Kennedy in his decision cites to these right-wing think tanks, and talks about their statistics about the crime in Arizona and what, you know, undocumented people have done.

It’s really mind-boggling what has happened here, a Supreme Court who doesn’t really know why we have 11 million undocumented people here. Hello, it’s because our economy depends on them, because our government has invited undocumented workers to come in in an unauthorized fashion for 100 years. Hello, it is our foreign policies like NAFTA and free trade that caused 6 million workers tied to agriculture in Mexico that had to leave their [a’hiðoz] and came in unlawfully to the United States. It is our political policies, such as our drug war in Mexico, that is causing now hundreds of political refugees, people fleeing the violence in Mexico. And so, you know, it really is disheartening that the Supreme Court, in their highly responsible positions, have absolutely not a clue, because I heard the arguments, I read the decision, and nowhere in there do they have a reality about immigration and our immigration history.

JAY: Thanks for joining us, Isabel.

GARCIA: Thank you.

JAY: And thank you for joining us on The Real News Network.


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