Abstract
The state of Arizona, dissatisfied with circumstances arising from U.S. immigration policy, sought to promote adjustments in U.S. immigration law through the issue of local regulations: Arizona Senate Bill 1070, House Bill 2162. These statutes pursue to combat illegal immigration and harden the criminalization of immigration law by criminalizing the immigrants and conducts related to illegal immigration as labor issues. In this scenario, the purpose of this article is to promote a brief debate about the legal adequacy of Arizona’s acts, as well as the validity of the factual arguments that fostered the editing of such acts. The relationship between immigration and crime also may be questioned. Thus, this article promotes a brief analysis of the relationship between immigration and crime within the context of the paradigm shift of criminology—the passage of the etiological paradigm to the paradigm of critical criminology—and the effects of risk society and actuarial methodology on the way of thinking the issues pertaining to immigration and its relationship to crime. Finally, it questions the validity of Arizona’s acts based on empirical results about crime collected in recent surveys.
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Notes
- 1.
In the 1850s, A Tennessee’s Senator proposed a project whereby the regulation of immigration would be the burden of the states; however, it was decided at the time for another project which provided for a stronger federal jurisdiction on the matter (Edwards 2001, p. 501).
- 2.
The provisions of this act are intended to work together to discourage and deter the unlawful entry and presence of aliens and economic activity by persons unlawfully present in the United States (Arizona 2010b, section 1).
- 3.
The Hispanic or Latino origin population represents 29.6 % of the inhabitants of the state—a rate considered median if compared with the other states which border Mexico. Still according to the official data from the census, between 2000 and 2010 there was an increase of 24.6 % in the total population of Arizona—46.3 % of increase considering only the Hispanic or Latino origin population in the territory. The state with the largest Hispanic population among the states that border Mexico is the New Mexico, with 46.3 % of the population consisting of Hispanics and Latinos, and the smallest is the state of Mississippi with only 2.7 % of the population (U.S. Census 2010).
- 4.
Arizona had already edited prior law aimed at combating irregular immigration. In the 1980s struggled a proposed amendment to state’s constitution considering the English Only politics, in order to set English as the official language of work in the state administration. This measure was challenged by the American Civil Liberties Union (ACLU) for violating freedom of speech protection provided in the First Amendment. Another episode occurred in 2007 with the enactment of state laws designed to inhibit the hiring of irregular immigrants by punishing the employers (Zeman 2001, p. 486; National Conference of State Legislatures 2012).
- 5.
For any lawful contact made by a law enforcement official or agency of this State or a Country, City, Town or other political subdivision of this State where reasonable suspicion exists that the person is an alien who is unlawfully present in the United States, a reasonable attempt shall be made, when practicable, to determine the immigration status of the person. The person’s immigration status shall be verified with the Federal Government pursuant to 8 United States Code Section 1373(c) (Arizona 2010b, Article 8(b)).
- 6.
Although “reasonable suspicion” is a legal term often used in the amendment case law, and there is consensus that the term does not allow discrimination. However, thinking about immigration it should be revalued.
- 7.
The International Covenant on Civil and Political Rights—specifically in Article 2, § 1, and Article 26—rejected any kind of discrimination such as of race, color, sex, language, religion, political opinion, or any other opinion, national origin or social origin, property, birth, or other status. The Covenant was signed by the United States on October 5, 1977, and ratified on June 8, 1992. It was presented a statement of interpretation by which the U.S. declares, “that the Constitution and laws of the United States guarantee all persons equal protection of the law and provide extensive protections against discrimination. The United States understands distinctions based upon race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or any other status - as those terms are used in article 2, paragraph 1 and article 26 - to be permitted when such distinctions are, at minimum, rationally related to a legitimate governmental objective […]” (Recueil des Traités des Nations Unies 1966).
- 8.
[…] A law enforcement official or agency of this state or a country, city, town or other political subdivision of this state may not consider race, color or national origin in implementing the requirements of this subsection except to the extent permitted by the United States or Arizona Constitution. A person is presumed to not be an alien who is unlawfully present in the United States if the person provides to the law enforcement officer or agency any to the following: […] (Arizona 2010a, Section 5.D).
- 9.
Article 8 (e): A law enforcement officer, without a warrant, may arrest a person if the officer has probale cause to believe that the person has committed any public offense that makes the person removable from the United States (Arizona 2010a, Article 8 (e)).
- 10.
“The United States of America is the plaintiff in this action, suing on its own behalf, as well as on behalf of the United States Department of Homeland Security (“DHS”), the Department of Justice (“DOJ”), and the Department of State” [U.S. Complaint].
- 11.
On the subject the Constitution lays down that [The Congress shall have Power] “To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States” (United States 1787, Article I).
- 12.
“Rather, the states individually have “never possessed international powers. Id. Because the federal government’s sovereign powers over the entire realm of foreign affairs passed from Great Britain to the colonies “in their collective and corporate capacity as the United States of America” (United States Supreme Court 2012).
- 13.
U.S.C. article 8 par 1101.
- 14.
Among the reforms of the INA, the Immigration Reform and Control Act (IRCA) edited in 1986 is one of the most important. Focused on irregular immigration, IRCA reshaped the structure of the Immigration and Naturalization Service (INS)—the federal agency responsible for the issue. It also presents an amnesty plan for irregular immigrants who observe certain criteria.
- 15.
U.S.C., Article 8, par 1103–1104.
- 16.
Among Constitutional provisions applicable to the subject:First Amendment: “Congress shall make no law respecting an establishment of religion, or prohibiting the free assemble, and to petition the Government for a redress of grievances.”Fourteen Amendment: “Section 1. All person born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the State wherein the reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall ant State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
- 17.
Article VI Clause 2: This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
- 18.
It is further ordered preliminarily enjoining the State of Arizona and Governor Brewer from enforcing the following Sections of Senate Bill 1070 (as amended by House Bill 2162): Section 2(B) creating A.R.S. § 11-1051(B), Section 3 creating A.R.S. § 13-1509, the portion of Section 5 creating A.R.S. § 13-2928(C), and Section 6 creating A.R.S. § 13-3883(A)(5) (U.S. District Court for the District of Arizona 2010).
- 19.
Ulrich Beck describes the paradigm of risk society: “How can the risks and hazards systematically produced as part of modernization be prevented, minimized, dramatized, or channeled? Where they do finally see the light of day in the shape of ‘latente side effects’, how can they be limited and distributed away so that the neither hamper the modernization process nor exceed the limits of that which is ‘tolerable’ – ecologically, medically, psychologically and socially” (Beck 2010, p. 22).
- 20.
The incarceration rate is calculated considering the numbers of those imprisoned from a particular group based on the total population of this group: the number of native Americans arrested based on the total population of native Americans.
- 21.
American born incarceration rate in 2000 was 3.5 %, meanwhile immigrant (alien) rate was 0.7 %. (Rumbaut and Ewing 2007).
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Teixeira, G.H. (2016). Who Wants to Go to Arizona? A Brief Survey of Criminalization of Immigration Law in the U.S. Context. In: Guia, M., Koulish, R., Mitsilegas, V. (eds) Immigration Detention, Risk and Human Rights. Springer, Cham. https://doi.org/10.1007/978-3-319-24690-1_15
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