The old joke that you could be arrested on suspicion of being Mexican just got less funny thanks to some serious new laws from the state of Arizona. On 23 April, Arizona Governor Jan Brewer passed SB 1070, a new law which makes it mandatory for police officers to investigate the immigration status of anyone they suspect of being in the United States illegally. Critics such as Arizona Democratic Congressman Raul Grijalva are calling it a mandate for racial profiling which "creates a second-class status for primarily Latinos and people of colour in the state of Arizona".
Effectively, certain sectors of the community will be criminalised based on their ethnicity and the way they look. Advocates are also concerned that SB 1070 will stop Hispanic people from accessing law and justice services — meaning that more crimes affecting this community will go unreported.
Racial profiling is nothing new, but this is the first piece of legislation in any US state which requires a section of the community to carry ID and mandates that police check the status of anyone they encounter who arouses "reasonable suspicion". Civil rights groups immediately declared 1 May a national day of action against the bill and organised snap protests across the US.
On 30 April, Arizona quickly passed amendments which order police to attend classes to help them learn how not to racially profile people who appear to be Mexican, and stating that "prosecutors would not investigate complaints based on race, colour or national origin". The amendments also reduce the penalties for failing to carry ID, with fines for a first offence down from $500 to $100 and minimum jail time, again for a first offence, reduced from six months to 20 days.
The legislation now bears the rather more emotive title the Support Our Law Enforcement and Safe Neighborhoods Act; it is set to come into force on 28 July 2010 unless it is stopped in the Supreme Court. Even if a challenge is successful, SB 1070 puts serious pressure on President Obama to get moving on comprehensive immigration law reform, an issue he’s managed to shelve since his election to office.
Obama reacted quickly, but fairly mildly, to SB 1070. In a statement from the White House, he admitted the law filled a vacuum his Administration was helping to create:
"The recent efforts in Arizona … threaten to undermine basic notions of fairness that we cherish as Americans, as well as the trust between police and their communities that is so crucial to keeping us safe. In fact, I’ve instructed members of my administration to closely monitor the situation and examine the civil rights and other implications of this legislation. But if we continue to fail to act at a federal level, we will continue to see misguided efforts opening up around the country."
Less than a week later, Obama flinched, telling journalists on board Air Force One: "there may not be an appetite immediately to dive into another controversial issue … Midterms are coming up."
As Democrats battle for places in Congress, immigration reform has been put on the backburner. While the Justice Department appears committed to investigating the legalities, closely monitoring the situation is not going to be good enough.
Immigration is a divisive issue in the US — and particularly in the South West. The Obama Administration is wary after the intense ideological divides revealed by healthcare reform. Juan Gonzales of Democracy Now! writes, "All the experts, of course, are saying this is the worst possible issue to have a debate over just before an election, but I think in the immigrant communities, people are saying we have been waiting now for years for a resolution of this crisis." Some Democratic senators would prefer to keep waiting until at least 2011.
There are an estimated 460,000 illegal immigrants in Arizona, and as many as 11 million in the USA. The harsh Sonora desert is the crossing point for many undocumented migrants, who travel by night along dangerous trails accompanied by escorts known as coyotes — who charge about $5000 a head for the service.
Unsurprisingly, conservatives are angry about illegal immigrants. Many Arizona residents feel betrayed by a perceived failure to address the influx of undocumented migrants. On signing the bill, Governor Brewer said it "represents another tool for our state to use as we work to solve a crisis we did not create and the federal government has refused to fix."
The bill has also provoked a distinct sense of disappointment from Hispanics that Obama has not done anything about the issue, despite election promises to work for immigration reform. Hispanic Republicans in Arizona issued a press release condemning the bill as an attack on civil rights when it was introduced but noted that they ultimately held the President responsible: "Obama promised Hispanics that he would pass immigration reform within 90 days of his presidency."
Swinging Hispanic voters were an important element of Obama’s 2008 election win and many feel betrayed by Obama’s apparent disregard of an issue which affects so many families living in the US. Democrat Congressman Luis Gutierrez, who was arrested at the May Day protests, slammed the Arizona law — but has been equally critical of the Obama Administration’s failure to make good on its campaign promises.
The movement of people across the US-Mexico border has intensified enormously in the 15 years since the North American Free Trade Agreement (NAFTA), which changed the economic landscape for many young Mexican and Central American workers. But as always, there are short-term political considerations, like the mid-term elections. SB 1070 landed on Jan Brewer’s desk in the middle of the Republican primary for the Senate, pressuring candidates such as John McCain to vote for SB 1070 — and pressuring Brewer to follow suit. No Republican wants to alienate the conservative heartland, and the race card is a reliable trump.
Brewer was not elected Governor; she inherited the role from Janet Napolitano when the latter was promoted to Homeland Security in January 2009. Napolitano was the veto on many proposed anti-immigrant laws and this legislation is seen as a rebuke to her administration. But it is also being seen as a test of Brewer’s mettle.
To make matters more urgent, on 27 March, three weeks before the legislation arrived on Brewer’s desk, Robert Krentz, a 58-year-old rancher, was killed on his property 30 kilometres from the border; the perpetrator was widely assumed to be an illegal immigrant and/or drug smuggler. The vast majority of those entering the US without papers are unarmed and not involved with the drug trade. But a few visible cases are enough to stoke the popular perception that anyone who has nothing to hide would not come in through the back door — forgetting that for most Mexicans and Central Americans the front door is firmly closed.
The controversy over SB 1070 is reminiscent of 1994’s Proposition 187, a proposed California law which would have stripped illegal immigrants of access to healthcare and education and enforced a system of mandatory checks on the status of "suspected immigrants".
That law prompted a national outcry and was challenged in the federal court, but it had a flow-through effect: then-president Bill Clinton responded by strengthening the Californian border with Operation Gatekeeper, which tightened security along that section. Gatekeeper also put added pressure on Arizona as it pushed immigrants east into more dangerous desert terrain. (Incidentally the former director of Operation Gatekeeper, Alan Bersin, was recently appointed Commissioner of US Customs and Border Protection by Barack Obama.)
Proposition 187 was found to be unconstitutional, and SB 1070 is likely to meet the same fate. Legal challenges are mounting, and so are political responses. There has been a push for other states (and individual consumers) to boycott Arizona. The city of Tucson is even suing the state of Arizona in an attempt to stop SB 1070. But while it is possible to halt racist legislation with a few pro bono lawyers, it will take more to ease the pressure on Obama’s Administration, or to allay the escalating tension in Arizona.
Militarisation of the border creaked to a low gear after Obama’s election, though the fence is still haphazardly there and Republicans are now calling for the National Guard to patrol it. Border militarisation is an expensive answer — which under Bush did more for contractor Boeing’s stocks than it did for controlling immigration.
Obama will have to come up with a more creative solution. But the Tea Party movement has shown that conservative activists are ready for a fight. The Right is just as organised and media-savvy as civil rights organisers, and he is not going to be able to avoid the issue forever.
Kevin Rudd faces a similar challenge if he wants to deal with media reports of "inundations" of asylum seekers and the pressure from racist elements in Australian society. A lack of imagination has driven him to rehash Howard policy and re-open mainland detention centres despite worldwide outrage at the human rights violations therein.
The last three Australian elections were fought partly on immigration, and unless Rudd comes up with a better answer we can look forward to another one later this year. This will give the Liberals a home ground advantage — but the shafting of the bottom rung of society for the sake of political expediency is becoming familiar territory to all of us.
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