Sherriff Arpaio to unleash 800 deputies on undocumented immigrants
- Arizona Sheriff Arpaio to Unleash 800 Deputies on Undocumented Immigrants
By Valeria Fernandez
New America Media
February 15, 2010
PHOENIX -- Arizona Sheriff Joe Arpaio announced last week that he would
train 881 of his own deputies to arrest undocumented migrants in the course
of their normal duties.
ArpaioThe announcement by the Maricopa County sheriff has come under fire
from some legal scholars who argue he would be acting beyond the scope of
the law and immigrant advocates who say this would further weaken the
immigrant community's tenuous relationship with law enforcement officials.
Arpaio's controversial immigration sweeps of Latino neighborhoods led to
claims of racial profiling. In October, the federal Department of Homeland
Security (DHS) revoked an agreement, known as 287(g), that allowed 160 of
his officers to act as immigration agents.
Now, Arpaio says he can do this under his own authority. He has enlisted the
help of Kris W. Kobach, a University of Missouri law professor, who was an
advisor to former attorney general John Ashcroft during the Bush
administration. Kobach, who works as an attorney for the Immigration Reform
Law Institute, was paid an undisclosed amount of money to oversee the
Kobach argues that local police have "inherent authority" to stop, question
and arrest people in order to enforce immigration law.
He based his legal advice on a hotly contested 2002 Office of Legal Counsel
(OLC) memo issued during Ashcroft's tenure.
Several legal scholars contend the opinion is flawed.
"Legally, it is highly suspect because there's a long tradition on the other
side of the opinion, " said attorney Muzaffar Chishti, director of the
Migration Policy Institute (MPI), referring to a series of OLC memos from
1989 to 1996 that state the contrary. "Secondly, if there was an inherent
authority to enforce immigration law, then there would be no need for
Congress in 1996 to enact what's now known as 287(g). If they had it, why
would you need it?"
Chishti said that Congress has historically assumed that it has plenary
power on immigration enforcement.
"It doesn't mean that states can't play a role, but that role is highly
limited," he said.
Immigration SweepsImmigration and Customs Enforcement (ICE), the enforcement
arm of Homeland Security, has distanced itself from Arpaio's new plans in a
recent statement, which stated in part: "Sheriff Arpaio's efforts to conduct
immigration enforcement actions do not derive from any ICE-delegated federal
authority. ICE has no engagement in MCSO's [Maricopa County Sheriff's
Office] operations outside of our standard procedures of responding to a
local law enforcement agency's request for assistance."
Arpaio's critics say his latest announcement is in keeping with the
aggressive tactics employed by his deputies. "There's nothing new in this,"
said Jorge Mendez, a local community activist. "Those who were trained under
287(g) and those who weren't were questioning people anyway."
"You're opening Pandora's box," said Omar Jadwat, a staff attorney at the
American Civil Liberties Union (ACLU) Immigrants' Rights Project. He said
Arpaio's action is sending a message to police officers on the streets that
they have broad power to detain and arrest solely on suspicion that people
are illegally in the country.
"When you have local cops getting some short video training and making
decisions about someone's immigration status, it is hugely dangerous because
it is a complex and difficult area of the law," he said.
Legal advisor Kobach is known for litigation involving immigrants. Kobach
filed suit in Kansas, California and Nebraska challenging those state's
policies of offering in-state tuition rates to undocumented students. He
also represented Hazelton, Penn., when its harsh anti-immigrant policies
were challenged in court. Kobach, a law professor at the University of
Missouri-Kansas City, is now running for secretary of state in Kansas.
Kobach has also worked with the Federation for American Immigration Reform
(FAIR). FAIR was identified by the Southern Poverty Law Center as a hate
group financially supported by the Pioneer Fund, a group with an alleged
white supremacist agenda.
"We find it absolutely outrageous that Sheriff Arpaio has chosen an
individual with an obvious bias, who works on behalf of an anti-immigrant
group to conduct training on immigration law and ethnic profiling," said
Bill Straus, Arizona Anti-Defamation League regional director.
"Those claims are absolutely false," said Kobach, in his defense. "The
Southern Poverty Law Center engages in slander against people that oppose
illegal immigration. They fail to mention that many of the people I defend
in court are Hispanic. They happen to be Hispanics that believe the laws
need to be enforced."
This is not the only controversy Arpaio is embroiled in. A federal grand
jury is investigating allegations of abuse of power by his office unrelated
to his immigration enforcement. His agency is also the subject of a federal
Department of Justice (DOJ) investigation of civil rights violations. His
office could also face judicial sanctions for destruction of evidence in
connection with an ACLU lawsuit that alleges his deputies engaged in racial
profiling during his immigration sweeps.
"This is going to magnify what he has been doing during the sweeps," said
Shana Higa, a criminal defense attorney who has been monitoring Arpaio's
immigration sweeps in Latino neighborhoods for the last two years. Higa
believes this has made some Latinos afraid report crimes to the police,
making them more vulnerable to criminals.
Despite criticism about his tactics and associations, Arpaio continues to
defend his policies saying that since 2007 his deputies have detained 30,000
undocumented immigrants, often for something as simple as a traffic stop,
and turned them over to immigration.
In fact, the great majority of those arrests could be attributed to other
law-enforcement agencies in Maricopa County, including the Phoenix and
Scottsdale police departments.
But Arpaio is trying to go further, according to legal experts.
"The difference is that it looks like they claim they have the right on
their own to hold someone up without the ICE detainer," said Chishti. "What
will be challenged is that they can't just hold people on the basis of an
If Arpaio's deputies could do that, the Arizona state legislature wouldn't
be trying to pass a local law that allows police to arrest undocumented
immigrants, said Alessandra Soller Meetze , director of the Arizona ACLU. SB
1070 would criminalize undocumented immigrants for trespassing in the
territory of the state.
"If it passes, Arizona would be the first state in the country to make this
specific state crime of immigration trespassing," said Meetze. "We still
think the Constitution prohibits Arizona from passing that law."
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