What's Different Today For Ariz. Illegal Immigrants?
ROBERT SIEGEL, host:
So what has actually changed between today and yesterday if you're an illegal immigrant who lives in Arizona? Here to help us answer that and some other questions about Arizona's partially blocked immigration law is Professor Cristina Rodriguez of the New York University Law School. Welcome to the program.
Professor CRISTINA RODRIGUEZ (Law, New York University): Thanks for having me.
SIEGEL: And a federal judge has enjoined some provisions of Arizona SB1070, but others are intact. So what's different? What's changed?
Prof. RODRIGUEZ: Not that much has changed as a legal matter because the primary provisions that are going into effect don't really affect the day to day lives of most unauthorized or legal immigrants that are not the ones that are instilling a great deal of fear. So there's probably a moment of relief because the main concern has been enjoined, and that's the questioning and the creation of crime for unlawful status.
SIEGEL: But, I mean, there are provisions of the law that remain in effect. What do they do? What do they say?
Prof. RODRIGUEZ: The primary provisions that remain in effect are those that basically create a crime out of smuggling and allow the government to prosecute people who transport those who they know or have reason to know are in the country unlawfully. And the prohibition on picking up a day laborer who might be standing on the side of the road, if it impedes traffic.
And those primarily affect not just non-citizens, but anyone seeking to employ them or work with them in some capacity.
SIEGEL: Since what was so controversial here was what a police officer might be required to do or might be required to ask, could you explain something? If someone is in the country with no visa and has no legal basis for being here, is that a crime? Is it a violation of federal law? What is it punishable by?
Prof. RODRIGUEZ: Unlawful presence is not a crime. There's a civil penalty attached to that. But unlawful entry is a federal misdemeanor. And unlawful entry after having been formerly deported is actually a federal felony.
SIEGEL: And a police officer typically is enjoined from asking about that might ask might not, what's the law?
Prof. RODRIGUEZ: No, the police officer can ask about someone's status as long as that questioning doesn't detain the person longer than necessary. What is concerning about the Arizona law to the federal government and to the judge in this case is the mandatory nature of the questioning. The concern is that the volume of requests that the federal government would get to check status would be far in excess of its capacity if every single police officer in every circumstance were practicable had to ask this question.
SIEGEL: On the other hand, isn't there a danger in saying if we don't want to compel local law enforcement to help enforce the law, it seems a parallel to saying we don't want everyone turning in every violator of every anti-drug law we have in the country because all the prisons are full already.
Prof. RODRIGUEZ: I think that the main issue when it comes to the enforcement of immigration law is that that gap between the law on the books and the government's enforcement of it has grown too wide in the public's point of view. And so there does need to be a solution to that because it is eroding people's trust in the government. And it's poisoning the immigration debate as a whole because people don't trust the government to be acting in good faith.
But it's also important to recognize, in the context of that debate, the importance of discretion in law enforcement and that that's an inevitable feature that will always be present to some degree or another. It's just that the gap has grown so large states have felt like they need to come into the breach and that may explain the widespread public support for Arizona type measures. The desire to see the federal government actually do a better job of enforcing the law.
SIEGEL: Well, Professor Rodriguez, thank you very much for talking with us.
Prof. RODRIGUEZ: Thank you.
SIEGEL: Cristina Rodriguez is professor of law at NYU. She joined us from our New York bureau.