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Arpaio Immigration Raids Continue: Under What Authority?

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By Caleb Groos on October 16, 2009 1:32 PM

Sheriff Joe Arpaio recently lost his authority to enforce federal immigration laws on the streets of Maricopa County, Arizona. However, Arpaio's 12th publicized raid is happening as this piece is being written. Under what authority is he acting?

[Update: After this post on Friday, Arpaio's sweep reportedly netted 66 arrests, with 30 suspected illegal immigrants reportedly handed off to federal immigration officials.]

As per custom, Arpaio announced the location of the raid shortly before it began (so media and protestors (including Al Sharpton) might attend). Today's "crime suppression" is headquartered at the Maricopa County's District No. 3 substation at Dysart and Bell roads.

In the past, Arpaio's sweeps have typically taken the form of raiding workplaces or (like today) setting up shop at intersections and stopping people for traffic violations (no matter how small). Any drivers or passengers suspected of being an illegal immigrant would be detained and processed under Arpaio's authority from the feds. (This has angered many, particularly legal residents and citizens jailed for essentially not having their IDs on them.)

Here is a brief summary of how local law enforcement can become authorized to help Immigration and Customs Enforcement (ICE) enforce immigration laws, and how as of yesterday Sheriff Arpaio lost his authority to enforce immigration laws on the streets. (He retains the authority to enforce immigration laws within Maricopa County jails -- the source of the vast majority of immigrants the county has handed off to ICE.)

So what power authorizes him to round up suspected illegals today?

Initially, Arpaio claimed authorization under another federal law. The "law" which Arpaio cited as allowing interrogation or detention of those who exhibited "evasive, nervous, or erratic behavior," "dress or speech indicating foreign citizenship," or "presence in an area known to contain a concentration of illegal aliens" turned out not to be a law at all, but rather a very bad interpretation of law purportedly pulled off the internet by a Maricopa County staffer.

Though the federal government controls immigration law and enforcement, Arpaio now claims that Arizona state laws give him all the authority he needs.

What Arizona state laws is he talking about?

Though state law authorization to yank suspected illegals from cars at traffic stops seems doubtful, Arizona has seen the survival of state powers to enforce laws which happen to run close to immigration.

The two most important examples have been an Arizona state law criminalizing the hiring of undocumented workers, and Arizona's human smuggling law.

Last year, a federal appeals court upheld Arizona's E-Verify law (requiring employers to check immigration status of potential workers). The court ruled that this did not overstep federal immigration authority.

Arizona law also forbids smuggling humans across the border for profit or commercial purpose.

Both of these laws seem aimed at people other than the actual immigrants -- at employers and at human smugglers ("coyotes").

At least with the human smuggling laws, however, Maricopa County has successfully used them against the immigrants themselves by charging them with conspiracy to commit human smuggling. (That's right, conspiring to smuggle themselves).

With his street ICE authority now gone, all eyes are on what Arpaio will do with any immigrants he rounds up. He's indicated that he will call ICE officials and if ICE refuses to take suspected illegals, he will drive them 175 miles to the border and hand them off to border patrol agents.

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