GOP plan to let voters give AZ police and courts power to enforce immigration laws advances

Discarded shoes lie in the dirt at a vehicle barrier which serves as the U.S.-Mexico border fence on Dec. 10, 2021 near Yuma. Photo by John Moore | Getty Images

Voters may get a chance to decide whether Arizona police officers should be able to arrest people they suspect of illegally crossing the state’s southern border and Arizona courts should be able to order their deportations.

On Wednesday, Senate Republicans took the first step in sending a package of border policies to the November ballot.

The GOP majority in the state legislature has made addressing illegal immigration a priority this year in an effort to respond to voter concerns, which for the first time since 2019 rank immigration at the top of the list. Party leaders championed proposals that take a punitive approach, including one to make crossing the state’s southern border a crime punishable with jail time and another that sought to expand the use of E-verify and bar undocumented people from accessing local resources

But, faced with Gov. Katie Hobbs’ veto stamp and one rejection already on record, Republicans are looking to voters to approve what the governor won’t. 

“We are putting border security policy to the voters,” said Senate President Warren Petersen during a Wednesday afternoon news conference. “The voters are going to get the opportunity to decide border security issues and safety for the state — they’re going to be able to decide to keep Arizona safe.” 

What’s in the proposal?

House Concurrent Resolution 2060 is a wide-ranging combination of legislation that previously failed, and includes revised versions of two high priority proposals backed by Petersen and House Speaker Ben Toma. 

Originally, the resolution sought to broaden who has to use the federal online database, E-Verify, which helps businesses verify employment eligibility. The initial proposal, backed by Toma, would have required use of E-Verify in labor sectors that are currently exempt, such as the construction industry and for entrepreneurs. It would also have imposed $10,000 fines against employers who failed to use the database and were found to have undocumented immigrants on the payroll. 

But Toma’s proposal faced intense criticism from the business community behind the scenes, and Petersen blocked it from moving forward in the upper chamber. 

Dubbed the “Secure the Border Act,” the new version includes some elements from Toma’s original proposal, though the punishments for employers who hire undocumented workers were removed, as were provisions mandating more businesses use E-Verify. Instead, the revised proposal focuses on penalizing undocumented workers, making it a class 6 felony to submit false information for the purposes of evading detection via E-Verify. 

Additionally, a person who knowingly applies for a state or local public benefit with false documentation would be guilty of a class 6 felony, potentially locking undocumented Arizonans out of food banks or low-income health clinics that receive state funding. Agencies in charge of administering public benefits would be required to verify the eligibility of applicants through the federal government’s Systematic Alien Verification for Entitlements (SAVE) online service, which helps identify a person’s immigration status and eligibility for public benefits or licensure. 

Also included in HCR2060 is a vetoed proposal that Petersen co-sponsored that would give the state unprecedented authority to enforce immigration law — which the courts have consistently ruled is solely under the purview of the federal government. 

We should not forget the specter of SB1070 and the stain it left on our state’s economy.

– Lorena Valencia, Arizona Hispanic Chamber of Commerce board member

The legislation, which is modeled after a Texas law that is currently tied up in the courts and will almost certainly be decided by the U.S. Supreme Court, would criminalize crossing Arizona’s southern border anywhere except at a port of entry. Every police officer in the state would be empowered to arrest people they suspect crossed the border illegally, and Arizona judges would be able to issue orders of deportation. 

The legislation sets no parameters for how that would happen. There is nothing defining the evidence police officers must have before they can arrest people, where in the state arrests can be made or even if officers must witness the border crossing themselves. 

People arrested under suspicion of crossing the border illegally would face harsh punishments. A first time offense carries with it a misdemeanor, punishable with up to 6 months in jail, while those with previous convictions face a steeper sentence of a class 6 felony. Those convicted of any violation under the proposal must spend a minimum of 30 days in jail. 

While the measure allows an Arizona judge to issue a deportation order before a first-time offender is convicted of a violation if they agree to return to Mexico, such an agreement isn’t required to move forward with removal proceedings. And refusing to comply with a deportation order can result in a class 4 felony. 

Recipients of the federal Deferred Action for Childhood Arrivals program, which blocks the deportation of eligible candidates, and those who have been granted asylum are exempted from the punishments in the bill. But immigrant advocates worry that, because arrests and deportation orders can happen before an asylum claim is approved, the law violates the rights of migrants seeking refuge. 

The proposal acknowledges that the Texas law, which the Arizona version is modeled after, is still being challenged in the courts. A provision in the resolution delays the ability of police officers to arrest migrants and judges to deport them until 60 days after the Texas law is finally enforced, or 60 days after the U.S. Supreme Court overturns its ruling in the case against SB1070 that determined only the federal government can carry out immigration law. 

The resolution also addresses increasing concern over fentanyl overdoses in the state by creating an entirely new category of felony offense for people convicted of selling fentanyl that resulted in someone’s death. Anyone who knowingly sells fentanyl, or a narcotic that contains fentanyl, to another person who later dies from the drug is guilty of a class 2 felony. The proposal echoes one that failed to move forward last year, which would have made punished fentanyl dealers linked back to an overdose death with the death penalty. 

And while the minimum punishment for such a conviction would be 4 years in prison and the maximum is 10 years, crimes that include deaths caused by fentanyl would automatically increase sentences by 5 more years. 

In an apparent nod to Democrats eyeing a legislative majority in November, Republicans added a caveat to the proposal that allows GOP lawmakers to defend its provisions in court even if they lose control of the legislature. It authorizes the leaders of the majority and the minority party in the legislature to argue in favor of the law’s constitutionality in court. In recent years, Petersen and Toma have taken up an increasingly litigant role, defending laws they helped pass in court, including abortion restrictions and a transgender athletic ban, after Arizona Attorney General Kris Mayes, a Democrat, refused to. 

Community members decry echoes of SB1070, highlight economic impacts

Brandishing signs denouncing the resolution’s potential impact on taxpayers, opponents of the legislation gathered at the Legislature hours before the measure was debated to urge lawmakers to reject it. Sen. Flavio Bravo criticized the resolution for its similarity to SB1070, the state’s infamous “show me your papers law,” that allowed police officers to detain Arizonans during routine traffic stops to verify their legal status. Immigrant rights advocates have sounded the alarm over Republican efforts to once again put federal law in the hands of local law enforcement, warning that it will only result in a similar increase in racial profiling. 

Bravo noted that the state’s budget has yet to be finalized, and lawmakers have so far failed to resolve Arizona’s looming $1.3 billion financial cliff. Supporting legislation that is bound to exacerbate that by landing the state in the courts under constitutional challenges is the wrong move, the Phoenix Democrat said.

“Our state has no business implementing this type of out-of-touch and extreme measure, while struggling to stabilize the state’s budget deficit,” he said. 

In 2012, the U.S. Supreme Court struck down three of four provisions in SB1070 and the state shelled out more than $1 million to defend the law.

Lorena Valencia, a board member of the Arizona Hispanic Chamber of Commerce, noted that Arizona already has a bevy of criminal and fraud deterring laws that accomplish what the resolution is attempting to do in a less threatening way. And the use of E-Verify is already mandated under Arizona law in most employment sectors. 

The only thing that the resolution accomplishes, Valencia said, is to instill a sense of fear in the Latino community and pose negative consequences for the economy. 

“We should not forget the specter of SB1070 and the stain it left on our state’s economy,” she said.

If you look at me right now, how would you determine my point of entry to Arizona?

– Mario Montoya

Laura Clement, a member of Mormon Women for Ethical Government who also teaches English as a second language, added that Latinos make up a sizable percentage of the state’s workforce, and pushing them out with hostile legislation would be devastating, especially when Arizona continues to grapple with a worker shortage. The U.S. Chamber of Commerce estimates that there are only 71 workers available for every 100 jobs in Arizona

For Mario Montoya, the threats in the proposal are especially terrifying. While his status as a DACA recipient safeguards him from deportation, that protection isn’t guaranteed. That program is currently preserved while litigation against it continues, but the case is likely to be considered by the U.S. Supreme Court. And while the high court has previously upheld the program’s legality, the conservative supermajority that controls the court now has shown it cares little for established precedent. 

Montoya, who now works with Aliento, an advocacy group for undocumented youth, added that the proposal has the potential to undermine asylum requests like the one his father made when he was a teen that was crucial for ensuring his family safety. And, he said, its parameters for how to identify people who cross the border illegally shouldn’t be left up to individual police officers to decide. That leaves too much up to chance and could open the door for racial profiling, he said. 

“If you look at me right now, how would you determine my point of entry to Arizona?” Montoya asked. “Would you assume that I used a lawful port, maybe because of the suit that I’m wearing, maybe because of my English? Or does my appearance lead you to believe otherwise? These are the types of judgments that we’re going to be passing to our state officials to make.”

A proposal in the works, still some missing pieces

GOP lawmakers, flanked by law enforcement officials and party members, justified the sprawling immigration measure as an effort to preserve public safety, and sought to link migrants with crime. 

“Many of these individuals have been engaged in serious crimes: sex trafficking, fentanyl trafficking, rape, murder, high speed chases, crashes and other atrocities that have endangered the lives of Arizona citizens,” Petersen said. “Some of these individuals have even been identified as known terrorists from enemy nations who’ve taken advantage of our porous borders.” 

Sen. David Gowan, R-Sierra Vista, said that the state has a responsibility to step in when federal officials don’t. 

“When the federal government fails in its duties to protect its citizens and its borders, then those duties fall to us in the state,” he said. 

“The Biden administration has failed,” echoed Arizona Republican Party Chair Gina Swoboda. “We’re going to have a presidential election and the people will determine at that point whether or not they feel it’s a good idea to leave the border open, but in the meantime we have a responsibility to interdict the people that are crossing over outside the ports of entry.”  

When the federal government fails in its duties to protect its citizens and its borders, then those duties fall to us in the state.

– Sen. David Gowan, R-Sierra Vista

Republicans across the country have lashed out at the federal government’s immigration policies ahead of the November election, in an effort to characterize the Biden administration as negligent. Ignored, however, is the fact that a stringent bipartisan border bill was on the verge of passage earlier this year, before former President Donald Trump convinced Republicans to vote down the measure so he could campaign on the issue.

Also criticized at Wednesday’s news conference was Hobbs, who Petersen blasted for expressing repeated disapproval of the federal government’s border approach but failing to back up that disapproval by signing GOP bills. In a post on social media site X, formerly Twitter, the Democrat reiterated her displeasure with how the Biden administration has responded, but said the resolution being considered by Republicans is not right for the state. 

“I’m frustrated by the federal government’s failure to secure the border, but anti-business initiatives that demonize our communities is not the solution,” she wrote. “HCR2060 will kill jobs, cost tens of millions of dollars and divert law enforcement resources from stopping crime.” 

Yavapai County Sheriff David Rhodes, a Republican who oversees an area more than three hours away from the Arizona-Mexico border, told reporters that the proposal still leaves a lot of questions unanswered, but said he’s confident lawmakers will address them. 

While Rhodes and a few other Republican sheriffs have become fixtures at border security news conferences held by Republican lawmakers, no law enforcement entities — including the Arizona Sheriffs Association, which Rhodes is the president of — have registered official support of HCR2060 or its legislative predecessors. The only prosecutor’s office officially backing the law is the Maricopa County Attorney’s Office.

Among Rhodes’ concerns is the complete lack of funding in the proposal for already strained law enforcement budgets and the absence of guidance for how to process women and children. And the requirement to hold migrants found to have crossed the border illegally for 30 days may also be difficult for some law enforcement agencies to meet, he said. 

An amendment offered on the measure would have given the Arizona Department of Corrections Director the ability to accept convicted or unconvicted people if law enforcement agencies weren’t able to hold them. The amendment wasn’t adopted.

“There’s not a lot of answers at the moment, we’re working through it,” Rhodes said. “But I have confidence in our elected officials, I have confidence that they’re going to continue to work with us to put together something that is usable.”

In response to concerns from community members that the authority given to police officers to investigate the legal status of Arizonans could result in racial profiling cases, Rhodes said that law enforcement officials are already trained to search for “probable cause.” 

The law has two requirements to justify an arrest: that a person crossed the border between ports of entry and that they don’t have a lawful legal status. That means police officers would need to collect evidence of both pieces to ensure an arrest is justified. But evidence, Rhodes said, isn’t limited to personal observations. It can also include things like footage from border surveillance equipment or eyewitness testimony. 

But, despite Rhodes’ assertions that police officers would employ strategic evidence-gathering approaches, and that law enforcement officials view the proposal’s provisions as being limited to the border region, nothing in its actual language requires probable cause before an arrest can be made or delineates that arrests must be confined to the state’s border areas. 

HCR2060 will put our churches and our church members in that same position. No Arizonan, regardless of their documentation status, should fear going to worship or pray.

– Bishop Jennifer Reddall, Episcopal Diocese of Arizona

On Wednesday, Petersen did not immediately dismiss the possibility of arrests being made far away from the Arizona-Mexico border, positing that an officer further inland might obtain video footage of someone crossing the border. Unlike SB1070, which allowed police officers to question the legal status of anyone anywhere in the state, the Republican from Gilbert said, the resolution is focused specifically on violations that occur in the border region. 

“This is truly a border security bill. It is focused on evidence at the border. Does that mean a police officer from Gilbert is going to ask you for your papers? No, that’s not what that means,” he said. “The only way that I could think of that could happen is if that officer obtained video evidence.” 

But Senate GOP spokeswoman Kim Quintero seemed to concede that some people will be arrested without probable cause, telling the Arizona Mirror that prosecutors will weed out cases in which there is insufficient probable cause instead of taking them to court. 

When asked why lawmakers didn’t explicitly codify a requirement to obtain probable cause in the measure, despite ample and repeated concerns from immigrant advocates that its broad language could result in racial profiling, Petersen said not every detail needs to be covered in legislation — and the resolution is still being worked on. 

Lawmakers discuss racial profiling concerns

Over the span of nearly four hours of public testimony, lawmakers in a joint committee hearing that stretched into Wednesday evening debated the validity of racial profiling concerns voiced by immigrant advocates and community members. 

Bishop Jennifer Reddall of the Episcopal Diocese of Arizona shared how, while SB1070 was still being enforced, police officers often attempted to arrest parishioners leaving Spanish language church services. She said she worried what would happen if Arizona voters greenlit the new resolution, with what she views as a similar potential to result in racial profiling. 

“HCR2060 will put our churches and our church members in that same position,” she said. “No Arizonan, regardless of their documentation status, should fear going to worship or pray.” 

The first iteration of the proposal that makes it a state crime to cross the border between the ports of entry included exceptions where arrests could not be made, including at churches and schools. That bill, which required Hobbs’ signature to become law, earned her veto stamp instead, and the new version added to the resolution doesn’t include the same safeguards. 

Rep. Alexander Kolodin, R-Scottsdale, pressed Reddall on her comparison to SB1070, saying the new law doesn’t include any language that directs police officers to make arrests based on a person’s ethnicity. SB1070 also didn’t include any such language. 

“You’re talking about language, accent, color of skin. I don’t see any of that in the bill,” Kolodin said. 

Reddall responded that, unless the proposal requires officers to be at the border itself, she was unsure how else they would suspect a person is in Arizona unlawfully.  

“I don’t see it in the bill, but I don’t understand how it could be enforced without those things,” she said. 

Rocky Rivera recounted an emotional story of his father breaking down after being stopped by police officers, despite being a legal citizen and a veteran who knew the supervisor in charge of those who detained him. Rivera added that he, too, has been the victim of racially motivated traffic stops and implored lawmakers to reject the resolution, which he said would only serve to worsen the situation for Arizona’s minorities.

”For far too long, Black and Brown communities have been subjected to unfair targeting and discrimination by law enforcement,” he said. “I ask you to consider the indignities our community will suffer if this referral makes it to the ballot in November. I ask you to vote no today so that our people won’t need to live in fear just for being brown in Arizona.” 

I beg you guys, please understand what we are doing here today, what we’ve done in the past. Let's not do this again.

– House Minority Leader Lupe Contreras

House Minority Leader Lupe Contreras shared that his own father was once detained without justification and forced to stand on the side of the road for 45 minutes. With his voice shaking from emotion, the Democrat from Laveen told Republican lawmakers on the panel not to repeat the same mistakes and to consider the harm that the resolution could cause. 

“I beg you guys, please understand what we are doing here today, what we’ve done in the past. Let’s not do this again,” he said. 

Republican lawmakers were skeptical of claims that the law could lead to increased racial profiling. Kolodin said that Arizonans could still launch lawsuits against officers based on their federal rights under the 14th Amendment of the U.S. Constitution, which includes a right to equal protection and due process. 

But Rep. Analise Ortiz, D-Phoenix, pointed out that Republicans included in the resolution a civil immunity provision for state and local officials — including police officers — who enforce the part of the law that allows for the arrest and deportation of migrants. 

It’s unclear if that clause would preempt federal protections; Pinal County Attorney Kent Volkmer, who showed up to express support for the proposal, said it’s unlikely that state laws could supersede federal laws — the entire argument about the Texas law that must be found constitutional for this to go into effect hinges on whether state immigration laws can supersede federal laws — but that the provision could be used to defend officers in court against such lawsuits. 

Rep. Quang Nguyen, R-Prescott Valley, expressed offense on behalf of law enforcement officials and dismissed warnings that the law could lead to racial profiling, saying that migrants at the state’s southern border are from a multitude of countries. 

“Who do you profile, when they come in all different colors?” he asked. “This law is not going after skin color, it’s simply about illegal entries.” 

While it’s true that migrants are increasingly diverse, the majority of foreign-born Arizonans and migrants apprehended at the country’s southwestern border continue to be largely from Latin American countries. A 2022 report from the Migration Policy Institute found that as much as 61% of immigrants in Arizona were from Mexico, South and Central America and the Caribbean. And CBP data shows that just over half of all migrants who cross the U.S.-Mexico border between the ports of entry at the southwest region are from Mexico, Guatemala, Honduras and El Salvador. 

The proposal was approved by the Senate Military Affairs, Public Safety and Border Security Committee by a vote of 4-3, with only Republicans voting in favor. It goes next before the full Senate for consideration. It would also have to win support in the GOP-controlled House of Representatives to appear on the November ballot.

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