Arizona Sheriff Arpaio To Unleash 800 Deputies On Undocumented Immigrants

New America Media, News Report, Text and Photos: Valeria Fernández , 

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.

The 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 two-hour training.

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 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 immigration suspicion.”

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.”