Supreme Questions for Arizona (and us, too)

While the Supreme Court mulls the constitutionality of Arizona’s far-reaching 2010 immigration law, Nevadans can learn a thing or two about the issue’s nuances.

The backdrop: In Nevada, there are an estimated 100,000 unauthorized immigrants, compared with Arizona’s 360,000. The nation’s overall number of such immigrants is 11.5 million, 6.1 million of whom are from Mexico, according to the U.S. Department of Homeland Security.

From there, the issue gets murkier, starting with the term “illegal immigration,” says Michael Kagan, UNLV law professor and co-director of the university’s Immigration Clinic.

“To be unlawfully present in the U.S. is not a crime,” he says. Federal law calls for deportation, not criminal charges. Arizona’s law makes being here without authorization a crime, which may not fly with the justices, given that the Supreme Court has historically been reluctant to let states exceed federal law on immigration issues. The Arizona law also makes it a crime for unauthorized immigrants seek to employment in Arizona, whereas federal law only places criminal sanctions on the employer, not the employee.

However, in oral arguments last week, the justices seemed sympathetic to what has been the most controversial part of the Arizona law: a provision that allows authorities to ask for proof of citizenship in a traffic stop, based perhaps on racial profiling. In addition to the equal-treatment issue the provision poses, it brings up a constitutional due-process question: How long can authorities detain them while confirming their immigration status? Ten minutes? An hour? Two months?

Add to that conundrum the fact that law-enforcement agencies nationwide—including the Las Vegas Metropolitan Police Department—already check immigration status upon charging someone with a crime. “Federal law allows asking,” Kagan says, “but it’s not clear what you can do next.”

Immigrants whose citizenship is challenged and who have clean criminal records may contest their resident status in immigration court, which can take several years, and they are usually set free on a small bond during that process.

Given the questions surrounding the Arizona law, it comes as some relief that Nevada lawmakers haven’t shown a big appetite for passing a similar one.

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