It’s Here: An Arizona-Like Immigration Enforcement Proposal

Details: 04 February 2011

Not unexpectedly, an "Arizona-like" immigration enforcement measure is among the more than 700 legislative bills and resolutions introduced in the 2011 regular session of the Nebraska Legislature.

The fact notwithstanding that immigration law and policy are first, foremost and almost exclusively a federal jurisdiction and responsibility, LB 48 proposes the "Illegal Immigration Enforcement Act." It is not identical to Arizona’s infamous S.B, 1070 (as amended a few days later by H.B. 2162) but it is copycat enough to raise the concerns and issues that dog the Arizona law.

The fact notwithstanding that significant portions of the Arizona law have been blocked by a U.S, District Court on grounds they violate the constitutional principle of federal pre-emption, LB 48 includes several of the Arizona-like provisions that are temporarily enjoined in that jurisdiction pending appeals and more extensive litigation. Apparently, any thought that it would be prudent to wait and see what happens to Arizona in the federal courts was deemed a secondary consideration, at least insofar as introducing legislation is concerned, to showing Nebraska as just as much a "tough-on-the-illegals" state as Arizona.

Generally speaking, LB 48 proposes that the Legislature do three things.

First, mandate that "a peace officer" determine the immigration status of a person lawfully stopped, detained or arrested whenever "reasonable suspicion" exists that the person is unlawfully present in the U.S.

The Arizona law mandates a "reasonable attempt" to determine immigration status and only "when practicable" as well. LB 48 doesn’t have those hedge words.

In addition, LB 48 also mandates that "the custodial authority" determine immigration status whenever "reasonable suspicion exists that an incarcerated person is unlawfully present in the United States." The mix of circumstances is confusing.

If a check into immigration status would determine that a person is unlawfully present, the peace officer or the custodial authority would be required to immediately notify the U.S. Immigration and Customs Enforcement agency or the U.S. Customs and Border Protection agency.

Concern about racial profiling being an element of "reasonable suspicion" received considerable attention in Arizona. The law there says that law enforcement officers "may not consider race, color, or national origin… except to the extent permitted by the United States or Arizona Constitutions." LB 48, on the other hand, says that "a peace officer’s reasonable suspicion shall not be based solely upon a person’s race, color, religion, sex, or national origin." Apparently, those characteristics can be factors, just not the only factors in assessing reasonable suspicion. That’s questionable policy.

In Arizona, the follow-up legislation, H.B. 2162, took out the word "solely." LB 48 uses it. This provision warrants careful scrutiny.

A second thing that LB 48 would have the Legislature do is create five new state crimes relating to federal immigration law or policy.

It would become a Class II misdemeanor for any person in Nebraska not to be registered as alien if required to be registered pursuant to federal law. It would become a Class V misdemeanor for any person to fail to carry a federal certificate of alien registration or a federal alien registration receipt card when required to do so pursuant to federal law. It would become a Class I misdemeanor for any unlawfully present person to work as an employee or independent contractor in Nebraska. It would become a Class I misdemeanor for any person to "knowingly or recklessly conceal, harbor, transport" or "move" an unlawfully present person, or to attempt to do so, for the purpose of shielding the person from detection. And, it would be a Class I misdemeanor for any person to knowingly or recklessly encourage or induce a person who is unlawfully present in the U.S. to come to or reside in Nebraska."

Five new crimes; at what point does putting even more on the plates of law enforcement officers in Nebraska have negative repercussions for public safety?

A third thing that LB 48 would do is prohibit any official, agency or political subdivision in this state from limiting or restricting enforcement of federal immigration laws to less than the full extent permitted by federal law.

What’s more, the final paragraph would have the Legislature exhibit arrogance by declaring that it would have passed the Act and every provision, section, subsection, sentence, clause, phrase or word of it irrespective of anything unconstitutional about it.

It will be interesting to follow how the Legislature, in particular its Judiciary Committee, deals with a bill that has all the issues and confusion that this one has.

And finally…...the Nebraska Catholic Conference, under the direction of the Diocesan Bishops, has adopted a position of opposition to LB 48, because it is flawed and confusing legislation that will, despite intentions to the contrary, create distrust and misunderstanding among immigrants and communities, cause unwarranted public expenditures and fail to uphold the common good.