Misunderstanding Arizona: II) the unfree foreigner

As mentioned in my earlier post, Arizona has enacted a new law, the SB1070, which requires foreigners but not US citizens to always carry an ID card on them as failure to do so constitutes a crime, and which allows any law enforcement officer during a legitimate stop of a person to check that person's immigration status if there is a "reasonable suspicion" that he or she is in the country illegally. The law has created an intense debate and several lawsuits. One of the main issues heatedly debated by the American public opinion has been the question of what constitutes a "reasonable suspicion", and how this cannot not result in racial profiling and in hassles especially for foreign-looking Americans. In that sense the SB1070 has been accused of being a racist law. The law - opponents claim - will deny (irregular) immigrants the "equal protection of the law" as mandated by the US constitution and make communities unsafer rather than safer. Regardless of the merits that this criticism might have, unfortunately no one seems to elaborate it enough or to bring the charge of racism or hostility towards foreigners (which seems to be a more appropriate term) against the very idea that underlies the law, namely that only a certain part of the population has to carry an ID card on them at all times lest to commit a crime. No one of the public opinion seems to question the basic fact that only foreigners be imposed such a burden. (Actually I came across one interesting and read worthy exception even though the author's reasons might be more connected to the effectiveness and racial profiling arguments, which I explored in my earlier post.) Could the reason for this be that SB1070 in many parts just repeats federal law? Indeed, many parts that SB1070 is criticized for are not that different at the federal level. So maybe rather than criticizing SB1070 it would be better to first examine what the federal law says before accusing Arizona of racism.

In the US, US citizens are not required to have or carry an ID card, and a national ID card system does not even exist. In the meantime, for foreigners, the Immigration and Nationality Act Section 264 (INA §264), as consolidated by 8 USC 1304 (e) and which goes back to the Alien Registration Act of 1940, (for an explanation, see here), foresees that:

"Every alien, eighteen years of age and over, shall at all times carry with him and have in his personal possession any certificate of alien registration or alien registration receipt card issued to him pursuant to subsection (d) of this section. Any alien who fails to comply with the provisions of this subsection shall be guilty of a misdemeanor and shall upon conviction for each offense be fined not to exceed $100 or be imprisoned not more than thirty days, or both."

Hence, be it according to federal law, be it according to the Arizonan law, the situation that is of our interest here is the same: Whereas US citizens under both legislations do not have the duty to have, let alone carry along an ID card, aliens do not only need to have an ID card, but they have to have it in their own personal possession at all times. More importantly, failure to do so does not just constitute a civil infraction sanctioned by some administrative fine, such as crossing a red light or speeding, but constitutes a misdemeanor, i.e. a crime. As such, I assume, it will result in an entry in the alien's criminal record. This seems like a huge imbalance of rights in favor of US citizens and like an obviously unequal treatment. I assume few people would disagree. Yet, can this sort of discrimination really be called racism?

People all over the world seem to accept the notion that foreigners be granted less rights than citizens in certain aspects. In that sense, few people would think that restricting voting rights to citizens constitutes racism. Yet, the reason for this is because the rights in question are political rights which by their very definition are reserved to people belonging to a certain group. But the problem with the Arizonan law and the US federal law that the former replicates is that none of them is about political rights. They are about rights that in American belief should safeguard an individual's life from undue interference from the government, and ensure that one be free to live his or her life. They are about privacy rights. This is also something that the German Minister of Interior Thomas de Maiziere explained to the European public when defending the US commitment to privacy protections. He was cited as explaining that:

"While Germans are perfectly comfortable with showing their ID cards with all personal data to a police officer, [...] the very idea of such a document is outrageous to Americans and Britons." (emphasis added)

And the engrained link between privacy rights and the opposition to ID cards was also confirmed by the US ambassador to the EU William Kennard when he explained in an interview,

"America is seen by some as not caring about privacy as much as those in Europe. But this portrayal is a caricature [..] When I arrived in Belgium a few months ago I was told that I had to have an identity card and that I would have to carry it with me everywhere. This is something that would be unthinkable in the US." (see page 7; emphasis added)

Yet, it is not unthinkable – not if you are non-American. And this is where the charge of racism comes in: Privacy rights and fundamental freedoms are conceived of as human rights and have their roots in the Enlightenment tradition that continues to shape both Europe and the US. As such, there is no legitimate distinction that can be made between citizens and non-citizens: If Americans don't want to be obliged to carry along an ID card as this might expose them to governmental tyranny and infringe on their fundamental freedom, then why do their representatives impose this on others? This is also in contradiction to the "Golden Rule", widely accepted by all major civilization as a compass to what can be considered moral, and which in its negative formulation states: "Do not do to others as you would not have them do to you." In that sense, it is precisely because of the very meaning Americans themselves attach to ID cards, whose rejection is perceived as a guarantee of their fundamental freedoms, that the Arizonan and the US legislation can be accused of racism: Why should foreigners not be allowed to lead a life free from undue governmental interference? Why is their private and undisturbed life not worthy of protection? Civil and privacy rights might be conceived of differently in different places, but they can't differ on the basis of what type of human being you are. Yet, this is what the current legal framework in the US – be it SB1070 or the INA §264 – does, and why it appears to be racist: it constitutes an illegitimate discrimination insofar as it restricts certain human rights to a certain category of human beings only. That such a discrimination has no foundation was also recently recognized by U.S. District Judge Susan Bolton when she blocked parts of the SB1070 before they could enter into effect, when she judged that the law "burdens lawfully-present aliens because their liberty will be restricted while their status is checked."

So let's be clear, defenders of Arizona are right when they say that for the most part, SB1070 just repeats federal law and that the harsh way in which Arizona is currently criticized is unjust. I agree, and I want to defend Arizona: its legislation might be considered racist, but we shouldn't apply double-standards. Everyone who accuses Arizona's legislation of racism, should also pick a bone with the related US legislation. It is a burden to have to carry an ID card on you at all times under the threat of criminal punishment, and it is not clear why this burden should be imposed only on a certain part of the population (especially since only an indiscriminate application of that law to everyone would make the law an effective tool for national security and in the fight against illegal immigration as seen in my earlier post).

Maybe some of you can find some reasons or don't think it is a burden to carry an ID card around, but in any case some people have the choice, while others don't. It is a pity that in the proud land of the free, some people are simply freer than others.

Misunderstanding Arizona: I) the flaw in the law

A lot has been said about Arizona in recent months due to its new law Arizona SB1070 which requests law enforcement officers to enquire the immigration status of foreigners "where reasonable suspicion exists that the person is an alien who is unlawfully present in the United States", while making it a crime for a foreigner to fail to carry proper immigration documentation. Supporters as well as non-supporters of the law have a point. Yet, - and even though part of the law is for the time being blocked by a US District Judge ruling - what seems to be insufficiently addressed by the public debate is that previous federal experiences should tell us that the logic of the law is too flawed to make it an effective tool in fighting illegal immigration: It has already been reported that a US citizen had been detained in Arizona before the law entered into force until his wife could recover his US birth certificate, thus proving his citizenship. Opponents of the law have rightly cited this instance to prove the hassle the law risks creating for foreign-looking Americans. This is a good start. Yet, the broader picture seems to be missing from the critique, as emphasis seems to be put more on the inconvenience SB1070 creates for a certain category of Americans, and on the danger of racial profiling rather than on how this instance should make us question the law's very effectiveness and its inherent dangers, not to mention the neglected new discourse that basically puts any foreigner under the presumption of being in the country illegally. (Indeed, people that are worried about racial profiling and are questioning the meaning of a "reasonable suspicion" seem to forget that the law entitles law enforcement officers to check the immigration status when there is a reasonable suspicion that a person is in the country illegally, not when there is a reasonable suspicion that someone is a foreigner. Maybe it is just my impression, but people seem much less worried about the risk that soon the existence of a reasonable suspicion that someone is a foreigner might be seen as reason enough to stop and search someone on the street. But to get back to the point…)

If the purpose of the SB1070 is amongst others to authorize and even promote law enforcement officers to identify illegal aliens – to stick to official US language that some people may perceive as being offensive - while carrying out their other duties, then one should wonder if it is not quite ineffective to require only foreigners to carry an identity proof. How do you know who is a foreigner? (Again, actually the question should be who is an illegal immigrant!) Of course, that must be easy: naturalized Americans will lose their accent the day of their naturalization, whereas there will always be something inherently weird or strange about illegal aliens that makes them easily identifiable, even if they were brought to the US at the age of 4 or 6 years, right? This sarcastic question might seem trivial, as statistically speaking the huge majority of foreigners will have an accent, and the huge majority of Americans will not and will fit in better with other Americans. Yet, what about the minority (how minor is it though?) that doesn't fit these statistics? Imagine you are in a car and get stopped by a mobile border patrol checkpoint because of a random check or because something seems suspicious. You are asked if you are a US citizen, some people in the car say "yes", others say "no", this being the only interaction. You'll get pulled over because of the "no" and the "no"-person will have to show his or her documents to prove his/her lawful presence in the country. Then you will drive away without the "yes"-person being checked. I know for a fact that this has already happened. True, if you are a US citizen, you can't be in the country illegally, but how do you know that the "yes"-person actually said the truth? Illegal immigrants, especially the longer they have been in the country illegally, are most likely to be good at blending in, and might pull off an "I am an American" without being one (even though impersonating a US person constitutes a crime). Will a "yes" betray the accent?

To put the problem in less anecdotal terms, before US citizens were required to have a passport when crossing the US border (or other acceptable documents, clearly identified by DHS, the Department of Homeland Security), people have been known to manage to enter the United States simply by making oral assertions that they were US citizens, or even by not doing anything except sitting in a car. (For official testimonies by the GAO see for instance this document or this. For an academic testimony and interesting analysis see here.) As it is with irregular immigration, it is hard to say how many of the 12 million undocumented immigrants have actually made successful use of these oral declarations of citizenship to gain access to the US. But the US has recognized this loophole in its border security when it introduced the Western Hemisphere Travel Initiative that imposes certain identification requirements on anyone who wants to cross the US border – US citizens included. Put differently, based on its experience at the federal level, DHS has already acknowledged that a system that does not require everyone to give evidence about their identity and citizenship is ineffective and insecure. 

But then, if irregular immigrants have been enabled to become irregular immigrants simply by lying when crossing the border, then why should they not be capable of staying irregular immigrants when asked by a police officer for their papers and they firmly maintain they are US citizens? It would be naïve to think that police officers, not trained for dealing specifically with immigration and border security issues, will never fall for wrongful statements of citizenship. And why should we not believe that some illegal aliens are actually good liars? In the end they did manage to somehow break the immigration law without having been caught so far! Admittedly, one might say that few illegal immigrants will successfully endure an encounter with someone checking their legality in the country. And the system might not be completely waterproof, but even if one of the 12 million "illegals" is not caught, then well, it doesn't really matter, since a majority still will. An imperfect system might still be better than no system. The harm is not huge. Is it?

But what about the other side of the coin? What if you actually are a US citizen, but law enforcement officers don't believe you? Also here a look at the federal level would be helpful, as it has already been repeatedly reported that US citizens have been detained in removal proceedings, and some were pretty close to, or have actually been deported to foreign countries. What seems incredible is widely documented and reported by cases as the one I briefly mentioned above, or by others such as this one or this. While official statistics seem to be unavailable, the latter source estimates that one US citizen is deported each day, and that SB1070 will most likely just exacerbate the problem. Another analysis, by University Professor Jacqueline Stevens who closely follows the actions of Immigration and Customs Enforcement (ICE, a US agency part of DHS), reports that in 2009 alone about 4000 US citizens have been detained in ICE detention (the ICE does not have the authority to detain US citizens). She has directly followed 30 cases where US citizens have been deported to a foreign country. Admittedly, how accurate these numbers and estimates are, is a matter of debate, but fact remains that the phenomenon does exist.

Even if the total number of US citizens wrongfully affected by ICE action might in the end be a relatively small number compared to the overall population of the Unites States, it nevertheless is "not a rarity". And one should not forget that, however rare, wrongfully deporting US citizens does not constitute a minor administrative error: It results in a complete disruption of that person's life, not only in economic terms, but also in terms of family and social life. It means being exiled to a foreign country. And then you have to add those "rarities" that are associated to "merely" wrongfully detaining US citizens in immigration proceedings for a prolonged period of time without them being deported. Is catching a few more illegal immigrants worth that cost? It should be clear that far from being a harmless immigration detention, immigrants are often held like criminals even though being in the country illegally – contrary to popular belief – does not constitute a crime but a civil infraction only. (Information and reports on detention conditions are easily retrievable through google with which you can make up your own mind.) Should such a system be called effective system or broken?

Given the drawbacks of the current system, namely the ineffectiveness of establishing who really is allowed to be in the country and who is not, one has to wonder if a law such as the SB1070 that aims at increasing ID checks is a wise decision. It is unintelligible why most people do not seem to really grasp this issue in its full dimension. As a wild guess, I'd say that as long as the majority of the US population can think "well, being wrongfully deported or detained won't happen to me", no one will question whether or not the effectiveness of the current legal framework makes it worth it.

What makes the current situation kind of tragic though is that if the US absolutely has to stick to its imposition on foreigners to have a certain form of identification on them at all times and if certain parts of the country feel the need to enforce this law by increasing ID checks, the flaw in the system could be remedied so easily. It would be remedied, if only US citizens were given an unmistakably nation-wide recognized form of ID with which to prove their citizenship that they would have to carry on them at all times. But this, despite the obvious benefits that this would have, seems too much of a sacrifice to ask of US citizens.

Let's hope they all know where their birth certificate is and no one questions its validity or contests that there is no biometric tie to the person who claims to be the owner of it.

[Comment: Actually in 2005, Congress passed the Real ID Act that would basically institute a national ID system and at least de facto require US citizens to possess some secure form of ID card. Yet, the idea behind the Real ID Act remains controversial and its future is uncertain: some US States have refused to participate in the federal system foreseen by that law, and the deadline to implement it has been pushed from 2008 to 2014 first and then to 2017, while another law – the Pass ID – might repeal the Real ID Act altogether. As Jim Harper, director of information policy studies at the Cato Institute in Washington, believes, "[no one] in the next administration, including Napolitano, wants to deal with Real ID." (see here.)]

[Comment: I recognize the misunderstanding that the last paragraph could create, therefore I would like to make clear that I do not care if Americans need to carry a national ID card - this is their place to decide. I just wanted to highlight that the issue identification/no identification should be regulated in a unitary way, and why no different requirements should be created based on citizenship. In that sense, no-ID card also remains an option.]