RSS FeedCanadians, beware of Arizona Senate Bill 1070
How far can a government go to fight illegal migration? One government is flying right into uncharted territory if we are to judge by public reaction and media commentary. Arizona’s legislature is considering a bill that allows Arizona police to arrest people on a “reasonable suspicion” of their unlawful immigration status. Many groups ripped into the proposed law, and the head of the Los Angeles Roman Catholic archdiocese even compared it with “German Nazi and Russian Communist techniques.” Others defended the legislation citing high rates of illegal immigration in Arizona. The bill has several controversial provisions but let’s look closely at some detention powers it gives to the police. These changes can put Canadians lawfully travelling to Arizona at serious risk of detention.
Senate Bill 1070, also known as “Support Our Law Enforcement and Safe Neighborhoods Act,” allows the police to verify immigration status of a person, with whom they have “lawfully” come into “contact,” if they have a “reasonable suspicion” that the person is an illegal alien. The obvious interpretation of this provision is that the police will detain the person while they verify the status. This is clear from both the context of this provision and the purpose of the statute. The bill as a whole aims to ramp up enforcement of federal immigration laws. Its purpose is “attrition through enforcement.” The legislature hardly expects the police to release suspected illegals while they verify their status. Besides, the statute gives the police powers to turn illegal aliens over to federal authorities. It is hardly reasonable to expect Arizona police to let suspected illegals go while they check on their status. So verification will mean detention or arrest.
Bill 1070 sets out the following detention scheme. First, there must be a lawful contact between you and the police. Second, the police must form a “reasonable suspicion” that you are an illegal alien. Third, they must make a “reasonable attempt” to determine your “immigration status.” Fourth, if they can’t determine your status on the spot, they will contact the federal government. As you have already seen, the last stage will likely involve your arrest until the police hears from the federal immigration authorities.
A “lawful contact” with the police happens pretty much any time an officer can perceive you with his or her senses. If the officer can hear you, see you, or smell you, that’s a lawful contact, so it doesn’t even have to be a stop or a question. But if you’re driving, there are plenty of lawful opportunities to pull you over. Also, asking you a question is not unlawful but it’s a contact. All of that may give the officer enough information to form a “reasonable suspicion” that you are an illegal alien.
What information is enough for that “reasonable suspicion” is the crux of the matter. The proposed law prohibits relying solely on “race, color or national origin … except to the extent permitted by the United States or Arizona Constitution.” It means the police can rely on these factors as long as they are not the only factors. And what about accent? Dress? Religion? Apparently, these could be sole factors in forming a reasonable suspicion. Regardless of how the courts will interpret these provisions in the future, what matters is how front-line police officers will have the freedom to apply them. This article assumes you will be in the US lawfully, so if you are detained under this law, you will be eventually exonerated and released. But an extremely upsetting and arbitrary detention is bad enough so you should know the risks.
After detaining you on a “reasonable suspicion” of illegal status, the officer will make a “reasonable attempt” to determine your status. That’s also an interesting part. The bill lists IDs that will give you a presumption of lawful status on the spot. All of them (except maybe the “tribal” card) are US federal or state issued. Most Canadians, of course, do not require any US-issued ID like visas to travel to the US. So most Canadians in Arizona will have a Canadian passport or a Canadian province-issued enhanced driver’s license. That’s why most Canadians initially stopped under this bill will not be presumed to have lawful status in the US.
This will trigger a verification with the US immigration authorities and a potential longer, miserable detention of a Canadian who is in the US on a perfectly lawful basis. And all it takes is a “reasonable suspicion.”
Obviously, drafters of this proposed Arizona statute didn’t think about millions of Canadians who lawfully visit the US without any US-issued papers. They probably didn’t even know. And that’s why laws should be passed by or at least coordinated with people with relevant jurisdiction and expertise. Immigration should be the sole competence of the US Congress and the US federal executive. They would know about Canadians, but how long will random Canadians have to spend in Arizona custody before state authorities get hold of the feds, if this bill is passed? Perhaps, Foreign Affairs Canada should monitor this proposed legislation and issue an appropriate warning to Canadians if Arizona Senate Bill 1070 becomes law.
(Post sponsored by AdviceScene)
The fight begins
Len Edwards, the deputy minister of foreign affairs, insisted yesterday that standing up for the rights of citizens abroad was “a rule” and “a work ethic” within the department.
Patterns
2nd Canadian stranded in Kenya?
The network says when she tried to bring Mohammed back to Canada through Kenya three years ago, she was told the person with her was not her son because he didn’t look like his passport photo.
Full disclosure
Released Canadian’s lawyer clamouring for client’s case file
He added he fears that Ms. Mohamud is the victim of a “whisper campaign” from federal officials who are leaking unverified claims to the news media.
“My client is being defamed, and they can clear it all up by giving me the file,” Mr. Boulakia said.
The government refused to comment on the matter yesterday, saying it is waiting for an internal report on the events.
Suaad Mohamud
She is back in Canada now. Here are all our posts and essays on her trials and tribulations.
Exclusive interview with Suaad Mohamud in Nairobi
Video (Toronto Star)
See also:
No fear
- Experts vindicate woman trapped in Kenya
- DNA test proves identity of stranded Toronto woman
- Whose fault is it?
- ‘This nightmare will be over’
- Canada ignores desperate Mohamud — again
- McGuinty hammers Ottawa for ignoring stranded woman
- Ottawa’s shameful `imposter’ case
- Official identity loss
Many trash the government for hanging Suaad, our fellow Canadian, out to dry when she desperately needed help. By all means, the government deserves that. Trash hard.
But don’t forget another lesson of this story. When government officials have leeway, no one knows what’s on their mind. No one knows why they decide one way or another. No one can tell for now what on earth moved that low-level hack in our High Commission in Kenya to throw Suaad to the wolves. We should learn that when our life, rights, liberties, and security are at stake, government officials in charge must have no such leeway. They must follow precise rules.
There is a legal term for this freedom of maneuver, this leeway that officials have in making a myriad decisions that they make. It’s called discretion. The rule of law means, whenever possible, officials must follow the law rather than their own discretionary whims. Specific legal rules must bind Canadian officials who have the power to accept or reject our passport in some foreign country.
The world is so small now. Canadians should not fear international travel because our government can randomly dump us without justice and without hope. We should know exactly what the government will be obliged to do if anyone questions our passports. We should be guaranteed justice. We should have no fear.
Breaking news: DNA test proves identity of stranded Toronto woman
The breaking news about what was obvious for such a long time: a 31-year old Canadian woman is exiled in Kenya by our government.
http://www.thestar.com/news/canada/article/679116
Bring Suaad back home.
Respect the Canadian passport
Woman stuck in Kenya seeks help for stress
Mohamud will see a doctor today in Nairobi to treat stress arising from, among other things, being jailed with killers at Langata Women’s Prison.
Coming back home to her son would be a great and much desired victory for Ms. Mohamud.
But an even greater victory for all of Canadian citizens would be getting the Federal Court to clarify the law.
The Court should order the government to respect the Canadian passport as proof of Canadian citizenship. The government should be allowed to reject the passport only in obvious cases: photos clearly not matching the bearer’s face in gender or race, or when the difference is beyond any reasonable doubt. This will protect the public interest in three crucial areas: citizens should not bear inordinate unnecessary risks of foreign travel, foreign states should give proper respect to the Canadian passport, and no Canadian should be barred from coming back home.
The right to return home to Canada is one of the most valuable rights of a Canadian citizen. There is a simple word for a breach of this right. It is exile. It robs the citizen of her home and her job, cuts her off from her family and from the Canadian society, and puts the citizen in peril in a foreign country. In some ways, it’s worse than a criminal charge and a prison term in Canada. You don’t get a hearing, you don’t know when you’re coming back, and it’s a lot more expensive to get help.
Exile is almost always illegal and unconstitutional. It’s hard to think of a case when it would be fair to block a citizen from coming back to Canada. Only a catastrophic risk to public health comes to mind. The state can properly send a citizen to face justice in another country, but that’s not exile. It’s extradition. And unlike extradition, exile is one the most vile acts the state can do to its own citizen. Mixed with risks to the citizen’s life outside of Canada, exile is an abject assault on our most basic human rights.
No doubt passport fraud happens. No doubt look-a-likes can try to take advantage of genuine Canadian passports. Of course, when they succeed they harm public interest. But the harm from exiling just one Canadian citizen whose passport the government mistakenly rejects is far greater. We protect the criminally accused with the beyond-reasonable-doubt standard of proof. A bearer of the Canadian passport who doesn’t “look like their picture” according to a petty consular bureaucrat should enjoy at least the same level of protection.
The government is free to investigate people suspected of passport fraud. But if the passport is genuine and not obviously misused, consider the bearer a Canadian citizen and let him come back to Canada. Then investigate him under Canadian law. The cost of prosecuting, convicting, and deporting a fraudster from Canada is always less then the risk of mistakenly exiling a Canadian citizen. And with the move to biometric passports, it will be next to impossible to misuse a genuine Canadian passport. More importantly, low-level bureaucrats will not be making life-and-death decisions touching on our most basic rights anymore.
Injustice continues
Trapped in Nairobi, woman’s life crumbles
Her rent has not been paid in three months, her credit card bills are accumulating interest, her phone, Internet and cable connections have been cut off. She hasn’t earned a penny in three months and she is worried she may not have a job when she returns. …
ATS courier company is holding Mohamud’s job as an overnight mid-level supervisor at its Toronto sorting plant. “She is welcome back at work; we’re looking forward to having her back,” vice-president Bob Brogan said last week.
Who will protect us from absurdities
‘Canadian refugee’ a Nairobi celebrity
He said incidents of Somali expats being arrested, detained and thrown into jail by Kenyan officials have escalated in the past few years.
Their stories have been discussed threadbare by people, but what has sustained interest in Mohamud’s case is the absurdity of it all, said Mohamed Busuri, editor of the Somali Canadian Times. “It’s unbelievable (they) stopped her because her lips didn’t match (those in her photo),” he said.
“People are talking about her and her son everywhere.”
What if you don’t “look like” your passport photo?
Woman held in Kenya gives up DNA samples
What is known for certain is that no Canadian official has checked Mohamud’s story in Toronto with her best friends, neighbours, employer, ex-husband, 12-year-old son or the son’s babysitter, Boulakia said.
