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Arizona Immigration Law, Part I: More severe control over illegal foreign residents in Japan; “No More Attempts, No More Entry, and No More Stay”

 Vincent A. @ ELC Research International

 

 

I originally wrote this article eight years ago, i.e., in 2010. So, the story could be partially out of date, but still the gist thereof would be true, I believe.

 

Background of the Arizona Immigration Law

The U.S. Federal District Court has issued an injunction against the Arizona immigration law, enacted in April 2010, which is designed to banish illegal immigrants. Although the enforcement of the entire law is currently postponed, the injunction has been given upon only a few sections of the immigration law such as one which requires police officers to inquire about the immigration status of suspicious persons. The Arizona state government has stated that they will appeal the injunction and will nevertheless enforce sections of the immigration law not blocked by the court ruling.

There are an estimated 11-12 million illegal immigrants in the U.S. and a half of them are concentrated in U.S.-Mexico border states such as California, Texas, and Arizona. Arizona has a total population of 6.6 million, with 30% (2 million) being Hispanic with origins in Central/South America. Among the Hispanics, 450-500 thousand people are considered to have migrated illegally, and Arizona is known as the state having the highest ratio of illegal immigrants compared to the total state population. The Arizona immigration law has been criticized harshly as being discriminatory to Hispanics or as infringing upon their human rights, particularly with respect to one section which obliges the police to inquire about someone’s immigration status if illegal immigration is reasonably suspected. However, considering the growing number of illegal immigrants, nearing 10% of the total population, it is not unreasonable from the standpoint of social policy theory that the Arizona state government attempts to impose tougher immigration law enforcement. However, this law, and discussion of it, is not as simple a matter as it might seem. In fact, quite a number of Americans seemingly favor this controversial law (*1), and Oklahoma, Utah and South Carolina have stated they plan to follow Arizona’s lead on tougher immigration control.

 

Japan to tighten the immigration control, declaring “No More Attempts, No More Entry, and No More Stay”

For Japanese immigrants like us or Japanese students living in Canada, there is another factor that makes us to hesitate to criticize the Arizona immigration law: the immigration control in Japan rivals or even surpasses Arizona’s, and the control has been becoming even tighter over the years.

Japan has two legal systems for foreigners: the Immigration Control and Refugee Recognition Act which controls all foreign nationals entering into or departing from Japan, and the Alien Registration Act which controls foreign nationals staying in Japan for longer than 90 days (*2). Japanese immigration control is known for its stringent procedures: for example, no one is allowed to leave Japan without the permission of an immigration officer. Nonetheless, the number of illegally resident foreign nationals soared in the 1990s. Due to the upsurge of illegal employment and a rash of crimes conducted by foreign nationals, particularly organized crime engaged in by foreign criminal organizations, public safety in Japan was worsened, causing escalated social unrest. Worrying about this, the Immigration Bureau of the Ministry of Justice, the government of the City of Tokyo, where many illegal immigrants are concentrated, and the Tokyo Metropolitan Police are cooperating closely, with the aim of putting into place a strict crackdown on illegal immigrants and illegal employment while taking tougher measures to foreign nationals landing in Japan.

How committed they are to these control measures is shown by the Immigration Bureau’s campaign slogan: No More Attempts, No More Entry, and No More Stay. Let’s look at each part of the slogan. “No More Entry” refers to implementing stricter examinations for those entering the country and blocking foreign nationals who do not meet the residential eligibility requirements. It includes not only more rigorous examinations upon the landing but also enhanced technology against forged and falsified documents, effective use of the “Residential Eligibility Certificate System” (*3) and biometric immigration screening for personal recognition. “No More Stay” means measures to reduce illegal foreign residents by intensifying the crackdown on illegal immigrants and workers already in Japan, strengthening the criminal penalties for illegal foreign residents and implementing the Departure Order System (to be discussed later). Lastly “No More Attempts” means a preventative measure which aims at discouraging foreign nationals from entering Japan for the purpose of staying illegally, by making it known internationally that Japan has new tough immigration examination procedures and severe criminal punishments against illegal residence.

FIG. 1 is evidence of how successful, under the above mentioned campaign slogan, Japan’s tightened immigration control has been. In Japan, illegal residence is classified into two categories: “illegal stay” and “overstay.” If a person enters Japan illegally and stays without permission, it is categorized as “illegal stay.” If a person enters legally but remains in Japan after the allowed duration has expired, it is called “overstay.” FIG. 1 concerns the latter, and shows the changes in the number of overstayers from 1990 to 2009, the estimation being somewhat easier for the latter than for the former (*4). The reader will note first in the chart that the number of overstayers significantly increased in the early 1990s, started decreasing in the mid 1990s, continued its downward trend faster in the late 2000s, finally returning to the 1990 level in 2009. Let’s discuss further the major factors in this success.

 

 

The number of overstayers peaked at 300,000 in 1993 after having increased rapidly since 1990. After 1995 the illegal overstays decreased in number when a major crackdown was conducted by police. But it still remained high at around 270, 000.

To reinforce the crackdown, major revisions were made to the Immigration Control Act in the year 2000. The landing denial period for banning the re-entry was extended from one to five years, which means deported foreign nationals could not re-enter Japan for a five-year period from the day of their deportation under the revised Immigration Control Act.  New criminal offences termed “unlawful stay” and “unlawful overstay” were also added, which clearly indentifies illegal residence as a criminal matter (Article 70-2 and 5). Any person who commits these offences can be punished with imprisonment, with or without labour, for up to three years or could be levied a fine of up to 300,000 yen (approx. U.S. $3,000), which was later revised to “up to 3,000,000 yen” (approx. U.S. $30,000).

Before the amendment, illegal residence was a violation of the Immigration Control Act and was subject to the imposition of deportation, but was not regarded as a criminal offence. It is particularly significant to note that the revised Immigration Control Act specifies illegal residence as a criminal offence because, similarly to the Arizona immigration law, the Japanese Immigration Control Act hereafter authorizes police to question anyone they reasonably suspect of being an undocumented immigrant or an individual attempting illegal activities. (Further details will be in Part II in the next issue.)

The revision of the Immigration Control Act in the year 2000 had a noticeable impact. Just before the day when the revision came into effect, a large number of illegal immigrants appeared at the Immigration Bureau voluntarily to receive the existing penalty (deportation from Japan with no criminal charge and the landing denial period of 1 year). The revision evidently triggered the large reduction of illegal residents after the year 2000 in FIG.1.

In 2004 the landing denial period for banning the re-entry of those who had been deported in the past and who were deported again, was extended from 5 years to 10 years, and the Departure Order System was newly established as previously mentioned.  Under this system, foreign nationals who illegally overstay and who meet certain requirements such as voluntarily presenting themselves to the authority are ordered by the authority to depart voluntarily. This is to encourage voluntary departure of overstayers. The authority does not put them in detention as with the deportation procedure. The landing denial period is reduced to one year for those who voluntarily leave Japan under the departure order. So, what Japan had done since the 1990s is exert greater control through a dual-lobed strategy: defining unlawful stay as a criminal offence and putting more severe crackdown on illegal foreign residents on one hand, and encouraging voluntary departure of overstayers on the other hand, both aiming at “No More Stay” of illegal foreign nationals.

Furthermore, in 2007 a new screening measure was introduced which requires the submission of personal identification information including fingerprints and a facial photograph taken at the landing. If a foreign national refuses to submit this information, that person will not be permitted to enter Japan, and will be required to leave the country.

As a result of these stricter measures the number of illegal overstayers has fallen to 1/3 of its peak number in 1993. The Japan Immigration Bureau has stated that they will continue efforts aimed at reducing illegal foreign residents plus continue strengthening the measures to detect false marriages and fake international students who are staying illegally for purposes other than those claimed.

In the case of Arizona’s new immigration law, the authorization for police officers to question an individual about whom they are reasonably suspicious has been criticized. However, in Japan, the right to question the residential status or period of stay is not limited to police officers. It is legally extended to immigration control officers and immigration inspectors as well as marine safety officers, drug enforcement officers and Public Security Agency officers, all of whom have the right to investigate and arrest. Furthermore, even personnel who work in the alien registration section of any national or local public organizations and those who work in employment bureaus are similarly authorized. This first segment of our discussion of immigration has presented some background information relating to the Japanese and Arizona immigration laws, which will be discussed in greater depth in the next issue (Part II). Also, in Part II, upcoming even tighter control in Japan — replacing the Alien Registration Act by a new Alien Residence Control System coming into effect in 2012 — will be discussed. In Part III, issues relating to the Arizona immigration law will be discussed in comparison with the immigration control system in Japan.

[Translation: Atsuko Umeki, Proofreading: David Gordon-MacDonald]

 

 

*1: “Arizona Immigration law divides Californians” CNN Politics, May 31, 2010
http://politicalticker.blogs.cnn.com/2010/05/31/arizona-immigration-law-divides-californians/?iref=allsearch
“CNN poll: Most back Arizona law but cite concerns about effects”, CNN Politics, July 28, 2010
http://www.cnn.com/2010/POLITICS/07/27/poll.immigration.discrimination/?iref=obnetwork

*2: One part of the Immigration Control Act, which includes the entry and departure procedures, is also applied to Japanese who enter or leave Japan; however, the rest of the law all relates to foreign nationals such as the residential eligibility. Both the Immigration Control Act and the Alien Registration Act show a strong intention of “controlling” foreigners in Japan.

*3: The Residential Eligibility Certificate System allows a foreign individual or his/her agent to submit while in Japan an application for the Residential Eligibility Certificate before applying for a visa. The certificate proves that the applicant fulfills various conditions prescribed by the Immigration Control Act and is eligible to acquire a certain residential status, while an application for a visa is to be submitted only through a regional immigration authority outside of Japan. The Residential Eligibility Certificate System has an advantage of shortening the time required to obtain a visa and complete the immigration procedure. It also provides the immigration officer a clearer indication of an individual’s eligibility when he or she lands in Japan, which, in the end, leads to improvement of immigration inspection procedure. The government of Japan has encouraged foreigners to use this system when acquiring a visa.

*4: The graph of FIG. 1 has been prepared by the author based on the data from “Immigration Control 2002” and “Immigration Control 2008”, the white pages issued by the Immigration Bureau of the Japan Ministry of Justice. It is estimated that the number of illegally landed residents was 30 thousand at the peak and was projected to come down to 15 to 20 thousand in 2009.
“Immigration Control 2008” (Japanese version)
http://www.moj.go.jp/nyuukokukanri/kouhou/nyukan_nyukan90.html
“Immigration Control 2008” (English version)
http://www.moj.go.jp/nyuukokukanri/kouhou/nyukan_nyukan91.html

 

 

This article is a revised version of the article entitled “Arizona Immigration Law: What’s the Problem? [Part I] More severe control over illegal foreign residents in Japan; “No More Attempts, No More Entry, and No More Stay” printed in Japonism Victoria, vol. 5 no.6, 2010 published by Japanese Canadian Community Organization of Victoria.

 

You can download the PDF version of this article from the following link:

https://japonismvictoria.com/library/sod100901.pdf

 

 

> Arizona Immigration Law, Part II

> Arizona Immigration Law, Part III

 

 

Arizona Immigration Law, Part II: Police Officers’ Questioning, and New Alien Residence Control System in Japan

 Vincent A. @ ELC Research International

 

 

Police Officers’ Questioning

Today, we learn about events around the world through mass media such as TV or newspapers. In modern society, the mass media might be seen as indispensable to our lives in this sense. However, we have to be very careful when we receive information from the mass media. That is, we should not unconditionally believe everything we hear or read. Every event which occurs has many facets and can be viewed from many standpoints, whereas it seems that only one or two of those viewpoints can be reported by the media. Furthermore, the media is required to provide coverage designed to be attractive to its wide consumer base, which in turn naturally leads to the result that the media’s coverage seems average or homogenous. Thus, we often experience that different media sources provide similar reports, taking essentially the same standpoint, despite the fact that any particular occurrence or subject area can be approached from many directions.

The new Arizona Immigration Law can not be exempted from the above analysis of news reporting. Although there have been plenty of negative reports criticizing racism or infringement of human rights, which can be a topic guaranteed to get the attention of audiences and readers, other, less well known aspects, of the issue have not been covered. When examining the issue of the new Arizona Immigration Law it is best to keep in mind that there may be bias in the media. Furthermore, the most critical issue, that is, whether the Arizona Immigration Law is really effective in maintaining social order in the state of Arizona, has not been discussed much so far.

In Part II of this article, the Arizona Immigration Law will be scrutinized further by contrasting it with the Japanese Immigration Control Act and the Alien Registration Act, particularly with regard to the right of police officers to question individuals.

The Arizona Immigration Law section regarding police officers’ right to stop and question individuals has been the one most criticized as being discriminatory. The actual section reads as follows (*1).

 

Article 8

B.  For any lawful contact made by a law enforcement official or agency of this state or a county, city, town or other political subdivision of this state where reasonable suspicion exists that the person is an alien who is unlawfully present in the United States, a reasonable attempt shall be made, when practicable, to determine the immigration status of the person. The person’s immigration status shall be verified with the federal government pursuant to 8 United States Code Section 1373(c).

E.  A law enforcement officer, without a warrant, may arrest a person if the officer has probable cause to believe that the person has committed any public offense that makes the person removable from the United States.

 

The words “reasonable suspicion” (objective grounds sufficient to doubt) and “probable cause” (objective grounds sufficient to believe that the person has committed a crime) used in this clause are legal terms which refer to judicially created grounds for the police officers’ action of briefly stopping a citizen or arresting him/her. In depth text interpretation will be put off for the time being. Let’s focus, instead, on how such a regulation would be understood, in practice, by front-line police officers struggling with everyday criminal behaviour. Probably, it would be understood as follows:

“When you encounter an alien about whom you are suspicious in regard to the matter of illegal residence, you should question the individual without hesitation about his/her residential eligibility. If the person does not show a verifying document or he/she acts suspiciously, you may arrest the person at once and continue the investigation by taking him/her to the police station.”

While the Arizona Immigration Law has been drafted specifically to control what is seen as a burgeoning illegal immigration problem, the expression of the regulation quoted above is far too blunt. It sounds like a police commander’s instructions to officers in the morning briefing before they go on patrol, outlining “today’s crackdown plan.” The regulation can be construed as stating that all foreigners may be regarded as criminals. It is quite insulting to “aliens,” even before one considers the question of whether the regulation is racially discriminatory toward Hispanics.

As has been discussed in Part I, in Japan the right to question residential status is not limited to police officers. It is legally extended to immigration control officers and immigration inspectors as well as marine safety officers, drug enforcement officers and Public Security Agency officers, all of whom have the right to investigate and arrest. Furthermore, even personnel who work in the alien registration section of any national or local public organizations and those who work in employment bureaus are similarly authorized. However, in Japanese culture, courtesy is considered very important, so Japanese people would never formulate what could be considered such “ill-mannered” legislation as the Arizona Immigration Law which was aimed at “guests” who visit Japan from overseas. In fact, the legal structure built around immigration is somewhat more elegant in Japan.

Every foreigner who has legally entered Japan has a passport with a landing permission seal given by an immigration control officer and those foreigners staying in Japan more than 90 days have an alien registration card. Thus, in Japan, the regulations are so prescribed that, “. . .if an officer such as a police officer asks, in the performance of his duties, a foreigner to show his/her passport or alien registration card, the foreigner must show it” (*2).

Namely, in contrast to the Arizona Immigration Law which “instructs” the police officers how to treat suspicious individuals, the regulation in Japan requests the foreigners to show their passports or alien registration cards in case an officer such as a police officer needs to see it as part of his or her duties. This remarkable contrast can be expressed in a different way: while the Arizona Immigration Law sounds strident and almost hysterical in the way it suggests that all foreigners are criminals, based, perhaps, on an ethical view that human nature is basically evil, in Japan, similar regulations are constructed with sufficient courtesy, assuming that every foreigner will have a proper passport or alien registration card, based on the contrasting ethical view that human nature is innately good.

However, a courteous regulation does not mean a limitlessly liberal one. In fact, the requirements are quite severe. In Japan, firstly, foreigners have an obligation to carry their passport at all times or, an alien registration card, for foreigners 16 years old or older who have registered as aliens (*3).  Failure to carry one’s passport may be punished by a fine of not more than 100,000 yen (approx. U.S. $1,000), and the individual failing to carry the alien registration card may be assessed a fine not more than 200,000 yen (approx. U.S. $2,000). Furthermore, if a foreigner refuses to show his/her passport as required by an officer, a fine of not more than 100,000 yen will be imposed. The punishment is heavier for the refusal to show an alien registration card; it can be punished by imprisonment of one year or less with or without labour, or a fine of not more than 200,000 yen. Therefore, when a police officer is suspicious for any reason about a certain foreigner and asks him or her to show his or her passport or alien registration card, if the foreigner is not carrying the passport or alien registration card and can not show it to the officer, the person could be subject to punishment (*4).

Furthermore, as discussed in Part I, in Japan the Immigration Control Act was revised in 2000 to clearly state that illegal residence is a criminal offence. Consequently, if a foreigner without a passport or registration card does not even remember his or her passport number or registration number, and the police officer, as a result, is unable to contact the Immigration Bureau to check the residential status of such a foreigner, the police officer will naturally strongly suspect that a crime, i.e., unlawful stay or unlawful overstay, is being committed. In such a case, an examination of the foreigner’s personal effects or a body search may be carried out on the spot. Or, the foreigner may be requested by the police to go to a nearby police station voluntarily.

The severity of immigration regulations in Japan with regard to police checks of foreigners’ residential status is not very different from those of the Arizona Immigration Law described above. Despite that, there seems little possibility that the immigration control regulations in Japan will be accused of being racially biased as is the case with the Arizona Immigration Law. Why? The reason would be that: in Japan, the legal system in place in the area of immigration control is composed of a multilayer structure wherein a number of moderate regulations are woven together. This is a strikingly different to the Arizona Immigration Law which is composed of a monolayer structure, aiming at solving the perceived illegal immigrant problem by relying on authoritarian power, that is, by “threatening” foreigners with arrest unless they show verification of their immigration status. Arizona may consider itself to be in a state of emergency and such measures justified; however, it illustrates a fundamentally different way of thinking or way of solving a matter, between Japan and the state of Arizona, and one evidence, perhaps, of a significant cultural difference.

 

More Control in Japan: New Alien Residence Control System

Japan, having more courteously applied, but severe regulations for illegal residence, is now introducing a new Alien Residence Control System, coming into effect in 2012, as a measure to further tightening the regulations (*5).

Under the current Alien Registration Act, foreigners staying in Japan more than 90 days must be registered. The registration application form requires details from the applicant such as: passport number, birth date, applicant’s address in his/her home country, occupation, place of residence in Japan, the name of the person who represents the household where the applicant stays and, if the applicant is the person representing the household, the names and birth dates of all the household members. While the residential status and the period of stay in Japan are determined by the Immigration Bureau of the Ministry of Justice, the alien registration application should be submitted to the city or town office of the place where the foreigner resides. The reason why the city or town office manages the registration work may be that when a foreigner staying in Japan for months or years begins his or her life at their place of residence, he or she may take various social services such as the national health insurance and school registration if the applicant has a child, and the information recorded in their alien registration is the base for determining the appropriate social services to be delivered. Under the existing system, all the information collected by the alien registration office at the city or town office is supplied to the Ministry of Justice (Immigration Bureau) where the collection of residential and social data of registered foreign nationals is overseen.

The alien registration system described above will be replaced by the new alien residence control system in 2012. What is intended with this new system is obviously the centralized control of information by the Immigration Bureau. Under the new system, the initial alien registration and subsequent registration of any change such as address change, having been managed by the city or town office in the old system, will be completely administered by the Immigration Bureau. What does it mean? It means that the Immigration Bureau will thereafter control everything directly; that is, alien immigration control, alien residence control and alien departure control. With this tightened control, the illegal residence or illegal employment of foreigners based on false marriage or fake student status will be regulated more severely. In this sense, the new alien residence control system is a measure for further strengthening “No More Stay” which is a part of the Japanese Immigration Bureau’s slogan of “No More Attempts, No More Entry and No More Stay” initiated in 2000 to control illegal immigration (*6).

After the new system begins, foreigners who are going to stay in Japan more than 90 days receive, in addition to a landing permission, an alien residence card having an IC chip issued by the Immigration Bureau at the entry airport or seaport of Japan. The residence card will have a record concerning the name, birth date, residential status, period of stay, working restrictions, place of residence in Japan, etc. On the other hand, the recorded data will be supplied from the Immigration Bureau to the city or town office of the place where the foreigner is going to reside, so that the foreigner can gain access to appropriate social services at that place. The foreigners will, of course, have an obligation to carry their residence card at all times.

In Part III, in the next issue, a few less well known issues concerning the Arizona Immigration Law will be considered, with comparison to immigration control in Japan, as discussed in Part I and Part II.

[Proofreading: David Gordon-MacDonald]

 

*1:  The author believes that it is essential to refer to the text of the related law to understand a legal matter, and actually this is usually very helpful in getting a clearer picture of the matter in question. However, it is quite infrequent that the text itself is carried by newspapers or the like, probably because it is hard to interest readers in the technical language of the legal arena.

*2: Immigration Control Act, Article 23, Clause 2 and Alien Registration Act, Article 13, Clause 2

*3:  Immigration Control Act, Article 23, Clause 1 and Alien Registration Act, Article 13, Clause 1

*4: In practice, there may be cases wherein, even if the foreigner does not carry his/her passport or alien registration card, the punishment is not inflicted once his/her legal residence is verified.

*5: In 2009, the revised Immigration Control Act to introduce the new system was approved.

*6: For details of this Immigration Bureau’s control slogan, please refer to Part I of this series.

 

 

This article is a revised version of the article entitled “Arizona Immigration Law: What’s the Problem? [Part II] Police Officers’ Questioning, and New Alien Residence Control System in Japan” printed in Japonism Victoria, vol. 5 no.7, 2010 published by Japanese Canadian Community Organization of Victoria.

 

You can download the PDF version of this article from the following link:

https://japonismvictoria.com/library/sod101001.pdf

 

 

Arizona Immigration Law, Part I <

 

> Arizona Immigration Law, Part III

 

 

Arizona Immigration Law, Part III: Let’s focus on the most critical issue

 Vincent A. @ ELC Research International

 

 

In the State of Arizona, in 2007, two years before the Immigration Law passed, an act called the “Legal Workers Act” for regulating illegal employment was passed (*1). According to this act, if a business owner knowingly employs an alien having no work permit, the owner shall be punished by suspension of their business license and probation for a certain period. During the probation period, if the owner again knowingly employs a worker without proper work documents, the business permit will be cancelled. Since this regulation is extraordinarily severe for both of the business owners and undocumented workers, local employers’ associations and human right groups have taken action, resulting in a hearing started last December in the U.S. Supreme Court. The plaintiff’s grounds that the Legal Workers Act is unconstitutional are basically the same as those of the federal government appeal against the Arizona Immigration Law: only the federal government has legal authority over immigration into the U.S. and state governments cannot provide immigration control.

On the other hand, currently, at least seven states in the U.S. are going to follow Arizona’s example in order to control illegal immigration. Thus, for good or ill, this law is becoming a model for regulation of illegal immigration in the United States. Furthermore, while in the U.S. every child born in the country has birthright citizenship, more than a dozen states in the U.S are considering cancelling such birthright citizenship for children of illegal immigrants (*2).

Now, in Part III, the final part, we will focus on the most critical issue with regard to the Arizona Immigration Law.

 

The Immigration Law: Does Arizona really need it?

The Arizona Immigration Law has been highly controversial, but was it really necessary? Let’s begin with an overview of immigration control in U.S. federal law.

In recent years, immigration regulation in the U.S. has become more and more severe, and the procedure has been changed frequently, adding procedures such as mandatory fingerprint registration, for example. Basically, under U.S. federal law, all aliens who apply for a visa to enter the U.S. must complete alien registration (Immigration and Nationality Act, Article 261). Aliens who entered the U.S. without a visa using a visa waiver program or the like have to undergo alien registration if they stay in the U.S. more than 30 days (INA, Article 262). When alien registration is completed, an alien registration card (I-94 Card) is issued. All aliens who have completed alien registration should carry the registration card with them at all times. If an alien fails to do so, a fine of $100 or less could be levied, or a term of imprisonment of 30 days or less could be imposed (INA, Article 264). The violation is considered to be a misdemeanor (petty offense) with a relatively light penalty, which is distinguished from a felony (serious offense) with a heavy penalty. Even so, it is still a crime and becomes part of an individual’s criminal record.

On the other hand, a green card (Foreign Registration Receipt Card) is issued and given to legal immigrants who have obtained permanent residence authorization. These immigrants have a similar duty to carry the green card with them at all times. Finally, aliens who stay in the U.S. for only a short time do not need to complete alien registration but are obliged to carry the visa and passport with them at all times (*3).

Under U.S. federal law, as described above, all aliens who legally reside in the U.S. should always carry ID with them. Therefore, it is possible to distinguish illegal immigrants having no ID or other documents through more rigorous examination by police officers.

If police officers’ examination of individuals becomes more rigorous, it would mean that more aliens who left their ID at home may be punished by a fine or detained at a police station until their residential eligibility is proved. Undoubtedly, this would be very unpleasant for aliens who are actually staying legally. However, it is something that must be borne, as a crackdown on illegal immigrants is inevitable in U.S. society.

One problem remains, however. That is, there can be difficulty in distinguishing U.S. nationals having no ID from illegal immigrants. The U.S. does not have a family registry system or a health insurance system like that of Japan. Thus, the social status of people cannot be proved by a document such as a residential certification or a health insurance card. While status can be proved by a driver’s license or a student ID card, a lot of people have neither of them. In fact, unfortunate occurrences have begun to be noted in Arizona: some Hispanic Americans having no ID have been detained by police.

How can such occurrences be avoided? The answer is relatively simple. That is, ID cards should be given to those having U.S. nationality. For example, British Columbia, where we reside, has a unique identification card available, called the BC ID. A similar ID system could be introduced in Arizona. While even an alien can be registered by the BC ID system, the Arizona ID system could be limited to U.S. nationals. Because all Americans living in the state would be subject to registration, the system would be entirely free from the problem of racial discrimination. Furthermore, since this ID system is exclusively for U.S. nationals, it is completely separate from the state’s immigration regulation. Thus, it does not violate the U.S. constitution.

 

Examination by Police Officers

In order to disclose illegal immigrants based on the presence or absence of ID, the ability of police officers to question is crucial. So, can police officers conduct such examinations without the prescription provided by the Arizona Immigration Law which specifies police officers’ duty in this regard? Perhaps, the answer is “Yes”.

According to the Arizona Immigration Law, police officers are obliged to inquire about the residential eligibility of a suspicious person if there are any “reasonable suspicion” (objective grounds) to doubt their residence status. Furthermore, police officers are authorized to arrest a person without a warrant if there are any “probable cause” (objective grounds) to believe that the person has committed a crime which can lead to deportation (Article 8). However, the words “reasonable suspicion” and “probable cause” were not first used in the Arizona Immigration Law. Rather, these are legal terms having already been juristically established in the U.S. jurisprudence.

Namely, in America, not limited to the State of Arizona but also in any other states, if there is reasonable suspicion, police officers are authorized to question an individual and, if there is probable commission of a crime, they are authorized to arrest a suspicious person on the spot. Since illegal entry and illegal residence constitute criminal acts which fall under the penalties of imprisonment or compulsory deportation, in every state police officers will, in principle, be able to detain a suspicious person unless their nationality as an American, or their residential eligibility, can be proved.

Actually, however, police officers have often not made gone as far as to inquire about the residential eligibility of Hispanics. This is not because they are legally unauthorized to do so. Rather, it is because police officers have been anxious about the consequences — that making such inquiries would provoke Hispanics’ antipathy and Hispanics would, therefore, no longer be cooperative in other criminal investigations (*4). So, it could be said that, despite the fact that police officers have the authority to make inquiries under the current legal system, the Arizona Immigration Law has intentionally obliged police officers to engage in such inquisitorial activity possibly because police officers, anxious about the alienation of Hispanics would be reluctant to do so.

However, if the need were only to push reluctant police officers to inquire about the residential eligibility of a suspicious person, it wouldn’t be necessary to draft legislation, and such severe legislation that it has caused the Arizona product boycott campaign. Instead, it could have been done much more quietly within the walls of each police station simply through police commanders telling police officers to crackdown on suspicious persons by doing more detailed checks. In Part II, when the text of the Arizona Immigration Law concerning the police officers’ inquiries was considered, the author mentioned that the regulation was too direct and it sounded like a police commander’s instructions to police officers in the morning briefing before they go on patrol, outlining “today’s crackdown plan.” Perhaps that is a sign of how the matter is best handled: by instructions given discreetly in each police detachment, designed to give police officers a push in a certain direction, and definitely not by legislation.

 

Behavioral Style of Americans

We have looked at less severe solutions for regulating illegal immigration, including the introduction of an Arizona ID system and raising the rate of detailed inquiries by police officers. By being more discreet and judicious the regulation of illegal immigration could have been satisfactorily accomplished without causing extensive criticism and allegations of racial discrimination and human rights infringement. Instead, the Arizona government has rejected such milder solutions and has chosen the current Arizona Immigration Law. Why?

In brief, it may be a matter of behavioral style. It could be a simple result of the emergence of a behavioral style peculiar to Americans. That is, even when the situation could be improved little by little if efforts are made carefully and tenaciously, Americans tend to recklessly rely on naked power and open attacks on the opponent, attempting to solve the problem quickly and easily. The U.S. did so in Vietnam and in Afghanistan and Iraq as well. And, of course, they failed in all of these countries. The author is wondering whether the Arizona Immigration Law, which is becoming the model for illegal immigration regulation in the U.S., is a similar type of error.

Namely, the author believes that the most serious issue in regard to the Arizona Immigration Law is that the law has antagonized the Hispanics for no reason. Despite the fact that there are other ways to regulate illegal immigration, the State of Arizona has chosen the worst possible one. The hostility and distrust of Hispanics toward American white society caused by the Arizona Immigration Law will not soon fade away, and the influence thereof will come to the surface little by little in the coming years. Even if the number of illegal immigrants is decreased by this law and social order in Arizona is apparently restored, there will be a swelling tide of negative consequences such as noncooperation with police, unwillingness to pay taxes and the like. The prosociality of Hispanics, that is, their motivation to help improve society and make it more livable, will undoubtedly be weakened.

Even with the above-mentioned Arizona ID system, in which illegal immigrants having no ID would be revealed by police officers’ inquiries, there would be antipathy among Hispanics, the main target of such an exercise. However, there still remains a possibility of talking reasonably about the issues with Hispanics and seeking consensus. The Arizona government and the Hispanic community could openly discuss the importance of social norms such as the idea that staying in a law-governed country illegally is ultimately bad for a society and all its members.

The problem of illegal immigrants in Arizona is a problem of the State of Arizona on one hand, and it is the problem of Hispanics living in the State of Arizona, on the other. Politicians in Arizona need to show the wisdom to create a dialogue over the immigration question with Hispanics. However, the immigration law has probably made any such possibility unlikely for the foreseeable future.

[Proofreading: David Gordon-MacDonald]

 

*1: Arizona Revised Statues §23-211 to § 23-214

*2: “States plan crackdown on immigration but risk Latino ire”, Reuters, January 4, 2011

*3: Mexico citizens having a Border Crossing Card are excluded.

*4: “Immigration advocacy groups to challenge Arizona law”, The Washington Post, Apr. 25, 2010

 

This article is a revised version of the article entitled “Arizona Immigration Law: What’s the Problem? [Part III] Let’s focus on the most critical issue” printed in Japonism Victoria, vol. 6 no.1, 2011 published by Japanese Canadian Community Organization of Victoria.

 

You can download the PDF version of this article from the following link:

https://japonismvictoria.com/library/sod110301.pdf

 

 

Arizona Immigration Law, Part I <

Arizona Immigration Law, Part II <