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Flushing Them Out

Continued from page 2

Published on December 27, 2007

"I would say, for better or worse, Arizona has led the way on state immigration measures," she says. "I would call them Draconian state measures."

By the way, Jacoby is no fuzzy liberal. She's long been known as a rational conservative voice on the issue, working behind the scenes with policymakers in Washington, D.C. She did not want to comment directly on Thomas' policies, but she did say the trend toward state-sponsored immigration legislation is dangerous. Jacoby says the problem needs to be handled by the one entity constitutionally equipped to handle the problem: the federal government. She blames federal immigration quotas that don't correspond to actual national labor needs.

It's not that people would rather be illegal. They don't have a legal way to come. States can't do anything about that," she says. "All they can do is pass these laws, which are so far from what we need. It's like a zero-calorie diet."

Linda Chavez, executive director of the Center for Equal Opportunity, a conservative think tank based in Virginia, agrees that the political hysteria surrounding immigration is out of control.

"I think Arizona was sort of ground zero in the fight against illegal immigration. The reason you're seeing these state initiatives is because the federal government hasn't dealt with it," she says. "We have a real hysteria sweeping the nation. The hysteria has stopped Congress from acting and provoked states to act and, frankly, it's a mess. For states to come in and usurp the job of the federal government is misplaced and dangerous."

Chavez worries that many state jurisdictions, like Maricopa County, ignore the facts surrounding immigration and act under political pressure. She points out that nationally, the number of immigrants coming to America has declined since 2000. This holds true in Maricopa County. Between 1990 and 2000, the foreign born population here increased about 144 percent. But between 2000 and 2005, it increased only 29 percent.

"A lot of these jurisdictions are acting on their gut reactions rather than empirical evidence," says Chavez. "They're not considering the constitutional ramifications."

That's true. Like it or not, immigrants — both legal and illegal — are protected by the Constitution. In a landmark 1981 case, the U.S. Supreme Court verified that all people within the borders of the United States are protected by its laws.

In Plyler v. Doe, the court ruled that illegal immigrants still have the right to public education, the undocumented are legally established as recognizable "persons" and are guaranteed equal protection under the law by the 14th Amendment.

Other decisions have declared that immigrants are entitled to due process and can not be arrested or subject to unreasonable search and seizure without probable cause.

Even Deputy Troy Henley, special agent in charge of investigations at Arizona's office of Immigration and Customs Enforcement, agrees the undocumented have constitutional rights that need to be protected.

"Generally speaking, if you are in the United States, you have constitutional rights," he says. "Certain rights attach, certain rights don't. Law enforcement rights attach."

The political hysteria surrounding undocumented immigrants paved the way for a right-leaning attorney with a Latina wife and a hard anti-illegal immigration stance to win the position of Maricopa County's highest-ranked elected law enforcement official.

In 2004, when Andrew Thomas ran his campaign on an illegal immigration platform, it was hard to take him seriously. His "stop illegal immigration" signs that covered the county seemed almost like a joke. It seemed preposterous that a county attorney could tackle a federal issue that even national law enforcement and Congress can't get under control. But his plan worked. Thomas won the election. And immigration was more than just a campaign talking point — almost immediately, Thomas made good on his promises.

At that point, the new county attorney and the old sheriff had not yet forged a bond.

In April 2005, only a few months after Thomas took office, Patrick Haab, an ex-Army reservist, made national headlines by holding seven Mexican migrants hostage at gunpoint at a rest stop on Interstate 8, on county land southwest of Phoenix, because he thought they were illegal. Maricopa sheriff's deputies who arrived at the scene charged Haab with seven felony counts of aggravated assault.

"I've said it before and I'll say it again: You don't pull guns on people because of the color of their skin," Arpaio told the Arizona Republic. "I will continue to defend my deputies. They made the right decision."

But Thomas had other ideas. Twelve days after Haab was arrested, Thomas announced he wouldn't prosecute the case because of a state law that permits a citizen arrest when a felony is committed.

(Never mind the fact that crossing the border without inspection is not a felony in and of itself. The first time an undocumented immigrant crosses the border, it's a misdemeanor. Illegal entry doesn't become a felony until the person is caught, deported, and tries to come back.)

Paul Charlton, then the U.S. attorney for Arizona, thought Thomas' decision was dangerous.

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