SB 1070 Worries Religious Leaders

PHOENIX -- Pastor Elias Garcia still has flashbacks of a day one year ago when a trip to a spiritual retreat took a bad turn.

On Sept. 4, 2009, an Alfa and Omega Disciples of Christ church van he was following in a caravan was pulled over by police officers from the Fort McDowell Police Department. Eight religious leaders, including the driver, were asked for their IDs and after two hours, they were turned over to the custody of U.S. Immigration and Customs Enforcement (ICE).

At the time, it was not uncommon for police to call ICE after a traffic stop, but it happened less frequently than it does today, he said.

Fast forward to 2010.

In a ruling on July 28, U.S. District Court Judge Susan Bolton struck down a key part of Arizona’s new immigration law, SB 1070, that would have made it a state crime to be an undocumented immigrant.

But other parts of the law have gone into effect, including a provision that worries Garcia: The law makes it a misdemeanor to transport or harbor undocumented immigrants while committing another criminal offense.

“We used to think that because we are a church, this couldn’t happen to us. Until it did,” said Garcia.

His recalls the incident a year ago, when church members were arrested even though they hadn’t committed any crimes. “We are waiting to see how the police react to it,” Garcia says of the new law. “If they put this into practice now, can you imagine how many more cases we are going to see? It could happen every two to three days.”

He is not alone in his concerns. Other pastors held a meeting with attorneys this week to find out what the new law could mean for church groups that often transport their undocumented members to services or spiritual retreats.

“It is still unclear how it would be implemented,” said Pastor Magdalena Schwartz of the Disciples of the Kingdom Free Methodist church in the city of Mesa, Ariz. She said that regardless of what the law says, she is not in the business of asking her membership about their immigration status.

Tommy Thompson, a spokesperson for the Phoenix Police Department, said people shouldn’t worry because “there has to be a criminal offense” before that provision of the law even comes into question.

Thompson emphasized that this would exclude regular traffic stops for driving a little over the speed limit or running a stop sign. School buses or church vans wouldn’t be subject to this law, he said, unless they had committed a criminal offense.

And even if that’s the case, an officer doesn’t typically question the passengers in a vehicle, he added.

“The most significant change in the law is that it is no longer mandated for officers to do this,” said Thompson. “It will be up to the discretion of the officer.”

The Department of Public Safety (DPS), the statewide police agency, hasn’t offered an explanation as to how they will enforce the remaining provisions of SB 1070. They have asked Arizona Attorney General Terry Goddard to issue a legal opinion on how the provisions should be implemented.

The Maricopa County Sheriff’s Office, the only agency that has been using a state law aimed at human smugglers to charge undocumented immigrants, did not answer inquiries about how they plan to enforce the new law. But Sheriff Joe Arpaio has said that his deputies will continue to ask people about their immigration status.

Can a pastor drive his church members to a spiritual retreat? Can a wife drive her husband to the grocery store if he is an undocumented immigrant? The answers to those questions are not that simple.

“There is no answer,” said Gabriel Chin, a University of Arizona law professor and constitutional law expert. “The reason there’s no answer is that it is deliberate; this law in my opinion was never meant to be enforced.”

Chin believes these provisions of the law were designed not to increase the number of arrests but to incite fear and spur an exodus of immigrants from the state.

“The message is, ‘Don’t let them live in your house even if they are your relatives because maybe you’re harboring them,’” Chin said.

The transporting and harboring provisions could be interpreted narrowly, to target human smugglers, Chin said. But he notes that the state already has a law against human smuggling. The fact that the legislature included certain exceptions, such as those for Child Protective Services workers who are transporting children and for licensed paramedics, also leads him to believe that everyone else could be affected.

Under the law, he said, police could potentially stop a vehicle under suspicion of violating the federal offense of harboring undocumented immigrants and later charge them with a state crime.

“This is an unusually convoluted statute. It’s full of mistakes,” said Chin, who believes that the implementation of the harboring and transporting provision could leave SB 1070 open to even more litigation.

For now, Pastor Garcia plans to wait and see how this will impact his 250-member church.

At least four of the men who were arrested a year ago now have work permits and are fighting their deportation in court. They have also become the drivers of the church vans for many others who can’t drive because they are here illegally.