By Howard Fischer
Capitol Media Services
PHOENIX -- State lawmakers have set the stage for final approval this coming week of legislation billed as providing increased border security.
On Thursday, the Senate gave preliminary approval to HCR 2030, a multi-pronged proposal that proponents say will help not only slow the flow of migrants but deal with related problems.
A roll-call vote is set for Tuesday. And, if the measure gets the necessary 16 votes, the House would debate it the following day.
Final approval there would send the measure to the November ballot where voters would get the last word.
The measure covers everything from requiring government agencies to verify whether an applicant for benefits is in this country legally to imposing long prison terms on those who sell fentanyl if the drug causes someone else's death.
But it is the provision about allowing state and local police to arrest anyone who crosses into Arizona from Mexico at other than a port of entry that generated the most debate -- from both sides.
If nothing else, there's the cost of having police not only make the arrests but also requiring people be locked up in county jails and having their cases handled by county prosecutors. Senate Minority Leader Mitzi Epstein said that cash has to come from somewhere.
"Once again, we have the majority party saying we'll balance the budget on the backs of children, again,'' said the Tempe Democrat.
But Sen. John Kavanagh, R-Fountain Hills, said that ignores the costs to the state for the costs of locking up criminals and caring for those who suffer from fentanyl overdoses. And he argued that, whatever the costs, it's a bargain compared to what he said is the wide-open border where, because of inaction by the Biden administration, pretty much anyone can come across.
"Quite frankly, no amount is too great to stop another 9/11,'' he said. "No amount is too great to stop some previously deported rapist from victimizing more people.''
And Sen. Janae Shamp, R-Surprise, one of the architects of the measure, said there will be benefits that can't be quantified.
"Less people are going to die, less women are going to be raped, less children are going to be trafficked,'' she said.
And proponents said that voters who have seen the images of people crossing the border through gaps and holes in the fences, only to be processed and released into the United States by Border Patrol after asking for asylum, will see it that way when they get a chance to weigh in in November.
But Sen. Rosanna Gabaldon argued that all HCR 2030 would do is target Hispanics. And she said this isn't just something from the time when lawmakers approved SB 1070 more than a decade ago, a bill that was designed to have police question those they stop about their immigration status.
"It happens even today,'' the Green Valley Democrat said. "And with this, it's going to even intensify.''
She said it's happened to her.
"I am someone who has been stopped, not because I was breaking the law,'' Gabaldon said.
"It was the law enforcement saying, 'Are you an American citizen?'' she continued. "Over and over again, I had to prove myself.''
But Gabaldon said it's more than an inconvenience.
She explained how when this happens she tells her mother, "put your hands on the dashboard and do not move.''
"And when that law enforcement officer came to my car, he unbuckled his gun,'' Gabaldon said. "Two women in the car. It happens.''
Shamp, for her part, said there's nothing in the legislation that would lead to any change in when police pull someone over. For that same reason, she said, there's no need for a provision that was in an earlier version that said police couldn't try to enforce its provisions in churches, schools or health care facilities.
"We are not talking about immigration status,'' she said.
"This is a border bill,'' Shamp said. "This is illegally entering our state through a foreign nation from anywhere else besides a lawful port of entry, meaning putting a ladder up on the fence and coming over, meaning cutting the fence and moving it aside.''
But Rep. Flavio Bravo, D-Phoenix, said he doesn't see anything in the measure that limits enforcement of the proposal to let police arrest border crossers to any specific area of the state. Shamp said there's no reason for that concern.
"It's called 'probable cause,' '' she said, meaning that an officer would have to have a specific reason to believe someone entered the country at a place other than a port of entry. That contention is backed by some sheriffs who say making an arrest under the new law would pretty much require a deputy to actually see someone go over, under or through the border fence.
All that still leaves the question of whether all that is legal.
The border crossing provisions in HCR 2060 are modeled after Texas' SB 4. That has led to a lawsuit by the U.S. Department of Justice which contends that the legislation improperly interferes with the exclusive right of the federal government to regulate immigration.
In fact, there is case law on precisely that point being cited by DoJ lawyers: The U.S. Supreme Court decision in 2012 that invalidated Arizona's SB 1070 which sought to create state crimes for what amounted to violations of federal immigration law, like seeking work in Arizona without being in this country legally.
The Texas law has been placed on hold by a federal appeals court. And HCR 2060 even has a provision saying its provisions can't be enforced here until the Texas law -- or something close to it from another state -- has been allowed to take effect.
Shamp, however, insisted what's in HCR 2060 has nothing to do with federal immigration law.
"This is about breaking the law by coming in to our state from a foreign nation through any other means besides a port of entry,'' she said. "We're not doing anything with federal law.''
But there's another potential conflict with federal law.
The criminal provisions allowing arrests do not apply to those who have been granted lawful presence or asylum. There is no such protection for those who, once they have entered the country, have applied for asylum but it has not been granted.
"It is lawful to see asylum in the state of Arizona and in the United States of America even if you're not at a port of entry,'' Bravo said.
Shamp dismissed the concern.
But arresting those who have entered the country, surrendered themselves to Border Patrol, and are now awaiting adjudication of their asylum applications would appear to run afoul of federal law.
"If you are eligible for asylum you may be permitted to remain in the United States,'' according to a fact sheet by U.S. Citizenship and Immigration Services.
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