Immigration law's broad wording has legal Arizona residents worried

by Alia Beard Rau -
Jun. 13, 2010 12:00 AM
The Arizona Republic

For more than a month now, the debate has raged over how Arizona's new immigration law could directly impact illegal immigrants and minorities concerned about racial profiling. But when Senate Bill 1070 goes into effect July 29, it will touch the lives of all Arizonans.

The law reaches beyond the questioning of illegal immigrants and casts a wide net over people who may come in contact with them as well, making many worry that they may inadvertently break the law.

Most of the talk concerns provisions in the law that make it a state crime to be in the country illegally, but the law also makes it a crime to stop your car in the road to hire a day laborer if it impedes traffic. It also makes it a crime to transport, harbor, conceal or shield an illegal immigrant if you do so while committing a separate criminal offense.

And while most Arizonans don't intend to commit a crime that would put them at risk of violating the law, many are confused enough by its wording that they worry they could unwittingly violate it. They are unsure whether a criminal offense means armed robbery and homicide or speeding and having tall weeds. They don't know what activities could be covered under "harboring" or "sheltering," and the law doesn't offer any examples. It also doesn't explain impeding traffic.

Those portions of the law are broad enough in scope to leave people questioning activities they never before would have given a second thought: Can you still hire a day laborer to help you build a front walkway? Should you stop serving food at the local homeless shelter? Is it OK to rent a house to someone who may be an illegal immigrant? Must you ensure that your landscaper or housekeeper is legal? Should you confirm the legal status of your son's friends before letting him drive them to school?

Legal experts say many of those questions likely won't be answered until police begin to enforce the law and the courts begin to interpret it. For now, some say, it may be better to err on the side of caution.

"Don't have anyone in your house who is not documented, don't give anyone a ride who is not documented," said Jack Chin, a University of Arizona James E. Rogers College of Law professor whose specialties include immigration law. "Because we don't know for sure how this law is going to be interpreted, it's not free from risk."

Day labor

The law makes it illegal for someone in a vehicle to stop on a "street, roadway or highway" to pick up someone for work at a different location if the vehicle blocks or impedes traffic in the process. It also makes it illegal for someone to get into a vehicle stopped on a "street, roadway or highway" to be hired for work at a different location if the vehicle blocks or impedes traffic.

That's a concern to Marilynn Wennerstrom, who owns an older home on a 3-acre lot in Mesa. She said she has, on occasion, used day laborers to help with yard projects.

"I needed somebody, and what am I going to do, go to the grade school and get a sixth-grader?" she asked.

But she said with the new immigration law, she may have to find another solution.

"Now, if I go down and pick up one of these guys, is somebody going to haul me off and impound my truck?" she asked.

While the day-labor provision is considered one of the more clear-cut parts of the law, there is still confusion. Attorneys say there is no legal definition of impeding traffic, and different officers would likely interpret it differently. It would not apply to someone picking up a day laborer in a private parking lot.

This part of the law is not limited to illegal immigrants, but supporters have said the intent is to make it more difficult for illegal immigrants to find work.


The law makes it illegal for someone to conceal, harbor or shield an illegal immigrant from detection if the person knows or recklessly disregards the fact the immigrant is in the country illegally, and is also committing another criminal offense.

A person convicted of harboring an illegal immigrant is guilty of a Class 1 misdemeanor and subject to a fine of at least $1,000.

The portion of the law requiring "another criminal offense" would seem to give some protection to people who are around illegal immigrants, as they would have to be committing some other crime first. However, it is unclear how easily some other activity could end up connecting them to a violation of SB 1070.

State statutes say a "criminal offense" could be anything from a misdemeanor involving physical injury to a felony. That could include illegally copying more than 10 songs, driving more than 20 mph over the speed limit, getting into a fistfight, drug possession or extreme DUI.

Anyone who commits such a crime and also harbors an illegal immigrant might be violating SB 1070, experts say.

There is also no definition of harboring in state statutes, and court interpretations vary.

Chin said most people may assume that harboring means actively concealing someone from the police. But under the letter of the law, he said, the crime could be enforced more broadly. "If you sell food to someone who is undocumented, is that free from risk? No, it's not," he said. "If you have a dinner party and someone comes into your house, we wouldn't think of that as concealing. But it's difficult to know."

Religious and non-profit groups have questioned whether they could be charged for feeding or housing the needy, businesses have wondered whether they could be cited for having an illegal-immigrant customer or employee inside one of their buildings. Parents have asked whether they need to check the legal status of their children's friends before inviting them over for dinner or to spend the night.

Wennerstrom has two rental houses. She said she has read the law, and she currently has two long-term tenants that don't cause any trouble and aren't illegal immigrants.

"I'm not in violation of a criminal offense - at least not that I know of - so hopefully it would not apply to me if circumstances arise where I do happen to rent to a tenant who happens to be in the United States illegally," she said.

But she said she still is unclear about whether renting is harboring.

"The general provisions and demands of this law are enough to make a landlord or rental agent very apprehensive," she said.

Bob McWhirter, a senior attorney with the Office of the Legal Defender in Maricopa County, said it's common to hire a landscaper or a housekeeper and not ask about legal status.

"Everybody is now worried that the person they've been hiring for a long time may get them in trouble," he said. "What will the bill do? It's still hard to know. You're going to have different jurisdictions enforcing it differently."

In order to violate the harboring provision, it must be proven that a person recklessly disregarded the fact someone was in the country illegally.

Chin said recklessly disregarding would be if someone, for example, ignored strong signs that aroused suspicion that a person was in the country illegally but he or she deliberately didn't ask.

"If it never occurs to you that a person is undocumented, then you're fine," Chin said.


The law makes it illegal for someone to transport or move an illegal immigrant in furtherance of the immigrant's presence in the U.S. if the person knows or recklessly disregards the fact that the immigrant is in the country illegally. The law has exceptions for Child Protective Service workers and emergency responders such as police or ambulance drivers.

The possible sentencing is the same as for harboring, and the provision contains the same possible protections, saying people must know or recklessly disregard status, and must already be in violation of a criminal offense.

Because of this, the provision raises many of the same questions. The law also does not explain what may constitute furtherance of an immigrant's presence.

Luz Santiago, a pastor in Mesa, is a plaintiff in a federal lawsuit challenging the constitutionality of SB 1070. In the lawsuit, she states that most of her congregation is in the country illegally. She often drives them to doctor's appointments, the grocery store and school. Once a month, she also transports youths to spiritual outings.

"Ms. Santiago is concerned that she could be subject to prosecution under the transporting and harboring provisions of SB 1070 for performing work that is central to her role as a religious leader," the lawsuit states.

Santiago's attorney said she would not comment further.

Law supporters have said this portion was intended to target individuals who traffic immigrants over the border.

Phoenix resident Patrick McElroy, 71, said he has read the law, has been following the debate and believes this portion isn't intended to impact people who aren't smugglers.

"It's clear on its face that the law isn't intended for a taxi driver who takes someone from the airport to the hotel," he said. "If it is, then we have real problems."

But Chin said if that were the case, then lawmakers wouldn't have needed to include exceptions for CPS and emergency responders.

"But what else could it mean? That's hard to say," he said. "I do not think it's free from risk to give an undocumented person a ride. I do not think it's free from risk, for example, for a public-bus driver to take an undocumented person to the mall. Buying clothes and food certainly helps someone remain in the United States."

John Messing, a Tucson immigration attorney who works with both illegal immigrants seeking naturalization and with businesses that work with immigrants, said the law should make all Arizonans stop and think.

"People who have contact with people who are in the country illegally are running some kind of indefinable, unquantifiable risk of breaking the law," he said.

Finding answers

Arizona residents have heard from state lawmakers what they intended Arizona's new illegal immigration law to mean, from activist opponents about what they fear the law will mean and from legal experts about what they interpret the law to mean.

But the only consensus seems to be that there will be no clear answers until officers begin to enforce the law, prosecutors begin to file charges and judges begin to interpret the law.

"One of the things that's always true about laws is how they actually affect people depends as much on how they are enforced and interpreted by the court as on how they are written," said Tim Berg, an attorney with Fennemore Craig who helped produce a memo on the law for some of the firm's business clients.

Chin said maybe that was the point with SB 1070. The intent was "attrition through enforcement," to deter illegal immigrants.

"This is not a statute that was designed to give people the ability to read it and figure out what's permitted and what's not," Chin said. "No clear rules means that people who want to be safe basically have to have no contact with undocumented people." ... rding.html