[Updated: I've added a lot of edits and additions to make this more precise and informative.]
The new anti-Mexican law in Arizona is a very serious assault on the rights and dignity of all persons in the United States, whatever their immigration status.
It must be resisted without ceasing, night and day, in all ways possible, until it is erased.
My wife and I have started today in one little way. We have dogs and horses and many birdfeeders. We spend a fortune at PetSmart, which is based in Arizona. Today we start a permanent boycott of PetSmart until the law is changed. There are other ways to get what we need.
My diary from last night had a good discussion of the actual details of the Arizona law and why it is plainly unconstitutional.
In this short diary, I want to give some examples of actual immigration law details, which will dispel some incorrect ideas I keep seeing floating around. U.S. immigration law is mind-bogglingly difficult, convoluted, inconsistent, and fucked up. The actual reality is so confusing that it really is IMPOSSIBLE for ANYBODY, including everybody at DHS, to make reliable, much less efficient, determinations of citizenship or immigration status.
So let me just run some simple examples.
Passports. People keep saying that a U.S. passport will prove U.S. citizenship. But no, that is incorrect. To DHS, a U.S. passport is NOT adequate evidence of U.S. citizenship, believe it or not. Instead, one needs to present a U.S. birth certificate, or citizenship certificate, or naturalization certificate, or other proof of statutory citizenship (some people, for example, acquired citizenship at birth when born abroad and are eligible for a citizenship certificate but have not obtained it). And for every document there are potential problems of charges of fraud, or difficulties in proving that a particular document really pertains to YOU. What if your own birth certificate were challenged? How could you PROVE that it was YOUR birth certificate? Most of us could not do that.
[Correction: From the comments, it seems that DHS may now be generally accepting U.S. passports as proof of U.S. citizenship. That differs from what the immigration bar has long understood, but apparently they've changed on that. This has very little impact on the the rest of this diary, but it may make things easier for U.S. citizens in Arizona who have a passport on their person. Welcome to the new USA, where internal passports are required, just as in the Soviet Union.]
{Addendum (4/26/2010): I'm showing my age. Prior to 1982, a U.S. passport was regarded as only prima facie evidence of U.S. citizenship. But since then 22 U.S.C. sec. 2705 provides that it is fully conclusive proof.]
Visas. People keep saying that foreigners can simply prove their status by showing their "visa." But this is absolutely incorrect.
First, many foreigners do not need visa stamps in their passports in order to lawfully enter the United States. Canadians are visa-exempt, as are citizens of something like 36 other countries under the Visa Waiver Program. (Indeed, it is very common for Canadians who are lawfully in the United States in tourist status to have NO papers whatsoever that document that status, because they are often just waved through at the border. Typically they can prove the status just by submitting an affidavit describing what happened. Of course, Canadians aren't likely to be picked up by this new crackdown in Arizona. But if a Canadian was challenged in Arizona, do you think an Arizona cop would be satisfied with the Canadian's personal statement?)
Second, persons who needed a visa to enter don't need to have a valid visa stamp in order to be in lawful status.
Let me give an example.
The visa is irrelevant to the question of lawful status. In U.S. law, a visa does not confer status. And you don't have to have a currently valid visa.
For example, there are hundreds of thousands of "J-1" foreign exchange students. A J-1 exchange student first gets a form called a DS-2019 from a J-1 sponsor such as a university. (There are thousands of J-1 sponsors, including private companies.)
He then applies for a J-1 visa stamp in his passport, which lets him apply for admission at the border. (But Canadians are exempt from this part of the process...U.S. imm law is circles within circles, schemes within schemes, to paraphrase Frank Herbert from DUNE.)
At the border, if admitted as a J-1, he gets an I-94 card marked "D/S" for Duration Of Status. The I-94 points back to the validity date of the DS-2019. (That is, he is admitted for the duration of the permitted status, as determined by the latest DS-2019, provided he has not gone out of status for some reason, such as not participating in the program.) Note that unlike most I-94s, which is the document that confers status, this guy's I-94 does not have any dates on it: it doesn't have a last validity date. Try to explain "D/S" to an Arizona cop in the middle of the night.
It doesn't matter if the J-1 visa stamp expires. He can keep getting his J-1 status extended by getting new DS-2019 forms every year, sometimes for many years for something like Ph.D. training.
So imagine this scenario.
Cop asks for papers! Student shows passport.
Visa stamp is expired!! Guy gets arrested!!
"But officer, look at my DS-2019!"
Officer: "Stuff it you terrorist! You can just sit here in jail all weekend, and next week, and however long it takes, while we check on you with DHS!" (The law MANDATES a check with DHS.)
Oh! And note that this person may well be a medical doctor who has desperately ill American patients scheduled for surgery that very same day!
I can tell you from years of experience that a significant majority of the officers at DHS are clueless about how J-1 cases work. Moreover, the DHS is not bound by erroneous advice given by its officers, whatever the context. They are completely unreliable and completely untrustworthy. On top of that, they're often openly racist. I could prove that at length, although this diary is getting a bit long.
[Section on change of status added Monday, April 26:
Many people assume that foreigners must have a "visa" to have lawful immigration status. This diary shows that that is absolutely false, since foreigners from many countries never need visas at all (especially Canadians), and also since one can maintain valid nonimmigrant status without having a currently valid visa.
But the original version of this diary missed maybe the most common category of all: some people have no currently valid visa showing their status because they have "changed status" inside the United States from one status to another.
One of the most common examples of this are F-1 students who spend years in F-1 status while finishing college and/or graduate studies, and then "change status" to H-1B (or some other work-authorized status). They may be in the H-1B (or other status) for years and years and years without EVER having an H-1B visa stamp in their passport.
As I keep saying, try explaining this to a cop in the middle of the night.]
Lawful entry. People here are often saying that the key fact is whether a person made a lawful entry. This is incorrect. One may have made an unlawful entry but still have a legal right to remain. On the other hand, one may have made a lawful entry but not have no legal right to remain. In short, whether or not a person made a lawful entry has no automatic relationship to immigration status. (It is true that since the abolishment of INA Section 245(i) in 2001, many people who have subsequently Entered Without Inspection may have no path to lawful status; but many recent EWI entrants are still "grandfathered," that is, protected, under 245(i).)
Out of status. Even if a person currently seems to be out of lawful immigration status, there are many reasons why--after years of legal proceedings--the person can still recover lawful status. This is a huge topic. But I can say that in my 20+ years of experience in immigration law, I've had hundreds of clients who were technically out of status but were pursuing lawful claims of a right to stay. In all that time, NOT ONE of my clients has ever been deported, thank God! But some of those cases took years and years and years before the clients finally got their green cards.
Relying on the government. You absolutely CANNOT trust the government to make accurate determinations of immigration status. There are simply too many issues and complexities. I had a case of a wounded and decorated U.S. Army veteran who arrived in the United States from France with his wife and kids. He was told by a U.S. consular officer that they were all citizens and they were admitted at the U.S. border as U.S. citizens. Decades later, they learned that they were actually all not citizens and had no immigration status. With a lot of effort, the situation was fixed.
I'm just scratching the surface here. There are scores or hundreds of ways to be in valid immigration status without having any kind of papers that would be understood by the DHS, much less a local cop.
The evils of this new law are too many to count, but I guess my main concern is the tremendous injustices that will be imposed on many foreigners, and Hispanic U.S. citizens, who have a perfect right to be here, but no good way to prove it, at least not without long delay and dispute.
Update: Gosh, I'm very happy to see this recommended. Let me now dive into all the meaty discussion that I'm so happy to see!