Federal Alien Registration Law Implicated by Recent Arizona Ruling

Susan Bolton, a federal judge, temporarily halted enforcement of portions of an Arizona law on illegal immigration, called SB 1070. One aspect of the court's injunctive order that has not attracted much scrutiny was its analysis of alien registration requirements. The federal court enjoined Arizona from enforcing the registration law ruling as follows:

Under Section 2(B) of S.B. 1070, all arrestees will be required to prove their immigration status to the satisfaction of state authorities, thus increasing the intrusion of police presence into the lives of legally-present aliens (and even United States citizens), who will necessarily be swept up by this requirement.

United States v. State of Arizona, 2:10-cv-01061-SRB, at page 17 (D. Ariz. July 28, 2010) (Order granting in part and denying in part the United States’ Motion for Preliminary Injunction). The ruling provided:

The United States asserts, and the Court agrees, that “the federal government has long rejected a system by which aliens’ papers are routinely demanded and checked.” (Pl.’s Mot. at 26.) The Court finds that this requirement imposes an unacceptable burden on lawfully-present aliens.

United States v. State of Arizona, 2:10-cv-01061-SRB, at page 21 (D. Ariz. July 28, 2010) (Order granting in part and denying in part the United States’ Motion for Preliminary Injunction).

However, the federal Alien Registration Act already requires every alien over the age of 14 who is in the United States “to apply for registration and to be fingerprinted before the expiration of such thirty days.” 8 U.S.C. 1302. It compels all lawfully present aliens to register and carry immigration documentation.

(e) Personal possession of registration or receipt card; penalties

Every alien, eighteen years of age and over, shall at all times carry with him and have in his personal possession any certificate of alien registration or alien registration receipt card issued to him pursuant to subsection (d) of this section. Any alien who fails to comply with the provisions of this subsection shall be guilty of a misdemeanor and shall upon conviction for each offense be fined not to exceed $100 or be imprisoned not more than thirty days, or both.

8 U.S.C. § 1304(e).

Similarly, except in very rare circumstances, federal law states that all persons desiring to cross our international border must have a valid Visa. See 8 U.S.C. 1181 .

The Alien Registration Act was enacted in 1940, and was used to prosecute communists during the McCarthyism period of U.S. history.

The court's order on SB 1070 lists a series of possible exceptions to the Alien Registration Act and suggests those exceptions create constitutional prohibitions against enforcement of registration requirements. However, the registration requirements are federal. Thus, the recent Arizona ruling, at least in Judge Susan Bolton's mind, may implicate the constitutionality of not only Arizona's registration requirements but the federal as well.

Other Links About Arizona Law:
Federal Lawsuit Against Arizona
1848: The Treaty of Guadalupe Hidalgo
Biden and Pelosi Sport Anti-Arizona Bracelets
Report From the Arizona Border
Racial Profiling and Arizona's Immigration Law

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