Who will be turned over to federal authorities in New Mexico?

In a previous article I gave a preliminary review of New Mexico Governor Susana Martinez’s watered down version of Arizona’s “show-me your-papers” law that raised several important questions. To understand the implications of the new executive order, I contacted her spokesperson Scott Darnell by e-mail and voice mail and asked for clarifications. He failed to respond, leaving us to ponder the implications on our own.

First, let’s review the old law under then-Democratic Governor Bill Richardson. In 2005 he signed executive order 2005-019 prohibiting state law enforcement from asking about a person's immigration status solely for the purpose of determining whether a criminal suspect is in violation of federal immigration laws. This was interpreted as a “sanctuary law” for illegal aliens.

Some cities in New Mexico including Albuquerque, Aztec, and Santa Fe went even further by prohibiting federal authorities from entering city jail facilities due the perception of “racial profiling” by the feds. These so-called sanctuary cities represented a sort of don’t-ask-don’t-tell for immigration status.

Now, under a Republican governor police are required to determine the status of everyone who has been arrested, regardless of race or ethnicity. My understanding is that this is not racial profiling since everyone arrested is subject to a citizenship status check.

This has not stopped Marcella Diaz, an immigration rights activist with Somos Un Pueblo Unido from declaring on KOAT-TV News:

"It was a knee jerk decision that was not well thought out".

But there is at least one key difference between New Mexico and Arizona’s law.

Arizona’s SB1070 permits the police to determine the immigration status of any individual suspected of being undocumented without regard to suspected criminal activity. This means anyone who merely looks like an illegal could be subject to arrest. Since only illegal Mexicans are in Arizona’s crosshairs, this appears to be clear cut example of racial profiling—and has rightly earned the ire of civil rights advocates nationwide. 

After re-reading Martinez’s executive order, and after speaking with an official with the National Coalition of Public Saftey Officers, I initially concluded that in New Mexico you actually have to be arrested before police can check your immigration status. And according to Public Safety Secretary Gorden Eden:

“An immigration check will be made when someone is physically taken into custody and booked into jail, usually for a felony”.

I'm not sure if this is completely accurate.

For example, let’s say you are a DREAM Act student at the University of New Mexico and get pulled over by the police for driving a car that matches the description of a stolen vehicle. If, in this hypothetical case, if you can show the car was not stolen but cannot provide proof of citizenship (or a current visa), some say you can still be turned over to federal authorities. However, since the feds are not motivated to deport alien students (they are concentrating on criminal aliens), the student in this example is likely to be released.

If anyone is aware of an undocumented alien that was turned over to Immigration and Customs Enforcement (ICE) without being arrested for a crime, please let us know immediately. And before you say that entering the country illegally is a crime, it is not. It is a civil violation. (Let’s not get into that distinction since it is not germane to this critical issue.)

My informal poll of comments on articles about this new policy show overwhelming support for Martinez’s action.  And many strongly oppose the continued presence of illegal aliens in New Mexico. It remains to be seen what effect this policy will have on the limited resources of law enforcement, and on the state legal budget if U.S. citizens are accidently targeted. In the meantime, expect Democratic representatives in Santa Fe to seek repeal of this measure. And we still wait for Congress to take up comprehensive immigration reform.