Susana Martinez’s Executive Order Has Its Problems, But It’s Not SB-1070

Shortly after she won the New Mexico governership, Susana Martinez (R) told Univision that she did not support bringing Arizona’s tough immigration law, SB-1070, to her state. “No, no, I don’t want that for New Mexico,” said Martinez. However, Martinez has come under some sharp criticism for issuing an executive order which has caused some opponents to claim that the governor has “created an SB 1070-like policy.”

Martinez’s order rescinds a policy by former Gov. Bill Richardson (D-NM) which prohibited state law enforcement from asking about a person’s immigration status only for the purpose of determining whether the individual was in violation of federal immigration laws. However, it appears Martinez is going a few steps farther by actually directing state law enforcement to ask about a person’s immigration status upon arrest:

WHEREAS, when a person, regardless of race, is arrested for a crime, state law enforcement officers shall inquire into the criminal suspect’s immigration status, and report relevant information to federal immigration enforcement authorities

I spoke with Melissa Keaney today, an attorney at the National Immigration Law Center who expressed some serious concerns about Martinez’s directive. To begin with, the executive order doesn’t specify at what point during the process of being arrested a person’s status should be checked. Given the fact that a lot of times victims and witnesses accidentally get arrested before it is clear who committed a crime, it makes a big difference whether a person is asked about their immigration status upon being booked in jail or at the time of conviction. Keaney also pointed out that the Secure Communities program — which allows police to identify undocumented immigrants by screening their fingerprints against immigration databases — is already used in 97 percent of the state. That means that Martinez is essentially adding yet another layer of police involvement in the enforcement of federal immigration law.

However, despite these troubling issues with Martinez’s executive order, Keaney affirmed, “I could not say this is an SB-1070 copycat by any stretch of the imagination.” Brittney Nystrom, Director of Policy and Legal Affairs at the National Immigration Forum agrees. She pointed out to me that while SB-1070 allows for a warrantless arrest as soon as there is probable cause that the individual committed a deportable offense, Martinez’s order appears to be be limited to asking questions about immigration status and then reporting that information to Immigration and Customs Enforcement (ICE). “No arrest power is set forth for New Mexico law enforcement officers,” stated Nystrom.

Secondly, and perhaps most importantly, SB-1070 requires police to ask about immigration status during any lawful stop when reasonable suspicion exists that the person they are dealing with might be an undocumented immigrant. While SB-1070 authorizes police to inquire about immigration status for a simple violation of a city ordinance or traffic law, Martinez’s order does not. SB-1070 also has a lot of other disturbing components that the New Mexico executive order does not even touch on. Ultimately, it’s not even clear how much power Martinez has to institute a policy that even remotely resembles SB-1070. “Whether she has the authority to do this or not will probably be decided by the courts,” stated Nystrom.

Martinez’s immigration actions are noteworthy because they cast some serious doubt on the argument that has been trumpeted by Republican leadership that the successful candidacy of a Latina candidate for governor is proof that the GOP isn’t anti-immigrant and doesn’t have a problem with Latinos. Meanwhile, it seems to me, the main connection between SB-1070 and her executive order is that SB-1070 created the political space for Martinez to not only overturn Richardson’s immigration policy, but also replace it with her own right-wing approach to immigration. However, conflating the two simply adds to the fear New Mexico’s immigrant community will already be facing.