PHOENIX — The Republican-controlled Arizona Legislature gave final approval Tuesday to a proposal asking voters to make it a state crime for noncitizens to enter the state through Mexico at any location other than a port of entry, sending the measure to the Nov. 5 ballot.
The vote came as President Joe Biden unveiled plans Tuesday to restrict the number of migrants seeking asylum at the U.S.-Mexico border, saying “This action will help to gain control of our border, restore order to the process.”
Arizona’s proposal, approved on a 31-29 vote by the state House, would allow state and local police to arrest people crossing the border without authorization. It would also give state judges the power to order people convicted of the offense to return to their countries of origin.
The proposal bypasses Democratic Gov. Katie Hobbs, who had vetoed a similar measure in early March and has denounced the effort to bring the issue to voters.
House Republicans closed access to the upper gallery of the chamber before the session started Tuesday, citing concerns about security and possible disruptions. The move immediately drew the criticism of Democrats, who demanded that the gallery be reopened.
“The public gallery should be open to the public. This is the people’s House,” said state Rep. Analise Ortiz.
House representatives voted along party lines, with all Republicans voting in favor of the proposal and all Democrats voting against it.
Supporters of the bill said it was necessary to ensure security along the state’s southern border, and that Arizona voters should be given the opportunity to decide the issue themselves.
“We need this bill and we must act on it,” said state Rep. John Gillette, a Republican.
Opponents called the legislation unconstitutional and said it would lead to racial profiling, separating children from parents and create several millions of dollars in additional policing costs that the state can ill afford.
“It is not a solution. It is election year politics,” said Rep. Mariana Sandoval, a Democrat.
The proposal is similar to a Texas law that has been put on hold by a federal appeals court while it’s being challenged. The Arizona Senate approved the proposal on a 16-13 party-line vote. If it clears the House, the proposal would bypass Democratic Gov. Katie Hobbs, who vetoed a similar proposal in early March, and instead get sent to the Nov. 5 ballot.
While federal law already prohibits the unauthorized entry of migrants into the U.S., proponents of the measure say it’s needed because the federal government hasn’t done enough to stop people from crossing illegally over Arizona’s vast, porous border with Mexico. They also said some people who enter Arizona without authorization commit identity theft and take advantage of public benefits.
Opponents say the proposal would inevitably lead to racial profiling by police and saddle the state with new costs from law enforcement agencies that don’t have experience with immigration law, as well as hurt Arizona’s reputation in the business world.
But supporters have waved off racial profiling concerns, saying local officers would still have to develop probable cause to arrest people who enter Arizona between the ports of entry.
The backers also say the measure focuses only on the state’s border region and — unlike Arizona’s landmark 2010 immigration law — doesn’t target people throughout the state. Opponents point out the proposal doesn’t contain any geographical limitations on where it can be enforced within the state.
The ballot proposal contains other provisions that aren’t included in the Texas measure and aren’t directly related to immigration. Those include making it a felony punishable by up to 10 years in prison for selling fentanyl that leads to a person’s death, and a requirement that some government agencies use a federal database to verify a noncitizen’s eligibility for benefits.
Warning about potential legal costs, opponents pointed to Arizona’s 2005 immigrant smuggling ban used by then-Maricopa County Sheriff Joe Arpaio to carry out 20 large-scale traffic patrols that targeted immigrants. That led to a 2013 racial profiling verdict and taxpayer-funded legal and compliance costs that now total $265 million and are expected to reach $314 million by July 2025.
Under the current proposal, a first-time conviction of the border-crossing provision would be a misdemeanor punishable by up to six months in jail. State judges could order people to return to their countries of origin after completing a term of incarceration, although the courts would have the power to dismiss cases if those arrested agree to return home.
The measure would require the state corrections department to take into custody people who are charged or convicted under the measure if local or county law enforcement agencies don’t have enough space to house them.
The proposal includes exceptions for people who have been granted lawful presence status or asylum by the federal government.
The provision allowing for the arrests of border crossers in between ports would not take effect until the Texas law or similar laws from other states have been in effect for 60 days.
This isn’t the first time Republican lawmakers in Arizona have tried to criminalize migrants who aren’t authorized to be in the United States.
When passing its 2010 immigration bill, the Arizona Legislature considered expanding the state’s trespassing law to criminalize the presence of immigrants and impose criminal penalties. But the trespassing language was removed and replaced with a requirement that officers, while enforcing other laws, question people’s immigration status if they were believed to be in the country illegally.
The questioning requirement was ultimately upheld by the U.S. Supreme Court despite the racial profiling concerns of critics, but courts barred enforcement of other sections of the law.