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May 03, 2011 Articles

The Ninth Circuit and Arizona's Senate Bill 1070

One day before the law was set to take effect, the district court granted a preliminary injunction, blocking certain provisions of the law from going into effect.

By Mahsa Aliaskari

With a statewide E-Verify mandate in 2008, Arizona pioneered state-led immigration enforcement measures and since then we have seen a number of states adopt similar measures. Meanwhile, Arizona continues with its efforts to address immigration and the undocumented population working and residing in the state at a time when the federal government is failing to act. The most recent development in this battle occurred on April 11, 2011, when the state was unsuccessful in challenging a U.S. district court injunction blocking key provisions of the controversial Arizona law, known as Senate Bill (S.B.) 1070, in a case brought by the Department of Justice (DOJ). Support Our Law Enforcement and Safe Neighborhoods Act, as amended by H.B. 2162. Siding with the Obama administration, a three-judge panel of the U.S. Ninth Circuit Court of Appeals affirmed the lower court’s ruling enforcing the injunction (United States v. Arizona, 9th Cir., No. 10-16645, 4/11/11). S.B. 1070 took effect on July 29, 2010. However, one day before the law was set to take effect, the district court granted a preliminary injunction, blocking certain provisions of the law from going into effect.

S.B. 1070 created a number of immigration-related stated offenses designed to promote Arizona’s goal of attrition through enforcement. Following the decision, four provisions of S.B. 1070 continue to be blocked under the injunction, in part due to the conflict between provisions of S.B. 1070 and federal immigration policy (United States v. Arizona, D. Ariz., No. 2:10-cv-01413, preliminary injunction 7/28/10; 144 DLR AA-1, 7/28/10). Under the doctrine of preemption, if either specific provisions or the law in whole is deemed to be preempted by federal law, it will then be deemed unconstitutional.

The DOJ contends that federal immigration law preempts S.B. 1070 in whole, and in granting the injunction, the court noted that the DOJ was likely to succeed in its claim. Judge Richard Paez noted that “[t]here can be no constitutional application of a statute that, on its face, conflicts with congressional intent and therefore is preempted by the supremacy clause.” Under the Constitution, federal law is the supreme law of the land. When a state law clashes with federal law, it is up to the courts to decide whether the state law is preempted by the federal law.

The Ninth Circuit found that Arizona’s law undercuts the national scheme enacted by Congress and complicates the conduct of U.S. foreign policy. In addition, the court echoed concerns voiced by many that such state-specific laws have the potential to create a patchwork of legislation in all 50 states, a prospect feared by companies conducting business and hiring workers nationwide. In its decision, the Ninth Circuit identified provisions in the Arizona law that present explicit conflicts, as well as obstacles to, the enforcement of federal law. Specifically the court identified the following:

  • Section 2(B). Provision requiring state police to check the immigration status of all individuals stopped, detained, or arrested if the officers “reasonably” suspect the individual of being in the country illegally. At a macro level, the Ninth Circuit noted a presumption of preemption due to the fact that states do not traditionally occupy the field of identifying immigration violations. At the micro level, the majority concluded that the provision is preempted by the law responsible for the 287(g) program. This program allows local police to enforce immigration laws under federal supervision, thereby barring states from independently granting their officers the authority to enforce federal immigration laws. As noted in the decision, section 2(B) “sidesteps Congress’ scheme for permitting the states to assist the federal government with immigration enforcement.”
  • Sections 3. Provision making it a state crime to fail to apply for or carry alien registration papers. The court found that the provision is preempted by federal laws and would be deemed unconstitutional as Congress left no room for states to regulate and require individuals in the United States to carry federal immigration documents. In addressing section 3, the majority noted once again that punishing unauthorized aliens for failing to comply with federal registration requirements is not a field traditionally occupied by states, and therefore, the section would be preempted.
  • Section 5 (C). Provision criminalizing work by an undocumented alien, as well as solicitation for work, without federal authorization. With respect to section 5 (C), the majority noted that the provisions of the Immigration Reform and Control Act (IRCA), criminalize the actions of an employer in hiring undocumented workers. Given the provisions of IRCA and the legislative history confirming that Congress chose not to fine, detain, or institute criminal sanctions against the undocumented employee, according to the majority, Congress would therefore not sanction criminalization of work through state legislation.
  • Section 6. Provision authorizing warrantless arrests of aliens believed to have committed offenses in another state that would have been a crime in Arizona and that crime would have made the individual removable from the United States. These types of arrests would be authorized even when prosecutors previously declined to bring charges against the individual. They would also be authorized when the offense and conviction of the offense occurred in a state where the crime did not rise to the level necessary to make the alien removable, but had it been committed in Arizona it would have risen to that level under Arizona law. The court did not agree that state police have “inherent authority” to arrest persons for being unlawfully present in the United States. Interestingly, a recent decision in Tenth Circuit reached a different conclusion, where the Tenth Circuit upheld a state statute authorizing arrest based on unlawful status. This conflicting decision increases the odds that the challenge to S.B. 1070 will indeed reach the Supreme Court.

Given that one judge on the three-judge panel dissented in the decision, Arizona may ask for the case to be reargued before a larger panel of Ninth Circuit judges before appealing the injunction to the Supreme Court. If the Supreme Court declines to step in, the case will be returned to the trial judge in the district court to review the case on its merits and determine whether the temporary injunction should become permanent.

Keywords: E-Verify, immigration, Support Our Law Enforcement and Safe Neighborhoods Act, immigration enforcement

Mahsa Aliaskari is a shareholder with Greenberg Traurig, LLP in Los Angeles, California. This article was originally published by Greenberg Traurig, LLP. Reprinted with permission.

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