Global Immigration Blog : Immigration Lawyers & Attorneys : Jackson Lewis Law Firm : Labor Certification, Adjustment of Status

The U.S. Supreme Court has agreed to hear the U.S. Department of Justice’s challenge to Arizona’s Support Our Law Enforcement and Safe Neighborhoods Act (“S.B. 1070”). Last year, the DOJ filed a lawsuit challenging several of the Act’s provisions on federal preemption grounds, arguing the federal government has exclusive authority to address immigrations issues and policy. A federal district court in Phoenix blocked enforcement of the Act’s most controversial provisions days before they were scheduled to go into effect. On April 11, the Ninth Circuit Court of Appeals sided with the DOJ, affirming the lower court’s decision.

The case could be heard by the Supreme Court as early as April of 2012. Only eight of the justices will hear the case, Justice Elena Kagan recused herself because she was the Solicitor General involved with the Obama Administration’s initial legal opposition to S.B. 1070. Therefore, if the Court splits 4-4 on the legal challenge, the provisions will not take effect. Such a the decision, however, will not settle the larger constitutional issues at stake in the case. Since the Arizona statute was enacted, at least four other states (Georgia, Alabama, Utah, and South Carolina) have enacted similar legislation, which are currently facing challenges in the lower courts.

This will be the second case challenging an Arizona immigration statute to go up to the Supreme Court in as many years. In May 2011, the U.S. Supreme Court, upholding the statute, rejected arguments that Arizona’s Legal Arizona Workers Act (“LAWA”) was preempted by federal law and would lead to discrimination by employers. LAWA imposes sanctions on employers that knowingly or intentionally hire unauthorized workers, as well as requires employers to participate in the federal E-Verify program. In the months since the Supreme Court’s decision, there has been an increase in the number of LAWA investigations by law enforcement officials. That trend is expected to continue.

We will continue to monitor these legal developments. Jackson Lewis attorneys are available to answer any questions concerning compliance with the growing number of state immigration statutes.

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Guest Blog by Scott Blaney

The tide of state immigration laws in Arizona appears to have ebbed. On March 17, 2011, the Arizona State Senate voted down five controversial bills aimed at controlling illegal immigration in the state. The Senate’s rejection of the bills came just two days after 50 Chief Executive Officers in Arizona sent a joint letter to Senate President Russell Pearce urging the Arizona Legislature to back off from efforts to regulate immigration at the state level.

The latest bills follow the 2007 Legal Arizona Workers Act (“LAWA”) and the 2010 Senate Bill 1070, both of which put Arizona at the forefront of states seeking to regulate immigration within their borders. The LAWA was one of the first state-level bills to mandate that businesses use the federal E-Verify system to verify work eligibility of all new hires on or after January 1, 2008. Challenges to the law have been unsuccessful to date and the law is currently under consideration by the U.S. Supreme Court.

A federal court blocked the most controversial parts of Arizona’s other high-profile immigration law, the “Support Our Law Enforcement and Safe Neighborhoods Act,” or SB 1070, such as its mandate that police officers check a person’s immigration status while enforcing other laws. See “Arizona Governor Signs Controversial Immigration Bill Into Law.” Passions run high on both sides of the SB 1070 debate and SB 1070 may find its way to the U.S. Supreme Court, as well.

The five bills defeated in March sought to regulate immigration in a number of ways. For example, SB 1405 would have required hospitals to inquire into an individual’s immigration status and notify law enforcement if an immigration violation was suspected. SB 1407 would have required school districts to collect data on the number of illegal immigrant students attending classes. SB 1611 covered a number of different areas, such as access to universities and colleges, and would have made it a state crime for illegal immigrants to drive a vehicle in Arizona.

The effects the rejected bills might have had on the workplace are not as direct as under the LAWA, but the underlying message is clear. Arizona and similar states will continue to seek ways to curtail illegal immigration. Employers must remain both informed of their obligations and vigilant in their compliance efforts.
 

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The U.S. Department of Justice (“DOJ”) has filed a lawsuit against the Maricopa County Sheriff’s Office, and its well known County Sheriff Joe Arpaio, for his refusal to hand over documents in the DOJ’s long running civil rights probe. The complaint alleges that the Sheriff’s Office is in violation of Title VI of the Civil Rights Act of 1964 by refusing to fully cooperate with the DOJ’s investigation into the Sheriff’s Office’s police practices and jail operations.

The DOJ’s investigation into the Sheriff dates back to the Bush Administration, which started investigating allegations of civil rights violations by the Sheriff’s Office in June 2008. The investigation has focused on allegations that the Sheriff’s Office violated Title VI’s prohibition on national origin discrimination by engaging in a pattern or practice of discriminatory law enforcement conduct.

The DOJ’s lawsuit is the most recent in a series of immigration-related lawsuits filed this year in the federal district court in Arizona. (See Another Lawsuit Filed Challenging Arizona's Senate Bill 1070.) Following enactment of the highly controversial Senate Bill 1070, at least six separate lawsuits were filed in federal court challenging Senate Bill 1070 on a variety of bases. On July 28, Judge Susan Bolton enjoined several provisions of the Bill. The State of Arizona immediately appealed Judge Bolton’s decision to the Ninth Circuit Court of Appeals. The appeal is currently pending.

Finally, the case challenging the Legal Arizona Workers Act (the 2008 bill that established the requirement that all Arizona employers use E-Verify for all new hires) is currently pending before the U.S. Supreme Court. Jackson Lewis will let you know when the Court issues its decision in that case.
 

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On July 22, Judge Susan Bolton of the U.S. District Court in Phoenix heard arguments in two of the most highly publicized challenges to Arizona Senate Bill 1070: (1) the lawsuit filed by a coalition of civil rights groups and labor unions; and (2) the lawsuit filed by the U.S. Department of Justice (“DOJ”). The plaintiffs in both seek to enjoin SB 1070 from taking effect on July 29, 2010.

Judge Bolton does not intend to enjoin SB 1070 in its entirety. Stating that she considers SB 1070 to be an “enactment,” combining new laws and amending existing laws, rather than a “statute,” Bolton indicated she was considering whether to block all or parts of certain key provisions of SB 1070 and steered attorneys toward the more questionable portions of those provisions.

Judge Bolton voiced concerns regarding portions of SB 1070, including a provision that allows law enforcement officers to make warrantless arrests of people suspected of committing offenses that make them “removable from the United States.” At the hearing, Judge Bolton asked: “How can a police officer make a determination that a person has committed a removable offense when that decision can only be made by a federal judge?”

Attorneys for the DOJ argued that the provisions of SB 1070 are pre-empted by federal law. The agency’s lawsuit alleges that SB 1070 “will conflict and undermine the federal government’s care balance of immigration-enforcement priorities and objectives.”

Judge Bolton did not make any rulings at the hearings and has not said when she will issue a ruling. With the statute set to take effect in days, it is anticipated that she will rule quickly. Jackson Lewis will continue to monitor the legal developments surrounding SB 1070.
 

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The U.S. Department of Justice has filed a challenge to the state of Arizona’s recently passed immigration law, S.B. 1070, in federal court.

The Arizona law, called the Support Our Law Enforcement and Safe Neighborhoods Act and scheduled to take effect on July 29, is already the target of at least five other lawsuits filed by civil rights and other groups.

In its suit, filed July 7, the DOJ charges that the Arizona law conflicts with federal law, would disrupt federal immigration enforcement, and would lead to local police harassment of those who cannot prove lawful status. DOJ officials expect a hearing within the next two weeks on their motion for a preliminary injunction blocking the law from going into effect.

The DOJ cites the legal doctrine of "preemption" in its complaint. Preemption is based on the U.S. Constitution's supremacy clause and provides that federal law trumps state statutes. The DOJ argues that because the federal government has "preeminent authority to regulate immigration matters," the Arizona law must be struck down. Additionally, on the more practical side, the DOJ argues that the Arizona law would unduly burden federal agencies charged with immigration enforcement. Enforcement of the Arizona law would result in Arizona referring so many illegal immigrants for deportation, the lawsuit argues, that federal officials would lose focus on top priority targets, such as immigrants involved in terrorism or other crimes. The suit also claims that the Arizona law would overburden local law enforcement officials.

Although the lawsuit mentions potential "detention and harassment" of U.S. citizens and immigrants who do not carry identification documents, it does not argue that the law would lead to racial profiling.

An official press release, along with copies of the complaint and supporting documents, can be found at the Department of Justice website: http://www.justice.gov/opa/pr/2010/July/10-opa-776.html.
 

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The Arizona legislature has already made several changes to its recently enacted immigration statute, Support Our Law Enforcement and Safe Neighborhoods Act (Senate Bill 1070). On the legislature’s last day in session, it passed changes to the law, which the Bill’s sponsor, Senator Russell Pearce, stated were intended to clarify that “the bill prohibits racial profiling in any form.”

Opponents of the Bill had expressed concerns about how crime victims or witnesses would be treated in light of the Bill’s requirement that law enforcement question individuals concerning their immigration status during any “lawful contact.” In an attempt to address this issue, the legislature amended the statute to require questioning only where there is a “lawful stop, detention or arrest.” Moreover, the legislature eliminated the word “solely” from the provision in the Bill, stating that law enforcement officials may not “consider race, color or national origin…” in establishing reasonable suspicion that someone is in the country illegally. Finally, the Bill was also amended to clarify that law enforcement officials responding to city-ordinance violations would be required to determine the immigration status of an individual they have reasonable suspicion of being in the country illegally.

Governor Brewer signed these changes into law on April 30, stating that she believed the new language, combined with the original wording of the Bill, gives the law "maximum ability to withstand legal scrutiny." These changes will become effective with the rest of the Bill on July 29, 2010.

The changes, however, have done nothing to stop the furor over the Bill’s enactment. The calls for boycotts of Arizona and its businesses have continued to increase in the week since the Governor signed the Bill and will undoubtedly have an impact on Arizona employers.

We will continue to follow these breaking developments.
 

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The fervor surrounding Arizona’s new immigration statute, Support Our Law Enforcement and Safe Neighborhoods Act (Senate Bill 1070), has grown in the days since Governor Jan Brewer signed the Bill into law on April 23, 2010. The Arizona legislature adjourned on April 29, 2010, which means the Act will become effective 90 days later, July 28. The whirlwind of activity will likely increase in the period before the statute is scheduled to take effect.

On April 29, 2010, three separate lawsuits were filed challenging Senate Bill 1070. The first was filed by the National Coalition of Latino Clergy and Christian Leaders in U.S. District Court for the District of Arizona, alleging that the Act “creates state-wide immigration regulations [that are] independent from the existing federal system and clearly conflict[] with federal immigration law.” In addition, a well known Arizona civil rights lawyer filed two separate lawsuits in federal court (one on behalf of a police officer in Tucson and the other on behalf of a police officer in Phoenix) alleging, among other things, that the Act violates the First, Fourth, Fifth and Fourteenth Amendments of the United States Constitution. Leaders of three prominent civil rights groups announced they are planning to file a lawsuit to challenge the Act.

Meanwhile, calls for boycotts of Arizona businesses have spread and even gained momentum. Further, officials in San Francisco and Los Angeles have proposed that their cities not do business with companies in Arizona. Elected officials in other places, including St. Paul, Minnesota, have called for a boycott. Several groups have reportedly cancelled conventions planned for Arizona in opposition to the Act.
 

We will post updates as warranted.
 

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Less than two years after the enactment of the Legal Arizona Workers Act (“LAWA”), Arizona Governor Jan Brewer has signed into law the Support Our Law Enforcement and Safe Neighborhoods Act (Senate Bill 1070). The Act requires law enforcement officials to attempt to determine the immigration status of any person that they believe to be an alien unlawfully present in the United States. The Governor’s decision has thrust Arizona into the spotlight of immigration reform debate.

The controversial statute has attracted both national and international attention since the April 23 signing and has led to daily protests at the Arizona State Capitol in downtown Phoenix, as well as throughout the country. Several public figures have spoken out in opposition to the statute and there have been widespread calls to boycott Arizona businesses. Despite this, Arizona polls show widespread support for the bill among Arizona residents.

While opposition to the bill has focused largely on the new requirement imposed on law enforcement officials, Senate Bill 1070 has two provisions that will impact Arizona employers. The statute includes a provision prohibiting the hiring of day laborers. This same provision makes it a crime for unlawful aliens to “apply for work, solicit work in a public place or perform work as an employee or independent contractor in this state.” Senate Bill 1070 also adds a recordkeeping provision to LAWA that requires employers to maintain E-Verify verifications for each employee hired after January 1, 2008 for the duration of the employment or at least three years, whichever is longer. In addition, it adds a defense of entrapment for employers facing a claim that they either intentionally or knowingly hired an unauthorized alien.

Jackson Lewis will be closely monitoring developments relating to Senate Bill 1070 and the impact it will have on employers in Arizona and will be providing regular updates.
 

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