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

Guest Blog by Scott Blaney

The Ninth Circuit Court of Appeals has dealt a blow to Arizona’s controversial Support Our Law Enforcement and Safe Neighborhoods Act (S.B. 1070) on April 11, affirming a lower court’s decision to block key portions of the immigration law from taking effect. 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 U.S. Department of Justice challenged S.B. 1070 in federal district court in Phoenix, arguing that the authority of the federal government to regulate immigration preempted Arizona’s attempt at curbing illegal immigration.

Of the Act’s mandates aimed at deterring the unlawful entry and presence of illegal immigrants in Arizona, a federal district court in Phoenix blocked four of the most controversial as unconstitutional: (1) the portion of the law that requires an officer to attempt to determine the immigration status of a person stopped, detained or arrested upon reasonable suspicion of unlawful presence; (2) the portion that makes failure to apply for or carry alien registration documents a criminal act; (3) the portion that allows a warrantless arrest of a person where there is probable cause to believe the individual committed an offense that makes him or her removable from the U.S.; and (4) the portion that makes application for or performance of work by illegal immigrants a criminal act. The Ninth Circuit agreed with the lower court.

Other portions of the law, however, have been permitted to stand, including: (1) a mandate that local law enforcement officers enforce federal immigration laws; (2) the portion that makes the transport or harboring of an illegal immigrant a criminal act; and (3) the portion that makes the picking up of a day laborer in a roadway a criminal act if it impedes traffic.

Proponents of the law, including Arizona Governor Jan Brewer and state Attorney General Tom Horne, have vowed to appeal the ruling.
 

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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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