by Moses Apsan, Esq.
November 8, 2010 - The outcome of the Arizona "papers please" law will be decided by a three-judge panel of the 9th U.S. Circuit Court of Appeals. They will weigh the legality of Arizona's immigration law, SB 1070. The three judges will decide Arizona's appeal of a lower-court ruling that blocked the most-controversial sections of the law from being applied.
The Arizona law (SB 1070) allows state officials to inquire into the immigration status of any person based upon "reasonable suspicion": For any lawful contact made by a law enforcement official or agency of this state or a county, city, town or other political subdivision of this state where reasonable suspicion exists that the person is an alien who is unlawfully present in the United States, a reasonable attempt shall be made, when practicable, to determine the immigration status of the person.
Two Primary Issues with the law:
Racial Profiling – The state and county enforcement officers are to use the “reasonable suspicion” standard when coming into lawful contact with any individual, not just illegal alien. It could even be an American citizen.. This should mean that the officer must have to have some reason, outside of race alone, to request documentation from the individual who is stopped, questioned, detained, arrested, etc. Governor Brewer recently toned down the “any awful contact” however, officers may stop and ask for documents from everyone in a van or car that is blocking or impeding the flow of traffic. This is a very low level of inquiry, which can basically stop a major portion of drivers.
Doctrine of preemption – Whether the Arizona law usurps the power of the Federal Government to be the sole arbiter of immigration laws.
Proponents Argument #1
Doctrine or Preemption - Since the federal government did not do anything about the immigration problem they are in essence relegating the responsibility to the individual states as permitted by the 10th Amendment of the Constitution.
SB 1070 would expose the fact that the Federal Administration has completely abandoned its duty to secure the border and enforce our immigration laws, ultimately forcing Arizona to enact the law. Senator Jim Inhofe (R-Okla.) described the law a reaction to the federal government's inaction, "I think the frustration is that the federal government isn't enforcing the laws, so we're going to do it on the state level." (The Hill, April 26, 2010). Senator John McCain (R-Ariz.) said that his state had to pass a tough immigration law because Obama has failed to "secure our borders." (The Associated Press, April 27, 2010). He added that the situation in his state is "the worst I've ever seen."
Proponents Argument #2
Proponents of the law have repeatedly referred to the killing of two Phoenix police officers by illegal immigrants in 2007, or the recent killing of a cattle rancher near the Mexican border by a drug smuggler. State Rep. John Kavanagh, a co-sponsor of the law, said of illegal immigrants, "They bring a lot of crime with them."
Phoenix Police Chief Jack Harris told reporters that some 10% of his arrests are illegal immigrants — a number near the estimated percentage of undocumented immigrants in the local population. The Maricopa County sheriff's office, which runs the jail for Phoenix and surrounding cities, said 20% of its inmates are illegal immigrants. Fifteen percent of state prisoners are illegal immigrants.
The bill's proponents contend that criminals in Mexico are increasingly heading north through Arizona. "A large portion of [illegal immigrants] are coming here seeking a life and, quite frankly, fleeing the violence in Mexico," said Brian Livingston, executive director of the Arizona Police Assn., who added he was persuaded to back SB 1070 by calls from a Latina complaining that no one arrested illegal immigrant gang members in her neighborhood. "Amongst those people are criminal elements who prey on those people," he said.
The Law Suit
In an unusual step the Justice Department sued Arizona in an attempt to overturn the law and successfully put on hold sections that would allow for warrantless arrests of suspected illegal immigrants and criminalization of immigrants for failure to carry their immigration papers. In July 2010, U.S. District Court Judge Susan Bolton struck down key provisions of SB1070 before it took affect, thereby agreeing with the federal government's argument that immigration enforcement is the duty of the federal government.
Arizona had argued that these portions of the law were necessary to fight a growing avalanche of illegal aliens entered though the Mexican border. Civil rights groups and federal lawyers however, objected.
Federal Judges ruling unsure
If the three-judge panel rules in favor of the federal government, the state could apply to the full 9th Circuit hear its appeal. The case would then go directly to the U.S. Supreme Court.
It is difficult to guess how each of the three appellate judges will rule. All three judges are experienced on pre-emption appeals. Judge Noonan, appointed by President Reagan, is labeled conservative. Judge Paez, appointed by President Clinton - is labeled a liberal. Judge Bea, a conservative appointed by President Bush is a former immigrant who nearly got deported.
Bea and Paez are of Hispanic descent, and it is Hispanics who are most disappointed with the Arizona law.
Comments from the judges imply that they may uphold a major part of the injunction against two provisions of SB 1070: one that criminalizes non-citizens’ failure to register with the federal government or carry immigration documents, and another that criminalizes undocumented immigrants’ attempts at finding or engaging in work. The Justice Department maintains that the provisions make criminal, under Arizona law, activities that are subject only to civil penalties under federal law. When these provisions were brought up, Bea and John Noonan, a Reagan appointee directed the attorney to move forward, indicating they should uphold the injunction against these sections of the law.
The panel of judges seemed willing to permit police to check for legal status if they suspect illegal status but did not go as far as to permit authorities to arrest and prosecute such suspects under state law.
If this were the ruling it allow suspected illegal aliens to be turned over to Homeland Security for deportation.
The judges seemed to concur with a lower court's ruling that the Arizona law in fact, interfered with the federal government's authority regarding illegal immigration.
However to the dismay of civil activists and the Justice Department, the judges seemed ready to lift the ban on the police to demand immigration paperwork and then to turn them over to Homeland Security for deportation.
Arizona Gov. Jan Brewer, who appeared at the hearing in San Francisco, said that she will appeal the case all the way to the U.S. Supreme Court if necessary.
Proponents of comprehensive immigration laws fear that this decsion could set a new negative tone on immigration politics.
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