Federal Judge Blocks Key Parts of Controversial Arizona Immigration Law
By Jane W. Freeman, Esq.
Arizona U.S. District Court Judge Susan Bolton has issued a temporary injunction blocking implementation of key portions of Arizona's controversial immigration law, known as SB 1070. In her July 28, 2010 ruling, Judge Bolton agreed with the Justice Department and the Obama administration that the power to regulate immigration is vested exclusively in the federal government so that federal immigration law trumped or "preempted" state law in this area.
In April of this year, Arizona Governor Jan Brewer signed into law SB 1070 and immediately revived the national immigration debate. Supporters of the new law argued that it was necessary to make up for lax and ineffective enforcement of immigration laws by the federal government, including the failure to secure U.S. borders. Opponents of the new law claimed that it would lead to racial profiling, conflict with federal immigration law and distract local police from addressing more serious crimes.
The key portions of SB 1070 which have been enjoined until their constitutionality can be determined at a final hearing are the following:
1. The requirement that local and state law enforcement officers make a reasonable attempt to determine immigration status during a lawful stop, where they reasonably suspect the person is an illegal immigrant; and that all persons who are arrested have their immigration status verified prior to their release (Section 2(B) of SB 1070).
The Court held that both provisions in Section 2(B) would burden lawfully-present aliens because their liberty would be restricted while their status is checked. In addition, the great influx of requests for immigration status determinations under Section 2(B) would "impermissibly shift the allocation of federal resources away from federal priorities."
2. The provision making it a state crime for failure of an immigrant to carry federally-issued immigration documents at all times (Section 3 of SB 1070).
The Court held that Section 3 aims to create state penalties for violation of the federal law; alters the penalties created by Congress under the federal registration scheme; and therefore, is an impermissible attempt by Arizona to regulate alien registration.
3. The provision making it illegal for undocumented workers to apply for work or solicit employment in public places (Section 5 of SB 1070).
The Court held that a comprehensive federal scheme providing for civil and criminal penalties for working without authorization preempts SB 1070.
4. The provision permitting warrantless arrests of suspected illegal immigrants (Section 6 of SB 1070).
The Court held that there is a substantial likelihood that officers will wrongfully arrest legal resident aliens under this provision.
Governor Brewer called the Court's ruling a "bump in the road" and vowed to appeal. The day after the District Court's ruling, she did. The State of Arizona has filed its appeal to the U.S. Circuit Court of Appeals for the 9th Circuit. The issuance of the temporary injunction and its appeal by Arizona set the stage for more litigation in a case that may eventually reach the U.S. Supreme Court. In the meantime, the immigration battle has heated up not only in the Courts but on the streets in cities across the country.
