Monday, June 25, 2012

Arizona v. United States -- Not A Victory for Arizona

It’s incredible to me that Russell Pearce, Governor Brewer, and other anti-immigrant groups are claiming victory in the Supreme Court’s decision today because one provision—2(B) was not struck down. That section requires local law enforcement officials to determine the immigration status of any person stopped under state or local law if “reasonable suspicion” exists that the person is unlawfully present in the U.S. In fact, the Supreme Court wants more information about how 2(B) will be interpreted by state courts and how the section will be implemented. So the jury is still out on 2(B).

NPR (Nina Totenberg) described it this way: "The state courts have not yet construed 2(B).  If the state courts go on to construe it as, 'you stop the person and can resolve the issue right at the stop, or you release the person and look into it later,' that may be permitted - but it won't be if you detain the person until you resolve the issue." 

Here is court's language:

“However the law is interpreted, if §2(B) only requires state officers to conduct a status check during the course of an authorized, lawful detention or after a detainee has been released, the provision likely would survive pre- emption—at least absent some showing that it has other consequences that are adverse to federal law and its objec¬tives.    There  is  no  need  in  this  case  to  address  whether  reasonable suspicion of illegal entry or another immigra¬tion crime would be a legitimate basis for prolonging a detention, or whether this too would be preempted by federal law.”

Before that the Court talked about how a longer stop solely for immigration would disrupt federal power and not be permitted:

“Some who support the challenge to §2(B) argue that, in practice, state officers will be required to delay the release of some detainees for no reason other than to verify their immigration status. See,  e.g., Brief for Former Arizona Attorney General Terry Goddard et al. as Amici Curiae 37, n. 49. Detaining individuals solely to verify their immi¬gration status would raise constitutional concerns.  See, e.g., Arizona v. Johnson, 555 U. S. 323, 333 (2009); Illinois v. Caballes, 543 U. S. 405, 407 (2005) (“A seizure that is justified solely by the interest in issuing a warning ticket to the driver can become unlawful if it is prolonged beyond the time reasonably required to complete that mission”). And it would disrupt the federal framework to put state officers in the position of holding aliens in custody for possible unlawful presence without federal direction and supervision. Cf. Part IV–C,  supra (concluding that Ari¬zona may not authorize warrantless arrests on the basis of removability). The program put in place by Congress doesnot allow state or local officers to adopt this enforcement mechanism. But §2(B) could be read to avoid these concerns.  To take  one example, a person might be stopped for jaywalking in Tucson and be unable to produce identification.  The first sentence of §2(B) instructs officers to make a “reasonable” attempt to verify his immigration status with ICE if there is reasonable suspicion that his presence in the United States is unlawful.  The state courts may conclude that, unless the person continues to be suspected of some crime for which he may be detained by state officers, it would not be reasonable to prolong the stop for the immigration inquiry. See Reply Brief for Petitioners 12, n. 4 (“[Section 2(B)] does not require the verification be completed during the stop or detention if that is not reasonable or practica¬ble”).”

“Arizona may have understandable frustrations with the problems caused by illegal immigration while that process [of rational civic discourse] continues, but the State may not pursue policies that undermine federal law.”

bh

http://lawprofessors.typepad.com/immigration/2012/06/arizona-v-united-states-not-a-victory-for-arizona.html

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