Friday, July 23, 2010

Immediate Fate of SB1070 in Judge's Hands

After the two hearings for preliminary injunction against Arizona's AB1070, the federal district court judge apparently did not disclose which way she is leaning. Here is some of the dialogue that took place yesterday:

Plaintiffs in the morning hearing sought injunctions to prevent each of Arizona's 15 county sheriffs and 15 county attorneys - all of whom were named personally in the suit - from using the new powers provided by 1070 to detain and investigate immigration status.

Nina Perales, an attorney with MALDEF, sued the counties, along with the ACLU and National Immigration Law Center, on behalf of over 20 humanitarian and nonprofit groups.

"SB 1070 effectively criminalizes being here without permission. By failing to carry registration documents your subject to prosecution or jail time," she told the court.

"Many law enforcement agencies are ramping up traffic stops and relying on them for immigration reform," Perales told Judge Susan Bolton when asked to provide evidence the new provisions will result in unreasonable roadside stops. "Somebody can do something to commit a crime inadvertently."

Thomas Liddy, representing Maricopa County Sheriff Joe Arpaio (who was not present at the hearing), argued that the claims against the state and county were inappropriate in federal district court.

"The proper forum is for the Department of State and the U.S. Congress," he said.

Bolton later asked ACLU attorney Omar C. Jadwat, "Who am I to tell the state of Arizona that they can't enforce existing powers granted by the federal government?"

Jadwat said SB 1070 poses a threat to civil rights and imminent harm because the language could extend to passengers in vehicles, witnesses to accidents, victims of crime, those seeking asylum, or anyone who came into contact with an officer investigating any claim of any incident.

The training materials provided by AZPOST tells police to not inquire into the status of victims, witnesses and those riding in vehicles, but that distinction is not made in the law itself.

U.S. Deputy Solicitor Edwin S. Keedler made the case against Brewer, who was present for the hearing.

"This is a nation of immigrants. There's a (national) policy of welcoming immigrants, visitors, trade, there are humanitarian concerns for people who come here without permission initially," Keedler told Bolton. "Enforcement itself provides a broad range of possibility of prosecution."

According to Keedler, Congress has never criminalized the mere presence of an undocumented person in the United States and left the ultimate discretion to enforce immigration law to the federal government as a way to balance competing interests.

"The nation's immigration laws reflect a careful and considered balance of national law enforcement, foreign relations, and humanitarian interests," read the Justice motion for an injunction.

Keedler did not raise any civil rights issues but maintained that Congress specifically allowed for a federal regulation of immigration to make sure that no state can cause disruptions in foreign relations.

He argued instead that Arizona violated the supremacy clause of the Constitution, which specifically reserves immigration enforcement for the federal government.

Keedler said the criminal statutes Arizona cited in SB 1070 to establish its authority were intended to prosecute smugglers, not non-violent persons residing in the state without documentation.

Brewer has been unable to substantiate her public claims that most illegal aliens crossing Arizona's borders are drug smugglers or other criminals.

Keedler argued that federal authorities will not have the resources to respond to Arizona's request to investigate the immigration status of a suspected undocumented person.

"Can you really say that this is pre-emptive because you're going to receive too many calls?" Bolton asked.

She pressed Keedler to provide reasons beyond the supremacy clause and previous rulings as to why she should halt the law.

"The problem comes from the state mandating how officers will assist in carrying out federal law," Keedler responded.

Bouma argued in both hearings that the federal government's failure to curb illegal immigration in Arizona warrants the state's participation in the process.

"Congress isn't doing it, but Congress hasn't told us we can't do it," Bouma told Bolton. "Congress said they want one, national, uniform system and we have one. They haven't done anything to stop the states."

Here is more from Brian Mori of the Tucson Sentinel.

bh

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