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< Back to current issue of Immigration Daily

The Federal, The State, The Court's Perspectives on Arizona SB1070

by Yi Song, Esq

Introduction

Arizona passed the most aggressive immigration enforcement law in recent years. It's commonly known as Arizona "S.B.1070" or show-me-your-paper law. The oral argument was heard by the Supreme Court on April 25, 2012 in Washington, DC. The law is expected to shape the development of immigration policies and redraw the boundaries to the immigration law enforcement. This article discussed the perspectives from the state and the federal government and analyzed the Supreme Court's likely ruling on the case.

Arizona Law S.B. 1070

The Arizona law SB 1070, passed in April 2010, encourages "the cooperative enforcement of federal immigration laws throughout all of Arizona"[1] . Four provision of the law is at issues before the Supreme Court. Section 2(B) and Section 6 directly addressed to inquiries and arrests by law enforcement. Section 3 addresses the federal registration requirements by making a state crime for those who fail to register their status with the federal government; and Section 5(C) addresses the unlawfully present aliens' employment issue.

Section 2(B) provides that "for any lawful stop, detention or arrest made by Arizona law enforcement, where reasonable suspicion exists that the person is an alien and it unlawfully present in the US, a reasonable attempt shall be made, when practicable, to determine the immigration status of the person"[2] . Section 2(B) also includes the provision that "any person who is arrested shall have the person's immigration status determined before the person is released."

Section 3 requires the alien to complete or carry an alien registration document. The state argues that Section 3 is parallel to the federal registration requirement. The federal government argues that Section 3 eventually gives the state official the function to criminally prosecute unlawfully present and unregistered aliens. It is in direct conflict of the federal government agency's discretion.

Section 5 of the Arizona law provides "it is a misdemeanor for a person who is unlawfully present in the United States and who is an unauthorized alien to knowingly apply for work solicit work in a public place or perform work as an employee or independent contractor in this state."[3] It makes a state crime for the unlawful presented aliens to apply for work, solicit work and perform work.

Section 6 authorizes warrantless arrests of those who have committed any public offense where there is probable cause of removability. The federal government argues that to determine what types of offense makes an alien removable is not an easy task, and such determination is often outside the expertise of the arresting state officers. The immigration law generally does not list specific crimes that make an alien removable but, rather uses "broad categories of crimes, such as crimes involving moral turpitude or aggravated felonies." Padilla v. Kentucky, 130 S. Ct. 1473, 1488 (2010).

Balance of Federal and State Powers

Before the Solicitor General Verrilli got into the substance of his oral argument, Chief Justice Roberts made it very clear that the argument is not about racial or ethnic profiling, a political issue but a pure legal issue. The question before the Court is whether the federal immigration laws impliedly preempt the four provision of SB 1070.

The State of Arizona argues that the Supreme Court has reaffirmed the position that "States possess broad authority under their police powers to regulate the employment relationship to protect workers within the States". DeCanas, 424 U.S. at 357. However, under current immigration law, the Congress only imposes a civil liability to the unlawful presented aliens seeking employment. The Arizona law imposes a criminal liability on the aliens instead. The Ninth Circuit for that reason unanimously concluded that this said Section of SB 1070 is preempted.

For Section 5 regarding the employment issue, the Congress narrowly defined the role in punishing the state licensed employers. It does not mean to leave the unauthorized workers unregulated. Such unlawfully present aliens are subject to removal and are ineligible for discretionary relief of adjustment of status[4] . Moreover, the Congress intends to have the employers verify the status of the unlawfully present aliens at the time of the hiring, not at the time of "soliciting work"[5] . It is a "careful balance"[6] the Congress struck. But the counterpoint made by the state is "there is a difference between Congress deciding not as a matter of federal law to address employees with an additional criminal prohibition, and saying that decision itself has preemptive effect".

The state of Arizona argues that there is no direct conflict between the current federal immigration law and the S.B. 1070. The states have inherent authority to enforce federal law. "The cooperative law enforcement is the norm, not something that requires affirmative congressional authorization." Yet how to define "cooperative enforcement" is disputable. The federal government argues that S.B. 1070 defeats the spirit of cooperative enforcement intended by the Congress. It is an action initiated "by a state, without authorization by Congress or the Executive, to wrest from federal officials the enforcement of federal laws by imposing a mandatory directive as a matter of state law."[7]

In addition Section 2 of S.B. 1070 would "divert federal resources from implementation of federal priorities and burden lawfully present aliens." The federal government also made the point that under the circumstances that the "state law interfere with a balanced federal approach even without setting a different substantive standard", that the state's inherent authority to enforce federal law is restricted. In the oral argument General Verrilli made the distinction between "answering an inquiry of any individual circumstance" and "a mandatory systematic policy"[8] backed by the Arizona civil liability. Interestingly the federal government uses the allegory in the brief "A stopped clock may be right twice a day, but it is still a facially invalid method to timekeeping." That basically means that although Section 2 does not preclude officers from conducting verifications of immigration status, it has no valid application. Federal government's highest enforcement priorities are aliens who threaten public safety or national security, members of criminal gangs, repeat border crossers, recent entrants, etc[9]. Though the federal immigration officers would even welcome some of the verification Section 2 mandates, it always precludes officers from taking federal government's enforcement priorities and discretion into account in the first place[10]. Obviously a technical question is: how to verify the immigration status of the person? Arizona law provides that "the immigration status may be verifies only by a federally authorized officer or pursuant to the procedures provided by Congress".

Specifically regarding Section 3 of SB 1070 the federal registration requirement, part of the Supreme Court oral argument focused on how long the procedure may take. Mr. Clement, counsel for the state of Arizona argued that it was a ten minute job. While General Verrilli said it could take significantly longer because the federal system may not have a comprehensive registration records for all persons detained[11] . Besides, a person's immigration status is a complicated matter overall. Section 3 does not address the complicity in this matter. Some may have validly registered but have not yet received their documents; some may have pending asylum, Violence Against Women Act petition, or being a victim of human trafficking, or victim of a crime of witness to a crime that the system does not have matching records in the federal registration system. The detained persons of the above mentioned categories may be subject to prolonged incarceration as their immigration status cannot be verified due to pending their immigration petitions.

The counsel for Arizona also responded to the public criticism from foreign governments, including the statement that "foreign leaders and bodies have publicly criticized Arizona's law." "Mexican Senate has postponed review of a US-Mexico agreement on emergency management cooperation to deal with natural disasters". The state argues that precedents did not deter the Court from uphold unpopular laws[12]. The federal government argues that the realistic impact of enacting Section 3 and Section 5 of SB 1070 is to not lead to a mass migration back to the immigrants' country of origin. It is far more likely that it's going to be migration to other States. That is the exact reason the issues shall have a uniform approach from the federal level.

The state of Arizona made the argument that the Supreme Court did not accept the notion that a state is powerless to deal with the problems caused by illegal aliens. Plyler v Doe, 457 U.S. 202 (1982) at 228 n. 23. In addition, the Congress imposes an affirmative duty on the federal government to respond to a state's inquiry of the detained persons' immigration status. "Federal immigration authorities shall respond to an inquiry by a Federal , State or local government agency, seeking into verify or ascertain the citizenship or immigration status of an individual within the jurisdiction of the agency for any purpose authorized by law, by providing the requested verification or status information."[13]

Section 6 of SB 1070 authorizes Arizona law enforcement officers to make warrantless arrests of persons they have probable cause to believe are removable from the United States by reason of having committed a crime[14] . The Arizona argues that the state law enforcement officers have inherent authority to make arrests for immigration law violation, both civil and criminal[15] . It further distinguishes the effect of Section 6 is not "requiring any arrests" but only "authorize them"[16] . The federal government believes "such broad and unilateral arrest authority is not necessary to facilitate true cooperative enforcement"[17] and is without regard for federal priorities for removability.

The Court's Questioning and Oral Arguments

The Court questioning lasted 1 hour 20 minutes. It is important to note that the oral argument is actually the first time the nine justices (in this case eight) learned the opinions of their colleagues through each justice's questioning. Other than his usual obligation to question on the substance of the case, Chief Justice Roberts also made sure that each and every issue of the case is discussed. The justices tried to engage in a conversation with Mr. Clement, the counsel for the state and Solicitor General Verrilli. Justice Sotomayor asked more technical questions such as how long the person will be detained before the immigration status can be verified. Justice Breyer, Justice Kennedy and Justice Alito gave hypothetical. Justice Roberts and Justice Ginsberg' questions were more straightforward and articulated. Justice Scalia questions were brief and sharp. Justice Thomas, being the only justice in history keeping silent for six years straight, did not ask a single question.

The One thing is interesting and rather unusual. Before the Solicitor General Verrilli got into the substance of his argument, Chief Justice Roberts asked him "Before you get into what the case is about. I'd like to clear up at the outset what it's not about. No part of your argument has to do with racial or ethnic profiling, does it?" General Verrilli said: "That's correct."

Only 3 minutes into the oral argument, Justice Sotomayor being the only Hispanic justice on the bench, threw the first question: Her concern is under Section 2(B) of the Arizona law, after the individual is arrested based on probable cause, the inquiry on his or her immigration status should be made, but how long will the person be detained? Justice Breyer followed up with the question with a scenario. What if a US citizen, Hispanic looking, was arrested and he could not provide valid ID. The federal system does not have immigration status of his because he is a US citizen. There is the risk that such a person will be detained for a significantly longer period of time because of the effect of SB 1070 Section 2(B).

Chief Justice Roberts did not seem to be convinced about the federal government's position that Arizona law diverts the federal government's control over who to prosecute. He asked General Verrilli "I don't see how section 2(B) says anything about that at all. All it does is notify the federal government, here is someone who is here illegally and removable. The discretion to prosecute for federal immigration offenses rests entirely with the Attorney General." Roberts later stated "[Arizona law] is not an effort to enforce federal law. It is an effort to let you know about violation of Federal law. Whether or not to enforce them is still entirely up to you."

Justice Scalia with his straightforward "funny and outrageous"[18] style of questioning, as once described by his long time fellow justice and friend Justice Ginsberg, asked "You call up the Federal Government, and the Federal Government said yes he's an illegal immigrant, but that's okay with us. The State has no power to close its borders to people who have no right to be there?"

Justice Sotomayor asked General Verrilli to answer Justice Scalia's earlier question that whether it is the federal government's position that Arizona does not have the power to exclude from its borders a person who is here illegally. Justice Scalia later added "What does sovereignty mean if it does not include the ability to defend your borders?"

Justice Scalia does not think there is a particular problem in the notion that state enforcing federal law. "There's a federal law against robbing federal banks. Can it be made a state crime to rob those banks? I think it is." In the context the General Verrilli argued that SB 1070 will also have significant impact on US foreign relations, in particular with Mexico. Then Justice Scalia said "So we have to enforce our laws in a manner that will please Mexico?"

Section 5 made a state crime for unlawfully present aliens to solicit or perform work. This section raised questions among justices, in particular Chief Justice Roberts, Justice Alito and Justice Kennedy. They seemed not to be convinced that the law is not in direct conflict of the Congress' intent. Chief Justice Roberts practicing his excellent time management duty, said to Mr. Clement "Counsel, maybe it's a good time to talk about some of the other sections, in particular, section 5(C). That does seem to expand beyond the Federal Government's determination about the types of sanctions that should govern the employment relationship."

This decision will be made by only 8 justices because Justice Elena Kagan recused herself because of her work done for the case while she was the solicitor general for the Obama administration. Justice Thomas maintained his impeccable record of being completely silent in the court room. Judging from the ideological divide of the court, Justice Sotomayor, Justice Ginsberg, Justice Breyer are likely to oppose the law, Justice Roberts, Justice Scalia, Justice Alito are likely to support at least the part of the law on "cooperative enforcement". Being one of the most conservative justices, it is expected that Justice Thomas will vote for the SB1070. Justice Kennedy is the swing vote. There might be a 4-4 split, which means that the ruling of Ninth Circuit stands.


Footnotes


1Brief from the petitioner, P. 14, Para. 3.
2Id. P. 16
3Section 5(C), Ariz. Rev. Stat. 13-2928(C)
48 C.F.R. 214.1(e); Also see 8 U.S.C. 1227(a)(1)(C)(i); 8 U.S.C. 1255(c)(2) and (8).
5INA 274A(b) and 8 CFR 274a.2(b)
6The respondent's brief P. 39, Para. 2
7Brief from the respondent, P. 45, Para. 1
8Transcript of the Supreme Court oral argument, P. 53, Line 19
9J.A. 108-109; Brief from respondent P. 48, Para. 3.
10Respondent's brief, P. 50. Para. 2
11Transcript of the Supreme Court Oral Argument, P. 66, Line 24
12Chamber of Commerce of U.S. v. Whiting,, 131 S. Ct. 1968 (2011)
138 U.S.C. 1373 (c)
14Ariz. Rev. Stat. 13-3883(A)(5)
158 U.S.C. 1357(g)(10)
16Petitioner's brief, P. 42, Para. 2
17The Respondent's brief, P. 54, Para. 2
18During the C-span Interview with Justice Ginsburg on July 1, 2009, Justice Ginsburg said "And he [Justice Scalia] is a very amusing fellow. When he sat next to me both on the D.C. circuit bench and now not this configuration but when Justice O'Connor was with us I was sitting next to Justice Scalia, he could say something that was so outrageous or so funny that I had to pinch myself so I wouldn't laugh out loud in the court room."


About The Author

Yi Song, Esq. is an associate attorney at Mona Shah & Associates. Yi is a licensed attorney in New York State and she is also admitted to the Bar of People's Republic of China. Her practice focuses on EB-5 law and securities compliance issues. She is a graduate from Georgetown University Law Center in Washington, DC.


The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.


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