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Dreaming In Arizona: Can Prosecutorial Discretion Co-Exist with Show Me Your Papers?by Gary Endelman and Cyrus D. Mehta
In our blog, From
Madison to Morton: Can Prosecutorial Discretion Trump State Action In USA v.
Arizona?, we speculated whether the federal government’s
ability to decide not to remove certain non-citizens from the US would be its
trump card in Arizona v. USA,
567 U.S ___ (2012). A few days prior to Arizona
v. USA, the Obama administration announced deferred action for young
persons via a June
15, 2012 memorandum, which will prevent the deportation of
over a million people who fell out of status of no fault of their own while
Arizona’s SB 1070 aims at driving away these very people through an attrition
policy. These young people who will benefit under administrative deferred
action would have otherwise been eligible under the DREAM Act, which narrowly
failed to pass Congress in December 2010. We were almost correct.
In a 5-3 ruling (with Justice Kagan recusing), the Supreme Court invalidated most of the provisions of SB
1070 on the grounds that they were preempted by federal law such as
criminalizing the failure to carry registration documents (section 3),
criminalizing an alien’s ability to apply for or perform work (section 5(c)),
and authorizing state officers to arrest a person based on probable cause that
he or she has committed a removable offense (section 6). On the other hand, the
Supreme Court, 8-0, narrowly upheld section 2(B), the “show me your papers” law, which requires state officers to make “a
reasonable attempt….to determine the immigration status” of any person they
stop, detain, or arrest on some other legitimate basis if “reasonable suspicion
exists that the person is an alien and is unlawfully present in the United
States.” Section 2(B) further provides that “[a]ny person who is arrested shall
have the person’s immigration status determined before the person is released.” Before we analyze the
Court’s narrow upholding of section 2(B) and how it would impact the federal
government’s prosecutorial discretion policies, the following extract from
Justice Kennedy’s majority opinion acknowledging the federal government’s
ability to exercise prosecutorial discretion is worth noting: Discretion in the
enforcement of immigration law embraces immediate human concerns. Unauthorized
workers trying to support their families, for example, likely pose less danger
than alien smugglers or aliens who commit a serious crime. The equities of an
individual case may turn on many factors, including whether the alien has
children born in the United States, long ties to the community, or a record of
distinguished military service. Some discretionary decisions involve policy
choices that bear on this Nation’s international relations. Returning an alien
to his own country may be deemed inappropriate even where he has committed a
removable offense or fails to meet the criteria for admission. The foreign
state maybe mired in civil war, complicit in political persecution, or enduring
conditions that create a real risk that the alien or his family will be harmed
upon return. The dynamic nature of relations with other countries requires the
Executive Branch to ensure that enforcement policies are consistent with this
Nation’s foreign policy with respect to these and other realities.
Arizona
v. USA, supra, Slip Op. at pages 4-5.
It is indeed
unfortunate that despite noting the role of the federal government in
formulating immigration policy, the Court did not, at least for the moment,
invalidate 2(B), which essentially legalizes racial profiling. See US v. Brignoni-Ponce, 422 US 873
(1975) (Mexican ancestry on its own cannot be an articulable fact to stop a
person). The Court was obviously mindful of concerns relating to racial
profiling, but the case that the United States brought against Arizona is more
about whether federal immigration law preempts 2(B) and the other provisions of
SB 1070. Both conservative and liberal justices did not think so since 2(B) was
not creating a new state immigration law as the other invalidated provisions did.
All that 2(B) does is to allow Arizona police officers to determine if someone
was unlawfully present in the context of a lawful stop by inquiring about that
person’s status with the federal Department of Homeland Security, and such
communication and exchange of information has not been foreclosed by Congress. The question is whether
2(B) will interfere with the federal government’s dramatic new prosecutorial
initiative to not deport over a million young undocumented people if they met
But not for
long.
The majority explicitly held that 2(B) should be read to avoid the hold of a
person solely to verify his or her immigration status. The Court noted in
connection with the jaywalker hypothetical, “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.” Slip Op. at 22 (citation omitted). Even in a case
where a person is held in state custody for a non-immigration offense, the
Court cautioned that the delay in obtaining verification from the federal
government should not be a reason to prolong that person’s detention. The Court
also suggested that 2(B) ought to be “read as an instruction to initiate a
status check every time someone is arrested…rather than a command to hold the
person until the check is complete no matter the circumstances. Slip Op. at 23.
This temporal limitation harkens back to the Court’s rationale for justifying
warrantless stops by roving patrols in the border regions with Mexico in Brignoni-Ponce: The intrusion is modest. The Government tells us that a stop by a roving patrol "usually consumes no more than a minute." Brief for United States 25. There is no search of the vehicle or its occupants, and the visual inspection is limited to those parts of the vehicle that can be seen by anyone standing alongside…(citation omitted) . According to the Government ;"[a]ll that is required of the vehicle's occupants is a response to a brief question or two and possibly the production of a document evidencing a right to be in the United States.422 US at 880. Finally the Court noted that its opinion did not foreclose other preemption and constitutional challenges as the law as interpreted and applied after it goes into effect. This is particularly the case if delay in the release of a detainee flowed from the requirement to check their immigration status. Indeed, it is only if such status verification took place during a routine stop or arrest and could be accomplished quickly and efficiently could a conflict with federal immigration law be avoided. As for Justice Scalia, who concurred with the majority on 2(B), but also dissented as he would have upheld all of the other provisions, it is ironic that he is willing to have Arizona add to penalties imposed by Congress but not willing to let the President, a co-equal branch whose role in federal immigration policy is certainly less subject to challenge than that of the states, relieve the harsh impact of such penalties for a discretely delineated protected class. It is also ironic that the Administration is actively moving ahead to find an administrative solution to our broken immigration system by granting DREAM act relief while Arizona seeks to uphold its right to put in place an enforcement mechanism it may not seek to enforce, if only to avoid further constitutional challenge.It does not require a crystal ball to imagine that 2(B), if enforced, will cause mayhem for young DREAMers and their ability to remain in the US through further administrative remedies, despite the Court’s narrow upholding of the provision. It will be difficult, if not impossible, for ICE to communicate with certainty to overzealous Arizona officials like Sheriff Joe that a young person who qualifies for the deferred action program is not unlawfully present. In fact, such a person continues to be unlawfully present even though he or she may qualify for deferred action presently, prior to the filing of the application. Moreover, even after an application is filed, it is not clear how long DHS will actually take to grant deferred action and such a person will still remain unlawfully present during the pendency of the application. Although the grant of deferred action stops unlawful presence for purposes of the federal 3-10 year bars to reentry, it is not clear whether the Arizona definition of lawful presence would recognize someone who has an outstanding removal order but who has also been granted deferred action. This situation, and many others, such as a potential US citizen being detained for being suspected of being unlawfully present, will result in further challenges to 2(B), which hopefully, the next time around, will be successful.The Court upheld 2(B) because there was no evidence that Arizona was yet enforcing it. Indeed, for all practical purposes, it had yet to go into effect. Given the natural judicial reluctance to fray the bonds of federalist comity, the Supreme Court stayed its hand for now so that state courts could determine whether SB 1070 could be consistently administered within the straitjacket of the Supreme Court’s ruling. So, in this sense, the issue was not ripe for a determination on pre-emption . When will this change? How many will have to suffer the consequences before the Supreme Court will act? For this reason, knowing what the future will bring, the nation and its liberties would have been better served if 2(B) had been invalidated. It is hard to imagine how Section 2(B) can survive if and when Arizona tries to make it come alive. Let us not forget that, despite Arizona Governor Brewer’s protestation to the contrary, the real guts of this law, the warrantless arbitrary arrest powers granted by Section 6, did not survive today. The rule of law did. The status check authorized by Section 2(B) can only happen after there is probable cause to believe that a non-immigration law violation has taken place, and they happen very quickly so as not to prolong any stop or detention. For all our concerns, and despite our fondest hopes for a more sweeping victory, the Supreme Court has reaffirmed our oldest national tradition, that here in America, there is still much room to dream- in Arizona and beyond.This post originally appeared on The Insightful Immigration Blog on June 26, 2012.
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