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Greg Siskind on Immigration Law and Policy

Arizona Law Challenge to Be Heard by Supreme Court Tomorrow

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Most know that the Arizona SB1070 "show me your papers" law has finally gotten to the point where it will be argued before the highest court in the land. The law was partially enjoined by a US District Court judge and that judge's decision was upheld by the Ninth Circuit Court of Appeals.


The challenge does not cover all parts of SB1070. Rather, the following four enjoined parts of the law are being reviewed:



  • Section 2(B) allows police to ask for a person't immigration documents and determine if "reasonable suspicion" exists that the person is unlawfully present in the United States.

  • Section 3 creates a new Arizona crime for persons who fail to carry their federal "registration" papers documenting their immigration status. The penalty is is up to 20 days in jail for a first violation and 30 days for later violations.

  • Section 5(c) makes it a crime in Arizona for immigrants not authorized to work to apply for work, solicit work in a public place or actually work within Arizona. Violators can be jailed for up to six months and subject to a $2500 fine.

  • Section 6 allows police officers to arrest immigrants (lawful or not) if they believe they are deportable (such as because they have committed a crime outside the state or have been previously incarcerated but not deported.


The biggest issue being considered is whether the Arizona law is preempted by existing federal immigration law. In other words, does the Arizona law interfere with the federal government's ability to carry out enforcement and administration of the country's immigration laws. A preliminary issue that will be considered is who bears the burden of proving that federal rules preempt the Arizona law - Arizona or the federal government. Who wins that argument will have a much easier time winning the overall preemption question.


Arizona will need to show that it has the inherent authority to arrest people for violating federal immigration law while the US government will try to show that this authority only exists when Congress authorizes cooperation with federal officials.


The federal government will also argue that the Arizona law disrupts the federal government's enforcement efforts by requiring it to expend resources on low priority cases such as non-criminal matters. Furthermore, the jailing of immigrants who ultimately turn out to have permission to be in the US could have negative foreign policy consequences (e.g. the jailing of Mercedes and Honda executives in Alabama could negatively impact on foreign trade). Outside immigration groups have also argued in amicus briefs that local police may not enforce federal immigration law even when their actions are consistent with federal priorities.


A couple of things to note about the case. First, not all aspects of the Arizona law are being challenged and there are other cases in the pipeline. Also, there are five other states with similar laws to Arizona, but they are not identical and each will have to be examined separately to determine what the Court's decision will mean. For example, the Alabama law's provision requiring the checking of the status of students is not in the Arizona law and not on trial. But the case will likely have a major influence on other cases where preemption is an issue.


Second, Justice Kagan has recused herself from the case presumably because of her prior role as the federal government's chief lawyer. That could mean a 4-4 decision which would result in the current injunctions standing and a Supreme Case not being able to give a green or red light to similar laws in other states.


Third, if the court rules for Arizona, this will not stop individual cases challenging the application of the law. Also, Congress could override the Court by changing the law. Remember, this case is about preemption, not the constitutionality of the Arizona law itself.


Fourth, if the Court rules against Arizona, the impact will depend on the scope of the decision. Saying the Arizona law violates preemption is important and would thwart a lot of the copycat efforts. But saying that states are Contitutionally barred from making or enforcing immigration measures - even when authorized by Congress - would have a much more dramatic effect. 


The Immigration Policy Center has an excellent FAQ regarding the case that can be found here.

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Comments

  1. Another Voice's Avatar
    The Dems stand ready to play politics and get an easy electoral win here.....

    Chuck Schumer Plans To Kill Arizona Immigration Law If Supreme Court Backs SB 1070

    http://www.huffingtonpost.com/2012/04/24/chuck-schumer-arizona-immigration-law-supreme-court-sb1070_n_1449370.html
  2. gg's Avatar
    I hope the Supreme Court rules in favor of Arizona and allow states to create their own immigration rules and regulations ( though I don't think its going to happen). If this happens states can create their own laws and those in favor of immigration can have immigrant friendly policies and those against can have hostile policies. This will be better way to break the immigration logjam than to expect Congress to come with a solution which hasn't happened for more than three decades.
  3. JoeF's Avatar
    @gg: Very unlikely to happen. This, by its very nature, has to be a federal task.
    Otherwise, there would have to be border checkpoints between states, making it like the EU before Schengen. A person allowed to immigrate in one state may not be allowed in another state...
    Stuff like that is unthinkable. It would be the dissolution of the Union. This country had a civil war because of similar stuff.
    A large part of the immigration logjam has to do with immigrants not being united. A classic example is HR3012, which was one immigrant group screwing over another immigrant group, and everybody losing in the end. People, in particular educated immigrants, need to see past their immediate situation. I expect that from people who claim to be "high-skilled", as the HR3012 title claims they are...
  4. gg's Avatar
    Only 16,500 cases qualify for PD out of 210,000 cases reviewed.

    http://www.wdam.com/story/17698766/apnewsbreak-75-pct-of-deportations-may-get-held

    Qualifying criteria
    - spotless criminal record
    - 10+ yrs of stay
    - relative with GC or USC
  5. gg's Avatar
    @JoeF , its not one immigration group trying to screw another but lawmakers playing one group against another to get nothing done. Do you really think they like to help folks from high demand countries who have been waiting in line for years for GC ...? Unfortunately they cannot say it directly and no action is an indirect way to convey the message, sorry please go back home ..
  6. Jack's Avatar
    "The federal government will also argue that the Arizona law disrupts the federal government's enforcement efforts by requiring it to expend resources on low priority cases such as non-criminal matters."

    All the executive branch is required to do is already provided for by federal statute. If they want to not enforce after that, 1070 does not make them do anything they don't want to. They can prioritize which cases they want to proceed without defying the federal statute below. If the Executive thinks responding to inquiries is a poor use of resources, he can ask Congress to change this law:



    Obligation to respond to inquiries
    The Immigration and Naturalization Service shall respond to an inquiry by a Federal, State, or local government agency, seeking to verify or ascertain the citizenship or immigration status of any individual within the jurisdiction of the agency for any purpose authorized by law, by providing the requested verification or status information.

    . USC > Title 8 > Chapter 12 > Subchapter II > Part IX > ? 1373 (a) In general
    Notwithstanding any other provision of Federal, State, or local law, a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual.
    (b) Additional authority of government entities
    Notwithstanding any other provision of Federal, State, or local law, no person or agency may prohibit, or in any way restrict, a Federal, State, or local government entity from doing any of the following with respect to information regarding the immigration status, lawful or unlawful, of any individual:
    (1) Sending such information to, or requesting or receiving such information from, the Immigration and Naturalization Service.
    (2) Maintaining such information.
    (3) Exchanging such information with any other Federal, State, or local government entity.
    (c) Obligation to respond to inquiries
    The Immigration and Naturalization Service shall respond to an inquiry by a Federal, State, or local government agency, seeking to verify or ascertain the citizenship or immigration status of any individual within the jurisdiction of the agency for any purpose authorized by law, by providing the requested verification or status information.

    http://www.law.cornell.edu/uscode/text/8/1373
  7. JoeF's Avatar
    @gg: "its not one immigration group trying to screw another but lawmakers playing one group against another to get nothing done."

    The lawmakers would not have come up with HR3012 if a certain immigration "advocacy" group had not pushed for it. And this group is still trying to push for it. Unbelievable!
    Sure, Congress may have not done anything, but that still would have been better than this HR3012 abomination.
    IF IV hadn't pushed this abomination and fatally divided the immigration community by playing one against the other, doing the work of the antis, there would have been a chance to actually get something sensible done.

    In any case, getting back on topic regarding SB1070, I really don't think it will survive.
    And for your hope of separate immigration laws in each state, the US Constitution requires states to accept the laws of every other state. That alone makes separate immigration laws in each state impossible. The last time some states tried to have it their way, there was a Civil War...
  8. Nurse Waiting's Avatar
    "the US Constitution requires states to accept the laws of every other state. "

    Which part of constitution says this?
  9. gg's Avatar
    Descendants of immigrants from Czechoslovakia, Britain, Germany, Ireland, Italy, Poland, Puerto Rico, Romania and Russia to decide on Arizona SB1070 -


    http://www.chicagotribune.com/sns-rt-usa-immigrationjusticesl2e8fid6t-20120424,0,661312,print.story
  10. gg's Avatar
    Justices Seem Sympathetic to Central Part of Arizona Law

    http://www.nytimes.com/2012/04/26/us/considering-arizona-immigration-law-justices-are-again-in-political-storm.html
  11. JoeF's Avatar
    "Which part of constitution says this?"

    Article IV, Section 1:
    "Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State."
    http://www.usconstitution.net/const.html#A4Sec1
  12. Another Voice's Avatar
    How does a 4-4 scenario work if Keagan is out? It does not look like Kennedy is an ally on this one....
  13. Greg's Avatar
    AV - A 4-4 tie is almost as good as a win for the White House. The 9th circuit ruling would stand, but the case would not be considered precedent. However, if there is a similar suit brought up again, it pretty much would be easy to predict a 5-4 win since Kagan could vote in another case.
  14. JC's Avatar
    I am with @JoeF. Every immigration discussion should start and end with talking about HR3012.

    Why, because people form "certain countries" (India & China) want their fair chance at "equality" in immigration. That's just blasphemous. Also, I do not think they are "high-skilled" if they are only skilled in their profession. .

    Now, about SB1070 -- it is just plain bad.
  15. Another Voice's Avatar
    Thanks Greg, yeah I guess i get that part but my question is how do you get to 4-4 if you only have 3 liberals hearing the case and 5 conservatives it does not seem likely that Kennedy or anyone else on the other side would join the liberals. So while a 4-4 would be great, it seems more likely like a 5-3 or am I reading it wrong???
  16. Greg's Avatar
    I'm guessing 5-3 on the police stops and possibly unanimous ruling against separate state immigration crimes.
  17. gg's Avatar
    Joef@HR3012,

    HR3012 reminds me of two monkeys fighting over a banana. Their master knows very well that he can stop the fight by giving another banana but he doesn't and keeps the fight going. The master can as well take away the existing banana but that will only increase the fight. So who is at fault ? The monkeys or the master ?
  18. Monster LadyGaga's Avatar
    The Obama administration has reviewed approximately 150,000 pending deportation cases, moving to administratively close 1,500 of them through a favorable exercise of prosecutorial discretion. Not good odds, as the amount of individuals benefiting from prosecutorial discretion is insignificant in consideration of the amount of pending deportation cases reviewed.

    The administration has also proposed a new policy that will permit the pre-adjudication of hardship waivers for individuals that are statutorily ineligible for adjustment of status due to the manner of their admission (i.e., they were not inspected and admitted a/k/a they "snuck into the country"). Of course this proposed policy won't go into effect until after the election, and is transparently being offered as a political carrot. In reality it may be all stick.

    I say this because the waiver process is tumultuous, and submission of an application should in no way be interpreted as a guarantee that a waiver will ever be issued. Even if a waiver is granted the individual will be required to incur great expense to leave the country simply in the exercise of tagging up in their home country for visa issuance. Moreover, if an individual submits themselves to the pre-adjudication waiver process, and the waiver is denied, the inevitable result will be the institution of removal proceedings.

    I'm not willing to predict what percentage of waivers will ultimately be favorable adjudicated. That being said, the percentages of people benefiting from the prosecutorial discretion memo are between 1-6% depending on who you ask. All I know is that unless I have a client who has already had removal proceedings instituted against them it will be a hard sell to convince them to risk everything by exposing themselves to the potential liability of a denied waiver, coupled with the harsh slap of the institution of deportation proceedings. The whip is simply much, much bigger than the carrot.

    Point being, there are alternatives that have not been considered by the Administration that in certain circumstances will negate the requirement of a waiver and the need of the individual ever departing the United States.

    Specifically, humanitarian parole, or parole in place. President Obama has the authority to confer parole status on an individual that would render them eligible to adjust their status inside the United States. This would eliminate the need for a waiver, which in most cases is required to cure either a three or ten year bar that is triggered upon departure due to unlawful presence inside the country.

    Parole could be granted on a case by case basis to individuals who are immediate relatives of United States citizens, and who are able to establish hardship to their relatives if they are deported. The hardship would not have to be extreme in nature, which has been defined as more than the pain that stems from separation, and which is less than what is required for the approval of the waiver.

    This option could be made available only to individuals with no criminal record, have established good moral character, and who are only ineligible for adjustment because they were not inspected and admitted.

    So the bottom line is that there are other options available to this President that are much better alternatives to what has been offered, and the options could be implemented IMMEDIATELY.

    If this President is serious about making good on his previously broken promise to stop the flow of deportations this would be a seriously big step in the right direction.

    And by the way, I don't want to have to wait until after the election, which is half a year away.

    Start issuing paroles this summer Mr. President.

    Don't make us wait for your second term to break another promise.
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