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Greg Siskind on Immigration Law and Policy

FIRST COURT ARGUMENTS HEARD OVER ARIZONA LAW

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From the ACLU which is part of the coalition that is behind this suit:



Implementation Of Arizona's Racial Profiling Law >>



FOR
IMMEDIATE RELEASE

July 22, 2010



PHOENIX - At a hearing today in a federal court in Phoenix, the American Civil
Liberties Union and a coalition of civil rights groups argued that Arizona's
discriminatory new law, known as SB 1070, should be blocked pending a final
court ruling on its constitutionality. The law, scheduled to go into effect on
July 29, requires police to demand "papers" from people they stop who
they suspect are "unlawfully present" in the U.S. According to the
coalition, the law would subject massive numbers of people - both citizens and
non-citizens - to racial profiling, improper investigations and detention.



The U.S. Department of Justice, in a separate lawsuit, will also ask the court
to block SB 1070 in a hearing later today. The court, in the civil rights
coalition's case, will also hear arguments on the state of Arizona's motion to
dismiss the case.

 

The civil rights coalition includes the ACLU, MALDEF, National Immigration Law
Center (NILC), Asian Pacific American Legal Center (APALC) - a member of the
Asian American Center for Advancing Justice - ACLU of Arizona, National Day
Laborer Organizing Network (NDLON) and the National Association for the
Advancement of Colored People (NAACP). The law firm of Munger, Tolles &
Olson LLP is acting as co-counsel in the case.

 

Omar Jadwat, staff attorney with the ACLU Immigrants' Rights Project and Nina
Perales, Southwest Regional Counsel for MALDEF, argued the case on behalf of
the civil rights groups.



In May, the coalition filed a lawsuit challenging the extreme law charging that
it invites the racial profiling of people of color, violates the First
Amendment and interferes with federal law. Friday's filing seeks to halt
implementation of the law while the case is litigated.

 

The following quotes can be attributed to members of the coalition, as listed
below.



Omar Jadwat, staff attorney with the ACLU Immigrants' Rights Project:



"We are asking the court to block SB 1070 right now because if this
discriminatory law went into effect for even one day, it would be one day too
many. Any law that requires law enforcement to ask people they stop and suspect
of being undocumented for their 'papers' violates the U.S. Constitution and the
American values of fairness and equality. This law is a clear invitation for
racial profiling, and we're confident that the court will understand the
importance of preventing it from ever taking effect."



Linton Joaquin, General Counsel of NILC:



"Judge Bolton heard from lawyers representing organizations ranging from
small non-profit service providers to the federal government, asking her to
block the implementation of this pernicious law. Inaction on SB 1070 will lead
to widespread fear and threatens the constitutional rights and societal values
of all Arizonans. Unified voices of civil rights leaders, law enforcement
officers and interested citizens are fighting to keep this unconstitutional law
from hurting countless Arizonans and undermining our nation's values of fair
treatment under the law."



Julie Su, Litigation Director of APALC:



"We are here today in Arizona to ensure that SB 1070 does not take effect
next week, as this fundamentally unconstitutional law opens the door for law
enforcement to discriminate against Asian Americans, Pacific Islanders and
other people of color who look or sound 'foreign.' We have faith the court
understands that immigration enforcement is solely the responsibility of the
federal government and that it will block this modern-day version of the
Chinese Exclusion Act."

 

Alessandra Soler Meetze, Executive Director of the ACLU of Arizona:



"While proponents of SB 1070 would have us believe that they have a
monopoly on the rule of law, the federal court remains the arbiter of justice
in this case. The courageous plaintiffs who have come forward to challenge this
unconstitutional racial profiling law are optimistic that the judge will strike
down this discriminatory law, which has already resulted in the harassment of
innocent people."



Organizations and attorneys on the case, Friendly House et al. v. Whiting et
al.
, include:




ACLU Immigrants' Rights Project: Jadwat, Lucas Guttentag,
Cecillia Wang, Tanaz Moghadam and Harini P. Raghupathi;

MALDEF: Perales, Thomas A. Saenz, Cynthia Valenzuela Dixon,
Victor Viramontes, Gladys Limón, Nicholás Espiritu and Ivan Espinoza-Madrigal;

NILC: Joaquin, Karen Tumlin, Nora A. Preciado, Melissa S.
Keaney, Vivek Mittal and Ghazal Tajmiri;

ACLU Foundation of Arizona: Dan Pochoda and Annie Lai;

APALC: Su, Ronald Lee, Yungsuhn Park, Connie Choi and Carmina
Ocampo;

NDLON: Chris Newman;

NAACP: Laura Blackburne;

Munger Tolles & Olson LLP: Bradley S. Phillips, Paul J.
Watford, Joseph J. Ybarra, Susan T. Boyd, Yuval Miller, Elisabeth J. Neubauer
and Benjamin Maro;

Roush, McCracken, Guerrero, Miller & Ortega: Daniel R.
Ortega, Jr.



The motion for a preliminary injunction can be found at: www.aclu.org/immigrants-rights-racial-justice/friendly-house-et-al-v-whiting-et-al-plaintiffs-motion-preliminary-



A new ACLU video about how the SB 1070 invites racial profiling can be found
at: www.aclu.org/immigrants-rights-racial-justice/would-you-ask-man-his-papers

 

More information about the Arizona law can be found at: www.aclu.org/what-happens-arizona-stops-arizona
>>



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Comments

  1. Another Voice's Avatar
    Greg if the legal argument for the government's lawsuit and others was mostly the supremacy clause about immigration powers, why then here are they making the racial profiling argument. Doesn't that play more into the hands of the AZ defenders of the law as damages arising from the law are hard to prove, given the fact that the law has not taken effect yet?
  2. USC's Avatar
    How goes it Arizona? Not so good, eh?

    http://www.latimes.com/news/nationworld/nation/la-na-arizona-immigration-20100723,0,3498774.story

    "John Bouma, the attorney representing Arizona Gov. Jan Brewer, tried to convince Bolton otherwise but eventually gave up. "I didn't have the feeling I persuaded you last week either," he said, alluding to a previous hearing."

    I guess their bad day in Court will get much worse, when she hears the United States v Arizona. LOL!
  3. USC's Avatar
    Looks like the ACLU has done half the United States job:

    http://www.politico.com/news/stories/0710/40125.html


    "U.S. District Court Judge Susan Bolton was doubtful about at least two aspects of the law -- one making it illegal for certain undocumented immigrants to be in Arizona, and another that could require police to detain suspects until their immigration status is determined."

    From the LOL department:

    "But John Bouma, arguing on behalf of Arizona, insisted that police wouldn't interpret the law that way.

    "We believe you don't have indefinite detention," Bouma said. "That's clearly silly."

    However, he later conceded that the law as written is ambiguous about just when police needed to perform such checks.

    "It's not a good sentence. There's no question about that," Bouma said."


    All should consider becoming card carrying members of the ACLU just on the basis of today's performance alone!
  4. Jack's Avatar
    "We have faith the court understands that immigration enforcement is solely the responsibility of the federal government..."

    I suspect "the court" might have heard that states and local authorities cooperate with the federal government in the enforcement of immigration law--the DOJ lawsuit concedes as much and even says the federal government "welcomes" it.

    "...and that it will block this modern-day version of the Chinese Exclusion Act."

    Uh, how are they even remotely the same? Really, I'd like to hear a point by point comparison. I think the reason we never hear that is because it would sound ridiculous.


  5. Greg Siskind's Avatar
    Jack - Just to address your point that state and local governments work all the time with the federal government on enforcement. True, but there's actually a section of the INA (287(g)) that governs how this is to work and it requires a signed agreement that guarantees law enforcement officers will receive training from ICE and their immigration enforcement activities will be supervised by ICE. If Arizona merely had mandated local law enforcement departments sign 287(g) agreements, the state likely would have survived a lawsuit, not been boycotted, etc.
  6. Another Voice's Avatar
    I seriously doubt t Jack that cooperation with the DOJ or HLS, meant the interpretation that the AZ law's intent was... they admitted, they want to make as miserable the life of the immigrants as is their right as a state. They did not care if the law allowed it or not of if it complied with the terms of the cooperation standards for the federal government, they were going to make it up as they go along... the SB1070 is just so they have somewhere to hang their hat on!!
  7. USC's Avatar
    "I think the reason we never hear that is because it would sound ridiculous."

    Jack, do you have any comments on Arizona's arguments that the law is "not artfully worded", "its not a good sentence" etc etc?

    Arizona seems to argue that the law doesn't mean what it says and that their interpretation of the plain English is different.

    Should the United States respond to that or should the US attorney merely say "The best response to that argument is to laugh." and then sit down?



  8. USC's Avatar
    Arizona launches investigation against police officer who opposed SB1070:

    http://www.huffingtonpost.com/2010/07/23/paul-dobson-phoenix-cop-w_n_657429.html

  9. Jim's Avatar
    "Arizona launches investigation against police officer who opposed SB1070"

    What the!? I think this just further proves that the AZ law is really meant for racism or discrimination on the guise of whatever made-up, non-fact/non-data based reasons they say.

    I've been neutral about all the "Nazi" comparisons but after this new development I am now leaning towards believing it.

    Kudos to the officer for speaking his mind.
  10. Jack's Avatar
    Greg wrote:
    "...a section of the INA (287(g)) that governs how this is to work and it requires a signed agreement that guarantees law enforcement officers will receive training from ICE and their immigration enforcement activities will be supervised by ICE."

    I assume you're referring to the Memorandum of Understanding if they want to essentially perform the functions of an ICE agent. That seems to have created a belief that the states/local were prevented from doing *anything* (outside of a 287(g) Memorandum of Understanding) but that ignores the following section:

    (10) Nothing in this subsection shall be construed to require an agreement

    under this subsection in order for any officer or employee of a State or

    political subdivision of a State--
    (A) to communicate with the Attorney General regarding the immigration status

    of any individual, including reporting knowledge that a particular alien is

    not lawfully present in the United States; or
    (B) otherwise to cooperate with the Attorney General in the identification,

    apprehension, detention, or removal of aliens not lawfully present in the

    United States.

    http://www.law.cornell.edu/uscode/8/usc_sec_08_00001357----000-.html


    USC wrote:

    Should the United States respond to that or should the US attorney merely say "The best response to that argument is to laugh." and then sit down?

    ----

    I'm not laughing at the lady who compared 1070 to the Chinese Exclusion Act but once someone makes a comparison like that it makes it harder to take anything else they say seriously. The DOJ's preemption arguments are nothing to be laughed at--especially if they're the ones making them. But 1070 is far from Prop. 187 which had easy, multiple preemptions of the various types laid out in De Canas. I remember it being said (something along these lines) that 1070 was written with De Canas in mind. A lot of the DOJ's case relates to "regulation of immigration" but the court's definition of that in De Canas isn't so broad that every federal preemption argument is a slam dunk. It can be read pretty narrowly.

    It has dawned on me that some people who are getting worked up about various issues related to 1070 don't know that there are federal and Supreme Court cases which already go way further.

    This article co-written by a law school dean who favors unlimited immigration goes into one such case (Brignoni-Ponce):

    http://www.washingtonpost.com/wp-dyn/content/article/2010/07/12/AR2010071204049.html

    Whren v. U.S. might be an eye-opener to some people outraged that 1070 is about to legalize racial profiling. There's a little about the Mena Supreme Court case in this article

    http://article.nationalreview.com/print/?q=ZjMyYTVjYWY1MmQyNDFmNzNhYmQ2OTdiODk1Mjc3N2Q=

    which is a pretty good summary of the Kobach viewpoint laid out in his long "Force Multiplier" law review article.

    http://www.irli.org/ForceMultiplrKobach.pdf

    The Mena discussion in that law review article says that after a lawful arrest an officer needs no cause at all to ask a person about their immigration status. I wonder if Zach De La Rocha knows that?

    People are worked up about 1070 which says race cannot be a factor (while federal cases allow it). Some 1070 critics must not be aware of how weak the legal protection already is. If they are aware and aren't also speaking out about it (including in non-immigration areas of law), then it appears to some pro-state enforcement advocates (like Heather Mac Donald) that it's less a concern over expanded police powers than increased police MANpower (which they are afraid might actually make a difference). Aside from training issues (which are legitimate), if the police powers an ICE agent has are the same or greater than a state officer in Arizona under 1070, why not more outrage over ICE? A cynic like Heather says that it's because ICE has few enough officers than anti-enforcement people can live with them but if you got every cop in the country asking ICE to make a status determination of every person they arrested, a lot more illegal aliens would get snared. They all seem to oppose 287(g) too, naturally.

    Heather Mac Donald
    Praising Arizona

    http://city-journal.org/2010/eon0430hm.html
  11. USC's Avatar
    Following is list of antis opposing the Peoples motion:

    MEMBERS OF THE UNITED STATES CONGRESS TRENT FRANKS, BRIAN BILBRAY, SENATOR JOHN BARRASSO, SENATOR JIM DEMINT, SENATOR JAMES INHOFE, SENATOR DAVID VITTER, SENATOR ROGER WICKER, ROBERT ADERHOLT, RODNEY ALEXANDER, MICHELE BACHMANN, SPENCER BACHUS, GRESHAM BARRETT, GUS BILIRAKIS, ROB BISHOP, MARSHA BLACKBURN, JOHN BOOZMAN, KEVIN BRADY, PAUL BROUN, GINNY BROWN-WAITE, MICHAEL BURGESS, KEN CALVERT, JOHN CAMPBELL, JOHN CARTER, JASON CHAFFETZ, HOWARD COBLE, MIKE COFFMAN, JOHN CULBERSON, GEOFF DAVIS, DAVID DREIER, JOHN DUNCAN, JOHN FLEMING, RANDY FORBES, VIRGINIA FOXX, ELTON GALLEGLY, SCOTT GARRETT, PHIL GINGREY, LOUIE GOHMERT, BOB GOODLATTE, TOM GRAVES, WALLY HERGER, PETE HOEKSTRA, DUNCAN HUNTER, LYNN JENKINS, WALTER JONES, JIM JORDAN, STEVE KING, JACK KINGSTON, JOHN KLINE, DOUG LAMBORN, ROBERT LATTA, JERRY LEWIS, CYNTHIA LUMMIS, MICHAEL MCCAUL, TOM MCCLINTOCK, THADDEUS MCCOTTER, PATRICK MCHENRY, GARY MILLER, JEFF MILLER, JERRY MORAN, TIM MURPHY, SUE MYRICK, RANDY NEUGEBAUER, JOE PITTS, TODD PLATTS, TED POE, BILL POSEY, TOM PRICE, PHIL ROE, MIKE ROGERS, DANA ROHRABACHER, ED ROYCE, JEAN SCHMIDT, JOHN SHADEGG, MIKE SIMPSON, LAMAR SMITH, CLIFF STEARNS, JOHN SULLIVAN, GENE TAYLOR, TODD TIAHRT, ED WHITFIELD, ROB WITTMAN IN SUPPORT OF DEFENDANTS STATE OF ARIZONA AND GOVERNOR OF ARIZONA JAN BREWER AND IN OPPOSITION TO PLAINTIFF'S MOTION FOR A PRELIMINARY INJUNCTION

    Pursuant to Fed. R. Civ. P. 7 and Local Rule 7.2, Movants,

  12. USC's Avatar
    "I'm not laughing at the lady who compared 1070 to the Chinese Exclusion Act but once someone makes a comparison like that it makes it harder to take anything else they say seriously."

    Unlike the folks on the list below who are time travelers from the era of the Chinese Exclusion act and are small men/women lost in time, most of us did not live in that era and thus, unlike them, having no firsthand knowledge I am compelled to quote from the following source:

    http://en.wikipedia.org/wiki/Chinese_Exclusion_Act

    "The police also discriminated against the Chinese by using the slightest opportunity to arrest them."

    Under Arizona SB1070 a rogue cop could single out a natural born American citizen of Chinese descent for similar treatment. IOW, for no reason or trivial reasons (expired parking meter, jay walking, failure to renew a dog license, failure to mow your lawn etc etc) he could inquire about their immigration status and hold them in jail indefinitely pending INS confirmation. As the Hate State gratuitously points out US Citizens do not have an immigration status. Neither do the illegals. So, if the person is a not a legally admitted non-immigrant, LPR or a naturalized USC but is instead a NATURAL BORN USC he could have a long wait in jail.

    Thus, the reference by her to the Chinese Exclusion Act might seem extreme but she makes a valid point since this law could enable the same kind of conduct that is said to have occurred under the Chinese Exclusion Act.
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