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SCOTUS Hears Arizona v. US: Fallout in the Trenches

Today, the Supreme Court of the United States (SCOTUS) heard oral arguments in Arizona v. US. The statement of the case as presented to SCOTUS was as follows:

Arizona enacted the Support Our Law Enforcement and Safe Neighborhoods Act (S.B. 1070) to address the illegal immigration crisis in the State. The four provisions of S.B. 1070 enjoined by the courts below authorize and direct state law-enforcement officers to cooperate and communicate with federal officials regarding the enforcement of federal immigration law and impose penalties under state law for non-compliance with federal immigration requirements.

The question presented is whether the federal immigration laws preclude Arizona’s efforts at cooperative law enforcement and impliedly preempt these four provisions of S.B. 1070 on their face.

The outcome of this case, as well as the “Obamacare” case heard a few weeks ago, will greatly influence the role of states’ rights and federal powers. A transcript of the arguments in Arizona v. US can be found on the Scotusblog.com, while the audio version will be posted on Friday. The briefs for both sides and all of the amici briefs can be found here. There is excellent commentary about today’s arguments by Scotusblog.com. Five key points people should know about this case are made by Immigration Impact.

NPR reporters interviewed people of all persuasions out on the streets in D.C. while the court was in session. Of particular interest were the comments of Europeans who are used to cross-border movement, whereas the Justices asked counsel for Arizona about whether states could seal their own borders or recognize the identification documents issued in other states, [such as Washington], that do not require proof of legal status.

As a Seattle immigration lawyer and Chair of the Washington Chapter of the American Immigration Lawyers Association, my colleagues and I hear daily about cases involving people arrested by local law enforcement agencies, who because of the federal ICE Secure Communities and Criminal Alien Programs, are referred to ICE for removal proceedings through the detainer process. Although Washington does not have the same state laws enacted by Arizona and other states, existing federal programs already result in thousands of lawful permanent residents and undocumented individuals being referred to ICE by virtue of their contact with local law enforcement because of these two nationwide federal programs. Immigration lawyers deal daily with the fallout of these state and federal programs. My colleagues see many people picked up for low level offenses or no offenses at all – just being in the wrong place at the wrong time, or trying to report crimes in their communities only to be arrested. Most are in mixed status families, only to end up being separated from their US citizen spouses and children.

According to ICE’s statistics for FY 2011 ending on September 30, 2011, 319,000 individuals were removed, up from 245,601 in 2007. This does not include Mexican interior repatriation or border removals/returns or voluntary departures or returns. Of the 319,000 people removed in 2011, ICE reports that 216,698 were “criminal aliens.” But only 87,547 of the 216,698 individuals were convicted of “felonies and misdemeanors” including homicide, sexual offenses, drugs and DUI, with drug and DUI offenders being the greatest number of people removed as “threats to national security or public safety”. What about the other 129,151 “criminal aliens”? Who were they? Safety and national security risks such as those driving without proper ID? Broken tail lights? Shoplifters? Those accused of crimes but not convicted? Those driving under the influence of accents or brown skins? Anyone who comes in contact with the criminal justice system through the Criminal Alien Program or Secure Communities, whether charged or not, and whether convicted or not, can end up in removal proceedings and be classified as a criminal offender if ICE places a detainer for transfer to their facilities, even if local law enforcement decides not to prosecute for a local offense. ICE defines “criminal offender” as an alien convicted for one or more crimes, immigration fugitives (i.e., have outstanding orders of removal) or those previously removed or returned. Therefore, those not convicted of any crimes at all may be part of the 216,698 “criminal offenders”, or they are part of the 73,399 people not labeled as criminal offenders.

Arizona’s SB 1070 drags more people into their criminal justice system because they create new state crimes for being undocumented when the federal government already has civil and criminal offenses for immigration violations. State laws dealing with immigration have other consequences: financial and personnel burdens on state and local prosecutors, public defenders and local courts, in a time when most states are slashing court system budgets. In fact, last month the federal courts in Arizona declared a “judicial emergency” because of the crushing case load brought in large part by the increase in immigration cases.Where states bring immigration violators into the fold of criminal sanctions, now these individuals are constitutionally entitled to government funded defense counsel. By contrast, individuals in removal proceedings are entitled to counsel, but not government counsel.

Moreover, the increase in individuals referred from state and federal criminal courts to the immigration courts has completely overwhelmed the immigration courts. With backlogs nationally of over 300,000 immigration cases, it can take years in some jurisdictions to get a hearing on the merits of a case. This week and next, the Seattle Immigration Courts and those in six other cities are closed while cases are reviewed for priority status. Congressional and state “enforcement only” laws and the administration’s gung-ho attitude to step up enforcement more than any prior administration has resulted in a fiscal mismatch with the immigration court system suffering under the weight of a crushing case load. In the immigration court’s latest budget request, no new judges were requested!

If the Supreme Court decides in Arizona’s favor and other states continue to follow suit, we will have an expanded patchwork of immigration laws throughout the country. Arizona’s law is based on the concept du jour of attrition, or the misnomer of “self-deportation” under the theory that making it harder to live in the US will cause undocumented people to leave the US. In reality, people will move to another friendlier state. Already we have seen in Alabama and other states whole communities decimated because of the exodus of business owners, workers and consumers, many of whom are in mixed status families. It is the nature of most undocumented immigrants to come here to better their lives. They will not return home unless ordered deported if conditions at home are worse than in the US. This does not mean they have the right to be here or any status. However, the Arizona style laws are the wrong fix to the problem.

There are several ironies about this case and the timing of oral argument now. The New York Times reported in February 2012 on “immigration fatigue” in Arizona, especially among Republican voters and candidates. Sponsors of the Arizona bill were recalled or faced other problems. Just this week, the Pew Hispanic Center reported that net migration from Mexico is now zero or even lower, the lowest in two decades. For many immigration restrictionists, the goal post of “successful” or “enough” enforcement will never be met.

The reason the Arizona case is before the Supreme Court is because Congress failed to enact Comprehensive Immigration Reform of our laws by updating our legal system of immigration, by making a path to legal status or citizenship for the millions here without status, and by insisting on cost-effective smart enforcement. As a result, Arizona enacted its own legislation to deal with the problems its sponsors perceived were caused by immigrants. (Never mind that a lot of the violence in Arizona comes from Americans’ insatiable appetite for drugs and unrestricted gun sales.) Just last month, I along with members of our AILA Washington Chapter and AILA members from around the country visited our Congressional delegations in Washington, D.C. On both sides of the aisle, members conceded that Comprehensive Immigration Reform is sorely needed, but nothing will be passed in a divisive Congress. Elections aside (as we heard this every year since President Obama was elected), if they all agree CIR is needed, why not work on it? Let’s get it started! And if CIR is too big to be done, then work on the smaller things that can be done, but they have to be interrelated: legal immigration, what to do with the undocumented and smart enforcement. As an example, members of Congress right now are trying to add an unrelated criminal removal provision to the re-authorization of the Violence Against Women Act, a bill that has historically enjoyed bi-partisan support and has been a single-subject bill designed to help victims of violence. Earlier in the year, another bi-partisan bill to deal with the quota backlogs in legal permanent immigration was derailed by immigration restrictionists when unrelated amendments were introduced.

Patchwork state laws are not the solution to fixing our immigration laws. Hopefully, the Justices of the US Supreme Court will see that when they issue their decision.