Articles Posted in Arizona SB 1070

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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, 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 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.
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584383_united_states_passport.jpgImmigration enforcement legislation creates problems for U.S. citizens as well as for immigrants. Over the last few years, we have seen growth in our American citizen clientele because of new federal and state documentation burdens enacted under the guise of national security or to combat illegal immigration. The most common refrain we hear is: “I grew up in the U.S. I always thought I was an American but never had anything to show for it and I never needed the proof until now.” Ironically, we hear the same thing about the children of undocumented immigrants who have grown up in the U.S.; only now we are dealing with “undocumented Americans.”

Documentation burdens affecting American citizens include:

WHITI: WHITI stands for the Western Hemisphere International Travel Initiative. WHITI requires U.S. citizens to have one of these types of documents when returning from Canada, Mexico, the Caribbean or Bermuda: passports, enhanced drivers’ licenses, military cards with travel orders, Merchant Marine Cards, I872 American Indian or Enhanced Tribal cards, Trusted Traveler Cards (see below), or in the case of children under 16, original birth certificates, evidence of birth recorded abroad, or naturalization certificates.

The number of Americans holding U.S. passports has been fairly low compared to other countries, but filings have substantially increased in the last two to three years as WHITI was fazed in. Now, more Americans need passports or one of the documents listed above to re-enter the U.S. from travel destinations not far from the U.S. U.S. Customs and Border Protection (CBP) has a useful “Know Before You Go” brochure describing what documents are needed. Keep in mind that the cheaper Enhanced Drivers License only allows for reentry from specified countries, and only some states offer it. A U.S. Passport is more flexible and required for travel from other countries around the world. You can learn about Washington State’s Enhanced Drivers License here. To obtain a passport, see the U.S. Department of State’s website.
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The Ninth Circuit Court of Appeal heard oral argument today in USA v. Arizona, which was broadcast live on C-SPAN.



The three judge panel consisted of Judge Richard A. Paez, Judge Carlos T. Bea and Judge John T. Noonan, Jr. Representing the State of Arizona and Governor Jan Brewer was John J. Bouma. Representing the U.S. was U.S. Deputy Solicitor General Edwin Kneedler. Arizona Governor Jan Brewer was also present. There were protests and supporters outside the courthouse in San Francisco as well as in other jurisdictions. Numerous amici, or friends of the court, briefs were filed on both sides of the case by cities, counties, and states (including the City of Seattle, which signed on to the County of Santa Clara brief), federal legislators, and community, bar and foundation groups of all types. The briefs from each are posted on the Ninth Circuit Court of Appeals website.

USA v. Arizona involves only four of the provisions in the original Arizona statute, SB 1070. Arizona claims each provision is consistent with the objectives of Congress and federal legislation to enforce immigration laws. According to Arizona, the only issue where federal statutes preempt the Arizona law is the authority of the federal government to determine who stays or must leave the U.S. Arizona claims that violations of two of its statutory provisions are also violations of federal law. Judge Bea asked Mr. Bouma if Arizona was trying to suggest that where the federal government did not or would not enforce its laws, whether Arizona could enforce immigration laws for the federal government. As an example, Judge Bea asked whether if he didn’t pay his income taxes could California come along and sue him for failure to pay income tax? Mr. Bouma responded that California would not be interested in suing for income taxes, but that Arizona is concerned about the disproportionate impact on the state by the federal government’s failure to curb illegal immigration or Congressional failure to enact immigration reform.

One of the questions on appeal is whether Arizona law enforcement officers can legally be mandated to question people about their immigration status based on a “reasonable belief” that a person is in the U.S. illegally. Part of the provision states a person “shall not be released” until the person’s status is determined. The judges asked how this would play out in the field. Mr. Bouma responded that police are trained in constitutional protections of search and seizure, including reasonable suspicion, probable cause and Terry stops, and that if someone produces a drivers license, that is a presumption of legal status. But Judge Bea noted the presumption can be rebutted.

The federal government contends that the Arizona scheme is unconstitutional and inappropriately interferes with federal immigration enforcement and foreign policy. The Arizona law, if replicated in other states, would create a patchwork of confusing and inconsistent immigration enforcement laws across the country that conflict with the national scheme in the federal Immigration and Nationality Act, as amended.
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An NPR story yesterday, Prison Economies Help Drive Ariz. Immigration Law, highlights the role of the private prison business in the development of Arizona’s anti-immigrant bill, SB 1070, portions of which are currently being litigated in the federal court. Oral argument in the case is scheduled for Monday, November 1, 2010 as described in an earlier post, “Arizona Immigration Cases Set for Oral Argument.”

Immigration practitioners have known for years about the rapid growth of the private prison business around the country. Two of the leading companies are The Geo Group Inc. and Corrections Corporation of America. Cornell Corporation recently merged with Geo Goup, and there are others. Here in Washington, for example, the Tacoma based Northwest Detention Center (NWDC) serves as the primary facility housing immigrants picked up for deportation throughout the northwest states. Persons with questionable status arriving at land, sea and airports are also brought to the NWDC. The Immigration and Nationality Act specifies the types of immigrants subject to mandatory detention without possibility of bond or release, including certain types of criminals, terrorism suspects and some applicants for asylum. Individuals not subject to mandatory detention who are entitled to relief from an Immigration Judge and are deemed not a flight risk are eventually released with or without supervision and posting of a bond. Individuals can spend days, weeks, months or years in detention, especially when cases are on appeal, travel documents cannot be obtained, or there is no country willing to accept the individual. Did your time and paid your fine? Not so if you get transferred from criminal jail or prison to immigration detention which could be in a county, state or federal facility or a privately run facility. A person with immigration issues, including some U.S. citizens, can be incarcerated long after completing a criminal sentence.

NWDC was recently expanded to house 1575 inmates in anticipation of increased enforcement activities by Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP). Run by The GEO Group, the NWDC is a stark white, antiseptic looking facility, complete with full service medical center staffed 24/7 by the United States Division of Immigration Health Services (USDIHS). GEO Group provides the security, physical infrastructure, meals and “recreation”, while ICE handles all aspects of the detention and removal process. GEO Group builds or manages several types of correctional and mental health facilities throughout the U.S., U.K., Canada, S. Africa and Australia. Its 2009 Annual Report makes for an interesting read as do its various contracts with ICE that show how the government pays for guaranteed minimum rates per filled bed. A May 2010 ICE report shows an average occupancy rate of 1232 per month.

The NWDC also houses an Immigration Court with several active judges and periodic roving judges to hear bond and removal cases. According to an October 2009 ICE report, “Immigration Detention Overview and Recommendations“, nationwide “ICE operates the largest detention and supervised release program in the country. A total of 378,582 aliens from 221 countries were in custody or supervised by ICE in FY 2008; activities in 2009 remain at a similar level. On September 1, 2009, ICE had 31,075 aliens in detention at more than 300 facilities throughout the United States and territories, with an additional 19,169 aliens in Alternative to Detention programs. As of September 1 [2009], 66 percent were subject to mandatory detention and 51 percent were felons, of which, 11 percent had committed violent crimes. The majority of the population is characterized as low custody, or having a low propensity for violence.” ICE characterizes its facilities as “jails and prisons to confine pre-trial and sentenced felons.” In this report, ICE states “these standards impose more restrictions and carry more costs than are necessary to effectively manage the majority of the detained population.” ICE and its contractors have in fact been criticized by the ACLU, Human Rights Watch and other organizations for poor quality standards and mistreatment of inmates. In the last year, ICE has been subject to revised detention standards and review. See ICE Detention Policies.

The NPR story highlights the relationships between Corrections Corporation of America, lobbyists and Arizona legislators, among others. By following the money, one can understand at least one reason why Congress has yet to pass immigration reform legislation that goes beyond throwing more money at border enforcement. A “secure border” is a moving target, especially for politicians who want to see a “secure border’, however defined, as a trigger before passing other immigration reforms. There is probably no way to measure or ever have a “secure border” for a variety of factors. In an earlier post, Gone Fishin’ Got Deported, record-setting numbers of people deported by the Obama Administration was mentioned. More enforcement activity means more arrests and more bed space needed. There are big dollars to be made from enforcement-only policies by defense contractors who provide the various equipment, drones, sensors and technologies to monitor the border; by the software vendors to collect and massage all the data; and by prison builders, just to name a few impacted industries. (One would think private lawyers stand to gain, too, except for one important fact: the majority of immigrant detainees cannot afford a lawyer. Since the Immigration Courts are civil in nature, there is no constitutional right to government appointed counsel for indigent immigrants, as is the case for accused defendants in Criminal Court. In civil Immigration Court, there is only a right to counsel. That means counsel one can afford or no counsel at all. According to the Immigration Court (Executive Office of Immigration Review) FY2009 Statistical Year Book, 114,087(40%) of 290,233 immigrants in court had counsel while 176,146 (60%) lacked representation.)
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On November 1, 2010 at 9:00 a.m. the Ninth Circuit Court of Appeals will hear oral arguments in U.S.A. v. State of Arizona, Case No. 10-16645, at the James R. Browning U.S. Courthouse in San Francisco. This controversial case addresses the constitutionality of Arizona Senate Bill 1070, which requires state law enforcement officers to check a person’s immigration status under certain circumstances, and authorizes a warrantless arrest where there is probable cause to believe that the person has committed an offense making him/her removable from the United States. The U.S. government argues that federal statutes preempt SB 1070. The U.S. District Court for the District of Arizona previously issued a preliminary injunction in part and denied it in part. The State of Arizona and Governor Brewer appealed asking the Ninth Circuit to repeal the injunction imposed by the District Court. Parts of the law not subject to the injunction went into effect July 29, 2010. C-SPAN Channel 1 will broadcast the oral arguments live with remote viewing available in other federal courthouses.

The preemption issue is very important for several reasons. First, a number of states have enacted or are on the verge of enacting copycat legislation because Congress has simply failed to do its job to enact immigration reform legislation. In addition, many people feel the U.S. Department of Homeland Security (DHS) has not done enough to secure the borders and punish employers who hire workers without legal documents. Secondly, states and localities have tried to address perceived immigration problems by regulating who can rent housing, obtain business and professional licenses, seek social services and other activities. More commonly, states and localities have enacted employer verification obligations requiring employers in their jurisdictions to use the the federal government’s computerized E-Verify system to document work permission status of employees.

Meanwhile, all eyes are on the U.S. Supreme Court in the case of Chamber of Commerce v. Whiting, case 09-115 (formerly titled Chamber of Commerce v. Candelaria in the Ninth Circuit Court of Appeals). Oral arguments are scheduled for December 8. All of the briefs, which include several amicus briefs in support of the petitioner, U.S. Chamber of Commerce, and a plain description of the case can be found on SCOTUS Blog. See also the U.S. Supreme Court docket for all filings in the case. The Chamber case addresses the question of whether the Immigration Reform and Control Act of 1986 (IRCA), as amended, preempts federal law that makes use of E-Verify voluntary. Although many in Congress and at DHS would like to see mandatory E-Verify for all employers, right now under federal law, the use of E-Verify is voluntary nationwide except for federal contractors and some employers who have been audited by DHS. However, several states and localities require employers to use E-Verify if engaged in state or local contracting, and other states are just waiting to enact mandatory E-Verify for all employers. For employers conducting business in several states, the patchwork of E-Verify requirements as well as penalties outside the federal scheme found across the country can be very confusing. On the other hand, the federal requirements attempt to be a comprehensive scheme for all employers.