SB 1070 Appeals
On April 11, 2011, the Ninth Circuit Court of Appeals delivered its published
opinion affirming the District Court's grant of a preliminary injunction
against the State of Arizona and in favor of the United States. The judges
were unanimous on two of four appealed points, but were also divided on
the remaining two. Judge Paez wrote the majority opinion; Judge Noonan
concurred with Judge Paez on all points but wrote separately; and Judge
Bea was the partial dissenter.
The decision of the Ninth Circuit became final on July 30, 2011 and the
mandate issued, sending the case back to the District Court and removing
considerable uncertainty about the legal issues before the District Court.
On August 12, 2011 a Petition for Writ of Certiorari was filed in the
United States Supreme Court, no. 11-182. The filing of the petition for
the writ does not stay the proceedings before the District Court, as the
Court has discretion to hear the case or not and there has been no order
issued from the Supreme Court staying any part of the proceedings before
the District Court.
A majority of the Ninth Circuit judges agreed that U.S. District Court
Judge Bolton had properly entered a partial injunction against S.B. 1070
with respect to Section 3 of S.B. 1070, that would have created a new
misdemeanor crime of failure by undocumented persons to possess proper
papers in Arizona, and Section 5(c) that would have criminalized aliens
who worked without federal authorization, as this was not also a federal
crime. The judges found that S.B. 1070 conflicted with existing precedents
and Congressional enactments in these two sections, though in the dissent,
Judge Bea disagreed that the Section 5(c) ruling could also be justified
on foreign relations grounds, as the majority found.
The judges disagreed whether SB 1070's other two provisions were pre-empted:
detaining individuals pending immigration checks for legal status (Section
2B), and warrantless arrest of those who had committed a removable offense
(Section 6). The majority found that they were pre-empted by federal statutes,
regulations and decisions. Judges Paez for the majority and Bea as the
dissenter matched wits and literary quotes as they each examined the texts
of these sections of Arizona law and the federal statutes and regulations
that were used to determine if federal pre-emption applied. Judge Noonan
took a wider view, explaining in a less technical context the history,
national vision, and broader values that had led to the majority result.
The judges considered three federal statutes and their meaning and interpreted
them differently: 8 U.S.C. Sections 1373(c),
1357(g),
and 1252c,
all of which concern state-federal cooperation and the respective roles
of state and federal officers in immigration enforcement. The arguments
repeated much of what had been argued by the lawyers in the district court
and before the Ninth Circuit, and had been decided by Judge Bolton, though
the majority did go further than Judge Bolton in one important respect
and ruled: "We are not aware of any binding authority holding
that states possess the inherent authority to enforce the civil provisions
of federal immigration law—we now hold that states do not have such
inherent authority". Opinion, p. 4843. This new ruling suggests
that apart from DHS written agreements with state and local law enforcement
officials to deputize them as immigration enforcers for the federal immigration
authorities, state and local law enforcement only have independent powers
to make arrests where unauthorized individuals actually commit a federal
immigration crime, as for example, crossing the international border on
foot to avoid immigration inspection by a federal officer. This is a simple
rule that, unless reversed by the U.S. Supreme Court, makes a clear distinction
that can be applied cleanly by law enforcement entities and brings clarity
to the area of immigration enforcement as between state and federal officials.
Any further proceedings in Judge Bolton's court must conform to the principles
set down by the Ninth Circuit.
Oral argument before the Ninth Circuit
For those interested in what occurred before the Ninth Circuit, the following
describes the oral argument held on November 1, 2010. The proceedings
can be viewed at the
C-Span website.
There were few surprises as a result of the hearing. Oral argument was
limited to the preliminary injunction rulings of the District Court that
favored the United States. They involved four sections of the Arizona
immigration law: detaining individuals pending immigration checks for
legal status (Section 2B), criminalizing unlawful immigration status in
Arizona (Section 3), criminalizing illegal employment by those unlawfully
present (Section 5), and warrantless arrest of those who had committed
a removable offense (Section 6).
The judges felt precluded by precedent from undoing what the District
Court had ordered with regard to Sections 3 and 5. Earlier cases would
have to be overruled by a higher level court before the judges could consider
changes to the injunction involving those sections.
Sections 2B and 6 were not subject to this limitation. The judges seemed
concerned that the injunction of the District Court insufficiently acknowledged
that a facial challenge to SB 1070 requires upholding a law against speculative
challenges, since some applications of the law could be constitutional.
However, it is difficult to extrapolate from the judges' questions, which
are designed to probe the lawyers' arguments without necessarily revealing
a judge's thoughts, to reach a solid prediction about what the judges
will finally decide.
With regard to detention pending immigration verification, the judges
seemed puzzled by the U.S. Government's explicit position upon probing
questioning that mandatory checks of immigration status by state law enforcement
officers should be enjoined while discretionary ones should not.
To be fair, Section 2(B)'s impact is far different now that Section 3
of SB 1070 is enjoined and will remain so in all likelihood after the
appeal. Holding unauthorized detained aliens for criminal trial in the
state, as the original version of SB 1070 before the injunction was entered
would have done, is far different from holding them temporarily for transfer
to the federal authorities, as was the practice before the adoption of
SB 1070 and is all that is now allowed if Section 3 remains enjoined.
Section 2(B), unaccompanied by Section 3, does now seem simply to codify
existing practice in Arizona and elsewhere, as the attorney for Arizona
argued, in that state law enforcement officials simply deliver unauthorized
persons to federal authorities whereas in conjunction with Section 3,
it would be far more invasive and threatening, as the officers would be
required to have them tried in state court first for the SB 1070 misdemeanor
crime of unlawful presence.
The District Court's preliminary injunction as it was entered by the
District Court against Section 2(B) will not likely survive the Ninth
Circuit appeal in its current form.
In discussing both Section 2(B) and Section 6 with the lawyers, the judges
also seemed troubled that the District Court had approved a facial challenge
when the impingement upon federal power seemed to be speculative, as for
example, on the assumption that immigration verification checks will overwhelm
federal resources, particularly as federal law seemed to require a cooperative
federal response from state law enforcement officers, even absent a state-federal
agreement for state officers to enforce federal immigration law.
It could be weeks or months before the judges issue their opinion. Once
it is rendered, the parties will have an opportunity to ask the panel
to reconsider its decision, or ask that the entire Ninth Circuit to review
the decision because it conflicts with another decision of the Court.
Only after all these opportunities have been exhausted, or are not invoked
by either party, will a mandate issue from the Ninth Circuit that has
the force of law.
A petition to the U.S. Supreme Court is also possible, and highly likely
from either party if it is disappointed with aspects of the Ninth Circuit
decision that it considers significant.
Information about the Ninth Circuit
On July 29, 2010, the State of Arizona appealed the preliminary
injunction decision of the U.S. District Court (Arizona) in United
States v. State of Arizona, No. 10-01413 to the Ninth Circuit Court of
Appeals, which is the largest federal circuit court of appeals in the
country. It has 27 judges. A panel of three of them hear oral argument
in cases initially, and in the SB 1070 matter, this was held on November
1, 2010 at 9 AM at the James R. Browning Courthouse located at 95 7th
St. in San Francisco. Each side had a total of 30 minutes (twice the amount
normally allotted). The Courtgranted permission for the proceedings to
be televised live and recorded for broadcast afterwards.
The judges who decided the S.B. 1070 appeal
The identity of the three judges who heard the case was posted online
on Friday, October 22, 2010, prior to the hearing, as is customary in
the Ninth Circuit.
Judge John Thomas Noonan, Jr. was appointed by President Reagan; Judge
Richard Paez by President Clinton, and Judge Carlos Tiburcio Bea by President
George W. Bush.
Judge Paez and Judge Bea are both Hispanic. Judge Paez is a Mormon from
Salt Lake City who is a Brigham Young University graduate. Judge Bea is
a naturalized US citizen who was born in San Sebastian, Spain and emigrated
to Cuba with his family before coming to the U.S. He is a Stanford Law
graduate. Judge Noonan is a legal scholar and philosopher with a Ph.D.,
a Harvard trained lawyer, a former law professor, and author of many articles
and books.
Judges Paez and Bea were athletes. Judge Bea represented Cuba at the
Helsinki Olympics.
Judge Paez is a team player, who rarely authors an opinion or dissent
of his own but joins others with similar views and remains in the background.
Judge Bea is outspoken and more frequently than the two other judges joins
or authors dissents. Judge Noonan is the author of many legal opinions
over his career that other judges have joined.
Judges Noonan and Bea are more often labelled as conservative and Judge
Paez as liberal, but such labels usually are poor predictors of how a
judge will decide a particular case. Judge Paez's appointment was held
up for over four years because conservatives in the Senate opposed the
nomination. Only when Senator Barbara Boxer horsetraded a vote for Senator
Trent Lott's candidate for the Tennesee Valley Authority was Judge Paez
finally confirmed. (In the meantime Judge Paez continued serving as a
U.S. District Court judge in Los Angeles).
All the judges have heard and decided federal pre-emption appeals before,
of which U.S.A vs. AZ is one.
Of the three judges, Judge Bea predictably was the most critical of the
District Court's opinion, not because Judge Bea necessarily has hostility
to or preconceived views about S.B. 1070, but because he is very sensitive
to the finer points and subtleties of detailed pre-emption analysis. Judge
Noonan foreseeably supported Judge Bolton on most of the points in her
opinion because her expressed views mirrored many of the opinions on pre-emption
issues that he has written about or voted with in the past. Though Judge
Paez was harder to predict, he actually wrote the majority opinion, sparring
with Judge Bea on many points. Judge Paez began his career as a staff
attorney to immigrant farm laborers, and so he predictably was sensitive
to the plight of the undocumented workers.
Heart of the matter: required immigration checks
The Arizona U.S. District Court followed a classically traditional approach
to federal preemption law for the most part, but did stray in a few places,
most particularly in its discussion of detention in section 2B of SB 1070,
which requires detention of persons reasonably suspected of unlawful status
or who are arrested, pending an immigration check.
In relevant part the law states: "For any lawful stop, detention
or arrest made by [an Arizona] law enforcement official or . . . law enforcement
agency . . . in the enforcement of any other law or ordinance of a county,
city or town of this state where reasonable suspicion exists that the
person is an alien and is unlawfully present in the United States, a reasonable
attempt shall be made, when practicable, to determine the immigration
status of the person, except if the determination may hinder or obstruct
an investigation. Any person who is arrested shall have the person’s
immigration status determined before the person is released."
Unlike other parts of her pre-emption analysis, the judge weighed the
probable of impact of SB 1070 against the limited resources of the immigration
agencies, and decided the pre-emption issue accordingly instead of ruling
on the federal exclusive responsibilities under the Constitution. The
Court found with respect to mandatory immigration checks of arrestees
that lawful aliens would have to be detained for long periods of time,
and that requests for immigration checks would overwhelm federal resources.
Preliminary
injunction opinion, USA v. AZ, at pp. 16-17.
With regard to stops by officers and reasonable suspicion to believe
that the person is unlawfully present, the Court stated: "The
United States asserts, and the Court agrees, that 'the federal government
has long rejected a system by which aliens’ papers are routinely
demanded and checked.' (Pl.’s Mot. at 26.) The Court finds that
this requirement imposes an unacceptable burden on lawfully-present aliens."
In addition, the Court found: "Federal resources will be taxed
and diverted from federal enforcement priorities as a result of the increase
in requests for immigration status determination that will flow from Arizona
if law enforcement officials are required to verify immigration status
whenever, during the course of a lawful stop, detention, or arrest, the
law enforcement official has reasonable suspicion of unlawful presence
in the United States." Preliminary
injunction opinion, USA v. AZ, at pp. 18-20.
That shift of focus away from the respective functions of federal vs.
state and local officials required the judge to speculate about the likely
course of events once the new law went into effect. That type of exercise
is generally not judicially permitted in a facial constitutional attack
upon a law that has not yet been enforced but was upheld by a majority
of the Ninth Circuit panel.
Contrary to Judge Bolton's and the Ninth Circuit's ruling, the Eleventh
Circuit refused to enjoin similar provisions of an Alabama anti-illegal
immigration measure for immigration checks by State officers, setting
the stage for likely review before the U.S. Supreme Court to resolve the
differences between the circuits, likely in the S.B. 1070 case, which
is already before it. A copy
of the Eleventh Circuit's decision is available online.
Click here for an analysis of the provisions of Arizona's
2010 anti-Illegal Immigration Law (SB 1070).
Click here to read John
Messing's report of the S.B. 1070 July 22, 2010 court proceedings,
which he attended and observed.
If you are concerned about immigration status of yourself, a family member,
or someone else close to you in light of S.B. 1070, please contact Messing
Law Offices for a free seven minute telephonic consultation or to
schedule an initial consultation.
At Messing Law Offices, we provide high quality legal services and expertise
to families, working men and women, and businesses. If you have a concern
in the areas of family based immigration,
business based immigration, employment
based immigration, or naturalization
and you are seeking the help of an experienced immigration lawyer, call
Messing Law Offices for professional Arizona
immigration attorney assistance.
This page is being regularly updated. Please visit us again soon to follow the
developments.
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