United States v. Arizona, 2011 U.S. App. LEXIS 7413
(lexis.com subscribers can
access the Lexis
enhanced version of the court's decision with summary, headnotes, and
Shepard's, United Dates v. Arizona No. 10-16645 (9th Cir. Apr. 11, 2011). Non subscribers can access the free unenhanced version of the
opinion available from lexisONE Free Case law, United Sates v. Arizona No. 10-16645 (9th Cir. Apr. 11, 2011).)
The
Ninth Circuit upheld a preliminary injunction against four provisions of
Arizona law that would (1) have law enforcement officers attempt to determine
the immigration status of people stopped, detained, or arrested; (2) punish
willful violation of federal alien-registration law; (3) criminalize work or
any effort to obtain work by an unauthorized alien; and (4) allow warrantless
arrests if there is probable cause for the officer to believe that the person
has committed an offense that makes him or her removable.
In 2010, Arizona
enacted the Support Our Law Enforcement and Safe Neighborhoods Act, S.B. 1070, which
was amended by H.B. 2162. The United
States sued to enjoin parts of the law on the
grounds of preemption and violation of the Commerce Clause. Judge Bolton
granted a preliminary injunction against sections 2(B), 3, 5(c), and 6 on the
basis of likely preemption. 703 F. Supp. 2d 980 (D. Ariz. 2010), summarized at 15 Bender's Immigr. Bull.
1160 (Aug. 15, 2010). She described these provisions as:
Portion of Section 2 of S.B.
1070
[Arizona
Revised Statutes]
§ 11-1051(B): requiring that an officer make a
reasonable attempt to determine the immigration status of a person stopped,
detained or arrested if there is a reasonable suspicion that the person is
unlawfully present in the United
States, and requiring verification of the
immigration status of any person arrested prior to releasing that person.
Section 3 of S.B. 1070
A.R.S.
§ 13-1509: creating a crime for the failure to apply for or carry alien
registration papers.
Portion of Section 5 of S.B. 1070
A.R.S.
§ 13-2928(C): creating a crime for an unauthorized alien to solicit, apply
for, or perform work.
Section 6 of S.B. 1070
A.R.S.
§ 13-3883(A)(5): authorizing the warrantless
arrest of a person where there is probable cause to believe the person has
committed a public offense that makes the person removable from the United States.
Arizona appealed. The Ninth Circuit affirmed the District
Judge in an opinion by Judge Paez. It applied the standard from United States v. Salerno, 481 U.S. 739
(1987), to this facial challenge.
As to section 2(B), the court first indicated that the
text did not support Arizona's
interpretation of it, and that sentences seemed to contradict one another. Just
when was the law enforcement officer required to check immigration status, and
which sentence's directions was he or she to follow? The court then determined
that Immigration and Nationality Act § 287(g), 8 U.S.C. §1357(g), shows congressional
intent to have the Attorney General closely supervise what officers perform
what functions in investigating, apprehending, or detaining people. The court
added that removal is an exclusively federal task. The court held that Arizona's "mandatory and
systematic scheme" conflicted with the considerable discretion Congress meant
the federal agency to have. Thus, section 2(B) was an obstacle to fulfilling
congressional intent. Furthermore, the court declared that the record
"unmistakably demonstrates that S.B. 1070 has had a deleterious effect" on
foreign relations. Finally, the court also relied on "the threat of 50 states
layering their own immigration enforcement rules on top of the INA" to rule about
section 2(B).
Turning to section 3 of S.B. 1070, the court cited
Supreme Court case law, as well as the arguments used about section 2(B). It
found that the United States was likely to succeed as to section 3 as well. Discussing
sections 5(C) and 6, the court again invoked conflicts with the statutory scheme
and congressional intent, case law, foreign-relations damage, and the chance of
having fifty different state laws in addition to the INA. As to section 6, the
court explicitly held that States lack "inherent authority" to enforce federal
civil immigration law. On this point, it cited United States v. Urrieta, 520 F.3d 569 (6th Cir. 2008), and
disagreed with United States v. Vasquez-Alvarez, 176 F.3d 1294 (10th
Cir. 1999).
In light of its determinations on all four sections,
the Ninth Circuit concluded that the district court did not abuse its
discretion when it found that the United States had shown potential
irreparable harm, public interest, and a balance of the equities favoring the
preliminary injunction.
Judge Noonan concurred in Judge Paez's opinion and
explained that he was writing to emphasize "the intent of the statute and its
incompatibility with federal foreign policy." Judge Bea concurred "in the
result and the majority of the reasoning" regarding sections 3 and 5(C), but
not as to the ability of foreign countries to preempt a state law by
complaining about it. He dissented as to the other two sections, considering
the majority's reasoning about congressional intent to lack statutory and case
support. He added that the majority misconstrued the scope of section 2(B). As
to section 6, he also disagreed with the majority's view that state police
officers cannot enforce civil immigration provisions.
NOTE: For more on this subject, see Charles Gordon,
Stanley Mailman, and Stephen Yale-Loehr, Immigration Law and Procedure §9.03; Julie Myers Wood: Flawed
Analysis Blocks Parts of 2010 Arizona Immigration Law, 2010
Emerging Issues 5271; Julie Myers Wood Discusses Arizona's Controversial
Immigration Law, 2010 Emerging Issues 5019.