Arizona v. United States a Decision for Immigrant Rights.By Alan Lee, Esq.† The Supreme Court's 5-3 decision in Arizona v. United States on June 25, 2012, was a victory for federalism and for all immigrant communities. Called a split decision in the newspapers, the ruling on Arizona law SB1070 was like a judges' split decision in boxing, with the winner being Immigrant Rights. Although Section 2(B), the so-called "show me your papers" provision remains, the Court swept aside the other three contested provisions of the law. Section 3 made failure to comply with federal alien registration requirements a state misdemeanor and the Court basically said that the U.S. government had already completely occupied the field with its own comprehensive registration scheme. Section 5(C) made it a misdemeanor for unauthorized aliens to seek or engage in work in the state, and although there was no federal counterpart to Section 5(C) and Arizona supporters said that it attempted to achieve the same goal of deterrence of unlawful employment as federal law, the Court held that it involved a conflict in the method of enforcement and was therefore pre-empted by federal law. The Court noted that the legislative background of the Immigrant Reform and Control Act (IRCA) underscored the fact that Congress had made a deliberate choice not to impose criminal penalties on aliens who seek and engage in unauthorized employment. Section 6 provided that a state officer without a warrant could arrest someone if the officer had probable cause to believe that the person had committed any public offense which made him removable from the United States, and the Court struck this down by saying that the law would provide state officers even greater authority to arrest aliens on the basis of possible removability than Congress gave to trained federal immigration officers who are empowered to arrest aliens for being in the United States in violation of any immigration law or regulation, but only where the alien is likely to escape before a warrant can be obtained. Section 2(B) requires state officers to make a reasonable attempt to determine the immigration status of any person they stop, detain, or arrest on some other legitimate basis if reasonable suspicion exists that the person is an alien and is unlawfully present in the United States. It also provides that any person who is arrested shall have the person's immigration status determined before the person is released. The Court said limits were already built into the state provision as production of a license or similar identification would raise a presumption that the person was lawfully in the U.S.; officers were not to consider race, color, or national origin; and the provision had to be implemented consistent with federal immigration law and protection of the civil rights of all persons. On the twin arguments of the Government that making the inquiry mandatory interferes with the federal immigration scheme and that state officers would be required to delay the release of some detainees for no other reason than to verify their immigration status, the Court said that Congress had done nothing to suggest that it was inappropriate for the states to communicate with ICE and had encouraged the sharing of information about possible immigration violations; and that Section 2(B) could be read to avoid the delay concerns in that officers are instructed to make a reasonable attempt to verify immigration status with ICE if there is reasonable suspicion that the alien's presence in the U.S. is unlawful, and state courts might conclude that unless the person continued to be suspected of some crime for which he could be detained by state officers, it might not be reasonable to prolong the stop for the immigration inquiry. The dissent of conservative Justice Samuel Alito was particularly enlightening as he struggled to justify Section 2(B)'s constitutionality saying first that the section only came into play when an officer has reasonable suspicion or probable cause to believe that a person has committed a non immigration offense. (That is because being in the United States illegally is not a crime). He pointed out that the law instructs Arizona officers to make a "reasonable attempt" "when practicable" to ascertain the person's immigration status. Also at the end, the discretion that ultimately mattered was not whether to verify a person's immigration status but whether to act once the person's status was known and the federal government retained the discretion that mattered most - the discretion to enforce the law in particular cases. The Court left open the possibility that Section 2(B) would be challenged in practice if there were abuses of the law, but that it was improper to enjoin the provision before the state courts had an opportunity to construe it and without some showing that enforcement of the provision in fact conflicted with federal immigration law and its objectives. Thus although Section 2(B) does at present support a state's authority to issue a mandatory law for encountered persons to show papers on detention or arrest for non-immigration related offenses, the Court put states on notice that it could soon revisit the issue and gave the state governments a narrow path under which "show me your papers" stops would be considered legal. But even more, the Court's action put the brakes on states' movements towards highly restrictive immigration laws of which five states other than Arizona have enacted similar legislation and 24 states had introduced but not yet enacted this type of bill. Looking for example at Alabama's immigration law HB 56, it is clear that most of its proposed, enacted, and challenged provisions would now be declared unconstitutional. The alien registration requirement of its Section 10 would fall for the same reason as Section 3 of the Arizona law; Section 11 making it a misdemeanor for unauthorized aliens to apply for, solicit, or perform work would fall for the same reason as Section 5(C) of the Arizona law; "show me your papers" Section 12 would probably survive like Arizona's Section 2(B); Section 13 making it unlawful for a person to conceal, harbor, or shield an alien unlawfully present in the U.S. or attempt or conspire to do so or encourage an unlawful alien to come to the state of Alabama, or transport or attempt to or conspire to transport an unlawful alien would be unconstitutional for the same reason as Section 3 of the Arizona law; Section 16 forbidding employers from claiming as business tax deductions any wages paid to unauthorized aliens would likely fall under the reasoning forbidding Arizona law Section 3 and/or 5(C); Section 17 establishing a civil cause of action against an employer who fails to hire or discharges a U.S. citizen or an alien who is authorized to work while hiring or retaining an unauthorized alien would be unconstitutional under the Court's reading of Section 3 and/or 5(C) of the Arizona law; Section 18 transporting an arrested person without a license to the nearest magistrate and making a reasonable effort to determine the citizenship of the arrested person would survive at present under Arizona Section 2(B); Section 27 barring Alabama courts from enforcing a contract to which a person who is unlawfully present in the U.S. is a party if the party had direct or constructive knowledge that the alien was unlawfully present in the U.S. at the time the contract was entered into is violative of the court's reasoning on Arizona law Section 5(C); Section 28 requiring every public elementary and secondary school in Alabama at the time of the enrollment in kindergarten or any grade in such school to determine if the student was born outside jurisdiction of the United States or is the child of an unlawfully present alien and qualifies for assignment to an English as Second Language class or other remedial program would similarly fall under the Court's reading of Arizona law Section 5(C); and Alabama Section 30 making it a felony for an alien not lawfully present in the U.S. to enter into or attempt to enter into a business transaction with the state of Alabama or any political subdivision thereof also violates the Court's reasoning of Arizona law Section 5(C) as it involves a conflict in the method of enforcement of the immigration laws. Undocumented immigrants across the country can breathe a sigh of relief that the Supreme Court's reaffirmed the primacy of the federal government over states in the field of immigration and has stopped for now the march to madness of state governments attempting to drive out illegal aliens through increasingly draconian methods.
† The author is a 30+ year practitioner of immigration law based in New York City holding an AV preeminent rating in the Martindale-Hubbell Law Directory, registered in the Bar Register of Preeminent Lawyers, and on the New York Super Lawyers list. He was awarded the Sidney A. Levine prize for best legal writing at the Cleveland-Marshall College of Law in 1977 and has written extensively on immigration over the past years for Interpreter Releases, Immigration Daily, and the ethnic newspapers, World Journal, Sing Tao, Pakistan Calling, Muhasba and OCS. He has testified as an expert on immigration in civil court proceedings and was recognized by the Taiwan government in 1985 for his work protecting human rights. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004, and his victory in the Second Circuit Court of Appeals in a case of first impression nationwide, Firstland International v. INS, successfully challenged INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof. Its value as precedent, however, was short-lived as it was specifically targeted by the Bush Administration in the Intelligence Reform Act of 2004. |
Copyright © 2003-2012 Alan Lee,
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