Thread: Immigration-law fight far from over as Appeals Court conside

Immigration-law fight far from over as Appeals Court considers injunction

by Michael Kiefer and Alia Beard Rau - Oct. 31, 2010 09:57 PM
The Arizona Republic
.

With battle lines over immigration drawn and the nation watching, attorneys for Arizona and the U.S. Department of Justice will debate Monday lifting a preliminary injunction against portions of the state's controversial immigration law, known as Senate Bill 1070.

A federal judge in Phoenix put several key components of the law on hold in late July, only hours before the law was supposed to take effect. Rather than enter into litigation to amend problems pointed out by the judge, Gov. Jan Brewer appealed the injunction.

At least 13 states, dozens of congressional members, numerous cities in Arizona and across the country, advocacy groups pro and con, and 11 Latin American nations have weighed in with statements to the 9th U.S. Circuit Court of Appeals in San Francisco, where the argument will be heard.
A ruling by the three-judge panel assigned to hear the case isn't likely for weeks or even months.

And the debate will not stop with the panel's ruling.

Brewer intends to put up a fight - and that's just over the injunction. The case eventually will have to be tried in court.

"She is prepared to pursue this all the way to the Supreme Court," said her spokesman, Paul Senseman.

Brewer will attend Monday's hearing.

"I will personally attend this hearing on behalf of the overwhelming majority of citizens who support the rule of law," she said. "I am steadfast in my belief that states have the sovereign right to enforce immigration laws consistent with federal immigration laws. The overwhelming support the state . . . and I have received from across America in this fight with the federal government to re-establish the rule of law in Arizona has been truly gratifying."

Democratic gubernatorial candidate Terry Goddard on Sunday said Brewer seeks only to grab headlines by traveling to the hearing.

"The court will make its decision based on the law, not on who's in the courtroom," said Goddard, who is Arizona's attorney general but is not arguing the state's case.

Rapid response


Brewer signed SB 1070 into law in April, and it quickly drew seven lawsuits in federal court. Most of them argue that immigration regulation is the jurisdiction of the federal government and not the state, and that SB 1070 could lead to racial profiling and the violation of individuals' constitutional rights.

Only three of the seven lawsuits have been argued before U.S. District Court Judge Susan Bolton, and she has made preliminary rulings on two of them. Bolton threw out two of the seven. In October, she declined to dismiss a suit led by the American Civil Liberties Union and Friendly House, a Phoenix advocacy group.

Monday's appellate-court hearing involves a suit brought by the Department of Justice attempting to knock down the law on constitutional grounds and because it may infringe on federal law.

"We're confident in our arguments, and we think Judge Bolton's findings are solid," said Dennis Burke, U.S. attorney for Arizona.

The state's argument consistently has been that if the federal government would not enforce immigration law, then the state would.

In July, Bolton imposed the injunction on four parts of the law. She took issue with clauses that force police to check the immigration status of anyone they stop and gives them the right to hold those people indefinitely until that status is verified.

She ruled that a state law requiring immigrants to carry immigration papers was pre-empted by federal law. Similarly, asking police officers to determine whether a person had committed an offense that could lead to deportation was beyond the officer's authority; only federal immigration judges make that decision, she ruled.

Bolton also stopped a statute barring illegal immigrants from seeking jobs - although she left one that carries penalties for day workers blocking traffic while soliciting work.

Brewer appealed the injunction to the 9th Circuit. The case will be heard by a three-judge panel composed of a judge appointed by President Bill Clinton, one appointed by President Ronald Reagan and one appointed by President George W. Bush. Two of the judges are Hispanic, and one said during a U.S. Senate hearing that, "To my knowledge, I am the only circuit judge to have been ordered deported by the Immigration and Naturalization Service."

State Sen. Russell Pearce, R-Mesa, the law's sponsor, and Cochise County Sheriff Larry Dever both asked Brewer if they could have a few minutes of her allotted 30 minutes to address the panel.

Dever said Brewer and her attorneys don't "completely represent the interests" of the people enforcing the law, particularly those along the border.

"Our best chance is for the court to hear directly from the horse's mouth," he said.

They were denied, first by the 9th Circuit and then by Brewer. Pearce said he still would fly to San Francisco and attend the hearing.

"I would love to have my five minutes. I wrote the bill," Pearce said. "But I understand the governor's position. Time is so limited."

Dever, Maricopa County Sheriff Joe Arpaio and Pinal County Sheriff Paul Babeu will watch the hearing together in Scottsdale. Monday's hearing will be broadcast on C-SPAN beginning at 9 a.m. and aired at federal courthouses across the country, including those in Phoenix and Tucson.

Battle won't end


Regardless of the 9th Circuit's decision, the battle will continue.

A legal defense fund that has received $3.7 million from private donors has covered the more than $1 million in legal fees billed so far by Snell & Wilmer, the outside legal counsel Brewer hired to defend SB 1070. Senseman said it had not yet been determined whether Brewer's costs for attending the hearing would be paid for by the state or through this fund.

Attorney John Bouma will appear before the 9th Circuit on behalf of the governor and the state, as he did during the Phoenix hearings.

There's no telling whether the 9th Circuit will rule entirely in favor of one side or the other, or split the difference. But the losing side could ask the 9th Circuit to revisit the issue en banc; that is, by a larger panel of judges.

Then it could be taken to the U.S. Supreme Court, which chooses the cases it wants to consider. Legal experts point out that the high court gets involved only when it wants to reverse a decision or when it wants to confirm an issue that affects the country as a whole. SB 1070 fits that description.

"If the 9th Circuit upholds Bolton, the state's only recourse is the U.S. Supreme Court," said Phoenix attorney Stephen Montoya, who argued one of the suits in which Bolton has not yet issued a decision.

The case eventually will be sent back to Bolton to work out the details.

If the Department of Justice prevails on the preliminary injunction, it bodes ill for the state. In order to obtain an injunction in the first place, a party has to convince the judge that the argument is likely to succeed on its merits. The federal government then could request a permanent injunction before the case ever goes to trial.

But that's no sure thing: The 9th Circuit panel reportedly is a mix of conservative and liberal judges, and the U.S. Supreme Court has a decidedly more conservative bent than the 9th Circuit overall. Anything could happen.

www.azcentral.com

What we really need to do is instead of relying upon the courts, we need to rely upon law and pass a federal bill as soon as possible that clarifies unequivocally in simple language:

1. States have the authority to enforce US immigration law as well as pass their own immigration laws to arrest, detain, fine and imprison any person who has violated such laws and upon a hearing and verification of immigration status by federal authorities, deport illegal aliens from their state either to the District of Columbia for deportation by federal authorities or to the country of origin. States shall report monthly to the public on the number of deportations.

2. The federal authority shall respond immediately to all such verification requests from any state, provide such verification no later than 72 hours following such requests and report monthly to the public on the number of requests and verifications.

3. The Congress shall appropriate funds to reimburse the states for all reasonable travel costs associated with deportations to the country of origin and shall report the cost to the public on a monthly basis.