Immigration law will be decided in court
Immigration law will be decided in court
Updated 6m ago
By Alan Gomez, USA TODAY
Ashley Cooper is not an illegal immigrant. She's not Hispanic.
Yet the 22-year-old who graduated recently from Northern Arizona University spends her weekends in heavily Hispanic neighborhoods in Flagstaff, Ariz., raising money to battle the state's new immigration law.
She and other volunteers pass collection cups around soccer matches, neighborhood festivals and quinceañeras— traditional Hispanic coming-of-age parties for girls turning 15.
"I've never been more of a churchgoer in my life than now," Cooper, a volunteer with the Repeal Coalition, a group trying to repeal the state's immigration law, says of her fundraising efforts.
Cooper and others who feel strongly about Arizona's immigration enforcement law are preparing for what could be an onslaught of litigation starting July 29, when the law is scheduled to go into effect. It would require police officers to question the immigration status of suspects stopped for another offense if there's a "reasonable suspicion" they are in the country illegally.
The law has spurred protest marches, support rallies and economic boycotts. It has renewed the focus on immigration in the upcoming congressional elections, energizing Tea Party activists who say Arizona's law is needed because of the federal government's failings in securing the border.
The law's fate, and that of about 460,000 illegal immigrants in Arizona, will be determined in court. The outcome of the legal battle over immigration in Arizona could jeopardize hundreds of immigration laws passed by state and local governments.
Seven lawsuits, including one by the Department of Justice, have been filed in federal court to try to stop the state's law; a court hearing on the Justice suit and one other case is scheduled for Thursday. Even if the law does take effect as scheduled, its enforcement could spur another rush to state courthouses.
So advocates on both sides of the debate are gearing up for a fight. Prosecutors across the state are learning immigration law — the enforcement of which is typically handled by federal officers — for the first time.
Cities such as Flagstaff that refuse to enforce the new state law are preparing to defend themselves if they are sued.
A police training video warns that activists could try to entrap law enforcement officers with video cameras by trying to force a confrontation. Defense lawyers are searching for help in Arizona and beyond to defend people they believe will be wrongfully questioned under the law.
Supporters of the law say it was necessary to stem a dangerous stream of illegal immigrants crossing into Arizona. Some, such as Rick Gray, a member of the Greater Phoenix Tea Party Patriots who is running for a seat in the state Legislature, say Arizona had to act because the U.S. government has ignored the problem.
"It really should be an embarrassment to our federal government," Gray says. "If we cannot secure our border, there's an impotence there."
Gabriel Chin, a professor at the University of Arizona Rogers College of Law, says the passion over the law is "unlike anything that I've seen here, both because it affects so many people potentially in the legal system and because of the civil rights and constitutional implications." He adds, "Something has been unleashed here in Arizona that ... had not existed before."
Challenging the law
The first line of attack for critics is the series of lawsuits in federal court in Phoenix trying to stop the law from taking effect.
One of the main arguments in those suits is that immigration enforcement is a federal responsibility and Arizona's law tries to take over that role. In court documents, Department of Justice attorneys argue that the new law — officially called the Support Our Law Enforcement and Safe Neighborhoods Act — "crossed a constitutional line" by encroaching on a federal responsibility.
Foster Maer, an attorney for LatinoJustice, a Hispanic civil rights group supporting the lawsuits, says that stance is bolstered by statements made by Arizona politicians, law enforcement officers and the bill itself that express a desire to drive people out of the state. The bill states that "the intent of this act is to make attrition through enforcement the public policy of all state and local government agencies in Arizona."
"It's that whole attitude that fundamentally reflects, 'Yes, we're trying to take over immigration policy,' " he says. "It really demonizes Latinos generally and immigrants specifically."
Lucas Guttentag, director of the American Civil Liberties Union's Immigrants' Rights Project, says the lawsuits his group and others filed serve as a warning to other states weighing similar immigration laws.
Having the federal government join the challenges, he says, acts as a "cannon shot across the bow" to those states.
State legislatures passed 353 immigration-related laws in 2009 and introduced more than 1,100 this year, according to the National Conference of State Legislatures.
Those laws dealt with far less controversial issues, such as fining businesses that hire illegal immigrants and landlords who rent to them. The Pew Hispanic Center estimates there were 11.9 million illegal immigrants nationwide in 2008.
Ruthann Robson, a constitutional law professor at the City University of New York School of Law, says judges rarely halt laws from taking effect. The Justice Department and other challengers must show that irrevocable harm will result from the law, which Robson says is difficult.
"It's almost like saying, 'This is an emergency. You need to do something now before what happens can't be fixed,' " she says. The law could still be found unconstitutional later on, even if it takes effect.
For Arizona Gov. Jan Brewer, a Republican who signed the law April 23, finding the money and manpower to defend her state has not been easy.
To do so, Brewer created the Border Security and Immigration Legal Defense Fund. The fund has collected roughly $1.2 million from private citizens in 50 states through mail and online contributions, according to Brewer's office. Brewer has called the lawsuit a "massive waste of taxpayer funds" and has said "these funds could be better used against the violent Mexican cartels than the people of Arizona."
The governor hired a legal firm — Arizona-based Snell and Wilmer — to lead the defense.
Outside legal experts are assisting, including the Immigration Reform Law Institute, which advocates limiting immigration, and University of Missouri-Kansas City School of Law professor Kris Kobach, who has helped Arizona and other state and local governments draft and defend tough immigration laws.
Yet the law institute's Michael Hethmon says they are still outmanned.
"The number of attorneys involved on the alien side of this probably outnumber the legal team on the enforcement side by thousands to one," he says. He calls his group's efforts to curtail illegal immigration through state and local laws "a march out into the heartland."
The state's main defense to the claim that it is performing federal duties: The new law is merely an extension of the hundreds of immigration-related bills passed by states and local governments across the nation in recent years.
Arizona's 2007 law fining businesses that hire illegal immigrants was similarly challenged as threatening federal authority. It has been upheld by a federal district court and the 9th U.S. Circuit Court of Appeals. The U.S. Supreme Court has agreed to hear the challenge to the 2007 law and is scheduled to do so this year.
Attorneys working overtime
If the new Arizona law survives the initial challenges and takes effect, Arizona's city and county attorneys will be tasked with prosecuting violators in court.
In Pima County, Ariz. — one of the most active corridors for illegal immigration in the country — the state attorney's office already is stretched thin.
A 10% cut in the budget over the past two years has left two dozen attorney positions vacant, leaving 74 lawyers. They are handling more responsibilities and working longer hours with no overtime pay.
Pima County Attorney Barbara LaWall says she has cobbled together a team of her attorneys to dive into immigration law for the first time. With no financial assistance from the state for the added work, her team has amassed more than $40,000 in attorney hours figuring out how to handle the new law, she says.
"One of my attorneys said, 'I go to bed thinking about this law, and I wake up thinking about it,' " LaWall says. "That's not healthy."
The Arizona Prosecuting Attorneys' Advisory Council regularly trains its prosecutors on new laws enacted by the Legislature.
The council's interim executive director, Elizabeth Ortiz, says her staff sometimes relies on officials from other states to train Arizona prosecutors on enforcing new laws.
This time, Arizona is leading the way. It is the first to make being in the country illegally a state crime, and there is no example to fall back on. "We will figure it out," Ortiz says.
The law allows for jail sentences of up to six months for multiple violations and could lead to the deportation of people who are in the country illegally.
Dave Byers, director of the administrative office of the Arizona Supreme Court, says state court officials will hold a special training session through videoconferences with state judges because many aspects of the new law will be challenged in court.
"We don't train judges on the answers to those questions," Byers says. "We will explain to them ... areas where they will likely get cases."
State police officials are preparing the state's 15,000 officers to defend themselves against potential lawsuits.
Part of a 90-minute training video produced for the officers warns that activists will try to entrap them into abusing the law, using recording equipment to document their every move and analyzing their police reports in detail.
"The scrutiny (you) will be placed under in the next few months will be unlike you've ever seen," immigration attorney Beverly Ginn warns officers in the video.
'We're not trying to alarm people'
The defense of illegal immigrants charged under the law probably will vary by county, Pima County Public Defender Robert Hirsh says. Most of the crimes created by the new law are misdemeanors, and Hirsh says his office generally doesn't defend people charged with basic misdemeanors. Larger counties, such as Maricopa County, which encompasses parts of Phoenix, could do so, he says.
Yet Hirsh says such work may not be necessary because some law enforcement agencies simply may use the law to hand over suspected illegal immigrants to federal officials.
The Justice Department says in court papers that the law would burden federal agencies while distracting them from higher priorities, such as illegal immigrants involved in terrorism, drug smuggling and gang activity.
"Are they really going to run these people through misdemeanor court, while they're dealing with diminishing budgets?" Hirsh asks.
National civil rights groups are rallying legal support for those arrested under the new law.
"We're definitely beefing up our presence in Arizona," says Brent Wilkes, executive director of the League of United Latin American Citizens (LULAC), a Hispanic civil rights group.
Legal citizens questioned under the law may take their grievances to court.
Alessandra Soler Meetze, director of the ACLU of Arizona, says the organization has been training community groups around the state on how to receive complaints.
"People are going to go to the organizations and the churches that they feel more comfortable with," Meetze says.
Community groups such as the Somos America Coalition train citizens in community centers, high school auditoriums and gatherings in people's living rooms about their rights, what to do if they are arrested and how their families should respond if they are separated.
"We're not trying to alarm people," said Alfredo Gutierrez, co-founder of the coalition. "We're trying to allay their fears on how to best protect them."
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