Quick Analysis of the Arizona Immigration Law Ruling

Wednesday, July 28, 2010 - Stephen Eichler J.D. 'America's Legal Analyst'

The ruling by District Judge Susan Bolton to explain which parts of the law was struck down, or enjoined, and which parts are still going to take effect on Thursday.

The term "Enjoined" means to legally prohibited or restrained by injunction. For the layman use the word 'stopped' for a basic description as a replacement word.

           I. What is enjoined

1. Requiring verification of immigration status:  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.

            Reasoning: Pre-empted by federal law because it creates an additional burden on the federal government by increasing the number of immigration-verification requests to the federal government.

2. Failure to carry immigration papers: Creating a crime for the failure to apply for or carry alien registration papers.

            Reasoning: Pre-empted as an impermissible attempt to create its own state immigration scheme by altering the penalties established by Congress under the federal registration scheme.

3. Illegal for an illegal to solicit work: Creating a crime for an unauthorized alien to solicit, apply for or perform work.

            Reasoning: Pre-empted because there is a comprehensive federal scheme regulating employment of illegal immigrants.

4. Warrantless arrest for potentially removable alien:  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. 

            Reasoning: Pre-empted because determining whether a specific offense makes an alien removable is a tough decision and there is "a substantial likelihood that officers will wrongfully arrest legal resident aliens," thus impermissibly burdening legal aliens (and only the federal government can impose such burdens)

II. What is not enjoined?

1. No sanctuary cities: Prohibiting Arizona officials, agencies and political subdivisions from limiting enforcement of federal immigration laws.

2. Requiring cooperation with federal authorities: Requiring that state officials work with federal officials with regard to unlawfully present aliens.

3. Permitting civil suits for sanctuary cities:  Allowing legal residents to sue any state official, agency or political subdivision for adopting a policy of restricting enforcement of federal immigration laws to less than the full extent permitted by federal law.

4. Human smuggling crimes: Amending the crime of human smuggling.

5. Crime to pick up day laborers:  Creating a crime for stopping a motor vehicle to pick up day laborers and for day laborers to get in a motor vehicle if it impedes the normal movement of traffic.

6. Knowing/intentional employment of illegal immigrants: Amending the crime of knowing employment of unauthorized aliens. Amending the crime of intentional employment of unauthorized aliens.

7. Employee verification:  Amending the requirements for checking employment eligibility.

8. Funding for gang / immigrant enforcement: Creating the gang and immigration intelligence team enforcement mission fund.

[source: United States v. State of Arizona et al., Case 2:10-cv-01413-SRB, July 28, 2010 decision]

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