USA v. State of Arizona, et al

Filing 23

Submitted (ECF) Opening brief for review. Submitted by Appellants Janice K. Brewer and State of Arizona. Date of service: 08/26/2010. [7454038] (JB)

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USA v. State of Arizona, et al Doc. 23 Att. 1 No. 10-16645 IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT United States of America, Plaintiff-Appellee, v. State of Arizona; and Janice K. Brewer, Governor of the State of Arizona, in her Official Capacity, Defendants-Appellants. Appeal from the United States District Court for the District of Arizona No. CV 10-1413-PHX-SRB ADDENDUM TO APPELLANTS' OPENING BRIEF John J. Bouma (Ariz. Bar #001358) Robert A. Henry (Ariz. Bar #015104) Joseph G. Adams (Ariz. Bar #018210) SNELL & WILMER L.L.P. One Arizona Center 400 E. Van Buren Phoenix, AZ 85004-2202 Telephone: (602) 382-6000 Fax : (602) 382-6070 jbouma@swlaw.com bhenry@swlaw.com jgadams@swlaw.com Joseph A. Kanefield (Ariz. Bar #015838) Office of Governor Janice K. Brewer 1700 W. Washington, 9th Floor Phoenix, AZ 85007 Telephone: (602) 542-1586 Fax: (602) 542-7602 jkanefield@az.gov Attorneys for Defendants-Appellants State of Arizona; and Janice K. Brewer, Governor of the State of Arizona Dockets.Justia.com TABLE OF CONTENTS Key Provisions of Title 8 of the United States Code ............................................1 8 U.S.C. 1357(g) Performance of immigration officer functions by State officers and employees................................................................1 8 U.S.C. 1373. Communication between Government agencies and the Immigration and Naturalization Service ........................................3 8 U.S.C. 1644. Communication between State and local government agencies and Immigration and Naturalization Service ........................4 Pertinent Provisions of S.B. 1070, As Amended By H.B. 2162 ...........................5 Section 2 .........................................................................................................5 Section 3 .........................................................................................................8 Section 5 .......................................................................................................10 Section 6 .......................................................................................................12 Section 12 .....................................................................................................13 i Key Provisions of Title 8 of the United States Code 8 U.S.C. 1357(g) Performance of immigration officer functions by State officers and employees (1) Notwithstanding section 1342 of Title 31, the Attorney General may enter into a written agreement with a State, or any political subdivision of a State, pursuant to which an officer or employee of the State or subdivision, who is determined by the Attorney General to be qualified to perform a function of an immigration officer in relation to the investigation, apprehension, or detention of aliens in the United States (including the transportation of such aliens across State lines to detention centers), may carry out such function at the expense of the State or political subdivision and to the extent consistent with State and local law. (2) An agreement under this subsection shall require that an officer or employee of a State or political subdivision of a State performing a function under the agreement shall have knowledge of, and adhere to, Federal law relating to the function, and shall contain a written certification that the officers or employees performing the function under the agreement have received adequate training regarding the enforcement of relevant Federal immigration laws. (3) In performing a function under this subsection, an officer or employee of a State or political subdivision of a State shall be subject to the direction and supervision of the Attorney General. (4) In performing a function under this subsection, an officer or employee of a State or political subdivision of a State may use Federal property or facilities, as provided in a written agreement between the Attorney General and the State or subdivision. (5) With respect to each officer or employee of a State or political subdivision who is authorized to perform a function under this subsection, the specific powers and duties that may be, or are required to be, exercised or performed by the individual, the duration of the authority of the individual, and the position of the agency of the Attorney General who is required to supervise and direct the individual, shall be set forth in a written agreement between the Attorney General and the State or political subdivision. 1 (6) The Attorney General may not accept a service under this subsection if the service will be used to displace any Federal employee. (7) Except as provided in paragraph (8), an officer or employee of a State or political subdivision of a State performing functions under this subsection shall not be treated as a Federal employee for any purpose other than for purposes of chapter 81 of Title 5 (relating to compensation for injury) and sections 2671 through 2680 of Title 28 (relating to tort claims). (8) An officer or employee of a State or political subdivision of a State acting under color of authority under this subsection, or any agreement entered into under this subsection, shall be considered to be acting under color of Federal authority for purposes of determining the liability, and immunity from suit, of the officer or employee in a civil action brought under Federal or State law. (9) Nothing in this subsection shall be construed to require any State or political subdivision of a State to enter into an agreement with the Attorney General under this subsection. (10) Nothing in this subsection shall be construed to require an agreement under this subsection in order for any officer or employee of a State or political subdivision of a State-(A) to communicate with the Attorney General regarding the immigration status of any individual, including reporting knowledge that a particular alien is not lawfully present in the United States; or (B) otherwise to cooperate with the Attorney General in the identification, apprehension, detention, or removal of aliens not lawfully present in the United States. (h) Protecting abused juveniles An alien described in section 1101(a)(27)(J) of this title who has been battered, abused, neglected, or abandoned, shall not be compelled to contact the alleged abuser (or family member of the alleged abuser) at any stage of applying for special immigrant juvenile status, including after a request for the consent of the Secretary of Homeland Security under section 1101(a)(27)(J)(iii)(I) of this title. 2 8 U.S.C. 1373. Communication between Government agencies and the Immigration and Naturalization Service (a) In general Notwithstanding any other provision of Federal, State, or local law, a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual. (b) Additional authority of government entities Notwithstanding any other provision of Federal, State, or local law, no person or agency may prohibit, or in any way restrict, a Federal, State, or local government entity from doing any of the following with respect to information regarding the immigration status, lawful or unlawful, of any individual: (1) Sending such information to, or requesting or receiving such information from, the Immigration and Naturalization Service. (2) Maintaining such information. (3) Exchanging such information with any other Federal, State, or local government entity. (c) Obligation to respond to inquiries The Immigration and Naturalization Service shall respond to an inquiry by a Federal, State, or local government agency, seeking to verify or ascertain the citizenship or immigration status of any individual within the jurisdiction of the agency for any purpose authorized by law, by providing the requested verification or status information. 3 1644. Communication between State and local government agencies and Immigration and Naturalization Service Notwithstanding any other provision of Federal, State, or local law, no State or local government entity may be prohibited, or in any way restricted, from sending to or receiving from the Immigration and Naturalization Service information regarding the immigration status, lawful or unlawful, of an alien in the United States. 4 Pertinent Provisions of S.B. 1070, As Amended By H.B. 2162 Sec. 2. Title 11, chapter 7, Arizona Revised Statutes, is amended by adding article 8, to read: ARTICLE 8. ENFORCEMENT OF IMMIGRATION LAWS 11-1051. Cooperation and assistance in enforcement of immigration laws; indemnification A. No official or agency of this state or a county, city, town or other political subdivision of this state may limit or restrict the enforcement of federal immigration laws to less than the full extent permitted by federal law. B. For any lawful stop, detention or arrest made by a law enforcement official or a law enforcement agency of this state or a law enforcement official or a law enforcement agency of a county, city, town or other political subdivision of this state in the enforcement of any other law or ordinance of a county, city or town or this state where reasonable suspicion exists that the person is an alien who and is unlawfully present in the United States, a reasonable attempt shall be made, when practicable, to determine the immigration status of the person, except if the determination may hinder or obstruct an investigation. Any person who is arrested shall have the person's immigration status determined before the person is released. The person's immigration status shall be verified with the federal government pursuant to 8 United States Code Section 1373(c). A law enforcement official or agency of this state or a county, city, town or other political subdivision of this state may not consider race, color or national origin in implementing the requirements of this subsection except to the extent permitted by the United States or Arizona Constitution. A person is presumed to not be an alien who is unlawfully present in the United States if the person provides to the law enforcement officer or agency any of the following: 1. A valid Arizona driver license. 2. A valid Arizona nonoperating identification license. 3. A valid Tribal enrollment card or other form of Tribal identification. 4. If the entity requires proof of legal presence in the United States before issuance, any valid United States federal, state or local government issued identification.1 1 The district court enjoined the enforcement of subsection B only. 5 C. If an alien who is unlawfully present in the United States is convicted of a violation of state or local law, on discharge from imprisonment or on the assessment of any monetary obligation that is imposed, the United States Immigration and Customs Enforcement or the United States Customs and Border Protection shall be immediately notified. D. Notwithstanding any other law, a law enforcement agency may securely transport an alien who the agency has received verification is unlawfully present in the United States and who is in the agency's custody to a federal facility in this state or to any other point of transfer into federal custody that is outside the jurisdiction of the law enforcement agency. A law enforcement agency shall obtain judicial authorization before securely transporting an alien who is unlawfully present in the United States to a point of transfer that is outside of this state. E. In the implementation of this section, an alien's immigration status may be determined by: 1. A law enforcement officer who is authorized by the federal government to verify or ascertain an alien's immigration status. 2. The United States Immigration and Customs Enforcement or the United States Customs and Border Protection pursuant to 8 United States Code Section 1373(c). F. Except as provided in federal law, officials or agencies of this state and counties, cities, towns and other political subdivisions of this state may not be prohibited or in any way be restricted from sending, receiving or maintaining information relating to the immigration status, lawful or unlawful, of any individual or exchanging that information with any other federal, state or local governmental entity for the following official purposes: 1. Determining eligibility for any public benefit, service or license provided by any federal, state, local or other political subdivision of this state. 2. Verifying any claim of residence or domicile if determination of residence or domicile is required under the laws of this state or a judicial order issued pursuant to a civil or criminal proceeding in this state. 3. If the person is an alien, determining whether the person is in compliance with the federal registration laws prescribed by title II, Chapter 7 of the Federal Immigration and Nationality Act. 4. Pursuant to 8 United States Code Section 1373 and 8 United States Code Section 1644. 6 G. This section does not implement, authorize or establish and shall not be construed to implement, authorize or establish the real ID Act of 2005 (P.L. 10913, Division B; 119 Stat. 302), including the use of a radio frequency identification chip. H. A person who is a legal resident of this state may bring an action in Superior Court to challenge any official or agency of this state or a county, city, town or other political subdivision of this state that adopts or implements a policy that limits or restricts the enforcement of federal immigration laws, including 8 United States Code 4 Sections 1373 and 1644, to less than the full extent permitted by federal law. If there is a judicial finding that an entity has violated this section, the court shall order that the entity pay a civil penalty of not less than Five Hundred Dollars and not more than Five Thousand Dollars for each day that the policy has remained in effect after the filing of an action pursuant to this subsection. I. A court shall collect the civil penalty prescribed in Subsection H of this section and remit the civil penalty to the state treasurer for deposit in the Gang and Immigration Intelligence Team Enforcement Mission Fund established by Section 41-1724. J. The court may award court costs and reasonable attorney fees to any person or any official or agency of this state or a county, city, town or other political subdivision of this state that prevails by an adjudication on the merits in a proceeding brought pursuant to this section. K. Except in relation to matters in which the officer is adjudged to have acted in bad faith, a law enforcement officer is indemnified by the law enforcement officer's agency against reasonable costs and expenses, including attorney fees, incurred by the officer in connection with any action, suit or proceeding brought pursuant to this section in which the officer may be a defendant by reason of the officer being or having been a member of the law enforcement agency. L. This section shall be implemented in a manner consistent with federal laws regulating immigration, protecting the civil rights of all persons and respecting the privileges and immunities of United States citizens. 7 Sec. 3. Title 13, chapter 15, Arizona Revised Statutes, is amended by adding section 13-1509, to read: 13-1509. Willful failure to complete or carry an alien registration document; assessment; exception; authenticated records; classification A. In addition to any violation of federal law, a person is guilty of willful failure to complete or carry an alien registration document if the person is in violation of 8 United States Code Section 1304(e) or 1306(a). B. In the enforcement of this section, an alien's immigration status may be determined by: 1. A law enforcement officer who is authorized by the federal government to verify or ascertain an alien's immigration status. 2. The United States Immigration and Customs Enforcement or the United States Customs and Border Protection pursuant to 8 United States Code Section 1373(c). C. A law enforcement official or agency of this state or a county, city, town or other political subdivision of this state may not consider race, color or national origin in the enforcement of this section except to the extent permitted by the United States or Arizona Constitution. D. A person who is sentenced pursuant to this section is not eligible for suspension of sentence, probation, pardon, commutation of sentence, or release from confinement on any basis except as authorized by Section 31-233, Subsection A or B until the sentence imposed by the court has been served or the person is eligible for release pursuant to Section 41-1604.07. E. In addition to any other penalty prescribed by law, the court shall order the person to pay jail costs. F. This section does not apply to a person who maintains authorization from the federal government to remain in the United States. G. Any record that relates to the immigration status of a person is admissible in any court without further foundation or testimony from a custodian of records if the record is certified as authentic by the government agency that is responsible for maintaining the record. 8 H. A violation of this section is a class 1 misdemeanor, except that the maximum fine is One Hundred Dollars and for a first violation of this section the court shall not sentence the person to more than twenty days in jail and for a second or subsequent violation the court shall not sentence the person to more than thirty days in jail. 9 Sec. 5. Title 13, chapter 29, Arizona Revised Statutes, is amended by adding sections 13-2928 and 13-2929,2 to read: 13-2928. Unlawful stopping to hire and pick up passengers for work; unlawful application, solicitation or employment; classification; definitions A. It is unlawful for an occupant of a motor vehicle that is stopped on a street, roadway or highway to attempt to hire or hire and pick up passengers for work at a different location if the motor vehicle blocks or impedes the normal movement of traffic. B. It is unlawful for a person to enter a motor vehicle that is stopped on a street, roadway or highway in order to be hired by an occupant of the motor vehicle and to be transported to work at a different location if the motor vehicle blocks or impedes the normal movement of traffic. C. It is unlawful for a person who is unlawfully present in the United States and who is an unauthorized alien to knowingly apply for work, solicit work in a public place or perform work as an employee or independent contractor in this state.3 D. A law enforcement official or agency of this state or a county, city, town or other political subdivision of this state may not consider race, color or national origin in the enforcement of this section except to the extent permitted by the United States or Arizona Constitution. E. In the enforcement of this section, an alien's immigration status may be determined by: 1. A law enforcement officer who is authorized by the federal government to verify or ascertain an alien's immigration status. 2. The United States Immigration and Customs Enforcement or the United States Customs and Border Protection pursuant to 8 United States Code Section 1373(c). F. A violation of this section is a Class 1 misdemeanor. The portion of section 5 adding section 13-2929 is not included in this Addendum because it is not at issue in this appeal. 3 2 The district court enjoined enforcement of subsection C only. 10 G. For the purposes of this section: 1. "Solicit" means verbal or nonverbal communication by a gesture or a nod that would indicate to a reasonable person that a person is willing to be employed. 2. "Unauthorized Alien" means an alien who does not have the legal right or authorization under federal law to work in the United States as described in 8 United States Code Section 1324a(h)(3). 11 Sec. 6. Section 13-3883, Arizona Revised Statutes, is amended to read: 13-3883. Arrest by officer without warrant A. A peace officer, without a warrant, may arrest a person if the officer has probable cause to believe: ... 5. The person to be arrested has committed any public offense that makes the person removable from the United States.4 4 This Addendum omits the remaining provisions of A.R.S. 13-3883 because the only substantive amendment S.B. 1070 made to A.R.S. 13-3883 is the addition of subsection (A)(5). Therefore, A.R.S. 13-3883(A)(5) is the only provision relevant to this appeal. 12 Sec. 12. Severability, implementation and construction A. If a provision of this act or its application to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of the act that can be given effect without the invalid provision or application, and to this end the provisions of this act are severable. B. The terms of this act regarding immigration shall be construed to have the meanings given to them under federal immigration law. C. This act shall be implemented in a manner consistent with federal laws regulating immigration, protecting the civil rights of all persons and respecting the privileges and immunities of United States citizens. D. Nothing in this act shall implement or shall be construed or interpreted to implement or establish the REAL ID act of 2005 (P.L. 109-13, division B; 119 Stat. 302) including the use of a radio frequency identification chip. 13

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