National Coalition of Latino Clergy and Christian Leaders et al v. Arizona, State of et al

Filing 35

First MOTION to Amend/Correct 13 Amended Complaint, by Carmen Galindo, Moises Herrera, Fermin Leon, Laura Madera, National Coalition of Latino Clergy and Christian Leaders, Joe Rivera, Manuel Siguenza, Unknown Parties. (Attachments: # 1 Exhibit - Proposed Second Amended Complaint (Redlined), # 2 Exhibit - Proposed Second Amended Complaint (Clean Copy))(Galloni, Tania)

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National Coalition of Latino Clergy and Christian Leaders et al v. Arizona, State of et al Doc. 35 Att. 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 Tania Galloni Fla. Bar. No. 619221 FLORIDA IMMIGRANT ADVOCACY CENTER 3000 Biscayne Blvd., Ste. 400 Miami, Florida 33137 Telephone: 305.573-1106 Facsimile: 305.576.6273 Email: tgalloni@fiacfla.org Ben R. Miranda Arizona Bar No. 9515 826 West 3rd Avenue Phoenix, Arizona 85003 Telephone: 603.252.7555 William J. Sanchez- Fla. Bar No. 749060 Jennifer Ale - Fla. Bar No. 072445 Sanchez Law, LLC Lakeside Corporate Park 12915 Southwest 132nd Street, Suite 5 Miami, Florida 33186 12600 SW 120th St., Suite 106 Miami, FL 33186 Telephone: 305.232.8889 Facsimile: 305.232.8819 Email: imiglaw@aol.com Jennifer@wsanchezlaw.com Michael@wsanchezlaw.com ATTORNEYS FOR PLAINTIFFS UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA NATIONAL COALITION OF LATINO CLERGY AND CHRISTIAN LEADERS ("CONLAMIC"), PHOENIX, ARIZONA, LA HERMOSA CHURCH, LAURA MADERA, CARMEN GALINDO, FERMIN LEON, MANUEL SIGUENZA, MOISES HERRERA, JOE RIVERA, JANE DOE, AND JOHN DOE'S 1-3, INDIVIDUALLY AND ON BEHALF OF ALL THOSE SIMILARY SITUATED, PLAINTIFFS, v. STATE OF ARIZONA, GOVERNOR JAN BREWER, TERRY GODDARD, ARIZONA ATTORNEY ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) CASE NO. 2:10-cv-943 SECOND AMENDED COMPLAINT FOR DECLARATORY, AND INJUNCTIVE AND FURTHER RELIEF Dockets.Justia.com 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 GENERAL, IN HIS OFFICIAL CAPACITY, JOSEPH ARPAIO, MARICOPA COUNTY SHERIFF, IN HIS OFFICIAL CAPACITY, RICHARD M. ROMLEY, ) ) CLASS ACTION MARICOPA COUNTY ATTORNEY, IN HIS OFFICIAL CAPACITY, DEFENDANTS. _______________________________________________/ ) ) ) ) ) I. PRELIMINARY STATEMENT 1. This action is brought on behalf of U.S. citizens, a U.S. non-profit corporation, legal U.S. residents and aliens seeking judicial clarification of the jurisdiction, authority, and constitutional rights of the state of Arizona ("Arizona"), in adopting and enforcing an immigration law known as "S.B. 1070 Anti-Immigration Act ("Act")". If the law is found to be unconstitutional or in any other way illegal, we respectfully request injunctive and mandamus relief ordering Arizona to cease and desist enforcement of the law. The specific request is as follows: Specifically, Plaintiffs challenge Sections 1, 2, 3, 5, 6 and 10 of S.B. 1070, as amended by H.B. 2162, as unlawful, unconstitutional and preempted by federal law. (A). The plaintiffs have reason to believe that the underlying law, adopted and signed by Governor Jan Brewer , raises significant preemption concerns. Initially, the law clearly intends to govern many types of conduct already covered by federal immigration law. Congress and the Executive branch have historically occupied the field of immigration law. The new Arizona Act creates state-wide immigration regulations independent from the existing federal system and clearly conflicts with federal immigration law. Thus, judicial clarification is required on the jurisdiction and constitutional authority of the state of Arizona to adopt and enforce such a law. 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 (B). Arizona's law, as written, will lead to "national origin" and "race" discrimination, 26 in violation of Title VII of the Civil Rights Act and the Fair Housing Act (FHA). (C) The law, as written, also gives rise to 42 USC § 1981 violations as section 1981 prohibits alienage discrimination. (D). Due to the constitutional and statutory violations set forth above, we require injunctive and mandamus relief ordering the state of Arizona to cease and desist enforcement of the "Act" until clarification is made by this court. 2. The Supremacy Clause of the U.S. Constitution provides that federal laws and treaties are "the supreme law of the land." While federal and state power to regulate certain matters is concomitant, the Supreme Court has long recognized that the regulation of immigration "is unquestionably exclusively a federal power," Delanas v. Bica, 424 U.S. 351, 354 (1976). In Hines v. Davidowitz, 312 U.S. 52 (1941), the Supreme Court ruled that enforcement of a Pennsylvania statute requiring the registration of aliens was precluded by the Federal Alien Registration Act of 1940, which established a comprehensive federal scheme for the registration of aliens. 3. The Immigration and Nationality Act ("INA") vests authority in the Attorney General and Secretary of Homeland Security to administer and enforce all laws relating to immigration and naturalization, including determinations regarding the immigration status of aliens. As such, states and localities are preempted by federal law from making their own independent assessment as to whether an alien has committed an immigration violation and imposing penalties against such aliens (along with persons who have 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 provided them with assistance) on the basis of that assessment. Such authority is conferred exclusively to designated federal authorities by the INA. 3. INA§ 274A generally prohibits the hiring, referring, recruiting for a fee, or continued employment of illegal aliens. Violators may be subject to cease and desist orders, civil monetary penalties, and (in the case of serial offenders) criminal fines and/or imprisonment for up to 6 months. Notably, INA § 274A expressly preempts any state or local law imposing civil or criminal sanctions upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens. 4. Under INA § 274B, employers are prohibited from discriminating against any individual (other than an unauthorized alien) on account of that alien's national origin or citizenship status. Employers throughout the state will refrain from hiring individuals who they have "reasonable suspicion" to believe are undocumented. This will lead to discrimination. 5.4. Arizona's law is unconstitutionally vague and ambiguous. It does not afford individuals adequate notice of what conduct is prohibited. It also does not provide a mechanism to determine whether an immigration violation has occurred, when or whether reasonable suspicion exists to question, arrest or detain an individual, or whether someone has committed a public offense that makes the person removable. The State of Arizona and its agents cannot make these determinations without running afoul of federal law and the U.S. Constitution. 6.5. Furthermore, the law allows for the arrest of an alien who has committed a "public offense" but such term is not found in the INA. Arizona [§13-3883 (5). The 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Arizona law's reliance on federal agents to "ascertain" someone's immigration status is not a reliable mechanism for this purpose, as the federal government's databases are notoriously out-of-date and unreliable. In many instances, individuals have been afforded immigration relief that the databases simply do not reflect. It is therefore likely that under S.B. 1070, local law enforcement will unlawfully detain or arrest individuals who have legal status, even though they ultimately will not prevail in the prosecution of any offense under the Arizona law. 7. The INA generally vests authority to the Attorney General and Secretary of Homeland Security to administer and enforce all laws relating to immigration and naturalization, including determinations regarding the immigration status of aliens. As such, states and localities are preempted by federal law from making their own independent assessment as to whether an alien has committed an immigration violation and imposing penalties against such aliens (along with persons who have provided them with assistance) on the basis of that assessment. Such authority is conferred exclusively to designated federal authorities by the INA. 8.6. The actions of the state of Arizona deprive plaintiffs of their family and cause Plaintiffs injury by causing or prolonging family separation. Countless Arizona residents plaintiffs have moved from Arizona out of the state due to fear that local authorities will begin implementing this unconstitutional law S.B. 1070. The plaintiffs are being denied their constitutional rights as the law violates the preemption clause, is unconstitutionally vague, conflicts with Federal Housing Assistance regulations, will lead 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 to National origin and race discrimination , and will cause unlawful questioning, detention, and arrests. on its face is vague and ambiguous. As such, we respectfully request injunctive and mandamus relief ordering the state of Arizona to cease and desist enforcement of the law. 9.(A)7. The Department of Justice of Homeland Security's 287(g) is a federal program that allows certain state and local law enforcement agencies to engage in federal immigration enforcement activities, when such authority is expressly delegated by the federal government. The federal government has permitted Sseveral Arizona law enforcement agencies are allowed to participate in the 287(g) program, including Maricopa County. which, combined with the state's new law, creates a disastrous interviewing of police with immigration enforcement in that state. The 287(g) program, as implemented by Arizona local law enforcement agencies, including Maricopa County, has led to illegal racial profiling and civil rights abuses while diverting scarce resources from traditional local law enforcement functions and distorting immigration enforcement priorities. A report released earlier this month year by the DHS Office of Inspector General (OIG) affirmed the concerns with the 287(g) program. The DHS OIG report found a lack of federal oversight, training and other failures in the 287(g) program and made it clear that the program does not have adequate safeguards against racial profiling and other civil rights abuses. Many state and local agencies accepted for the program have a documented history of serious allegations of constitutional violations. Arizona's recently-enacted immigration law is an extension of these unconstitutional and unlawful 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 practices. It empowers local law enforcement throughout the state to execute these important federal immigration powers without the Congressionally-mandated federal authorization, oversight, training and accountability, which can only lead to more racial profiling and other civil rights abuses, including unlawful detentions. 8. Plaintiffs include La Hermosa Church, whose primary purpose is to promote Christian values and spread the gospel of Jesus Christ. La Hermosa Church serves the Latino community in Phoenix, and its membership is predominantly Latino. The transportation and harboring provisions of S.B. 1070 violate Plaintiffs' freedom of religion and association by interfering with their ability to reach out to and embrace all members of the community; bring members of the community into the Church; minister to the poor, sick and elderly; promote and perform acts of charity; nurture families; and provide food, shelter and access to services, including by transportation, to those need--all regardless of immigration status. Also, because of the documentation requirements and criminal penalties imposed by S.B. 1070, certain parishioners will be unable or unwilling to leave their houses to come to the Church, which interferes with the Church and its members' right to freedom of association in the practice of their religion. II. JURISDICTION AND VENUE 9. This Court has jurisdiction under its general federal question jurisdiction 28 U.S.C. §Section 1331, and specific jurisdiction over claims arising under the Immigration and Nationality Act 8 U.S.C § 1329. This court is the proper venue for the writ of Mandamus pursuant to 28 U.S.C. Section 1361. Jurisdiction is also conferred pursuant to 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Rules 57 and 65 of the Federal Rules of Civil Procedure which permit declaratory and injunctive actions. 10. The District of Arizona is the proper venue for this action pursuant to 28 U.S.C. § 1391 (e), as it is here where the Defendants' policies and practices have been implemented. III. STANDING 11. Plaintiffs have standing to commence this action as they are individuals and organizations which will suffer irreparable personal, constitutional and economic harm as a result of the state's unconstitutional and unlawful actions. 12. The Defendants' policy also causes and prolongs the separation of family members. Plaintiffs have a particular interest in preserving their family units. (See Abourzek v. Reagan, 785 F. 2d 1043, 251 U.S App. D.C. 355 (1985); Clark v. Securities (Indus) Ass'n. 479 U.S. 388, 395-96, 107 S. Ct. 750, 754, 93 L.E.d. 2d 757 (1987)). H.R. Rep No. 1365,82d Cong., 2d Sess. (1952) reprinted in 1952 U.S.C. C.A.N. 1653, 1680. Additionally, although there is indirect precedent, there is no controlling decision regarding such a law. 13. President Barack Obama recently mentioned that the Department of Justice is See investigating potential civil rights violations inherent in the new Arizona law. Exhibit "A". In discretion to the Executive Branch in matters involving immigration, this court should enjoin the state from enacting the law until the Department of Justice has spoken. IV.PARTIES Individual Plaintiffs And Their Factual Allegations 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 14. Joe Rivera ("Joe") owns a business that caters primarily to Latinos and his business will drop by at least 60% if this law goes into effect. 15. Plaintiff Pastor Moises Herrera ("Pastor Herrera") is a resident of Pheonix. Pastor Herrera Moises Herrera ("Moises") is a Pastor that owns 3 Spanish language radio stations. His listeners are all Hispanic and he will lose the large majority of his listeners if the challenged provisions of S.B. 1070 are not declared invalid and enjoined, because many will move out of Arizona out of fear of arrest, detention or prosecution under the new law. Pastor Herrera Moises is also a well known Pastor with thousands of church members that are all Hispanic, in a church he has spent years building. Unless the challenged provisions of S.B. 1070 are declared invalid and enjoined, He he will lose a great percentage of his church members and donations to the church, and . Hhis church will fail if this law goes into effect. 16. Manuel Siguenza ("Manuel") has owned a large car sales business for 16 years that pays between $200,000 and $350,000 dollars a year in taxes to the sState of Arizona. His business is in a primarily Latino neighborhood and his clients are predominantly Latinos. He will lose the majority of his business and he will have to close his business, if the challenged provisions of S.B. 1070 are not declared invalid and enjoined. Manuel is an Immigrant from El Salvador who is now a U.S. Citizen. He has one son who has graduated from Arizona State University and another currently attending high school. Manuel fears that Bbecause he I looks Latino I could he may be stopped because of the color of my his skin. I He fears that my his rights may be violated. 17. Fermin Leon ("Fermin") is undocumented and so is his wife but he has U.S. born children that are in school that are 16 and 18 years of age. Fermin has a very successful 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 bakery business that would suffer if this law goes into effect. Fermin fears that if he may be stopped because of his Latino appearance. If he is stopped he could be deported and he would lose his business and his children would have to go to a country that they do not know. 18. 17. Carmen Galindo ("Carmen") is a lawful Permanent permanent Resident resident and speaks English with an accent. She appears to be Latina and is afraid that if she gets pulled over she will be racially profiled and may be damaged by being asked if she has required to produce her permanent residence card. If she forgets it she would be charged with a crime according with this law. She would then not be eligible to get her U.S. Citizenship. She is a member of CONLAMIC, and does countless hours of Christian community service every week. Unless the law is permanently enjoined and declared invalid, Plaintiff Galindo expects to be questioned, detained or arrested. She is also a business owner who stands to lose clientele and suffer economic harm as a result of Latinos leaving the State of Arizona out of fear of the new law. 19. 18. Laura Madera ("Laura") is a lawful permanent resident who fears being racially profiled because she is and appears Latina, and may be damaged by being asked if she has will be harmed if required to produce her permanent residence card. If she forgets it she would be charged with a crime according with this law. She would then not be eligible to get her U.S. Citizenship. Laura is pregnant and the Father father of the child lives with her and is currently her domestic partner. He is undocumented and is in process of legalizing. Her pregnancy would be at risk if her common law husband were to be arrested, detained or and deported as well. Unless the law is permanently enjoined and 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 declared invalid, Plaintiff fears she and her husband will be arrested, and that her family will be harmed and forced to leave the area. 20. 19. Plaintiff Manuel Siguenza ("Siguenza") is a resident of Arizona. Plaintiff Plaintiff Siguenza owns a car dealership that caters primarily to Latino customers. Siguenza already has lost much business, including prospective clients, due to the now new law, even though it has not been implemented until late summer. Upon information and belief, Plaintiff Siguenza has lost prospective clients due to the law. Plaintiff Siguenza does not know the immigration status of his present clients, nor of the clients he lost. 21. 20. Plaintiff Joe Rivera ("Rivera") is a resident of Mesa, Arizona. Plaintiff Rivera has a title/mortgage company, and has already lost clients due to the law, as Latinos have begun leaving Arizona out of fear of the new law. Upon information and belief, Plaintiff Rivera has lost prospective clients due to the law. Plaintiff Rivera does not know the immigration status of his present clients, nor of the clients he has lost. 22. 21. In the course of their businesses, Plaintiffs Siguenza and Rivera each allow Latino clients into the buildings of their businesses without regard to the client's immigration status, whether the client is in possession of alien registration documents, or how the client entered the United States. It is difficult if not impossible for Plaintiffs Siguenza and Rivera to determine whether each of their clients is or is not an "authorized alien" as defined by the law. Plaintiffs Siguenza and Rivera have received no guidance or training from Arizona or others regarding how to determine whether an individual is an "authorized alien." Plaintiffs Siguenza and Rivera have no expertise in applying immigration law or making immigration status determinations. Plaintiffs Siguenza and 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Rivera have no expertise in determining the authenticity of immigration-related documentation. As a result of S.B. 1070, these Plaintiffs risk questioning, arrest, detention and/or prosecution for violating the provisions related to harboring an "unlawful alien." See A.R.S. 13-2929. 23. Because of the impossibility of fully complying with the law, it is likely that Plaintiffs Siguenza and Rivera will sell goods to a person who is classified as an "unauthorized alien" under the law. 24. 22. Plaintiffs Siguenza and Rivera also transport Latino clients in the course of their businesses to different locales. Plaintiffs now risk being unlawfully questioned, arrested, detained or charged with violation of the provision in S.B. 1070 related to transporting "unlawful aliens" because they do not know, do not ask, and do not care to know the immigration status of their clients, whether the client is in possession of alien registration documents, or how the client entered the United States. might be considered in violation of the law because their clients often stay for an extended period of time in their business and they often transport them to different locals. As a result they may be considered to be in violation of the new law. See A.R.S. 13-2929. 25. 23. Since the law was signed, Plaintiffs Siguenza and Rivera have lost approximately 80% of their businesses as a result of S.B. 1070. 26. 24. Unless the law is permanently enjoined and declared invalid, Plaintiffs Siguenza and Rivera are likely to incur significant monetary fines for violating the law. Even prior to being fined they will have to close their businesses due to the negative impact brought on by the law. 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 27. Plaintiff Pastor Moises Herrera ("Herrera") is a resident of Pheonix. Plaintiff Herrera is a Pastor of a large church. Plaintiff Herrera is legally in the US and has spent countless years building his church. He fears losing his church and their radio stations if the law is implemented. 28. Plaintiff Carmen Galindo ("Galindo") is a lawful permanent resident. She speaks English with an accent, she appears Latina and is scared of being racially profiled and arrested if the new law goes into affect. Plaintiff Galindo does countless hours of Christian community service every week. Unless the law is permanently enjoined and declared invalid, Plaintiff Galindo expects to be arrested. 29. Plaintiff Jane Doe 1 is 26 years old. She resides in Phoenix, Arizona. Plaintiff Jane Doe 1 is from Mexico. Plaintiff Jane Doe 1 entered the United States on a visitor's visa. Her authorized period of stay was six months. Plaintiff Jane Doe did not depart from the United States after six months. Since passage of the law, Plaintiff fears going outside as she has already been intimidated by individuals yelling at her to "go back to your country". Plaintiff Jane Doe is aware she is undocumented but is contributing to the U.S. economy by paying her taxes, and spending over 10 hours a week volunteering at her church. 30. Plaintiff Laura Madera ("Madera") is a lawful permanent resident and is currently pregnant. Plaintiff Madera is very concerned about being profiled for appearing to be Latina. Her husband is undocumented. If Plaintiff Madera is arrested she will likely not be able to become a US citizen. Unless the law is permanently enjoined and declared invalid, Plaintiff fears she and her husband will be arrested. Her family is likely to lose 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 their home, and her daughter will be unable to attend US schools, because they will be forced to leave the area. 31. Plaintiff Miranda plans to become a naturalized citizen as soon as possible, but anticipates that the required process will take at least several months. Once she becomes a naturalized citizen, Plaintiff plans to sponsor her husband for lawful permanent residency. He will be able to obtain lawful permanent residency if his wife is not arrested. 32. 25. Plaintiff John Doe 1 was approved refugee status last year. Under federal immigration law, he is not He was not required to carry an alien registration documenta lawful permanent resident card or work permit under federal regulations. He is afraid of being arrested because he looks Latino and is an immigrant, but has no alien registration document to show law enforcement when required to produce one. He looks Latino but is not required to carry a work permit. His children have the same status. Under Unless the law is enjoined, he will not take his children to school or go to work as he is afraid of being arrested. 33. 26. Plaintiff John Doe 2 is an adult. He works in, and obtains goods and services in, Phoenix, Arizona. Plaintiff John Doe 2 lost his Green Card. He has filed an application to replace his Green Card. Plaintiff John Doe 2 has no other way to prove his immigration status. Plaintiff John Doe 2 will be unable to prove that he is not an "unauthorized alien" as that term is defined under the law until he receives his replacement Green Card. Unless the law is permanently enjoined and declared invalid, Plaintiff John Doe 2 will be unable to rent, work, or obtain goods and services in Phoenix because he cannot prove his immigration status. 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 34. 27. Plaintiff John Doe 3 is currently employed and is a U.S. citizen. He lost his passport. Plaintiff John Doe 3 was born in the United States. In accordance with the new Arizona law, Plaintiff John Doe 3 is required to carry proof of his legal status in the US. If he is stopped by police and asked for proof of residency, he can only show his driver's license and birth certificate. He does not know whether he would have to notarize his birth certificate in order to authenticate it. He is afraid of being arrested as he looks Latino. 35. 28. Plaintiff Jane Doe 2 is a citizen of the United States born in Puerto Rico. Her only English-language form of identification is a Social Security card. Plaintiff Jane Doe 2 speaks very little English. Plaintiff Jane Doe 2 is afraid she will be arrested if she leaves her home as she appears to be Latina. As a U.S.-born U.S. Citizen, Jane Doe's status cannot be ascertained by direct or indirect reliance on the federal government's immigration databases because these maintain data only on immigrants, not U.S.-born citizens. Jane Doe She requires constant visits to the doctor, but is afraid of leaving her home. Unless the law is permanently enjoined and declared invalid, Plaintiff Jane Doe 3 will be unable to live, work, or obtain goods and services in Phoenix, Arizona. 36. Plaintiff Fermin Leon and his wife are undocumented immigrants. They both have US citizen children that are 16 and 18 years of age. Plaintiff Leon has a very successful business. Although Plaintiff Leon is now eligible to apply for cancellation of removal, the US department of Homeland Security has not called him in for an interview. He is afraid of working, as he looks Latino and believes he will be arrested. If he is arrested his children will have to leave the country also or will be forced to live in Mexico. 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 37. 29. Plaintiffs Siguenza, Rivera, Miranda, Herrera, Galindo, Madera, Leon and John Does 1-3 and Jane Does 1-3 are collectively referred to herein as "Individual Plaintiffs." 38. 30. All Individual Plaintiffs desire to continue to live and work in Arizona and the new law will prevent them from doing so. but will be unable to do so without fear and risk of unlawful questioning, arrest and detention unless the challenged provisions of S.B. 1070 are declared invalid and permanently enjoined. Organizational Plaintiffs And Their Factual Allegations 39. 31. Plaintiff La Hermoza Hermosa Church ("La Hermosa") is an Arizona non- profit organization. La Hermoza's Hermosa's primary purpose is to promote Christian values and spread the gospel of Jesus Christ. 32. As a Church, La Hermosa's religious mission is to reach out to and embrace all members of the community; bring members of the community into the Church; minister to the poor, sick and elderly; promote and perform acts of charity; nurture families; and provide food, shelter and access to services, including by transportation, to those need--all regardless of immigration status. 33. In order to comply with the challenged provisions of S.B. 1070, however, the Church and its parishioners will have to go against their religious beliefs by limiting certain of their activities (such as providing shelter and transportation to those in need) based on an individual's immigration status, or risk prosecution for harboring or transporting individuals who are deemed "unauthorized aliens" or not carrying papers as required under the Arizona law. Also, because of the documentation requirements and 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 criminal penalties imposed by S.B. 1070, certain parishioners will be unable or unwilling to leave their houses to come to the Church, which interferes with the Church and its members' right to freedom of association in the practice of their religion. 34. As a result of S.B. 1070, the Church has had to divert resources from its religious mission to defending against the harms caused by this legislation both to the Church and to the community it serves. 35. La Hermoza Hermosa does not require its members to prove their citizenship, residency or immigration status as a condition to membership. The law has created great hostility towards the Latino community in Arizona and therefore adversely affects the work La Hermosa performs in Phoenix and for Phoenix residents, forcing it to divert resources away from its mission. La Hermoza performs in Phoenix and for Phoenix residents. La Hermoza's Hermosa's membership and constituency (herein, collectively "members") includes individuals - many but not all of whom are Latino - who reside and who are employed in and around Phoenix, some of whom have school-aged children. The membership includes persons who have Spanish as their native tongue with a limited proficiency in English. The interests La Hermoza Hermosa seeks to protect through this action are germane to its purpose, and neither the claims asserted nor the relief requested herein require the personal participation of La Hermoza's Hermosa's members. 40. 36. Plaintiff Conlamic CONLAMIC Arizona is an Arizona non-profit organization, . Plaintiff Conlamic is a non-profit organization doing business in Arizona. CONLAMIC has and they have over 30,000 affiliated churches throughout the United States. 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 41. 37. Conlamic Arizona's purpose is to promote the interests of its members CONLAMIC's mission is to educate and empower Latino churches throughout the United States so they can bring about effective Christian leadership in their communities. Affiliated with over 30,000 Latino churches throughout the country, CONLAMIC serves as a clearinghouse for information on issues that matter most to these churches, including Christian education and values. ConlamicCONLAMIC does not require its individual members to prove their citizenship, residency or immigration status as a condition to membership. The law has generated great hostility towards the Latino community in Arizona and therefore adversely affects the work ConlamicCONLAMIC performs in Arizona and for Arizona businesses and residents. As a result of Arizona's new law, CONLAMIC has been forced to divert its resources away from its core mission to spend countless hours educating members about the effects and impact of the law. 42. 38. Conlamic'sCONLAMIC's membership and constituency (herein, collectively "members") includes individuals ­ many, but not all, are Latino or who service Latino and other customers -who reside or operate businesses in and around Arizona, some of whom have school-aged children. The membership includes over 300 Arizona Pastors. 43. 39. Conlamic's CONLAMIC's membership includes individuals who have Spanish as their native tongue with a limited proficiency in English. 44. 40. The interests Conlamic CONLAMIC seeks to protect through this action are germane to its purpose, and neither the claims asserted nor the relief requested herein require the personal participation of Conlamic's CONLAMIC's members. Defendants 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 45. 41. At all relevant times described herein, Arizona acted through its duly authorized agent Governor Jan Brewer, and any other state employees she may designate in accordance with Arizona law. 46. 42. At all times alleged herein, Arizona's officials, employees and agents were acting under color of state law. 47. 48. 43. 44. Defendant Arizona is a state of the USA. Defendant Jan Brewer is the governor of Arizona and is being sued in his her official capacity. 49. 45. Defendant Terry Goddard is the Attorney General for the State of Arizona. As such, Defendant Goddard is responsible for the enforcement of SB 1070 within the state of Arizona. Defendant Goddard is sued in his official capacity. 50. 46. Defendant Sheriff Joseph Arpaio is the County Sheriff of Maricopa County, Arizona. As such, Defendant Arpaio is responsible for the enforcement of SB 1070 within Maricopa County. Defendant Arpaio is sued in his official capacity. 51. 47. Defendant Richard M. Romley is the County Attorney of Maricopa County, Arizona. As such, Defendant Romley is responsible for the enforcement of SB 1070 within Maricopa County. Defendant Romley is sued in his official capacity. V. FACTS 52. On or about April 23, 2010, the state of Arizona passed a law, known as the "Anti-Immigration Act." Attached hereto and made a part hereof as Exhibit "B" is a copy of the law. 19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 53. As a result of the passing of the amended law, plaintiffs have suffered. Specifically, many members of the class are afraid to go to work and countless others have fled the area. CLASS ALLEGATIONS Plaintiffs reallege and incorporate Paragraphs 1 through 53 inclusive and file this as a Class Action for Declaratory and Injunctive Relief and allege: 54. Plaintiffs bring this action pursuant to Rule 23 (a) and (b)(1)(2) on behalf of themselves and all others similarly situated. The class consists of the following ascertainable members: all persons who currently reside in Arizona and find themselves to be negatively affected by the proposed unconstitutional law. 55. Defendants have acted, and will continue to act on grounds generally applicable to each member of the class, making appropriate final declaratory, injunctive and mandamus relief to the class as a whole. 56. 57. Plaintiffs in the class are entitled to representation. There exists a community of interest between Plaintiffs and members of their class in that there are questions of law and fact which are common to all. The Plaintiffs seek a determination of whether or not the amended ordinance is unconstitutional and as such should not be enforced. 58. Individual suits by each member of the class would be impractical because: (A) There exist common and identical issues of law and fact for all members of the class. (B) The number of individual suits would impose an undue burden of the Courts as there appear to be a voluminous amount of members; 20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 (C) Many members of the class are unaware of their right and/or are intimidated due to their status. 59. A class action is superior to other available methods for the fair and efficient adjudication of this controversy. 60. Upon information and belief no independent litigation has been brought by any members of the respective class against Defendants as to the issues raised in this complaint. 61. Plaintiffs' counsels are experienced in class actions litigation and can adequately represent the interest of class members as well as the named Plaintiffs. 62. As a result of the defendant's law, plaintiffs and the members of the class will continue to suffer. 63. There exists no adequate remedy at law if the law is not overturned. DECLARATORY AND INJUCTION INJUNCTIVE RELIEF ALLEGATIONS Plaintiffs reallege and incorporate paragraphs 1 through 5347 inclusive and file this Declaratory Relief Action and allege: 64. 48. There exists confusion as to Arizona's authority to pass and enforce the challenged provisions of S.B. 1070 and whether the statute is otherwise unlawful and/or unconstitutionalsuch a law. 65. 49. WHEREFORE, Plaintiffs seek judicial clarification of the Arizona law. An actual and substantial controversy exists between Plaintiffs and Defendants as to their respective legal rights and duties. Plaintiffs contend that Defendants' actions violate the constitutional rights of Plaintiffs and the proposed class. In violating Plaintiffs' rights 21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 under the U.S. Constitution and federal statues, Defendants are acting under color of law. The Arizona law, and Defendants' policies, practices and procedures implementing them, have caused and will continue to cause irreparable injury to Plaintiffs and the proposed class. Plaintiffs and the proposed class have no plain, speedy and adequate remedy at law against the Arizona law and Defendants' policies, practices and procedures implementing them. CLAIMS FOR RELIEF COUNT I . VIOLATION OF SUBSTANTICE SUBSTANTIVE DUE PROCESS 14TH AMENDEMENT 66. 50. The foregoing allegations are repeated and incorporated as though fully set forth herein. 67. 51. The Fourteenth Amendment to the U.S. Constitution provides that "No State shall. . . deprive any person of life, liberty, or property, without due process of law . . . ." Plaintiffs and the proposed class have a liberty interest in being free from detention absent a criminal conviction unlawful, discriminatory or arbitrary questioning, arrest and detention by local law enforcement. Specifically, Plaintiffs and the proposed class have a liberty interest in being eligible for release on bond pending resolution of the criminal charges against them. The Arizona law and Defendants' policies, practices and procedures implementing them violate substantive due process because they are not narrowly tailored and do not serve a compelling governmental interest. The Arizona law and Defendants' policies, practices and procedures implementing them result in an impermissibly punitive regime of arrests and racial profiling in violation of substantive due process. 22 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 68. 52. For example, A.R.S §11-105113-3883 grants Arizona police officers authority to conduct warrantless arrests of persons for whom the officer has probable cause to believe have committed any public offense that makes those persons deportable. This appears to be an attempt to create a completely independent state arrest authority for administrative violations of federal law. In essence, it is the "criminalization" of certain portions of immigration law, which, in and of itself, is civil. The issue was previously addressed in Gonzales v. City of Phoenix, 722 F.2d 468, (9th Cir 1983) (overruled in part on other grounds by Hodgers-Durgin v. de la Vina, 199 F.3d 1037 (9th Cir. 1999)). The ninth Ninth cCircuit held that while Arizona could authorize Peoria to enforce the criminal provisions of the immigration law, the court "the court firmly emphasize[d] that this authorization is limited to criminal violations. Many of the problems arising from implementation of the City's written policies have derived from a failure to distinguish between civil and criminal violations of the Act." 722 F.2d at 476. This portion of the Arizona law attempts to criminalize enforce civil administrative violations of the federal law. It will lead to countless arrests of individuals who are undocumented but have not violated criminal provisions of the immigration law. This would allow for unlawful arrests." The Peoria Police Department obscured the difference between civil administrative violations and criminal violations of immigration law. If it was not allowed in Gonzales, it should not be allowed in the case at bar. 53. Additionally, Section 2 of S.B. 1070 permits state and local law enforcement officials to seize, detain, arrest and transfer individuals without appropriate procedures, thereby depriving Plaintiffs of their liberty without due process of law. Section 2 is also unconstitutionally vague. The terms "reasonable suspicion," "reasonable attempt," 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 "unlawfully present" and "determine the immigration status" fail to provide meaningful guidance to law enforcement officers as to how to implement this provision, creating an unacceptable risk of arbitrary and discriminatory enforcement. The provision of Section 5 that makes it unlawful for any person who is "in violation of a criminal offense" to transport or move "an alien" in Arizona "in furtherance of the [person's] illegal presence" with knowledge or reckless disregard that "the alien has come to, has entered or remains in the United States in violation of law," is vague and violates due process. Section 10's use of these terms is also vague and unconstitutional. 54. The provision of Section 5 that makes it unlawful for any person who is "in violation of a criminal offense" to conceal, harbor or shield from detection "an alien" in "any place," including "any building or any means of transportation," with knowledge or reckless disregard that "the alien has come to, has entered or remains in the United States in violation of law," is vague and violates due process. Section 10's use of these terms is also vague and unconstitutional. 55. The phrase "the alien has come to, has entered or remains in the United States in violation of law," is also unduly broad, as some immigrants enter the United States unlawfully but subsequently acquire lawful immigration status. The phrase's vagueness and ambiguity fail to provide sufficient notice of what is prohibited in order to allow individuals to conform their conduct to the requirements of the law, and to prevent arbitrary and discriminatory enforcement. 56. Section 6 of S.B. 1070 is unconstitutionally vague as well. The terms "any public offense that makes the person removable" are not defined, do not provide meaningful standards, require a federal immigration determination regarding removability that local 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 law enforcement are not equipped or authorized to make, and vest officers with unbridled discretion, creating an unacceptable risk of arbitrary and discriminatory stops, detentions and arrests. COUNT II. VIOLATION OF SUPREMACY CLAUSE 66 . 57. The foregoing allegations sections are repeated and incorporated as though fully set herein. 67. 58. The Supremacy Clause mandates that federal law preempts state law in any area over which Congress expressly or impliedly has reserved exclusive authority, which is constitutionally reserved to the federal government, or where state law conflicts or interferes with federal law. Section A.R.S §13-1509 will establish a separate state offense for any person to violate provisions of the federal immigration law regarding registration and carrying registration documents . 8 U.S.C. §§ 1304 (e), 1306 (a). The offenses vary from class one misdemeanors with six month jail time and $500 fine to a class four (4) felony charge for those found in the U.S. after having accepted voluntary removal or been deported in the last 5 years. The Supremacy Clause of the US Constitution grants the federal government exclusive power to regulate our borders, and states do not have the right to create their own. For this reason alone, the law should be found unconstitutional.59. Sections 1, 2, 3, 5, 6 and 10 of S.B. 1070, as amended by H.B. 2162, are unconstitutional and preempted by federal law because they attempt to regulate immigration, conflict with federal laws and policies, usurp powers exclusively vested in the federal government, attempt to legislate in fields occupied by the federal government, impose burdens and 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 penalties on legal residents not authorized by and contrary to federal law, and unilaterally imposes burdens on the federal government's resources. 60. For example, Section 1 expresses the legislature's intent to regulate immigration, criminalize civil provisions of federal immigration law, and adopt an immigration policy that conflicts with the federal government's immigration policies and priorities, each in violation of the Supremacy Clause. 61. Sections 2, 3 and 6 grant local law enforcement officers powers over enforcement of federal immigration law, including the power to interrogate, arrest and detain aliens relative to their immigration status. The power to enforce federal immigration law, however, is exclusively the province of federal authorities, as Congress has demonstrated through comprehensive legislation occupying the field of immigration enforcement. See, e.g., 8 U.S.C. § 1357(g). The powers to question an individual about his or her immigration status, to detain an individual pending a determination of immigration status, and to arrest those in violation of immigration laws are powers that Congress has expressly conferred only to federal immigration officers and their agents. See 8 U.S.C. § 1226 (detention and apprehension of aliens); id. § 1231 (detention and removal of aliens ordered removed); id. § 1357(a)(1)-(2) (power of authorized immigration officers to interrogate and arrest aliens). The state's attempt to confer these powers on state and local law enforcement burdens and conflicts with federal law, and regulates the field of immigration law enforcement which Congress has intended to occupy. 62. Sections 3, 5 and 10 aim to create state penalties and lead to state prosecutions for violation of federal laws, intruding on federal law regulating that conduct under the 26 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 circumstances and in the manner deemed appropriate by Congress, see e.g., 8 U.S.C. § 1324(a)(1)(A)(ii)-(iv), and imposing impermissible burdens and penalties. 63. Section 5's provisions criminalizing the harboring and transporting of certain aliens further conflicts with federal law by failing to exempt bona fide religious denominations and their agents from its reach as the comparable federal statute does. See 8 U.S.C. § 1324(a)(1)(C). COUNT III. VIOLATION OF FIRST AMENDMENT 68. The forgoing allegations sections are repeated and incorporated as though fully set herein. 69. The Act would add a new section, A.R.S. § 13-2928, that makes it a class 1 misdemeanor to attempt to hire or pick up day laborers to work at a different location if the driver is impeding the normal flow of traffic. It also makes it a misdemeanor for a worker to get into a car if it is impeding traffic. Finally, this Section would criminalize the solicitation of work (by a gesture or nod) by undocumented immigrants in any public place. In order to be subject to the first or second parts of this Section, the vehicle in question has to be obstructing traffic. This provision adds no value insofar as there are already laws established that address traffic hazards. It is also likely to be found unconstitutional by the courts because the third part singles out the speech of immigrant day laborers for criminalization. The solicitation of work has been found by courts across the country to be protected speech under the First Amendment. Lopez et al v. Town of Cave Creek. COUNT IV. VIOLATIONS OF SUPREMACY CLAUSE 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 70. The foregoing allegations sections are repeated and incorporated as though fully set forth herein. 71. The Act would add a new section, A.R.S. § 13-2929, that makes it unlawful for any person who is "in violation of a criminal offense" to transport, move, conceal, harbor, shield from detection, or attempt to do any of the above, for any undocumented immigrant if the person knows or recklessly disregards the fact that the immigrant has entered or remained in the United States illegally. It also makes it a state crime to encourage or induce any immigrant to come, enter, or reside in the country illegally. 72. A person who violates this law would be subject to a class 1 misdemeanor and a fine of at least $1,000, with additional penalties where the offense involves ten or more immigrants. Any means of transportation used in connection with the crime will be impounded. This provision is unnecessary because the exact same actions (transporting, moving, concealing, harboring, and shielding undocumented immigrants) are already prohibited under federal law where the person commits those acts with the intent to further the immigrant's violation of the law. 8 U.S.C. § 1324(a)(1)(a). 73. Furthermore, Arizona peace officers have explicit authority to arrest anyone who violates the federal harboring law, 8 U.S.C. § 1324(c), and vehicles used to commit the offense may be seized. 8 U.S.C.§ 1324(b). Courts have not permitted prosecutions under the federal statute where a person offers a ride or shelter to another person out of humanitarian concern rather than with the intent to further the violation, such as for a profit motive. There is also a specific provision in the federal statute exempting churches who provide room and board to members of their congregation serving as ministers or 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 missionaries. To the extent that the state law will be applied differently than the federal law, it should be invalidated as violating the Supremacy Clause of the U.S. Constitution. COUNT V. VIOLATIONS OF SUBSTANTIVE DUE PROCESS ­ FOURTEENTH AMENDMENT 74. The foregoing allegations sections are repeated and incorporated as though fully set forth herein. 75. Plaintiffs and the proposed class have a liberty interest in being free from detention absent a criminal conviction. Specifically, Plaintiffs and the proposed class have a liberty interest in being eligible for release on bond pending resolution of the criminal charges against them. 76. The Arizona law and Defendants' policies, practices and procedures implementing them violate substantive due process because they are not narrowly tailored and do not serve a compelling governmental interest. 77. The Arizona law and Defendants' policies, practices and procedures implementing them result in an impermissibly punitive regime of arrests and racial profiling in violation of substantive due process. COUNT VI. FOURTEENTH AMENDMENT USE OF PROBABLE CAUSE STANDARD VIOLATION OF PROCEDURAL DUE PROCESS 78. The foregoing allegations sections are repeated and incorporated as though fully set forth herein. 29 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 79. Defendants' policies, practices, and procedures in implementing the new anti- immigration law, results in no-bond decisions against Plaintiffs and the proposed class based solely on police officers' finding that there is probable cause to believe that they have "entered or remained in the United States illegally." Use of the "probable cause" standard in this context violates the Due Process Clause of the United States Constituion. COUNT III FIRST AMENDMENT; FREEDOM OF RELIGION, ASSOCIATION The foregoing allegations sections are repeated and incorporated as though fully set herein. 64. The First Amendment to the U.S. Constitution provides that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." The First Amendment's guarantees are applied to the States through the Fourteenth Amendment. 65. The transportation and harboring provisions of S.B. 1070 violate the freedom of religion and association by interfering with La Hermosa Church's and other parishioners' ability to reach out to and embrace all members of the community; bring members of the community into the Church; minister to the poor, sick and elderly; promote and perform acts of charity; nurture families; and provide food, shelter and access to services, including by transportation, to those need---all regardless of immigration status. In order to comply with the challenged provisions of S.B. 1070, however, the Church and parishioners will have to go against their religious beliefs by limiting certain of their 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 activities (such as providing shelter and transportation to those in need) based on an individual's immigration status, or risk prosecution for harboring or transporting individuals who are deemed "unauthorized aliens" or not carrying papers as required under the Arizona law. Also, because of the documentation requirements and criminal penalties imposed by S.B. 1070, certain parishioners will be unable or unwilling to leave their houses to come to the Church, which interferes with the Church and its members' right to freedom of association in the practice of their religion. COUNT IV FOURTEENTH AMENDMENT; EQUAL PROTECTION The foregoing allegations are repeated and incorporated as though fully set forth herein. 66. The Fourteenth Amendment to the U.S. Constitution provides that "No State shall . . . deny to any person within its jurisdiction the equal protection of the laws." 67. S.B. 1070 was enacted with the purpose and intent to discriminate against racial and national origin minorities, including Latinos, on the basis of race and national origin. 68. S.B. 1070 impermissibly and invidiously targets Plaintiffs who are racial and national origin minorities, including Latinos, residing or traveling in Arizona and subjects them to stops, detentions, questioning, and arrests based on their race and/or national origin. 69. S.B. 1070 impermissibly deprives Plaintiffs who are racial and national origin minorities, including Latinos, residing or traveling in Arizona of the equal protection of the laws within the meaning of the Fourteenth Amendment to the U.S. Constitution. 31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 70. Section 3 of S.B. 1070 impermissibly discriminates against non-citizen Plaintiffs on the basis of alienage and deprives them of the equal protection of the laws within the meaning of the Fourteenth Amendment to the U.S. Constitution. PRAYER FOR RELIEF WHEREFORE, in light of the foregoing facts and arguments, Plaintiffs reallege and incorporate paragraphs 1 through 53 70 inclusive and file this and request that this court: a. Assume jurisdiction over this matter; b. Certify a class as described above, pursuant to Plaintiffs' forthcoming motion for class certification; c.b. Declare that the Arizona law is unconstitutional under the Supremacy clause, the dDue pProcess cClause of the Fourteenth Amendment, the Equal Protection Clause and the First Amendment's right to freedom of religion and association speech; d.c. Declare that the law is preempted by federal law and the plenary power of Congress to regulate immigration; e.d. Enjoin Defendants from enforcing the law; f.e. Grant Plaintiffs' reasonable attorneys' fees, costs, and other expenses pursuant to 42 U.S.C. Sec. § 1988; and g.f. Grant such other relief as the Court may deem appropriate. Dated: June 9, 2010 August 25, 2010 32 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 NATIONAL COALITION OF LATINO CLERGY AND CHRISTIAN LEADERS ("CONLAMIC') PHOENIX, ARIZONA, ET AL. By: RESPECTFULLY SUBMITTED, /s/ Tania Galloni FLORIDA IMMIGRANT ADVOCACY CENTER /s/ Ben R. Miranda LAW OFFICE OF BEN R. MIRANDA /s/ William J. Sanchez SANCHEZ LAW, LLC Attorneys for Plaintiffs 33

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