United States of America v. Arizona, State of, et al

Filing 87

ORDER granting in part and denying in part the United States' 27 Motion for Preliminary Injunction. IT IS FURTHER ORDERED denying the United States' Motion for Preliminary Injunction as to the following Sections of Senate Bill 1070 (as amended by House Bill 2162): Section 1, Section 2(A) and (C)-(L), Section 4, the portion of Section 5 creating A.R.S. § 13-2929, the portion of Section 5 creating A.R.S. § 13-2928(A) and (B), and Sections 7-13. IT IS FURTHER ORDERED preliminarily enjoining the State of Arizona and Governor Brewer from enforcing the following Sections of Senate Bill 1070 (as amended by House Bill 2162): Section 2(B) creating A.R.S. § 11-1051(B), Section 3 creating A.R.S. § 13-1509, the portion of Section 5 creating A.R.S. § 13-2928 (C), and Section 6 creating A.R.S. § 13-3883(A)(5). Signed by Judge Susan R Bolton on 07/28/10. (NOTE: See attached pdf for complete details) (ESL)

United States of America v. Arizona, State of, et al

Doc. 87

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1

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

United States of America,

) ) Plaintiff, ) ) vs. ) ) ) State of Arizona; and Janice K. Brewer,) Governor of the State of Arizona, in her) Official Capacity, ) ) Defendants. ) )

No. CV 10-1413-PHX-SRB ORDER

At issue is the Motion for Preliminary Injunction filed by Plaintiff the United States ("Pl.'s Mot.") (Doc. 27). I. SUMMARY Against a backdrop of rampant illegal immigration, escalating drug and human trafficking crimes, and serious public safety concerns, the Arizona Legislature enacted a set of statutes and statutory amendments in the form of Senate Bill 1070, the "Support Our Law Enforcement and Safe Neighborhoods Act," 2010 Arizona Session Laws, Chapter 113, which Governor Janice K. Brewer signed into law on April 23, 2010. Seven days later, the Governor signed into law a set of amendments to Senate Bill 1070 under House Bill 2162, 2010 Arizona Session Laws, Chapter 211.1 Among other things, S.B. 1070 requires officers

In this Order, unless otherwise specified, the Court refers to S.B. 1070 and H.B. 2162 collectively as "S.B. 1070," describing the April 23, 2010, enactment as modified by the April 30, 2010, amendments.

Dockets.Justia.com

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to check a person's immigration status under certain circumstances (Section 2) and authorizes officers to make a warrantless arrest of a person where there is probable cause to believe that the person committed a public offense that makes the person removable from the United States (Section 6). S.B. 1070 also creates or amends crimes for the failure of an alien to apply for or carry registration papers (Section 3), the smuggling of human beings (Section 4), the performance of work by unauthorized aliens, and the transport or harboring of unlawfully present aliens (Section 5). On July 6, 2010, the United States filed a Complaint with this Court challenging the constitutionality of S.B. 1070, and it also filed a Motion requesting that the Court issue a preliminary injunction to enjoin Arizona from enforcing S.B. 1070 until the Court can make a final determination as to its constitutionality. The United States argues principally that the power to regulate immigration is vested exclusively in the federal government, and that the provisions of S.B. 1070 are therefore preempted by federal law. The Court notes that S.B. 1070 is not a freestanding statute; rather, it is an enactment of the Arizona Legislature that adds some new sections to the Arizona Revised Statutes ("A.R.S.") and amends some preexisting sections. S.B. 1070 also contains a severability clause, providing that, [i]f 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. S.B. 1070 § 12(A). Therefore, the Court cannot and will not enjoin S.B. 1070 in its entirety, as certain parties to lawsuits challenging the enactment have requested. The Court is obligated to consider S.B. 1070 on a section by section and provision by provision basis. Other than seeking a preliminary injunction as to "S.B. 1070," the United States has not made any argument to preliminarily enjoin and the Court therefore does not enjoin the following provisions of S.B. 1070: Section 1 of S.B. 1070 no A.R.S. citation: providing the intent of the legislation

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Portions of Section 2 of S.B. 1070 A.R.S. § 11-1051(A): prohibiting Arizona officials, agencies, and political subdivisions from limiting enforcement of federal immigration laws A.R.S. § 11-1051(C)-(F): requiring that state officials work with federal officials with regard to unlawfully present aliens A.R.S. § 11-1051(G)-(L): 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 Section 4 of S.B. 10702 A.R.S. § 13-2319: amending the crime of human smuggling

Portion of Section 5 of S.B. 1070 A.R.S. § 13-2928(A)-(B): 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 Section 7 of S.B. 1070 A.R.S. § 23-212: Section 8 of S.B. 1070 A.R.S. § 23-212.01: Section 9 of S.B. 1070 A.R.S. § 23-214: Section 11 of S.B. 1070 A.R.S. § 41-1724: amending the crime of knowing employment of unauthorized aliens amending the crime of intentional employment of unauthorized aliens amending the requirements for checking employment eligibility creating the gang and immigration intelligence team enforcement mission fund

Sections 12 & 13 of S.B. 1070 no A.R.S. citation: administering S.B. 1070 Applying the proper legal standards based upon well-established precedent, the Court

22 finds that the United States is not likely to succeed on the merits in showing that the following 23 provisions of S.B. 1070 are preempted by federal law, and the Court therefore does not enjoin 24 the enforcement of the following provisions of S.B. 1070: 25 26 27 28
2

Although the United States' Complaint challenges Section 4 of S.B. 1070, counsel for the United States stated at oral argument that the federal government is not seeking to enjoin A.R.S. § 13-2319 at this time. (Hr'g Tr. 5:10-20, July 22, 2010 ("Hr'g Tr.").) -3-

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Portion of Section 5 of S.B. 1070 A.R.S. § 13-2929: creating a separate crime for a person in violation of a criminal offense to transport or harbor an unlawfully present alien or encourage or induce an unlawfully present alien to come to or live in Arizona Section 10 of S.B. 1070 A.R.S. § 28-3511: amending the provisions for the removal or impoundment of a vehicle to permit impoundment of vehicles used in the transporting or harboring of unlawfully present aliens

Applying the proper legal standards based upon well-established precedent, the Court finds that the United States is likely to succeed on the merits in showing that the following Sections of S.B. 1070 are preempted by federal law: Portion of Section 2 of S.B. 1070 A.R.S. § 11-1051(B): 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 Section 3 of S.B. 1070 A.R.S. § 13-1509: creating a crime for the failure to apply for or carry alien registration papers

Portion of Section 5 of S.B. 1070 A.R.S. § 13-2928(C): creating a crime for an unauthorized alien to solicit, apply for, or perform work Section 6 of S.B. 1070 A.R.S. § 13-3883(A)(5): 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

The Court also finds that the United States is likely to suffer irreparable harm if the Court does not preliminarily enjoin enforcement of these Sections of S.B. 1070 and that the balance of equities tips in the United States' favor considering the public interest. The Court therefore issues a preliminary injunction enjoining the enforcement of the portion of Section 2 creating A.R.S. § 11-1051(B), Section 3 creating A.R.S. § 13-1509, the portion of Section 5 creating A.R.S. § 13-2928(C), and Section 6 creating A.R.S. § 13-3883(A)(5).

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1 II. 2 3

BACKGROUND A. Overview of Federal Immigration Law

Congress has created and refined a complex and detailed statutory framework

4 regulating immigration. The federal immigration scheme is largely enacted through the 5 Immigration and Nationality Act ("INA"), 8 U.S.C. § 1101, et seq., which empowers various 6 federal agencies (including the Department of Justice ("DOJ"), Department of Homeland 7 Security ("DHS"), and Department of State ("DOS")) to administer and enforce the 8 immigration laws. See, e.g., id. §§ 1103-1104. Among its many provisions, the INA sets forth 9 the conditions under which a foreign national may be admitted to and remain in the United 10 States. Id. §§ 1181-1182, 1184. The INA also contains an alien registration system intended 11 to monitor the entry and movement of aliens in the United States. Id. §§ 1201(b), 1301-1306. 12 Various actions may subject an alien to being placed in removal proceedings, such as entering 13 the United States without inspection, presenting fraudulent documents at a port of entry, 14 violating the conditions of admission, or engaging in certain other proscribed conduct. Id. §§ 15 1225, 1227, 1228, 1229, 1229c, 1231. Violations of immigration laws may also subject an 16 alien to civil and criminal sanctions. E.g., id. §§ 1325, 1306, 1324c. Unlawful presence in the 17 United States is not a federal crime, although it may make the alien removable. See id. §§ 18 1182(a)(6)(A)(i), 1227(a)(1)(B)-(C).3 19 Federal alien smuggling laws make it a crime to knowingly bring an unauthorized alien

20 into the country, as well as to harbor such a person or to facilitate unlawful immigration. Id. 21 § 1324. Congress also created sanctions to be implemented against employers who knowingly 22 employ aliens who are not authorized to work when it passed the Immigration Reform and 23 Control Act ("IRCA") in 1986. Id. § 1324a(a)(1)-(2). Federal law contains no criminal 24 sanction for working without authorization, although document fraud is a civil violation under 25 IRCA. Id. § 1324c. In 1996, Congress passed the Illegal Immigration Reform and Immigrant 26 27 28
3

Unlawful presence is an element of the federal crime of reentry after deportation, 8 U.S.C. § 1326, and unlawful entry into the United States is also a federal crime, 8 U.S.C. § 1325. -5-

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1 Responsibility Act ("IIRIRA"), which, among other things, created various employment 2 eligibility verification programs. See Chicanos Por La Causa, Inc. v. Napolitano (Chicanos 3 Por La Causa II), 558 F.3d 856, 861 (9th Cir. 2009). 4 Federal immigration law also envisions certain areas of cooperation in immigration

5 enforcement among the federal government and state and local governments. See 8 U.S.C. § 6 1357(g)(1)-(9) (permitting DHS to enter into agreements whereby appropriately trained and 7 supervised state and local officials can perform certain immigration responsibilities); id. § 8 1373 (establishing parameters for information-sharing between state and local officials and 9 federal immigration officials); id. § 1252c (authorizing state and local law enforcement 10 officials to arrest aliens unlawfully present in the United States who have previously been 11 convicted of a felony and deported). DHS has also established the Law Enforcement Support 12 Center ("LESC"), which is administered by Immigration and Customs Enforcement ("ICE") 13 and serves as a national enforcement information center, answering queries from state and 14 local officials regarding immigration status. (Pl.'s Mot., Ex. 3, Decl. of David Palmatier, Unit 15 Chief for LESC ("Palmatier Decl.") ¶¶ 3-6.) 16 17 18 B. Overview of S.B. 1070 1. Section 1

Section 1 of S.B. 1070 states that "the intent of [S.B. 1070] is to make attrition through

19 enforcement the public policy of all state and local government agencies in Arizona" and that 20 "[t]he provisions of this act are intended to work together to discourage and deter the unlawful 21 entry and presence of aliens and economic activity by persons unlawfully present in the 22 United States." Section 1 also states that "there is a compelling interest in the cooperative 23 enforcement of federal immigration laws throughout all of Arizona." 24 25 2. Section 2

Section 2 of S.B. 1070 adds A.R.S. § 11-1051. Section 2 contains twelve separate

26 subsections. Subsection 2(A) prohibits Arizona officials, agencies and political subdivisions 27 from limiting or restricting the enforcement of federal immigration laws. A.R.S. § 1128 1051(A). Subsection 2(B) requires officers to make a reasonable attempt, when practicable, -6-

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1 to determine an individual's immigration status during any lawful stop, detention, or arrest 2 where reasonable suspicion exists that the person is unlawfully present in the United States. 3 Id. § 11-1051(B). Subsection 2(B) also requires that all persons who are arrested have their 4 immigration status verified prior to release. Id. Subsections 2(B) and 2(E) provide the process 5 for verifying immigration status and list documents that create a presumption of lawful 6 presence. Id. § 11-1051(B), (E). Mandatory stops for the purpose of immigration status 7 verification are not required or authorized by Subsection 2(B). Subsection 2(C) requires 8 notification of ICE or Customs and Border Protection whenever an unlawfully present alien 9 is discharged or assessed a monetary obligation. Id. § 11-1051(C). Subsections 2(D) and (F) 10 permit law enforcement to securely transport unlawfully present aliens and send, receive, and 11 exchange information related to immigration status. Id. § 11-1051(D), (F). 12 In addition, Subsection 2(H) permits legal residents of Arizona to bring actions in state

13 court "to challenge any official or agency of [Arizona] that adopts or implements a policy or 14 practice that limits or restricts the enforcement of federal immigration laws to less than the 15 full extent permitted by federal law." Id. § 11-1051(H). Subsections 2(I) and (J) address the 16 civil penalties arising from such civil suits, and Subsection 2(K) provides that law 17 enforcement officers are indemnified against reasonable costs and expenses incurred by the 18 officer in connection with any suit initiated under this Section unless the officer is found to 19 have acted in bad faith. Id. § 11-1051(I)-(K). 20 21 3. Section 3

Section 3 of S.B. 1070 adds A.R.S. § 13-1509, which provides that "a person is guilty

22 of willful failure to complete or carry an alien registration document if the person is in 23 violation of [8 U.S.C. §§] 1304(e) or 1306(a)," federal statutes that require aliens to carry 24 documentation of registration and penalize the willful failure to register. A.R.S. § 13-1509(A). 25 Violation of Section 3 is a class 1 misdemeanor and results in a maximum fine of $100 and 26 a maximum of 20 days in jail for a first violation and up to 30 days in jail for any subsequent 27 violation. Id. § 13-1509(H). Section 3 limits a violator's eligibility for a suspended sentence, 28 probation, pardon, and commutation of a sentence and requires violators to pay jail costs. Id. -7-

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1 § 13-1509(D), (E). In the enforcement of Section 3, immigration status may be determined 2 by a law enforcement officer authorized by the federal government or pursuant to 8 U.S.C. 3 § 1373(c). Id. § 13-1509(B). Pursuant to Subsection 3(C), law enforcement officers are not 4 permitted to consider race, color, or national origin in the enforcement of Section 3. Id. § 135 1509(C). Finally, Section 3 does not apply to "a person who maintains authorization from the 6 federal government to remain in the United States." Id. § 13-1509(F). 7 8 4. Section 4

In Section 4 of S.B. 1070, the Arizona Legislature revised A.R.S. § 13-2319 by adding

9 a provision that permits officers enforcing Arizona's human smuggling statute to stop any 10 person who is operating a motor vehicle if the officer has reasonable suspicion to believe that 11 the person is in violation of any civil traffic law. Id. § 13-2319(E). Section 4 does not make 12 any other changes or additions to Arizona's human smuggling statute, A.R.S. § 13-2319. 13 14 5. Section 5

Section 5 of S.B. 1070 adds two provisions to the Arizona Criminal Code, A.R.S. §§

15 13-2928 and 13-2929. A.R.S. § 13-2928(A) provides that it is unlawful for an occupant of a 16 motor vehicle that is stopped on a street, roadway, or highway and is impeding traffic to 17 attempt to hire a person for work at another location. Id. § 13-2928(A). Similarly, A.R.S. § 18 13-2928(B) provides that it is unlawful for a person to enter a motor vehicle in order to be 19 hired if the vehicle is stopped on a street, roadway, or highway and is impeding traffic. Id. § 20 13-2928(B). Finally, A.R.S. § 13-2928(C) provides that it is unlawful "for a person who is 21 unlawfully present in the United States and who is an unauthorized alien to knowingly apply 22 for work, solicit work in a public place or perform work as an employee or independent 23 contractor in this state." Id. § 13-2928(C). Violation of A.R.S. § 13-2928 is a class 1 24 misdemeanor. Id. § 13-2928(F). 25 Section 5 of S.B. 1070 also creates A.R.S. § 13-2929, which provides that it is

26 unlawful for a person who is in violation of a criminal offense to: (1) transport or move or 27 attempt to transport or move an alien in Arizona in furtherance of the alien's unlawful 28 presence in the United States; (2) conceal, harbor, or shield or attempt to conceal, harbor, or -8-

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1 shield an alien from detection in Arizona; and (3) encourage or induce an alien to come to or 2 live in Arizona. Id. § 13-2929(A)(1)-(3). In order to violate A.R.S. § 13-2929(A), a person 3 must also know or recklessly disregard the fact that the alien is unlawfully present in the 4 United States. Id. Violation of A.R.S. § 13-2929 is a class 1 misdemeanor. Id. § 13-2929(F). 5 6 6. Section 6

Section 6 of S.B. 1070 amends A.R.S. § 13-3883 to permit an officer to arrest a person

7 without a warrant if the officer has probable cause to believe that "the person to be arrested 8 has committed any public offense that makes the person removable from the United States." 9 Id. § 13-3883(A)(5). 10 11 7. Sections 7-13

Sections 7, 8, and 9 amend Arizona's law imposing sanctions on employers who hire

12 unlawfully present aliens. See A.R.S. §§ 23-212, 23-212.01, 23-214. Section 10 amends 13 A.R.S. § 28-3511 to allow for the immobilization or impoundment of vehicles used in the 14 transporting and concealing of unlawfully present aliens where the driver of the vehicle knew 15 or recklessly disregarded the fact that the alien was unlawfully present. Section 11 creates the 16 "gang and immigration intelligence team enforcement mission fund" for civil penalties paid 17 pursuant to Subsection 2(I). Finally, Section 12 provides for the severance of any 18 unconstitutional provisions, and Section 13 provides a short title for the enactment. 19 20 C. Procedural Posture

The United States filed its Complaint challenging the constitutionality of S.B. 1070 on

21 July 6, 2010, naming as Defendants the State of Arizona and Governor Brewer in her official 22 capacity (collectively, "Arizona"). On the same day, it also filed a Motion requesting that the 23 Court preliminarily enjoin Arizona from enforcing S.B. 1070 until the Court can make a final 24 determination as to its constitutionality. (Doc. 6, Pl.'s Lodged Proposed Mot. for Prelim. Inj.) 25 The United States argues principally that the power to regulate immigration is vested 26 exclusively with the federal government, and the provisions of S.B. 1070 are therefore 27 preempted by federal law. The Court held a Hearing on Plaintiff's Motion on July 22, 2010 28 -9-

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1 ("the Hearing"). S.B. 1070 has an effective date of July 29, 2010. The Court now considers 2 the United States' Motion for Preliminary Injunction. 3 III. 4 5 LEGAL STANDARDS AND ANALYSIS A. General Legal Standards

"A plaintiff seeking a preliminary injunction must establish that he is likely to succeed

6 on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, 7 that the balance of equities tips in his favor, and that an injunction is in the public interest." 8 Winter v. Natural Res. Def. Council, Inc., 129 S. Ct. 365, 374 (2008) (citations omitted). 9 The United States primarily asserts that the statutory provisions contained in S.B. 1070

10 are preempted by federal law. The Supremacy Clause of the United States Constitution makes 11 federal law "the supreme law of the land." U.S. Const. art. VI, cl. 2. The Supreme Court has 12 consistently ruled that the federal government has broad and exclusive authority to regulate 13 immigration, supported by both enumerated and implied constitutional powers.4 While 14 holding that the "[p]ower to regulate immigration is unquestionably exclusively a federal 15 power," the Supreme Court concluded that not every state enactment "which in any way deals 16 with aliens is a regulation of immigration and thus per se preempted by this constitutional 17 power, whether latent or exercised." De Canas v. Bica, 424 U.S. 351, 354-355 (1976). 18 Federal preemption can be either express or implied. Chicanos Por La Causa v.

19 Napolitano (Chicanos Por La Causa I), 544 F.3d 976, 982 (9th Cir. 2008), cert. granted, 78 20 U.S.L.W. 3065, 78 U.S.L.W. 3754, 78 U.S.L.W. 3762 (U.S. June 28, 2010) (No. 09-115). 21 There are two types of implied preemption: field preemption and conflict preemption. Id. 22 Field preemption occurs "where `the depth and breadth of a congressional scheme . . . 23 occupies the legislative field.'" Id. (quoting Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 24 25 26 27 28
4

A variety of enumerated powers implicate the federal government's long-recognized immigration power, including the Commerce Clause, the Naturalization Clause, and the Migration and Importation Clause. See U.S. Const. art. I, § 8, cl. 3-4; art. I, § 9, cl. 1; see also Fong Yue Ting v. United States, 149 U.S. 698, 706 (1893); Chae Chan Ping v. United States, 130 U.S. 581, 603-04 (1889). - 10 -

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1 541 (2001)). Conflict preemption describes a situation in which "compliance with both federal 2 and state regulations is a physical impossibility or where state law stands as an obstacle to the 3 accomplishment and execution of the full purposes and objectives of Congress." Id. (internal 4 quotations and citations omitted). An actual, as opposed to hypothetical or potential, conflict 5 must exist for conflict preemption to apply. Id. 6 7 B. Likelihood of Success on the Merits

The United States must first demonstrate a likelihood of success on the merits. Winter,

8 129 S. Ct. at 374. The United States challenges S.B. 1070 on its face, before it takes effect on 9 July 29, 2010. (Pl.'s Mot. at 7.) "A facial challenge to a legislative Act is, of course, the most 10 difficult challenge to mount successfully, since the challenger must establish that no set of 11 circumstances exists under which the Act would be valid." United States v. Salerno, 481 U.S. 12 739, 745 (1987). The Supreme Court later observed, in considering a facial challenge, 13 "[S]ome Members of the Court have criticized the Salerno formulation, [but] all agree that 14 a facial challenge must fail where a statute has a `plainly legitimate sweep.'" Wash. State 15 Grange v. Wash. State Republican Party, 552 U.S. 442, 449 (2008) (quoting Washington v. 16 Glucksberg, 521 U.S. 702, 739-40 & n.7 (1997) (Stevens, J., concurring in judgments)). In 17 deciding a facial challenge, courts "must be careful not to go beyond the statute's facial 18 requirements and speculate about `hypothetical' or `imaginary' cases." Id. at 449-50 (quoting 19 United States v. Raines, 362 U.S. 17, 22 (1960)). 20 21 1. Preemption of Overall Statutory Scheme

As discussed above, S.B. 1070 contains several provisions adding to and amending

22 Arizona law. While the United States has requested that the Court enjoin S.B. 1070 in its 23 entirety, it specifically challenges only select provisions of S.B. 1070. (See Pl.'s Mot. at 12 24 n.8 (noting that "the instant motion does not seek to enjoin" Sections 7-9 of S.B. 1070 and that 25 Sections 11-13 "are administrative provisions which are not the subject of this dispute").) The 26 United States also argues that the overall statutory scheme of S.B. 1070 is preempted because 27 it attempts to set immigration policy at the state level and interferes and conflicts with federal 28 - 11 -

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1 immigration law, foreign relations, and foreign policy. (Id. at 12-25.) Section 1 of S.B. 1070 2 declares a unified, state-wide public policy, providing: 3 4 5 The legislature declares that the intent of this act is to make attrition through enforcement the public policy of all state and local government agencies in Arizona. The provisions of this act are intended to work together to discourage and deter the unlawful entry and presence of aliens and economic activity by persons unlawfully present in the United States.

6 S.B. 1070 § 1. The United States urges the Court to enjoin S.B. 1070 as an integrated statutory 7 enactment with interlocking provisions. (Pl.'s Mot. at 12-25.) The United States asserts that 8 Section 1 animates and "infuses" the operative sections of the law. (Hr'g Tr. 13:4-14:5.) 9 "[W]hen the constitutionality of a state statute is challenged, principles of state law

10 guide the severability analysis and [courts] should strike down only those provisions which 11 are inseparable from the invalid provisions." Costco Wholesale Corp. v. Maleng, 522 F.3d 12 874, 886 (9th Cir. 2008) (citing Tucson Woman's Clinic v. Eden, 379 F.3d 531, 556-57 (9th 13 Cir. 2004)). "A court should not declare an entire statute unconstitutional if the constitutional 14 portions can be severed from those which are unconstitutional." State v. Ramsey, 831 P.2d 15 408, 413 (Ariz. Ct. App. 1992) (citing State v. Prentiss, 786 P.2d 932, 937 (Ariz. 1989)). 16 Under Arizona law, 17 18 19 20 21 22 23 24 25 26 27 28 - 12 it is well settled . . . that where the valid parts of a statute are effective and enforceable standing alone and independent of those portions declared unconstitutional, the court will not disturb the valid law if the valid and invalid portions are not so intimately connected as to raise the presumption the legislature would not have enacted one without the other, and the invalid portion was not the inducement of the act. Selective Life Ins. Co. v. Equitable Life Assurance Soc'y of the U.S., 422 P.2d 710, 715 (Ariz. 1967) (citing McCune v. City of Phx., 317 P.2d 537, 542 (Ariz. 1957)). In determining whether potentially unconstitutional provisions of S.B. 1070 may be severed from the remainder of the enactment, the primary concern is legislative intent. See id. at 715-16 (citing City of Mesa v. Killingsworth, 394 P.2d 410, 413 (Ariz. 1964)). Where a statute contains a severability provision, Arizona courts generally attempt to give effect to the severability clause. Id. at 715.

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1

Section 12(A) of S.B. 1070 provides for the severability of S.B. 1070's provisions,

2 stating that if any provision of the Act "is held invalid, the invalidity does not affect other 3 provisions . . . that can be given effect without the invalid provision." Arizona's Legislature 4 intended the provisions of S.B. 1070 to be severable in order to preserve the constitutional 5 provisions of the Act. As a result, where the provisions of S.B. 1070 are "effective and 6 enforceable standing alone and independent" of any unconstitutional provisions and the valid 7 portions are not so "intimately connected" to any invalid provision as to raise the presumption 8 that the Arizona Legislature would not have enacted the valid provisions without the invalid 9 provisions, S.B. 1070's provisions are severable. See Selective Life Ins., 422 P.2d at 715. 10 While Section 1 of S.B. 1070 provides a statement of the Act's intent and purpose, it

11 does not create a single and unified statutory scheme incapable of careful provision by 12 provision analysis. The Court cannot enjoin a purpose; the Arizona Legislature is free to 13 express its viewpoint and intention as it wishes, and Section 1 has no operative function. 14 However, this is not to say that Section 1 is irrelevant. The expression of the Legislature's 15 intent provides context and backdrop for the functional enactments of S.B. 1070, and the 16 Court considers it in this capacity as it analyzes the other provisions of the law. 17 S.B. 1070 will not be enjoined in its entirety. The Court will not ignore the obligation

18 to preserve the constitutional provisions of a state legislative enactment or S.B. 1070's 19 severability clause. The Court thus evaluates the constitutionality of the individual provisions 20 of S.B. 1070 challenged by the United States. 21 22 23 24 25 26 27 28 - 13 2. Section 2(B): A.R.S. § 11-1051(B)

Section 2(B) of S.B. 1070 provides as follows: For any lawful stop, detention or arrest made by [an Arizona] law enforcement official or . . . law enforcement agency . . . in the enforcement of any other law or ordinance of a county, city or town of this state where reasonable suspicion exists that the person is an alien 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.

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1 A.R.S. § 11-1051(B). Section 2(B) also states that if an officer is presented with one of the 2 following forms of identification, the officer is to presume that the person is not an 3 unauthorized alien: (1) a valid Arizona driver license or identification license; (2) a valid 4 tribal enrollment card or other form of tribal identification; or (3) a valid United States federal, 5 state, or local form of identification, provided that the issuing entity requires proof of 6 citizenship before issuance. Id. The United States argues that this section is preempted 7 because it will result in the harassment of lawfully present aliens and will burden federal 8 resources and impede federal enforcement and policy priorities. (Pl.'s Mot. at 25-32.) 9 10 a. Mandatory Immigration Status Determination Upon Arrest

The Court first addresses the second sentence of Section 2(B): "Any person who is

11 arrested shall have the person's immigration status determined before the person is released." 12 Arizona advances that the proper interpretation of this sentence is "that only where a 13 reasonable suspicion exists that a person arrested is an alien and is unlawfully present in the 14 United States must the person's immigration status be determined before the person is 15 released." (Defs.' Resp. to Pl.'s Mot. ("Defs.' Resp.") at 10.)5 Arizona goes on to state, "[T]he 16 Arizona Legislature could not have intended to compel Arizona's law enforcement officers 17 to determine and verify the immigration status of every single person arrested ­ even for 18 United States citizens and when there is absolutely no reason to believe the person is 19 unlawfully present in the country." (Id.) 20 The Court cannot interpret this provision as Arizona suggests. Before the passage of

21 H.B. 2162, the first sentence of Section 2(B) of the original S.B. 1070 began, "For any lawful 22 contact" rather than "For any lawful stop, detention or arrest." (Compare original S.B. 1070 23 § 2(B) with H.B. 2162 § 3(B).) The second sentence was identical in the original version and 24 as modified by H.B. 2162. It is not a logical interpretation of the Arizona Legislature's intent 25 to state that it originally intended the first two sentences of Section 2(B) to be read as 26 27 28
5

Arizona acknowledges that this sentence of Section 2(B) "might well have been more artfully worded." (Id.) - 14 -

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1 dependent on one another. As initially written, the first sentence of Section 2(B) did not 2 contain the word "arrest," such that the second sentence could be read as modifying or 3 explicating the first sentence. In S.B. 1070 as originally enacted, the first two sentences of 4 Section 2(B) are clearly independent of one another. Therefore, it does not follow logically 5 that by changing "any lawful contact" to "any lawful stop, detention or arrest" in the first 6 sentence, the Arizona Legislature intended to alter the meaning of the second sentence in any 7 way. If that had been the Legislature's intent, it could easily have modified the second 8 sentence accordingly. 9 As a result of this conclusion, the Court reads the second sentence of Section 2(B)

10 independently from the first sentence. The Court also concludes that the list of forms of 11 identification that could provide a presumption that a person is not an unlawfully present alien 12 applies only to the first sentence of Section 2(B) because the second sentence makes no 13 mention of unlawful presence: the second sentence states plainly that "[a]ny person who is 14 arrested" must have his or her immigration status determined before release. A presumption 15 against unlawful presence would not dispose of the requirement that immigration status be 16 checked because a legal permanent resident might have a valid Arizona driver's license, but 17 an inquiry would still need to be made to satisfy the requirement that the person's 18 "immigration status" be determined prior to release. 19 The United States asserts that mandatory determination of immigration status for all

20 arrestees "conflicts with federal law because it necessarily imposes substantial burdens on 21 lawful immigrants in a way that frustrates the concern of Congress for nationally-uniform 22 rules governing the treatment of aliens throughout the country ­ rules designed to ensure `our 23 traditional policy of not treating aliens as a thing apart.'" (Pl.'s Mot. at 26 (quoting Hines v. 24 Davidowitz, 312 U.S. 52, 73 (1941)).) Finding a state law related to alien registration to be 25 preempted, the Supreme Court in Hines observed that Congress "manifested a purpose to 26 [regulate immigration] in such a way as to protect the personal liberties of law-abiding aliens 27 through one uniform national . . . system[] and to leave them free from the possibility of 28 inquisitorial practices and police surveillance." 312 U.S. at 74. - 15 -

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1

Requiring Arizona law enforcement officials and agencies to determine the

2 immigration status of every person who is arrested burdens lawfully-present aliens because 3 their liberty will be restricted while their status is checked. Given the large number of people 4 who are technically "arrested" but never booked into jail or perhaps even transported to a law 5 enforcement facility, detention time for this category of arrestee will certainly be extended 6 during an immigration status verification. (See Escobar, et al. v. City of Tucson, et al., No. CV 7 10-249-TUC-SRB, Doc. 9, City of Tucson's Answer & Cross-cl., ¶ 38 (stating that during 8 fiscal year 2009, Tucson used the cite-and-release procedure provided by A.R.S. § 13-3903 9 to "arrest" and immediately release 36,821 people).) Under Section 2(B) of S.B. 1070, all 10 arrestees will be required to prove their immigration status to the satisfaction of state 11 authorities, thus increasing the intrusion of police presence into the lives of legally-present 12 aliens (and even United States citizens), who will necessarily be swept up by this 13 requirement.6 14 The United States argues that the influx of requests for immigration status

15 determination directed to the federal government or federally-qualified officials would 16 "impermissibly shift the allocation of federal resources away from federal priorities." (Pl.'s 17 Mot. at 30.) State laws have been found to be preempted where they imposed a burden on a 18 federal agency's resources that impeded the agency's function. See Buckman Co. v. Plaintiffs' 19 Legal Comm., 531 U.S. 341, 351 (2001) (finding a state law preempted in part because it 20 would create an incentive for individuals to "submit a deluge of information that the [federal 21 agency] neither wants nor needs, resulting in additional burdens on the FDA's evaluation of 22 an application"); cf. Garrett v. City of Escondido, 465 F. Supp. 2d 1043, 1057 (S.D. Cal. 23 2006) (expressing concern in preemption analysis for preliminary injunction purposes that 24 burden on DOJ and DHS as a result of immigration status checks could "impede the functions 25 of those federal agencies"). 26 27 28
6

The Court is also cognizant of the potentially serious Fourth Amendment problems with the inevitable increase in length of detention while immigration status is determined, as raised by the plaintiffs in Friendly House, et al. v. Whiting, et al., No. CV 10-1061-PHX-SRB. - 16 -

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1

Pursuant to 8 U.S.C. § 1373(c), DHS is required to "respond to an inquiry by a Federal,

2 State, or local government agency, seeking to verify or ascertain the citizenship or 3 immigration status . . . for any purpose authorized by law, by providing the requested 4 verification or status information." DHS has, in its discretion, set up LESC, which is 5 administered by ICE and "serves as a national enforcement operations center that promptly 6 provides immigration status and identity information to local, state, and federal law 7 enforcement agencies regarding aliens suspected of, arrested for, or convicted of criminal 8 activity." (Pl.'s Mot. at 6-7 (citing Palmatier Decl. ¶¶ 3-6).) Mr. Palmatier states in his 9 Declaration that LESC resources are currently dedicated in part to national security objectives 10 such as requests for immigration status determination from the United States Secret Service, 11 the FBI, and employment-related requests at "national security related locations that could be 12 vulnerable to sabotage, attack, or exploitation." (Palmatier Decl. ¶ 4.) Thus, an increase in the 13 number of requests for determinations of immigration status, such as is likely to result from 14 the mandatory requirement that Arizona law enforcement officials and agencies check the 15 immigration status of any person who is arrested, will divert resources from the federal 16 government's other responsibilities and priorities. 17 For these reasons, the United States has demonstrated that it is likely to succeed on its

18 claim that the mandatory immigration verification upon arrest requirement contained in 19 Section 2(B) of S.B. 1070 is preempted by federal law. This requirement, as stated above, is 20 likely to burden legally-present aliens, in contravention of the Supreme Court's directive in 21 Hines that aliens not be subject to "the possibility of inquisitorial practices and police 22 surveillance." 312 U.S. at 74. Further, the number of requests that will emanate from Arizona 23 as a result of determining the status of every arrestee is likely to impermissibly burden federal 24 resources and redirect federal agencies away from the priorities they have established.7 25 26 27 28
7

The problems associated with burdening federal resources are even more acute when considered in light of other state laws similar to this provision. (See Pl.'s Mot. at 31-32 (citing to a newspaper article stating that at least 18 other states are considering parallel legislation).); see also North Dakota v. United States, 495 U.S. 423, 458-59 (1990) (Brennan, - 17 -

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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

b.

Immigration Status Determination During Lawful Stops, Detentions, or Arrests

Next, the Court turns to the first sentence of Section 2(B): For any lawful stop, detention or arrest made by [an Arizona] law enforcement official or . . . law enforcement agency . . . in the enforcement of any other law or ordinance of a county, city or town of this state where reasonable suspicion exists that the person is an alien 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. A.R.S. § 11-1051(B). The United States makes essentially the same arguments about this requirement. First, the United States advances that it imposes a burden on lawfully-present aliens not permitted by Hines, where the Supreme Court sought to protect the personal liberties of lawfully-present aliens to leave them free from the possibility of intrusive police practices that might affect international relations and generate disloyalty. (Pl.'s Mot. at 26 (citing Hines, 312 U.S. at 74).) Second, the United States argues that this requirement impermissibly burdens and redirects federal resources away from federally-established priorities. (Id.) The United States' arguments regarding burdening of federal resources are identical to those outlined above and will not be restated. However, the United States makes several arguments with respect to the burden on lawfully-present aliens that are specific to or slightly different in the context of the first sentence of Section 2(B). First, the United States argues that this provision "necessarily places lawfully present aliens (and even U.S. citizens) in continual jeopardy of having to demonstrate their lawful status to non-federal officials." (Id. at 26.) The United States further asserts that there are numerous categories of lawfully-present aliens "who will not have readily available documentation to demonstrate that fact," including foreign visitors from Visa Waiver Program

J., concurring in plurality opinion in part and dissenting in part) (collecting cases where burden of state regulation on federal government was amplified by aggregate potential of multiple states following suit). - 18 -

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1 countries,8 individuals who have applied for asylum but not yet received an adjudication, 2 people with temporary protected status, U and T non-immigrant visa applicants, or people 3 who have self-petitioned for relief under the Violence Against Women Act. (Id. at 26-27.) 4 Also, the United States points out that United States citizens are not required to carry 5 identification, and some citizens might not have easy access to a form of identification that 6 would satisfy the requirement of Section 2(B).9 7 The United States contends that the impact on lawfully-present aliens of the

8 requirement that law enforcement officials, where practicable, check the immigration status 9 of a person lawfully stopped, detained, or arrested where there is reasonable suspicion that the 10 person is an alien and is unlawfully present will be exacerbated by several factors. (Id. at 2811 29.) First, the United States suggests that the impact on lawfully-present aliens is enhanced 12 because this requirement applies to stops for even very minor, non-criminal violations of state 13 law, including jaywalking, failing to have a dog on a leash, or riding a bicycle on the 14 sidewalk. (Id. at 28.) Also, the United States argues that the impact will be increased because 15 other provisions in S.B. 1070 put pressure on law enforcement agencies and officials to 16 enforce the immigration laws vigorously.10 (Id. at 29.) 17 Hines cautions against imposing burdens on lawfully-present aliens such as those

18 described above. See 312 U.S. at 73-74. Legal residents will certainly be swept up by this 19 requirement, particularly when the impacts of the provisions pressuring law enforcement 20 21 22 23 24 25 26 27 28
8

The Visa Waiver Program permits visitors from certain countries to enter the United States without a visa, so long as various requirements are met. See, e.g., 8 U.S.C. § 1187; 8 C.F.R. §§ 217.1-217.7. Also, upon a check with LESC or a federally-authorized state official, the status of a United States citizen might not be easily confirmable as many people born in the United States likely do not have an entry in a DHS database.

9

These provisions include Sections 2(A) and 2(H), which, respectively, prohibit agencies from restricting the enforcement of immigration laws and create a private right of action for legal residents to sue agencies if they believe the laws are not being enforced aggressively enough. - 19 -

10

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1 agencies to enforce immigration laws are considered. See A.R.S. § 11-1051(A), (H). Certain 2 categories of people with transitional status and foreign visitors from countries that are part 3 of the Visa Waiver Program will not have readily available documentation of their 4 authorization to remain in the United States, thus potentially subjecting them to arrest or 5 detention, in addition to the burden of "the possibility of inquisitorial practices and police 6 surveillance." Hines, 312 U.S. at 74. In Hines, the Supreme Court emphasized the important 7 federal responsibility to maintain international relationships, for the protection of American 8 citizens abroad as well as to ensure uniform national foreign policy. Id. at 62-66; see also 9 Zadvydas v. Davis, 533 U.S. 678, 700 (2001) ("We recognize . . . the Nation's need to `speak 10 with one voice' in immigration matters."). The United States asserts, and the Court agrees, 11 that "the federal government has long rejected a system by which aliens' papers are routinely 12 demanded and checked." (Pl.'s Mot. at 26.)11 The Court finds that this requirement imposes 13 an unacceptable burden on lawfully-present aliens. 14 With respect to the United States' arguments regarding the burden on and impediment

15 of federal resources as they relate to the first sentence of Section 2(B), the Court's conclusions 16 mirror those stated above regarding the second sentence of Section 2(B). Federal resources 17 will be taxed and diverted from federal enforcement priorities as a result of the increase in 18 requests for immigration status determination that will flow from Arizona if law enforcement 19 officials are required to verify immigration status whenever, during the course of a lawful 20 stop, detention, or arrest, the law enforcement official has reasonable suspicion of unlawful 21 presence in the United States.12 In combination with the impermissible burden this provision 22 will place on lawfully-present aliens, the burden on federal resources and priorities also leads 23 24 25 26 27 28 The Court notes, but does not analyze here, the arguments raised by the plaintiffs in Friendly House, No. CV 10-1061-PHX-SRB, regarding racial profiling.
12 11

Many law enforcement officials already have the discretion to verify immigration status if they have reasonable suspicion, in the absence of S.B. 1070; Section 2 of S.B. 1070 removes that discretion by making immigration status determinations mandatory where practicable. (See Pl.'s Mot. at 26; Defs.' Resp. at 20.) - 20 -

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1 to an inference of preemption. Therefore, for the purposes of preliminary injunction analysis, 2 the Court concludes that the United States has demonstrated a likelihood of success on its 3 challenge to the first sentence of Section 2(B). Section 2(B) in its entirety is likely preempted 4 by federal law. 5 6 3. Section 3: A.R.S. § 13-1509

Section 3 states that "a person is guilty of willful failure to complete or carry an alien

7 registration document if the person is in violation of 8 [U.S.C. §§] 1304(e) or 1306(a)." A.R.S. 8 § 13-1509(A).13 The penalties for violation of Section 3, a class 1 misdemeanor, are a 9 maximum fine of $100 and a maximum of 20 days in jail for a first violation and up to 30 10 days in jail for any subsequent violation. A.R.S. § 13-1509(H). Section 3 also limits violators' 11 eligibility for suspension of sentence, probation, pardon, and commutation of a sentence and 12 requires violators to pay jail costs. A.R.S. § 13-1509(D), (E). Section 3 does not apply to "a 13 person who maintains authorization from the federal government to remain in the United 14 States." A.R.S. § 13-1509(F). Essentially, Section 3 makes it a state crime to violate federal 15 registration laws and provides for state prosecutions and penalties for violations of the federal 16 registration law. The United States argues that Section 3 is preempted because it interferes 17 with comprehensive federal alien registration law, seeks to criminalize unlawful presence, and 18 will result in the harassment of aliens. (Pl.'s Mot. at 34-39.) Arizona asserts that Section 3 19 neither conflicts with federal law nor regulates in a federally occupied field. (Defs.' Resp. at 20 21-22.) 21 "[T]he power to restrict, limit, regulate, and register aliens as a distinct group is not an

22 equal and continuously existing concurrent power of state and nation[;] . . . whatever power 23 24 25 26 27 28 8 U.S.C. § 1306(a) makes it a misdemeanor, subject to a maximum fine of $1000 and a maximum of six months imprisonment, to willfully fail or refuse to apply for registration when such application is required. Similarly, 8 U.S.C. § 1304(e) requires an alien to carry a certificate of alien registration or alien registration receipt and makes a failure to comply with these requirements a misdemeanor subject to a maximum fine of $100 and imprisonment for up to 30 days. - 21 13

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1 a state may have is subordinate to supreme national law." Hines, 312 U.S. at 68. In Hines, the 2 Supreme Court found that, 3 4 5 where the federal government, in the exercise of its superior authority in this field, has enacted a complete scheme of regulation and has therein provided a standard for the registration of aliens, states cannot, inconsistently with the purpose of Congress, conflict or interfere with, curtail or complement, the federal law, or enforce additional or auxiliary regulations.

6 312 U.S. at 66-67. Hines also stated that a state statute is preempted where it "stands as an 7 obstacle to the accomplishment and execution of the full purposes and objectives of 8 Congress." Id. at 67. The Supreme Court determined in Hines that the purpose of the Federal 9 Alien Registration Act was to "make a harmonious whole" and that the Alien Registration Act 10 "provided a standard for alien registration in a single integrated and all-embracing system." 11 Id. at 72, 74. As a result, the Hines court held that the state registration scheme at issue could 12 not be enforced. Id. at 74. 13 The current federal alien registration requirements create an integrated and

14 comprehensive system of registration. See id. (finding that the Alien Registration Act, the 15 precursor to the current alien registration scheme, created a "single integrated and all16 embracing system" of registration); 8 U.S.C. §§ 1201, 1301-06 (providing federal registration 17 requirements and penalties). While the Supreme Court rejected the possibility that the INA 18 is so comprehensive that it leaves no room for state action that impacts aliens, De Canas, 424 19 U.S. at 358, the Supreme Court has also evaluated the impact of the comprehensive federal 20 alien registration scheme and determined that the complete scheme of registration precludes 21 states from conflicting with or complementing the federal law. Hines, 312 U.S. at 66-67. 22 Section 3 attempts to supplement or complement the uniform, national registration

23 scheme by making it a state crime to violate the federal alien registration requirements, which 24 a state may not do "inconsistently with the purpose of Congress." Hines, 312 U.S. at 66-67; 25 see also A.R.S. § 13-1509(A). While Section 3 does not create additional registration 26 requirements, the statute does aim to create state penalties and lead to state prosecutions for 27 violation of the federal law. Although the alien registration requirements remain uniform, 28 Section 3 alters the penalties established by Congress under the federal registration scheme. - 22 -

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1 Section 3 stands as an obstacle to the uniform, federal registration scheme and is therefore an 2 impermissible attempt by Arizona to regulate alien registration. See Hines, 312 U.S. at 67. As 3 a result, the Court finds that the United States is likely to succeed on its claim that Section 3 4 is preempted by federal law.14 5 6 4. Section 4: Amendment to A.R.S. § 13-2319

Section 4 of S.B. 1070 amends Arizona's human smuggling statute, A.R.S. § 13-2319.

7 Section 4 adds, "Notwithstanding any other law, in the enforcement of this section a peace 8 officer may lawfully stop any person who is operating a motor vehicle if the officer has 9 reasonable suspicion to believe the person is in violation of any civil traffic law." A.R.S. § 1310 2319(E). The United States requests an injunction prohibiting the enforcement of Section 4 11 but does not seek an injunction as to A.R.S. § 13-2319. (Pl.'s Compl. at 24 (requesting a 12 preliminary and permanent injunction prohibiting the enforcement of Sections 1-6 of S.B. 13 1070).)15 However, the arguments asserted by the United States in support of enjoining 14 Section 4 pertain entirely to separate provisions of A.R.S. § 13-2319 and do not challenge the 15 change embodied in Section 4. (Pl.'s Mot. at 39-42.) 16 Section 4 makes a minor change to Arizona's preexisting human smuggling statute,

17 which is not specifically challenged by the United States. Nothing about the section standing 18 alone warrants an injunction. As a result, the Court finds that the United States is not likely 19 to succeed on a claim that Section 4 of S.B. 1070 is preempted by federal law. 20 21 22 23 24 25 26 27 28 Subsections (B)-(H) pertain to the implementation and enforcement of Section 3. No provisions of Section 3 retain any effect absent Section 3's operative provision. At the July 22, 2010, Hearing on the United States' Motion for a Preliminary Injunction, the United States confirmed that it does not seek to enjoin A.R.S. § 13-2319. (Hr'g Tr. 5:1020.) Two provisions of Section 5 prohibit the act of hiring and being hired by the occupant of a motor vehicle. A.R.S. § 13-2928(A), (B). The Court finds that the June 9, 2010, decision of the Ninth Circuit Court of Appeals in a case contesting a virtually identical local ordinance in Redondo Beach, California forecloses a challenge to A.R.S. §§ 13-2928 (A) and (B) on - 23 16 15 14

5.

Section 5: A.R.S. § 13-2928(C)16

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1

Section 5 of S.B. 1070 creates A.R.S. § 13-2928(C), which provides that "it is unlawful

2 for a person who is unlawfully present in the United States and who is an unauthorized alien 3 to knowingly apply for work, solicit work in a public place or perform work as an employee 4 or independent contractor in this state." This violation is a class 1 misdemeanor. A.R.S. § 135 2928(F). The United States asserts that this provision "is preempted by Congress's 6 comprehensive scheme, set forth in [IRCA] for regulating the employment of aliens." (Pl.'s 7 Mot. at 42.) The United States argues that "IRCA reflects Congress's deliberate choice not 8 to criminally penalize unlawfully present aliens for performing work, much less for attempting 9 to perform it." (Id.) Arizona responds that "Congress could have, but chose not to, expressly 10 preempt state and local laws that impose civil or criminal sanctions upon employees." (Defs.' 11 Resp. at 25.) Arizona contends that, in an area of traditional state sovereignty such as 12 employment, "[p]reemption cannot be lightly inferred." (Id.) 13 "States possess broad authority under their police powers to regulate the employment

14 relationship to protect workers within the State." De Canas, 424 U.S. at 356. Interpreting De 15 Canas and considering a state law sanctioning employers who hire unauthorized workers, the 16 Ninth Circuit Court of Appeals held that, "because the power to regulate the employment of 17 unauthorized aliens remains within the states' historic police powers, an assumption of non18 preemption appli[ed]." Chicanos Por La Causa I, 544 F.3d at 984; accord Wyeth v. Levine, 19 129 S. Ct. 1187, 1194-95 (2009) (observing that "[i]n all pre-emption cases, and particularly 20 in those in which Congress has legislated . . . in a field which the States have traditionally 21 occupied, . . . we start with the assumption that the historic police powers of the States were 22 not to be superseded by the Federal Act unless that was the clear and manifest purpose of 23 Congress" (internal quotations and citation omitted)). 24 A.R.S. § 13-2928(C), as amended, regulates the employment of unauthorized aliens

25 in Arizona, and, thus, a presumption against preemption applies in the context of this 26 27 28 First Amendment grounds. See Comite de Jornaleros de Redondo Beach v. City of Redondo Beach, 607 F.3d 1178, 1184-93 (9th Cir. 2010). - 24 -

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1 provision. However, while deliberate federal inaction does not always imply preemption, 2 "[w]here a comprehensive federal scheme intentionally leaves a portion of the regulated field 3 without controls, then the pre-emptive inference can be drawn, not from federal inaction alone 4 but from inaction joined with action." P.R. Dep't of Consumer Affairs v. Isla Petroleum Corp., 5 485 U.S. 495, 503 (1988). The Supreme Court explained in Puerto Rico Department of 6 Consumer Affairs that with some "extant action" by Congress, there can arise "an inference 7 of pre-emption in an unregulated segment of an otherwise regulated field." Id. at 504; see also 8 Geier v. Am. Honda Motor Co., 529 U.S. 861, 869 (2000) (concluding that neither an express 9 pre-emption provision nor a saving clause "bar[s] the ordinary working of conflict pre10 emption principles"). 11 IRCA provides penalties for employers who knowingly hire or continue to employ an

12 alien without work authorization. 8 U.S.C. § 1324a(a)(1)-(2), (e)(4). IRCA also prohibits 13 employers from recruiting or referring for a fee unauthorized workers. Id. § 1324a(a)(1). 14 IRCA makes it unlawful to use contractors or subcontractors to hire unauthorized alien 15 workers. Id. § 1324a(a)(4). Under IRCA, employers are required to comply with an 16 "employment verification system" set up by the statute. Id. § 1324a(b).17 IRCA also instituted 17 a compliance scheme and a series of escalating sanctions for violations, entailing increasing 18 monetary fines for each subsequent violation and the possibility of injunctive sanctions. Id. 19 § 1324a(e)(4); 8 C.F.R. § 274a.10 (outlining civil and criminal penalties for violations of 8 20 U.S.C. § 1324a(a)(1)(A) or (a)(2)). 21 While it is readily apparent that Congress's central focus in IRCA was employer

22 sanctions, there are also targeted sanctions directed at employees. See 8 U.S.C. § 1324c 23 (making it a civil violation to make or use a false document or to use a document belonging 24 to another person, in the context of unlawful employment of an unauthorized alien). As the 25 Ninth Circuit Court of Appeals observed, "While Congress initially discussed the merits of 26 27 28
17

IIRIRA created three pilot programs for employee verification; of those three, only the program commonly known as E-Verify is still in existence. See Chamber of Commerce of the United States v. Edmondson, 594 F.3d 742, 752 (10th Cir. 2010). - 25 -

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1 fining, detaining or adopting criminal sanctions against the employee, it ultimately rejected 2 all such proposals." Nat'l Ctr. for Immigrants' Rights, Inc. v. INS, 913 F.2d 1350, 1368 (9th 3 Cir. 1990) (examining IRCA's legislative history), rev'd on other grounds, 502 U.S. 183 4 (1991). The court in National Center for Immigrants' Rights found that the determination to 5 reduce or deter employment of unauthorized workers by sanctioning employers, rather than 6 employees, was "a congressional policy choice clearly elaborated in IRCA." Id. at 1370. 7 IRCA also requires that an individual seeking employment "attest, under penalty of

8 perjury . . . that the individual is a citizen or national of the United States, an alien lawfully 9 admitted for permanent residence, or an alien who is authorized . . . to be hired, recruited, or 10 referred for such employment." 8 U.S.C. § 1324a(b)(2). This attestation is to be made on a 11 form "designated or established by the Attorney General," and IRCA states that the form "and 12 any information contained in or appended to such form[] may not be used for purposes other 13 than for enforcement of this chapter and sections 1001, 1028, 1546, and 1621 of Title 18" of 14 the federal criminal code. Id. § 1324a(b)(5). The provisions of Title 18 referenced in § 15 1324a(b)(5) of Title 8 make it a federal crime to, in any matter within the jurisdiction of the 16 federal government: 17 18 19 20 21 22 23 24 25 26 27 28 - 26 18 U.S.C. § 1621: 18 U.S.C. § 1546: 18 U.S.C. § 1028(a): 18 U.S.C. § 1001(a): (1) falsify, conceal, or cover up any material fact; (2) knowingly make or use a materially false, fictitious, or fraudulent statement; or (3) make or use any false writing or document. knowingly make, use, or transfer a false or stolen identification document or identification document belonging to another person or any implement or feature for use in creating a false identification document. (a) forge or falsify an immigration document; or (b) use a false identification document, a document not properly issued to the user, or a false attestation. commit perjury by knowingly making a false statement after taking an oath to tell the truth during a proceeding or on any document signed under penalty of perjury.

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1 Accordingly, the attestation forms described in 8 U.S.C. § 1324a(b)(2) may only be used for 2 these limited purposes. 3 The provision limiting the use of attestation forms and the civil penalties outlined for

4 document fraud in Title 8 and the robust sanctions for employers who hire, continue to 5 employ, or refer unauthorized workers convince the Court that Congress has comprehensively 6 regulated in the field of employment of unauthorized aliens. These "extant actions," in 7 combination with an absence of regulation for the particular violation of working without 8 authorization, lead to the conclusion that Congress intended not to penalize this action, other 9 than the specific sanctions outlined above. See P.R. Dep't of Consumer Affairs, 485 U.S. at 10 503-04. Thus, the Court finds that Plaintiff is likely to succeed on its claim that Arizona's new 11 crime for working without authorization, set forth in Section 5(C) of S.B. 1070, conflicts with 12 a comprehensive federal scheme and is preempted. 13 14 6. Section 5: A.R.S. § 13-2929

Section 5 of S.B. 1070 also creates A.R.S. § 13-2929, which makes it illegal for a

15 person who is in violation of a criminal offense to: (1) transport or move or attempt to 16 transport or move an alien in Arizona in furtherance of the alien's unlawful presence in the 17 United States; (2) conceal, harbor, or shield or attempt to conceal, harbor, or shield an alien 18 from detection in Arizona; and (3) encourage or induce an alien to come to or live in Arizona. 19 A.R.S. § 13-2929(A)(1)-(3). In order to violate A.R.S. § 13-2929(A), a person must also know 20 or recklessly disregard the fact that the alien is unlawfully present in the United States. Id. The 21 United States asserts that this provision is preempted as an impermissible regulation of 22 immigration and that the provision violates the dormant Commerce Clause. (Pl.'s Mot. at 4423 46.)18 24 25 26 27 28 The United States also asserts in a footnote that A.R.S. § 13-2929 directly conflicts with 8 U.S.C. § 1324(a)(1)(C), a section of the federal alien smuggling statute, which provides an exception for certain religious groups for contact wit