Escobar v. Brewer et al

Filing 59

STATUS REPORT On Pending Motions by Martin H Escobar. (Martinez, Richard)

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RICHARD M. MARTINEZ, SBA No. 7763 307 South Convent Avenue Tucson, Arizona 85701 [phone] phone [phone] fax [e-mail] Stephen Montoya, SBA No. 11791 Augustine B. Jimenez III, SBA No. 12208 Montoya Jimenez, P.A. The Great American Tower 3200 North Central Avenue, Suite 2550 Phoenix, Arizona 85012 [phone] [phone] (fax) [e-mail] [e-mail] Counsel for Plaintiff

IN THE UNITED STATES DISTRICT COURT FOR THE STATE OF ARIZONA MARTIN H. ESCOBAR Plaintiff, v. JAN BREWER, Governor of the State of Arizona, in her Official and Individual Capacity, and the CITY of TUCSON, a municipal corporation, Defendants. CITY OF TUCSON, a municipal corporation, cross-plaintiff, v. THE STATE OF ARIZONA, a body politic; and JAN BREWER, in her capacity as the Governor of the State of Arizona, cross-defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) No. CV 10-249 TUC SRB PLAINTIFF ESCOBAR'S STATUS REPORT ON PENDING MOTIONS

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Plaintiff, through his undersigned counsel, hereby submits his report on the status of pending motions in the instant action as instructed by the Court on June 25, 2010. CD No. 58. A. Pending Plaintiff Escobar Motions. 1. Motion for Leave to File Excess Pages for Memorandum of Points and Authorities Supporting Motion for Preliminary Injunction. CD No. 13. Motion requests leave to file Memorandum of Points and Authorities in support of Motion for Preliminary Injunction up to 35 pages. Since filing on May 31, 2010, there has been no ruling and the Motion for Preliminary Injunction remains in the Lodged status. The City of Tucson filed notice of having no objection to Plaintiff's motion on June 9, 2010. CD No. 27. Defendant Brewer also has objection. CD No. 25. Motion has been pending for 28 days. 2. Motion for Preliminary Injunction. CD No. 17. Motion requests a preliminary injunction of SB 1070, as amended. Federal authority in the field of immigration law is supreme, and any state law that contradicts or undermines federal immigration law is void as violative of the Constitution. See, e.g., DeCanas v. Bica, 424 U.S. 351, 354-355, and 358, n. 5 (1976) ("[the] [p]ower to regulate immigration is unquestionably exclusively a federal power," and "the Supremacy Clause requires the invalidation of any state legislation that burdens or conflicts in any manner with any federal laws").1 Plaintiff invokes these long-standing principles to enjoin the enforcement of the "Support Our Law Enforcement and Safe Neighborhoods Act," Senate Bill 1070, as

See also, Hines v. Davidowitz, 312 U.S. 52, 60-62 (1941)("the supremacy of the national power . . . over immigration, naturalization and deportation is made clear by the Constitution"); Chy Lung v. Freeman, 92 U.S. 275, 280 (1875) (voiding California statute regulating Chinese immigration because immigration power is federal); Henderson v. Mayor of New York, 92 U.S. 259, 270-274 (1875) (voiding New York law requiring vessel owners to give a bond for each foreign passenger because it undermined federal power "to regulate commerce with foreign nations"); and Smith v. Turner, 48 U.S. 283, 394 (1849) (voiding New York and Massachusetts laws imposing head taxes on landing foreign persons because they regulated foreign commerce).
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amended by House Bill 2162 (the "Act"). The Act cannot be lawfully enforced because: (1) it conflicts with a comprehensive statutory regime codified in a series of amendments to Title 8 of the United States Code, 8 U.S.C. §§1103(a)(10), 1252c(a), 1324©, and 1357(g); (2) it conflicts with 8 U.S.C. §§1304(e) and 1306(a) by adding to the penalties already established by Congress for violations of Sections 1304(e) and 1306(a); (3) it conflicts with federal due process requirements by mandating that "any person who is arrested shall have the person's immigration status determined before the person is released;" and, (4) when enforced against primary and secondary school students, it conflicts with the Supreme Court of the United States' opinion in Plyler v. Doe, 457 U.S. 202 (1983). First, the Act (at A.R.S. §§11-1051, 13-1509 and 13-3883(A)(5)) is preempted by 8 U.S.C. §1103(a)(10), because the Attorney General of the United States has not authorized state and local law enforcement officers to enforce federal immigration law after the Attorney General has determined that an "actual or imminent mass influx of aliens" at the border presents "urgent circumstances" requiring "immediate" assistance from state or local law enforcement authorities. Second, the Act (at A.R.S. §§11-1051, 13-1509 and 13-3883(A)(5)) is preempted by 8 U.S.C. §1252c(a) because Section 1252c(a) limits the authority of state and local law enforcement officers to arrest only those undocumented immigrants (1) who have already been convicted of a felony in the United States, (2) who have left or been deported from the United States after their conviction, and (3) whom federal immigration authorities have already determined have unlawfully reentered the United States. Third, the Act (at A.R.S. §13-1509) conflicts with 8 U.S.C. §§1304(e) and 1306(a) by making it a Class 1 misdemeanor to violate either Section 1304(e) or Section 1306(a). By adding to the specific penalties established by Congress for violations of Sections 1304(e) and 1306(a), the Act violates the Supremacy Clause of the United States Constitution. See, e.g., Hines v. Davidowitz, 312 U.S. at 60-62

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(1941) ("[n]o state can add to . . . the force and effect of . . . [a federal immigration] statute"). Fourth, the Act (at A.R.S. §§11-1051, 13-1509 and 13-3883(A)(5)) is preempted by 8 U.S.C. §1324©, because­except as provided by 8 U.S.C. §§1103(a)(10), 1252c(a), and 1357(g)­state and local law enforcement officials can only make arrests for violations of 8 U.S.C. §1324(a), which criminalizes smuggling, transporting, concealing, and harboring undocumented immigrants. Correspondingly, the Act (at A.R.S. §§13-2319 and 13-2929) is also preempted by 8 U.S.C. §1324(a) because the Act adds to the specific penalties established by Congress for violations of Section 1324(a) and thus violates the Supremacy Clause of the United States Constitution. See, e.g., Hines v. Davidowitz, 312 U.S. at 60-62 (1941) ("[n]o state can add to . . . the force and effect of . . . [a federal immigration] statute"). Fifth, the Act (at A.R.S. §§11-1051, 13-1509, 13-2319, 13-2929, and 133883(5)(A)) is also preempted by 8 U.S.C. §1357(g) because­except as provided by 8 U.S.C. §§1103(a)(10), 1252c(a) and 1324(c)­state and local law enforcement officials can enforce federal immigration law only (1) after executing a "memorandum of agreement" with the Secretary of the Department of Homeland Security, (2) after receiving a written certification of their "adequate training" regarding the enforcement of federal immigration law from the Department of Homeland Security, and (3) when subject to the supervision of federal immigration law enforcement authorities, all in accordance with all of the specific requirements of Section 1357(g)(1)-(3). Sixth, the Act (at A.R.S. §11-1051(B)) conflicts with basic due process requirements by mandating that anyone arrested for any reason in Arizona be detained until their "immigration status [is] determined." See generally, Mortimer v. Baca, 594 F. 3d 714, 722-723 (9th Cir. 2010), and Brass v. County of Los Angeles, 328 F.3d 1192, 1200 (9th Cir. 2003). Lastly, when enforced in primary and secondary schools, the Act (at A.R.S. §§11-1051 and 13-3883(A)(5)) violates the Supreme Court of the United States'

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opinion in Plyler v. Doe, 457 U.S. 202 (1982). This motion has been lodged since June 3, 2010. No response to the motion has been filed by any Defendant. The motion has been pending for 25 days. 3. Motion to Consolidate Cases. CD No. 20. Motion filed on June 4, 2010. Consolidation with Salgado, et al v. Brewer, et .al., CV 10-943 PHX SRB requested due to similarity of issues presented and common counsel for all plaintiffs. The City of Tucson also filed a request for consolidation on June 7, 2010. CD No. 23. Defendant Brewer filed a Response in Opposition to Plaintiff's request for consolidation on June 10, 2010. CD No. 29. The City of Phoenix has no objection to consolidation. CD No. 39. The City of Flagstaff, et. al., joined in the motion on June 23, 2010. Cd. 52. Defendant Brewer filed a response in opposition thereto on June 24, 2010. CD No. 57. This Motion has been pending for 21 days. B. Pending City of Tucson Motions. 1. Motion for Leave to Exceed Page Limitation. CD No. 21. Request filed on June 7, 2010. Plaintiff has no objection to request. CD No. Defendant Brewer has filed no response to the motion. Request has been pending for 21 days. 2. Motion for Preliminary Injunction. CD No. 22. This motion has been lodged since June 7, 2010. No response to the motion has been filed by Defendant Brewer. The motion has been pending for 21 days. 3. Motion to Consolidate Cases. CD No. 23. Motion filed on June 7, 2010. Consolidation with Salgado, et al v. Brewer, et .al., CV 10-943 PHX SRB requested. Plaintiff has no objection. Defendant Brewer has not filed a Response. But see CD No. 57. The motion has been pending for 21 days. 4. Joinder in Request for Evidentiary Hearing. CD No. 45. Filed on June 18, 2010. There has been no ruling on requests for an evidentiary hearing in connection with Plaintiffs (Escobar & City of Tucson) motions for preliminary injunction.

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C. Pending City of Flagstaff, et. al. Motions. 1. Motion to Intervene. CD Nos. 32-4. Motion, Notice filed and Complaint lodged on June 11, 2010. Plaintiff Escobar filed notice of no objection to intervention by the Cities on June 12, 2010. CD No. 38. Response to motion due June 28, 2010. 2. Joinder in Request for Consolidation. CD No. 52. Filed on June 23, 2010. There has been no ruling on requests for consolidation with Salgado. D. Defendant Brewer Motions. 1. Motion to Dismiss the State of Arizona. CD No. 54. Motion filed June 23, 2010. The City of Tucson named the State of Arizona as a defendant party in the cross-claim filed. See CD No. 9. Plaintiff Escobar did not name the State of Arizona as a defendant party. Response due July 26, 2010. 2. Motion to Dismiss First Amended Complaint (Escobar). CD No. 55. Motion filed June 23, 2010. Response due July 26, 2010. Plaintiff Escobar will file his response by July 12, 2010. 3. Motion to Dismiss Defendant Brewer in her Individual Capacity. CD No. 56. Motion filed June 23, 2010. Response due July 26, 2010. Plaintiff Escobar will file his response by July 12, 2010. Respectfully submitted this 28th day of June 2010. s/Richard M. Martinez, Esq. RICHARD M. MARTINEZ, ESQ. Stephen Montoya Augustine B. Jimenez III MONTOYA JIMENEZ, P.A. The Great American Tower 3200 North Central Avenue, Suite 2550 Phoenix, Arizona 85012 Counsel for Plaintiff

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Copy electronically transmitted this 28th day of June 2010 via the USDC Clerk of Court using the CM/ECF System for filing and transmittal to: Michael Rankin, City Attorney City of Tucson Michael W.L. McCory Principal Assistant City Attorney P.O. Box 2710 Tucson, Arizona 85726-7210 Attorneys for the City of Tucson Noel Fidel MARISCAL, WEEKS, McINTYRE & FRIEDLANDER, P.A. 2901 North Central Avenue, Suite 200 Phoenix, Arizona 85012 Jose de Jesus Rivera Robert Pastor Nathan Fidel HARALSON, MILLER, PITT FELDMAN & McNALLY 2800 North Central Avenue, Suite 840 Phoenix, Arizona 85006 Stanley Feldman Rebecca A. Reed Jeffery A. Imig HARALSON, MILLER, PITT FELDMAN & McNALLY 1 South Church Avenue, Suite 900 Tucson, Arizona 85701 David L. Abney LAW OFFICE OF DAVID ABNEY 414 East Southern Avenue Mesa, Arizona 85204 Counsel for Plaintiff-Intervenors John J. Bouma Robert A. Henry Joseph G. Adams SNELL & WILLMER, LLC One Arizona Center 400 East Van Buren Phoenix, Arizona 85004-2202 and //

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Joseph A. Kanfield Office of Governor Janice tK. Brewer 1700 West Washington, 9 h Floor Phoenix, Arizona 85007 Attorneys for Defendant Governor Janice K. Brewer s/Richard M. Martinez, Esq.

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