Escobar v. Brewer et al

Filing 86

RESPONSE to Motion re 71 MOTION for Preliminary Injunction filed by Jan Brewer. (Attachments: # 1 Exhibit A)(Bouma, John)

EXHIBIT A

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA _________________ The United States of America, ) ) Plaintiff, ) ) ) vs. ) The State of Arizona; and ) Janice K. Brewer, Governor ) of the State of Arizona, in ) her Official Capacity, ) ) Defendants. ) ______________________________) BEFORE:

CV10-1413-PHX-SRB Phoenix, Arizona July 22, 2010 1:28 p.m.

THE HONORABLE SUSAN R. BOLTON, JUDGE

REPORTER'S TRANSCRIPT OF PROCEEDINGS PRELIMINARY INJUNCTION HEARING

Official Court Reporter: Elizabeth A. Lemke, RDR, CRR, CPE Sandra Day O'Connor U.S. Courthouse, Suite 312 401 West Washington Street, SPC. 34 Phoenix, Arizona 85003-2150 [phone] Proceedings Reported by Stenographic Court Reporter Transcript Prepared by Computer-Aided Transcription

UNITED STATES DISTRICT COURT

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APPEARANCES For the Plaintiff: United States Department of Justice Civil Division By: Varu Chilakamarri, Esq. Dennis K. Burke, Esq. 20 Massachusetts Avenue NW Washington, DC 20001 United States Department of Justice Office of the Solicitor General By: Edwin Smiley Kneedler, Esq. 950 Pennsylvania Avenue, Room 5139 Washington, DC 20003 United States Department of Justice Civil Division - Federal Programs Branch By: Joshua Wilkenfeld, Esq. Arthur R. Goldberg, Esq. 20 Massachusetts Avenue Washington, DC 20530 United States Department of Justice Civil Rights Division By: Monica M. Ramirez, Esq. Stuart F. Delery, Esq. William H. Orrick, III, Esq. 950 Pennsylvania Avenue, NW Washington, DC 20530 For the Defendants: SNELL & WILMER LLP By: John J. Bouma, Esq. Joseph G. Adams, Esq. Robert A. Henry, Esq. Kelly Kszwienski, Esq. One Arizona Center 400 East Van Buren Phoenix, Arizona 85004 OFFICE OF GOVERNOR JANICE K. BREWER By: Joseph A. Kanefield, Esq. 1700 West Washington Street, 9th Floor Phoenix, Arizona 85007

UNITED STATES DISTRICT COURT

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MR. KNEEDLER:

That would be fine.

I would like to

reserve at least 15 minutes for rebuttal. THE COURT: Okay. I'll tell you when you've hit 45

MR. KNEEDLER:

Okay.

Thank you.

If I may begin with what I understand to be Your Honor's desire to know which specific sections of the Act are being challenged or are being sought to be enjoined here, I would like to just run through that to be clear. The United States challenges Sections 1, 2, 3, and 6. As to Section 4 of the Act, that made one amendment to a preexisting Section 2319 on transportation. challenged that in our Complaint. We

We are not today seeking a

preliminary injunction against the enforcement of Section 2319. We do have concerns that were explained in our Complaint and in our brief, but our prayer for relief here sought a preliminary injunction as to SB 1070 which just made a minor amendment, and we are not pressing a P.I. against Section 4 -- excuse me, against 2319 at this time. As I will -THE COURT: of questioning. MR. KNEEDLER: Well, I don't want to take it You just eliminated my whole first area

completely off the table, because for reasons similar to those UNITED STATES DISTRICT COURT

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with the transportation provision in Section 5, we have concerns about it, but also in the way it may tie into Section 2, which I will explain in terms of its administration. But in terms of specifically seeking an

injunction against Section 4, we are not seeking that right now. And with respect to Section 5, the employment provision in Section 5, there are actually three employment provisions in the part -- the first part of Section 5. We are

not challenging two of those, paragraphs A and B, because they do not turn on alienage for immigration status or past immigration conduct. Those are the ones that have to do with

soliciting workers in a way that would stop traffic or seeking to obtain employment in a way that would stop traffic. Those are immigration neutral and don't have immigration consequences, so our employment challenge is only to the one with respect to criminal sanctions for soliciting work or for working in the state. Now, before I go through the particular sections of the Act that we are challenging here, I did want to state generally the principles that we think control the decision in this case. And in describing these principles, I think I

would like to distinguish between our challenge to the employment provision in Section 5 and the rest of the Act. The rest of the Act, the provisions we are UNITED STATES DISTRICT COURT

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the other is -- the other states or local officers who are assisting in that are taking their guidance from the entity being assisted, the person with the substantive law -- in this case the INA -- is at issue. When you have the relationship between the United States and its state, that custom, I might say, in terms of who will take the lead, the person with the substantive law, is, of course, dictated by the Supremacy Clause. The United

States, in enforcing federal law, is responsible for enforcing it, setting priorities -THE COURT: Could you give me a concrete example of

what you're talking about in SB 1070? MR. KNEEDLER: THE COURT: general principles? MR. KNEEDLER: Well, our principal objection to -Yes.

Rather than just talking about it as

well, it's obviously the point about Section 3, but in Section 2, our principal objection to Section 2 is its mandatory nature. It establishes in Section 2(B) a mandatory

requirement that the -- whenever there's a stop, that the person's immigration status shall be checked or when there's an arrest, it shall be checked. That is backed up by paragraph A of Section 2 which is -- frankly, it goes beyond simply immigration status checks. It says that -- it requires state and local officers UNITED STATES DISTRICT COURT

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to enforce federal law or prohibits them from adopting a policy that would not enforce federal law to the fullest extent, and of course, that's reenforced by the private right of action later in the statute. THE COURT: Well, let's just take part of B, the part

that says everybody that's arrested shall have their immigration status checked. How is there a preemption issue? I mean, I

understand there may be other issues related to that, but the United States is arguing preemption. MR. KNEEDLER: THE COURT: Yes.

Where's the preemption if everybody who

is arrested for some crime has their immigration status checked? So that if it turns out that they're illegal and

they have been deported before, we can let ICE know. MR. KNEEDLER: Well, the problem comes from an

interference with the -- or the intrusion upon the overall discretionary operation of the enforcement. mentioned earlier -THE COURT: Well, can't ICE just say, "Okay. I know And as I

that person is here illegally, but you know, never been deported. We don't want them. No hold." But the problems actually start before And if I When you're done with them,

you can release them. MR. KNEEDLER: that though.

They start with the initial stop. UNITED STATES DISTRICT COURT

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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 UNITED STATES DISTRICT COURT s/Elizabeth A. Lemke ELIZABETH A. LEMKE, RDR, CRR, CPE 2010. I, ELIZABETH A. LEMKE, do hereby certify that I am duly appointed and qualified to act as Official Court Reporter for the United States District Court for the District of Arizona. I FURTHER CERTIFY that the foregoing pages constitute a full, true, and accurate transcript of all of that portion of the proceedings contained herein, had in the above-entitled cause on the date specified therein, and that said transcript was prepared under my direction and control. DATED at Phoenix, Arizona, this 23rd day of July, CERTIFICATE