Utah Coalition of La Raza et al v. Herbert et al

Filing 37

Plaintiff's MEMORANDUM in Support re 36 Plaintiff's MOTION for Preliminary Injunction filed by Plaintiffs Centro Civico Mexicano, Alicia Cervantes, Coalition of Utah Progressives, Eliana Larios, Latin American Chamber of Commerce, Milton Ivan Salazar-Gomez, Salt Lake City Brown Berets, Service Employees International Union, Utah Coalition of La Raza, Workers United Rocky Mountain Joint Board. (Attachments: # 1 Order granting leave to file over length memorandum, # 2 Index of exhibits in support of Plaintiffs' motion for preliminary injunction, # 3 Exhibit Exhibit 1 (HB 497), # 4 Exhibit Exhibit 2 (Archuleta Decl.), # 5 Exhibit Exhibit 3 (Medina Decl.), # 6 Exhibit Exhibit 4 (Gerkin Decl.), # 7 Exhibit Exhibit 5 (Cordova Decl.), # 8 Exhibit Exhibit 6 (Picardi Decl.), # 9 Exhibit Exhibit 7 (Ruiz Decl.), # 10 Exhibit Exhibit 8 (Cervantes Decl.), # 11 Exhibit Exhibit 9 (Larios Decl.), # 12 Exhibit Exhibit 10 (Gascon Decl.), # 13 Exhibit Exhibit 11 (Gonzalez Decl.), # 14 Exhibit Exhibit 12 (Burbank Decl.), # 15 Exhibit Exhibit 13 (Venegas Decl.), # 16 Exhibit Exhibit 14 (Arguetta Decl.), # 17 Exhibit Exhibit 15 (Lowenthal Decl. & Ex A), # 18 Exhibit Exhibit 16 (Miller Decl. & Exs A-B), # 19 Exhibit Exhibit 17 (Fernandez Decl. & Exs A-G), # 20 Exhibit Exhibit 18 (Fernandez Decl., Exs H-K), # 21 Exhibit Exhibit 19 (Fernandez Decl., Exs L-O))(Goddard, Darcy)

Exhibit L

Case 2:10-cv-01413-NVW Document 6-5

Filed 07/06/10 Page 2 of 11

Case 2:10-cv-01413-NVW Document 6-5

Filed 07/06/10 Page 3 of 11

Case 2:10-cv-01413-NVW Document 6-5

Filed 07/06/10 Page 4 of 11

Case 2:10-cv-01413-NVW Document 6-5

Filed 07/06/10 Page 5 of 11

Case 2:10-cv-01413-NVW Document 6-5

Filed 07/06/10 Page 6 of 11

Case 2:10-cv-01413-NVW Document 6-5

Filed 07/06/10 Page 7 of 11

Case 2:10-cv-01413-NVW Document 6-5

Filed 07/06/10 Page 8 of 11

Case 2:10-cv-01413-NVW Document 6-5

Filed 07/06/10 Page 9 of 11

Case 2:10-cv-01413-NVW Document 6-5

Filed 07/06/10 Page 10 of 11

Case 2:10-cv-01413-NVW Document 6-5

Filed 07/06/10 Page 11 of 11

Exhibit M

Case 2:10-cv-01413-NVW Document 6-1

Filed 07/06/10 Page 2 of 29

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
THE UNITED STATES OF AMERICA,
Plaintiff,
Civil Action No.
v.
THE STATE OF ARIZONA, et al.,
Defendants.

DECLARATION OF JAMES B. STEINBERG
Pursuant to 28 U.S.C. 1746, I, James B. Steinberg, declare and state as follows:
1. I am Deputy Secretary of State. I make this declaration based on my personal
knowledge and on information I have received in my official capacity.
2. I have served as Deputy Secretary of State since January 28, 2009.
Immediately prior to joining the Department of State, I served as Dean of the Lyndon B.
Johnson School of Public Affairs at the University of Texas at Austin. From 1993 to
1994, I served as Deputy Assistant Secretary of State for analysis in the Bureau of
Intelligence and Research, and from 1994 to 1996 as Director of the Department of
State's Policy Planning Staff. From December 1996 to August 2000, I served as Deputy
National Security Adviser on the staff of the National Security Council. From 20012005, I was the President and Director of Foreign Policy Studies at the Brookings
Institution in Washington, D.C.
3. In my capacity as Deputy Secretary of State, I assist the Secretary of State in
1

Case 2:10-cv-01413-NVW Document 6-1

Filed 07/06/10 Page 3 of 29

the formulation and conduct of U.S. foreign policy and in giving general supervision and
direction to all elements of the Department. I have delegated authority to act on behalf of
the Secretary of State, and assist the Secretary in representing the United States at
international meetings and performing other representational assignments with senior
foreign government officials.
4. I have read and am familiar with Arizona law S.B. 1070. I am also familiar
with the reactions of foreign governments to the law.
5. As I explain further below, U.S. federal immigration law incorporates
foreign relations concerns by providing a comprehensive range of tools for regulating
entry and enforcement. These may be employed with sensitivity to the spectrum of
foreign relations interests and priorities of the national government. By contrast, Arizona
law S.B. 1070 establishes a single, inflexible, state-specific immigration policy based
narrowly on criminal sanctions that is not responsive to these concerns, and will
unnecessarily antagonize foreign governments. If allowed to enter into force, S.B. 1070
would result in significant and ongoing consequences for U.S. foreign relations.

6. Through the Immigration and Nationality Act ("INA") and other federal
laws, the national government has developed a comprehensive regime of immigration
regulation, administration, and enforcement, in which the Department of State
participates. This regime is designed to accommodate complex and important U.S.
foreign relations priorities that are implicated by immigration policy -- including
humanitarian and refugee protection, access for diplomats and official foreign visitors,
national security and counterterrorism, criminal law enforcement, and the promotion of
2

Case 2:10-cv-01413-NVW Document 6-1

Filed 07/06/10 Page 4 of 29

U.S. human rights policies abroad. To allow the national government flexibility in
addressing these concerns, the INA provides the Executive Branch with a range of
regulatory options governing the entry, treatment and departure of aliens. Moreover,
foreign governments' reactions to immigration policies and the treatment of their
nationals in the U.S. impacts not only immigration matters, but also any other issue in
which we seek cooperation with foreign states, including international trade, tourism, and
security cooperation. These foreign relations priorities and policy impacts are ones to
which the national government is sensitive in ways that individual states are not.
7. By rigidly imposing a singular, mandatory form of criminal immigration
enforcement through mandatory verification of immigration status and criminal
enforcement of alien registration, S.B. 1070 deviates from the national government's
policy of calibrated immigration enforcement. The Arizona law also uniquely burdens
foreign nationals by criminalizing work and travel beyond the restrictions imposed by
U.S. law. These multiple, interlinking procedural and criminal provisions, adopted in
order to enforce an explicit state policy of "attrition through enforcement," all manifest
Arizona's intention to globally influence immigration enforcement. S.B. 1070 thereby
undermines the diverse immigration administration and enforcement tools made available
to federal authorities, and establishes a distinct state-specific immigration policy, driven
by an individual state's own policy choices, which risks significant harassment of foreign
nationals, is insensitive to U.S. foreign affairs priorities, and has the potential to harm a
wide range of delicate U.S. foreign relations interests.
8. Indeed, although it was only adopted in April 2010, is the law of only one
3

Case 2:10-cv-01413-NVW Document 6-1

Filed 07/06/10 Page 5 of 29

state, and has not yet gone into effect, Arizona law S.B. 1070 already has provoked
significant criticism in U.S. bilateral relationships with many countries, particularly in the
Western Hemisphere, as well as in a variety of regional and multilateral bodies. Foreign
governments and international bodies have expressed significant concerns regarding the
potential for discriminatory treatment of foreign nationals posed by S.B. 1070, among
other issues.
9. By deviating from federal immigration enforcement policies as well as
federal rules governing work and travel by foreign nationals, S.B. 1070 threatens at least
three different serious harms to U.S. foreign relations. First, S.B. 1070 risks reciprocal
and retaliatory treatment of U.S. citizens abroad, whom foreign governments may subject
to equivalently rigid or otherwise hostile immigration regulations, with significant
potential harm to the ability of U.S. citizens to travel, conduct business, and live abroad.
Reciprocal treatment is a significant concern in immigration policy, and U.S. immigration
laws must always be adopted and administered with sensitivity to the potential for
reciprocal or retaliatory treatment of U.S. nationals by foreign governments.
10. Second, S.B. 1070 necessarily antagonizes foreign governments and their
populations, both at home and in the U.S., likely making them less willing to negotiate,
cooperate with, or support the United States across a broad range of important foreign
policy issues. U.S. immigration policy and treatment of foreign nationals can directly
affect the United States' ability to negotiate and implement favourable trade and
investment agreements, to coordinate disaster response arrangements, to secure
cooperation on counterterrorism or drug trafficking operations, and to obtain cooperation
4

Case 2:10-cv-01413-NVW Document 6-1

Filed 07/06/10 Page 6 of 29

in international bodies on priority U.S. goals such as nuclear non-proliferation, among
other important U.S. interests. The law has already complicated our efforts to pursue
broader U.S. priorities. S.B. 1070's impact is likely to be most acute, moreover, among
our many important democratic allies, as those governments are most likely to be
responsive to the concerns of their constituents and the treatment of their own nationals
abroad.
11. Third, S.B. 1070 threatens to undermine our standing in regional and
multilateral bodies that address migration and human rights matters and to hamper our
ability to advocate effectively internationally for the advancement of human rights and
other U.S. values. Multilateral, regional and bilateral engagement on human rights issues
and the international promotion of the rule of law is a high priority for the United States,
and for this Administration. Consistency in U.S. practices at home is critical for us to be
able to argue for international law consistency abroad. By deviating from national policy
in this area, S.B. 1070 may place the U.S. in tension with our international treaty
obligations and commitments and compromise our position in bilateral, regional and
multilateral conversations regarding human rights.
12. In all activities relating to U.S foreign relations, including immigration, the
United States is constantly engaged in weighing multiple competing considerations and
choosing among priorities in order to develop an overall foreign policy strategy that will
most effectively advance U.S. interests. The United States likewise is constantly seeking
the support of foreign governments through a delicately-navigated balance of interests
across the entire range of U.S. national policy goals. Only the national government has
5

Case 2:10-cv-01413-NVW Document 6-1

Filed 07/06/10 Page 7 of 29

the information available to it to be able to appropriately evaluate these choices on a
continuing basis in response to fluctuating events on the international stage. Because of
the broad-based and often unintended ways in which U.S. immigration policies can
adversely impact our foreign relations, it is critically important that national immigration
policy be governed by a uniform legal regime, and that decisions regarding the
development and enforcement of immigration policy be made by the national
government, so that the United States can speak to the international arena with one voice
in this area.
13. While isolated state enactments that incidentally touch on immigration may
not implicate foreign policy concerns (or may implicate them only slightly), Arizona's
law more directly and severely impacts United States foreign policy interests by
establishing an alternative immigration policy of multiple, interlinking procedural and
criminal provisions, all of which manifest Arizona's intention to globally influence
immigration enforcement. As I understand it, Arizona's effort to set its own immigration
policy is markedly different from instances in which states and localities assist and
cooperate with the federal government in the enforcement of federal immigration laws.
When states and localities work in concert with the federal government, the likelihood for
conflicts with U.S. foreign policy interests is greatly diminished. When states and
localities assist the federal government, and take measures that are in line with federal
priorities, then the United States retains its ability to speak with one voice on matters of
immigration policy, which in turn enables it to keep control of the message it sends to

6

Case 2:10-cv-01413-NVW Document 6-1

Filed 07/06/10 Page 8 of 29

foreign states and to calibrate responses as it deems appropriate, given the ever-changing
dynamics of foreign relations.
14. By contrast, by pursuing a singular policy of criminal enforcement-at-allcosts through, among other things, imposing an extraordinary mandatory verification
regime coupled with what is effectively state criminalization of unlawful presence, S.B.
1070 is likely to provoke retaliatory treatment of U.S. nationals overseas, weaken public
support among key domestic constituencies abroad for cooperating with the U.S, and
endanger our ability to negotiate international arrangements and to seek bilateral, regional
or multilateral support across a range of economic, human rights, security, and other nonimmigration concerns, and be a source of ongoing criticism in international fora.
Arizona's unprecedented effort to set its own, contrary immigration policy predictably
conflicts with U.S. foreign policy interests and with the United States' ability to speak
with one voice.
I.

U.S. Immigration Law Incorporates Foreign Relations Concerns
15. The Secretary of State is charged with the day-to-day conduct of U.S.

foreign affairs, as directed by the President, and exercises authority derived from the
President's powers to represent the United States under Article II of the Constitution and
from statute. As part of these responsibilities, the Department of State plays a substantial
role in administering U.S. immigration law and policy, as well as in managing and
negotiating its foreign relations aspects and impact. Within the Department of State, the
Bureau of Consular Affairs has responsibility for the adjudication and issuance of
passports, visas, and related services; protection and welfare of U.S. citizens and interests
7

Case 2:10-cv-01413-NVW Document 6-1

Filed 07/06/10 Page 9 of 29

abroad; third-country representation of interests of foreign governments; and the
determination of nationality of persons not in the United States. See 1 Foreign Affairs
Manual 250. 1 Several other bureaus within the Department of State, including the Bureau
of Population, Refugees and Migration; the Bureau of Human Rights, Democracy and
Labor; the Bureau of International Organization Affairs; and all regional bureaus are
routinely engaged in negotiations and multilateral diplomatic and policy work in global,
regional, and bilateral forums on migration issues. Collectively, the Department of State
promotes U.S. policies internationally in this area and bears the burden of managing
foreign governments' objections to the treatment of their nationals in the United States.
16. U.S. law, and particularly Section 104 of the INA, as amended by the
Homeland Security Act, invests the Secretary of State with specific powers and duties
relating to immigration and nationality. A 2003 Memorandum of Understanding Between
the Secretaries of State and Homeland Security Concerning Implementation of Section
428 of the Homeland Security Act of 2002, ¶ 1(b), provided that the Secretary of
Homeland Security would establish visa policy, review implementation of that policy,
and provide additional direction as provided in the MOU, while respecting the
prerogatives of the Secretary of State to lead and manage the consular corps and its
functions, to manage the visa process, and to execute the foreign policy of the United
States.
The Secretary of State's authorities under the INA are found in various provisions,
including §§ 104, 105, 349(a)(5), 358, and 359 (8 U.S.C. §§ 1104, 1105, 1481(a)(5),
1501, and 1502) (visa and other immigration-related laws). The Department also
exercises passport-related authorities, including those found at 22 U.S.C. §§ 211a, et seq.
1

8

Case 2:10-cv-01413-NVW Document 6-1

Filed 07/06/10 Page 10 of 29

17. Our immigration laws, including those administered by the Department of
State, are crafted to incorporate and accommodate a wide range of sensitive U.S. foreign
relations concerns. Our visa regime, for example, both embodies and permits
consideration of U.S. diplomatic, human rights, and other foreign relations interests. To
give but a few examples, the INA authorizes the Secretary of State to help determine
which diplomats are entitled to diplomatic visas to represent their countries in the United
States. INA § 101(a)(15)(A). INA § 243(d) authorizes the Secretary of State to
determine the scope of visa sanctions that will be imposed on countries, upon
notification from DHS that such countries have denied or unreasonably delayed
accepting their nationals back from the United States. The INA also authorizes the
Secretary of State to deny visas to aliens whose entry or proposed activity in the United
States "would have potentially serious adverse foreign policy consequences." See INA §
212(a)(3)(C). During the Honduran constitutional crisis in 2009, the State Department
imposed visa restrictions and revoked several visas under this authority to encourage the
de facto government to enter into good faith negotiations with deposed President Zelaya.
Likewise, under the auspices of INA § 212(f) and Presidential Proclamation 7750, the
State Department recently revoked several visas for officials who engaged in or benefited
from corruption, in an effort to bring pressure to bear on other countries to investigate
and eliminate corruption by their government officials.
18. Further, our law provides for the denial of U.S. visas on security and
related grounds to aliens who are anticipated to violate U.S. law following entry into the
United States and those with a broad range of ties to terrorism, including those with
9

Case 2:10-cv-01413-NVW Document 6-1

Filed 07/06/10 Page 11 of 29

certain ties to groups that a consular officer or the Secretary of State reasonably believes
has engaged in terrorist activity, as defined in the INA, § 212(a)(3)(B). Our visa laws
also deny admission and make subject to removal aliens who participated in human rights
violations such as genocide or torture. 2 And even the general authority to issue visas
requires Department officials to monitor the political, legal, economic, and cultural
developments in foreign countries for matters directly relevant to the full range of visa
ineligibilities (e.g., economic, demographic, political, ethnicity, criminal, and security
issues).
19. Finally, under section 244 of the INA, 8 U.S.C. § 1254a, U.S. law also
provides for temporary protected status ("TPS"), a temporary immigration status which
permits eligible foreign nationals who are already present in the United States to remain
in the United States and obtain employment authorization. TPS is available to eligible
foreign nationals who, due to armed conflict, an environmental disaster, or extraordinary
and temporary conditions in their states of nationality, may face risk to personal safety if
returned to that state while such conditions persist. Recent examples include the
designation this year of Haiti for TPS following the devastating earthquake in that
country, and the extension of Sudan's designation as a result of ongoing armed conflict.
DHS administers the program and, pursuant to the statute, routinely consults with the
State Department for its views on issues relevant to determinations whether to designate
or continue to designate a foreign state or part thereof for TPS, including whether the
8 U.S.C. §§ 1182(a)(2)(G), 1182(a)(3)(E), and 1182(a)(3)(G) (inadmissible); 8 U.S.C.
§§ 1227(a)(4)(D)-(4)(F) (removable).

2

10

Case 2:10-cv-01413-NVW Document 6-1

Filed 07/06/10 Page 12 of 29

statutory criteria are satisfied in each case. TPS furthers certain U.S. foreign policy
interests by facilitating provision of humanitarian protection to eligible persons who
might otherwise be subject to removal to their home countries in times of armed conflict,
environmental disasters, or other extenuating and temporary conditions. The impact of
the program can be significant: DHS estimated that 100,000 to 200,000 individuals were
eligible for TPS under the Haiti designation.
II.

U.S. Immigration Practices Significantly Impact Our Foreign Relations
20. In addition to incorporating foreign relations concerns, the United States'

choices with respect to immigration policies and practices also have a significant impact
on our foreign relations. Again using State Department visa processes as an example, the
process for visa issuance and denial is of great interest to foreign governments, owing to
the direct impact the visa process has on the affairs of their own nationals. Similarly,
domestic processes for arrest, detention, and removal of aliens and other aspects of their
treatment in the U.S. are of great interest to foreign governments because of the impact
these processes have on foreign nationals and their families. Aspects of U.S. immigration
laws, such as the prohibitions on removal of an individual to a country where it is more
likely than not that he would be tortured, and on removal of a refugee to a country where
his life or freedom would be threatened on account of his race, religion, nationality,
membership in a particular social group, or political affiliation, implement U.S. treaty
obligations under the Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, and the 1967 Protocol to the U.N. Convention
relating to the Status of Refugees.
11

Case 2:10-cv-01413-NVW Document 6-1

Filed 07/06/10 Page 13 of 29

21. Given the diplomatic, legal, and policy sensitivities surrounding immigration
issues, even small changes in U.S. immigration laws, policies, and practices can provoke
a substantial international reaction -- both in the immigration context and across
American diplomatic concerns. It is for this reason that, although federal law recognizes
that states and localities may play beneficial roles in assisting in the enforcement of
federal immigration law, see 8 U.S.C. § 1357(g)(10), the authority to directly regulate
immigration has been assigned exclusively to the federal government.
22. Indeed, countries routinely raise concerns about such changes in bilateral,
regional and multilateral arenas. The exercise of immigration functions can quickly
provoke a significant bilateral or multilateral problem that harms U.S. interests if handled
without appropriate consideration of relevant foreign policy impacts. The Department of
State is often in the position of interacting directly with foreign governments in managing
the impact of these bilateral problems. For example, decisions regarding the issuance of
individual visas to controversial figures, such as leaders of foreign governments with
which the United States experiences significant diplomatic tensions, prominent
individuals with checkered pasts, and delegates to international bodies, require a full
review of U.S. government equities, including foreign policy interests and consideration
of international treaties to which the United States is a party. Requirements that a
consular officer adjudicating a visa application obtain a Security Advisory Opinion
("SAO") or Advisory Opinion ("AO") can significantly delay visa processing and create
tension, particularly, but not only, when the applicant is a foreign government official or
other high profile individual. The broad terrorism-related provisions in the INA have also
12

Case 2:10-cv-01413-NVW Document 6-1

Filed 07/06/10 Page 14 of 29

been criticized by foreign governments and officials and raised as obstacles to bilateral
cooperation.
A. Reciprocal Harm to U.S. Citizens Abroad
23. Specifically, U.S. immigration policies and practices can have immediate
and substantial impacts on the treatment of U.S. nationals abroad. INA § 221(c), for
example, requires the length of validity for visas to be reciprocal as far as practicable.
Even relatively non-controversial issues such as the period of validity of a visa and the
fees charged are the subject of discussion, negotiation, and agreement among countries
and have a direct impact on how other governments treat U.S. citizens who wish to travel
abroad. For example, in the recent past, some countries have responded to changes in
U.S. visa charges by significantly raising the entry fees charged to U.S. nationals by those
countries. The Enhanced Border Security and Visa Entry Reform Act of 2002, which
requires the fingerprinting of foreign nationals for the visa application process and in
order to enter the United States, was the subject of much criticism by other governments
and caused some governments to consider taking reciprocal retaliatory action against
U.S. nationals. For example, Brazil reserves the right to require a thumbprint of
Americans upon entry into Brazil.
24. In the area of consular services, how we treat foreign nationals who are
present in the United States likewise can impact how a foreign government treats U.S.
citizens present in its country. For example, the Department of State proactively takes a
number of steps to ensure U.S. compliance with our obligation under Article 36 of the
Vienna Convention on Consular Relations ("VCCR"), which requires that all foreign
13

Case 2:10-cv-01413-NVW Document 6-1

Filed 07/06/10 Page 15 of 29

nationals in custody in the United States be informed of their option to request to meet
with a consular official. The Department does so in important part in order to increase
the likelihood that such notification and consular access are provided to U.S. citizens who
are detained abroad.
25. Accordingly, the State Department not only considers carefully the foreign
policy goals and consequences of its immigration-related decisions, but also the potential
impact of those decisions on the reciprocal treatment of U.S. citizens by the relevant
foreign government.
B. Impact in Regional and Multilateral Fora
26. The situation of foreign nationals within a country, particularly questions
relating to the protection of the human rights of migrants, regardless of their immigration
status, is a matter of international concern and is addressed by international treaties. The
United Nations and regional bodies such as the Organization of American States
("OAS"), a regional intergovernmental organization comprised of all thirty-five States of
the Americas, have established institutions and mechanisms for the discussion,
examination, and oversight of international migration policy. As a matter of longstanding
human rights and humanitarian policy, the United States government strongly supports
international efforts to protect migrants, who are typically especially vulnerable to
mistreatment and abuse. Accordingly, the United States as a matter of its foreign policy
engages actively in regional and multilateral human rights fora, through which the United
States promotes respect for human rights (including the human rights of migrants), the
rule of law, and respect for other U.S. values.
14

Case 2:10-cv-01413-NVW Document 6-1

Filed 07/06/10 Page 16 of 29

27. As part of the international migration framework, the United States has
ratified several global human rights treaties which impose obligations on States Parties
regarding the rights of persons, including migrants, within their territories, often without
regard to the legal status of a non-national within a State's territory. Such treaties include
the International Covenant on Civil and Political Rights, the International Convention on
the Elimination of All Forms of Racial Discrimination, and the Convention Against
Torture. The United States is party to law enforcement conventions that address
multilateral cooperation on immigration issues and the rights of certain migrants,
including the United Nations Convention Against Transnational Organized Crime and
two of its supplementing Protocols: the Protocol Against the Smuggling of Migrants by
Land, Sea and Air and the Protocol to Prevent, Suppress and Punish Trafficking in
Persons, Especially Women and Children. These protocols require States Parties to
protect the rights of smuggled aliens. Other relevant conventions include the 1967
Protocol relating to the Status of Refugees, the Vienna Convention on Consular
Relations, and various bilateral Friendship, Commerce and Navigation treaties creating
reciprocal treatment obligations toward foreign nationals.
28. Many UN human rights conventions, including those referenced above,
establish expert treaty bodies which are responsible for monitoring compliance by
reviewing and commenting upon reports from States Parties regarding implementation of
their treaty obligations. These expert bodies routinely address immigration and
migration-related issues, and criticize states, including the United States, for laws and
policies which, in their view, raise questions about unfair, arbitrary, or racially
15

Case 2:10-cv-01413-NVW Document 6-1

Filed 07/06/10 Page 17 of 29

discriminatory treatment of migrants, or other human rights concerns. Such criticisms are
public, are often the subject of further discussion in UN bodies, and may be raised
directly with the United States in bilateral exchanges with foreign countries.
29. Additionally, the United Nations General Assembly and other UN organs
routinely adopt resolutions regarding the human rights and protection of migrants. The
UN has also established "special mechanisms" or "independent experts," including
special rapporteurs, that investigate and issue reports and make recommendations
regarding the human rights of migrants.
30. At the regional level, the OAS has several organs in which issues related to
migration policy and the treatment of migrants are raised. Like the UN General
Assembly, the OAS General Assembly adopts resolutions on a range of topics including
the human rights of migrants. Additionally, within the OAS system, the Inter-American
Commission on Human Rights ("IACHR"), which is based in Washington, D.C.,
promotes respect for human rights, including by issuing statements and reports and
holding hearings and adopting findings in response to individual petitions regarding a
breach of a Member State's human rights commitments. The IACHR often expresses
concern about the treatment of migrants by OAS Member States, including the United
States. For example, in addition to recent hearings related to the enforcement of U.S.
immigration laws and policies, the IACHR is in the process of preparing a thematic
report which we understand will address issues related to enforcement of U.S.
immigration laws and policies.
31. Other intergovernmental organizations and international bodies, not

16

Case 2:10-cv-01413-NVW Document 6-1

Filed 07/06/10 Page 18 of 29

specifically focused on issues related to the human rights of migrants, also provide
venues in which States address issues related to migration generally, and which often
include issues related to the treatment of migrants within a State's domestic legal and
policy framework. These include the International Organization for Migration, the
Regional Conference on Migration (Western Hemisphere), the UN High Level Dialogue
on International Migration and Development, the Global Forum on Migration and
Development, the International Labor Organization, the UN Office for Drug Control and
Crime Prevention, and others.
32. As both a matter of international law and practice, the federal government
is held accountable internationally for the actions of state and local authorities regarding
our treatment of foreign nationals. International bodies and foreign governments do not
typically distinguish between the conduct of the national government and the conduct of
an individual state within a federal system. This is starkly evidenced by the United
States' experience in cases where state and local government authorities have failed to
comply with U.S. obligations under the VCCR to provide consular notification to all
foreign nationals in U.S. custody. Failure to provide such notice by state officials has led
to three suits by Paraguay, Germany and Mexico against the United States in the
International Court of Justice, an advisory opinion sought by Mexico in the InterAmerican Court of Human Rights, a petition against the United States in the InterAmerican Commission on Human Rights, and bilateral complaints by numerous foreign
governments.
33. The United States takes seriously allegations that it has failed to adhere to
17

Case 2:10-cv-01413-NVW Document 6-1

Filed 07/06/10 Page 19 of 29

its international law obligations and foreign policy commitments and engages in these
fora to address such claims. Although the government is fully prepared to defend U.S.
practices against unjustified claims of human rights shortcomings, criticism from an
international body over immigration human rights issues can directly undercut the
credibility of U.S. efforts to advance human rights and can lead to significant diplomatic
obstacles — both on immigration issues of bilateral concern and on other interests that
might be the subject of diplomatic negotiations. As discussed below, in this context, S.B
1070's sweep into subjects left properly to federal direction and control subjects the
United States to this criticism while denying the United States the tools to decide for
itself whether and how to adjust such policies. The federal government should have to
make its defenses or consider appropriate modifications only with regard to policies that
are adopted through a considered process that reflects the interests of all the American
people, not with regard to the views of one state.
III. Arizona Law S.B. 1070's Harm to U.S. Foreign Relations
34. Given the diplomatic and foreign relations sensitivities surrounding U.S.
immigration policy generally, and the significant foreign relations consequences that can
result from even small changes in these policies, and given that S.B. 1070 purports to
impose Arizona's own immigration policy of "attrition through enforcement" through,
among other provisions, mandatory verification of immigration status and state criminal
enforcement of alien registration, it is not surprising that S.B. 1070 already has provoked
significant international controversy. The law elevates the criminal aspect of federal
immigration enforcement above all others, threatening state criminal penalties for
18

Case 2:10-cv-01413-NVW Document 6-1

Filed 07/06/10 Page 20 of 29

violations of federal immigration law. United States immigration law — and our uniform
foreign policy regarding the treatment of foreign nationals — has been that the unlawful
presence of a foreign national, without more, ordinarily will not lead to that foreign
national's criminal arrest or incarceration, but instead to civil removal proceedings. This
is a policy that is understood internationally and one which is both important to and
supported by foreign governments. S.B. 1070 violates this aspect of American
immigration law and foreign policy by effectively allowing for criminal sanctions based
on unlawful presence alone. It deviates from federal law by imposing mandatory
verification of immigration status and criminal enforcement of alien registration, and by
criminalizing work and travel by foreign nationals beyond the restrictions imposed by
U.S. law. In so doing, the law has already provoked significant negative reaction in U.S.
bilateral relationships and in regional and multilateral fora.
35. Such criticism is not without costs. To the contrary, the criticism provoked
by the Arizona law threatens at least three direct harms to U.S. foreign relations. As
noted above, such a change in immigration policy invariably risks the adoption of
harmful reciprocal policies toward U.S. nationals by foreign governments. It also
undermines the willingness of foreign states to engage bilaterally and multilaterally with
the United States to advance U.S. foreign policy goals, and it erodes the credibility of
United States efforts in regional and multilateral intergovernmental bodies to advance
human rights.
A. Impact on Bilateral Relationships
36. S.B. 1070 has unquestionably generated negative reaction that has damaged
19

Case 2:10-cv-01413-NVW Document 6-1

Filed 07/06/10 Page 21 of 29

the public image of the United States and has thereby undermined the United States'
ability to pursue various diplomatic objectives. The law has provoked numerous public
criticisms by governments with which the United States maintains important and
sensitive diplomatic relations.
37. In Mexico, S.B. 1070 has precipitated a sharply negative public perception
of the attitude toward immigrants in Arizona (and potentially by extension elsewhere in
the U.S.), which in turn has negatively affected diplomatic processes with Mexican
government officials. The Mexican President, Mexican Cabinet Members, the Mexican
Congress, and opinion makers in Mexico all have reacted strongly in response to the law.
These voices have also expressed concern about the safety of Mexicans in Arizona.
38. During his recent visit to Washington, for example, Mexico's President
Calder& pointedly criticized the law, both during his joint press conference with
President Obama on May 19 and in his address to the United States Congress on May 20.
Speaking to the Congress, he emphasized the need for comprehensive immigration
reform and focused attention specifically on the Arizona law:
I am convinced that comprehensive immigration reform is also crucial to
secure our common border. However, I strongly disagree with the recently
adopted law in Arizona. It is a law that not only ignores a reality that
cannot be erased by decree but also introduces a terrible idea: using racial
profiling as a basis for law enforcement. And that is why I agree with
President Obama, who said the new law "carries a great amount of risk
when core values that we all care about are breached." I want to bridge the
gap of feelings and emotions between our countries and our peoples. I
believe in this. I believe in communications, I believe in cooperation, and
we together must find a better way to face and fix this common problem.

39. President CalderOn's criticisms reflect how negatively S.B. 1070 has
20

Case 2:10-cv-01413-NVW Document 6-1

Filed 07/06/10 Page 22 of 29

affected public attitudes in Mexico toward the United States. A recent poll in Mexico by
the Pew Global Attitudes Project, for example, indicates that whereas before the adoption
of the Arizona law 62 percent of those polled had a favorable attitude toward the United
States and only 27 percent had an unfavorable attitude, following its adoption only 44
percent had a favorable attitude toward the U.S., while 48 had an unfavorable attitude.
See The Arizona Effect on U.S. Favorability in Mexico, available at www.pewglobal.org .
The poll demonstrates that an effort to establish a divergent immigration policy by a
single state, which has not yet even gone into effect, nevertheless can significantly harm
foreign attitudes toward the United States as a whole. Such effect in turn can seriously
undermine support among important Mexican constituencies for Mexico's cooperation
with the United States.
40. Bolivia's President Morales, Ecuador's President Correa, El Salvador's
President Funes and Guatemala's President Colom have also voiced public criticism of
the Arizona law. Other governments, including that of Brazil, Colombia, Honduras, and
Nicaragua have issued statements criticizing the law. Additionally, the National
Assemblies in Ecuador and Nicaragua, and the Central American Parliament based in
Guatemala, have adopted critical resolutions or other statements. S.B. 1070 has also been
raised with high level U.S. officials by various foreign states on a number of occasions in
nonpublic settings.
41. Concrete steps also have been taken in response to S.B. 1070. For example,
Mexico and El Salvador have issued travel warnings or alerts to their citizens traveling in
the United States.
21

Case 2:10-cv-01413-NVW Document 6-1

Filed 07/06/10 Page 23 of 29

42. S.B. 1070 also already has negatively affected other American interests.
As a direct result of the Arizona law, at least five of the six Mexican Governors invited to
travel to Phoenix to participate in the September 8-10, 2010 U.S.-Mexico Border
Governors' Conference have declined the invitation. Although not a formal binational
government-to-government meeting, this annual conference is an important venue for
improving binational coordination of border issues that inherently involve federal, state,
and other levels of government. It is normally attended by most of the 10 U.S. and
Mexican state governors, as well as some federal U.S. and Mexican government
representatives who serve as technical advisors.
43. The Mexican Senate stated it would postpone review of a U.S.-Mexico
agreement on emergency management cooperation to address natural disasters and
accidents signed on October 23, 2008 because of the new Arizona law.
44. Negative effects such as these are only likely to intensify if S.B. 1070 goes
into effect.
B. Impact on Regional and Multilateral Relationships
45. The Arizona legislature's adoption of S.B. 1070 also prompted harsh
criticism of the law in human rights forums, demonstrating in practical terms the negative
consequences that unilateral action by a single U.S. state can have on U.S. foreign policy
interests. The law has diminished our credibility in advocating for human rights
compliance abroad by others, and if allowed to go into effect, will continue to do so.
46. A number of U.N. and regional intergovernmental organizations and bodies,

22

Case 2:10-cv-01413-NVW Document 6-1

Filed 07/06/10 Page 24 of 29

including those whose mandates explicitly include the promotion of human rights, have
criticized S.B. 1070. For example, on May 10, 2010, six UN human rights experts (the
Special Rapporteur on the Human Rights of Migrants, the Special Rapporteur on
Contemporary Forms of Racism, Racial Discrimination, Xenophobia and Related
Intolerance, the Special Rapporteur on the Situation of Human Rights and Fundamental
Freedoms of Indigenous People, the Independent Expert in the Field of Cultural Rights,
the Special Rapporteur on the Right to Education, and the Independent Expert on
Minority Issues) issued a joint statement specifically addressing the Arizona law:
A disturbing pattern of legislative activity hostile to ethnic minorities and
immigrants has been established with the adoption of an immigration law
[in Arizona] that may allow for police action targeting individuals on the
basis of their perceived ethnic origin.... In Arizona, persons who appear to
be of Mexican, Latin American, or indigenous origin are especially at risk
of being targeted under the law.
The UN independent experts stressed that "legal experts differ on the
potential effects of recent amendments to the immigration law that relate to
the conditions for the official detention of suspected illegal aliens," and
expressed concern about the "vague standards and sweeping language of
Arizona's immigration law, which raise serious doubts about the law's
compatibility with relevant international human rights treaties to which the
United States is a party."
47. Additionally, in June 2010, at the 14 th session of the UN Human Rights
Council, the membership body within the United Nations system charged with promoting
human rights and addressing situations of human rights violations, many countries
criticized laws that criminalize irregular migration and discriminatory practices in the
enforcement of immigration laws, and several states explicitly singled out S.B. 1070 for
criticism in their plenary remarks.
23

Case 2:10-cv-01413-NVW Document 6-1

Filed 07/06/10 Page 25 of 29

48. Within the Inter-American regional system, on April 28, 2010, OAS
Secretary General Jose Miguel Insulza stated that S.B. 1070 "is an issue of concern to all
citizens of the Americas" and warned against the possibility of creating an environment
of discrimination in the United States, in light of its significant Hispanic population. He
added that "the rich tradition we all admire, of recognizing immigrants in the United
States has been harmed, undermined." He recognized the efforts of the U.S. government
to legislate on the matter in a constructive way, adding,
This has been a painful moment, difficult for everyone, and it is why we
recognize and salute with energy the way in which the government of
President Barack Obama has reacted faced with this fact. For our part, we
are going to follow up and always act with greater unity of purpose because
I believe that all of us here present share the problems this law creates.
Many permanent representatives of OAS Member States also criticized the law both at
the Permanent Council in Washington and at the June 2010 OAS General assembly in
Lima, Peru.
49. Separately, on April 28, 2010, the IACHR voiced its concern over the "high
risk of racial discrimination in the implementation of the law" and expressed concern
"with the criminalization of the presence of undocumented persons." The IACHR
exhorted "U.S. authorities to find adequate measures to modify the recently approved law
in the State of Arizona in order to bring it into accordance with international human rights
standards for the protection of migrants."
50. Finally, on May 4, 2010, heads of government at a summit of the Union of
South American Nations ("UNASUR"), which is comprised of Argentina, Bolivia, Brazil,
Chile, Colombia, Ecuador, Guyana, Paraguay, Peru, Suriname, Uruguay, and Venezuela,
24

Case 2:10-cv-01413-NVW Document 6-1

Filed 07/06/10 Page 26 of 29

adopted a statement condemning the law, claiming it could lead to the legitimization of
racist attitudes and the latent risk of violence.
51. In short, the passage of Arizona S.B. 1070 has provoked broad-based
criticism and concern among U.S. allies in the Western Hemisphere, by human rights
experts, and in numerous intergovernmental fora. Nor can such criticism be readily
dismissed. Such criticism, particularly when provoked by an independent immigration
enforcement policy being pursued by a U.S. state, and which the national government
does not control or endorse, affects the United States' standing in bilateral, regional and
international relationships, and ultimately the leadership role of the United States as we
seek to advance a wide range of policy goals within the international community. It risks
retaliatory harms against to the legal rights of U.S. nationals abroad. And it compromises
our ability to engage effectively in bilateral, regional and multilateral conversations
regarding human rights.
C. Future Ramifications
52. If S.B. 1070 were to enter into effect, criticism will likely increase, and the
risk of such harms will escalate. The Arizona law could have an increasingly caustic
impact on the United States' relations with important regional allies, undermine
additional diplomatic arrangements or opportunities for international cooperation,
constitute an ongoing irritant in U.S. bilateral, regional and multilateral relationships, and
subject the United States to ongoing criticism in international fora.
53. A few such circumstances are readily foreseeable. This fall, for example,

25

Case 2:10-cv-01413-NVW Document 6-1

Filed 07/06/10 Page 27 of 29

the United States will send a high level U.S. delegation to the UN Human Rights
Council's Universal Periodic Review in Geneva, at which the United States will be
questioned by other UN Member States regarding our human rights practices. This
Universal Periodic Review is conducted once every four years for each UN Member
State, and the United States will be presenting for the first time. It is highly likely that
the Arizona law will be one of the concerns raised during the questioning by other
delegations.
54. Likewise, the United States would undoubtedly be criticized for S.B. 1070
by UN human rights treaty monitoring bodies in the context of U.S. human rights treaty
reporting requirements. Within the next two years alone, the United States will be
expected to report to both the UN Human Rights Committee and the Committee on the
Elimination of Racial Discrimination, and thereafter will be expected to appear before
each body to defend the United States' record of human rights compliance. S.B. 1070, if
still in effect, would very likely be the subject of criticism before both bodies.
55. If S.B. 1070, Arizona's attempt to set its own immigration policy in pursuit
of "attrition through enforcement," were to go into effect, it would directly call into
question the ability of the United States to speak with one voice at the international level
on issues related to immigration and migration policy. Only the national government is
in a position to accurately assess the impact of a policy such as S.B. 1070 on our overall
foreign relations agenda and to balance the competing foreign relations considerations
involved in the adoption and enforcement of such a law. When the United States incurs
criticism of immigration law and policies adopted at the federal level, the United States is
26

Case 2:10-cv-01413-NVW Document 6-1

Filed 07/06/10 Page 28 of 29

normally in a position to review the criticism and determine whether to defend the
practices against attack or else to take appropriate action to modify its practices. The
United States is also able to develop and implement immigration policy in anticipation of
these and other foreign relations concerns. In this case, however, the policy being
pursued has not been developed, nor would it be implemented, with sensitivity to the full
range of foreign policy information and considerations available to the national
government, and the United States is unable to calibrate its immigration and foreign
policies to respond effectively to these claims.
56. If the several states were each allowed to pursue independent immigration
enforcement policies such as the Arizona law, these serious concerns would be multiplied
significantly, as the United States could be subjected to a cacophony of competing
immigration enforcement priorities and agendas, with little regard for the sensitive
diplomatic and foreign relations considerations that immigration policy addresses, and
with an extreme adverse impact on the United States' ability to speak with one voice.
57. S.B. 1070 — and in particular the mandatory verification regime
requirement — thus poses a risk of provoking retaliatory treatment against U.S. nationals
by other states, and threatens ongoing adverse consequences for important and sensitive
bilateral relationships with U.S. allies such as Mexico, for our regional relations in the
western hemisphere, and for our global relations in regional and multilateral institutions.
It is likely to hinder our ability to secure the cooperation of other states in efforts to
promote U.S. interests internationally across a range of trade, security, tourism, and other
interests unrelated to immigration. Finally, it is likely to undermine the United States'
27

Case 2:10-cv-01413-NVW Document 6-1

Filed 07/06/10 Page 29 of 29

ability to engage effectively with the international community to promote the
advancement and protection of human rights. Moreover, repairing such harm to
international relations and U.S. stature in bilateral, regional and multilateral relationships
after the fact can be extremely difficult.

58. Accordingly, after having analyzed S.B. 1070, considered how it would
interact with existing federal immigration policy and practice, and assessed the
international reaction to it, I have concluded that S.B. 1070 runs counter to American
foreign policy interests, and that its enforcement would further undermine American
foreign policy.
I declare under penalty of perjury that the foregoing is true and correct to the best
of my information, knowledge and belief. Executed the

)\

day of July, 2010 in

Washington, D.C.

Jam B. Steinberg

28

Exhibit N

5/5/2011

WA State Licensing: Proof of identity -…

Proof of identity
When you apply for a Washington State driver license, instruction permit, or
identification (ID) card, you must:
1. Be a Washington State resident.
2. Show us proof of identity.
3. Provide your Social Security number if you’re applying for a driver license.
If you don’t have a Social Security number when you apply for a driver
license, photo instruction permit, or ID card, you’ll need to show proof of
Washington residence.
4.

Have your photograph taken.

1. Proof of identity
What you’ll need
If you’re under 18 years:
If you’re 18–25 years old:
If you’re over 25 years old:
If you’re 18 or older and have been assigned court guardians:
If you’re enrolled in Job Corps:
Acceptable documents
We only accept original or certified copies of the documents listed below.
If you present multiple documents issued by a foreign government or organization,
and we’ve approved of their issuance processes, we’ll accept them as separate
documents.
Currently, we accept multiple documents issued by:
Mexican government
Guatemalan government
When necessary, we may ask for more documents.
The list of acceptable documents may change without notice.
Stand-alone Documents
A-List Documents
B-List Documents
Foreign documents
If you present authentic foreign documents, we’ll make every effort to read and
interpret them. We may need to fax your document to another location. If no bilingual
staff members are available, we may ask you to provide a certified English translation
by an approved translator along with the original document.
Unaccepted documents
If we can’t accept your identification documents, you may request an additional
document review by speaking with the driver licensing office ID Review Specialist. If
the specialist is unable to determine positive identification, we may refer your
documents for further evaluation.
Back to top

2. Social Security number
You must provide your Social Security number to get a driver license.
If you don’t have a Social Security number, you may sign a declaration form and
provide proof of Washington residence.
If you’re applying for a Commercial Driver License (CDL), you must provide your
Social Security number. We can’t issue you a CDL if you don’t have one.
Proof of Washington residence
If you don’t have a Social Security number:
1. Bring 1 of the following documents as proof you have a Washington residence
address.

www.dol.wa.gov/…/idproof.html

1/3

5/5/2011

WA State Licensing: Proof of identity -…
Home utility bill (gas, electric, water, garbage, land-line telephone, or ISTA.
etc).
Not acceptable: cable, internet or satellite TV bills.
A college or university document that has your current residential address
on file.
For off-campus students: Bring the printout from the SEVIS database which
has all of the following:
Your address
Is in a sealed envelope with the college return address
Proof it was printed by the “Designated School Official” or
“Responsible Officer.”
WA Department of Corrections (DOC) electronic ID Letter that has your
current residential address.
Selective Service card with your current residential address.
Vehicle title (not a super service title with a tamper proof tape over the VIN
and Title number).
Bank-issued documents, for the last 30 days which include your current
residential address, such as:
Account statement
Credit card statement
Mortgage statement
Note: Your documents must include your name and current Washington
residential address. It’s illegal to present fraudulent documents. If we find that
your documents are fraudulent, you won’t be able to reapply for 364 days.
2.
3.
4.
5.
6.

When you apply, you’ll get a handout with instructions for completing the
application process.
Within 2 weeks, we’ll send you a letter and form to request an appointment with
us to review your documents.
Complete the form and send it back to us by mail or fax following the instructions
on the form.
We’ll call you to schedule an appointment, and meet with you to verify your proof
of Washington residence.
After we verify your Washington residence address, we’ll issue your driver license,
photo instruction permit, or ID card.

How your Social Security number is used
Your Social Security number (SSN) is used to help enforce child support laws. We’ll
verify your SSN with the Social Security Administration. Your SSN doesn’t appear on
your driver license.
Related laws
RCW 26.23.150: Recording of social security numbers — Compliance with federal
requirement — Restricted disclosure.
RCW 46.25.070: Application — Change of address — Residency — Hazardous
materials endorsement.
42 CFR 405: Evidence, procedure, and certification for payments.
42 CFR 666(a)(13): Recording of social security numbers in certain family matters.
49 CFR 383.153: Commercial driver’s license document; Information on the
document and application.

3. Your photograph
Your new license, instruction permit, or ID card will include a photo of the front view
of your face.
Before we take your photo, we’ll ask you to remove anything that covers your face or
head (like a hat or sunglasses). If you choose not to remove it, your license will be
marked “Not Valid for Identification.” We’ll make exceptions for medical and religious
reasons.
Back to top

Proof of citizenship, identity, and residence: EDL/EID (for enhanced driver license or

www.dol.wa.gov/…/idproof.html

2/3

5/5/2011

WA State Licensing: Proof of identity -…
enhanced ID card)

CONTACT US

ABOUT US

DO MORE ONLINE

DRIVER GUIDE

Office locations

What we do

Renew your tabs

English

Contact us

Rulemaking activity

Replace your license or ID card

News center

Report the sale of vehicle

Reports and data

Check the status of a driver license

Jobs

Get a form

...more

STAY CONNECTED

...more

Home | Privacy | Conditions of Use | Copyright © 2011

www.dol.wa.gov/…/idproof.html

3/3

Exhibit O

Case 2:10-cv-01061-JWS Document 109-1

Filed 06/14/10 Page 101 of 279

Case 2:10-cv-01061-JWS Document 109-1

Filed 06/14/10 Page 102 of 279