by Alia Beard Rau, Michael Kiefer and Kevin Kiley - Jul. 23, 2010 12:00 AM
The Arizona Republic
The fate of Arizona's tough new immigration law now sits in the hands of U.S. District Judge Susan Bolton.
Bolton held hearings Thursday on two of the highest-profile legal challenges to Senate Bill 1070, making attorneys on both sides of the aisle sweat as she challenged their legal arguments and forced them to focus on specific portions of the law.
The fate of Arizona's tough new immigration law now sits in the hands of U.S. District Judge Susan Bolton.
Bolton held hearings Thursday on two of the highest-profile legal challenges to Senate Bill 1070, making attorneys on both sides of the aisle sweat as she challenged their legal arguments and forced them to focus on specific portions of the law.
She didn't issue a ruling, and it is unknown when she will. But the clock is ticking toward next Thursday, when the law goes into effect.
Bolton did make one thing clear: She has no intention of invalidating the entire law but is considering halting the enactment of a handful of its 14 sections.
The hearings brought out high-profile politicians, media from across the country, high-powered attorneys and hundreds of the law's supporters and opponents.
The morning hearing involved a lawsuit filed by the American Civil Liberties Union and several other civil-rights groups and individuals. Three requests from defendants sought to have the suit thrown out; one from the plaintiffs asked the judge for a preliminary injunction, blocking the law from taking effect.
The afternoon hearing focused on a motion for a preliminary injunction filed by the U.S. Department of Justice.
SB 1070 allows Arizona police officers who have stopped someone in connection with another violation to question him or her about immigration status if reasonable cause exists to suspect the person is in this country illegally. That person could then be arrested and charged under state law.
Whatever Bolton decides will determine whether SB 1070 takes full effect Thursday or portions of it are held in limbo until the courts have a chance to hear and rule on full cases.
A full court hearing is likely to involve appeals, possibly as far as the U.S. Supreme Court, and could take several years.
During the hearings, Bolton made it clear that she considers SB 1070 not a statute in itself but rather a large combination of new laws and amended existing laws.
She ignored the portions of the law that weren't up for debate, such as restrictions on day laborers, but said she was considering whether to block all or part of certain key sections of the law. She steered the attorneys toward the sticking points in those sections.
Section 2: Enforcement, arrest
There are two parts of this section of the law that Bolton and the attorneys debated.
The first prohibits state and local government from restricting law enforcement from enforcing federal immigration law to the fullest extent permitted by federal statute.
Bolton asked ACLU attorney Omar Jadwat and later Department of Justice attorney Edwin Kneedler why the state should not be allowed to require all local law enforcement to enforce federal immigration law.
"Why can't Arizona be as inhospitable as they wish to people who have remained and entered the United States illegally?" the judge asked. "Who am I to stop the state of Arizona?"
But she also held the state's lawyer, John Bouma, to the fire with questions about whether this portion of the state law pre-empts federal law. Bouma said it did not.
"Law-enforcement officers have been enforcing federal immigration laws for years," he said.
The other part of this section of the law that was addressed was the portion that states that any person arrested must have his or her immigration status determined before he or she can be released.
Bolton asked Bouma whether lawmakers really intended that anyone arrested, regardless of his or her legal status or whether the arrest involved citing and releasing someone on the spot or booking him or her into jail, had to have immigration status determined before being released from jail.
Bouma gave her several different answers at different points in the day.
He first said that U.S. citizens don't have an "immigration status" and therefore SB 1070 wouldn't apply to them. He also said that part of the law was intended to follow the part allowing officers to ask someone about their legal status, which means it would apply only to individuals suspected of being in the country illegally.
"But (police) training materials specifically acknowledge that they don't know what it means and that it will be left up to each agency to decide what that sentence means," Bolton replied, adding that she had heard from some law-enforcement authorities that this portion of the law could lead to the arrest of tens of thousands of people who otherwise would have just been cited and released.
The ACLU's Jadwat said the plaintiffs interpret that portion to apply to any person arrested.
"And that goes far beyond anything contemplated in federal law . . . or that makes any real sense," he said. "You would be able to hold people for no other reason but to determine their legal status."
Bouma later admitted the sentence was "inartfully worded."
Section 3: Documentation
Section 3 of SB 1070 as amended creates the state crime of "willful failure to complete or carry an alien registration document."
Attorney Nina Perales with the Mexican American Legal Defense and Educational Fund, one of the civil-rights groups that filed the lawsuit along with the ACLU, said this portion of the law creates new classes of non-citizens because it doesn't offer exceptions for individuals who may be in the midst of citizenship or asylum proceedings and have permission to be in the country but don't yet have documents.
Bouma responded that that argument gets into a hypothetical "chamber of horrors" that people would be hauled off and thrown into jail to wait until someone could determine whether they belonged there.
Bolton agreed that all this portion of the law does is create a state punishment for violating federal statute. But she added that state punishment may create a pre-emption problem.
Bouma argued otherwise but then seemed to concede that he may lose on this part of the law.
"I didn't have the feeling I convinced you last week, either," Bouma said, referring to an earlier hearing.
Section 6: Removal
Section 6 of SB 1070 as amended allows law-enforcement officers to, without a warrant, arrest people suspected of committing offenses that make them "removable from the United States."
Bolton seemed to have serious concerns about this portion of the law. She said there is no list of crimes deemed to be removable offenses and questioned who would make that determination and at what point during the arrest it would be made.
"How can a police officer make a determination that a person has committed a removable offense when that decision can only be made by a federal judge?" she asked.
Hearing is crowded
Bolton's courtroom was packed with about 250 people throughout the day, forcing media and attorneys to quibble over available seating and share tight spots on wooden benches.
Outside, several hundred people representing both sides of SB 1070 gathered around the federal-court building.
Supporters say the law is necessary to stem a tide of illegal immigration. Opponents say it opens the door to racial profiling, particularly against Hispanics.
One of SB 1070's supporters, Martha Payan of Scottsdale, said, "We may be outnumbered, but this is our country and we're going to be out here to fight."
She said she believes undocumented immigrants game the system for government benefits.
"They're fleecing America, and that's why they're able to be out here in droves," she said.
Aaron Rivera of California, an opponent of the law, offered a different perspective.
"There's a lot of folks who want to be heard," he said. "I just hope we keep this focused on immigration."
In the afternoon, about 40 people blocked the street outside, shutting down an intersection. Police arrested six people holding a bedsheet that said, "Stop 1070 - we will not comply," and another man who refused to leave the intersection, all on suspicion of disrupting a public thoroughfare.
"We voted, we marched, we had 150,000 people in the street, but that was not enough," said Carlos Garcia, one of the men arrested. "We decided that it was time to escalate. It was time to act."
None resisted arrest.
Read more: http://www.azcentral.com/news/election/azelections/articles/2010/07/23/20100723arizona-immigration-law-federal-judge-reviews-law.html#ixzz0ubWCfsV4
Read more: http://www.azcentral.com/news/election/azelections/articles/2010/07/23/20100723arizona-immigration-law-federal-judge-reviews-law.html#ixzz0ubVbywvH
