Category Archives: SB 1070

SB 1070 Challenge not Over Yet

As expected, Arizona Governor Jan Brewer just announced the state will appeal Judge Susan Bolton’s decision to grant a preliminary injunction on SB 1070, which means the struggle continues. Although the injunction is great news for the immigrant rights movement and for all Americans and immigrants, when the clock strikes midnight tonight, several backwards provisions in SB1070 are still going into effect.

Tomorrow, it will be a state crime for persons to harbor and transport undocumented immigrants, and the state could impound/remove the vehicle used for harboring/transporting.  Some day laborer provisions remain intact as well. For example, it is unlawful to enter a vehicle in order to work or to hire someone, in a manner that impedes normal flow of traffic. This was an argument made in the friendly House complaint and not addressed in Bolton’s decision.

Further, the decision did not enjoin the private right of action by individuals to sue law enforcement if they maintain that police are not enforcing immigration law to the  fullest extent authorized.

Such issues not covered raises additional questions that will have to be worked out on appeal or back in the legislature. For example, since police cannot ask for documents, what exactly do individuals have a private right to sue for?  It also remains a question whether yet another injunction will be granted for the Friendly House case. It’s ambiguous because although the judge granted today’s injunction for U.S. v Arizona and not for Friendly House, her decision responds to several issues raised in the Friendly House case– not in the DOJ case.

In the meantime, the real challenge tonight is for the WH to respond in a proactive way. More than just patting their DOJ on the back, the president needs to proactively get in front of the issue and lead congress to enact CIR.

Judge Bolton grants Preliminary Injunction on SB1070

This afternoon Judge Susan Bolton, federal district judge, Arizona, granted a preliminary injunction to stop enforcement of provisions in SB 1070, Arizona’s ‘papers please” law.  The decision shifts the narrative in the immigration debate. no longer can anti immigrant conservatives insist that Arizona is merely enjoining acts also enjoined by federal law.  According to the court, Arizona preempted federal authority to regulate immigration.  The message for other states intending to follow the Arizona template: “don’t do it.  It is illegal.  You will be challenged. And, you will be beaten.”

So, when SB1070 goes into effect tomorrow, July 29, 2010, the state will not be able to require police to inquire about the immigration status of anyone they stop, detain or arrest if they reasonably suspect the person is in the countryb illegally. (Section 2)

It will not be able to criminalize the solicitation, applicatioon for, or performamnce of work by an undocumented immigrant (part of Section 5)

and

The state cannot authorize 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. (Sec 6 of SB 1070)

Still to come is a trial on the merits. The state of Arizona can, and likely will appeal the preliminary injunction.  So the 9th circuit could reverse as soon as tomorrow, or. it could take months.  Still to come is a decision on the merits and likely, lengthy appeals.

In other words, today’s victory is a step in the process. Hopefully, it shifts the debate; Hopefully too, it puts pressure on the Obama Administration to show stronger leadership over the CIR debate.

The preemption issue is important; but perhaps more important as far as the quality of life for immigrants is concerned, is for the court(s) to also attend to underlying privacy, due process and equal protection issues.  Whereas preemption deals solely with federalism and prevents a patchwork of strong anti-immigrant state laws, the problem of systemic abuse against immigrants applies to the federal programs as well as to state transgressions.

Challenging SB1070 in Court

Several days ago, on June 4, a class action lawsuit was filed in Arizona challenging the draconian SB1070 that, according to one lawyer participating in a webinar: SB 1070The Arizona Law and Report on Civil Rights Challenges,  it creates a near “police state” in Arizona, particularly for people of color, regardless of immigration status.

As regrettable as the enactment of SB1070 has been, it has inspired copycat proposals in 17 other states, including, Utah, Rhode Island and Georgia.  All the more reason SB1070 must be stopped in Arizona.

The class action suit, Friendly House et al v Whiting, challenges the constitutionality of SB12070, claiming it violates the Supremacy Clause, Due Process, Equal Protection, and the First Amendment.

The challenge will live or die over the court’s interpretation of the Supremacy Clause and immigration regulation.  The Supremacy Clause says that federal law preempts state law.  Since regulating immigration is dominated by the federal governemnt; the claim is that SB 1070 runs afoul of federal preemption of state law, and thus the constituion.

Next, the suit claims SB 1070 violates the Equal Protection Clause by impermissibly discriminating against noncitizens, particularly with race based classifications.  Due process violations impede the rights of persons to be free from unlawful questioning, arrest and detention. SB1070 also violates first amendment rights of day laborers in Arizona by preventing them from soliciting work.

The lawsuit also makes a right to travel claim that argues the law will discriminate against interstate travelers who are stopped by police for a broken taillight or other trivial matters and then be subject to extended questioning simply because of one’s drivers license.  The idea here deals with the fact that different states deal with different levels of scruitny when issuing a license. Thus, “reasonable suspicion” could be a consequence of your drivers license.

Several things are impressive about this litigation.  First is the diversity of individual litigants that goes well beyond members of the undocumented community to include lawful residents and citizens. Next is the wide array of organizational plaintiffs including friendly house– a huge direct service provider in Arizona; labor unions such as SEIU; and such groups as the ACLU; NDLON;  MALDEF and the NAACP.

It is the hope of lawyers representing these plaintiffs that the representativeness of the litigants will show widespread harm should SB1070 be implemented, scheduled July 31. For that reason lawyers have filed for a preliminary injunction that would prevent Arizona from implementing SB1070 pending the litigation.

It is important for folks to follow this litigation and to use it on the local level to organize against the spread of SB1070

Immigration Control’s Strain on Democracy

Check out  my guest post in today’s Washington Post Political Bookworm blog

SB1070 highlights problem w/ “Illegal Alien” meme

It has taken the ludicrous extremes of SB1070 to clarify once and for all the mission of the “No person is illegal.”  It’s mission is to educate the public about the damage caused by the term “illegal alien,” a concept that is undefined in the immigration law code and that denies the humanity of persons who are forced to wear the label.

The idea is simple. We are not our actions or behavior. Human being are neither good nor bad; rather they do good or bad things. They are neither legal nor illegal. Rather they engage in conduct that is legal or unlawful.  When they engage in behavior that is unlawful, they may be labeled a suspect or convict or criminal, which defines them as somebody who committed or is charged with committing an unlawful act. But they themselves are not illegal. Their identity is not unlawful.

Here is the point. Were someone declared to be illegal just because of the unlawful acts they commit, there would be many millions more “illegals” walking the streets. If one were labeled illegal for an act they haven’t been tried for, which is the case with most “illegal aliens” then most of us would be “illegal,” in some capacity or another. an illegal jay-walker, or illegal loiterer, or whatever.

This is all the more the case since the offense of being undocumented in this country is a civil offense, not even a crime, and entering the country without papers is a misdemeanor, sort of like loitering or jaywalking.

Now in the immigration field, being undocumented comes with the excess baggage of having your identity dismissed as “illegal: If you are illegal in your essence, then perhaps the police should come to round you up. But then, if all your have done is cross an imaginary line without papers or overstayed a visa, then perhaps society ought to leave your essence alone and just deal with the relatively minor infraction of being out of status.

SB1070 functions as if human beings are illegal. SB1070 is excessive if indeed it is dealing with individuals whose only alleged offense is administrative or a misdemeanor. Not even the war on drugs imagines placing everyone in a state under suspicion for having smoked a joint or taken a pill. Nor would it because we are a nation of laws. It seems a shame that the rule of law does not pertain to Latino immigrants in Arizona.

SB1070 and Schumer/Graham: Cut from the Same Cloth?

Regardless of whether comprehensive immigration reform becomes law this year, 2010 has become the year of criminalizing immigrants.  Criminalizing immigrants has become the conservative AND liberal approach to resolving pesky immigration problems.  The polity has witnessed a remarkable convergence amongst liberal and conservatives that undocumented immigrants are criminals and deserve neither dignity nor rights in their efforts to make a better life for themselves and families.

The outcome? Reform or not, what’s occurring is a near pogrom against unauthorized immigrants and people who look like them.

In Arizona, already–and about 90 days before the new law is scheduled to go into effect– a Latino truck driver—born in Fresno—was arrested and detained for not having his birth certificate.  The law itself racially profiles all Latinos in Arizona.  It makes it a criminal offense to be an “illegal alien—and charges local police to identify and arrest them. Since even the governor who signed the bill cannot identify an undocumented immigrant, and no definition exists in the federal immigration code, all persons are under suspicion.  The only way in which the state avoids racial profiling is to ask all persons regardless of race/ ethnic considerations for their papers. This police state tactic would have a difficult time squaring with the law’s backer’s “don’t tread on me” mindset.

The Obama Administration offers itself up to the rescue.  Foreseeing the Governor signing SB 1070, Obama, Harry Reid and Nancy Pelosi reshuffled their legislative agenda this session and placed comprehensive immigration reform on the front burner.  They present CIR as the rational and reasonable alternative to SB 1070.

Problem is the version of CIR that Obama supports (Schumer/Graham), criminalizes immigrants if in a less obvious manner.

At bottom, as the writer Anis Shivani suggests, the similarities between SB 1070 and CIR are perhaps greater than the differences.  They both contribute to and result from a culture of criminalization and xenophobia in Obama’s America.

Although SB 1070, places all Latinos under suspicion, CIR slightly less broad scope still criminalizes all Latino immigrants who have the misfortune of having their information taken down by a police officer and fed into a database.

Consider ICE ACCESS. The CIR likely will codify ICE ACCESS, which consists of 14 existing federal/state/local immigration law enforcement provisions, which include 287(g), CSAP and Secure Communities.  It will legitimize, expand and extend these ICE ACCESS programs in a discredited broken windows approach to immigration, and racial profiling.

Under these programs, if an individual is pulled over by a cop, any record of prior law breaking could trigger an ICE agent to put a detainer in their file under 287(g), CAP or Secure Communities.  The detainer prevents the immigrant from being released and instead signals the transfer of the immigrant to ICE custody for detention and possible removal.  This process is triggered by no more than a traffic stop or broken taillight. Sometimes even less than that is needed.

Until now the Obama Administration has allocated over a billion dollars to such ACCESS criminal alien programs.  In FY 2010, it allocated $1.5 billion to CAP and Secure Communities, and proposes additional hikes for FY 2011.

Such embrace of ACCESS is bewildering and continues to plague Latino communities at the Constitution’s great peril.  CIR will also expand Secure Communities with biometric work authorization cards for everybody.

Who would have thought the liberal alternative to Arizona’s draconian law would consist of biometric work authorization, and a doubling down on programs that support police mishandling of immigrants as suspected criminal aliens?

When did collective guilt until innocence is proven become a liberal idea?  Such is the scary rational alternative that Schumer/Graham would have us consider.

How SB 1070 can Split the Tea Party

There are roughly two tracks to the Tea Party: one is the Ron Paul libertarian track, the other is the Palin track.  Only one track supports SB 1070: the Palinistas. Theirs is the incoherent wing: they hate big government; want to overthrow big government; deny they want to overthrow big government; and finally, they love big government when it comes to the police state expanding executive power over minorities like immigrants.  They hate Mexicans even more than they hate the big government.

Not so the Paulistas: at least their approach is somewhat consistent: they hate big government. Period. They despise the police state and for this reason they oppose SB1070.  They are libertarian shen it comes to both economic and social policy.

I would encourage the Paulistas to join the marches and protests in Arizona. I would also encourage the mainstream media to start pressing the Palinistas on the logical inconsistency of their hate.