U.S.A v. State Of Ariz., No. CV 10-1413-PHX-SRB.

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Arizona
Writing for the CourtSUSAN R. BOLTON
Citation703 F.Supp.2d 980
Decision Date28 July 2010
Docket NumberNo. CV 10-1413-PHX-SRB.
PartiesUNITED STATES of America, Plaintiff,v.State of ARIZONA; and Janice K. Brewer, Governor of the State of Arizona, in her Official Capacity, Defendants.

703 F.Supp.2d 980

UNITED STATES of America, Plaintiff,
v.
State of ARIZONA; and Janice K. Brewer, Governor of the State of Arizona, in her Official Capacity, Defendants.

No. CV 10-1413-PHX-SRB.

United States District Court,
D. Arizona.

July 28, 2010.


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Edwin Smiley Kneedler, Joshua Wilkenfeld, Varu Chilakamarri, US Dept. of Justice, Washington, DC, for Plaintiff.

John J. Bouma, Joseph G. Adams, Robert Arthur Henry, Snell & Wilmer LLP, Joseph Andrew Kanefield, Office of Governor Janice K. Brewer, Phoenix, AZ, for Defendants.
ORDER
SUSAN R. BOLTON, District Judge.

At issue is the Motion for Preliminary Injunction filed by Plaintiff the United States (“Pl.'s Mot.”) (Doc. 27).


I. SUMMARY

Against a backdrop of rampant illegal immigration, escalating drug and human trafficking crimes, and serious public safety concerns, the Arizona Legislature enacted a set of statutes and statutory amendments in the form of Senate Bill 1070, the “Support Our Law Enforcement and Safe Neighborhoods Act,” 2010 Arizona Session Laws, Chapter 113, which Governor Janice K. Brewer signed into law on April 23, 2010. Seven days later, the Governor signed into law a set of amendments to Senate Bill 1070 under House Bill 2162, 2010 Arizona Session Laws, Chapter 211.1 Among other things, S.B. 1070 requires officers to check a person's immigration status under certain circumstances (Section 2) and authorizes officers to make a warrantless arrest of a person where there is probable cause to believe that the person committed a public offense that makes the person removable from the United States (Section 6). S.B. 1070 also creates or amends crimes for the failure of an alien to apply for or carry registration

703 F.Supp.2d 986
papers (Section 3), the smuggling of human beings (Section 4), the performance of work by unauthorized aliens, and the transport or harboring of unlawfully present aliens (Section 5).

On July 6, 2010, the United States filed a Complaint with this Court challenging the constitutionality of S.B. 1070, and it also filed a Motion requesting that the Court issue a preliminary injunction to enjoin Arizona from enforcing S.B. 1070 until the Court can make a final determination as to its constitutionality. The United States argues principally that the power to regulate immigration is vested exclusively in the federal government, and that the provisions of S.B. 1070 are therefore preempted by federal law.

The Court notes that S.B. 1070 is not a freestanding statute; rather, it is an enactment of the Arizona Legislature that adds some new sections to the Arizona Revised Statutes (“A.R.S.”) and amends some preexisting sections. S.B. 1070 also contains a severability clause, providing that,

[i]f a provision of this act or its application to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of the act that can be given effect without the invalid provision or application, and to this end the provisions of this act are severable.

S.B. 1070 § 12(A). Therefore, the Court cannot and will not enjoin S.B. 1:070 in its entirety, as certain parties to lawsuits challenging the enactment have requested. The Court is obligated to consider S.B. 1070 on a section by section and provision by provision basis.

Other than seeking a preliminary injunction as to “S.B. 1070,” the United States has not made any argument to preliminarily enjoin and the Court therefore does not enjoin the following provisions of S.B. 1070:

Section 1 of S.B. 1070
no A.R.S. citation: providing the intent of the legislation
Portions of Section 2 of S.B. 1070
A.R.S. § 11-1051(A): prohibiting Arizona officials, agencies, and political subdivisions from limiting enforcement of federal immigration laws
A.R.S. § 11-1051(C)-(F): requiring that state officials work with federal officials with regard to unlawfully present aliens
A.R.S. § 11-1051(G)-(L): allowing legal residents to sue any state official, agency, or political subdivision for adopting a policy of restricting enforcement of federal immigration laws to less than the full extent permitted by federal law
Section 4 of S.B. 1070 2
A.R.S. § 13-2319: amending the crime of human smuggling

Portion of Section 5 of S.B. 1070

A.R.S. § 13-2928(A)-(B): creating a crime for stopping a motor vehicle to pick up day laborers and for day laborers to get in a motor vehicle if it impedes the normal movement of traffic
Section 7 of S.B. 1070
A.R.S. § 23-212: amending the crime of knowing employment of unauthorized aliens
Section 8 of S.B. 1070
A.R.S. § 23-212.01: amending the crime of intentional employment of unauthorized aliens
Section 9 of S.B. 1070
703 F.Supp.2d 987
A.R.S. § 23-214: amending the requirements for checking employment eligibility
Section 11 of S.B. 1070
A.R.S. § 41-1724: creating the gang and immigration intelligence team enforcement mission fund
Sections 12 & 13 of S.B. 1070
no A.R.S. citation: administering S.B. 1070

Applying the proper legal standards based upon well-established precedent, the Court finds that the United States is not likely to succeed on the merits in showing that the following provisions of S.B. 1070 are preempted by federal law, and the Court therefore does not enjoin the enforcement of the following provisions of S.B. 1070:

Portion of Section 5 of S.B. 1070
A.R.S. § 13-2929: creating a separate crime for a person in violation of a criminal offense to transport or harbor an unlawfully present alien or encourage or induce an unlawfully present alien to come to or live in Arizona
Section 10 of S.B. 1070
A.R.S. § 28-3511: amending the provisions for the removal or impoundment of a vehicle to permit impoundment of vehicles used in the transporting or harboring of unlawfully present aliens

Applying the proper legal standards based upon well-established precedent, the Court finds that the United States is likely to succeed on the merits in showing that the following Sections of S.B. 1070 are preempted by federal law:

Portion of Section 2 of S.B. 1070
A.R.S. § 11-1051(B): requiring that an officer make a reasonable attempt to determine the immigration status of a person stopped, detained or arrested if there is a reasonable suspicion that the person is unlawfully present in the United States, and requiring verification of the immigration status of any person arrested prior to releasing that person
Section 3 of S.B. 1070
A.R.S. § 13-1509: creating a crime for the failure to apply for or carry alien registration papers
Portion of Section 5 of S.B. 1070
A.R.S. § 13-2928(C): creating a crime for an unauthorized alien to solicit, apply for, or perform work
Section 6 of S.B. 1070
A.R.S. § 13-3883(A)(5): authorizing 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 from the United States

The Court also finds that the United States is likely to suffer irreparable harm if the Court does not preliminarily enjoin enforcement of these Sections of S.B. 1070 and that the balance of equities tips in the United States' favor considering the public interest. The Court therefore issues a preliminary injunction enjoining the enforcement of the portion of Section 2 creating A.R.S. § 11-1051(B), Section 3 creating A.R.S. § 13-1509, the portion of Section 5 creating A.R.S. § 13-2928(C), and Section 6 creating A.R.S. § 13-3883(A)(5).

II. BACKGROUNDA. Overview of Federal Immigration Law

Congress has created and refined a complex and detailed statutory framework regulating immigration. The federal immigration scheme is largely enacted through the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101, et seq., which empowers various federal agencies (including the Department of Justice (“DOJ”), Department of Homeland Security (“DHS”), and Department of State

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(“DOS”)) to administer and enforce the immigration laws See, e.g., id. §§ 1103-1104. Among its many provisions, the INA sets forth the conditions under which a foreign national may be admitted to and remain in the United States. Id. §§ 1181-1182, 1184. The INA also contains an alien registration system intended to monitor the entry and movement of aliens in the United States. Id. §§ 1201(b), 1301-1306. Various actions may subject an alien to being placed in removal proceedings, such as entering the United States without inspection, presenting fraudulent documents at a port of entry, violating the conditions of admission, or engaging in certain other proscribed conduct. Id. §§ 1225, 1227, 1228, 1229, 1229c, 1231. Violations of immigration laws may also subject an alien to civil and criminal sanctions. E.g., id. §§ 1325, 1306, 1324c. Unlawful presence in the United States is not a federal crime, although it may make the alien removable. See id. §§ 1182(a)(6)(A)(i), 1227(a)(1)(B)-(C).3

Federal alien smuggling laws make it a crime to knowingly bring an unauthorized alien into the country, as well as to harbor such a person or to facilitate unlawful immigration. Id. § 1324. Congress also created sanctions to be implemented against employers who knowingly employ aliens who are not authorized to work when it passed the Immigration Reform and Control Act (“IRCA”) in 1986. Id. § 1324a(a)(1)-(2). Federal law contains no criminal sanction for working without authorization, although document fraud is a civil violation under IRCA. Id. § 1324c. In 1996, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”), which, among other things, created various employment eligibility verification programs. See Chicanos Por La Causa, Inc. v. Napolitano (Chicanos Por La Causa II), 558 F.3d 856, 861 (9th Cir.2009).

Federal immigration law also envisions certain areas of cooperation in immigration enforcement among the...

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22 practice notes
  • U.S. v. State , No. 10–16645.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • April 11, 2011
    ...enjoined in its entirety, it specifically argued facial challenges to only six select provisions of the law. United States v. Arizona, 703 F.Supp.2d 980, 992 (D.Ariz.2010). The district court granted the United States' motion for a preliminary injunction in part, enjoining enforcement of S.......
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    ...by the district court, and that decision was subsequently affirmed 2–1 by a panel of the Ninth Circuit. United States v. Arizona, 703 F.Supp.2d 980 (D.Ariz.2010), aff'd,641 F.3d 339 (9th Cir.2011). The United States Supreme Court recently granted certiorari in that case. Arizona v. United S......
  • We are America/Somos America v. Maricopa Cnty. Bd. of Supervisors, No. CIV-06-2816-PHX-RCB
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    • August 17, 2011
    ...1070"), amended section 13-2319; and certain sections of S.B. 1070 have been preliminarily enjoined. See United States v. Arizona, 703 F.Supp.2d 980 (D.Ariz. 2010), aff'd United States v. Arizona, 641 F.3d 339 (9th Cir. 2011), petition for cert. filed, (Aug. 10, 2011) (No. 10A1277, 11-182).......
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    • United States District Courts. 11th Circuit. United States District Court of Northern District of Alabama
    • September 28, 2011
    ...the INA—a conclusion the Supreme Court appears to have rejected, see DeCanas, 424 U.S. at 358, 96 S.Ct. 933; United States v. Arizona, 703 F.Supp.2d 980, 999 (D.Ariz.2010) ( “[In DeCanas ] the Supreme Court rejected the possibility that the INA is so comprehensive that it leaves no room for......
  • Request a trial to view additional results
23 cases
  • U.S. v. State , No. 10–16645.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • April 11, 2011
    ...enjoined in its entirety, it specifically argued facial challenges to only six select provisions of the law. United States v. Arizona, 703 F.Supp.2d 980, 992 (D.Ariz.2010). The district court granted the United States' motion for a preliminary injunction in part, enjoining enforcement of S.......
  • United States v. South Carolina, Civil Action Nos. 2:11–cv–2958
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • December 22, 2011
    ...by the district court, and that decision was subsequently affirmed 2–1 by a panel of the Ninth Circuit. United States v. Arizona, 703 F.Supp.2d 980 (D.Ariz.2010), aff'd,641 F.3d 339 (9th Cir.2011). The United States Supreme Court recently granted certiorari in that case. Arizona v. United S......
  • We are America/Somos America v. Maricopa Cnty. Bd. of Supervisors, No. CIV-06-2816-PHX-RCB
    • United States
    • U.S. District Court — District of Arizona
    • August 17, 2011
    ...1070"), amended section 13-2319; and certain sections of S.B. 1070 have been preliminarily enjoined. See United States v. Arizona, 703 F.Supp.2d 980 (D.Ariz. 2010), aff'd United States v. Arizona, 641 F.3d 339 (9th Cir. 2011), petition for cert. filed, (Aug. 10, 2011) (No. 10A1277, 11-182).......
  • United States v. Alabama, Case No. 2:11–CV–2746–SLB.
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Northern District of Alabama
    • September 28, 2011
    ...the INA—a conclusion the Supreme Court appears to have rejected, see DeCanas, 424 U.S. at 358, 96 S.Ct. 933; United States v. Arizona, 703 F.Supp.2d 980, 999 (D.Ariz.2010) ( “[In DeCanas ] the Supreme Court rejected the possibility that the INA is so comprehensive that it leaves no room for......
  • Request a trial to view additional results

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