Wednesday, July 28, 2010

Thoughts on Judge Bolton's Ruling Against Arizona

I can make neither head nor tail of U.S District Court Judge Susan Bolton's ruling which partially struck down the Arizona immigration law earlier today.

Perhaps it is a case of splitting the baby but cracking eggs always makes for a mess.

The federal government argues that all persons arrested by law enforcement in Arizona will need to have their immigration status checked. Clearly, this is not Arizona's intent hence the phrase "reasonable suspicion." But this is insufficient for Judge Bolton who quibbles about the phrase "for any lawful contact" which was amended by the Arizona House to read "for any lawful stop, detention or arrest." Bolton writes:

In S.B. 1070 as originally enacted, the first two sentences of Section 2(B) are clearly independent of one another. Therefore, it does not follow logically that by changing "any lawful contact" to "any lawful stop, detention or arrest" in the first sentence, the Arizona Legislature intended to alter the meaning of the second sentence in any way. If that had been the Legislature's intent, it could easily have modified the second sentence accordingly.

Simply put what Judge Bolton is complaining about is following sentence in the Arizona law:

Any person who is arrested shall have the person's immigration status determined before they are released.

Here's more from Judge Bolton:

A presumption against unlawful presence would not dispose of the requirement that immigration status be checked because a legal permanent resident might have had a valid
Arizona driver's license, but an inquiry would still need to be made to satisfy the requirement that the person's "immigration status" be determined prior to release.

Judge Bolton is using circular logic. A person's immigration status is only in question when a person fails to produce identification. Why would a police officer in Tempe contact ICE if the person has already supplied him with a valid driver's license?

But it is an argument Judge Bolton returns to time and again. Bolton writes, "Requiring Arizona law enforcement officials and agencies to determine the immigration status of every person who is arrested burdens lawfully present aliens because their liberty will be restricted while their status is checked."

Well, my liberty is restricted when I go to work, buy liquor or go through airport security. But I digress.

Not every person arrested in Arizona will have their immigration status checked. And not every person arrested in Arizona is a lawfully present alien. But last I checked the U.S. Citizenship and Immigration Services Guide for New Immigrants states, "Carry proof of your permanent resident status at all times." Alas in the eyes of Judge Bolton carrying proof of your permanent resident status "imposes an unacceptable burden on lawfully-present aliens."

It is also apparent that Judge Bolton bought the federal government's argument that the Arizona immigration law "will impose significant and counterproductive burdens on federal agencies." The federal government argues that ICE's hotline (the Law Enforcement Support Center) is "dedicated in part" to "national security objectives" and cites as examples requests for immigration status determination from the Secret Service, FBI and "employment-related requests at 'national security related locations that could be vulnerable to sabotage, attack or exploitation.'" Judge Bolton writes:

Thus an increase in the number of requests for determinations of immigration status, such as is likely to result from the mandatory requirement that Arizona law enforcement officials and agencies check the immigration status of any person who is arrested, will divert resources from the federal government's other responsibilities and priorities.

Judge Bolton's observation is both wrong and disingenuous. Let me state it one more time. The Glendale Police Department has no intention of calling ICE/LESC on every time they arrest someone. Once again, why would the police call ICE/LESC if they already know who they have in their custody?

As for the diversion of resources, is Judge Bolton arguing that only federal agencies or private entities who have contracts with the federal government can use the ICE/LESC hotline? Are state, county and local law enforcement precluded from utilizing this tool? Hardly. Indeed, 8 U.S. Code Section 1373(c) clearly states:

The Immigration and Naturalization Service shall respond to an inquiry by a Federal, State, or local government agency, seeking to verify or ascertain the citizenship or immigration status of any individual within the jurisdiction of the agency for any purpose authorized by law, by providing the requested verification or status information.

The federal government has an obligation to respond to inquiries on immigration status - even if it's coming from Arizona. So Judge Bolton's argument that the Arizona law "is likely to impermissably burden federal resources and redirect federal agencies away from the priorities they have established" is specious.

Suffice it to say, Arizona will appeal this ruling to the Ninth Circuit. Regardless of the Ninth's decision, this will be argued before the Supreme Court in the fall. Nearly a year will pass before this matter is legally resolved in any meaningful way. Although it could be politically resolved well before then.

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