With just hours to go before Arizona S.B. 1070 was slated to go into effect, federal district court judge Susan Bolton issued a preliminary injunction halting the enforcement of major sections of the new Arizona law. Judge Bolton granted the preliminary injunction at the request of the U.S. Department of Justice (DOJ), one of eight plaintiffs who filed suit challenging the constitutionality of the law. DOJ had asked the court to find that the law unconstitutionally preempted federal immigration law and policy, and encumbered the federal government’s enforcement efforts.
Judge Bolton’s 36-page decision (U.S. v. Arizona) found that DOJ has a high likelihood of success on the merits of the law suit and thus issued the injunction. The most notable part of the law halted from taking effect was the so-called “papers, please” provision, which required police officers to inquire into the immigration status of any individual whom they have a reasonable suspicion of being in the country unlawfully. Judge Bolton held that this provision would likely fail because it places an extreme burden on federal immigration resources by requiring the status checks on many more people. In this way, she ruled, it impermissibly redirects precious resources from the stated priorities of the U.S. Department of Homeland Security to the day-to-day operations of Arizona law enforcement.
Following similar logic, the injunction enjoined other provisions that would make it a state crime for a foreign national to be in the country without documentation, to fail to carry immigration papers, or to work or apply for work without authorization.
Still, Judge Bolton upheld several sections of the law, including a provision that makes it a state crime to knowingly transport, harbor, or shield undocumented immigrants. That section likely did not encumber federal immigration enforcement, she ruled, allowing it to go into effect.
Meanwhile, on the other side of the country, Virginia Attorney General Ken Cuccinelli thrust his state into the center of the national debate on immigration only a few days after the issuance of the preliminary injunction in Arizona. In a July 30th advisory opinion, Cuccinelli advised that existing Virginia law allows for police officers to check the immigration status of anyone stopped by the police for any reason, as long as it does not extend the duration of the stop. While Cuccinelli’s interpretation is less stringent then portions of the Arizona law enjoined by Judge Bolton, it still represents a major departure from common practice of police officers throughout the country.
Beyond mere inquiry by officers, Cuccinelli’s memo also authorizes the arrest and detention of individuals who are suspected of committing federal criminal violations — for example, undocumented entry — but stops short of authorizing arrests for federal civil violations such as overstaying a visa. The opinion does not attempt to explain how officers could distinguish between civil and criminal violations, or what type of information could lead to a suspicion of a criminal, rather than civil, violation.
The opinion, issued amid growing national debate and in the wake of the Bolton injunction, proves that immigration will continue to be a hot button issue heading into the fall midterms. Over the next several weeks and months, expect legal challenges to the constitutionality and validity of the Cuccinelli memo. A Ninth Circuit hearing on the merits for the Arizona law is slated for November. Further, at least 20 states have introduced Arizona-style legislation that will be considered in the fall term.
Tags: Arizona Immigration