Mexican Drug Cartel Violence: Mexican Marines arrest presumed leader of Beltran Leyva Cartel – Sergio Villarreal Barragan taken into custody

Sergio Villarreal Barragan captured in Sunday raid officials say

Mexican marines captured Sergio Villarreal Barragan, a presumed leader of the embattled Beltran Leyva cartel who appears on a list of the country’s most-wanted fugitives, in a raid Sunday in the central state of Puebla, officials said.

The presumed capo known as “El Grande” did not put up any resistance when he was arrested along with two alleged accomplices, a Navy official told The Associated Press. The official, who spoke on condition of anonymity in line with department policy, said federal officials would announce the capture shortly.

Mr. Villarreal appears on a 2009 Attorney General’s Office list of Mexico’s most-wanted drug traffickers and has a reward of just over $2-million for his capture.

He is listed as one of the remaining leaders of the Beltran Leyva cartel, whose top capo, Arturo Beltran Leyva, was killed in December in a raid by marines outside Mexico City.

Drug Cratel Violence. Young Woman Murdered & Mutilated By Cartel

Mr. Villarreal’s capture comes about two weeks after the arrest of Edgar Valdez Villarreal, or “The Barbie,” another alleged capo linked to the Beltran Leyvas.

The once-powerful Beltran Leyva cartel split following the death of Arturo — known as the “Boss of Bosses” — which launched a brutal war for control of the gang involving mass execution and beheadings in once-peaceful parts of central Mexico. The fight pitted brother Hector Beltran Leyva and Villarreal against a faction led by Edgar Valdez Villarreal. Hector Beltran Leyva remains at large.

Mr. Villarreal’s capture is the fourth major blow delivered to drug cartels by Mexico’s government in the past year. First came the death of Arturo Beltran Leyva on Dec. 16, 2009, then soldiers killed the Sinaloa cartel’s No. 3 capo, Ignacio “Nacho” Coronel, on July 29. And on Aug. 30 federal police announced the capture of “The Barbie.”

Drug Cartel Victims - Decapitated Bodies Dumped in Plaza

More than 28,000 people have been killed in Mexico since December 2006, when President Felipe Calderon launched a military offensive against the cartels soon after taking office.

In the central state of Morelos, police discovered nine bodies in clandestine graves Saturday in the same area where four more were recently found.

The Public Safety Department said in a separate statement that all 13 victims were believed to have been killed on the orders of “The Barbie” in his battle for control of the cartel.

Also Sunday, the military announced that it filed charges against four troops for the Sept. 5 shooting deaths of a man and his 15-year-old son along the highway linking the northern city of Monterrey to Laredo, Texas.

Authorities have said soldiers opened fire on the family vehicle when it failed to stop at a checkpoint, though relatives who were also in the car say they were shot at after they passed a military convoy.

The mother and wife of the two victims was also wounded in the shooting.

Cartel Violence - Decapitated Head Left in Plaza

A captain, a corporal and two infantrymen are in custody in military prison and have been charged with homicide, the Defence Department said in a statement.

Mexico’s military was already under scrutiny for this year’s killings of two brothers, ages 5 and 9, on a highway in Tamaulipas, a state bordering Nuevo Leon.

The National Human Rights Commission has accused soldiers of shooting the children and altering the scene to try to pin the deaths on drug cartel gunmen.

The army denies the allegations and says the boys were killed in the crossfire of a shootout between soldiers and suspected traffickers.

The scandal renewed demands from activists that civilian authorities, not the army, investigate human rights cases involving the military.

http://www.theglobeandmail.com/news/world/americas/mexican-marines-arrest-presumed-leader-of-beltran-leyva-cartel/article1704715/?cmpid=rss1

The Immigration Debate: The Arizona Law – Judge Bolton’s Decision (Part 4)

Read Part 1 here: http://mcauleysworld.wordpress.com/2010/07/30/the-immigration-debate-the-arizona-law-judge-boltons-decision-part-1/

Read Part 2 here:  http://mcauleysworld.wordpress.com/2010/07/30/the-immigration-debate-the-arizona-law-judge-boltons-decision-part-2/

Read Part 3 here: http://mcauleysworld.wordpress.com/2010/07/30/the-immigration-debate-the-arizona-law-judge-boltons-decision-part-3/

Pursuant to 8 U.S.C. § 1373(c), DHS is required to “respond to an inquiry by a Federal, State, or local government agency, seeking to verify or ascertain the citizenship or immigration status . . . for any purpose authorized by law, by providing the requested verification or status information.” DHS has, in its discretion, set up LESC, which is administered by ICE and “serves as a national enforcement operations center that promptly provides immigration status and identity information to local, state, and federal law enforcement agencies regarding aliens suspected of, arrested for, or convicted of criminal activity.” (Pl.’s Mot. at 6-7 (citing Palmatier Decl. ¶¶ 3-6).) Mr. Palmatier states in his Declaration that LESC resources are currently dedicated in part to national security objectives such as requests for immigration status determination from the United States Secret Service, the FBI, and employment-related requests at “national security related locations that could be vulnerable to sabotage, attack, or exploitation.” (Palmatier Decl. ¶ 4.)  (Page 18, lines 1 to 12)

Yes, I would invite you to review the history of the LESC and visit the LESC website. http://www.ice.gov/partners/lesc/index.htm

Chapter 8, § 1373(c), Obligation to respond to inquiries:

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.

http://www.law.cornell.edu/uscode/search/display.html?terms=1373&url=/uscode/html/uscode08/usc_sec_08_00001373—-000-.html

“shall… any individual … for any purpose authorized by law … by providing the requested information”

THIRD FALSE STATEMENT: DHS, IN ITS DISCRETION SET UP THE LESC – LESC MANDATED BY CONGRESS

We should note the additional false statement above, that, “DHS has, in its discretion, set up LESC”. The DHS was instructed by Congress to establish the LESC and provided with the funding to do so. This action was “mandated” by Congress, there was no “discretion” involved. The issue of “discretion” in the Executive Branch flows in this direction, the DHS will exist as long as the United States Congress allows it to exist, the DHS exists at the sole discretion of Congress, the DHS is a Congressional creation.

 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. (Page 18, lines 13 to 16)

Again, the significance of argument is what? This is not a constitutionally recognized argument of “preemption”. The allegations presented by the DOJ do not state a claim of preemption recognized by our Federal Courts nor does this claim state a cause of action for which relief maybe granted by a Federal Court.

The Federal Courts cannot forgive an Executive Agency from a responsibility delegated to it by Congress.

The DOJ may want to seek protection from the Federal Courts because Attorney General Eric Holder, Secretary of Homeland Security Janet Napolitano and Mr. Palmatier at  the LESC are incompetent and cannot properly allocate the resources provided by the Congress to their Executive Agencies. The fact that Attorney General Holder and Secretary Napolitano are not qualified to hold their jobs does not mean that a request from the State of Arizona or any other State for that matter is unconstitutional. An otherwise constitutional request cannot become “unconstitutional” because the Executive Agencies involved cannot allocate their resources to successfully complete those tasks specifically assigned to the Agencies by Congress.

For these reasons, the United States has demonstrated that it is likely to succeed on its claim that the mandatory immigration verification upon arrest requirement contained in Section 2(B) of S.B. 1070 is preempted by federal law. This requirement, as stated above, is likely to burden legally-present aliens, in contravention of the Supreme Court’s directive in Hines that aliens not be subject to “the possibility of inquisitorial practices and police surveillance.” 312 U.S. at 74. Further, the number of requests that will emanate from Arizona as a result of determining the status of every arrestee is likely to impermissibly burden federal resources and redirect federal agencies away from the priorities they have established. (Page 18, Lines 17- 24).

Simply put, the Judge is wrong. This finding is, as has already been demonstrated, not supported by existing law, the doctrine of “federal preemption” or any analysis of Congressional intent. In fact, the Judge’s contradicts the specific Congressional intent specifically stated in the Immigration Statutes and the creation of NSEERS and LESC.

I’m have no doubt that the points presented in this summary will be stressed by the Supreme Court when the Judge Bolton’s decision is reversed.  

FOOT NOTE 7 The problems associated with burdening federal resources are even more acute when considered in light of other state laws similar to this provision. (See Pl.’s Mot. at 31-32 (citing to a newspaper article stating that at least 18 other states are considering parallellegislation).); see also North Dakota v. United States, 495 U.S. 423, 458-59 (1990) (Brennan, (Page 18, Lines 26 – 28)

 b. Immigration Status Determination During Lawful Stops, Detentions, or Arrests

Next, the Court turns to the first sentence of Section 2(B): For any lawful stop, detention or arrest made by [an Arizona] law enforcement official or . . . law enforcement agency . . . in the enforcement of any other law or ordinance of a county, city or town of this state where reasonable suspicion exists that the person is an alien and is unlawfully present in the United States, a reasonable attempt shall be made, when practicable, to determine the immigration status of the person, except if the determination may hinder or obstruct an investigation. A.R.S. § 11-1051(B). The United States makes essentially the same arguments about this requirement. First, the United States advances that it imposes a burden on lawfully-present aliens not permitted by Hines, where the Supreme Court sought to protect the personal liberties of lawfully-present aliens to leave them free from the possibility of intrusive police practices that might affect international relations and generate disloyalty. (Pl.’s Mot. at 26 (citing Hines, 312 U.S. at 74).) Second, the United States argues that this requirement impermissibly burdens and redirects federal resources away from federally-established priorities. (Id.) The United States’ arguments regarding burdening of federal resources are identical to those outlined above and will not be restated. However, the United States makes several arguments with respect to the burden on lawfully-present aliens that are specific to or slightly different in the context of the first sentence of Section 2(B). First, the United States argues that this provision “necessarily places lawfully present aliens (and even U.S. citizens) in continual jeopardy of having to demonstrate their lawful status to non-federal officials.” (Id. at 26.) The United States further asserts that there are numerous categories of lawfully-present aliens “who will not have readily available documentation to demonstrate that fact,” including foreign visitors from Visa Waiver Program (Page 18, Lines 1 to 23)

The Court notes, “The United States makes essentially the same arguments” and “it imposes a burden on lawfully-present Aliens not permitted by Hines”. For the same reasons previously enumerated, the Court is wrong. The Court’s finding does not comport with the facts of this case, the law of the land or the intent of Congress. The Hines case, again, was a case involving State registration of aliens who had not been “arrested”. The DOJ has failed to produce any proof of an additional burden as was the case in Hines, there is no constitutional prohibition against confirming the “immigration status” of those under arrest … and the U.S. Supreme Court has already ruled that checking an arrested aliens NCIC record does not create an undue burden … the Judge’s second finding confirms, beyond all doubt, that this Judicial opinion is rooted in politics not law …

countries, individuals who have applied for asylum but not yet received an adjudication, people with temporary protected status, U and T non-immigrant visa applicants, or people who have self-petitioned for relief under the Violence Against Women Act. (Id. at 26-27.) Also, the United States points out that United States citizens are not required to carry identification, and some citizens might not have easy access to a form of identification that would satisfy the requirement of Section 2(B).9  (Page 19, Lines 1 to 6)

FALSE STATEMENT 4: “who will not have readily available documentation to demonstrate that fact,”…  including foreign visitors from Visa Waiver Program… The Visa Waiver program does not supersede any other section of United States Immigration Law.

First I want to urge the reader to note Foot Note 8 below, where I’ve added the specifics of the Visa Waiver Program. Title 8, Chapter 12, § 1187.

I find it very hard to express my complete devastation at the lack of candor and outright dishonesty exhibited by both Judge Bolton and our Department of Justice. These are not “errors” in reading the law, errors based on stupidity or incompetence; these are now, in my opinion, instances of dishonesty.     

It has been quite a while since I worked in the legal field on a daily basis, but I have written many, many briefs and read thousands of legal opinions. Never before have I come across a judicial opinion with 4 false statements made by a Judge. There are frequent disagreements concerning the interpretation of specific laws, however, the specific language or wording of a statute is easily determined. A statute’s wording is written in bold face on the page …. I’ve inserted the relevant statutes into this post for you to read and provided links for you to verify the accuracy of my claims … you  can decide for yourself. 

Unscrupulous Attorneys will misquote and miss-site cases, but I have never seen this from a Judge before never mind an Attorney General of the United States. The statement above is a false statement and I believe it to be an intentionally false statement. No matter what “program” an alien seeks to be admitted under, that alien must first register and once registered is required by Federal Law to carry their documentation … 

Foreign visitors requesting admission through the Visa Waiver Program must still register with NSEERS and/or the DHS. An individual seeking entry under the Visa Waiver Program is required to comply with all other “entry” and registration requirements. An individual asking inclusion in the “Visa Waiver Program” is asking for exemption from the requirement to “qualify” for a visa under our system of immigration quotas. Gaining an exemption from the Visa Quota System, does not exempt an individual from “registering” as an alien.  

(The fact that the Holder DOJ suggests that admission under the Visa Waiver Program exempts foreign nationals from registering with the U.S. Government should raise all sorts of red flags in Congress).

Title 8, Chapter 12, 1304; regulates alien registration procedures in the United States.

Title 8, Chapter 12, § 1304: Forms for registration and fingerprinting

 (a) Preparation; contents

The Attorney General and the Secretary of State jointly are authorized and directed to prepare forms for the registration of aliens under section 1301 of this title, and the Attorney General is authorized and directed to prepare forms for the registration and fingerprinting of aliens under section 1302 of this title. Such forms shall contain inquiries with respect to

(1) the date and place of entry of the alien into the United States;

(2) activities in which he has been and intends to be engaged;

(3) the length of time he expects to remain in the United States;

(4) the police and criminal record, if any, of such alien; and

(5) such additional matters as may be prescribed.

(b) Confidential nature

All registration and fingerprint records made under the provisions of this subchapter shall be confidential, and shall be made available only

(1) pursuant to section 1357 (f)(2) of this title, and

(2) to such persons or agencies as may be designated by the Attorney General.

(c) Information under oath

Every person required to apply for the registration of himself or another under this subchapter shall submit under oath the information required for such registration. Any person authorized under regulations issued by the Attorney General to register aliens under this subchapter shall be authorized to administer oaths for such purpose.

(d) Certificate of alien registration or alien receipt card

Every alien in the United States who has been registered and fingerprinted under the provisions of the Alien Registration Act, 1940, or under the provisions of this chapter shall be issued a certificate of alien registration or an alien registration receipt card in such form and manner and at such time as shall be prescribed under regulations issued by the Attorney General.

(e) Personal possession of registration or receipt card; penalties

Every alien, eighteen years of age and over, shall at all times carry with him and have in his personal possession any certificate of alien registration or alien registration receipt card issued to him pursuant to subsection (d) of this section. Any alien who fails to comply with the provisions of this subsection shall be guilty of a misdemeanor and shall upon conviction for each offense be fined not to exceed $100 or be imprisoned not more than thirty days, or both.

http://www.law.cornell.edu/uscode/search/display.html?terms=1304&url=/uscode/html/uscode08/usc_sec_08_00001304—-000-.html

The United States contends that the impact on lawfully-present aliens of the requirement that law enforcement officials, where practicable, check the immigration status of a person lawfully stopped, detained, or arrested where there is reasonable suspicion that the person is an alien and is unlawfully present will be exacerbated by several factors. (Id. at 28-29.) First, the United States suggests that the impact on lawfully-present aliens is enhanced because this requirement applies to stops for even very minor, non-criminal violations of state law, including jaywalking, failing to have a dog on a leash, or riding a bicycle on the sidewalk. (Id. at 28.) Also, the United States argues that the impact will be increased because other provisions in S.B. 1070 put pressure on law enforcement agencies and officials to enforce the immigration laws vigorously.10 (Id. at 29.) Hines cautions against imposing burdens on lawfully-present aliens such as those described above. See 312 U.S. at 73-74. Legal residents will certainly be swept up by this requirement, particularly when the impacts of the provisions pressuring law enforcement (Page 20, Lines 7 to 19).

Foot Note 8: The Visa Waiver Program permits visitors from certain countries to enter the United States without a visa, so long as various requirements are met. See, e.g., 8 U.S.C. § 1187; 8 C.F.R.§,§ 217.1-217.7. (Page 20, Lines 21 to 23).

Again, the Court acted dishonestly it discussing the Visa Waiver Program. The Visa Waiver Program does not eliminate an alien’s duty to register with trhe Federal Government and caryy their registration documents with them at all times. 

Title 8, Chapter 12, § 1187. Visa waiver program for certain visitors

 

(1) Seeking entry as tourist for 90 days or less

The alien is applying for admission during the program as a nonimmigrant visitor (described in section 1101 (a)(15)(B) of this title) for a period not exceeding 90 days.

2) National of program country

The alien is a national of, and presents a passport issued by, a country which

(A) extends (or agrees to extend), either on its own or in conjunction with one or more other countries that are described in subparagraph (B) and that have established with it a common area for immigration admissions, reciprocal privileges to citizens and nationals of the United States

3) Machine readable passport

(A) In general

Except as provided in subparagraph (B), on or after October 1, 2003, the alien at the time of application for admission is in possession of a valid unexpired machine-readable passport that satisfies the internationally accepted standard for machine readability.

(4) Executes immigration forms

The alien before the time of such admission completes such immigration form as the Attorney General shall establish.

(6) Not a safety threat

The alien has been determined not to represent a threat to the welfare, health, safety, or security of the United States.

(7) No previous violation

If the alien previously was admitted without a visa under this section, the alien must not have failed to comply with the conditions of any previous admission as such a nonimmigrant

http://www.law.cornell.edu/uscode/search/display.html?terms=1187&url=/uscode/html/uscode08/usc_sec_08_00001187—-000-.html

An individual admitted under the Visa Waiver Program must still register their entry with the Government, the alien must possess a passport (a legally recognized form of ID under the Arizona Law). They must undergo an NCIC and NSEERS check and complete the legally required screening process established by CONGRESS and Administered by the Executive Agencies. The “burdensome check” imagined by the Executive Agencies and agreed to by the Courts involves nothing more than an electronic inquiry of the data systems chartered by Congress and maintained at taxpayer expense to respond to just such an inquiry.

agencies to enforce immigration laws are considered. See A.R.S. § 11-1051(A), (H). Certain categories of people with transitional status and foreign visitors from countries that are part of the Visa Waiver Program will not have readily available documentation of their authorization to remain in the United States, thus potentially subjecting them to arrest or detention, in addition to the burden of “the possibility of inquisitorial practices and police surveillance.” Hines, 312 U.S. at 74. In Hines, the Supreme Court emphasized the important federal responsibility to maintain international relationships, for the protection of American citizens abroad as well as to ensure uniform national foreign policy. Id. at 62-66; see also Zadvydas v. Davis, 533 U.S. 678, 700 (2001) (“We recognize . . . the Nation’s need to ‘speak with one voice’ in immigration matters.”). The United States asserts, and the Court agrees, that “the federal government has long rejected a system by which aliens’ papers are routinely demanded and checked.” (Pl.’s Mot. at 26.)11 The Court finds that this requirement imposes an unacceptable burden on lawfully-present aliens. With respect to the United States’ arguments regarding the burden on and impediment of federal resources as they relate to the first sentence of Section 2(B), the Court’s conclusions mirror those stated above regarding the second sentence of Section 2(B). Federal resources will be taxed and diverted from federal enforcement priorities as a result of the increase in requests for immigration status determination that will flow from Arizona if law enforcement officials are required to verify immigration status whenever, during the course of a lawful stop, detention, or arrest, the law enforcement official has reasonable suspicion of unlawful presence in the United States.12 In combination with the impermissible burden this provision will place on lawfully-present aliens, the burden on federal resources and priorities also leads (Page 21, Lines 1 to 22).

 The Court continues to make clearly erroneous rulings, rulings not support by the facts, the law or Congressional intent.

Specifically the Court states, in error, that; “transitional status and foreign visitors from countries that are part of the Visa Waiver Program will not have readily available documentation”. As previously outlined. Individuals in the Visa waiver program are required to register, provide a passport, carry documentation and keep their “registration documents” on their person. Any implication to the contrary is dishonest. Even should the individual loose or have all of their documentation stolen, the person can be identified if they deal with the local authorities in an honest manner and identify themselves. Every alien who enters this Country legally creates a “data record” that the LESC can access.

The Court again returns to discuss cases that are not on point. The Court notes that, “a system by which aliens’ papers are routinely demanded and checked” are disfavored. The Courts, in fact, do not “disfavor” Law Enforcement authorities completing immigration checks or individuals taken into “custody”, there is not a single instance of a Court “overruling” an “immigration check” completed on a person who has been taken “into custody”. The status check is, technically, completed by the Executive Agency that receives the inquiry. The “detaining” or “investigating officer” requests a “status determination”, as is specifically outlined in Federal Immigration law.

to an inference of preemption. Therefore, for the purposes of preliminary injunction analysis, the Court concludes that the United States has demonstrated a likelihood of success on itschallenge to the first sentence of Section 2(B). Section 2(B) in its entirety is likely preempted by federal law.  (Page 22, lines 1 to 4)

3. Section 3: A.R.S. § 13-1509

Section 3 states that “a person is guilty of willful failure to complete or carry an alien registration document if the person is in violation of 8 [U.S.C. §§] 1304(e) or 1306(a).” A.R.S.§ 13-1509(A).13 The penalties for violation of Section 3, a class 1 misdemeanor, are amaximum fine of $100 and a maximum of 20 days in jail for a first violation and up to 30 days in jail for any subsequent violation. A.R.S. § 13-1509(H). Section 3 also limits violators’ eligibility for suspension of sentence, probation, pardon, and commutation of a sentence and requires violators to pay jail costs. A.R.S. § 13-1509(D), (E). Section 3 does not apply to “a person who maintains authorization from the federal government to remain in the United States.” A.R.S. § 13-1509(F). Essentially, Section 3 makes it a state crime to violate federal registration laws and provides for state prosecutions and penalties for violations of the federal registration law. The United States argues that Section 3 is preempted because it interferes with comprehensive federal alien registration law, seeks to criminalize unlawful presence, and will result in the harassment of aliens. (Pl.’s Mot. at 34-39.) Arizona asserts that Section 3 neither conflicts with federal law nor regulates in a federally occupied field. (Defs.’ Resp. at 21-22.) “[T]he power to restrict, limit, regulate, and register aliens as a distinct group is not an equal and continuously existing concurrent power of state and nation[;] . . . whatever power (Page 22, Lines 1 to 22).

 

To be continued:

Read Part 1 here: http://mcauleysworld.wordpress.com/2010/07/30/the-immigration-debate-the-arizona-law-judge-boltons-decision-part-1/

Read Part 2 here:  http://mcauleysworld.wordpress.com/2010/07/30/the-immigration-debate-the-arizona-law-judge-boltons-decision-part-2/

Read Part 3 here: http://mcauleysworld.wordpress.com/2010/07/30/the-immigration-debate-the-arizona-law-judge-boltons-decision-part-3/

The Immigration Debate: The Arizona Law – Judge Bolton’s Decision (Part 3)

The Immigration Debate: The Arizona Law – Judge Bolton’s Decision (Part 3)

Even if the Government’s allegation that, “It will result in the harassment of lawfully present aliens,” is true, and it is not, the allegation fails to state a claim subject to  one of the three areas of “preemption”. A claim of harassment may lend itself to a “civil rights claim”, it is not a within the “class of claims” to be considerd under the Federal preemption doctrine.

Example: A suspect is arrested and it is alleged that the suspect had 10 tons of cocaine in his possession. After the suspect is placed under arrest he is charged with bank robbery. Even if the Judge assumes the suspect had 10 tons of cocaine in his possession, the Judge must dismiss the bank robbery charges, because those charges do not apply to the facts alleged.

Even if the Government’s allegation is true, that the Arizona Law will “result in the harassment” of lawfully present aliens”, such action does not give rise to a claim of preemption.

Claim 2:  “it will burden federal resources and impede federal enforcement and policy priorities.”

Does this allegation state a basis for a “preemption claim” or is this claim one of “administrative inconvenience”. One type of claim is protected by the Constitution, one is not.

Is this a claim of Express Preemption? No, the DOJ doesn’t allege that Congress “reserved” enforcement for the Federal Government, such a claim would be unsustainable.

Is this a claim of Field Preemption? No, the DOJ has not alleged that the Congress intended to preclude the States from supplementing the enforcement of our Immigration Laws.

Is this a claim of Conflict Preemption? No, the allegation fails to state a claim which, even if it were true, would fall within the criteria of “conflict preemption”. The allegation is one of “administrative inconvenience” not of “conflict preemption”. The Holder DOJ has not alleged that the Arizona Law creates the situation where “compliance with both federal and state regulations is a physical impossibility”… the Holder DOJ just states that compliance will be difficult … the DOJ does not state that it is impossible.

What was the Congressional Intent?

Despite being instructed by both the Federal Appellate Courts and the U.S.  Supreme Court to, “look to the intent of Congress” prior to interpreting Immigration Law, this Judge failed to do so.

Title 8, Chapter 12, § 1252c, (b) Cooperation

We know what Congress intended  when Congress passed Title 8, Chapter 12, § 1252c, (b) Cooperation; because Congressional expressly stated what Congress wanted the Attorney General, the Department of Justice and the Department of Homeland Security to do; Congress instructed, “The Attorney General shall cooperate with the States to assure that information in the control of the Attorney General, including information in the National Crime Information Center, that would assist State and local law enforcement officials in carrying out duties under subsection (a) of this section is made available to such officials.”

This Congressional statement is the exact opposite of an “express preemption” of Federal Law, the statement is, in fact, an “express invitation” to the States. Congress’ language evidences an “express invitation” by Congress to the States, an invitation for the States to assist in the enforcement of Federal Immigration Law. The language also “orders” the Attorney General and his DOJ and the DHS to supply the necessary information.

Title 8 U.S.C. § 1373(c),

Title 8 U.S.C. § 1373(c), This Court makes reference to this section of Title 8 later in this opinion. The Court states. “DHS is required to “respond to an inquiry by a Federal, State, or local government agency, seeking to verify or ascertain the citizenship or immigration status …

Who placed this obligation on the Department of Justice and the Department of Homeland Security? The Congress imposed this requirement, this obligation. Unequivocal evidence of Congressional intent.

The LESC – “The Law Enforcement Support Center”

Later in this opinion Judge Bolton will discusses the LESC, however, Judge Bolton does not discuss the Congressional intent behind the LESC, what the LESC does nor will she acknowledge the accomplishments of the LESC.

From the LESC Website:  http://www.ice.gov/partners/lesc/index.htm   

The Law Enforcement Support Center (LESC) serves as a national enforcement operations center by providing timely immigration status and identity information to local, state and federal law enforcement agencies on aliens suspected, arrested or convicted of criminal activity. The LESC operates 24 hours a day, 7 days a week assisting law enforcement agencies with information gathered from 8 DHS databases, the National Crime Information Center (NCIC), the Interstate Identification Index (III) and other state criminal history indices.

So, the LESC was created to comply with Congressional mandates and the specific mission of the LESC is to provide the exact information to be requested under the Arizona Law by Arizona Law Enforcement Officers.

In addition to providing real time assistance to law enforcement agencies that are investigating, or have arrested, foreign-born individuals involved in criminal activity, the LESC also performs the following investigative functions:

The LESC is “chartered” to assist assists law enforcement officers in completing the exact law enforcement duties anticipated under the Arizona Law.

National Crime Information Center (NCIC) – The LESC administers and controls immigration related cases in this nationwide law enforcement consortium and criminal database for Immigration and Customs Enforcement (ICE).

The LESC Communications Center serves the law enforcement community with NCIC hit confirmation information. (As is required under Title 8, Chapter 12, § 1252c, (b) Cooperation.)

You can read the August 1, 1995 GAO report to Congress on the LESC here:  http://www.gao.gov/archive/1995/ai95147.pdf

The LESC defines its mission this way:

The mission of the Law Enforcement Support Center (LESC) is to protect the United States and its people by providing timely, accurate information and assistance to the federal, state and local law enforcement community—365 days a year, 24 hours a day.

The Law Enforcement Support Center (LESC), administered by U.S. Immigration and Customs Enforcement (ICE), is a critical point of contact for the national law enforcement community, providing a wide range of informational services to officers and investigators at the local, state and federal levels.

The primary users of the LESC are state and local law enforcement officers in the field who need information about foreign nationals they encounter in the course of their daily duties.

LESC technicians have ready access to a wide range of databases and intelligence resources, including the following:

ICE immigration databases;

National Crime Information Center (NCIC);

Interstate Identification Index (III);

Student and Exchange Visitor Information System (SEVIS);

U.S. Visitor and Immigrant Status Indicator Technology (US-VISIT) system; and

National Security Entry-Exit Registration System (NSEERS).

http://www.ice.gov/partners/lesc/lesc_factsheet.htm

The LESC has devised a “computerized contact screen” accessible by State and Local Law enforcement from their squad cars. The LESC “contact screen” has been incorporated into “State” computerized criminal investigation systems.

Over the last 6 years. LESC has processed nearly 10,000,000 (10 million) information requests from State and Local Law Enforcement Officers.

Over 90 percent of the “information requests” submitted to the LESC are submitted electronically. (Just like the NCIC System). Over 90 percent of the requests are processed in under 10 minutes … under 10 minutes. In the last 4 years the LESC has processed over 4,000,000 electronic queries. Electronic inquires are system based and system responded … they require no human contact. The NCIC system relies on electronic inquiries/responses.

http://www.ice.gov/pi/news/factsheets/lesc.htm    

NSEERS

From the Official NEERS web site:

The National Security Entry-Exit Registration System (NSEERS) also known as Special Registration, put in place after September 11, 200 , to keep track of those entering and leaving our country in order to safeguard U.S. citizens and America’s borders. NSEERS was the first step taken by the Department of Justice (DOJ)  and then by the Department of Homeland Security (DHS) in order to comply with the development of the Congressionally- mandated requirement for a comprehensive entry-exit program.

Through the Special Registration system, the U.S. government can keep track of the more than 35 million nonimmigrant visitors who enter the United States as well as some nonimmigrant visitors already in the United States. These individuals are required to register with immigration authorities either at a port of entry or a designated ICE office in accordance with the special registration procedures.

Nonimmigrant visitors who do not comply with special registration requirements or other terms of their admission to the United States during their stay will be considered out of status and may be subject to arrest, detention, fines and/or removal from the country.

http://www.ice.gov/pi/specialregistration/index.htm

Brief summary of preemption:

There are there “classifications” of preemption;

1). Express

2). Implied: Field

3). Implied Conflict.

The Department of Justice alleged that the Arizona Law, A.R.S. § 11-1051(B). Section 2(B), was prohibited because, “this section is preempted because (1) it will result in the harassment of lawfully present aliens and (2) will burden federal resources and impede federal enforcement and policy priorities.” Neither DOJ claim qualifies for protection under the Federal Preemption Doctrine. 

“Harassment” claims don’t qulaify for consideration under the “preemption doctine”.

The claim that the Arizona Law will “burden federal resources and impede federal enforcement and policy priorities.” fails to State an allowable  claim under the Federal preemption doctrine. When the alleged “burden” is created by an “act” or “acts” invited by Congress and anticipated  in the Congressional Legislation that created the “complaining”  Executive Agency, a claim of “preemption” cannot be sustained. In non-legal terms, an Executive Agency cannot escape the responsibilities and obligation specifically placed on the Executive Agency by Congress  by claiming, “but if we do our job, we will be too busy to do our job Congress, even if it is the job Congress gave us to do.”

The Congressional intent, manifested in: Title 8, Chapter 12, § 1252c, (b) Cooperation; Title 8 U.S.C. § 1373(c); the creation of LESC and NSEERS, (a creation “mandated” by Congress) gives clear and unequivocal evidence that Congress intends for State Law Enforcement Officers to routinely make inquiry concerning immigration status and that State Law Enforcement Officers  were expected by Congress to make routine contacts with the “Federal Executive Agencies” and obtain immigration status information as part of their daily law enforcement duties. Information that is to be obtained by State and Local Law Enforcement Officers form LESC.

Preliminary Conclusion:

The preliminary allegations of the DOJ do not state a cause of action under the “federal preemption doctrine”. The facts complained of in this case and discussed to this point, do not violate any law of the United States nor are they in vio;ation of the U.S> Constitution. The clear intent of Congress is that State Law Enforcement Officers are to make immigration inquiries and that the Federal Executive Agencies are “required by” Congressional “mandate”  to respond to the requests and that the Executive Agencies are “required” by Congress to provide the requested information. The Congressional intent is clear, expressed and specific. The Congressional intent is unequivocal.

Back to the Bolton opinion.

a. Mandatory Immigration Status Determination Upon Arrest

The Court first addresses the second sentence of Section 2(B): “Any person who is arrested shall have the person’s immigration status determined before the person is released.” Arizona advances that the proper interpretation of this sentence is “that only where a reasonable suspicion exists that a person arrested is an alien and is unlawfully present in the United States must the person’s immigration status be determined before the person is released.” (Defs.’ Resp. to Pl.’s Mot. (“Defs.’ Resp.”) at 10.)5  Arizona goes on to state, “[T]he Arizona Legislature could not have intended to compel Arizona’s law enforcement officers to determine and verify the immigration status of every single person arrested – even for United States citizens and when there is absolutely no reason to believe the person is unlawfully present in the country.” (Id.) The Court cannot interpret this provision as Arizona suggests. Before the passage of H.B. 2162, the first sentence of Section 2(B) of the original S.B. 1070 began, “For any lawful contact” rather than “For any lawful stop, detention or arrest.” (Compare original S.B. 1070 § 2(B) with H.B. 2162 § 3(B).) The second sentence was identical in the original version and as modified by H.B. 2162. It is not a logical interpretation of the Arizona Legislature’s intent to state that it originally intended the first two sentences of Section 2(B) to be read as … (Page 15, lines 9 to 25)

FOOT NOTE 5: Arizona acknowledges that this sentence of Section 2(B) “might well have been more artfully worded.” (Id.) (Page 15, line 27 & 28).

dependent on one another. As initially written, the first sentence of Section 2(B) did not contain the word “arrest,” such that the second sentence could be read as modifying or explicating the first sentence. 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. As a result of this conclusion, the Court reads the second sentence of Section 2(B) independently from the first sentence. The Court also concludes that the list of forms of identification that could provide a presumption that a person is not an unlawfully present alien applies only to the first sentence of Section 2(B) because the second sentence makes no mention of unlawful presence: the second sentence states plainly that “[a]ny person who is arrested” must have his or her immigration status determined before release. A presumption against unlawful presence would not dispose of the requirement that immigration status be checked because a legal permanent resident might have 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. The United States asserts that mandatory determination of immigration status for all arrestees “conflicts with federal law because it necessarily imposes substantial burdens on lawful immigrants in a way that frustrates the concern of Congress for nationally-uniform rules governing the treatment of aliens throughout the country – rules designed to ensure ‘our traditional policy of not treating aliens as a thing apart.’” (Pl.’s Mot. at 26 (quoting Hines v. Davidowitz, 312 U.S. 52, 73 (1941)).) Finding a state law related to alien registration to be preempted, the Supreme Court in Hines observed that Congress “manifested a purpose to [regulate immigration] in such a way as to protect the personal liberties of law-abiding aliens through one uniform national . . . system[] and to leave them free from the possibility of inquisitorial practices and police surveillance.” 312 U.S. at 74. (Page 16, lines 1 to 28).

And what substantial burden does this activity place on those who are arrested … what is the substantial burden on those taken into custody … the DOJ is required to actually demonstrate a burden .. the DOJ is the moving party here … simply claiming a “substantial burden” does not “cut mustard”. 

The clear and unequivocal intent of Congress is for State and Local Law Enforcement Officers to make such inquiry during their daily routines. After all, the proof is in the fact that the LESC has processed over 10,000,000 requests for information over the last 6 years and that the LESC notes, in its mission statement, that Congress created the LESC specifically to reply to the requests from State and Local Law Enforcement Officials and that these Officials are expected to make such inquiry as a part of their normal law enforcement duties.

“Congress “manifested a purpose to [regulate immigration] in such a way as to protect the personal liberties of law-abiding aliens”…

Yes, the operative term in the Hines case is “law abiding”. The Arizona Law is not an “alien registration program”, to suggest that it is silly. An investigation of Immigration status is being conducted not on “law abiding aliens” but on those who have been arrested, before the arrested party is released.

Do you remember how many of the 911 terrorists were encountered by Law Enforcement Officers prior to flying the planes into the World Trade Center? Prior to 911 we lacked the systems to identify those terrorists and the fact that they were in this Country illegally. Today we do not.

The Hines case is not on point. What does a State registration system of those who have not been arrested, have to do with confirming an arrested suspect’s immigration status with the Executive Agencies chartered to provide local law enforcement personal with that specific information.      

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. Given the large number of people who are technically “arrested” but never booked into jail or perhaps even transported to a law enforcement facility, detention time for this category of arrestee will certainly be extended during an immigration status verification. (See Escobar, et al. v. City of Tucson, et al., No. CV 10-249-TUC-SRB, Doc. 9, City of Tucson’s Answer & Cross-cl., ¶ 38 (stating that during fiscal year 2009,

(Page 17, Lines 1 to 9)

I’m so disappointed in this Judge. I expected her to at least try to appear impartial and attempt to hide her political bias.

First: No State Law Enforcement Officer in any State is empowered to determine the “immigration status” of any individual. The DOJ and the DHS are charged by Congress to make that determination. The State Law Enforcement personal are charged with investigation, apprehension and inquiry … to make an immigration status inquiry to the appropriate Executive Agencies cretaed to handle such requests.

“burdens lawfully-present aliens because their liberty will be restricted while their status is checked”.

Truthfully, I’ve never read an argument with less merit or less insight. The Law Enforcement Officer is making an “inquiry” concerning an arrested suspect, so while the person may or may not be “lawfully present” they have been “arrested”.  As a “criminal violator” the individual’s criminal background will be checked through the NCIC data base regardless of immigration status. The NCIC, the National Crime Information Center is administered by the FBI and as previously noted, is linked to the LESC.  The LESC inquiry and the NCIC inquiry will be done electronically and over 95% of those inquiries are completed within 10 minutes. Only those who cannot “identify themselves”, “present appropriate identification” or “refuse to identify themselves” are burdened further.

From the Official NCIC web site: 

The National Crime Information Center, or NCIC, was launched on January 27, 1967 with five files and 356,784 records. By the end of 2009, NCIC contained more than 15 million active records in 19 files. NCIC averages 7.5 million transactions per day.

NCIC helps criminal justice professionals apprehend fugitives, locate missing persons, recover stolen property, and identify terrorists. It also assists law enforcement officers in performing their official duties more safely and provides them with information necessary to aid in protecting the general public.  

http://www.fbi.gov/hq/cjisd/ncic.htm

Even if the DOJ’s laughable argument were true, that the Arizona law “burdens lawfully-present aliens”, the burden cannot be removed by a claim of Federal preemption … Congress, after all, established the system creating the burden … remember the “burden” on the “suspect” is created by making an inquiry to an “Executive Agency” chartered to receive the inquiry in the first place … and the Executivew Agency has been instructed by Congress to respond to the inquiry …

Tucson used the cite-and-release procedure provided by A.R.S. § 13-3903 to “arrest” and immediately release 36,821 people).) Under Section 2(B) of S.B. 1070, all arrestees will be required to prove their immigration status to the satisfaction of state authorities, thus increasing the intrusion of police presence into the lives of legally-present aliens (and even United States citizens), who will necessarily be swept up by this requirement.6  The United States argues that the influx of requests for immigration status determination directed to the federal government or federally-qualified officials would “impermissibly shift the allocation of federal resources away from federal priorities.” (Pl.’s Mot. at 30.) (Page 17, Lines 8 to 17)

What a bizarre argument. “The influx of requests for immigration status determination directed to the federal government or federally-qualified officials would “impermissibly shift the allocation of federal resources away from federal priorities.”

As if the executive agencies are allowed to set their own priorities. As if the Executive Agencies are not “tasked” with specific “responsibilities”, specific “duties and specific “obligations” by Congress.

Never mind that fact that the DOJ is asking the Judge to accept the “hypothetical” argument that the Arizona Law would result in an “influx of requests” … so what if the law did create an “influx of requests” … the Executive Agencies receiving the requests were chartered to do just that in the first place …. receive immigration inquiry requests from the State and Local Law enforcement officers.

Can you imagine the DOJ arguing that a state law was unconstitutional because the law resulted in more letters being delivered to the Post Office …. The post office is the “Federal Agency” chartered to receive and deliver mail … can you imagine a claim that a state law is “unconstitutional” because “the influx of” mail to be sorted and delivered by the Post Office or federally-qualified Postal Officials would “impermissibly shift the allocation of federal resources away from federal priorities for mail delivery”.  

If this were not such a serious issue, this argument would be worthy of a good hard laugh.   

State laws have been found to be preempted where they imposed a burden on a federal agency’s resources that impeded the agency’s function. See Buckman Co. v. Plaintiffs’ Legal Comm., 531 U.S. 341, 351 (2001) (finding a state law preempted in part because it would create an incentive for individuals to “submit a deluge of information that the [federal agency] neither wants nor needs, resulting in additional burdens on the FDA’s evaluation of an application”); cf. Garrett v. City of Escondido, 465 F. Supp. 2d 1043, 1057 (S.D. Cal. 2006) (expressing concern in preemption analysis for preliminary injunction purposes that burden on DOJ and DHS as a result of immigration status checks could “impede the functions of those federal agencies”). (Page 17, Lines  18 to 28)

The major case cited by the DOJ and Judge Bolton,Buckman Co. v. Plaintiffs’ Legal Comm,  is clearly not on point. In citing Buckman the Court noted, “would create an incentive for individuals to submit a deluge of information that the [federal agency] neither wants nor needs”.

Under the Arizona Law information is not being submitted to the an Executive Agency, it is being sought from it … information the Executive Agency has been instructed, instructed by Congress, to provide …

The information being requested by Arizona Law Enforcement is the very information the Executive Agency is chartered to provide … it is the “reason” for the Executive Agency’s existence and answering the request and supplying the information is an “obligation” imposed on the Agency by Congress … answering the request is not optional … it is the job the Executive Agency was created to complete.

Foot Note 6:  The Court is also cognizant of the potentially serious Fourth Amendment problems with the inevitable increase in length of detention while immigration status is determined, as raised by the plaintiffs in Friendly House, et al. v. Whiting, et al., No. CV 10-1061-PHX-SRB. (Page 17, Lines 26 to 28)

The Judge’s Liberal activist leanings are showing again. The Plaintiff DOJ has not raised the issue of Fourth Amendment problems in this section of their pleadings and as this is a request for a preliminary injunction, it isn’t proper for the Court to consider this issue on its own accord.

Let us return, briefly to Title 8, Chapter 12, § 1252c, (b) Cooperation, for an examination “Congressional intent”.

“The Attorney General shall cooperate with the States to assure that information in the control of the Attorney General, including information in the National Crime Information Center, that would assist State and local law enforcement officials in carrying out duties under subsection (a) of this section is made available to such officials.” 

Congress did not qualify the duties of the Attorney General or the DOJ. The Congress stated that the Attorney General shall cooperate. Congress did not state that the Attorney General could cooperate when the Department of Justice felt like cooperating, that the DOJ could pick and choose when it wanted to cooperate, that the DOJ could selectively following this “instruction’. That the DOJ was excused from following this Congressional mandate if it were difficult or would strain resources.

Congress was unequivocal –  the DOJ shall respond. The word “shall” is an instruction, a directive, an order to cooperate, not a suggestion that the DOJ might want to cooperate. The Congressional intent is clear and unambiguous.

Read Part 1 here: http://mcauleysworld.wordpress.com/2010/07/30/the-immigration-debate-the-arizona-law-judge-boltons-decision-part-1/

Read Part 2 here:  http://mcauleysworld.wordpress.com/2010/07/30/the-immigration-debate-the-arizona-law-judge-boltons-decision-part-2/

Read Part 4 Here: http://mcauleysworld.wordpress.com/2010/07/30/the-immigration-debate-the-arizona-law-judge-boltons-decision-part-4/

The Immigration Debate: The Arizona Law – Judge Bolton’s Decision (Part 2)

The Immigration Debate: The Arizona Law – Judge Bolton’s Decision (Part 2)

Read Part 1 here: http://mcauleysworld.wordpress.com/2010/07/30/the-immigration-debate-the-arizona-law-judge-boltons-decision-part-1/

DHS has also established the Law Enforcement Support Center (“LESC”), which is administered by Immigration and Customs Enforcement (“ICE”) and serves as a national enforcement information center, answering queries from state and local officials regarding immigration status. (Page 7, lines 7 to 14).

We will revisit the Law Enforcement Support Center later in this post.

At this point I will make two comments;

1). The “DHS has also established the Law Enforcement Support Center”, the LESC was established by the DHS at the express instruction of Congress.

The DHS didn’t just decide to set up a Law Enforcement Support Center on its own volition, Congress instructed the DHS to do so. Congress then appropriated the funds for the DHS to proceed.

2). The Judge makes no mention of why Congress “ordered” the DHS to set up the LESC. The Judge does not address the Congressional intent behind the LESC, the reason or intent of Congress in appropriating funds for the LESC. The Judge failed to do this despite the fact that the Federal Appellate and U.S. Supreme Court have directed her to do exactly that.

Judicial opinions concerning Federal Immigration Law are to be guided by the intent of Congress, not the desires of the Executive or the whimsy of the Executive Agencies. 

B. Overview of S.B. 1070

1. Section 1

Section 1 of S.B. 1070 states that “the intent of [S.B. 1070] is to make attrition through enforcement the public policy of all state and local government agencies in Arizona” and that “[t]he provisions of this act are intended to work together to discourage and deter the unlawful entry and presence of aliens and economic activity by persons unlawfully present in the United States.” Section 1 also states that “there is a compelling interest in the cooperative enforcement of federal immigration laws throughout all of Arizona.”

2. Section 2

Section 2 of S.B. 1070 adds A.R.S. § 11-1051. Section 2 contains twelve separate subsections. Subsection 2(A) prohibits Arizona officials, agencies and political subdivisions from limiting or restricting the enforcement of federal immigration laws. A.R.S. § 11- 1051(A). Subsection 2(B) requires officers to make a reasonable attempt, when practicable, (Page 7, Line 16 to 28)

to determine an individual’s immigration status during any lawful stop, detention, or arrest where reasonable suspicion exists that the person is unlawfully present in the United States. Id. § 11-1051(B). Subsection 2(B) also requires that all persons who are arrested have their immigration status verified prior to release. Id. Subsections 2(B) and 2(E) provide the process for verifying immigration status and list documents that create a presumption of lawful presence. Id. § 11-1051(B), (E). Mandatory stops for the purpose of immigration status verification are not required or authorized by Subsection 2(B). Subsection 2(C) requires notification of ICE or Customs and Border Protection whenever an unlawfully present alien is discharged or assessed a monetary obligation. Id. § 11-1051(C). Subsections 2(D) and (F) permit law enforcement to securely transport unlawfully present aliens and send, receive, and exchange information related to immigration status. Id. § 11-1051(D), (F). (At page 8, lines 1 to 11).

In addition, Subsection 2(H) permits legal residents of Arizona to bring actions in state court “to challenge any official or agency of [Arizona] that adopts or implements a policy or practice that limits or restricts the enforcement of federal immigration laws to less than the full extent permitted by federal law.” Id. § 11-1051(H). Subsections 2(I) and (J) address the civil penalties arising from such civil suits, and Subsection 2(K) provides that law enforcement officers are indemnified against reasonable costs and expenses incurred by the officer in connection with any suit initiated under this Section unless the officer is found to have acted in bad faith. Id. § 11-1051(I)-(K). (At page 8, lines 12 to 19).

3. Section 3

Section 3 of S.B. 1070 adds A.R.S. § 13-1509, which provides that “a person is guilty of willful failure to complete or carry an alien registration document if the person is in violation of [8 U.S.C. §§] 1304(e) or 1306(a),” federal statutes that require aliens to carry documentation of registration and penalize the willful failure to register. A.R.S. § 13-1509(A). Violation of Section 3 is a class 1 misdemeanor and results in a maximum fine of $100 and a maximum of 20 days in jail for a first violation and up to 30 days in jail for any subsequent violation. Id. § 13-1509(H). Section 3 limits a violator’s eligibility for a suspended sentence, probation, pardon, and commutation of a sentence and requires violators to pay jail costs. Id. (At page 8, lines 19 to 28)

§ 13-1509(D), (E). In the enforcement of Section 3, immigration status may be determined by a law enforcement officer authorized by the federal government or pursuant to 8 U.S.C. § 1373(c). Id. § 13-1509(B). Pursuant to Subsection 3(C), law enforcement officers are not permitted to consider race, color, or national origin in the enforcement of Section 3. Id. § 13- 1509(C). Finally, Section 3 does not apply to “a person who maintains authorization from the federal government to remain in the United States.” Id. § 13-1509(F). (Page 9, lines 1 to 6)

4. Section 4

In Section 4 of S.B. 1070, the Arizona Legislature revised A.R.S. § 13-2319 by adding a provision that permits officers enforcing Arizona’s human smuggling statute to stop any person who is operating a motor vehicle if the officer has reasonable suspicion to believe that the person is in violation of any civil traffic law. Id. § 13-2319(E). Section 4 does not make any other changes or additions to Arizona’s human smuggling statute, A.R.S. § 13-2319. (Page 9, lines 7 to 12)

5. Section 5

Section 5 of S.B. 1070 adds two provisions to the Arizona Criminal Code, A.R.S. §§ 13-2928 and 13-2929. A.R.S. § 13-2928(A) provides that it is unlawful for an occupant of a motor vehicle that is stopped on a street, roadway, or highway and is impeding traffic to attempt to hire a person for work at another location. Id. § 13-2928(A). Similarly, A.R.S. § 13-2928(B) provides that it is unlawful for a person to enter a motor vehicle in order to be hired if the vehicle is stopped on a street, roadway, or highway and is impeding traffic. Id. § 13-2928(B). Finally, A.R.S. § 13-2928(C) provides that it is unlawful “for a person who is unlawfully present in the United States and who is an unauthorized alien to knowingly apply for work, solicit work in a public place or perform work as an employee or independent contractor in this state.” Id. § 13-2928(C). Violation of A.R.S. § 13-2928 is a class 1 misdemeanor. Id. § 13-2928(F). Section 5 of S.B. 1070 also creates A.R.S. § 13-2929, which provides that it is unlawful for a person who is in violation of a criminal offense to: (1) transport or move or attempt to transport or move an alien in Arizona in furtherance of the alien’s unlawful presence in the United States; (2) conceal, harbor, or shield or attempt to conceal, harbor, (At Page 9, lines 12 to 28). shield an alien from detection in Arizona; and (3) encourage or induce an alien to come to or live in Arizona. Id. § 13-2929(A)(1)-(3). In order to violate A.R.S. § 13-2929(A), a person must also know or recklessly disregard the fact that the alien is unlawfully present in the United States. Id. Violation of A.R.S. § 13-2929 is a class 1 misdemeanor. Id. § 13-2929(F). (At Page 10, lines 1 to 4)

6. Section 6

Section 6 of S.B. 1070 amends A.R.S. § 13-3883 to permit an officer to arrest a person without a warrant if the officer has probable cause to believe that “the person to be arrested has committed any public offense that makes the person removable from the United States.”Id. § 13-3883(A)(5). (At page 10, lines 5 to 9)

 7. Sections 7-13

Sections 7, 8, and 9 amend Arizona’s law imposing sanctions on employers who hire unlawfully present aliens. See A.R.S. §§ 23-212, 23-212.01, 23-214. Section 10 amends A.R.S. § 28-3511 to allow for the immobilization or impoundment of vehicles used in the transporting and concealing of unlawfully present aliens where the driver of the vehicle knew or recklessly disregarded the fact that the alien was unlawfully present. Section 11 creates the “gang and immigration intelligence team enforcement mission fund” for civil penalties paid pursuant to Subsection 2(I). Finally, Section 12 provides for the severance of any unconstitutional provisions, and Section 13 provides a short title for the enactment. (Page 10, lines 10 to 18)

C. Procedural Posture

The United States filed its Complaint challenging the constitutionality of S.B. 1070 on July 6, 2010, naming as Defendants the State of Arizona and Governor Brewer in her official capacity (collectively, “Arizona”). On the same day, it also filed a Motion requesting that the Court preliminarily enjoin Arizona from enforcing S.B. 1070 until the Court can make a final determination as to its constitutionality. (Doc. 6, Pl.’s Lodged Proposed Mot. for Prelim. Inj.) (Page 10, Lines 19 to 24).

The United States argues principally that the power to regulate immigration is vested exclusively with the federal government, and the provisions of S.B. 1070 are therefore preempted by federal law. The Court held a Hearing on Plaintiff’s Motion on July 22, 2010(Page 10, Lines 25 to 28)

The Executive Agencies presenting these arguments are not exclusively empowered to do anything …. Congress has the “exclusive power” to create and write our Immigration Laws, those laws that regulate who can legally enter the Country … the Executive Agencies who brought this lawsuit share “concurrent” responsibility for enforcement of the Immigration Laws.

When the above paragraph, “The United States argues principally that the power to regulate immigration is vested exclusively with the federal government” it is the Department of Justice, not the Congress, who is presenting the argument. (“the Hearing”). S.B. 1070 has an effective date of July 29, 2010. The Court now considers the United States’ Motion for Preliminary Injunction. (Page 11, Lines 1 and 2)

III. LEGAL STANDARDS AND ANALYSIS

A. General Legal Standards

“A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. Natural Res. Def. Council, Inc., 129 S. Ct. 365, 374 (2008) (citations omitted). The United States primarily asserts that the statutory provisions contained in S.B. 1070 are preempted by federal law. The Supremacy Clause of the United States Constitution makes federal law “the supreme law of the land.” U.S. Const. art. VI, cl. 2. The Supreme Court has consistently ruled that the federal government has broad and exclusive authority to regulate immigration, supported by both enumerated and implied constitutional powers.4 While holding that the “[p]ower to regulate immigration is unquestionably exclusively a federal power,” the Supreme Court concluded that not every state enactment “which in any way deals with aliens is a regulation of immigration and thus per se preempted by this constitutional power, whether latent or exercised.De Canas v. Bica, 424 U.S. 351, 354-355 (1976). (Page 11, Lines 3 to 17)

The following paragraphs are very important, as will be seen in the next few pages of this opinion. In the following paragraphs the Judge reviews the topic of “Federal preemption”, the basis of the Department of Justice Lawsuit. For the DOJ to prevail in this suit, it must present evidence to support its “allegations” that the Arizona Law violates one of the three standards for preemption. Let me state that again; the Department of Justice lawsuit cannot prevail unless the Department of Justice can establish a violation of one of three stated elements of the doctrine of  Federal preemption.

Federal preemption can be either express or implied. Chicanos Por La Causa v. Napolitano (Chicanos Por La Causa I), 544 F.3d 976, 982 (9th Cir. 2008), cert. granted, 78 U.S.L.W. 3065, 78 U.S.L.W. 3754, 78 U.S.L.W. 3762 (U.S. June 28, 2010) (No. 09-115).

There are two types of implied preemption: field preemption and conflict preemption. Id. Field preemption occurs “where ‘the depth and breadth of a congressional scheme . . .occupies the legislative field.’” Id. (quoting Lorillard Tobacco Co. v. Reilly, 533 U.S. 525 (Page 11, lines 17 to 23)

Once again, it has been held that the “Congressional Branch of the Federal Government” has the exclusive right to regulate Immigration, not the Executive Branch …

Preemption: There are three and only three different types of preemption.

1).  Express Preemption

Where Congress, not the Executive Branch clearly and unequivocally states that the area of law is reserved for the Federal Government. Express preemption occurs only when a federal statute explicitly confirms Congress’s intention to preempt state law. English v. General Elec. Co., 496 U.S. 72, 78-79 (1990). “If a federal law contains an express pre-emption clause, it does not immediately end the inquiry because the question of the substance and scope of Congress’ displacement of state law still remains.” Altria Group v. Good, 555 U.S. ___ (2008), Docket Number: 07-562.

Implied preemption can occur in two ways: field preemption or conflict preemption. Massachusetts Ass’n of HMOs v. Ruthardt, 194 F.3d 176, 179 (1st Cir. 1999).

 2. Conflict preemption

Under the Supremacy Clause, any state law that conflicts with a federal law is preempted. Gibbons v. Ogden, 22 U.S. 1 (1824). Conflict arises when it is impossible to comply with both the state and federal regulations, or when the state law interposes an obstacle to the achievement of Congress’s discernible objectives. Gade v. National Solid Wastes Mgmt. Ass’n, 505 U.S. 88, 98 (1992).

3. Field preemption

Even without a conflict between federal and state law or an express provision for preemption, the courts will infer an intention to preempt state law if the federal regulatory scheme is so pervasive as to “occupy the field” in that area of the law, i.e. to warrant an inference that Congress did not intend the states to supplement it. Gade v. National Solid Wastes Mgmt. Ass’n, 505 U.S. 88, 98 (1992). See also Rice v. Santa Fe Elevator Corp. For example, the courts have held that the National Labor Relations Act (NLRA) preempts state laws directed at conduct actually or arguably prohibited or protected by the NLRA or conduct Congress intended to leave unregulated. San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 244 (1959); Machinists v. Wisconsin Emp. Rel. Commission, 427 U.S. 132, 140-48 (1976).

A Federal Claim of “preemption” must satisfy one of these three sets of criteria.

Foot Note 4

 A variety of enumerated powers implicate the federal government’s long-recognized immigration power, including the Commerce Clause, the Naturalization Clause, and the Migration and Importation Clause. See U.S. Const. art. I, § 8, cl. 3-4; art. I, § 9, cl. 1; see also Fong Yue Ting v. United States, 149 U.S. 698, 706 (1893); Chae Chan Ping v. United States, 130 U.S. 581, 603-04 (1889).

(Page 11, lines 25 to 28).

 Implicate?  What and where?

Again the Immigration Laws of the United States are created by the Congressional Branch of the Federal Government, not the Executive Branch.  When one reads “Federal Government’s Immigration Power” – that power rests with Congress. Any power enumerated in United States Immigration Law has been so enumerated by the Congress of the United States not the Executive Branch. Again, the United States Supreme Court has instructed the lower Federal Courts to look to the intent of Congress when they interpret our Federal Immigration Statutes.

541 (2001)). Conflict preemption describes a situation in which “compliance with both federal and state regulations is a physical impossibility or where state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Id. (internal quotations and citations omitted). An actual, as opposed to hypothetical or potential, conflict must exist for conflict preemption to apply. Id. (Page 12, lines 1 to 5).

as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.”. The intent of Congress. Note that the Court has now defined “conflict preemption”.

B. Likelihood of Success on the Merits

The United States must first demonstrate a likelihood of success on the merits. Winter, 129 S. Ct. at 374. The United States challenges S.B. 1070 on its face, before it takes effect on July 29, 2010. (Pl.’s Mot. at 7.) “A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid.” United States v. Salerno, 481 U.S. 739, 745 (1987). The Supreme Court later observed, in considering a facial challenge, “[S]ome Members of the Court have criticized the Salerno formulation, [but] all agree that a facial challenge must fail where a statute has a ‘plainly legitimate sweep.’” Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 449 (2008) (quoting Washington v. Glucksberg, 521 U.S. 702, 739-40 & n.7 (1997) (Stevens, J., concurring in judgments)). In deciding a facial challenge, courts “must be careful not to go beyond the statute’s facial requirements and speculate about ‘hypothetical’ or ‘imaginary’ cases.” Id. at 449-50 (quoting United States v. Raines, 362 U.S. 17, 22 (1960)). (Page 12, lines 6 to 19)

1. Preemption of Overall Statutory Scheme

As discussed above, S.B. 1070 contains several provisions adding to and amending Arizona law. While the United States has requested that the Court enjoin S.B. 1070 in its entirety, it specifically challenges only select provisions of S.B. 1070. (See Pl.’s Mot. at 12 n.8 (noting that “the instant motion does not seek to enjoin” Sections 7-9 of S.B. 1070 and that Sections 11-13 “are administrative provisions which are not the subject of this dispute”).) The United States also argues that the overall statutory scheme of S.B. 1070 is preempted because it attempts to set immigration policy at the state level and interferes and conflicts with federal(Page 12, lines 20 to 28).

Again, the “Federal” preemption argument. I’m looking forward to reading the specifics of how the Arizona Law is preempted, not by the imaginings of the Obama Administration and its Executive Agencies, but how the Arizona Law is in conflict with one of the three specific types of preemption. The Administrative Agencies must present proof that the Arizona Law violates one of the three enumerated types of “preemption”. I’m looking forward to reading the Court’s analysis of the Congressional intent…                

 immigration law, foreign relations, and foreign policy. (Id. at 12-25.) Section 1 of S.B. 1070 declares a unified, state-wide public policy, providing: The legislature declares that the intent of this act is to make attrition through enforcement the public policy of all state and local government agencies in Arizona. The provisions of this act are intended to work together to discourage and deter the unlawful entry and presence of aliens and economic activity by persons unlawfully present in the United States. S.B. 1070 § 1. The United States urges the Court to enjoin S.B. 1070 as an integrated statutory enactment with interlocking provisions. (Pl.’s Mot. at 12-25.) The United States asserts that Section 1 animates and “infuses” the operative sections of the law. (Hr’g Tr. 13:4-14:5.) “[W]hen the constitutionality of a state statute is challenged, principles of state law guide the severability analysis and [courts] should strike down only those provisions which are inseparable from the invalid provisions.” Costco Wholesale Corp. v. Maleng, 522 F.3d 874, 886 (9th Cir. 2008) (citing Tucson Woman’s Clinic v. Eden, 379 F.3d 531, 556-57 (9th Cir. 2004)). “A court should not declare an entire statute unconstitutional if the constitutional portions can be severed from those which are unconstitutional.” State v. Ramsey, 831 P.2d 408, 413 (Ariz. Ct. App. 1992) (citing State v. Prentiss, 786 P.2d 932, 937 (Ariz. 1989)). Under Arizona law, it is well settled . . . that where the valid parts of a statute are effective and enforceable standing alone and independent of those portions declared unconstitutional, the court will not disturb the valid law if the valid and invalid portions are not so intimately connected as to raise the presumption the legislature would not have enacted one without the other, and the invalid portion was not the inducement of the act. Selective Life Ins. Co. v. Equitable Life Assurance Soc’y of the U.S., 422 P.2d 710, 715 (Ariz. 1967) (citing McCune v. City of Phx., 317 P.2d 537, 542 (Ariz. 1957)). In determining whether potentially unconstitutional provisions of S.B. 1070 may be severed from the remainder of the enactment, the primary concern is legislative intent. See id. at 715-16 (citing City of Mesa v. Killingsworth, 394 P.2d 410, 413 (Ariz. 1964)). Where a statute contains a severability provision, Arizona courts generally attempt to give effect to the severability clause. Id. at 715. (Page 13, lines 1 to 38)

Section 12(A) of S.B. 1070 provides for the severability of S.B. 1070’s provisions, stating that if any provision of the Act “is held invalid, the invalidity does not affect other provisions . . . that can be given effect without the invalid provision.” Arizona’s Legislature intended the provisions of S.B. 1070 to be severable in order to preserve the constitutionalprovisions of the Act. As a result, where the provisions of S.B. 1070 are “effective and enforceable standing alone and independent” of any unconstitutional provisions and the valid portions are not so “intimately connected” to any invalid provision as to raise the presumption that the Arizona Legislature would not have enacted the valid provisions without the invalid provisions, S.B. 1070’s provisions are severable. See Selective Life Ins., 422 P.2d at 715.

This writer will defer comments concerning how the Judge’s willfully “over looked” opportunities to sever and keep portions of the Arizona Law, as she was required to do …

While Section 1 of S.B. 1070 provides a statement of the Act’s intent and purpose, it does not create a single and unified statutory scheme incapable of careful provision by provision analysis. The Court cannot enjoin a purpose; the Arizona Legislature is free to express its viewpoint and intention as it wishes, and Section 1 has no operative function. However, this is not to say that Section 1 is irrelevant. The expression of the Legislature’s intent provides context and backdrop for the functional enactments of S.B. 1070, and the Court considers it in this capacity as it analyzes the other provisions of the law. S.B. 1070 will not be enjoined in its entirety. The Court will not ignore the obligation to preserve the constitutional provisions of a state legislative enactment or S.B. 1070’s severability clause. The Court thus evaluates the constitutionality of the individual provisions of S.B. 1070 challenged by the United States. (Page 14, lines 1 through 20).

We are approximately 1/3 of the way through the legal opinion and the Judge has not offered a legal finding or conclusion.

The Judge has made two false statements,

1). “Unlawful presence in the United States is not a federal crime” and

2). That an illegal alien needs to have been “convicted” in a criminal proceeding and subsequently deported before their unauthorized “re-entry” could be considered a crime”.

In the section immediately below, the Judge begins her consideration of the Arizona Law, in preparation for her first ruling.

The issue that will be addressed is this: The Arizona Legislature stated an intention that those individuals who have been “arrested” have their immigration status determined before the person is released and that any law enforcement officer presented with one of 11 different types of identification, should presume that the individual presenting the identification is a lawful resident of the United States.

 A.R.S. § 11-1051(B). Section 2(B) also states that if an officer is presented with one of the following forms of identification, the officer is to presume that the person is not an unauthorized alien: (1) a valid Arizona driver license or identification license; (2) a valid tribal enrollment card or other form of tribal identification; or (3) a valid United States federal, state, or local form of identification, provided that the issuing entity requires proof of citizenship before issuance. Id.

The United States argues that this section is preempted because (1) it will result in the harassment of lawfully present aliens and (2) will burden federal resources and impede federal enforcement and policy priorities. (Pl.’s Mot. at 25-32.) (Page 15, lines 1 to 8).

 The Judge’s opinion in this section is in artfully worded. It is actually quite amusing. It is a shame that the subject matter is so serious …

 The problem with the wording in the Judge’s opinion is occasioned by the language of the Department of Justice’s pleading.

Let us help the Judge do her job correctly.

Or let us pretend we are the Judge’s Constitutional Law Professor and this is the Judge’s final exam in her first year Constitutional Law Class.

Step One: Examine the pleading. What is the Department of Justice alleging?

“The United States (The DOJ) argues that this section is preempted because

1). It will result in the harassment of lawfully present aliens, and

2). Will burden federal resources and impede federal enforcement and policy priorities.

Step 2: Determine if a “preemption argument” has been made or determine if the pleading “fails on its face”, because it fails to state a claim enforcebale under the Federal doctrine of preemption.

There are three and only three enumerated types of “preemption”. Does the lawsuit state a claim under one of three enumerated “preemptions”?

Claim 1: “It will result in the harassment of lawfully present aliens,”

Which of the three “preemptions” does this claim fall under?

A). Express preemption: Has the Congress expressly stated that the Federal Government has an exclusive right to the “harassment of lawfully present aliens”. How funny …. The Government has not stated a cause of action of express preemption …

B). Conflict Preemption: Does the DOJ allege that “compliance with both federal and state regulations is a physical impossibility”… as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.”  An actual, as opposed to hypothetical or potential conflict….

No,  The DOJ has failed to state a cause of action under the theory “conflict preemption”.

C). Field preemption: Has the Congress indicated that the States should be denied the opportunity to supplement the Federal Government’s harassment of “lawfully present aliens”.

Again, we are conducting the analysis that Judge Bolton was required to complete prior to rendering her decision. A claim of harassment does not fall within the purview of the Federal preemption doctrine. A claim of harassment may serve as the basis of a “civil rights claim”, however, it is not an appropriate topic for consideration under the “preemption doctrine”.

We are not determining whether the Arizona law will, in fact, result in the harassment of “lawfully present aliens”, because that is not what is required at this point in time.

We are, as the Judge should have, evaluating whether the DOJ’s claim, assuming the claims are true, meet the requirements of one of the three classifications for preemption.

The answer is an unequivocal NO. The claim, as stated, is not one subject to the Federal preemption doctrine.   

Read Part 1 here: http://mcauleysworld.wordpress.com/2010/07/30/the-immigration-debate-the-arizona-law-judge-boltons-decision-part-1/

Read Part 3 here: http://mcauleysworld.wordpress.com/2010/07/30/the-immigration-debate-the-arizona-law-judge-boltons-decision-part-3/

Read Part 4 Here: http://mcauleysworld.wordpress.com/2010/07/30/the-immigration-debate-the-arizona-law-judge-boltons-decision-part-4/  

The Immigration Debate: The Arizona Law – Judge Bolton’s Decision (Part 1)

The purpose of this post is to review the legal opinion recently issued by Judge Bolton in the Lawsuit filed by the Department of Justice against the State of Arizona, the so called Arizona Immigration Law Suit.

 I’ve attached various PDFs for your reference.

I’ve also included “links” to a variety of other sources including the Federal and State Statutes that are involved.

Before we begin this multi section post, I’d like to briefly some items:

1). The Judges opinion is in black text, McAuley’s World Comments are in blue.

2). At the end of the black text sections I’ve referred to the location of the text in the Judge’s opinion. The ‘Page” refers to the page number in the PDF, located at the top of the PDF page – as such page 5 of the opinion is page 6 of the PDF. The line numbers are self explanatory.

Judge Bolton’s Opinion Here: Judge Bolton’s Ruling SB1070

3) The Department of Justice Lawsuit can be reviewed here: http://legaltimes.typepad.com/files/usa_v_arizona.pdf

4) The Arizona Law can be located here: http://www.azleg.gov/legtext/49leg/2r/bills/hb2162c.htm

5).  In the following pages you read references to the “Federal Government”. The Federal Government has three parts, each with their own jobs under the Constitution. The Executive Branch includes the President and the Executive Agencies. The Executive Agencies include the Department of Justice, the Department of Homeland Security the FBI, and the Post Office, to name a few. The second “part” of the Federal Government is the “Congressional Branch”, and is made up of the U.S. Congress and the U.S. Senate. The third part of the Federal Government is the Federal Courts or Judiciary. In the following pages you will read that the “Federal Government has the “exclusive right” to formulate our Immigration Laws. This is true, however, not all three of the branches of our Federal Government have this “exclusive right” and are authorized to “write” our Immigration Laws. Only the Congressional Branch has this power, the power is exclusive to Congress. For over a century the United States Supreme Court has stated that we must look to the intent of Congress when we attempt to interpret our Immigration Laws. As you read this post remember that when you read the Court or Department of Justice refer to the “Federal Government” this or the Federal Government that … it is the U.S. Congress they are referring to… even if the DOJ authors of the lawsuit try to inflate its own importance … 

The Judges Opinion is in “black type”. McAuley’s World Comments/Additions in Blue

Preface: The state of the law prior to the DOJ lawsuit

The MSM has created a great deal of confusion in an attempt to support the Obama Administration’s Department of Justice. There are many who falsely believe that the State of Arizona was attempting to “fundamentally change” the Immigration Law of the United States when it passed SB 1070, the “Support Our Law Enforcement and Safe Neighborhoods Act”.

You will never here the MSM refer to this law by its given name, ““Support Our Law Enforcement and Safe Neighborhoods Act,”

The State of Arizona’s Law, SB 1070, was and is consistent with the existing U.S. Immigration Law at the time of its passage. It is, in fact, consistent with the Congressional intent expressed in our system of Federal Immigration laws.

The most concise statement of the law concerning the concurrent jurisdiction of the State and Federal Governments that I could find is contained in this April 2, 2002 memo from the Department of Justice.

2002 DOJ Memo

The DOJ memo of April 2, 2002 reflects the current state of Immigration Law in this land.

It is the Obama Administration who is, once again, trying to “fundamentally transform” our legal system. The State of Arizona’s intent was clear and straight forward, SB 1070 reflects a constitutionally permissible exercise of State authority to assist the Federal Government in the enforcement of our Immigration Laws;

On April 2, 2002 Attorney General John Ashcroft stated that this was the law of the land:

“We summarize our conclusions:

1) States have inherent power, subject to Federal preemption, to make arrests for violation of Federal Law.

2). Because it is ordinarily unreasonable to assume that Congress intended to deprive the Federal Government of whatever assistance States may provide in indentifying and detaining those who may have violated Federal Law, Federal Statutes should be presumed not to have preempted this authority.

This Office’s 1996 advice that Federal Law precludes State Police from arresting aliens on the basis of civil deportability was mistaken.

3). Section 1252 C does not preempt state authority to arrest for Federal violation”

With this clearly in mind we will move on to review the legal opinion of Judge Bolton   

My Review of Judge Bolton’s Opinion Follows:

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,” (At Page 2, lines 19-22)

Footnote 1 – Page 2: In this Order, unless otherwise specified, the Court refers to S.B. 1070 and H.B. 2162 collectively as “S.B. 1070,”

Among other things, S.B. 1070 requires officers to check a person’s immigration status under certain circumstances (Section 2 – SB 1070) 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, of the Law – SB 1070).  (At Page 2, Line 25 / Page 3, lines 1 to 4).

S.B. 1070 also creates or amends crimes for the failure of an alien to apply for or carry registration papers (Section 3 SB 1070), the smuggling of human beings (Section 4 – SB 1070), the performance of work by unauthorized aliens, and the transport or harboring of unlawfully present aliens (Section 5 – SB 1070). 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. (At Page 3, lines 8-14)

The United States, by way of the Obama Administration’s Department of Justice  argued that the Obama Executive Branch is vested with the exclusive power to regulate Immigration and that the Obama Executive Branch is empowered to “pick and choose” which elements of the Immigration Laws it will enforce and that the Obama Administration through the Executive Branch can preempt any other Governmental entity, including the Congress, in the creation, implementation and enforcement of our Immigration Laws. Judge Bolton’s shallow legal reasoning failed to grasp the difference between what the allegations and the “supporting proof” presented by the Obama’s Administration Department of Justice. 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. 1070 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.  (At Page 3, Lines 14 to 23).

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: (At Page 5, Lines 6 to 9)

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. (At Page 5, lines 9 through 13).

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. (At Page 5, lines 13 to 15).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(At Page 5, lines 15 to 17).

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. (At Page 5, Lines 17 to 20).

The Court’s findings will be addressed later in this post, in the section of the opinion where the offers its rationale for these findings. 

BACKGROUND

A. Overview of Federal Immigration Law

 Congress has created and refined a complex and detailed statutory framework regulating immigration.  (At Page 6, line 3 & 4).

This is correct – Congress is empowered to write our Immigration Laws, not the Executive Branch nor the Executive Agencies. Unfortunately, this is the only time this ultra liberal activist Judge calls this to mind in this opinion. The Judge fails to reference “the intent of Congress” even once in this 36 page document. 

The federal immigration scheme is largely enacted through the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101, et seq., (At Page 6, lines 4 & 5).

Yes, the “INA” was passed by Congress. The INA has also amended by Congress on many occasions. Congress amended the INA when Congress passed “The Comprehensive Immigration Reform Bill of 1996.” Congress amended the law again after the attacks on 911, after the publication of the 911 Commission Report. Absent the 911 Commission Report and Congress’s legislative response, there would be no “Department of Homeland Security” today. The Judge fails to mention any of the Congressional enactments that led to the creation of the Department of Homeland Security. How does one consider “Congressional intent” without mentioning Congressional activity that abolished the prior Immigration and Nationalization Service and replaced it with the Department of Homeland Security?

which empowers various federal agencies (including the Department of Justice (“DOJ”), Department of Homeland Security (“DHS”), and Department of State (“DOS”)) to administer and enforce the immigration laws. See, e.g., id. §§ 1103-1104. (Page 6, lines 5 to 10)

First, what does the Judge “acknowledge” in the first sentence of this section? That the Executive Branch Agencies, which include the DOJ (Department of Justice), DHS (Department of Homeland Security) and DOS (Department of State) are “empowered” to administer and enforce the “immigration laws”. But empowered by whom? The Executive Agencies are empowered by Congress, not the Executive Branch. These Executive Agencies are empowered by Congress, not the President. The DOJ, DHS and DOS, are totally dependent on the authority granted them by the U.S. Congress. The agencies only have those powers that Congress has delegated to them.

The States, on the other hand, are independent sovereign governments. The States have rights independent of those rights granted to the Federal Government under our Constitution. Any power not specifically reserved for the Federal Branches of Government are retained by the States. As such the States have their own independent powers. Congress has delegated a shared or concurrent jurisdiction of many Immigration Law enforcement matters to the States.

Again, the “authority” the Executive agencies wield come from the Congress not the President. All of the Executive Agency’s powers and the Agencies very existence are dependent on Congress. Congress is free to act to abolish the Agencies if and when it so chooses … after all, Congress created each of these Agencies. The Department of Homeland Security didn’t exist before 911 and the INS, the Department of Immigration and Nationalization Services, ceased to exist after the DHS (Department of Homeland Security) was created by Congress.

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. (Page 6, lines 8 to 11).

Again, the INA was a law passed by Congress and later amended on several occasions. It is Congress, not the Executive Branch or the States, that is empowered with the exclusive right to set Immigration criteria and the quotas to govern the entry of foreign nationals into the United States. The mechanisms used to enforce the Immigration System created by Congress are shared by the Executive Agencies and the States. The Agencies and the States have “concurrent” enforcement responsibilities. We will discuss the alien registration system(s) later in this post.

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  (Page 6, line 12 to line 18).

“Unlawful presence in the United States is not a federal crime, although it may make the alien removable.” At page 6, lines 16 & 17.

This is the first outright “falsehood” or “lie” the Judge has tried to pass of as “legal reasoning”.  An alien’s “unlawful presence” can be a “criminal act” under U.S. Immigration Law.  A prior criminal conviction is not required. I’m not surprised that the Judge told this “lie” at all. A good deal of her “legal reasoning” is based upon this “lie” being true … What does the Federal Immigration Law “truthfully state”? This is what the Federal Immigration Law passed by Congress States:

THE JUDGES’S FIRST FALSE STATEMENT

Title 8, Chapter 12 § 1326. Reentry of removed aliens:

(b) Criminal penalties for reentry of certain removed aliens

Notwithstanding subsection (a) of this section, in the case of any alien described in such subsection—

(1) whose removal was subsequent to a conviction for commission of three or more misdemeanors involving drugs, crimes against the person, or both, or a felony (other than an aggravated felony), such alien shall be fined under title 18, imprisoned not more than 10 years, or both;

(2) whose removal was subsequent to a conviction for commission of an aggravated felony, such alien shall be fined under such title, imprisoned not more than 20 years, or both;

(3) who has been excluded from the United States pursuant to section 1225 (c) of this title because the alien was excludable under section 1182 (a)(3)(B) of this title or who has been removed from the United States pursuant to the provisions of subchapter V of this chapter, and who thereafter, without the permission of the Attorney General, enters the United States, or attempts to do so, shall be fined under title 18 and imprisoned for a period of 10 years, which sentence shall not run concurrently with any other sentence.[1] or

(4) who was removed from the United States pursuant to section 1231 (a)(4)(B) of this title who thereafter, without the permission of the Attorney General, enters, attempts to enter, or is at any time found in, the United States (unless the Attorney General has expressly consented to such alien’s reentry) shall be fined under title 18, imprisoned for not more than 10 years, or both.

For the purposes of this subsection, the term “removal” includes any agreement in which an alien stipulates to removal during (or not during) a criminal trial under either Federal or State law.

(c) Reentry of alien deported prior to completion of term of imprisonment

Any alien deported pursuant to section 1252 (h)(2)  of this title who enters, attempts to enter, or is at any time found in, the United States (unless the Attorney General has expressly consented to such alien’s reentry) shall be incarcerated for the remainder of the sentence of imprisonment which was pending at the time of deportation without any reduction for parole or supervised release. Such alien shall be subject to such other penalties relating to the reentry of deported aliens as may be available under this section or any other provision of law.

http://www.law.cornell.edu/uscode/search/display.html?terms=1326&url=/uscode/html/uscode08/usc_sec_08_00001326—-000-.html 

 Three items I’d like you to note before we move on;

1). The Judge lied. Unlawful presence in the United States is a Federal crime, a Federal felony in fact. A first time immigration offense may or may not be a civil infraction. If an illegal alien gains entrance to the Country using stolen or false identification papers, a criminal offense has taken place. (a misdemeanor). The millions of illegal aliens who improperly and wrongfully “reenter” our Country after removal are, in fact, committing a crime, felonies, punishable with up to 20 years in prison. The fact that our southern border is a “revolving door” of exiting and reentering illegal aliens is a fact known to all.

2). How, exactly, does a Local or State Police Officer identify the illegal alien “felons” from the 1st time offenders during the course of their daily law enforcement duties?

3). See Foot Note 3 below.

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… (At page 6, lines 19 to 25).

While “working without authorization” may not carry a criminal sanction, illegally reentering the Country to do so is a felony … Any employer who harbors or has helped to facilitate illegal immigration is guilty of a criminal felony. Once again, how does a State or Local Law Enforcement officer make these determinations during the course of their daily law enforcement duties?

Foot Note 3:  Unlawful presence is an element of the federal crime of reentry after deportation, 8 U.S.C. § 1326, and unlawful entry into the United States is also a federal crime, 8 U.S.C. § 1325. (At Page 6, line 27 & 28).

Why did the Judge make a blatantly false statement in the body of her opinion and then admit that the statement was false in foot note 3? Because the Main Stream Media will never mention the foot note, just quote the “false” sound bite in the body of the opinion. How many times have you heard an Obama Administration spokesperson or a Liberal MSM pundit or even one of FOX NEW’s talking heads, (there are several light weights at FOX) state or “parrot” unequivocally, that, “Unlawful presence in the United States is not a federal crime”.

As you now know, the statement is false. Illegal presence in the United States, when it gained by an unauthorized reentry, is a felony punishable by up to 20 years in jail. 

Without completing a preliminary investigation there is no way for Law Enforcement Officers to distinguish the felons from the first time offenders, is there?

The Judge’s decision gives rise to another popular and equally false sound bite, “it isn’t a crime unless they reenter after deportation”. After hearing this sound bite one might believe that “deportation” is a prerequisite for “reentry” to be a crime. Not so.  Another false and misleading statement.

The term “deportation” has been replaced by the term “removal”. Title 8, Chapter 12. § 1326, b, 4,  states, “the term “removal” includes any agreement in which an alien stipulates to removal during (or not during) a criminal trial under either Federal or State law.”.

http://www.law.cornell.edu/uscode/search/display.html?terms=1326&url=/uscode/html/uscode08/usc_sec_08_00001326—-000-.html 

Any illegal alien who is removed, either by criminal trial, civil administrative hearing, by legal order or “by voluntary agreement” and who subsequently reenters the United States without legal authorization, is guilty of a felony violation of the U.S. Immigration Statutes.

http://www.law.cornell.edu/uscode/search/display.html?terms=1326&url=/uscode/html/uscode08/usc_sec_08_00001326—-000-.html 

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). (At Page 7, lines 1 to 3). Federal immigration law also envisions certain areas of cooperation in immigration enforcement among the federal government and state and local governments. See 8 U.S.C. § 1357(g)(1)-(9) (permitting DHS to enter into agreements whereby appropriately trained and supervised state and local officials can perform certain immigration responsibilities); id. §1373 (establishing parameters for information-sharing between state and local officials and federal immigration officials);   (At page 7, lines 4 to 9)

Our liberal, activist, Judge selected her words very carefully here. First, the Federal Immigration Law “envisions” nothing… the law is blind, the law does not anticipate anything… it cannot see a thing, the law cannot foretell the future. The Federal Immigration law, passed by the Congress, was intended to achieve many desired objectives … objectives set by Congress. The liberal activist uses the term “envisioned” for a reason. The activists will refer to the Immigration laws as “federal” implying that the Immigration Law was created or crafted by the Executive Branch rather than by the Congress. That is simply incorrect; it is not a truthful implication. The Courts are bound by U.S. Supreme Court decision and instruction to look to the “intent of Congress”, not the “vision of the Executive Branch” when interpreting our Immigration laws.

§ 1252c (authorizing state and local law enforcement officials to arrest aliens unlawfully present in the United States who have previously been convicted of a felony and deported). (Page 7, lines 9 to 11).

THE JUDGE’S SECOND FALSE STATEMENT: Chapter 8, Section §1252c does not supersede  Chapter 8, §1326  

Title 8, Chapter 12, §1252c, does not supersede the previously discussed Title 8 U.S.C. § 1326, b, 4, above, which states, the term “removal” includes any agreement in which an alien stipulates to removal during (or not during) a criminal trial under either Federal or State law.”

So while § 1252c addresses removal of those previously convicted of a felony, the Judge is dishonest in limiting her comments in this manner. States are permitted to arrest illegal immigrants who have not been convicted of a felony and who have not been previously deported. Neither prior conviction nor “deportation” is required to commit an illegal and unauthorized “reentry”, a felonious violation of U.S. Immigration Law. 8 USC § 1326, b, 4,  “the term “removal” includes any agreement in which an alien stipulates to removal during (or not during) a criminal trial under either Federal or State law…”.

Title 8 U.S.C. § 1326, b, 4, clearly states that the underlying proceeding can take place in either a State or Federal Jurisdiction. An illegal alien apprehended during a burglary or drug sale can agree to a voluntary deportation during his State Court criminal trial, the criminal charges can be dismissed and the illegal alien deported. If that illegal alien reenters the country illegally or without proper authorization, that illegal alien is guilty of felonious conduct.  

The Judge’s statement acknowledges that § 1252c is one area of “concurrent jurisdiction” in our Immigration Laws; however, the Judge did not go far enough in her acknowledgement.

Section 1252c also directs the Executive Branch to work at the behest of the States, yes, section 1252c(b) makes the Executive Branch subservient to the States in the enforcement of the Immigration Law;   

Title 8, Chapter 12, § 1252c, states;

§ 1252c. Authorizing State and local law enforcement officials to arrest and detain certain illegal aliens

(a) In general

Notwithstanding any other provision of law, to the extent permitted by relevant State and local law, State and local law enforcement officials are authorized to arrest and detain an individual who—

(1) is an alien illegally present in the United States; and

(2) has previously been convicted of a felony in the United States and deported or left the United States after such conviction, but only after the State or local law enforcement officials obtain appropriate confirmation from the Immigration and Naturalization Service of the status of such individual and only for such period of time as may be required for the Service to take the individual into Federal custody for purposes of deporting or removing the alien from the United States.

http://www.law.cornell.edu/uscode/search/display.html?terms=§1252c&url=/uscode/html/uscode08/usc_sec_08_00001252—c000-.html

Title 8, Chapter 12, § 1252c, (b) Cooperation

The Attorney General shall cooperate with the States to assure that information in the control of the Attorney General, including information in the National Crime Information Center, that would assist State and local law enforcement officials in carrying out duties under subsection (a) of this section is made available to such officials. 

http://www.law.cornell.edu/uscode/search/display.html?terms=§1252c&url=/uscode/html/uscode08/usc_sec_08_00001252—c000-.html 

 The Congress instructed that the Attorney General shall cooperate. Congress did not state that the Attorney General could cooperate when the Department of Justice felt like cooperating, that the DOJ could pick and choose when it wanted to cooperate, that the DOJ could selectively follow this “instruction’ as long as it wasn’t burdensome. The word “shall” is an instruction, a directive, an order to cooperate, not a suggestion that the DOJ might want to cooperate. The Congressional intent is clear and unambiguous.

Read Part 2 here: http://mcauleysworld.wordpress.com/2010/07/30/the-immigration-debate-the-arizona-law-judge-boltons-decision-part-2/

Read Part 3 Here: http://mcauleysworld.wordpress.com/2010/07/30/the-immigration-debate-the-arizona-law-judge-boltons-decision-part-3/

Read Part 4 Here: http://mcauleysworld.wordpress.com/2010/07/30/the-immigration-debate-the-arizona-law-judge-boltons-decision-part-4/

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