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/

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