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/

The Immigration Debate: Attorney General Holder Threatens Second Suit Against Arizona

The Immigration Debate: Attorney General Holder Threatens Second Suit Against Arizona

WASHINGTON (AP) — The Justice Department hasn’t ruled out filing a second lawsuit challenging Arizona’s immigration law if evidence shows racial profiling at work, Attorney General Eric Holder says.

The Obama administration sued Arizona last week, arguing that the state is impinging on federal responsibilities for dealing with immigration. The state law requires police, while enforcing other laws, to question a person’s immigration status if there’s reasonable suspicion the person is in the country illegally. It also requires legal immigrants to carry their immigration documents.

The suit didn’t deal with concerns about racial profiling so that it could focus on the most serious problem with the law, Holder said in an interview broadcast Sunday on CBS’ “Face the Nation.” In six months or a year, his department might look into the law’s impact on racial profiling, he said. [Previously, that was all AG Holder and President Obama could talk about, “racial discrimination” and “profiling”, while they both played the “race card”, you remember in the weeks before either had even read the Arizona law.]

“If that was the case, we would have the tools and we would bring suit on that basis,” Holder said.

Arizona Gov. Jan Brewer, who defends the state immigration law as constitutional, said she believes federal officials would have included racial profiling in the suit if they thought it was an issue.

“Why would they have to hesitate, after all the comments they made, and all the outrage that they made against the bill in regards to racial profiling, that it didn’t show up?” Brewer told The Associated Press during a break in the National Governors Association meeting in Boston.

Brewer said she is confident that the state law can be enforced without racial profiling, which she acknowledged is against state and federal law.

“The bottom line is that people in the Southwest, particularly Arizona, we love our diversity. It’s in our DNA. We are almost, I believe, colorblind,” she said. “It’s just not in us. We’ve grown up, we’ve lived next door, we work together, we eat together. I mean, it’s so different than the issues they always want to relate to the South, you know, in regards to the civil rights issues down there.”

McAuley’s World Comments:

The Immigration Debate: DOJ (Department of Justice) Declares Arizona Immigration Law Legal

Almost 8 years to the day before Arizona Governor Jan Brewer signed Arizona’s “Immigration Law” into effect, the United States Department of Justice issued a memo stating that Arizona’s Law is legal.

On April 23, 2002 the DOJ (Department of Justice) considered and rejected the very arguments presented by the Obama Administration through its DOJ by Attorney General Eric Holder in its lawsuit against the State of Arizona.

The “findings” of the DOJ are “memorialized” in the following memo:

http://www.aclu.org/files/FilesPDFs/ACF27DA.pdf

The DOJ lawsuit filed in June 2010: http://legaltimes.typepad.com/files/usa_v_arizona.pdf

The Arizona Law: http://www.azleg.gov/legtext/49leg/2r/bills/hb2162c.htm

For a full discussion of Arizona’s Immigration Law see:

http://mcauleysworld.wordpress.com/2010/05/05/the-immigration-debate-arizonas-law-facts-from-fiction-are-you-tired-of-being-lied-to/

http://mcauleysworld.wordpress.com/2010/07/06/the-immigration-debate-doj-files-suit-against-arizona-why-arizona-will-win/

Following the attacks on the World Trade Towers on 9-11-2001, the United States Congress fundamentally altered the manner in which the United States enforces its Immigration Laws.

Congress enacted many laws after 9-11, laws intended to bring the full force of the States into the National effort to secure our borders and enforce our immigration laws.

By doing this Congress added the nearly 800,000 State and Local Law Enforcement Officers to the less than 20,000 Border Patrol Agents and Immigration and Customers Enforcement Agents employed by the Federal Government …. increasing the total number of law enforcement officers “on the job” by 4000%.

The lawsuit filed by the Obama Administration and Attorney General Eric Holder’s Department of Justice has nothing to do with “racial profiling” or “preemption” ….

The lawsuit is nothing more than the political tool being used by the Obama Administration to reverse the security protocols enacted by Congress after 9-11, after the publication of the 9-11 Commission Report.

This lawsuit is nothing more than an ideological extension of the Obama Administration’s policies that call for the closing of Gitmo, the removal of enemy combatants from Military Tribunals to Civilian Courts, the refusal to acknowledge a “war on terror” or “radical jihadists” and the replacement of the term “terrorist attack” with “man made events”.

The Department of Justice’s ideology which was manifested in the decision to “dismiss the charges” against a radical New Black Panther who was guilty of “voter intimidation”, to dismiss the charges after a “default judgment” had been obtained from the Court.

An Administration that refuses to “respect” and “honor” the decisions of our Federal Courts and Constitutional processes, an Administration that has taken the issue of “drilling moratoriums” to the Federal Courts twice and lost on both occasions and rather than follow our Constitutionally prescribed method of filing an “appeal”, the Obama Administration threatens additional “moratoriums” or “Executive Orders” to block drilling and ruin the economy of the Gulf …..

See Holder’s Latest Here: Holder Raises Question On Sept. 11 Death Penalty –

http://www.idahostatesman.com/2010/07/11/1263431/holder-raises-question-on-sept.html

http://mcauleysworld.wordpress.com/2010/07/11/the-immigration-debate-doj-depratment-of-justice-declares-arizona-immigration-law-legal/

The Immigration Debate: DOJ (Department of Justice) Declares Arizona Immigration Law Legal

Almost 8 years to the day before Arizona Governor Jan Brewer signed Arizona’s “Immigration Law” into effect, the United States Department of Justice issued a memo stating that Arizona’s Law is legal.

On April 23, 2002 the DOJ (Department of Justice) considered and rejected the very arguments presented by the Obama Administration through its DOJ by Attorney General Eric Holder  in its lawsuit against the State of Arizona.

The Memo is titled “Non-preemption of the authority of State & Local Law Enforcement Officials to arrest aliens for immigration violations.

The “findings” of the DOJ are “memorialized” in the following memo:

2002 DOJ Memo 

The DOJ lawsuit filed in June 2010: http://legaltimes.typepad.com/files/usa_v_arizona.pdf

The Arizona Law: http://www.azleg.gov/legtext/49leg/2r/bills/hb2162c.htm

For a full discussion of Arizona’s Immigration Law see: http://mcauleysworld.wordpress.com/2010/05/05/the-immigration-debate-arizonas-law-facts-from-fiction-are-you-tired-of-being-lied-to/

http://mcauleysworld.wordpress.com/2010/07/06/the-immigration-debate-doj-files-suit-against-arizona-why-arizona-will-win/

Following the attacks on the World Trade Towers on 9-11-2001, the United States Congress fundamentally altered the manner in which the United States enforces its Immigration Laws.

Congress enacted many laws after 9-11, laws intended to bring the full force of the States into the National effort to secure our borders and enforce our immigration laws.

Buy doing this Congress added the nearly 800,000 State and Local Law Enforcement Officers to the less than 20,000 Border Patrol Agents and Immigration and Customers Enforcement Agents employed by the Federal Government …. increasing the total number of law enforcement officers “on the job” by 4000%.

The lawsuit filed by the Obama Administration and Attorney General Eric Holder’s Department of Justice has nothing to do with “racial profiling” or “preemption” ….

The lawsuit is nothing more than the political tool being used by the Obama Administration to reverse the security protocols enacted by Congress after 9-11, after the publication of the 9-11 Commission Report.

This lawsuit is nothing more than an ideological extension of the Obama Administration’s policies that call for the closing of Gitmo, the removal of enemy combatants from Military Tribunals to Civilian Courts, the refusal to acknowledge a “war on terror” or “radical jihadists” and the replacement of the term “terrorist attack” with “man made events”.  

The Department of Justice’s ideology which was manifested in the decision to “dismiss the charges” against a radical New Black Panther who was guilty of “voter intimidation”, to dismiss the charges after a “default judgment” had been obtained from the Court.

An Administration that refuses to “respect” and “honor” the decisions of our Federal Courts and Constitutional processes, an Administration that has taken the issue of “drilling moratoriums” to the Federal Courts twice and lost on both occasions and rather than follow our Constitutionally prescribed method of filing an “appeal”, the Obama Administration threatens additional “moratoriums” or “Executive Orders” to block drilling and ruin the economy of the Gulf …..

SEE HOLDERS LATEST HERE: Holder Raises Question On Sept. 11 Death Penalty – http://news.yahoo.com/s/ap/20100711/ap_on_go_ca_st_pe/us_holder_terrorism

Obama Administration Files Suit Against Arizona – An Analysis of The AP Article

McAuley’s World Comments Bolded Blue:

First: The “Complaint” or lawsuit can be viewed here: http://legaltimes.typepad.com/files/usa_v_arizona.pdf

The 25 page lawsuit fails to mention “racial profiling” or “discrimination” even once, giving light to the fact that the Obama Administration knew the claims of “profiling” and “discrimination” to be false from the very beginning – The Administration’s failure to even allege “discrimination” or to allege “racial profiling” in the suit, proves that those false claims were known to be false, in fact, the claims were nothing more than the Obama Administration’s “playing of the race card” in an attempt to exploit racial divisions in this Country for their political advantage.

The DOJ suit rests solely on a claim that the Arizona Law is pre-empted by Congress’ right to formulate immigration quotas and immigration criteria for foreign nationals to be admitted to the U.S..

The lawsuit fails to acknowledge or mention the numerous areas of “concurrent jurisdiction” over our immigration laws shared by the Federal and State Governments. The “suit” reads as if the “drafters” of the suit had never read the 1996 Comprehensive Immigration Reform Act.

See: http://mcauleysworld.wordpress.com/2010/07/06/the-immigration-debate-the-arizona-immigration-law-concurrent-federal-state-juridiction-operation-stone-garden-scaap/

and this from the official web site of Immigration Control & Enforcement (ICE):

http://www.ice.gov/pi/news/factsheets/070622factsheet287gprogover.htm

Feds Vs. State Again in Suit Against Arizona Law

The federal lawsuit against Arizona’s tough new immigration law focuses heavily on a question that has been in the spotlight repeatedly the past decade and dates back to the Founding Fathers: The right of the government to keep states from enacting laws that usurp federal authority.

[In this article and in many of the “TV talk shows” the use of the term “Federal Government” has been rather loose. Remember that the “Federal Government” consists of three equal branches, The Executive Branch – headed by the President, The Congress and the Judiciary, or Courts who will decide who is correct in this lawsuit. This suit against Arizona has been filed by the Executive Branch, while the Immigration Laws to which it refers have been passed by Congress, not the Executive Branch. When the Executive Branch claims in the lawsuit, (page 1, lines 26-28) that, “In our constitutional system, the federal government has preeminent authority to regulate immigration matters. This authority derives from the United States Constitution and numerous acts of Congress.” The Executive Branch is stating the truth, however, the branch of the Federal Government with that “preeminent authority” is the Congress and not the Executive Branch. http://www1.umn.edu/humanrts/immigrationlaw/chapter2.html ]

The lawsuit filed in Phoenix federal court on Tuesday sidestepped concerns about the potential for racial profiling and civil rights violations most often raised by immigration advocates. Experts said those are weaker arguments that don’t belong in a legal challenge brought by the White House to get the measure struck down.

Instead, the suit lays out why the government believes that immigration laws passed by Congress and enforced by a range of federal agencies must take precedence to any passed by a state Legislature.

[The Complaint filed to initiate this lawsuit presents only one side of the story. The Complaint does not recognize that the U.S. Congress has passed a host of laws “delegating” immigration law enforcement to the States and their Law Enforcement Officers. See this from the Official Web site of ICE, the U.S. Immigration Control and Enforcement Administration – a post by a subdivision of the Department of Homeland Security, discussing Section 287(g), Immigration and Nationality Act of 1996; Delegation of Immigration Authority :  http://www.ice.gov/pi/news/factsheets/070622factsheet287gprogover.htm ]

The Arizona law requires officers, while enforcing other laws, to question a person’s immigration status if there’s a reasonable suspicion that they are here illegally, such as speaking poor English, traveling in an overcrowded vehicle or hanging out in an area where immigrants typically congregate.

[The Arizona law references none of the given examples as “proper” examples of “reasonable suspicion”, these examples are a residue of the previous and false charges that the law will result in racial profiling. See: http://mcauleysworld.wordpress.com/2010/05/05/the-immigration-debate-arizonas-law-facts-from-fiction-are-you-tired-of-being-lied-to/ First, the Arizona law provides for ending any discussion of “immigration status” by having a suspect produce a piece of ID, the law specifically identifies 11 different types of ID that will create a “presumption” that the suspect is a “legal resident” and bring the discussion of “immigration status” to an end.  

The law also makes it a state crime for legal immigrants to not carry their immigration documents.

[The Federal Law requiring legal immigrants to carry their documents has been in existence for decades, soon that requirement will be 100 years old]

Backers of the law say the crackdown is a necessary tool to keep illegal immigrants out of Arizona and combat problems such as drug trafficking, murders and violent kidnappings that have become so common in a state that is home to an estimated 460,000 undocumented residents.

[“A crackdown” is the term used by those who oppose the law, when they ascribe “motives” to the laws supporters. The Arizona law is, simply, a basic law enforcement tool, a necessary law enforcement tool, if one plans on enforcing any of our immigration laws or Arizona State laws. At the heart of this lawsuit is the basic act of asking a criminal suspect to produce identification, something that is asked of suspects all over this country, everyday of the week, 52 weeks a year. Why should someone “suspected” of being in the Country illegally be excluded from questioning? Why is Arizona’s “good faith” effort to enforce the laws of the Country a “crack-down”. Arizona’s enforcement of our immigration laws is only a “crack-down” if you contrast Arizona’s activity with, say, the City of Los Angeles, a Sanctuary City, that is in open violation of our Immigration laws. A City that provides ‘Sanctuary” for members of Mexico’s notorious Drug Cartels, a City that openly embraces the Cartel’s ancillary “drug gangs” like MS -13. The Obama Administration has not filed suit against a single “Sanctuary City”, cities that are flouting our immigration laws and providing “sanctuary” to the bloody killers of the Mexican Cartels. ]

The federal government will ask a judge to grant an injunction to block the law from taking effect on July 29.

The arguments will focus on a core constitutional concern — balancing power between the states and the federal government. More specifically, the issue centers on the long-running “pre-emption” legal argument that says federal law trumps state law.

[Yes, Federal law can trump state law, however, Federal law can also share “concurrent authority” with State Law and in other instances, Federal Law is replaced by State law.]

“The nation’s immigration laws reflect a careful and considered balance of national law enforcement, foreign relations, and humanitarian interests,” the suit says.

[A typical “wishful thinking” comment from someone who has spent their legal career in an “ivory tower” and not in the Immigration Courts or the Halls of Congress. Like so many of our laws, immigration law is often a ‘comprise” reached between competing interests in Congress. That is why our Supreme Court grants such deference to the Immigration Laws passed by Congress: http://www.fairus.org/site/PageServer?pagename=research_research397d]

The lawsuit goes on to say that a “state may not establish its own immigration policy or enforce state laws in a manner that interferes with the federal immigration laws. The Constitution and the federal immigration laws do not permit the development of a patchwork of state and local immigration policies throughout the country.”

[The “immigration policy” reserved for the Federal Government, specifically reserved for the Congressional Branch of the Federal Government, is the power to “regulate” immigration, regulate by setting “quotas” and other “criteria” by which to judge those seeking admission to the Country and to set “standards” that must be met prior to gaining admission. http://www1.umn.edu/humanrts/immigrationlaw/chapter2.html

The Arizona law does not set a single quota. The Arizona law doesn’t establish a single criteria or standard to be applied to anyone. Simply put, the Arizona Law allows Arizona Law Enforcement Officers to ask for suspects to identify themselves, a necessary first step in determining whether any of the Country’s immigration laws might apply and whether the suspect currently being questioned may have violated one of those laws.]    

Backers of the law say that Arizona will have some strong arguments in its favor in fighting the lawsuit.

Kris Kobach, the University of Missouri-Kansas City law professor who helped draft the Arizona law, has said the state law is only prohibiting conduct already illegal under federal law. And Harvard Law School professor Gerald Neuman believes Arizona could make a compelling legal argument that it has overlapping authority to protect its residents.

[ http://mcauleysworld.wordpress.com/2010/05/05/the-immigration-debate-arizonas-law-facts-from-fiction-are-you-tired-of-being-lied-to/ ]

But courts have ruled that under the Supremacy Clause of the Constitution, any state law that conflicts with a federal law is pre-empted. Federal law, the framers said, “shall be the supreme law of the land.”

[Except of course, where the framers of the Constitution said, “Any power not specifically granted to the Federal Government is reserved to the States’]

The pre-emption tactic has been successfully used by the federal government on several occasions over the years, including by the Bush administration to limit product liability lawsuits. The government also used it to overturn bans on military recruiters passed by liberal California towns.

[I am surprised that the author of this article didn’t mention Supreme Court Nominee Kagan, given the fact that Nominee Kagan challenged this very issue while she was Dean of Harvard Law and lost her case before the U.S. Supreme Court]

Federal courts have invoked the Supremacy Clause on immigration issues as well. For example, a federal judge in 2008 struck down a Dallas suburb’s ordinance that banned apartment rentals to illegal immigrants, saying the U.S. government has the ultimate authority to enforce immigration laws.

[The Obama Administration has also asked the Supreme Court to review Arizona legislation aimed at enforcing Federal laws that make it illegal to hire undocumented or “illegal aliens”. The Obama Administration is, if nothing else, consistent on this issue. The Administration refuses to enforce any of our immigration laws.  “The Obama administration on Friday urged the Supreme Court to review and set aside an Arizona law that sanctions employers who hire illegal immigrants, saying it would disrupt the “careful balance” that Congress struck in federal immigration law.” http://www.washingtonpost.com/wp-dyn/content/article/2010/05/28/AR2010052804319.html  ]

Despite the precedent, that doesn’t mean the lawsuit is a sure winner, or that state officials don’t believe they can pass laws that head into federal turf.

In fact, efforts by many states trying to block the nation’s new health care law run headlong into the Constitution’s Supremacy Clause. But immigration is one area where federal authority has generally been upheld.

[Upheld with many limitations: The Supremacy Clause of the Constitution also requires the States to, “enforce violations of the federal immigration laws.”The statutory law of the United States is part of the law of each state just as if it were written into state statutory law.” In 1999 a decision in the Tenth Circuit Court of Appeals upheld the independent authority of local police departments to enforce federal immigration lawhttp://www.fairus.org/site/PageServer?pagename=research_research397d  ]

“Immigration has traditionally and constitutionally been the historic preserve of the federal government, and there are cases going back to the late 19th century that say as much,” said Peter Spiro, a constitutional law professor at Temple University who has studied immigration law extensively. “So the Obama Administration has a lot to work with in filing this claim, and the fact that the claim is filed by the administration adds credibility … and increases the chances that law will be struck down on pre-emption grounds.

[With the exception being, the Congress, the Branch of the Federal Government that holds the power of regulating immigration, has in fact, delegated a good deal of the “enforcement responsibility to the States and State Law Enforcement Authorities.  Department of Homeland Security, discussing Section 287(g), Immigration and Nationality Act; Delegation of Immigration Authority : http://www.ice.gov/pi/news/factsheets/070622factsheet287gprogover.htm  ]

“That said, it not by any means a slam dunk,” Spiro said.

Regardless of how the case is determined at the district court level, it will likely be appealed. The U.S. Supreme Court is already set to hear an Arizona immigration case in the fall when it takes up a challenge to a 2007 state law punishing employers who knowingly hire illegal immigrants.

[ http://www.washingtonpost.com/wp-dyn/content/article/2010/05/28/AR2010052804319.html  ]

If the high court doesn’t issue a broad ruling on states’ rights to implement laws on immigration in that case, prepare to see the case filed Tuesday make it to the justices, Spiro said.

“It’s clearly an important case. The Arizona law is unprecedented in its aggressive posture towards illegal immigrants. It’s an important issue federally, really, that’s the way the administration is framing it. They say the states do not have this kind of role as far an immigration legislation.”

[“Aggressive”? How is asking someone to identify themselves “aggressive”? How can any law, State or Federal, be enforced without allowing Law Enforcement Officers to question suspects and ask for identification? Clearly, the law is only “aggressive” if your “true” objective is to prevent enforcement of the immigration laws enacted by Congress]

http://abcnews.go.com/US/wirestory?id=11103944&page=3

This from the U.S. Department of Immigration Control and Enforcement, A Division of Homeland Security,  on the delegation of immigration authority to State Law Enforcement Officers:

June 22, 2007

Section 287(g), Immigration and Nationality Act; Delegation of Immigration Authority

A Law Enforcement Partnership

Terrorism and criminal activity are most effectively combated through a multi-agency/multi-authority approach that encompasses federal, state and local resources, skills and expertise. State and local law enforcement play a critical role in protecting our homeland security because they are often the first responders on the scene when there is an incident or attack against the United States. During the course of daily duties, they will often encounter foreign-born criminals and immigration violators who pose a threat to national security or public safety.

Section 287(g) of the Immigration and Nationality Act

The Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA), effective September 30, 1996, added Section 287(g), performance of immigration officer functions by state officers and employees, to the Immigration and Nationality Act (INA). This authorizes the secretary of the U.S. Department of Homeland Security (DHS) to enter into agreements with state and local law enforcement agencies, permitting designated officers to perform immigration law enforcement functions, pursuant to a Memorandum of Agreement (MOA), provided that the local law enforcement officers receive appropriate training and function under the supervision of sworn U.S. Immigration and Customs Enforcement (ICE) officers.

State and local patrol officers, detectives, investigators and correctional officers working in conjunction with ICE gain: necessary resources and authority to pursue investigations relating to violent crimes, human smuggling, gang/organized crime activity, sexual-related offenses, narcotics smuggling and money laundering; and support in more remote geographical locations.

Memorandum of Agreement

The MOA defines the scope and limitations of the authority to be designated. It also establishes the supervisory structure for the officers working under the cross-designation and prescribes the agreed upon complaint process governing officer conduct during the life of the MOA. Under the statute, ICE will supervise all cross-designated officers when they exercise their immigration authorities. Once the scope of limitations of the MOA has been reached, the assistant secretary of ICE, and the governor, a senior political entity, or the head of the local agency may sign the MOA, requesting the cross-designation.

http://www.ice.gov/pi/news/factsheets/070622factsheet287gprogover.htm

How, exactly, can this process of “co-operation” and “enforcement” begin, if you deny Law Enforcement Officers the right to question suspects and determine if they are illegal alien criminals?

Authority delegated to the States by Congress cannot be nulified by the Executive Branch as the Executive Branch tries to deny the States the ability to exercise the authority duly extended by Congress. If the Executive Branch wants to reverse our existing Immigration Law and implement an “amnesty” and “open borders” policy,  let the Executive Branch pass such changes through Congress as required by our Constitution and not attempt to usurp the power of Congress to write the Country’s immigration laws through the dereliction of duty by the Executive Branch as it refuses to enforce the immigrations laws passed by Congress.

Also See: 

THE QUINTESSENTIAL FORCE MULTIPLIER: THE INHERENT AUTHORITY OF LOCAL POLICE TO MAKEIMMIGRATION ARRESTS: By Kris W. Kobach; Professor of Law, University of Missouri (Kansas City) School of Law. A.B. 1988, Harvard University; M.Phil. 1990, Oxford University; D.Phil. 1992, Oxford University; J.D. 1995, Yale Law School.

 http://www.irli.org/ForceMultiplrKobach.pdf

On 04/23/2002 the DOJ (Department of Justice) issued a memorandum discussing  the very issues upon which the Obama Administration has based the current law suit against Arizona ….. in 2002 the DOJ clearly stated that concurrent enforcement of either civil or criminal violations of Federal Immigration laws was not, in fact, preempted or reserved under the supremacy clause of the Constitution or any Federal Statute.

2002 DOJ Memo

The Immigration Debate: DOJ files suit against Arizona – Why Arizona will win

The Immigration Debate: The Arizona Immigration Law – Concurrent Federal & State Juridiction – Section 287(G) of the IIRAIRA, Operation Stone Garden & SCAAP

Posted on July 6, 2010 by mcauleysworld | Edit

For a full discussion of Arizona’s Immigration Law see: http://mcauleysworld.wordpress.com/2010/05/05/the-immigration-debate-arizonas-law-facts-from-fiction-are-you-tired-of-being-lied-to/

ARIZONA’S LAW AND THE CONCURRENT ENFORCEMENT OF FEDERAL IMMIGRATION LAWS

Detractors of the Arizona Law have presented many false arguments in support of what is a politically motivated playing of yet another “race bating card” prior to the upcoming elections in November.

The first such argument was that the law called for racial profiling, which the law specifically prohbitis.  http://mcauleysworld.wordpress.com/2010/05/05/the-immigration-debate-arizonas-law-facts-from-fiction-are-you-tired-of-being-lied-to/

The second argument was that the law would result in racial profiling by law enforcement officers in Arizona. If such an act occurs under the Arizona law, the act would be an act of misfeasance. Misfeasance is the wrongful performance of a normally lawful act. http://dictionary.reference.com/browse/misfeasance

A law setting a 25 mile an hour speed limit is lawful and constitutional. A law enforcement officer, who pulls a driver over because of their race, not because they are speeding, is committing an act of malfeasance. Malfeasance is a civil and criminal wrong, however, the officer’s malfeasance does not make the speed limit law unconstitutional.    

The third argument is that the States may not usurp (usurp – to use without authority or right, to take from without authority.  http://dictionary.reference.com/browse/usurp) the Federal Governments authority to set “immigration quotas” and other “criteria” (criteria: a standard of judgment – a rule or principle for evaluating. http://dictionary.reference.com/browse/criteria ) for admitting or declining admission of foreign nationals to the United States. The Arizona Law does not attempt to usurp the “exclusive powers” delegated to the U.S. Congress, the powers to “regulate” immigration into the United States.

What the Arizona Law does do is this, in the performance of their delegated duties; Arizona Law Enforcement Officers may question suspects, suspects being investigated for other crimes, about their immigration status when a reasonable suspicion exists that the suspect is in the Country illegally.

The Arizona Law acknowledges that a “concurrent jurisdiction” exists between the Federal Government and the State of Arizona’s Government for enforcing the immigration laws created by the U.S. Congress.

Concurrent jurisdiction:  jurisdiction that is shared by different courts, such as crimes committed on boundary rivers. http://dictionary.reference.com/browse/jurisdiction?db=legal&q=jurisdiction; Concurrent jurisdiction is the ability to exercise judicial review by different courts at the same time, within the same territory, and over the same subject matter. A state may have concurrent jurisdiction with a federal court, for example, when a crime defined under state law is committed on federal property, and certain offenses involving Indian tribal members. State and federal courts also have concurrent jurisdiction over the Jones Act, which authorizes seaman who suffers personal injury in course of employment to bring action for damages at law. http://www.ask.com/bar?q=concurrent+jurisdiction&page=1&qsrc=2445&dm=all&ab=1&u=http%3A%2F%2Fdefinitions.uslegal.com%2Fc%2Fconcurrent-jurisdiction%2F&sg=CXQmmGv5mT%2Bvb%2BTvdtRDWPjJ1Fanyu1EeFXOf%2BD6lsY%3D&tsp=1278423837109 .

The Federal Government’s right to set immigration quotas and criteria is exclusive; however, the Federal Government’s duty to enforce these laws is not, that duty is a “concurrent duty” with those of the States.

Concurrent Jurisdiction: The Federal Government’s Acknowledgement of Concurrent Enforcement of the Immigration Laws

Section 287(g), Immigration and Nationality Act; Delegation of Immigration Authority 

A Statement from U.S. Immigration and Custom Enforcement (ICE): June 22, 2007

Section 287(g), Immigration and Nationality Act; Delegation of Immigration Authority

A Law Enforcement Partnership

Terrorism and criminal activity are most effectively combated through a multi-agency/multi-authority approach that encompasses federal, state and local resources, skills and expertise. State and local law enforcement play a critical role in protecting our homeland security because they are often the first responders on the scene when there is an incident or attack against the United States . During the course of daily duties, they will often encounter foreign-born criminals and immigration violators who pose a threat to national security or public safety.

Section 287(g) of the Immigration and Nationality Act

The Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA), effective September 30, 1996, added Section 287(g), performance of immigration officer functions by state officers and employees, to the Immigration and Nationality Act (INA). This authorizes the secretary of the U.S. Department of Homeland Security (DHS) to enter into agreements with state and local law enforcement agencies, permitting designated officers to perform immigration law enforcement functions, pursuant to a Memorandum of Agreement (MOA), provided that the local law enforcement officers receive appropriate training and function under the supervision of sworn U.S. Immigration and Customs Enforcement (ICE) officers.

State and local patrol officers, detectives, investigators and correctional officers working in conjunction with ICE gain: necessary resources and authority to pursue investigations relating to violent crimes, human smuggling, gang/organized crime activity, sexual-related offenses, narcotics smuggling and money laundering; and support in more remote geographical locations.

Memorandum of Agreement

The MOA defines the scope and limitations of the authority to be designated. It also establishes the supervisory structure for the officers working under the cross-designation and prescribes the agreed upon complaint process governing officer conduct during the life of the MOA. Under the statute, ICE will supervise all cross-designated officers when they exercise their immigration authorities. Once the scope of limitations of the MOA has been reached, the assistant secretary of ICE, and the governor, a senior political entity, or the head of the local agency may sign the MOA, requesting the cross-designation.

Criminal Alien Program (CAP)

Under current MOAs, 287(g) participants in Arizona , California , and North Carolina currently ensure that criminal aliens incarcerated within federal, state and local facilities are not released into the community upon completion of their sentences. ICE is working to expand 287(g) authority to local and county correctional facilities that are not operational within normal ICE jurisdictions. The expansion of the 287(g) program into smaller county and local correctional facilities will act as a force multiplier for CAP and have a positive impact on this important program.

http://www.ice.gov/pi/news/factsheets/070622factsheet287gprogover.htm

Arizona Officers Join Operation Stone Garden to Beef up Border Security: November 23, 2004

Yuma police and the Yuma County Sheriff’s Office are taking part in a new Department of Homeland Security initiative that uses local law enforcement officers to beef up border security.

Known as Operation Stone Garden, the action consists of distributing federal grant money to cover overtime pay for local law enforcement officers to augment efforts to secure U.S. borders along Canada and Mexico, said Kristi Clemens, spokeswoman for U.S. Customs and Border Protection.

Clemens said a total of 213 state, local and tribal law enforcement agencies are participating in Operation Stone Garden in Arizona, Alaska, Texas, California, Maine, Michigan, Minnesota, Montana, New Mexico and North Dakota.

Yuma City Police Department and Yuma County Sheriff’s Office are currently participating while the Somerton and Cocopah police agencies are considering joining the effort, officials with each agency said.

“The objective is to increase law enforcement presence and activity,” said Yuma police spokeswoman Leanne Worthen. “We’re going to take Operation Stone Garden and focus on self-initiated activity in some target areas and deal with any of the criminal activity.”

Participation in the operation does not mean Yuma police and sheriff’s deputies will be taken away from their regular duties, nor does it mean local law enforcement will be taking over the job of Custom’s officers and Border Patrol agents, Worthen said.

 

For the sheriff’s office, joining the multi-agency effort means having a greater presence in key areas in the San Luis area to combat Mexican nationals who cross into Arizona and commit crimes, said Yuma County Sheriff’s Capt. Eben Bratcher.

“We are performing law enforcement activity on the border … it is strictly what we would normally do but with enhanced presence,” Bratcher said.

Earlier this week the Yuma County Board of Supervisors approved $153,216 of federal grant money to cover overtime pay for Sheriff’s deputies engaged in the operation.

Clemens said the Department of Homeland Security made available in early October $13.5 million in grant money to local agencies for the operation. Clemens said the operation was not made public and federal authorities instead contacted local law enforcement agencies directly about the grant money.

http://www.policeone.com/border-patrol/articles/93829-Arizona-Officers-Join-Operation-Stone-Garden-to-Beef-Up-Border-Security/

The Obama Administration uses “Operation Stone Garden” for “Photo Op” in the war against Cartel related border violence.

Napolitano: Heightened enforcement to prevent drug violence from spilling in from Mexico

Homeland Security Secretary Janet Napolitano announced $30 million in federal grants Tuesday to prevent drug-fueled violence from spilling into the United States from Mexico, heralding it as the latest of several moves in recent months to bolster border enforcement.

Law enforcement agencies in Texas will get nearly $13 million, California and Arizona will get more than $7 million each and New Mexico will receive nearly $3 million under the federal Operation Stone Garden program.

Napolitano broke little new ground in what her office billed as a major speech on border enforcement. She highlighted previously announced measures — most recently, enhanced oversight at the department’s widely criticized immigration detention centers. She expressed hope for an overhaul of immigration laws, while vowing to continue enforcing existing laws.

The $30 million for Operation Stone Garden is in addition to $60 million for the program announced in June, mostly for the border region. It will pay for overtime, travel and other expenses to bolster state and local law enforcement on the Mexican border.

http://blog.taragana.com/n/napolitano-heightened-enforcement-to-prevent-drug-violence-from-spilling-in-from-mexico-136886/

The Federal SCAAP Program 

State Criminal Alien Assistance Program (SCAAP): The Federal Bureau of Justice Assistance administers the State Criminal Alien Assistance Program, in conjunction with the Bureau of Immigration and Customs Enforcement and Citizenship and Immigration Services, Department of Homeland Security (DHS). SCAAP provides federal payments to states and localities that incurred correctional officer salary costs for incarcerating undocumented criminal aliens with at least one felony or two misdemeanor convictions for violations of state or local law, and incarcerated for at least 4 consecutive days during the reporting period.

Use of SCAAP Awards: The Department of Justice Reauthorization Act of 2005 (Pub. L. 109-162, Title XI) included the following requirement regarding the use of SCAAP funds: “Amounts appropriated pursuant to the authorization of appropriations in paragraph (5) that are distributed to a State or political subdivision of a State, including a municipality, may be used only for correctional purposes.” Beginning with FY 2007 SCAAP awards, SCAAP funds must be used for correctional purposes only.

[Enforcement Funding is provided through “Operation Stone Garden” and other Federal Programs]

Qualifying Criminal Charges and Convictions
To be eligible for reporting, inmates must have been convicted of a felony or second misdemeanor for violations of state or local law, and housed in the applicant’s state or local correctional facility for 4 or more consecutive days during the reporting period. Once a person meets these criteria, all pre-trial and post-conviction time served from July 1, 2008 through June 30, 2009 may be included in the FY 2010 application.

Entering Inmate Data: If the Alien Number is unknown for an individual inmate, enter all zeroes in the A number field. Do not use letters (A) or symbols (dashes, etc.). Also, use zeros (0) as the beginning digit(s) if the A-number is fewer than 9 digits.

The FBI number is issued by the FBI to track arrests and fingerprint records. If this number is not available, leave this field blank by inserting 10 spaces. If the FBI number is fewer than 10 characters, enter the number first, and then insert spaces for the remainder of the field length.

[Clearly, the Federal Government “requires” that the State of Arizona idenitfy these “criminal aliens” in order to qualify for the SCAAP reimbursement for “holding” these criminals that should be the responsibility of the Federal Government, criminals that shjould be “deported” undre Federal Law. Criminals that would be prevented from enteringthis COuntry under our immigration laws, if they were being enforced and prohibited from staying in this Country under any proposed “amnesty program”]

2010 SCAAP Data:
FY 2010 SCAAP Guidelines (PDF)
FY 2010 ICE Country Codes (PDF)
FY 2010 Inmate Data File Format (PDF

http://www.ojp.usdoj.gov/BJA/grant/scaap.html

SCAAP Overview

The Bureau of Justice Assistance (BJA), Office of Justice Programs, U.S. Department of Justice, administers SCAAP, in conjunction with the U.S. Department of Homeland Security (DHS). SCAAP provides federal payments to states and localities that incurred correctional officer salary costs for incarcerating undocumented criminal aliens who have at least one felony or two misdemeanor convictions for violations of state or local law, and who are incarcerated for at least 4 consecutive days during the reporting period.

SCAAP Legislative Authority

SCAAP is governed by Section 241(i) of the Immigration and Nationality Act, 8 U.S.C. § 1231(i), as amended, and Title II, Subtitle C, Section 20301, Violent Crime Control and Law Enforcement Act of 1994, Pub. L. 103-322. In general terms, if a chief executive officer of a state or a political subdivision exercises authority over the incarceration of undocumented criminal aliens and submits a written request to the U.S. Attorney General, the Attorney General may provide compensation to that jurisdiction for those incarceration costs. SCAAP is subject to additional terms and conditions of yearly congressional appropriations.

http://www.ojp.usdoj.gov/BJA/grant/2007_SCAAP_Guidelines.pdf

[SCAAP is a creation of Congressional Enactment of Federal Immigration Law]

Eligible Inmates

• Were born outside the United States or one of its territories and had no reported or documented claim to U.S. citizenship.

• Were in the applicant’s custody for 4 or more consecutive days during the reporting period.

• Were convicted of a felony or second misdemeanor for violations of state or local law.

Were identified and reported as undocumented, using due diligence.

• Persons who entered the U.S. without inspection or at any time or place other than as designated by the Attorney General.

• Persons in deportation or exclusion proceedings at the time they were taken into custody.

• Non-immigrants who failed to maintain their non-immigrant status at the time they were taken into custody.

• Certain Mariel Cubans who otherwise meet these requirements.

http://www.ojp.usdoj.gov/BJA/grant/2007_SCAAP_Guidelines.pdf 

Conclusion:

The Obama Administration’s use of the Department of Justice to challenge the Arizona Immigration Law is a shameless act of “race baiting” intended to divide the Nation, creating a division that the Obama Administration hopes to exploit for political advantage.

The Obama Administration knows full well that the Arizona Law does not infringe upon the Federal Government’s “exclusive powers”, that the law is nothing more than a basic law enforcement tool, the tool of requiring suspects to identify themselves.

The Arizona Law allows for the questioning of a suspect as a precursor to contacting ICE and requesting the assistance and supervision of ICE  personal as is outlined in Section 287(g) of the Immigration and Nationality Act of 1996.

The Arizona Law is a necessary adjunct to a successful application of “Operation Stone Garden”, a concurrent program of law enforcement.

The Arizona Law is a necessary adjunct to a successful application of the SCAAP Program and will allow Arizona Law Enforcement Officers to gather the information necessary to obtain reimbursement from the Federal Government under the SCAAP Program.

The Obama Administration is dishonest when it claims that these “programs” can be implemented without allowing Arizona Law Enforcement Officers to identify those criminals who have entered our Country illegally.

Examples Of Reporting From SCAAP

                                  EXAMPLES                             REPORTABLE DAYS
An alien was convicted of a felony during the reporting period and spent 20 days in pretrial detention and 60 additional days from the conviction. All 80 days occurred during the reporting period.                                                80
An alien was convicted of a felony during the reporting period and spent 20 days in pretrial detention and 60 additional days from the conviction. The 20 pretrial detention days and 40 of the sentenced days occurred in the reporting period; the remaining 20 days were served after June 30, 2006.                                                60
An alien was convicted of a felony several years ago and is being held in pretrial detention on new charges. As this alien already qualifies based on the prior felony conviction, once he meets the minimum of 4 consecutive days in custody during the reporting period, the pretrial days may be reported to BJA, regardless of the outcome of the pending charges.                                          As calculated
An alien was convicted of a second misdemeanor and served 3 consecutive days as of June 30, 2006, and 20 additional days after June 30, 2006. This inmate cannot be reported for FY 2007, but will qualify for FY 2008. NOTE: The first 3 days of the sentence are not reportable, regardless of what occurs with this inmate in the future.                                                   0

In 2009 the State of Arizona received $12.8 million dollars in SCAAP reimbursements from the Federal Government. http://www.ojp.usdoj.gov/BJA/grant/09SCAAPawards.pdf

UPDATE: DOJ files suit against Arizona.

The 25 page lawsuit fails to mention “racial profiling” or “discrimination” even once, giving light to the fact that the Obama Administration knew the claims of “profiling” and “discrimination” to be false from the very beginning – The Administration’s failure to even allege “discrimination” or to allege “racial profiling” in the suit, proves that those false claims were known to be false, in fact, the claims were nothing more than the Obama Administration’s “playing of the race card” in an attempt to exploit racial divisions in this Country for their political advantage.

The DOJ suit rests solely on a claim that the Arizona Law is pre-empted by Congress’ right to formulate immigration quotas and immigration criteria for foreign nationals to be admitted to the U.S..

The lawsuit fails to acknowledge or mention the numerous areas of “concurrent jurisdiction” over our immigration laws shared by the Federal and State Governments. The “suit” reads as if the “drafters” of the suit had never read the 1996 Comprehensive Immigration reform Act.

Update 2:

The 1st and 2nd causes involve the same argument ciitng two diffrent portions of the Constitution (see page 23 of the Complaint, Cause 1:Supremecy, Cause 2:Pre-emption and cause 3) The Commerce Clause. There are no causes claiming “racial profiling” or “discrimnation”.

The Complaint can be viewed here: http://legaltimes.typepad.com/files/usa_v_arizona.pdf

I find the following interesting: Beginning on page 12, #31: Through a variety of programs, DHS works cooperatively with states and localities to accomplish its mission to enforce the federal immigration laws. Among these efforts is the Law Enforcement Agency Response program (“LEAR”), an Arizona-specific program that is operational 24 hours a day, 7 days a week, for responding to calls from state and local law enforcement officers seeking assistance from ICE regarding suspected unlawfully present aliens. ICE also administers the Law Enforcement Support Center (“LESC”), also operational 24 hours a day, 7 days a week, which serves as a national enforcement operations center and – among other responsibilities – 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.

continuing of page 13: Further, ICE and CBP officers respond to requests from state and local law enforcement officers on a variety of immigration matters, including assisting with translation, determining alienage, and evaluating immigration documentation.

# 32…. But the opportunity that federal law provides for participation by state and local officials does not mean that states can enact their own immigration policies to rival the national immigration policy; the formulation of immigration policy and balancing of immigration enforcement priorities is a matter reserved for the federal government. Such regulations do not fall within the state’s traditional police powers and remain the exclusive province of the federal government…..

It is gratifying to see that the Government has droppped the self serving pretence of “profiling” or “discrimination”, however, I belive the Court will quickly point out that the Arizona Law does not create an “IMMIGRATION POLICY” of any type, the law, simply, allows law enforcement officers to question “suspects” about their immigration status …….

exactly how else would these State Law Enforcement officers “trigger” a call to ICE or the supervision by ICE of a criminal detainee, without first identifying whether the “suspect” or “detainee” was an illegal alien … maybe the Obama Administration suggests the Law Enforcement Officers use of Tarot cards …..

I really enjoyed the portion of the suit where the Government alleges that it will cost too much to enforce Arizona’s Law and that if the Arizona Law prevails the Federal Government won’t be able to pick and choose the laws it enforces: At page 18 lines 3 to 8: “Mandatory state alien inspection schemes and attendant federal verification
requirements will impermissibly impair and burden the federal resources and activities of DHS. S.B. 1070’s mandate for verification of alien status will necessarily result in a dramatic increase in the number of verification requests being issued to DHS, and will
thereby place a tremendous burden on DHS resources, necessitating a reallocation of DHS
resources away from its policy priorities.”

Oh my gosh – DHS will need to verify that illegals are illegal …….

Once again check out what ICE had to say about the working relationship between Federal & State Agencies and the “Delegation of Immigration Authority” to the States here:

http://www.ice.gov/pi/news/factsheets/070622factsheet287gprogover.htm

On April 23, 2002 the DOJ (Departement of Justice) considered and rejected the very arguments presented by the Obama Adminstration in its lawsuit against the State of Arizona. The “findings” of the DOJ are “memorialized” in the following memo:

2002 DOJ Memo

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