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

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

 I’ve attached various PDFs for your reference.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

2002 DOJ Memo

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

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

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

“We summarize our conclusions:

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

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

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

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

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

My Review of Judge Bolton’s Opinion Follows:

Against a backdrop of rampant illegal immigration, escalating drug and human trafficking crimes, and serious public safety concerns, the Arizona Legislature enacted a set of statutes and statutory amendments in the form of Senate Bill 1070, the “Support Our Law Enforcement and Safe Neighborhoods Act,” (At Page 2, lines 19-22)

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

Among other things, S.B. 1070 requires officers to check a person’s immigration status under certain circumstances (Section 2 – SB 1070) and authorizes officers to make a warrantless arrest of a person where there is probable cause to believe that the person committed a public offense that makes the person removable from the United States (Section 6, of the Law – SB 1070).  (At Page 2, Line 25 / Page 3, lines 1 to 4).

S.B. 1070 also creates or amends crimes for the failure of an alien to apply for or carry registration papers (Section 3 SB 1070), the smuggling of human beings (Section 4 – SB 1070), the performance of work by unauthorized aliens, and the transport or harboring of unlawfully present aliens (Section 5 – SB 1070). On July 6, 2010, the United States filed a Complaint with this Court challenging the constitutionality of S.B. 1070, and it also filed a Motion requesting that the Court issue a preliminary injunction to enjoin Arizona from enforcing S.B. 1070 until the Court can make a final determination as to its constitutionality. The United States argues principally that the power to regulate immigration is vested exclusively in the federal government, and that the provisions of S.B. 1070 are therefore preempted by federal law. (At Page 3, lines 8-14)

The United States, by way of the Obama Administration’s Department of Justice  argued that the Obama Executive Branch is vested with the exclusive power to regulate Immigration and that the Obama Executive Branch is empowered to “pick and choose” which elements of the Immigration Laws it will enforce and that the Obama Administration through the Executive Branch can preempt any other Governmental entity, including the Congress, in the creation, implementation and enforcement of our Immigration Laws. Judge Bolton’s shallow legal reasoning failed to grasp the difference between what the allegations and the “supporting proof” presented by the Obama’s Administration Department of Justice. The Court notes that S.B. 1070 is not a freestanding statute; rather, it is an enactment of the Arizona Legislature that adds some new sections to the Arizona Revised Statutes (“A.R.S.”) and amends some preexisting sections. S.B. 1070 also contains a severability clause, providing that, [i]f a provision of this act or its application to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of the act that can be given effect without the invalid provision or application, and to this end the provisions of this act are severable. S.B. 1070 § 12(A). Therefore, the Court cannot and will not enjoin S.B. 1070 in its entirety, as certain parties to lawsuits challenging the enactment have requested. The Court is obligated to consider S.B. 1070 on a section by section and provision by provision basis.  (At Page 3, Lines 14 to 23).

Applying the proper legal standards based upon well-established precedent, the Court finds that the United States is likely to succeed on the merits in showing that the following Sections of S.B. 1070 are preempted by federal law: (At Page 5, Lines 6 to 9)

Portion of Section 2 of S.B. 1070 A.R.S. § 11-1051(B): requiring that an officer make a reasonable attempt to determine the immigration status of a person stopped, detained or arrested if there is a reasonable suspicion that the person is unlawfully present in the United States, and requiring verification of the immigration status of any person arrested prior to releasing that person. (At Page 5, lines 9 through 13).

Section 3 of S.B. 1070 A.R.S. § 13-1509: creating a crime for the failure to apply for or carry alien registration papers. (At Page 5, lines 13 to 15).Portion of Section 5 of S.B. 1070 A.R.S. § 13-2928(C): creating a crime for an unauthorized alien to solicit, apply for, or perform work(At Page 5, lines 15 to 17).

Section 6 of S.B. 1070 A.R.S. § 13-3883(A)(5): authorizing the warrantless arrest of a person where there is probable cause to believe the person has committed a public offense that makes the person removable from the United States. (At Page 5, Lines 17 to 20).

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

BACKGROUND

A. Overview of Federal Immigration Law

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

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

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

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

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

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

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

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

Among its many provisions, the INA sets forth the conditions under which a foreign national may be admitted to and remain in the United States. Id. §§ 1181-1182, 1184. The INA also contains an alien registration system intended to monitor the entry and movement of aliens in the United States. Id. §§ 1201(b), 1301-1306. (Page 6, lines 8 to 11).

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

Various actions may subject an alien to being placed in removal proceedings, such as entering the United States without inspection, presenting fraudulent documents at a port of entry, violating the conditions of admission, or engaging in certain other proscribed conduct. Id. §§ 1225, 1227, 1228, 1229, 1229c, 1231. Violations of immigration laws may also subject an alien to civil and criminal sanctions. E.g., id. §§ 1325, 1306, 1324c. Unlawful presence in the United States is not a federal crime, although it may make the alien removable. See id. §§ 1182(a)(6)(A)(i), 1227(a)(1)(B)-(C).3  (Page 6, line 12 to line 18).

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

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

THE JUDGES’S FIRST FALSE STATEMENT

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

(b) Criminal penalties for reentry of certain removed aliens

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

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

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

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

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

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

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

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

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

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

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

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

3). See Foot Note 3 below.

Federal alien smuggling laws make it a crime to knowingly bring an unauthorized alien into the country, as well as to harbor such a person or to facilitate unlawful immigration. Id. § 1324. Congress also created sanctions to be implemented against employers who knowingly employ aliens who are not authorized to work when it passed the Immigration Reform and Control Act (“IRCA”) in 1986. Id. § 1324a(a)(1)-(2). Federal law contains no criminal sanction for working without authorization, although document fraud is a civil violation under IRCA. Id. § 1324c. In 1996, Congress passed the Illegal Immigration Reform and Immigrant… (At page 6, lines 19 to 25).

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

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

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

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

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

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

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

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

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

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

Responsibility Act (“IIRIRA”), which, among other things, created various employment eligibility verification programs. See Chicanos Por La Causa, Inc. v. Napolitano (Chicanos Por La Causa II), 558 F.3d 856, 861 (9th Cir. 2009). (At Page 7, lines 1 to 3). Federal immigration law also envisions certain areas of cooperation in immigration enforcement among the federal government and state and local governments. See 8 U.S.C. § 1357(g)(1)-(9) (permitting DHS to enter into agreements whereby appropriately trained and supervised state and local officials can perform certain immigration responsibilities); id. §1373 (establishing parameters for information-sharing between state and local officials and federal immigration officials);   (At page 7, lines 4 to 9)

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

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

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

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

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

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

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

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

Title 8, Chapter 12, § 1252c, states;

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

(a) In general

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

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

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

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

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

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

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

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

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

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

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

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