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

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

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

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

At this point I will make two comments;

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

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

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

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

B. Overview of S.B. 1070

1. Section 1

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

2. Section 2

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

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

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

3. Section 3

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

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

4. Section 4

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

5. Section 5

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

6. Section 6

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

 7. Sections 7-13

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

C. Procedural Posture

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

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

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

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

III. LEGAL STANDARDS AND ANALYSIS

A. General Legal Standards

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

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

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

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

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

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

1).  Express Preemption

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

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

 2. Conflict preemption

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

3. Field preemption

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

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

Foot Note 4

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

(Page 11, lines 25 to 28).

 Implicate?  What and where?

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

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

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

B. Likelihood of Success on the Merits

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

1. Preemption of Overall Statutory Scheme

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

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

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

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

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

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

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

The Judge has made two false statements,

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

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

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

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

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

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

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

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

Let us help the Judge do her job correctly.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 I’ve attached various PDFs for your reference.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

2002 DOJ Memo

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

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

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

“We summarize our conclusions:

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

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

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

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

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

My Review of Judge Bolton’s Opinion Follows:

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

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

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

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

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

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

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

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

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

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

BACKGROUND

A. Overview of Federal Immigration Law

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

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

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

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

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

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

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

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

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

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

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

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

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

THE JUDGES’S FIRST FALSE STATEMENT

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

(b) Criminal penalties for reentry of certain removed aliens

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

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

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

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

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

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

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

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

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

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

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

2). How, exactly, does a Local or State Police Officer identify the illegal alien “felons” from the 1^st 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: Arizona’s Immigration Law – It is past time to call out the AP on their Inaccurate Reporting –

The Immigration Debate: Arizona’s Immigration Law – It is past time to call out the AP on their Inaccurate Reporting; 

AP Claim #1: Arizona helped deport thousands without new law –

AP Claim #2: 10.8 Million or 26% of California Population Illegal

McAuleys World Comments In Blue

It is well pass time that the Associated Press be held accountable for its shoddy reporting and worse, its outright mischaracterizations of the Arizona Law.

By SUZANNE GAMBOA, Associated Press Writer Suzanne Gamboa, Associated Press Writer – Wed Jul 28, 3:12 am ET

WASHINGTON – Without the benefit of their state’s strict new immigration law, officers from a single Arizona county helped deport more than 26,000 immigrants from the U.S. through a federal-local partnership program that has been roundly criticized as fraught with problems.

I wonder what makes this law “strict”?  That it calls on State Law Enforcement to actually enforce the Federal Immigration Laws. The article doesn’t mention that at least 38 States, including the State of California, you know California, the State that has called for “boycotts” of Arizona, have the same laws or substantially the same laws on their “books”.

Statistics obtained by The Associated Press show that the Maricopa County Sheriff’s Office was responsible for deportations or forced departure of 26,146 immigrants since 2007.

This claim is not a “mischaracterization, it is a lie. Simply put, this AP claim is an outright lie. Neither the State of Arizona nor the Maricopa County Sheriff’s Office deported a single individual in 2007. Not one single individual. Zero, nada.

The Maricopa County Sheriff’s Department assisted the Federal Government in deporting 26,146 individuals in 2007. Neither the Maricopa County’s Sheriff’s Department nor the State of Arizona are authorized to deport anyone.

Deportation powers are reserved for the Federal Government, apprehension powers are not. The States and the Federal Government have concurrent jurisdiction for “apprehending” immigration violators. Concurrent jurisdiction for apprehension.  However, only the Federal Government can deport an individual.

Before an individual can be “deported” a “deportation order” must be signed. (The “term” deportation is no longer factual as the Government substituted “removal” and “removal order” for  the terms “deportation” and “deportation order” in 1997, 13 years ago …

The AP article is far from a professional piece of writing.

https://www.usimmigrationsupport.org/deportation.html

From U.S. Immigration Support:   

Prior to the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA – 1996), the legal process of deporting a foreign national was called “deportation” and concerned individuals already present in the United States…  Following the enactment of IIRAIRA, both deportation and exclusion are now referred to as “removal” proceedings. If someone is determined to be removable, they are subject to receiving a removal order and must leave the United States. Any person who is not a U.S. citizen can be deported from the United States.

https://www.usimmigrationsupport.org/deportation.html

Generally deportation is removal of an alien from the United States when the alien has been found removable for violating the immigration laws. Deportation is ordered by an immigration judge without any punishment being imposed or contemplated. Prior to April 1997 deportation and exclusion were separate removal procedures. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 consolidated these procedures. After April 1, 1997 , aliens in and admitted to the United States may be subject to removal based on deportability. Now called Removal, this function is managed by U.S. Immigration and Customs Enforcement.

Deportation of immigrants and other individuals may result as a consequence for entering the United States illegally. You can also be deported if you are not a citizen and have committed a serious crime.

http://www.ncls-inc.com/immigration/deportation/index.htm

Deportations must be “ordered” by a Federal Immigration Judge and the physical Act of “removal” is undertaken by ICE or Immigration and Custom Enforcement. [ICE may delegate the “physical activities” involved in “removing” an individual to State and Local Law enforcement.]

 If you have been deported, you cannot gain re-entry into the United States for at least five years. It is a felony if you re-enter before the end of the five years. You must also receive permission from the CIS before you re-enter.

http://www.ncls-inc.com/immigration/deportation/index.htm

Reasons for Deportation or Exclusion

Because staying in the United States is a privilege and not a right for non-citizens, the United States government can force an individual to return to his or her home country for a number of reasons, such as:

• Committing fraud or misrepresenting a material fact in order to get a visa, green card, etc.
• Conviction of a drug offense (except for possession of a very small amount of marijuana).
• Conviction of other crime.

http://www.ncls-inc.com/immigration/deportation/index.htm

Once an illegal alien is apprehended, a Federal Immigration Judge must approve any action taken against or on behalf of that alien;

Voluntary departure is usually granted by an immigration judge after an order of deportation for an individual who seeks to leave voluntarily in lieu of forced deportation. 

 http://www.ncls-inc.com/immigration/deportation/index.htm

That’s about a quarter of the national total of 115,841 sent out of the U.S. by officers in 64 law enforcement agencies deputized to help enforce immigration laws, some since 2006, under the so-called 287(g) program.

The Department of Homeland Security Annual Report for 2007, the year discussed in this article states the following:

1). The Department of Homeland Security apprehended 961,000 foreign Nationals in 2007.

2). ICE “detained” 311,000 illegal aliens in 2007.

3). A total of 319,000 aliens were “removed” from the United States in 2007, 244,000 of the removals were affected by ICE with the remaining removals, 75,000 being affected by the CBP (Border Patrol).

4). 891,000 foreign nationals accepted the opportunity to “voluntarily leave” the United States prior to a Federal Judge issuing a formal “removal order”.

The Department of Homeland Security Annual Report notes that:

DHS made a total of 960,756 apprehensions in 2007

The Border Patrol reported 876,787 or 91 percent of all apprehensions.

Ninety-eight percent of Border Patrol apprehensions were along the southwest border

ICE Office of Investigations made 53,562 administrative arrests

ICE’s National Fugitive Operations Program (NFOP) made 30,407 arrests of fugitive and non-fugitive aliens.

The most complete picture of adverse actions involving individual aliens includes aliens who are removed with consequent penalties (319,382) and those who voluntarily return (891,390) – to their Country of origin.

http://www.dhs.gov/xlibrary/assets/statistics/publications/enforcement_ar_07.pdf  

WHAT TYPE OF “CHERRY PICKED” STATISTIC IS THE ASSOCIATED PRESS AUTHOR USING?

The AP Reporter did not note that in 2008 the last year for which the DHS has reported statistics, apprehensions dropped for the 3^rd straight year, to an approximate total of 750,000. A reduction of nearly 600,000 from the record 1.3 million apprehended by the DHS in 2005,   

http://www.dhs.gov/xlibrary/assets/statistics/publications/enforcement_ar_07.pdf

http://www.dhs.gov/xlibrary/assets/statistics/publications/enforcement_ar_08.pdf

The tens of thousands of immigrant arrests show local officials already have a significant amount of authority to enforce immigration laws and help remove illegal immigrants from the country.

Yes, there is a mandated concurrent jurisdiction shared by the States and the Federal Government for apprehending those who violate the Federal Immigration Laws. The Department of Homeland Security states that 98% of the Federal arrests for immigration violations take place on the Southern Border and that between 2005 and the end of 2009 the Department of Homeland Security’s own statistics reflect that the total number of apprehensions dropped by nearly 500,000, from a high of  1,300,000 (1.3 million) in 2005 to  a low of 792,000 (792 thousand) in 2008 a  40% reduction in apprehensions over a 3 year period. In January 2006 the Democrats took control of both Houses of Congress. 2005, the year before they took control there were 1.3 million apprehensions, by the end of 2008 when the Obama Administration  was elected, 500,000 fewer apprehensions, a 40% reduction took place …    

But with Maricopa County Sheriff Joe Arpaio the top law officer among all those deputized, questions remain about what’s in store when Arizona gives more officers the power to enforce immigration laws. The federal government already is under fire for doing a poor job of keeping watch on local officers enforcing immigration laws and ensuring safeguards for protecting civil rights are in place.

I’m sorry, if I were the AP editor, this writer would be fired. The Arizona Law does not transfer power, it does not “create” additional power for State Law enforcement officers, it affirms the rights and obligations that already exist. The law confirms the fact that “ordinances” adopted by “Sanctuary Cities” are in fact unconstitutional and that Federal Immigration Law and Arizona State criminal laws supersede “Sanctuary City” ordinances.  Publications that allow writers to fabricate facts, should face the consequences of doing so. Where is the “proof” of the claim this writer is making ,

                                                                        “and ensuring safeguards for protecting civil rights are in place”.

Excuse my language, but what “bullshit”. When you lack the facts, misstate the facts you’ve got. When reason isn’t on your side, “play the race card”.  

Arpaio is under federal investigation on allegations of civil rights allegations, which he denies.

If Arizona’s new law takes effect Thursday, many more of the state’s officers will be asking people to prove they are legally in the U.S. The state law requires officers to ask for a driver’s license, passport or other identity document if they reasonably suspect a person is not allowed to be in the U.S. They must do so while enforcing other laws or ordinances.

Yes, Sheriff Joe has had charges filed against him multiple times over the last 10 years … and Sheriff Joe has been exonerated on each and every claim presented against him  … claims presented by unbiased political groups like the ACLU…  wait a minute, the ACLU isn’t unbiased are they …. Why doesn’t this author identify the accuser by name? After 10 years of “false and unsubstantaited charges” isn’t it about time to refer to the “false and unsubstantiated charges” as false and unsubstantiated charges … This is not about “the law” this is about politics … and failing to enforce the existing laws … about removing and reversing laws passed by Congress and implemented by prior Administrations.

The federal government is trying to block the Arizona law, arguing it usurps its authority. The Justice Department said in its suit challenging the law that the 287(g) federal-local partnerships are one way Congress allowed states to assist in enforcing immigration laws.

Yes, this is what the Obama Administration and the Holder Department of Justice state, however, what the main Stream Media has refused to report is this, the Justice Department issued a memo in 2002 which states the exact opposite…

That 2002 DOJ memo states, “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”

2002 DOJ Memo

 http://mcauleysworld.wordpress.com/2010/07/09/the-immigration-debate-law-suit-against-arizona-04232002-doj-memo-states-that-federal-law-does-not-preempt-the-states-from-making-arrests-for-civil-and-criminal-violations-of-federal-immigration/

“At the pragmatic level, if local police are already allowed to do this and are allowed to do this with federal cooperation with the state, then why do they need the (new Arizona) law?” said Muzaffar Chishti, director of the New York office of the Migration Policy Institute, an immigration think tank.

There are several other ways local officials can assist, including Secure Communities, a more widely used program that allows local officials to check the fingerprints of anyone they book into their jails against FBI and Homeland Security Department databases.

Lets try not to get stupid in this discussion. A suspect needs to be “placed under arrest” before they can be “booked and finger printed”.  Once a suspect is “arrested and booked” State Law Enforcemnet officers can then access the “Secure Communities Database”.  

The Arizona Law addresses the activities undertaken prior to “arrest and booking” … the activities associated with a “preliminary investigation” … the investigation prior to contacting ICE or other immigration authorities … the basics of the investigation … asking a criminal suspect, under investigation for the commission of a crime, to identify themselves … got it … it really isn’t that difficult … If you can’t identify the “suspect” or complete a basic criminal investigation, how do you ever get to the point of an arrest, finger printing and the utilization of the Secure Communities data base … gee, I guess Congree intended for the Feds to set up the Secure Communities data base – just so long as no state or local police used it … 

But the 287(g) program gives officers the most direct authority to stop people on the street, in their cars or in their communities and check whether they are in the country illegally. Federal watchdogs have been critical of the job the Homeland Security Department has been doing in running the program…

This claim is what I would call a bald face lie … that is as direct a condemnation as I can make … this statement is a bald face lie. The following is taken directly from the Department of Homeland Securities Web Page:

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…

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

The Arizona Law addresses criminal investigations prior to the determination that an immigration violation has taken place and applies to all law enforcement officers in the State not a samll group of “designated officers”. A States right to investigate and arrest is not dependent on the delegation of authority from the Federal Government … so says the United States Supreme Court. The State cannot, however, “remove” or “deport”… 

I love how the Government, the ACLU and this AP reporter is arguing that the Arizona Law both usurps Federal Authority and that the Law isn’t needed because 287G already grants the powers requested …  can’t have it both ways can you … that the law interferes with Federal powers and that the law isn’t needed because the Feds have already given the power away …

The department’s inspector general (287G) reported in March that the 287(g) program was poorly supervised and provided insufficient training to officers, including on civil rights law.

Local officers have operated outside their agreements dictating the limits of their authority, the report said. In all, the inspector general made 33 recommendations for overhauling the program, some of which have not yet been resolved. It was the second critical report for the program. The Government Accountability Office had criticized the program in July 2009.

Complaints about Arpaio’s immigration enforcement tactics led the federal government last October to yank his authority to enforce immigration laws during patrols. That month, the Obama administration rewrote all agreements with local partners in attempt to address complaints of racial profiling and civil rights violations.

Yes, this is accurate, as far as it goes. The “287G Program” was in operation for over 13 years before the Obama Administration unilaterally decided to rewrite it’s provisions, to “rewrite” the programs guidelines, something that should have been left to Congress. Is there really any need to point out that the Obama Administration looks at this issue in a manner completely divorced from the rest of the Country … that the Obama Adminstration is on the extereme left and is ignoring American’s “mainstream” on many of these issues; “trying terrorist suspects in New York Courts rather that Military Tribunals, releasing New Black Panthers guilty of voter intimidation, renaming terror attacks as “man caused events” , claiming that the “Boston Police acted stupidly” … and now … even before they read the Arizona Law, claiming that it profiled.

Yes, the Federal Government acted, based on unsubstantiated complaints from groups like the ACLU. The fact is this … the Executive Branch is trying to block enforcement of our immigration laws, laws passed by Congress … the Obama Adminstration is trying to establish a “de-facto” open borders …. see below

WHEN THE UNITED STATES CONSTITUTION STATES THAT IMMIGRATION LAWS ARE RESERVED FOR THE FEDERAL GOVERNMENT – IT IS REFERING TO CONGRESS – NOT THE EXECUTIVE BRANCH … THE COURTS HAVE ALWAYS BEEN INSTRUCTED TO LOOK TO THE INTENT OF CONGRESS – NOT THE POLITICAL WHIM OF THE EXECUTIVE BRANCH …

Even so, the federal government continues to allow the sheriff and deputies to check their jails for deportable inmates.

Allows? Allows? The Federal Government is required to do so … by acts of Congress … This is, simply, the Federal Government’s Job… when the Fedral Government fulfuills this OBLIGATION … it is simply doing it’s job. 

First there is the Secure Communities Initiative discussed above. Then there is NSEERS (National Security Entry-Exit Registration) a system established by Congress in compliance with the findings of the 911 Commission Report. The NEERS System is a system for registration of certain non-citizens within the United States, initiated in September 2002 as part of the War on Terrorism. This system has two separate portions: port-of-entry registration and domestic registration. In each case, the registree is required to be fingerprinted, photographed, and interrogated. In addition, they are required to provide detailed information about their plans and updates to the US Immigration and Customs Enforcement (ICE) in case of changes in plans. They are also able to travel to and from the US via certain ports only.

The NEERS system is used to communicate with State and Local Law Enforcement officals as the conduct their daily activities  … much like the Secure Communities Initiative … http://en.wikipedia.org/wiki/Special_Registration

Then there is the LESC Program, the Law Enforcement Support Center (LESC) is a national enforcement operations facility administered by U.S. Immigration and Customs Enforcement (ICE), the largest investigative agency in the Department of Homeland Security (DHS). LESC is a single national point of contact that provides timely customs information and immigration status and identity information and real-time assistance to local, state and federal law enforcement agencies on aliens suspected, arrested or convicted of criminal activity. Located in Williston, Vt., LESC operates 24 hours a day, 7 days a week, 365 days a year. The primary users of LESC are state and local law enforcement officers seeking information about aliens encountered in the course of their daily enforcement activities. LESC also receives queries from federal, state and local correctional and court systems seeking information about individuals in custody or encountered elsewhere in the criminal justice system. Law enforcement officers have immediate access to alien records entered with the National Crime Information Center (NCIC) and immigration information from every alien file maintained by DHS— approximately 100 million records—by using the formatted Immigration Alien Query (IAQ) screen incorporated within each state’s law enforcement communications system.  LESC offers other vital services, including: National Crime Information Center (NCIC)—LESC administers and controls all ICE criminal and administrative records in this nationwide law enforcement consortium and criminal database. There are now over 250,000 ICE records in NCIC.

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

Even so, the federal government continues to allow the sheriff and deputies to check their jails for deportable inmates.

I think not, the Obama Executive Branch has been “instructed by Congress” to do so … prior “Executive Branches” accepted and received the Congressional funding to do so and prior to the arrival of the Obama Administration and this “Executive Branch” the Federal Government has acknowledged the powers both inherent in the States and those additional powers granted to the States by Congress, not the Executive Branch, to assist in the enforcement of our immigration laws.

Consider these words spoken by a former Attorney General, John Ashcroft when he attended the opening of the   NSEERS system, the Attorney General  announced the unequivocal conclusion of the Department of Justice’s Office of Legal Counsel (DOJOLC): “Arresting aliens who have violated criminal provisions of [the INA] or civil provisions that render an alien deportable . . . is within the inherent authority of the states.”

http://mcauleysworld.wordpress.com/2010/07/08/obama-administration-uses-suit-by-holders-doj-against-arizona-to-undo-security-protocols-implemented-by-911-commission/

Joanne Lin, legislative counsel for the American Civil Liberties Union, said it is alarming that one Arizona county is responsible for a disproportionate share of deportations.

After referring indirectly to the ACLU 4 times in this article, the author has finally mentioned them by name … why is it alarming Joanne … you might consider that more illegal aliens cross through Maricopa County than any other County in the Country … A fact confirmed by the DHS and DHS Secretary Napolitano. If you have 500,000 illegal aliens cross through a County, I’m sure the law enforcement officers and citizens of Arizona are disappointed to only have 26,000 of them “intercepted”, “apprehended” and “removed”.   The 26,000 represents only 5% of those who gain entry “illegally” to our Country through that County.

By the way Lin, I love your (the ACLU’s) new commercial. You know the one where a man falsely claims the Arizona Law will allow police to harass him while he is gardening … Lin as an Attorney you are required to abide by the “Code of Conduct” … this commercial is a blatant violation of the Code of Conduct Lin, an intentional misrepresentation of a law …

The Los Angeles County’s Sheriff’s Office, a distant second to Maricopa, helped find 13,784 immigrants who were later deported or left the country. The Sheriff’s Office’s agreement with the federal government allows it to check its jails for deportable immigrants, but not to enforce immigration laws during street patrols. A renewal of the agreement is under negotiation.

Yet another bald faced lie. The City of Los Angeles is a “Sanctuary City” and prohibits it officers, illegally and unconstitutionally prohibits its law enforcement officers, from enforcing Federal immigration laws … the City of Los Angeles does this despite the fact that the City is inundated with violent street gangs populated with illegal alien members of the Mexican Drug Cartels,  gangs such as MS-13, Sureno-13,  … 2 prisoners out of every  5 prisoners in the California penal or jail system, are criminal illegal aliens …

An estimated 10.8 million people, about 26 percent of the state’s population, are living illegally in California, compared with 460,000, about 12 percent, in Arizona.

And the point is? I believe the point is that with an estimated 10.8 million illegal aliens living in California … 26 percent of the State population … it is high time we secure the Country’s borders … and that until California secures its borders and addresses the illegal immigration issue seriously … that all Federal Funds … not just bailout funds … be withheld …  and another 460,000 illegals are reported to be living  in Arizona, yet it is reported, by the Obama Administration that there are only 12 million illegal aliens living in the entire United States… what about Florida, where 1 million illegal aliens reside … and then we would only have an 47 additional states to addd to the count … just as a quick count 10.8 million in California and 460,000 in Arizona equals 11.4 million out of the Obama Administration’s estimated 12 million …

“These statistics bear out that you have rogue sheriffs in certain counties that are bent on targeting immigrants,” Lin said.

Illegal immigrants Lin, dear, illegal immigrants … can’t you tell the difference. Well if you can’t tell the difference Lin, the Federal Immigration Judges have no problem doing so … the problem Lin, is with the authorities in crime ridden LA County, with an estimated 10.8 million illegal aliens, only identifying  13, 784 for “removal” out of the state wide pool of pool of 10,800,000, or the 2.5 million illegals living in the L.A. Tri-County Area. The 13,784  represents an apprehension rate of   6 hundereths of 1% (.006). I’ll suggest that any Sheriff’s Department in the Country can match that “apprehension rate” by sitting in their office eating eating donuts and waiting for the ”suspects” to walk in and voluntarily surrender …

Since the merger of L.A. Public Safety with the L.A. Sheriff’s Department, the combined groups have a total of nearly 9,000 police officers, and this number does not include civilian employees or private “security” personal. A total of approximately 9,000 officers to patrol roughly 7.600 square miles and they apprehended 13, 784 illegal aliens over a 52 week period. That works out to 1.5 illegal alien arrests per officer over the 52 week year span. 1.5 per officcer per year. Did all that work cause the L.A. Sheriff’s to break into a sweat … No wonder Calfornia has 10,800,000 million illegals …

http://en.wikipedia.org/wiki/Los_Angeles_County_Sheriff’s_Department

http://en.wikipedia.org/wiki/Los_Angeles_County_Office_of_Public_Safety

Maricopa County has a total of 4,000 employees and an additional 3,00o volunteer posse members. The County has approximately 3,000 full time Sheriffs, roughly 1/3 of the number employed in L.A. County. The Sheriff’s office “patrols” 9200 hundred square miles. an area rughly the size of the state of Vermont or New Hampshire or New Jersey…. an area 1 1/3 times larger than L.A. County. The Maricopa County Sheriff’s apprehended 26,146 “illegal aliens” in the year in question, for an average of 8.7 per Sheriff for the year … about one apprehension per officer every 6 weeks … not bad considering it isn’t their primary focus …. but this AP writer would have you think what?  That the Maricopa County Sheriff is out there arresting dozens of Hispanics at the local Dairy Queen … yeah, 8.7 apprehensions per year per Sheriff – about 1 every 6 weeks per Sheriff … sounds like a lot of profiling going on to me …  I guess we can tell one thing … The Maricopa County Sheriff is out their working … Do the L.A. County Sheriffs even leave their offices … 1.5 apprehensions per officer per year … 

One thing is certain from these stats … the L.A. County Sheriff is not checking to determine if those arrested are , in fact, here illegally. With 10.800.000 illegal aliens living in California  and a total of 136,288 criminal arrests in 2009 (19,168 Part 1 arrests and 117,120 Part 2 arrests) the L.A. County Sheriff’s office only identified 13,784 illegals, one for every 10 individuals arrested. I for one don’t beleive that any “racial group” is more prone to crime, however, those who are willing to commit a crime to get here may, in fact, be more willing to commit a crime after they arrive. Even if that is not the case, lets just assume that illegal aliens are just as likely as any other “group” in California to commit a crime and be arrested … I’m not willing to believe illegal aliens are more “law abiding” … if this is a fair assumtpion then at least 1/4 of those arrested in L.A, County would be illegal … the same percentage that they represent in California’s population at large …. (I’m not even arguing that the rate should be much higher becasue L.A. County has so many more illegals) … 25% of 136,288  equals 34,072 a tad more than 13,784 that were apprehended … nearly 3 times more …. and nearly 1.5 times more than the number apprehended by Sheriff Joe and his group in Maricopa County … These stats don’t support the slightest hint of profiling … they clearly state what is happening, the L.A. County Sheriff’s department is not enfoircing the immigration law, by choice or by directive  

http://app1.lasd.org/caas_web/era01/index.cfm?mod=mnu&cur_year=2009&locat=dep_all  

http://en.wikipedia.org/wiki/List_of_U.S._states_and_territories_by_area

 http://www.mcso.org/index.php?a=GetModule&mn=Messages

Yes, Lin the problem is obvious and the problem is not in Arizona … Watch the election in November Lin, American is going to send you a loud message …

http://dailycaller.com/2010/07/28/arizona-helped-deport-thousands-without-new-law/

Post Script:

The AP is such a critical part of the 5^th estate, a leader in worldwide reporting, an organization with writers risking their lives in places like Afghanistan, Iraq and yes, in Mexico where they report on the Mexican Civil War with the Drug Cartels… why does the AP allow shoddy pieces like the dribble above be published and detract from the hard won reputation garnered through the efforts of  so many other serious reporters …  won by the hard work of true journalists … AP lose your “political hacks” they diminish the reputation of your true journalists …

SEE: http://mcauleysworld.wordpress.com/2010/07/28/caretl-vilence-4-journalists-missing-in-durango-mexcio-human-rights-commission-issues-call-to-mexican-government/

The Immigration Debate: Judge hears arguments on Arizona immigration law today

A federal judge will hear arguments Thursday from lawyers for the governor, the federal government and civil rights groups over whether Arizona’s new immigration law should take effect in a week.

U.S. District Judge Susan Bolton will consider a request by the U.S. Justice Department to block enforcement of

Cartel Killers leave 5 heads on disco floor

the law. She also will hear arguments in a challenge by civil rights groups over whether the law should be put on hold and whether that lawsuit should be thrown out of court.

The judge has said she wasn’t making any promises on whether she would make those rulings before the law takes effect on July 29.

http://www.forbes.com/feeds/ap/2010/07/22/general-mobile-telecommunications-us-immigration-arizona-lawsuits_7787657.html?boxes=techchannelAP

The Immigration Debate: DOJ Lawsuit Against Arizona – The “Cliff Notes” Post

The Immigration Debate – DOJ Files Suit Against Arizona – Bullet Points & Legal Cites – Your “Cliff Notes” On The Arizona Suit

I’m including “links” to shorten your verification process ….

 1) DOJ suit against State of Arizona: http://legaltimes.typepad.com/files/usa_v_arizona.pdf

The suit’s 3 causes of action are listed on pages 23 & 24 of the 25 page suit.    

2). DOJ memo 04/23/2002 refuting all three causes of action listed in the current DOJ suit. http://www.aclu.org/files/FilesPDFs/ACF27DA.pdf

 3) I’ve cobbled together several “law review” articles and the legal sites to a dozen of the relevant case decisions here: http://mcauleysworld.wordpress.com/2010/07/09/the-immigration-debate-04232002-doj-memo-directly-contradicts-basis-of-obama-lawsuit-against-arizona/

 I have a very different take on how this debate is being “defined” and that the issue of “framing” the debate is still being controlled by the media and the fact that the media is so very slanted in its reporting on this matter.

 A). Arizona’s new law isn’t an “Immigration Law” at all – it is a “law enforcement statute”. – The Arizona statute does not set a single quota or define a single crieria for admitting a foreign national to the United States – the “true” subject matter of Immigration Law.

 B) The Arizona Law is administrative in nature as is described in several of the Federal Court Opinions sited in my blog article..

 C). Arizona is not moving to change Federal Immigration Law - Arizona’s intent is to enforce existing federal law ….

 D). The party moving to “change” this Nation’s laws, through a drastic reinterpretation of existing Federal statutes, is the Plaintiff or the Executive Branch, specifically Obama’s DOJ and AG Holder.

 The 04/23/2002 DOJ memo indicates that post 09/11/2001 the Federal Government waived any claim to preemption or supremacy when it came to the concurrent enforcement of our immigration laws. Congress specifically expanded the role played by state law enforcement post 9/11. Congress has had 8 years to act on the memo or to revise the Statutes it passed after 9/11 and has not done so  …

 The memo was routinely criticized by the ACLU and the rest of the far left when it was first issued in April 2002, however, no Congressional action was taken to address the pronouncements of the far left or to amend the statutes upon which the 04/23/2002 memo is based …. today, the Holder DOJ simply wants to ignore the 04/23/2002 memo and its holdings and to reverse a long standing policy of the United States Government …..

 Once waived by the Executive Branch, “preemption” and or “supremacy” must be reclaimed by Congress …. not the Executive Branch ….