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

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

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

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

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

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

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

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

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

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

What was the Congressional Intent?

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

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

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

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

Title 8 U.S.C. § 1373(c),

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

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

The LESC – “The Law Enforcement Support Center”

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

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

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

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

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

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

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

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

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

The LESC defines its mission this way:

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

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

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

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

ICE immigration databases;

National Crime Information Center (NCIC);

Interstate Identification Index (III);

Student and Exchange Visitor Information System (SEVIS);

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

National Security Entry-Exit Registration System (NSEERS).

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

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

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

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

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

NSEERS

From the Official NEERS web site:

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

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

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

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

Brief summary of preemption:

There are there “classifications” of preemption;

1). Express

2). Implied: Field

3). Implied Conflict.

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

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

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

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

Preliminary Conclusion:

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

Back to the Bolton opinion.

a. Mandatory Immigration Status Determination Upon Arrest

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

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

dependent on one another. As initially written, the first sentence of Section 2(B) did not contain the word “arrest,” such that the second sentence could be read as modifying or explicating the first sentence. In S.B. 1070 as originally enacted, the first two sentences of Section 2(B) are clearly independent of one another. Therefore, it does not follow logically that by changing “any lawful contact” to “any lawful stop, detention or arrest” in the first sentence, the Arizona Legislature intended to alter the meaning of the second sentence in any way. If that had been the Legislature’s intent, it could easily have modified the second sentence accordingly. As a result of this conclusion, the Court reads the second sentence of Section 2(B) independently from the first sentence. The Court also concludes that the list of forms of identification that could provide a presumption that a person is not an unlawfully present alien applies only to the first sentence of Section 2(B) because the second sentence makes no mention of unlawful presence: the second sentence states plainly that “[a]ny person who is arrested” must have his or her immigration status determined before release. A presumption against unlawful presence would not dispose of the requirement that immigration status be checked because a legal permanent resident might have a valid Arizona driver’s license, but an inquiry would still need to be made to satisfy the requirement that the person’s “immigration status” be determined prior to release. The United States asserts that mandatory determination of immigration status for all arrestees “conflicts with federal law because it necessarily imposes substantial burdens on lawful immigrants in a way that frustrates the concern of Congress for nationally-uniform rules governing the treatment of aliens throughout the country – rules designed to ensure ‘our traditional policy of not treating aliens as a thing apart.’” (Pl.’s Mot. at 26 (quoting Hines v. Davidowitz, 312 U.S. 52, 73 (1941)).) Finding a state law related to alien registration to be preempted, the Supreme Court in Hines observed that Congress “manifested a purpose to [regulate immigration] in such a way as to protect the personal liberties of law-abiding aliens through one uniform national . . . system[] and to leave them free from the possibility of inquisitorial practices and police surveillance.” 312 U.S. at 74. (Page 16, lines 1 to 28).

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

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

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

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

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

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

Requiring Arizona law enforcement officials and agencies to determine the immigration status of every person who is arrested burdens lawfully-present aliens because their liberty will be restricted while their status is checked. Given the large number of people who are technically “arrested” but never booked into jail or perhaps even transported to a law enforcement facility, detention time for this category of arrestee will certainly be extended during an immigration status verification. (See Escobar, et al. v. City of Tucson, et al., No. CV 10-249-TUC-SRB, Doc. 9, City of Tucson’s Answer & Cross-cl., ¶ 38 (stating that during fiscal year 2009,

(Page 17, Lines 1 to 9)

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

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

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

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

From the Official NCIC web site: 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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