Arizona's Immigration Law Facing Numerous Legal Challenges
Wednesday, August 18, 2010

Arizona's new immigration law took effect on July 29, 2010.  The controversial state law requires Arizona state and local law enforcement to verify immigration status upon suspicion that an individual is illegally present in the U.S.  In the last few weeks, there have been numerous legal challenges to the enacted bill.  On June 28, 2010, the Supreme Court granted certiorari to address whether federal law preempts the state law with respect to employers who hire unauthorized aliens (I-9 compliance matters), mandatory use of the federal E-Verify system (currently voluntary for most employers) and the Congressional authority to address immigration matters at a federal level. 

In addition, the U.S. Department of Justice (DOJ) announced on July 6, 2010, that it filed a lawsuit challenging Arizona's law on constitutionality grounds and expressed serious concerns that this law would lead to a "disruptive patchwork" of state and local immigration policies across the country.  The DOJ also requested a preliminary injunction to enjoin the law from taking effect. . On July 28th Judge Susan Bolton of Federal District Court issued a preliminary injunction  blocking sections of the law which called for police officers to check a person’s immigration status while enforcing other laws and required immigrants to prove that they were authorized to be in the country or risk state charges.  Finally, no less than six lawsuits have been filed against the state of Arizona and the governor by the American Civil Liberties Union, various civil rights organizations, labor unions, religious and community organizations, and a number of private citizens, including individual law enforcement officers. 

Beyond the cries of federal preemption, a common theme throughout the challenge to Arizona's new law is fear of racial profiling and abuse.  Opponents of the law argue that victims and witnesses of crime in immigrant communities will live in heightened fear of law enforcement as opposed to viewing law enforcement as partners in keeping their neighborhoods safe.  Moreover, immigrant communities know that immigration law is complex and the path to citizenship in this country is protracted and confusing.  Legal immigrants, as well as those attempting to correct their status are fearful that they will be wrongfully detained or worse. 

In a 2005 report published by the Congressional Research Service, U.S. immigration was described as "second only to the Internal Revenue Code in complexity" and that immigration "beats the tax code."  Our country's immigration laws are a convoluted web of statute, regulation and overwhelming informal policy guidance and memoranda.  The purpose of the Congressional report was to capture some of the challenges faced by federal officers of the U.S. Department of Homeland Security in enforcing our immigration laws.  Simply put, there are countless instances in which foreign nationals are legally present in the U.S. but without specific and current documentation confirming their right to remain.  If federal officers have difficulty sifting through the labyrinth of lawful immigration status, opponents of the Arizona law are left to wonder what problems will arise when local and state officers with nominal training attempt to enforce federal law? 

Comprehensive immigration reform at the federal level is the likely next step and must address enforcement, border security, employer sanctions for habitual violators and creation of new and improved paths to temporary and long-term status.  Until then, we will continue to closely watch the ongoing developments in Arizona.


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