Wednesday, July 28, 2010

SB1070 Temporary Injunctions

Upon reading the ruling of SB1070 from Judge Bolton, it clearly allows most of what the law was intended to do, however, there are portions that do appear to extend beyond Federal Law.

I will put up each of the temporary injunctions as allowed by Judge Bolton and follow them with the actual wording from SB1070 and the amendment HB2162. I then will attempt to give there meanings.

Sections of S.B. 1070 are preempted by federal law:

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.
B. For any lawful contact STOP, DETENTION OR ARREST made by a law enforcement official or a law enforcement agency of this state or a law enforcement official or a law enforcement agency of a county, city, town or other political subdivision of this state IN THE ENFORCEMENT OF ANY OTHER LAW OR ORDINANCE OF A COUNTY, CITY OR TOWN OR THIS STATE where reasonable suspicion exists that the person is an alien who AND is unlawfully present in the United States, a reasonable attempt shall be made, when practicable, to determine the immigration status of the person,
Note the use of the word by Judge Bolton "requiring", this simply means that the State of Arizona cannot mandate or force the officer to make a reasonable attempt to determine the immigration status of a person. It in no way says the officer can not do so if (s)he chooses, it is left at the officers discretion.

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

This is for the entire section of 13-1509 overstepping Federal Law, To establish an uniform Rule of Naturalization, Article 1, Section 8. It is not up to the State level authorities to determine who can or can not be "naturalized", but the State level authorities may in fact question a person of their status if they have reasonable suspicion they are here , it would than be up to DHS and ICE to instruct the officer to either detain the person(s) or allow them to remain under their own recognizance.

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
C. 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.
This portion of 13-2928 is also being temporarily held on account of overstepping Federal Law, as there is no law stating that an entry violator or visa overstay can not apply for work, solicit work, or perform work as an employee or independent contractor at the Federal level. This doesn't mean that they can not be found guilty of employment violations by way of E-Verify or the use of forged documents or for failing to pay taxes. If they make money, they fall within the Federal and State requirements to also report that income.

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

"Plausible Distinction" comes into play here, until it is known or verified that a person is here in violation of immigration law, they do fall under the protections of some aspects of "civil laws".

As you can now see, the "temporary injunction" is limited as to what has been held and is very specific as to what may or may not be authorized. This does allow for more State Congress Amendments to possibly parse the wording of the specified sections to conform to the requirements as set forth by Judge Bolton.

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