June 25, 2012 Washington, DC
The Supreme Court has delivered the long expected ruling (click here) on the controversial Arizona Support Our Law Enforcement and Safe Neighborhoods Act, also known as Arizona SB 1070 law. Three of the four provisions at issue, namely the alien registration, criminal penalty on unauthorized employee and warrantless arrests and removal were preempted by the federal law.
The one provision that is not preempted is Section 2(B), which provides officers shall make a reasonable attempt to determine the immigration status of any person they stop, detain, or arrest on some other legitimate basis if reasonable suspicion exists that the person is an alien and is unlawfully present in the United States. The state provisions has three limitations on this provision: (1) a detainee is presumed not to be an illegal alien if he or she provides a valid Arizona drivers license or similar identification; (2) officers may not consider race, color, or national origin except to the extent permitted by the United States and Arizona Constitutions; (3) this provision must be implemented in a manner consistent with federal law regulating immigration, protecting the civil rights of all persons and respecting the privileges and immunities of the US citizens. The Court believes that with these limitation Section 2(B) shall not be preempted. However, this may raise the possibility of more lawsuits based on the racial profiling in implementing this particular rule.
For anyone who has listened to the oral argument of the SB 1070 case, this ruling is hardly a surprise. In the oral argument this provision is the most questioned. Justice Sotomayor being the only Hispanic justice on the bench, threw the first question: Her concern is under Section 2(B) of the Arizona law, after the individual is arrested based on probable cause, the inquiry on his or her immigration status should be made, but how long will the person be detained? Justice Breyer followed up with the question with a scenario. What if a US citizen, Hispanic looking, was arrested and he could not provide valid ID. The federal system does not have immigration status of his because he is a US citizen. There is the risk that such a person will be detained for a significantly longer period of time because of the effect of SB 1070 Section 2(B).
At the oral argument, Chief Justice Roberts was not convinced about the federal governments position that section 2(B) shall be preempted. He asked General Verrilli All it [2(B)] does is to notify the federal government, here is someone who is here illegally and removable. The discretion to prosecute for federal immigration offenses rests entirely with the Attorney General. Roberts later stated [Arizona law] is not an effort to enforce federal law. It is an effort to let you know about violation of Federal law. Whether or not to enforce them is still entirely up to you.
The Court has established that three provisions of SB 1070 law are preempted. It is improper to enjoin Section 2(B) before the state courts had an opportunity to construe it. The Ninth Circuit decision is affirmed in part. The case is remanded for further proceedings consistent with this opinion.
Yi Song, Esq.