Written by: Stephen Manning

– blogging by Stephen Manning, AILA Amicus Chair; Laura Lunn, 2010 Immigration Litigation Summer Fellow

The mess that is Arizona’s Senate Bill 1070 is under legal attack.  The case is  Friendly House v. Whiting, 10-CV-01061-JWS.  On June 4, 2010, the plaintiffs represented by an impressive group of lawyers from the ACLU, NILC, MALDEF, Asian Pacific American Legal Center, the NAACP, the National Day Laborer Organizing Network, and the private firm of Munger, Tolles, & Olson filed a preliminary injunction seeking to prevent SB 1070 from taking effect on July 29, 2010 — the date it becomes effective.  Several organizations maintain updates on the case: MALDEF’s updates, ACLU’s updates,  NDLON’s Arizona Campaign, NILC’s updates.  The Immigration Policy Center of the American Immigration Council has written and researched extensively on SB 1070 with the most recent piece called a Q&A Guide to Arizona’s New Immigration Law (PDF).

AILA, along with numerous other organizations, filed amicus briefs in support of the preliminary injunction.  As we write, more briefs are being filed.  Here, we recap some of the key briefs and the key arguments they present:

The amicus briefs filed included an incredible number of voices expressing their concerns regarding the enactment of S.B. 1070. Numerous different groups filed, including the American Immigration Lawyers Association (AILA), International Longshore and Warehouse Union (ILWU), National Council of La Raza (NCLR), Legal Momentum, and the Lawyers’ Committee for Civil Rights Under Law (LCCRUL). While the overall message presented is unified against the law, each organization applied its particular expertise to provide unique insights for the reasons why S.B. 1070 is impracticable and unconstitutional.

AILA’s brief articulates its concerns regarding the mechanisms by which law enforcement will identify immigrants that it deems removable. AILA is fearful that local authorities will misapply federal immigration laws.  This is problematic because immigration is a federal issue and determining removability requires a legal determination which local police are largely unqualified to make. Additionally, the enactment of the Arizona statute indicates that the state is unsatisfied with federal programs meant to identify undocumented immigrants, and the state is taking it upon itself to remedy the situation—expending its own resources and utilizing local law enforcement agents who have little or no training in regulations pertaining to immigration law.

The amicus brief filed by the ILWU detailed why S.B. 1070 is unconstitutional because it violates Equal Protection, freedom of speech, Due Process under the Fourteenth Amendment, the right to seek employment under the Fifth and Fourteenth Amendments, and is preempted by federal statute.  Additionally, it is unconstitutionally vague, making its enforcement impracticable.

The NCLR focused its attention on how the new law in Arizona will affect immigrants’ access to benefits such as public education, medicine, and proper nutrition. Additionally, its brief addresses the discriminatory animus of S.B. 1070 and how it will affect Latinos—not only as individuals but also as business owners. The NCLR also notes that the new law draws little attention to the large population of Canadians that spend their winters in Arizona, some of whom may have an undocumented status in the U.S. Additionally, the NCLR also addresses the probable increase in violent crimes perpetrated against vulnerable undocumented immigrants due to their fear of approaching authorities to report crimes, which directly contradicts Congressional intent in enacting the T and U-visas.

Legal Momentum expanded on the importance of protecting victims of crime, detailing that S.B. 1070 will affect Arizona families, particularly those that are victim to abuse. Undocumented immigrants will fear law enforcement officers and refrain from asking them for help to prevent their own or a family member’s deportation. Many U.S. citizens that are children of immigrants live in Arizona, and if their parents are deported, they are left in the country with few options. Either stay separated from their family or chose to leave their home. 

Finally, LCCRUL filed a brief detailing that S.B. 1070 violates the fundamental right to travel. This unconstitutional burden on travel creates two classes of citizens—citizens that are able to prove their citizenship and those that lack access to the necessary types of documentation needed to meet the requirements listed in S.B. 1070. Some groups (such as American Indians) may have documentation that satisfies the requirements of adequate identification as required by the statute, but may not actually qualify as U.S. citizens. Certain states, such as New Mexico and Washington, award driver’s licenses to individuals without requiring proof of citizenship, and individuals from these states may be detained when entering Arizona. This would make these individuals targets of law enforcement officials who are required to detain undocumented individuals, causing citizens of these states to be treated differently than a citizen of Arizona, and thus, violating U.S. citizens’ fundamental right to travel.

The different voices represented by the amicus briefs filed in support of the Plaintiffs in Friendly House v. Whiting creates an amalgam of information that clearly establishes why S.B. 1070 should be enjoined. The Arizona statute is impracticable and a liability for local law enforcement agencies and the discrimination and bias it produces will negatively impact immigrant families—citizens and non-citizens alike.