Tuesday, April 19, 2011


S.B. 1070 Section 6 provides that “[a] peace officer, without a warrant, may arrest a person if the officer has probable cause to believe . . . [t]he person to be arrested has committed any public offense that makes the person removable from the United States.”19 Ariz. Rev. Stat. Ann. § 13-3883(A)(5) (2010).

Employing statutory analysis to make certain that “[e]ach word, phrase, clause, and sentence . . .must be given meaning so that no part will be void, inert, redundant, or trivial,” Williams v. Thude, 934 P.2d 1349, 1351 (Ariz. 1997) Judge Paez examines § 13-3883(A) to determine if Judge Bolton properly construed Arizona law.

Warrantless arrest is already permitted under § 13-3883(A) for felonies, misdemeanors, petty offenses, and certain traffic related criminal violations. Judge Paez says in his majority opinion that he and Judge Noonan came to the same conclusion reached below. "we conclude, as the district court did, that Section 6 “provides for the warrantless arrest of a person where there is probable cause to believe the person committed a crime in another state that would be considered a crime if it had been committed in Arizona and that would subject the person to removal from the United States.” United States v. Arizona 703 F. Supp. 2d 980, 1005 (D. Ariz. 2010).

No Presumption Against Preemption

The majority opinion began its inquiry by looking at whether "arresting immigrants for civil immigration violations" was a field typically occupied by the States. Since this is not an area of law traditionally exercised by the States the court found no presumption against preemption. Relying on Wyeth, the court found that no historic police power of Arizona weighed in favor of preemption.

Examining Congressional intent Paez reviewed 8 U.S.C. § 1252c which authorizes state and local officers “to the extent permitted by relevant State . . . law,” arrest and detain an individual who:

(1) is an alien illegally present in the United States;


(2) has previously been convicted of a felony in the United States and deported or left the United States after such conviction, but only after the State or local law enforcement officials obtain appropriate confirmation from the Immigration and Naturalization Service of the status of such individual.
Paez finds that nothing in 8 U.S.C. § 1252c authorizes warrantless arrests, only permits state and local officers to arrest an immigrant who has been convicted of a felony, and the federal statute imposes a mandatory duty on state and local officers to confirm the individual's status with Immigration and Naturalization Service prior to arrest.

Paez writes "Misdemeanors, not just felonies, can result in removablility. See generally, Fernandez-Ruiz v. Gonzales, 466 F.3d 1121 (9th Cir. 2006) (en banc). Thus, Section 6 authorizes state and local officers to effectuate more intrusive arrests than Congress has permitted in Section 1252c.

Requirements for Warrantless Arrest

Paez sets out the statutory requirements for a warrantless arrest in the immigration scheme adopted by Congress. "Absent a federal officer actually viewing an immigration violation, warrantless arrests under 8 U.S.C. § 1357(a) require a likelihood that the immigrant will escape before a warrant can be obtained. 8 U.S.C. §§ 1357(a)(2), (a)(4), (a)(5). Section 6 contains no such requirement and we are not aware of any INA provision indicating that Congress intended state and local law enforcement officers to enjoy greater authority to effectuate a warrantless arrest than federal immigration officials."

Attrition through Enforcement

"Section 6 interferes," writes Paez, "with the carefully calibrated scheme of immigration enforcement that Congress has adopted, and it appears to be preempted." Arizona had a different idea which Paez refutes. "Arizona suggests, however, that it has the inherent authority to enforce federal civil removability without federal authorization, and therefore that the United States will not ultimately prevail on the merits. We do not agree. Contrary to the State’s view, we simply are not persuaded that Arizona has the authority to unilaterally transform state and local law enforcement officers into a state-controlled DHS force to carry out its declared policy of attrition. The Ninth Circuit found no such authority as claimed by Arizona.

"We are not aware of any binding authority holding that states possess the inherent authority to enforce the civil provisions of federal immigration law —we now hold that states do not have such inherent authority." Remember this detail because it will be revisited by the dissenting opinion of Judge Bea.

A Split In the Circuits

A split in the opinions of the various Circuit Courts of Appeal is a direct invitation for the Supreme Court to resolve the differing opinions. Here the majority opinion agrees with the Sixth Circuit in United States v. Urrieta, 520 F.3d 569 (6th Cir. 2008). Paez opinion says "the Sixth Circuit cited 8 U.S.C. § 1357(g), which it summarized as “stating that local law enforcement officers cannot enforce completed violations of civil immigration law (i.e., illegal presence) unless specifically authorized to do so by the Attorney General under special conditions.”

The Tenth Circuit reached a different conclusion. The case was United States v. Vasquez-Alvarez, 176 F.3d 1294 (10th Cir. 1999). In Vasquez-Alvarez the defendant argued that evidence should have been suppressed because the local law enforcement officers did not comply with the requirements of 8 U.S.C. § 1252c.

The Tenth Circuit relied on a reading of legislative history to assist it in making its opinion. Paez calls the Tenth Circuit's opinion nonsensical. "The Tenth Circuit’s interpretation of this legislative history is not persuasive. Section 1252c was intended to grant authority to state officers to aid in federal immigration enforcement because Congress thought state officers lacked that authority. The Tenth Circuit’s conclusion is nonsensical: we perceive no reason why Congress would display an intent “to displace preexisting . . . authority” when its purpose in passing the law was to grant authority it believed was otherwise lacking."

Paez concludes this debate with the Tenth Circuit saying " Subsection (g)(10) neither grants, nor assumes the preexistence of, inherent state authority to enforce civil immigration laws in the absence of federal supervision. If such authority existed, all of 8 U.S.C. § 1357(g)—and § 1252c for that matter—would be superfluous, and we do not believe that Congress spends its time passing unnecessary laws."

The Ruling

Paez finds "S.B. 1070 Section 6 exceeds the scope of federal authorization for Arizona’s state and local officers to enforce the civil provisions of federal immigration law. Section 6 interferes with the federal government’s prerogative to make removability determinations and set priorities with regard to the enforcement of civil immigration laws. Accordingly, Section 6 stands as an obstacle to the full purposes and objectives of Congress."

The death knell for Section 6 tolled when Paez wrote "In light of the foregoing, we conclude that the United States has met its burden to show that there is likely no set of circumstances under which S.B. 1070 Section 6 would be valid, and it is likely to succeed on the merits of its challenge. The district court did not abuse its discretion by concluding the same."

Part Six of this series will look Judge Paez's discussion on the Equitable Factors of this case.

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