Friday, July 30, 2010

Arizona Loses First Motion in Ninth Circuit: Hearing Set for November 2010

The U.S. Court of Appeals for the Ninth Circuit has denied Arizona's motion for an expedited appeal from Judge Bolton's order granting a preliminary injunction of key parts of SB 1070, with an early hearing date in September. Instead, the court of appeals has set a hearing for November 2010 in San Francisco in accordance with the court's normal scheduling rules for preliminary injunctions. (Arguments in Arizona Immigration Law Appeal to be held in SF in November, SF Appeal, July 30, 2010).

Why we need a sound immigration policy(and not fifty or more).....Arizona sheriff not relenting after court ruling


Nowhere in the U.S. is local enforcement more present than in metropolitan Phoenix, where Maricopa County Sheriff Joe Arpaio routinely carries out sweeps, some in Hispanic neighborhoods, to arrest illegal immigrants. The tactics have made him the undisputed poster boy for local immigration enforcement and the anger that so many authorities feel about the issue.

"It's my job," said Arpaio, standing beside a sheriff's truck that has a number for an immigration hot line written on its side. "I have two state (immigration) laws that I am enforcing. It's not federal, it's state."

A ruling Wednesday by a federal judge put on hold parts of the new law that would have required officers to dig deeper into the fight against illegal immigration. Arizona says it was forced to act because the federal government isn't doing its job to fight immigration.

The issue led to demonstrations across the country Thursday, including one directed at Arpaio in Phoenix in which protesters beat on the metal door of a jail and chanted, "Sheriff Joe, we are here. We will not live in fear." And in another sign of the divisive atmosphere surrounding the issue, authorities said the judge had received menacing threats and police were investigating whether a bullet hole found in the office of an Arizona congressman was related to the immigration debate.

In total, 71 people were arrested during the Thursday protests, officials said Friday.

Meanwhile, Gov. Jan Brewer's lawyers went to court to overturn the judge's ruling so they can fight back against what the Republican calls an "invasion" of illegal immigrants. The state of Arizona has received more than $1.6 million in a fund to help defend the new law, including $75,000 on Wednesday, the day parts of the law were blocked.

Ever since the main flow of illegal immigrants into the country shifted to Arizona a decade ago, state politicians and local police have been feeling pressure to confront the state's border woes.

In addition to Arpaio's crackdowns, other efforts include a steady stream of busts by the state and local police of stash houses where smugglers hide illegal immigrants. The state attorney general has taken a money-wiring company to civil court on allegations that smugglers used their service to move money to Mexico. And a county south of Phoenix has its sheriff's deputies patrol dangerous smuggling corridors.

The Arizona Legislature have enacted a series of tough-on-immigration measures in recent years that culminated with the law signed by Brewer in April, catapulting the Republican to the national political stage.

But the king of local immigration enforcement is still Arpaio.

Arpaio, a 78-year-old ex-federal drug agent who fashions himself as a modern-day John Wayne, launched his latest sweep Thursday afternoon, sending about 200 sheriff's deputies and trained volunteers out across metro Phoenix to look for traffic violators who may be here illegally.

Deputy Bob Dalton and volunteer Heath Kowacz spotted a driver with a cracked windshield in a poor Phoenix neighborhood near a busy freeway. Dalton triggered the red and blue police lights and pulled over 28-year-old Alfredo Salas, who was born in Mexico but has lived in Phoenix with a resident alien card since 1993.

Dalton gave him a warning after Salas produced his license and registration and told him to get the windshield fixed.

Salas, a married father of two who installs granite, told The Associated Press that he was treated well but he wondered whether he was pulled over because his truck is a Ford Lobo.

"It's a Mexican truck so I don't know if they saw that and said, 'I wonder if he has papers or not,'" Salas said. "If that's the case, it kind of gets me upset."

Sixty percent of the nearly 1,000 people arrested in the sweeps since early 2008 have been illegal immigrants. Thursday's dragnet led to 13 arrests for warrants or other criminal charges, but it wasn't clear if any of them were illegal immigrants.

Critics say deputies racially profile Hispanics. Arpaio says deputies approach people only when they have probable cause.

"Sheriff Joe Arpaio and some other folks there decided they can make a name for themselves in terms of the intensity of the efforts they're using," said Benjamin Johnson, executive director of the pro-immigrant American Immigration Council. "There's no way to deny that. There are a lot of people getting caught up in these efforts."

The Justice Department launched an investigation of his office nearly 17 months ago over allegations of discrimination and unconstitutional searches and seizures. Although the department has declined to detail its investigation, Arpaio believes it centers on his sweeps.

Arpaio feels no reservations about continuing to push the sweeps, even after the federal government stripped his power to let 100 deputies make federal immigration arrests.

Unable to make arrests under a federal statute, the sheriff instead relied on a nearly 5-year-old state law that prohibits immigrant smuggling. He has also raided 37 businesses in enforcing a state law that prohibits employers from knowingly hiring illegal immigrants.

"I'm not going to brag," Arpaio said. "Just look at the record. I'm doing what I feel is right for the people of Maricopa County."

Thursday, July 29, 2010

Crack in the Drug War Armor

This week Congress acted to significantly reduce the disparity in sentencing between crack and powder cocaine thereby making the law, as one commentator put it, “only one fifth as racist as it used to be.” A summary of the law awaiting President Obama’s signature details that it:

Reduces the sentencing disparity between crack and powder cocaine from 100:1 to 18:1, with a 5-year mandatory minimum for 28 grams of crack cocaine and a 5-year mandatory minimum for 500 grams of powder cocaine.

Eliminates the mandatory minimum sentence for simple possession of crack cocaine (the only mandatory minimum sentence for simple possession of a drug).

[And, because one can’t appear too “soft” on crime these days, it also:] Significantly increases fines for convicted major drug traffickers.

Significantly increases sentences for drug offenders involved in aggravating factors, including bribing law enforcement; maintaining an establishment for drug manufacturing or distribution; involving minors, seniors, or vulnerable victims in the offense; importing drugs; intimidating witnesses; tampering with evidence; or obstructing justice.

Finally recognizing the impact of the sentencing disparity on the Black community, this new legislation is one step in the direction of repairing racism coursing through the veins of the U.S. drug laws. If Congress wanted to fully acknowledge the rotten racial core of the drug laws, it would recognize that just as fears of Chinese immigrants helped spur the regulation of opium in the early 1900s, outlandish fears of Black men raping White women and launching murderous sprees while high on cocaine led to cocaine’s initial restriction. In the years since, similar fears directed at Mexican and Black users of marijuana swept pot into the drug enforcement war. At the same time, use of these drugs became more prevalent among Whites and entered the cultural mainstream.

The disparity in sentencing between crack cocaine in Black communities and powder cocaine in the soccer mom suburbs is, however, just the most formal disparity in drug laws. Congress did nothing to address the disparity in profiling of potential drug suspects that has many urban Blacks and Latino/as viewed with suspicion and subjected to pretextual stops while police enforcement in White neighborhoods looks more for “suspicious” minorities out of their supposed element than to what is likely going on behind closed doors. Congress seized some of the low hanging, rotten fruit of the national drug policy this week, but likely won’t touch the larger issues of injustice that have survived the last century.

Arizona appeals to U.S.Court of Appeals

Arizona Governor Jan Brewer has sought an expedited appeal to the U.S. Court of Appeals for the Ninth Circuit. She seeks to overturn Judge Susan Bolton's order granting a preliminary injunction of key portions of the new Arizona immigration statute -- SB 1070. The governor contends that the lower court "relied on an erroneous legal premise or abused its discretion" in issuing the preliminary injunction. The governor's motion to expedite the hearing on the preliminary injunction appeal is here: (;contentBody). It is unlikely the governor will prevail on appeal in the Ninth Circuit. The lower court's opinion is very thorough and persuasive in explaining why the U.S. is likely to prevail on the merits of their claim that SB 1070 is preempted by federal law.

Dozens arrested in protests of AZ immigration law

AP –

PHOENIX – Opponents of Arizona's immigration crackdown went ahead with protests Thursday despite a judge's ruling that delayed enforcement of most the law, and dozens of people in Phoenix were arrested after peacefully confronting officers in riot gear.

Gov. Jan Brewer called U.S. District Judge Susan Bolton's Wednesday's decision halting the law "a bump in the road," and her spokesman said they'd appeal to the 9th U.S. Circuit Court of Appeals in San Francisco later Thursday.

Outside the state Capitol, hundreds of protesters began marching at dawn, gathering in front of the federal courthouse where Bolton issued her ruling on Wednesday. They marched on to the office of Maricopa County Sheriff Joe Arpaio, who has made a crackdown on illegal immigration one of his signature issues.

At least eight protesters approached a police line and allowed themselves to be arrested. A group of about two dozen protesters then sat down in the middle of the street or refused to leave, and police arrested them as well.

Earlier, three people were detained at the courthouse after apparently entering a closed-off area. Former state Sen. Alfredo Gutierrez, who ran unsuccessfully for governor in 2002, was among them.

Marchers chanted "Sheriff Joe, we are here, we will not live in fear," and among the crowd was a drummer wearing a papier-mache Sheriff Joe head and dressed in prison garb.

Arpaio vowed to go ahead with a crime sweep targeting illegal immigrants. It was Phoenix police who made most the early arrests, but other protests were planned later in front of a county jail.

"My deputies will arrest them and put them in pink underwear," Arpaio said, referring to one of his odd methods of punishment for prisoners. "Count on it."

Arizona is the nation's epicenter of illegal immigration, with more than 400,000 undocumented residents. The state's border with Mexico is awash with smugglers and drugs that funnel narcotics and immigrants throughout the U.S., and supporters of the new law say the influx of illegal migrants drains vast sums of money from hospitals, education and other services.

The ruling was anxiously awaited in the U.S. and beyond. About 100 protesters in Mexico City who had gathered at the U.S. Embassy broke into applause when they learned of the ruling via a laptop computer. Mariana Rivera, a 36-year-old from Zacatecas, Mexico, who is living in Phoenix on a work permit, said she heard about the ruling on a Spanish-language news program.

"I was waiting to hear because we're all very worried about everything that's happening," said Rivera, who phoned friends and family with the news. "Even those with papers, we don't go out at night at certain times there's so much fear (of police). You can't just sit back and relax."

In New York City, about 300 immigrant advocates gathered Thursday near the federal courthouse in lower Manhattan.

New York City Councilman Jumaane Williams, a first-generation Caribbean-American, told the crowd: "We won a slight battle in Arizona, we've got to continue with the war."

In Los Angeles, about 200 protesters invaded a busy intersection west of downtown Los Angeles.

Police shut down the intersection of Wilshire Boulevard and Highland Avenue and diverted traffic away after demonstrators moved into the street and sat down at about 10 a.m. Thursday.

The protesters chanted, "These are our streets" during the raucous demonstration. Police say there have been no arrests.

Bolton indicated the government has a good chance at succeeding in its argument that federal immigration law trumps state law. But the key sponsor of Arizona's law, Republican Rep. Russell Pearce, said the judge was wrong and predicted the state would ultimately win the case.

In her temporary injunction, Bolton delayed the most contentious provisions of the law, including a section that required officers to check a person's immigration status while enforcing other laws. She also barred enforcement of parts requiring immigrants to carry their papers and banned illegal immigrants from soliciting employment in public places — a move aimed at day laborers that congregate in large numbers in parking lots across Arizona. The judge also blocked officers from making warrantless arrests of suspected illegal immigrants.

"Requiring Arizona law enforcement officials and agencies to determine the immigration status of every person who is arrested burdens lawfully present aliens because their liberty will be restricted while their status is checked," said Bolton, a Clinton administration appointee who was assigned the seven lawsuits filed against Arizona over the law.

Other provisions that were less contentious were allowed to take effect Thursday, including a section that bars cities in Arizona from disregarding federal immigration laws.

Kris Kobach, the University of Missouri-Kansas City law professor who helped write the law and train Arizona police officers in immigration law, conceded the ruling weakens the force of Arizona's efforts to crack down on illegal immigrants. He said it will likely be a year before a federal appeals court decides the case.

"It's a temporary setback," Kobach said. "The bottom line is that every lawyer in Judge Bolton's court knows this is just the first pitch in a very long baseball game."

Opponents of the law said the ruling sends a strong message to other states hoping to replicate the law. Lawmakers or candidates in as many as 18 states say they want to push similar measures when their legislative sessions start up again in 2011.

"Surely it's going to make states pause and consider how they're drafting legislation and how it fits in a constitutional framework," Dennis Burke, the U.S. attorney for Arizona, told The Associated Press. "The proponents of this went into court saying there was no question that this was constitutional, and now you have a federal judge who's said, 'Hold on, there's major issues with this bill.'"

But a lawmaker in Utah said the state will likely take up a similar laws anyway.

"The ruling ... should not be a reason for Utah to not move forward," said Utah state Rep. Carl Wimmer, a Republican from Herriman City, who said he plans to co-sponsor a bill similar to Arizona's next year and wasn't surprised it was blocked. "For too long the states have cowered in the corner because of one ruling by one federal judge."

Wednesday, July 28, 2010

Key Portions of Judge Bolton's Injunction Decision Re. SB 1070...

The Court first addresses the second sentence of Section 2(B): “Any person who is arrested shall have the person’s immigration status determined before the person is released.”

Arizona advances that the proper interpretation of this sentence is “that only where areasonable suspicion exists that a person arrested is an alien and is unlawfully present in the United States must the person’s immigration status be determined before the person is released.” (Defs.’ Resp. to Pl.’s Mot. (“Defs.’ Resp.”) at 10.)5 Arizona goes on to state, “[T]he Arizona Legislature could not have intended to compel Arizona’s law enforcement officers to determine and verify the immigration status of every single person arrested – even for United States citizens and when there is absolutely no reason to believe the person is unlawfully present in the country.” (Id.)

The Court cannot interpret this provision as Arizona suggests. Before the passage of H.B. 2162, the first sentence of Section 2(B) of the original S.B. 1070 began, “For any lawful contact” rather than “For any lawful stop, detention or arrest.” (Compare original S.B. 1070 § 2(B) with H.B. 2162 § 3(B).) The second sentence was identical in the original version andas modified by H.B. 2162. It is not a logical interpretation of the Arizona Legislature’s intent to state that it originally intended the first two sentences of Section 2(B) to be read as Case 2:10-cv-01413-SRB Document 87 Filed 07/28/10

As initially written, the first sentence of Section 2(B) did not contain the word “arrest,” such that the second sentence could be read as modifying or explicating the first sentence. In S.B. 1070 as originally enacted, the first two sentences of Section 2(B) are clearly independent of one another. Therefore, it does not follow logically that by changing “any lawful contact” to “any lawful stop, detention or arrest” in the first sentence, the Arizona Legislature intended to alter the meaning of the second sentence in any way. If that had been the Legislature’s intent, it could easily have modified the second sentence accordingly.

As a result of this conclusion, the Court reads the second sentence of Section 2(B)independently from the first sentence. The Court also concludes that the list of forms of identification that could provide a presumption that a person is not an unlawfully present alien applies only to the first sentence of Section 2(B) because the second sentence makes no mention of unlawful presence: the second sentence states plainly that “[a]ny person who is arrested” must have his or her immigration status determined before release. A presumption against unlawful presence would not dispose of the requirement that immigration status be checked because a legal permanent resident might have a valid Arizona driver’s license, but an inquiry would still need to be made to satisfy the requirement that the person’s “immigration status” be determined prior to release.

The United States asserts that mandatory determination of immigration status for all arrestees “conflicts with federal law because it necessarily imposes substantial burdens on lawful immigrants in a way that frustrates the concern of Congress for nationally-uniform rules governing the treatment of aliens throughout the country – rules designed to ensure ‘our traditional policy of not treating aliens as a thing apart.’” (Pl.’s Mot. at 26 (quoting Hines v. Davidowitz, 312 U.S. 52, 73 (1941)).) Finding a state law related to alien registration to be preempted, the Supreme Court in Hines observed that Congress “manifested a purpose to [regulate immigration] in such a way as to protect the personal liberties of law-abiding aliens through one uniform national . . . system[] and to leave them free from the possibility of inquisitorial practices and police surveillance.” 312 U.S. at 74.

The Court is also cognizant of the potentially serious Fourth Amendment problems with the inevitable increase in length of detention while immigration status is determined, as raised by the plaintiffs in Friendly House, et al. v. Whiting, et al., No. CV 10-1061-PHX-SRB. Requiring Arizona law enforcement officials and agencies to determine the immigration status of every person who is arrested burdens lawfully-present aliens because their liberty will be restricted while their status is checked. Given the large number of people who are technically “arrested” but never booked into jail or perhaps even transported to a law enforcement facility, detention time for this category of arrestee will certainly be extended during an immigration status verification. (See Escobar, et al. v. City of Tucson, et al., No. CV 10-249-TUC-SRB, Doc. 9, City of Tucson’s Answer & Cross-cl., ¶ 38 (stating that during fiscal year 2009, Tucson used the cite-and-release procedure provided by A.R.S. § 13-3903 to “arrest” and immediately release 36,821 people).) Under Section 2(B) of S.B. 1070, all arrestees will be required to prove their immigration status to the satisfaction of state authorities, thus increasing the intrusion of police presence into the lives of legally-present liens (and even United States citizens), who will necessarily be swept up by this requirement.

The United States argues that the influx of requests for immigration status
determination directed to the federal government or federally-qualified officials would “impermissibly shift the allocation of federal resources away from federal priorities.” (Pl.’s Mot. at 30.) State laws have been found to be preempted where they imposed a burden on a federal agency’s resources that impeded the agency’s function. See Buckman Co. v. Plaintiffs’Legal Comm., 531 U.S. 341, 351 (2001)(finding a state law preempted in part because it would create an incentive for individuals to “submit a deluge of information that the [federal agency] neither wants nor needs, resulting in additional burdens on the FDA’s evaluation of an application”); cf. Garrett v. City of Escondido, 465 F. Supp. 2d 1043, 1057 (S.D. Cal. 2006) (expressing concern in preemption analysis for preliminary injunction purposes that burden on DOJ and DHS as a result of immigration status checks could “impede the functions of those federal agencies”).

The problems associated with burdening federal resources are even more acute when considered in light of other state laws similar to this provision. (See Pl.’s Mot. at 31-32 (citing to a newspaper article stating that at least 18 other states are considering parallel legislation).); see also North Dakota v. United States, 495 U.S. 423, 458-59 (1990) (Brennan, Pursuant to 8 U.S.C. § 1373(c), DHS is required to “respond to an inquiry by a Federal,State, or local government agency, seeking to verify or ascertain the citizenship or immigration status . . . for any purpose authorized by law, by providing the requested verification or status information.” DHS has, in its discretion, set up LESC, which is administered by ICE and “serves as a national enforcement operations center that promptly provides immigration status and identity information to local, state, and federal law enforcement agencies regarding aliens suspected of, arrested for, or convicted of criminal activity.” (Pl.’s Mot. at 6-7 (citing Palmatier Decl. ¶¶ 3-6).) Mr. Palmatier states in his Declaration that LESC resources are currently dedicated in part to national security objectives such as requests for immigration status determination from the United States Secret Service, the FBI, and employment-related requests at “national security related locations that could be vulnerable to sabotage, attack, or exploitation.” (Palmatier Decl. ¶ 4.) Thus, an increase in the number of requests for determinations of immigration status, such as is likely to result from the mandatory requirement that Arizona law enforcement officials and agencies check the immigration status of any person who is arrested, will divert resources from the federal government’s other responsibilities and priorities. For these reasons, the United States has demonstrated that it is likely to succeed on its claim that the mandatory immigration verification upon arrest requirement contained in Section 2(B) of S.B. 1070 is preempted by federal law. This requirement, as stated above, is likely to burden legally-present aliens, in contravention of the Supreme Court’s directive in Hines that aliens not be subject to “the possibility of inquisitorial practices and police surveillance.” 312 U.S. at 74. Further, the number of requests that will emanate from Arizona as a result of determining the status of every arrestee is likely to impermissibly burden federal resources and redirect federal agencies away from the priorities they have established.

DHS statement on Arizona immigration law ruling

U.S. Department of Homeland Security Deputy Press Secretary Matt Chandler issued the following statement July 28 in response to a federal judge's decision on the SB1070 immigration enforcement law in Arizona:

"The court's decision to enjoin most of SB1070 correctly affirms the federal government's responsibilities in enforcing our nation's immigration laws. Over the past eighteen months, this Administration has dedicated unprecedented resources to secure the border, and we will continue to work to take decisive action to disrupt criminal organizations and the networks they exploit. DHS will enforce federal immigration laws in Arizona and around the country in smart, effective ways that focus our resources on criminal aliens who pose a public safety threat and employers who knowingly hire illegal labor, as well as continue to secure our border.

"ICE works every day with local law enforcement across the country to assist them in making their communities safer and we will continue do so in Arizona. At the same time, we will continue to increase resources in Arizona by complementing the National Guard deployment set to begin on Aug. 1 with the deployment of hundreds of additional Immigration and Customs Enforcement agents, Border Patrol agents and other law enforcement personnel that will aid in our continuing efforts to conduct outbound inspections, patrol challenging terrain, and interdict illicit smugglers. We are focused on smart effective immigration and border enforcement while we work with Congress toward the type of bipartisan comprehensive reform that will provide true security and establish accountability and responsibility in our immigration system at the national level."

As we have predicted..

As many interested legal experts have hoped for, and in fact predicted for months, hs frnoon a federal judge in Arizona enjoined Arizona from implementing the most offensive aspects of SB 1070. The court prevented Arizona officials ( i.e., police) from stopping and questioning individuals concerning their immigration status. This section of the law, despite statements to the contrary, was aimed at racial profiling. As some have asked privately, the reason for the preemption basis for the attack is that in immigration contexts, the Supreme Court sadly has allowed for profiling to be part of the basis for immigration stops. Thus, opponents of over-zealous local efforts, such as those in Arizona must rely on the preemton issue--I.e., immigration is a federal issue and we do not want 50 immigration policies for the 50 states.

For more on this story, please reveiw the news CNN report below:

Federal judge blocks parts of Arizona immigration law

By the CNN Wire Staff
July 28, 2010 3:32 p.m. EDT

Judge blocks police from questioning people's immigration status
SB 1070, as the law is commonly known, is set to go into effect Thursday
Seven lawsuits ask a federal court to block the law
The state argues the federal government has failed to enforce immigration law
Phoenix, Arizona (CNN) -- A federal judge has blocked one of the most controversial sections of a tough Arizona immigration law, granting a preliminary injunction Wednesday that prevents police from questioning people about their immigration status.

That provision of the law requires police to "make a reasonable attempt to determine the immigration status of a person stopped, detained or arrested" if the officer has a reasonable suspicion that the person is in the United States illegally.

U.S. District Judge Susan Bolton's ruling, in response to a motion filed by the federal government, came with scant hours to go before the law goes into effect.

She also blocked provisions of the law making it a crime to fail to apply for or carry alien registration papers or "for an unauthorized alien to solicit, apply for, or perform work," and a provision "authorizing the warrantless arrest of a person" if there is reason to believe that person might be subject to deportation.

Ruling's impact
Toobin: What does Arizona immigration ruling mean?

Reactions to the Arizona immigration law injunction Seven lawsuits are seeking to block implementation of the law, signed by Arizona Gov. Jan Brewer in April. The law, which also targets those who hire illegal immigrant laborers or knowingly transport them, is to go into effect Thursday.

CNN senior analyst Jeffrey Toobin said the ruling reflects the government's argument that immigration enforcement should be dealt with at the federal level.

In fact, it is just the beginning, and at the end of what is certain to be a long legal struggle, Arizona will prevail in its right to protect our citizens," she said in a statement. "I am deeply grateful for the overwhelming support we have received from across our nation in our efforts to defend against the failures of the federal government."

She emphasized that Wednesday's action was a temporary injunction, and that many other parts of the bill will go into effect as planned.

For instance, a ban on so-called sanctuary cities stands, as does making it a crime to pick up day laborers who are illegal immigrants. The parts of the law dealing with sanctions for the hiring of illegal immigrants also goes into effect Thursday.

Another supporter of the law, Maricopa County Sheriff Joe Arpaio, said that he and his crusade against illegal immigration will not be deterred.

" I am not really dissapointed about the judges decision," Arpaio said. "I know what my policies are and we are going to continue doing what we have been doing."

The Center for Immigration Studies, which advocates immigration reduction, was disappointed but not surprised by the ruling, said executive director Mark Krikorian.

"If the opponents hadn't turned it into this bogey man it would have been a useful, if modest, tool for the police," said Krikorian.

He argues the Arizona law wasn't intended to usurp federal authority.

"Arizona does not have its own immigration policy, even with the law. They are buttressing federal law," Krikorian said.

President Barack Obama, a critic of the Arizona law, was not expected to comment on the ruling Wednesday.

The Justice Department issued a statement saying the court "ruled correctly."

"While we understand the frustration of Arizonans with the broken immigration system, a patchwork of state and local policies would seriously disrupt federal immigration enforcement and would ultimately be counterproductive," the statement said. "States can and do play a role in cooperating with the federal government in its enforcement of the immigration laws, but they must do so within our constitutional framework."

The Department of Homeland Security also weighed in, saying that the injunction "affirms the federal government's responsibilities in enforcing our nation's immigration laws."

Meanwhile, the president of the Mexican American Legal Defense and Educational Fund, Thomas A. Saenz, said, "I think it's a great victory for the Constitution. I think all the provisions she has blocked from implementation were the most egregious."

Reaction was not limited to the United States.

Applause erupted at a protest outside the U.S. embassy in Mexico City when a speaker announced the judge's decision.

"I think it is a big victory, and it is the start of many more," said Sergio de Alba, president of the National Confederation of Workers and Farmers Organizations.

Minutes earlier, he had called on Mexicans to boycott products from the United States in protest.

Protesters attached signs to a gate in front of the embassy, with one slogan saying, "Boycott Against Arizona-Nazizona, home of hunting migrants and the Ku Klux Klan."

Opponents say the law will lead to racial profiling, which is illegal.

Supporters point out that the law prohibits racial profiling and people cannot be stopped and asked for proof of legal residence based solely on their looks.

In addition to the U.S. Justice Department, the American Civil Liberties Union, the National Coalition of Latino Clergy, the Christian Leaders League of United Latin American Citizens and other individuals or groups have asked the judge to halt the law, commonly known as SB 1070. Bolton heard arguments in the case last week from the Justice Department and the ACLU.

The separate hearings were held in Phoenix, where Bolton sits on the U.S. District Court for the District of Arizona.

Bolton's courtroom was packed during the two July 22 hearings and protesters chanted outside throughout the afternoon.

Seven protesters were arrested on civil disobedience charges, according to the National Day Laborer Organizing Network.

The legal arguments revolved around a range of issues, including racial profiling, effective enforcement and possible harm to Arizona's citizens.

Attorneys from the Obama administration presented their case at the second hearing. The administration's challenge contends Arizona's law would usurp federal supremacy on immigration.

Brewer attended the hearing.

Arizona has argued that the federal government has not done a good job of securing the border.

"A law unenforced is no law at all," said state attorney John Bouma.

The American Civil Liberties Union and a coalition of civil rights groups argued earlier in the day that the controversial law amounts to racial profiling and will have a profound effect if it goes into effect.

"It treats people of color as suspects first, rather than citizens," attorney Karen Tumlin said after the hearing.

Bouma said the law would not treat people unfairly.

"These are hypothetical arguments. Local police are enforcing immigration laws all over the country," he told Bolton.

Those in favor of the law say SB 1070 is consistent with federal law. They say the law explicitly prohibits racial profiling and they are challenging the legal standing of many of the groups opposed.

They also contend opponents of the law have not been able to show there will be any harm from its implementation.

During the first hearing, Bolton said the law has a section allowing parts to still take effect even if other parts are struck down, according to CNN affiliate KNXV.

Tumlin, managing attorney for the National Immigration Law Center, and other lawyers and foes of SB 1070 repeated assertions that Arizona's law should be rejected.

"We are here to defend the rights of those who cannot stand up for themselves," said Terri Leon, CEO of the Friendly House, which supports the legal challenge by the American Civil Liberties Union.

Bolton heard a challenge to SB 1070 by an Arizona police officer the previous week.

SB 1070 has been partially enjoined

Today, Wednesday, July 28, 2009, United States District Judge Susan R. Bolton issued a Preliminary Injunction prohibiting the enforcement of four key provisions of SB 1070 in response to the action brought by the Attorney General of the United States.

In part of her ruling, judge Bolton noted: "Under Section 2(B) of S.B. 1070, all arrestees will be required to prove their immigration status to the satisfaction of state authorities, thus increasing the intrusion of police presence into the lives of legally-present aliens (and even United States citizens), who will necessarily be swept up by this requirement" (emphasis added). She added: "The Court is also cognizant of the potentially serious Fourth Amendment problems with the inevitable increase in length of detention while immigration status is determined, as raised by the plaintiffs in Friendly House, et al. v. Whiting, et al., No. CV 10-1061-PHX-SRB."

Judge Bolton's order concludes: "IT IS FURTHER ORDERED preliminarily enjoining the State of Arizona and Governor Brewer from enforcing the following Sections of Senate Bill 1070 (as amended by House Bill 2162): Section 2(B) creating A.R.S. § 11-1051(B), Section 3 creating A.R.S. § 13-1509, the portion of Section 5 creating A.R.S. § 13-2928(C), and Section 6 creating A.R.S. § 13-3883(A)(5)."

United States of America v. State of Arizona; and Janice K. Brewer, Governor of the State of Arizona, in her Official Capacity, No. CV 10-1413-PHX-SRB.

For analysis, see:

Federal Judge Blocks Key Portions of SB 1070

Federal Judge Susan Bolton has preliminarily enjoined the most controversial portions of SB 1070, including the section which required police to check the immigration status of persons where there was a reasonable suspicion that the person was undocumented. In so doing, the judge prevented the portion of the law which authorizes racial profiling from going into effect. The judge found that the plaintiff was likely to prevail on the merits in showing that the enjoined provisions were preempted by federal law. The decision is a major victory for civil rights in this country. The judge's ruling and opinion is here: (

Tuesday, July 27, 2010

Governor Brewer Has Moved to Dismiss U.S. v. Arizona

Arizona Governor Jan Brewer has moved to dismiss the complaint of the United States Department of Justice against Arizona on the ground that it fails to state a claim upon which relief can be granted. The governor argues that plaintiff's constitutional challenges to Arizona's new immigration statute -- SB 1070-- must fail because SB 1070 is not preempted by either federal immigrration law or U.S. foreign policy. The governor's motion to dismiss is here: (

Monday, July 26, 2010

Immigration Debate Tied to Rise in Hate Crimes

Attorney General Eric H. Holder Jr. has pledged to advance legislation that would expand prosecution of bias crimes. (By Manuel Balce Ceneta -- Associated Press)

U.S. civil rights leaders said yesterday that an increase in hate crimes committed in recent years against Hispanics and people perceived to be immigrants "correlates closely" to the nation's increasingly contentious debate over immigration.

Hate crimes targeting Hispanic Americans rose 40 percent from 2003 to 2007, the most recent year for which FBI statistics are available, from 426 to 595 incidents, marking the fourth consecutive year of increases.

The Leadership Conference on Civil Rights Education Fund issued a report that faulted anti-immigrant rhetoric in the media and mobilization of extremist groups on the Internet. The conference said that some groups advocating for tighter immigration laws have invoked "the dehumanizing, racist stereotypes and bigotry of hate groups."

"Reasonable people will disagree . . . but the tone of discourse over comprehensive immigration reform needs to be changed, needs to be civil and sane," said Michael Lieberman, Washington counsel for the Anti-Defamation League.

The FBI reported in October that the number of hate crimes dropped in 2007 by about 1 percent, to 7,624. But violence against Latinos and gay people bucked the trend. The number of hate crimes directed at gay men and lesbians increased about 6 percent, the FBI reported.

Mark Krikorian, executive director of the Center for Immigration Studies, which was criticized in the LCCREF report, said it was "another salvo against free speech by the pro-amnesty coalition."

By Spencer S. Hsu
Washington Post Staff Writer
Wednesday, June 17, 2009

A recent request from the AALS for us to write about our blog...

Minority Voices in the Brave New World of Blogosphere:

When I was recently asked to submit an article for the American Assocaition of Law Schools (AALS) Minority Group Section Newsletter on the opportunities and challenges of creating a blog dedicated to addressing issues affecting minority issues, I first found the request a bit humorous. You see, as a faculty member slightly older than many of my colleagues, I never considered myself particularly hi-tech. Indeed, I recall not long ago asking one of my colleagues, Howard Wasserman, a regular contributor to the Lawprawf’s blog “what the heck is a blog and how do you create one?” So being considered a knowledgeable person in this so-called new generation or means of scholarship is a bit ironic. I say this not only to provoke a smile or two, but more importantly, to encourage others with a yearning to write regularly on matters you believe are largely dismissed in existing blogs or scholarship, to consider contributing to an existing blog, or better yet, to create your own blog. I will first briefly describe possible inspirations for creating a blog, focusing on my own, and then provide a rough blueprint for providing your own, perhaps outsider’s, perspective to a fairly successful blog. I hope this helps in inspiring others to enter this brave new world of scholarship and engagement?

As a few of you may know, a few months ago, I, along with a group of respected scholars, created the “Nuestras Voces Latinas” blog. It is specifically dedicated to addressing issues that affect Latina and Latino communities, but are rarely addressed by members of those communities. What inspired me to create the blog was, with notable exception to the Immigrationprof and Blackprof blogs, I rarely, if ever, noticed Latina or Latino faces or names as experts opining on subjects affecting the Latin communities in the U.S. or abroad. Be it the Bill Maher Show, Face the Nation, or one of the many blogs addressing contemporary news or political topics, none seemed to have representative voices. I had written on the subject in one or more obscure law review articles, that I am sure few had noticed, so I began to learn more about this genre by speaking to colleagues I respected and knew had experience with blogs. I was then inspired by two important events: the first was a panel on “the Dearth of Latina Public Intellectuals” at the most recent LatCrit Conference in Washington, D.C. where a fairly heated debate arose concerning whether law professors at the conference were in fact public intellectuals. While I was pleased when one colleague was kind enough to list several of the professors in attendance as public intellectuals and sources of inspiration, I nonetheless began to question the impact our scholarship had on the profession and larger communities. The second event was a conversation I had with my daughter about her experiences as one of the few Latinas at NYU’s business school. From that conversation, I sensed a yearning for alternative voices to the flood of perspectives that all-too-often define Latina and Latino issues as largely limited to music, fashion, immigration, and food. So I started what was to become a fairly large part of my professional life.

The following is the blueprint and a ever-so-slight word of caution.I first spoke to many, and recruited some, experienced bloggers. This for me was an essential first step. I started by writing to many colleagues I respected, but may not have know that well, and asked if they were willing to meet at the AALS conference to discuss a new blog project. An organizational meeting of respected possible contributors is strongly encouraged. In that meeting, we will able to commit to a schedule for the submissions or posts (often a thorny issue as life gets in the way), a list of potential other bloggers, an understanding of the overall scholarly commitment, and a schedule for launching the blog. All of these are crucial subjects in order to ensure accountability in the future. I then recruited a handful of experienced bloggers. Fortunately, I was able to include invaluable sources of reference and experience, such as Steven Ramirez, Larry Cata Backer, and Leticia Nadia Cabrera Pierre-Louis. I also was able to gather an amazing group of scholars and additional fellow bloggers, including: Steven Bender, Guadalupe Luna, Berta Hernandez, Frank Valdes, Pedro Malavet, Charles Venator, George Martinez, and Maria Lopez. Receiving administrative support from my home institution, Florida International College of Law, was also helpful. Ensuring independence from my home school, however, was an issue my fellow editors raised, but was easily resolved. I raise it here only for new bloggers to consider. Then we began to write. Another important piece of advice is to ideally have bloggers from other blogs to announce your launch—we were fortunate to have blogs such as “the Faculty Lounge” and “Law Prawfs” announce our entry into the sphere. We also fortunately arrived on the blogosphere when crucial events, such as the enactment of Arizona SB 1070’s anti-immigration law, occurred. Events such as these allowed the blog and its editors to gain exposure and to provide the outsider perspective that was a primary goal for creating the blog in the first place. Indeed, some of the editors have been interviewed by newspapers throughout Latin America, national domestic print media, and other important blogs, such as

I will end with both a few words of caution, and perhaps one or two of inspiration. First the caution, be prepared to receive a certain amount of hate mail. Indeed, a week does not go by when I or one of my fellow bloggers doesn’t receive some form of a personal attack. I have responded by first filtering the comments and proving a warning that only respectful comments will be posted. These words nonetheless do sting for a few minutes. For me, I try to use my continuing search for balance and peace to remind me that such hate mail only demonstrates that the blog is having some impact. So I suggest toughening up that skin and giving it a go. I for one realize that dozens of articles and a few books had not had nearly the impact a two month old blog had when, for instance, the members of our group were able to gather over 200 law professors to publicly oppose Arizona’s SB 1070. I would thus strongly encourage all of you to consider entering this brave new world.

Friday, July 23, 2010

Race and Ethnicity in Immigration: Employment or Violence?

Is there a connection between U.S. immigration policy, Latina/o employment, and black violence across this country? Yes, say LSU researchers Edward S. Shihadeh and Raymond E. Barranco in their recently issued report, “Latino Employment and Black Violence: The Unintended Consequence of U.S. Immigration Policy”. To compile their report, Shihadeh and Barranco studied 117 major U.S. cities to examine the links, if any, between Latina/o immigration and black crime. Their detailed report unfolds in four stages. Shihadeh and Barranco first examined the direct, overall linkage before considering more specific variables, including whether Latino immigration “increases black crime by shifting the ethnic composition of low-skill labor markets in Latinos’ favor.” In the end, their data “suggests” that black violence rises in those areas where blacks lose ground to Latinas/os in the competition for low-skilled jobs. While specifying that they do not “advocate restricting the flow of Latino migrants—in either direction,” Shihadeh and Barranco emphasize that their study documents “black structural disadvantage and how U.S. immigration policy contributes to the formation of the underclass.”

Clearly, these findings can be made explosive. Demagogues interested in wedge politics can try to spin this information as a brown versus black field of conflict. But, as Shihadeh and Barranco emphasize, this information also points to the linkage of brown and black disadvantage under the rule of white privilege. Which will it be? Will data like these push us to build race/ethnicity coalitions capable of delivering social justice across brown/black color lines, or will racial and ethnic minorities continue to allow established majoritarian groups and their politicians to play traditionalist identity politics and set things up so that outgroups end up fighting each other for the crumbs at the edge of society?


By Frank Valdes

Thursday, July 22, 2010

Shirley Sherrod, the USDA and "Accountability"

The outrageous and unconscionable USDA firing of Mrs. Shirley Sherrod over an ill intended blog/video filled to the moon and back with crude falsehoods inspires this post. The facts are well known thanks to news anchor Rick Sanchez and to the much admired grace of Mrs. Sherrod who convinced us with unmitigated restraint the slander and defamation of her good name.
Since the real facts have surfaced, U.S. Agric. Secretary Vilsack has done the honorable "thing," and apologized for his hasty and ill-informed discharge of an individual who has given the nation so much. In essence, Mrs. Sherrod may end up returning to the USDA and hopefully further remedies are forthcoming. The circumstances leading to her firing however cannot end there and allows us to turn our lens on USDA animosity and its discriminatory tactics against people of color who farm. In short, her discharge has thrown additional fuel into the agency's tainted history.

Farming is labor intensive and is vulnerable to the whims of the market, the environment and other unknown externalities. Congress through farm bills and other massive legislation has deemed agriculture important to the nation providing emergency and other funds to small owner operators. The USDA moreover facilitates congressional mandates in protecting small owner operators as well as others. The agency's disparate practices of people of color however have left an enduring legacy into the present. Even more fundamentally the USDA has escaped accountability in their actions where farmers of color lost their farms and suffered other injuries from the agency's harsh treatment. Against this backdrop it is difficult to reconcile the lack of remedial relief for parties injured by the USDA with the rapid firing of Mrs. Sherrod.

Land is tied culturally to our communities and in numerous circumstances ensured the survival of communities of color. Yet the record encompassing the legislative, historical and over all atmosphere of hostile treatment of people of color is solid. In case after case many independent owner operators lost their farming operations to USDA linked practices. The evidence is seen in the litigation over the disparate loan practices that denied African Americans, Native Americans, and female farmers emergency funds to keep their farms afloat. In instances where loans were granted they would arrive late and preclude the purchase or planting of seeds ensuring no future income for owner operators. Yet into the present, the lawsuits chasing remedial relief over the loss of family farms remain languishing in federal courts or lost in vague procedural posturing.

Although Mrs. Sherrod is owed one million apologies for her ill treatment, she is receiving (thank goodness) a small measure of remedial relief. By the way thank you Mrs. Sherrod for all you have sacrificed in promoting civil rights. Against this backdrop a reminder that the present lack of accountability over farm losses against people of color continues to taint the agency with the Ag. Secretary providing fuel to this issue. Specifically in a statement following his conversation with Mrs. Sherrod, he asserted: ". . . I also want to renew my firm commitment to put behind all of us the USDA's past record on civil rights. While we have made some progress over the last 18 months, more work is needed." Yes, Sec. Vilsack more work is needed.

The firing of such an honorable individual at breakneck and breathless speed comparable to the lack of accountability in the loss of small farming operations, renders it extremely curious why people of color at the USDA are held to a different standard than those that perpetuated such massive harm on the farmers seeking remedies over the loss of their farms.

If and only if the Secretary's assertion of addressing discrimination is to mean anything--as well as his apology to Shirley Sherrod-- lets insist on nothing less than at the very minimum promoting accountability within the agency directly.

Live Coverage of SB 1070 Hearings in MALDEF and U.S. v. Arizona Cases reporter Corey Rangel is providing live coverage of the hearings in the MALDEF and the U.S. Department of Justice cases today on twitter at (

Tuesday, July 20, 2010

Governor Brewer Files Response in United States v. Arizona

Arizona Governor Jan Brewer has filed her response to the United States Government's motion for a preliminary injunction to block the implementation of SB 1070 in the United States v. Arizona litigation. Among other things, the Governor argues that the Arizona immigration law is not preempted by federal immigration law because the State of Arizona only seeks to "assist" the U.S. Government in enforcing immigration law. In addition, the Governor argues that the Arizona law is not preempted because it does not conflict with U.S. foreign policy. The governor's brief is here: ( The governor's arguments are not persuasive. As the bloggers of NVL have been arguing along with numerous other legal authorities, Arizona has unconstitutionally invaded the province of the federal government to regulate immigration. To allow Arizona to prevail will lead to an intolerable situation where we could have each of the 50 states enacting their own immigration laws and policies. There should be only one immigration policy -- a federal policy. In addition, Arizona's argument that its law does not conflict with our nation's foreign policy is without merit. Mexico has already filed a brief in the SB 1070 litigation stating that the Arizona immigration statute has seriously damaged the the relationship between the U.S. and Mexico. Moreover, seven other Latin American countries (Bolivia, El Salvador, Colombia, Guatemala, Nicaragua, Paraguay and Peru) have filed a motion seeking to join the brief filed by Mexico opposing SB 1070. (Latin American Nations Join SB 1070 Suit,, July 20, 2010). The federal court will hold a hearing on the federal government's motion for a preliminary injunction on July 22, 2010. The law is set to go into effect on July 29, 2010. The judge in the case has already said that she may not be able to rule in time before the law is scheduled to go into effect. Accordingly, people should be prepared for the law to go into effect on July 29, 2010.

Conference on the Confluence of Art and Law in Cuba July 23-25

Cuba remains an important source of intellectually stimulating developments.   An upcoming conference organized by a group of artists and intellectuals, Estado de SATS, suggests such vibrancy.   The conference explores Cuban identity and its expression in thought and arts.  

To follow the conference, please access the website of Estado de SATS, which can be accessed here.

Sunday, July 18, 2010

Cuban Transnational Economic Activity and Human Rights: Complementarity or Conflict?

The Association for the Study of the Cuban Economy (ASCE) will beholding its 20th annual meeting this coming July 28-Aug. 1, 2010 in Miami, Florida. As usual, the program is varied and informative, combining representatives from a broader spectrum of opinion than is common in meetings associated with the study of Cuba. "The main theme for the meeting will be “Cuba at the Crossroads in the 21st Century" focusing on Cuba's existing economic and social conditions, recent Cuban policies to address the impact of the world economic and financial crises, Cuban policy shortcomings, and needed structural reforms. " ASCE XXth Annual Meeting

For that conference I will be presenting a short and preliminary study of some of the collateral effects of Cuba's recent efforts to theorize and implement a new form of transnational trade, one founded on socialist principles.  For that purpose Cuba has challenged the dominant form of global trade--based on a privileging on free movements of capital and restricted movements of labor,and centered on private market activity with a residuary regulatory role for states.   In its place Cuba would see substituted a system of trade grounded in the role of the state as both regulator (internal) and market participant (external) with a residuary role reserved for private enterprises.  In place of a system that privileges the unimpeded flow of capital, Cuba would see  flows of both capital and labor, directed by states, to maximize the welfare of national populations through bilateral and multilateral trade and commercial transactions effected among like minded states. Cuba has begun to implement this model among its partners in ALBA, the Alternativa Bolivariana Para los Pueblos de Nuestra América.  A number of projects established under this framework involve barter transactions.  In the case of the Misión Barrios Adentro, focused on the provision of medical services, Cuba agreed to supply medical personnel (and other serviced and products) to Venezuela in return for discounted prices on Venezuelan petroleum.  This transformative system of trade, however, may raise issues of compliance with global human rights norms conventionally understood. In the case of the MBA program, the issue involves the characterization of the labor barter transactions as voluntary in character or as forced labor, compelled by the state to further its trade and political objectives.  It also suggests that as Cuba emerges as a more active player in global trade and commercial markets, it may be exposed generally to liability on these grounds, and subject its trade partners to liability as well on theories of complicity.    The preliminary conference paper can be accessed here: Cuba's Grannacional Projects at the Intersection of Business and Human Rights.   

Friday, July 16, 2010

Utah identifies 2 allegedly behind immigrant list

AP – Gov. Gary R. Herbert and Kristen Cox, Executive Director of the Utah Department of Workforce Services, …
Play Video Immigration Video:New Video of Illegals Along Arizona Border FOX News Play Video Immigration Video:List Outs Illegal Immigrants in Utah ABC News Play Video Immigration Video:Arizona sheriffs weigh in on Senate Bill 1070 lawsuits KTVK 3TV Phoenix By BROCK VERGAKIS, Associated Press Writer Brock Vergakis, Associated Press Writer – 2 hrs 38 mins ago
SALT LAKE CITY – Utah officials said Friday they have identified at least two state workers who apparently accessed confidential documents to create a list of 1,300 purported illegal immigrants that was mailed to law enforcement officials and the news media.

Gov. Gary Herbert said the employees work for the Department of Workforce Services, which administers food stamp programs and other public benefits. The employees have been placed on administrative leave, and the state attorney general will determine whether to file criminal charges.

"It's a very small group. The people we've identified certainly have some strong political opinions and seem to be frustrated with some of the issues around immigration," said Kristen Cox, executive director for the department. "I think it's an immense hypocrisy to talk about taking people to task for being illegal and doing so by breaking the law."

Newspapers started receiving the list of names and personal information this week, and its publicity created widespread fear in the Hispanic community. The anonymous mailing said it also was sent to immigration officials. It demanded that those on the list be deported, although some named have said they are in the country legally.

"This tactic by these rogue employees to go out and to single out individuals and their families, in some case falsely accusing people of an illegal status, is in fact deplorable," Herbert said.

A U.S. Immigration and Customs Enforcement spokeswoman acknowledged that it received the list but declined to say whether the agency is doing anything with it.

ICE won't confirm whether it has been investigating anyone unless there is some type of action such as an arrest, spokeswoman Virginia Kice said. She noted that with limited resources, the agency prioritizes its efforts on dangerous convicted criminals, not sweeps or raids that would target undocumented immigrants indiscriminately.

Cox said there may be a few more people implicated in the leak of the names, but she's confident that the core group that is responsible has been identified.

Intentionally releasing a private record in Utah is a misdemeanor punishable by up to six months in jail and a $1,000 fine. If someone stole such a record, it could be prosecuted as a felony with a penalty punishable by up to five years in prison and a $5,000 fine.

"We will begin an immediate, aggressive, formal investigation," Utah Attorney General Mark Shurtleff promised Friday on a conference call with national and local Hispanic leaders.

Herbert said accessing the private information and distributing it to federal immigration authorities is also a violation of federal law. Shurtleff said he would seek the help of the U.S. attorney's office.

"We're talking serious, felony-level crimes," Shurtleff said.

Hispanic advocates applauded how quickly the state acted to find the source of the leak and to assure the community that state policy doesn't allow for just anyone to access private information.

"The governor took the first step today to bring that trust back again," said Tony Yapias, former director of the Office of Hispanic Affairs.

Cox said most of the people are on the list because their children are receiving benefits. Herbert said there are two benefits administered by the state — food stamps and prenatal care — that would provide information that could indicate someone is in the country illegally.

The list that was mailed contains Social Security numbers, birth dates, workplaces, addresses and phone numbers. Names of children are included, along with due dates of pregnant women.

Officials continued investigating Friday even though state employees usually have the day off as part of the state's four-day workweek to cut energy costs.

Herbert, a Republican, is preparing to host a public summit on immigration Tuesday. The governor has said he will sign an immigration bill into law next year if he's still in office, but it's unclear how closely that bill might mirror one lawmakers recently passed in Arizona.

Arizona's law, which takes effect July 29, directs police enforcing other laws to determine a suspect's immigration status if there is reason to believe the person is in the U.S. illegally. The Obama administration has sued Arizona to throw out the law and keep other states from copying it.

Thursday, July 15, 2010

First SB1070 Hearing: Salgado v. Brewer Live Coverage

Reporter Corey Rangel is covering the first hearing in the SB 1070 case, Salgado v. Brewer, live for on twitter: ( ).

Brief for 9 states backs Arizona immigration law

Several states have argued that they have the authority to enforce immigration laws and protect their borders, Michigan Attorney General Mike Cox said Wednesday in a legal brief on behalf of nine states supporting Arizona's immigration law.

Cox, one of five Republicans running for Michigan governor, said Michigan is the lead state backing Arizona in federal court and is joined by Alabama, Florida, Nebraska, Pennsylvania, South Carolina, South Dakota, Texas and Virginia, as well as the Northern Mariana Islands.

The Arizona law, set to take effect July 29, directs officers to question people about their immigration status during the enforcement of other laws such as traffic stops and if there's a reasonable suspicion they're in the U.S. illegally.

President Barack Obama's administration recently filed suit in federal court to block it, arguing immigration is a federal issue. The law's backers say Congress isn't doing anything meaningful about illegal immigration, so it's the state's duty to step up.

"Arizona, Michigan and every other state have the authority to enforce immigration laws, and it is appalling to see President Obama use taxpayer dollars to stop a state's efforts to protect its own borders," Cox said in a statement.

Arizona's Republican Gov. Jan Brewer, in a statement released by Cox's office, said she was thankful for the support.

In a telephone interview, Cox said the nine states supporting Arizona represents "a lot of states," considering it was only Monday that he asked other state attorneys general to join him. The brief was filed in U.S. District Court in Arizona on the same day as the deadline for such filings.

"By lawsuit, rather than by legislation, the federal government seeks to negate this preexisting power of the states to verify a person's immigration status and similarly seeks to reject the assistance that the states can lawfully provide to the Federal government," the brief states.

The brief doesn't represent the first time Cox has clashed with the Obama administration. Earlier this year, he joined with more than a dozen other attorneys general to file a lawsuit challenging the constitutionality of federal health care changes signed into law by the Democratic president.

Like with his stance on health care, the immigration brief again puts Cox at odds with Democratic Michigan Gov. Jennifer Granholm. Granholm, who can't seek re-election because of term limits, disagrees with the Arizona law, her press secretary Liz Boyd said. The Michigan primary is less than three weeks away on Aug. 3.

"It's a patently political ploy in his quest for the Republican nomination for governor," Boyd said.

By DAVID RUNK, Associated Press Writer David Runk, Associated Press Writer – Thu Jul 15, 3:50 am ET

Despite these arguments, as I, other legal experts, and now the justice department have argued, these states are simply wrong. Arizona's SB 1070 interferes rather than assists federal immigration policy. As a result, it is preempted and thus unconstitutional under the U.S. Constitution's Supremacy Clause. If the high court follows the law rather than politics, it will agree with my assessment.

Wednesday, July 14, 2010

Disgusting: Anti-Latino Hit List

Multiple media outlets reported today that an anonymous group purportedly from Utah sent out a list of 1,300 persons whom they claim are undocumented migrants.

This list targeted mostly persons with “Hispanic” names. As has often occurred in anti-latina/o so-called anti-immigrant bashing, children and expectant mothers have been the particular targets of this disgusting piece of hate. Here we have a highly personalized illustration of the anti-latina/o nature of the “immigration” discourse that is currently spreading like a virus through our country.

United Press International reported: “The list of people accused of being in the United States illegally included addresses, birth dates, phone numbers and -- in 31 cases -- social security numbers, the [Salt Lake] Tribune said. The list also included the names and dates of birth of 201 children.” (

MSNBC reported that: "My phone has been ringing nonstop since this morning with people finding out they're on the list," said Tony Yapias, former director of the Utah Office of Hispanic Affairs. "They're feeling terrorized. They're very scared." (

I have several predictions. First, most of the people on this list –particularly the children-- will turn out to be citizens and documented residents of the United States. Second, many of them will be harassed, probably by the same vermin that put together this list, and I hope that the proper authorities will immediately mobilize to ensure the personal safety of those so targeted. Third, should a few undocumented immigrants be found on this list, they will be held up as examples of the righteousness of this bit of anti-latina/o guerrilla warfare, and the “collateral damage” of the gross invasion of privacy at the very least, and worse harassment of citizens and legal residents will be dismissed, because it could not happen to those who promote this sort of thing.

The news reports indicate that Utah authorities are laboring to find out how this list was distributed and by whom. I hope that they do so quickly and before anyone comes to harm.

Another question is the possible misuse of state confidential databases to produce this list. The Salt Lake Tribune reported today that Utah’s governor has ordered a review to find out whether this is the case. “If [the investigation] reveals any kind of evidence of wrongdoing or release of private information we will turn it over to the Attorney General’s Office,” said Angie Welling, [Gov. Gary] Herbert’s spokeswoman. (

We must be vigilant in these situations and hold these state officials to their promise to protect the civil and human rights of all.


Additional References:

On the evil effect of racial profiling resulting from purported “immigration enforcement” see Violation of Latino Civil Rights Resulting from Ins and Local Police's Use of Race, Culture and Class Profiling: The Case of the Chandler Roundup in Arizona [article], Cleveland State Law Review, Vol. 52, Issues 1 & 2 (2004-2005), pp. 75-96, by Romero, Mary; Serag, Marwah.

On the targeting of women and children in these individual vendettas, see Go after the Women: Mothers against Illegal Aliens' Campaign against Mexican Immigrant Women and Their Children [notes], Indiana Law Journal, Vol. 83, Issue 4 (Fall 2008), pp. 1355-1390 by Romero, Mary.

Tuesday, July 13, 2010

More on the Puerto Rican Birth Certificates

I previously blogged about the law which would invalidate all the Puerto Rican birth certificates as of July 1, 2010 (see Ay Bendito in Puerto Rico posted March 2, 2010). If you recall, the rationale of the Puerto Rican legislature was to curb identity theft. However, the magnitude of the effort to have the over 8 million Puerto Ricans in the island and the U.S. obtain new birth certificates has dawned on the Puerto Rico legislature. So now, the legislature has amended the law extending the validity of the pre-July 1, 2010 birth certificates issued. The extension is until September 30, 2010. For more information about about how to obtain a birth certificate see{54D8AD18-838F-4127-8B2F-876D9823B428}&NRORIGINALURL=/citizenportal/071-001-000-000.htm&NRCACHEHINT=Guest.

Monday, July 12, 2010

SB 1070: LULAC v. Arizona

The League of United Latin American Citizens (LULAC), "the largest and oldest Hispanic organization in the United States," and other individuals have brought the seventh lawsuit seeking to strike down Arizona's new immigration statute -- SB 1070. LULAC alleges that SB 1070 is unconstitutional because it amounts to "an impermissible attempt by state actors to regulate immigration." In addition, SB 1070 and its associated police training materials which have been developed to implement the new statute deny the plaintiffs their rights under the due process and equal protection clauses of the U.S. Constitution by, among other things, "permitting detentions and arrests based on vague or ill-defined facts such as dress, demeanor, and limited English-speaking ability." The LULAC complaint is here: (

Sunday, July 11, 2010

Take Our Jobs, Please

One of the more interesting ideas to influence public perception on the contentious immigration issue is the United Farm Worker union’s Take Our Jobs campaign. Comedy Channel’s Stephen Colbert has joined to help promote this campaign that uses existing (and therefore likely undocumented) farm workers to train U.S. citizens and legal residents in farm labor. The premise is that few, if any, U.S. citizens will actually want to undertake this grueling career (as of last week three had signed up), thus conveying a valuable lesson on our reliance on the sweat and grit of undocumented workers. The UFW website solicitation of trainees ( warns that: “Job may include using hand tools such as knives, hoes, shovels, etc. Duties may include tilling the soil, transplanting, weeding, thinning, picking, cutting, sorting & packing of harvested produce. May set up & operate irrigation equip. Work is performed outside in all weather conditions (Summertime 90+ degree weather) & is physically demanding requiring workers to bend, stoop, lift & carry up to 50 lbs on a regular basis.”

In the interest of full disclosure, those U.S. residents interested in supplanting the labor of mostly Latino/a immigrants should know a few more things before they treat agricultural labor as the solution to our unemployment woes:

1. Salaries are abysmal. A 2005 report found it was rare for a farm worker to earn over $10,000 annually. In 2000, the median income for migrant and seasonal workers was just $6,250 a year.

2. There is almost no chance of salary advancement. Twenty years ago, a worker made 12, 13, or 14 cents for each bin picked of oranges. Today, that same work pays 15 or 16 cents despite 250 percent inflation in the interim.

3. Forget about health insurance and paid vacations.

4. Your salary might be undercut by a host of deductions for services ostensibly provided by your employer or the labor contractor—for example, gloves and transportation to the remote job-site.

5. You may be exposed to hazardous pesticides that you will share with your family when you arrive home with contaminated clothing.

6. Housing is hard to find proximate to farming locations, meaning you may be living in substandard converted housing and your children may be commuting long distances to school.

7. Most exciting of all, you can look forward to the average life expectancy of a farm worker—just 48 years!

U.S. residents undervalue the labor contributions of Latino/a immigrants, documented or not. Consider just the vitally important food supply, which used to anchor our economy and which we now largely take for granted as we focus national attention on other sectors such as the financial industry and manufacturing. Let’s thank these Latino/a immigrants for their contributions in the fields and beyond, as I don’t expect their labor to be displaced by Anglo workers anytime soon.

Friday, July 9, 2010

Editorial: Don’t copycat Arizona

The Orlando Sentinel editorialized today against copying Arizona’s SB 1070 and it specifically took on the mythology of the “criminal alien”.,0,4993250.story

The editorial noted that the Department of Justice has found that immigrants are generally more law-abiding than the general population and that Florida had a large drop in crime during the same period during which it ranked third nationally in the number of undocumented immigrants entering into the state.

Tuesday, July 6, 2010

SB 1070: United States v. Arizona

The United States has brought a lawsuit against the State of Arizona seeking to strike down the new Arizona immigration statute -- SB 1070-- on the ground that the "Constitution forbids Arizona from supplanting the federal government's immigration regime with its own state-specific immigration policy ...." The complaint filed by the United States is here: ( In bringing this action, the United States has strengthened the claims of the various plaintiffs in the related actions that SB 1070 is unconstitutional because it invades the province of the federal government to regulate immigration. The United States agrees with the plaintiffs on this point.

Los federales have sued Arizona

In a legal move that had been long awaited by immigrants' rights advocates and others who oppose S.B.1070, the Obama administration has sued Arizona Governor Jan Brewer and the state of Arizona, alleging that "S.B. 1070 unconstitutionally interferes with the federal government’s authority to set and enforce immigration policy, explaining that 'the Constitution and federal law do not permit the development of a patchwork of state and local immigration policies throughout the country.'”

The 25 page complaint, filed today in federal court in Arizona, further alleges that "a patchwork of state and local policies would seriously disrupt federal immigration enforcement and that [h]aving enacted its own immigration policy that conflicts with federal immigration law, Arizona 'crossed a constitutional line.'” The lawsuit requests an injunction and declaratory relief on the basis of violation of the Supremacy Clause, federal preemption and the Commerce Clause. The federal government also filed a 58 page brief in support of the motion for preliminary injunction. To read the pleadings, see

Monday, July 5, 2010

TGH Preemption and An Unholy Alliance

A recent post of mine on whether the Treaty of Guadalupe Hidalgo (TGH) applied to the current and extreme reactionary tactics of Arizona’s anti-immigration “law” drew some favorable and not so favorable comments. They therefore drive the intent of this post. Specifically the TGH post sought illustrating the preemption of federal law in specific situations.

I agree with one commentator and also add that the dominant legal discourse primarily rendered the TGH invisible. Further some of the comments against the framework of the current anti-immigrant rhetoric underscore the consequences of false legal norms. For example some Latinas/os support the anti-immigrant position for a number of vast and varied reasons but yet lack the requisite legal causation as to how state government actors breached federal law. The reason is part is because in innumerable situations legal educators have failed to include the wide diversity of the nation’s real history in training our youth.

Yet another reason remains. Until the entry of Latina/o law professors the Treaty’s legal story with very little exception thereby remained primarily the narrative of the Conqueror. This narrative reified false knowledge and left hidden the extent to which governmental actors employed law to dispossess the former Mexican citizens of their property interests.

Recent excursions in the historical record reveal a measure of how courts, attorneys and other government officials betrayed the supremacy clause and thus the Treaty’s intent.[1] That story however is beyond the limitations of this post but I’ve included a few examples of Latina/o law professors as well as a few others who have brought forth an alternative cuento that shows what occurs when the rule of law is ignored.

By analogy Arizona’s anti-immigration law highlights a realm of harmful consequences when governmental officials betray and violate federal law for their own personal gain.

A current example shows yet another instance of Arizona’s recalcitrance and insurgent actions where governmental actors fail to recognize the rule of law. In exchange violators of legal federalism guarantee chaos reins with arbitrary and unlawful costs foisted on those that demand accountability.

Specifically and drawing from an ABA Journal article the full title is provided because it speaks volumes —The Maricopa County Courthouse War, An Arizona Showdown Over Populist Politics, Abuse of Power and Pink Boxer Shorts in the ABA Journal — reports on a protest that took place in December 2009.[2] The protesters primarily lawyers had joined together at the Maricopa County courthouse with their posters declaring: “Rule of law!” and “Free Judges/Free People.” They “recited the oath they gave when joining the bar…” while emphasizing: “I will not counsel or maintain any suit or proceeding that shall appear to me to be without merit or to be unjust.”

The lawyers were protesting the arbitrary and capricious actions of the local prosecutor who had brought charges of bribery without an indictment against a judge (although later dropped) without cause. The article further reported that “hardball politics overpower Maricopa courts,” and a host of overly intrusive governmental actions unite “totalitarianism” with the actions of Sheriff Joe Arpaio and his working arrangement with local prosecutor Andrew Thomas.

This unholy alliance has perpetuated a host of retaliatory actions for critics of Arpaio and Thomas that are steeped with “. . . . racism, cronyism, and widespread use of law enforcement and criminal prosecution to settle increasingly bitter political intrigues.” In essence brandishing a slew of retaliatory actions constituting “. . . normal political retribution… .” For daring to criticize Arpaio and Thomas extra-legal activities critics would face volatile retribution.

Even more astonishing (or perhaps not) is that for their protests critics against the arbitrariness of Arpaio and Thomas activities would in turn face indictments. In one instance one such critic faced 118 charges although they were finally dropped. Yet while later walking in a parking lot Arpaio’s deputies “perp-walked him before the media—without charges or warrant —citing probable cause.”

Other charges read as a horror story of retribution against those seeking the rule of law such as the arrest of individuals who had applauded upon hearing criticism of Arpaio at a public meeting. The list of abuse of power between the prosecutor and the sheriff is an endless litany of injury to those who dared to challenge the authority of both men. One such instance included a sheriff deputy who had removed an attorney’s work product while she was talking to the judge during a hearing. The deputy was held in contempt and jailed for refusing to apologize for his outrageous actions. Arpaio however defended the deputy by calling him a “political prisoner.”

The list is endless reading like a horror story of mind-blowing proportions. Jumping back to the Arizona’s anti-immigrant “law” it also gives one pause. Specifically the Governor rejects critics who remind her of the preemption of federal law and the attendant arbitrary and capricious actions that will result from innumerable law enforcement officials. With unmitigated restraint she declares that no racial profiling will take place by law enforcement officials in administrating its anti-immigrant measures. Ha! If you believe such a declaration I have a lead on a London bridge for sale.

In the interim, check out the article as a reminder of a concrete instance when government officials betray their oath of office (that obligates upholding federal and state law). The value of the article moreover shows what occurs when insurgent harmful laws breach federal preemption of a particular field such as the supremacy of the Treaty of Guadalupe Hidalgo over state driven measures. In sum, the article adds immeasurably to arguments against simplistic “get tough approaches” such as those adopted in Arizona and which in their recalcitrance ultimately deny the rule of law.

[1]The list would include the work of inter alia Professors George Martinez, Christopher Ruiz Cameron, Placido Gomez, Laura Gomez and the author of this post. Of course a debt is owed the Chicana/o historians that opened the door to studies on the Treaty and especially Malcolm Ebright and his work on the New Mexico land grants.

[2]Terry Carter, ABA Journal (April 2010).

Sunday, July 4, 2010

American Bar Association Submits Brief in Support of the MALDEF/ACLU Motion for a Preliminary Injunction; Hearing Set for July 22, 2010

In an extraordinary move, the American Bar Association has submitted an amicus brief in support of MALDEF's motion for a preliminary injunction to block the implementation of the new Arizona immigration statute. The ABA explained this unusual lower court intervention by stating that "while the ABA typically files amicus briefs only in the highest federal or state court that will consider a matter, the ABA believes the issues before this court are of such significance to the American people and the practice of law that they must be addressed at this stage of the proceeding." The ABA is particularly concerned that SB 1070 will lead to "the increased use of racial profiling in law enforcement," the "mandatory detention of citizens and noncitizens," an "increased burden on ... Arizona's indigent defense system," and an invasion of federal authority to regulate immigration. The ABA's amicus brief is here: ( Federal Judge Susan Bolton has set July 22, 2010 as the date for a hearing on the motion for a preliminary injunction in the MALDEF case. (E.J. Montini, SB 1070 Injunction Hearing Set for July 22, The Arizona Republic, June 30, 2010).

Thursday, July 1, 2010

Border Smokescreens

Fear of encroaching drug violence from Northern Mexico increasingly provides cover for anti-immigrant measures and ramping up border enforcement—whether at the state level through malicious laws such as Arizona’s draconian immigration crimes, or federally through funding of enhanced border security. Arizona Governor Jan Brewer defended her state’s immigration law by contending outlandishly that most undocumented immigrants are drug mules. Media and xenophobes now routinely mention rampant violence in the drug trade as additional justification for constructing Mexican immigrants as a threat to local communities and even national security given the conflation of the international drug trade with the war on terror. The fact that Mexican traffickers supply about 65 percent of all narcotics sold in the United States is seen as further indictment of the Mexican character as criminal rather than of the insatiable U.S. demand for narcotics from suburban soccer moms to college fraternities.

Over the years, the drug trade has converged on Mexican smuggling routes. When U.S. enforcement impeded the 1970s French Connection funneling heroin through Turkey and France into the United States, the Mexican cartels filled the void. When Miami Vice-style enforcement found success in scuttling the cocaine trade from South America through Florida, the Mexican alternate route flourished. When the United States ramped up internal detection and eradication of marijuana growing operations, Mexican traffickers took up the slack. And when the U.S. began tightly regulating the core ingredient of methamphetamine, Mexicans imported mass quantities of pseudoephedrine (legally at first and now unlawfully) and took over that trade.

Rather than serving as an indictment of the Mexican character, the preeminence of Mexican drug traffickers mostly reflects a combination of the absence of financial opportunity that breeds illicit economies, geographical proximity and, most important, exploiting the world’s busiest border. Without counting sometimes millions of crossings into the United States on foot outside the official ports of entry in bordertowns or U.S. arrivals by plane or boat, in one recent year the U.S. Bureau of Transportation Statistics counted 4.23 million semi trucks, 7,774 trains containing 266,469 loaded rail cars, 88 million passenger vehicles, 319,087 buses with 3.7 million passengers, and 48,663,773 people crossing the U.S./Mexico border on foot. Border traffic of this magnitude offers cover to smuggling operations given the impracticality of methodically searching every person or vehicle, as proven by Nixon’s failed Operation Intercept that essentially shut down the border in 1969. The interconnectedness of the Mexican and United States economies and cultures increases over time, bolstering the appeal of illicit border crossings taking advantage of the incessant border traffic.

U.S. drug policies belong in the consideration of any comprehensive immigration/border reform. Until the United States confronts its own demand for cheap labor and illicit narcotics that pulls both Mexican labor and drug trafficking north, border solutions will be flawed and continue to emphasize security over reason at any cost.