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Supreme Court, feds gut SB1070 enforcement

The U.S. Supreme Court upheld the heart of SB1070, but it pulled out the teeth.

And the U.S. Department of Homeland Security cut off the arms and legs.

The victory declared by Gov. Jan Brewer and other supporters of Arizona’s landmark illegal immigration law will almost certainly ring hollow, at least as long as President Barack Obama is in office.

While the high court upheld a provision of the law requiring police officers to check the immigration status of people they suspect to be in the country illegally, there is little else officers can do after that.

That’s because the Supreme Court struck down three provisions of the law, which would have made it a state crime for illegal immigrants to not have federal documentation, made it a state crime for illegal immigrants to seek work, and would have allowed police officers to make warrantless arrests of people they suspected of committing crimes that would make them removable from the United States.

Without state-level crimes to charge illegal immigrants with, officers can still turn the undocumented over to federal Immigration and Customs Enforcement authorities. But the U.S. Department of Homeland Security pulled the rug out from under that enforcement mechanism shortly after the high court’s ruling on June 25.

That same day, DHS — the parent agency of ICE — directed its agents in Arizona not to deport illegal immigrants unless they meet three key criteria: They’ve been convicted of other crimes, have re-entered the United States after being deported, or have recently crossed the border.

Between the Supreme Court’s rejection of state-level enforcement mechanisms and the DHS elimination of federal options, Section 2(B) of SB1070 will probably do little or nothing to achieve the Legislature and Brewer’s stated goal of “attrition through enforcement.”

Attorney Dan Barr, a staunch opponent of SB1070, said the controversial law is a dead issue now, especially considering the fact that law enforcement officers were already allowed to inquire about immigration status. Barr described the ruling as a victory for Obama and the U.S. Department of Justice, which sued Arizona to block the law in 2010.

“What’s left is a provision that state law-enforcement people could do beforehand. And with the Homeland Security announcement … we know what the federal government’s answer is going to be,” said Barr, of the firm Perkins Coie. “I don’t know how it can be thought of as anything else but a full-blown defeat for the state.”

Barr said it’s incorrect for Brewer and other supporters of the law to claim victory when they “got creamed” in the Supreme Court.

“Listening to Governor Brewer sort of sounds like the Black Knight in ‘Monty Python and the Holy Grail,’ the guy who’s saying, ‘It’s only a flesh wound,’” Barr said.

Regina Jeffries, chair of the American Immigration Lawyers Association’s Arizona chapter, said little will change with the Supreme Court’s ruling. ICE is already detaining people with criminal histories and has shifted its enforcement priorities away from illegal immigrants who hadn’t committed other crimes.

“They don’t want the sheriff’s office calling them about someone who was jaywalking,” Jeffries said. “A lot of what it says can be done is already happening.”

DHS and ICE in 2011 announced that the feds would shift their enforcement priorities to illegal immigrants who have committed other crimes. And the Obama administration announced less than two weeks ago that it would not deport about 800,000 illegal immigrants who were brought to the country before the age of 16, who are eligible for proposed federal legislation known as the DREAM Act.

Brewer declared the Supreme Court’s ruling as a victory for Arizona and vindication for SB1070, but would not say how the law could be enforced if ICE would not take custody of most of the illegal immigrants reported by local law enforcement.

However, Brewer spokesman Matthew Benson acknowledged that Arizona would need federal cooperation to make Section 2(B) work.

“When an officer of the law in Arizona contacts ICE regarding an individual that they believe may be in the country illegally, we’re going to depend on the federal government to work with us and get back with us as quickly as possible to help us make that determination. But again, this is another one of these areas where the state needs to work together with the federal government, and vice versa,” Benson said.

Despite the Supreme Court’s rejection of the three provisions, said Rep. Eddie Farnsworth, the SB1070 ruling was a victory, though it may be a bit time-delayed. Obama’s DHS policies will certainly thwart the intent of Section 2(B), the Gilbert Republican said, but once there’s a new president, those policies can be reversed and SB1070 will be an effective tool against illegal immigration.

“Obama is not going to be in office forever. Even if he is going to be re-elected, his time is limited,” Farnsworth said. “At that point it becomes wholly effective again. So the important part is that the Supreme Court upheld it and that the states can do this.”

Farnsworth was hopeful that presumptive GOP nominee Mitt Romney will reverse Obama’s policies if he’s elected in November.

Romney, who was in Arizona on June 25 for a private fundraiser, has wavered on other recent Obama immigration policies, and after the ruling a spokesman wouldn’t even say whether Romney agreed with SB1070, saying only that the former Massachusetts governor supported states’ rights to enact their own immigration laws and opposed DOJ’s lawsuit against Arizona.

Maricopa County Attorney Bill Montgomery, a vocal advocate of SB1070, said there are still plenty of substantive parts of the law on the books, including provisions that weren’t challenged by the Department of Justice. Those provisions include new prohibitions on illegal immigrants soliciting work on the roadside and on transporting illegal immigrants. Montgomery also noted that Arizona still has its human smuggling statute, which has been used to prosecute illegal immigrants as their smugglers’ co-conspirators.

But if ICE won’t take custody of most illegal immigrants, Montgomery said police officers will have no choice but to turn them loose if they haven’t committed another offense for which they can arrested.

“That is accurate,” Montgomery said. “But that officer at that point in time, in contacting ICE and saying you need to come pick this person up, he’s done all that he can do. But I’ll tell you what — the first time ICE refuses to come pick somebody up and they turn around and commit another crime, particularly one of violence, the blood of that victim will be on the hands of this president.”

Kansas Secretary of State Kris Kobach, an attorney and anti-illegal immigration activist who helped write SB1070, said Arizona may still be able to use the human smuggling law to prosecute illegal immigrants if ICE won’t take custody of them. He described the Supreme Court ruling as a “qualified victory.”

But Montgomery, at least, said he doesn’t expect his office to use the smuggling statute much more often than it does now.

Police departments and sheriff’s offices could also choose to make greater use of the human smuggling law or employer sanctions statute to prosecute illegal immigrants, as Maricopa County Sheriff Joe Arpaio has famously done. But law enforcement has had that ability for years, and no others have made use of it.

Joe Clure, president of the Phoenix Law Enforcement Association, said Phoenix police aren’t eager to divert resources away from traditional police duties so they can focus on new immigration enforcement duties. Clure said he expects SB1070 to change little for cops on the street.

“We are going to comport with the law. But we are not going to deprive our community of effective, reasonable, prudent police services and spin our wheels when it clearly is going to be fruitless or pointless,” Clure said. “We do not want to do routine immigration enforcement.”

Police officers could book suspects on immigration offenses alone if they were authorized under the federal 287(g) program, Jeffries said. But DHS officials also announced on June 25 that the agency was terminating the 287(g) agreements with the last seven Arizona agencies still enrolled in the program. The program allowed police in the field to check immigration status on their own.

The agency already scrapped its 287(g) task force agreement with the Maricopa County Sheriff’s Office in December.

Brewer denounced the 287(g) move, saying Obama was abandoning the people of Arizona. But she continued to assert that Arizona won an important victory in the Supreme Court.

“As though we needed any more evidence, President Obama has demonstrated anew his utter disregard for the safety and security of the Arizona people,” Brewer said in a press statement. “Of course, it is no coincidence that this announcement comes immediately on the heels of the U.S. Supreme Court’s ruling upholding the constitutionality of the heart of Arizona’s anti-illegal immigration law.

“We are on our own, apparently.”


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