Saturday, September 29, 2012

Arizona immigration law - new 9th circuit limitation?

Without the endorsement of the Department of Homeland Security by way of a 287(g) agreement, enforcement of SB 1070's section 2B by state law enforcement officers is of doubtful constitutionality. In  Melendres v Arapaio, the United States Court of Appeals for the Ninth Circuit affirmed a preliminary injunction against Phoenix Arizona's sheriff Joe Arapaio brought to protect the constitutional rights of "racially profiled"... "Latinos detained pursuant crime-suppression sweeps in response to racially charged citizen requests." Though the Arizona immigration law was only referenced tangentially in the opinion and was not directly addressed by the Court, the express language indicates that there may be another, unforeseen (by the drafters) condition imposed upon the "show me your papers" provision that the U.S. Supreme Court in USA v. Arizona ordered be allowed to go into effect on June 25, 2012, and which by order of Judge Susan Bolton did go into effect on September 25, 2012, the same day that the Melendres opinion issued.

The defendants in Melendres claimed "authority to detain persons [they believe] are not authorized to be in the country . . . . ‘based only upon a reasonable suspicion, without more, that the person is not legally present within the United States.'" This is consistent with announced views of several other state law enforcement agencies in Arizona and has been a practice in much of the State for some time. The import of the Melendres decision is that this position is not constitutionally allowable except pursuant to deputization by the federal immigration officials of state law enforcement officials or independently only to interdict criminal law violations. Agreements allowing for immigration deputization arrangements have been authorized by Congressional legislation and are known as "287(g)" agreements. Such authorizations are of two types, or models. "Task force" models involve roving police officers empowered to act as immigration agents, while "jail" models involve police officers screening people arrested and booked into jail. See

In overturning the preliminary injunction against S.B. 1070's "show me your papers" provision, the U.S. Supreme Court overruled a facial challenge to SB 1070 in language that paralleled this distinction. See majority opinion, Section IV D. In allowing enforcement of the provision to proceed, the Court stated: "This opinion does not foreclose other preemption and constitutional challenges to the law as interpreted and applied after it goes into effect." Melendres can be viewed as falling into this category of cases identified by the Court as still viable notwithstanding its decision.

The Melendres Ninth Circuit Court noted that in 2009, "ICE modified its agreement with the Defendants such that the Defendants’ deputies no longer had Act section 287(g) authority to enforce civil immigration laws except in jails." Based upon the revocation of the federal authority, the Ninth Circuit found the state law defendants had no power under federal or state immigration law to conduct “crime suppression sweeps,” also known as “saturation patrols,” targeting Latino individuals under the task force type of model. The Court stated that "without more, the Fourth Amendment does not permit a stop or detention based solely on unlawful presence" ...."Absent suspicion that a 'suspect is engaged in, or is about to engage in, criminal activity,' law enforcement may not stop or detain an individual." Melendres, id. at 15-16.

On June 25, 2012, the day that the Supreme Court announced its decision in USA v. Arizona, the Secretary of Homeland Security revoked the 287(g) task force authority of the following Arizona law enforcement agencies: The Counties of Mesa, Phoenix, Florence, Pima, Pinal, and Yavapai, as well as the Arizona Department of Corrections and Arizona Department of Public Safety, according to an ACLU website.

The revocation of task force authority places the revoked counties and agencies in a very similar legal position to the Defendant Arapaio in Melendres. S.B. 1070 Section 2B, codified as ARS § 11-1051(B) mandates state law enforcement officers where practical and when it will not hinder or obstruct an investigation to verify with the federal authorities the immigration status of every person who is stopped, detained or arrested  upon a reasonable suspicion that the person is not legally present within the United States. Under the broad language of Melendres, it is doubtful that any such detention without section 287(g) authority or probable cause to believe a crime is being committed comports with the Fourth Amendment.