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The U.S. Court of Appeals for the Ninth Circuit April 11 upheld an injunction blocking the most controversial portions of an Arizona immigration law, including provisions making it a state offense for an undocumented worker to solicit, apply for, or perform work and to fail to carry immigration papers (United States v. Arizona, 9th Cir., No. 10-16645, 4/11/11).

In a 2-1 decision, the Ninth Circuit found that the U.S. District Court for the District of Arizona did not abuse its discretion by enjoining portions of the Arizona law known as S.B. 1070. The district court found that DOJ was likely to succeed on its claims that portions of the law would interfere with carefully balanced federal immigration policy (United States v. Arizona, D. Ariz., No. 2:10-cv-01413-PHX-SRB, preliminary injunction 7/28/10; 28 HRR 819, 8/2/10).

The circuit court ruling addressed only whether the district court injunction should be upheld and did not determine the underlying legality of the Arizona law. In addition, the ruling did not address the provisions of the law cracking down on day laborers, several amendments to the state employer sanctions law, a provision allowing legal residents to sue any state official or agency for adopting a “sanctuary city” policy, and provisions related to harboring and transporting illegal immigrants. Those parts of the law took effect July 29, 2010.

The Justice Department's contention that the rest of the law should be scrapped because it is preempted by federal immigration law--including the Immigration and Nationality Act and the Immigration Reform and Control Act--will proceed to trial.

The Ninth Circuit did indicate, however, that it is likely DOJ's preemption arguments will prevail.

When reviewing the section of S.B. 1070 that criminalizes unauthorized work, the Ninth Circuit said its decision in a 1990 case “requires us to conclude that federal law likely preempts S.B. 1070.” That decision, National Center for Immigrants' Rights v. INS, held that the attorney general lacked authority to bar employment by illegal immigrants released pending deportation proceedings.

The court also said DOJ is likely to prevail on challenges to three other sections of the law that require police to determine the immigration status of anyone stopped, detained, or arrested; make it a state crime to fail to apply for or carry alien registration papers; and authorize warrantless arrests of illegal immigrants believed to have committed offenses that make them removable from the United States.

Concurring, Dissenting Opinions.

Judge Richard Paez wrote the opinion for the court. Judge John Noonan concurred, while Judge Carlos Bea concurred in part and dissented in part.

The split decision included a concurring opinion by Noonan, who wrote separately to “emphasize the intent of the statute and its incompatibility with federal foreign policy.” According to Noonan, the legislative intent of the Arizona law is “attrition through enforcement,” a policy that runs afoul of federal foreign policy, particularly “friendship and cooperation” with Mexico.

Meanwhile, Bea concurred in part and dissented in part. He concurred with the majority's finding that the provision of the law criminalizing an illegal immigrant for working or seeking work and the portion requiring an illegal immigrant to carry documentation are likely preempted.

Bea contended, however, that the majority “misreads the meaning of the relevant federal statutes to ignore what is plain in the statutes--Congress intended state and local police officers to participate in the enforcement of federal immigration law.”

Brewer Vows to Fight On.

Governor Jan Brewer (R) said April 11 she remains “steadfast” in her “belief that Arizona and other states have a sovereign right and obligation to protect their citizens and enforce immigration law in accordance with federal statute.”

A Justice Department spokeswoman told BNA April 11 that the department is “pleased with the court's ruling” but declined further comment.

Several advocacy groups issued statements April 11 applauding the court's decision and calling it a victory for immigrant rights.

The Ninth Circuit's ruling represents a “significant assertion that it's the federal government's responsibility, not the states, to enforce immigration laws,” Marissa Graciosa, director of the Fair Immigration Reform Movement, said in an April 11 statement.

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Text of the Ninth Circuit opinion can be accessed at http://op.bna.com/dlrcases.nsf/r?Open=amky-8ftrzc.