Friday, March 2, 2012

Judge blocks day labor rules in Arizona immigration law

A federal judge blocked police in Arizona from enforcing part of the state's 2010 immigration enforcement law that prohibited people from blocking traffic when they seek or offer day labor services on streets.

U.S. District Judge Susan Bolton ruled Wednesday that groups seeking to overturn the law will likely prevail in their claim that the day labor rules violate the Constitution. She rejected arguments by the state that the rules were needed for traffic safety and pointed out that the law, also known as SB1070, says its purpose is to make attrition through enforcement the immigration policy of state and local government agencies.

The ban was among a handful of provisions in the law that were allowed to take effect after a July 2010 decision by Bolton halted enforcement of other, more controversial elements of the law. The previously blocked portions include a requirement that police, while enforcing other laws, question people's immigration status if officers suspect they are in the country illegally.

The U.S. Supreme Court has agreed to hear Gov. Jan Brewer's appeal of Bolton's decision to put the most contentious elements of the law on hold. Another appeals court has already upheld Bolton's July 2010 ruling.

Three of the seven challenges to the Arizona law remain alive. No trial date has been scheduled in the three cases.

Some of Arizona's biggest law enforcement agencies have said in the past that they haven't made any arrests under the sections of the law that were allowed to take effect.

Brewer said in a statement that she was disappointed with Bolton's "erroneous decision," which she said has further eroded the state's ability to regulate public safety. Also, Wednesday's ruling is just one more reason to look forward to the Supreme Court's scheduled consideration of SB1070 in April, she said.

The governor signed the measure into law in the spring of 2010.

Dan Pochoda, legal director for the American Civil Liberties Union of Arizona, one of the group's representing people who filed the lawsuit, said the judge saw through the government's ruse that the day labor rules were about traffic safety, when the goal all along was to get at day laborers.

"There are clear laws now that allow any cop to unclog (the streets) well before they had this law," Pochoda said.

The Mexican American Legal Defense and Educational Fund and other opponents had asked the judge for a preliminary injunction to block enforcement of the day labor rules, arguing they unconstitutionally restrict the free speech rights of people who want to express their need for work.

Brewer's lawyers had opposed attempts to halt enforcement of the day labor restrictions. They argued the restrictions are meant to confront safety concerns, distractions to drivers, harassment to passers-by, trespassing and damage to property.

Brewer's lawyers have said day laborers congregate on roadsides in large groups, flagging down vehicles and often swarming those that stop. They also said day laborers in Phoenix and its suburbs of Chandler, Mesa and Fountain Hills leave behind water bottles, food wrappers and other trash.

The judge wrote in her latest ruling Wednesday that the law appears to target particular speech rather than a broader traffic problem. "The adoption of a content-based ban on speech indicates that the Legislature did not draft these provisions after careful evaluation of the burden on free speech," the judge wrote.

Bolton previously denied an earlier request to block the day labor rules, but opponents were allowed to bring it up again after the 9th Circuit Court of Appeals ruled on a similar issue in September.

The appeals court had suspended a law from Redondo Beach, California, that banned day laborers from standing on public sidewalks while soliciting work from motorists. The court ruled the law violated workers' free speech rights and was so broad that it was illegal for children to shout "car wash" to passing drivers.

The ruling Wednesday still leaves other elements of the law in place, such as minor tweaks to the state's 2005 immigrant smuggling law and 2007 law prohibiting employers from knowingly hiring illegal immigrants.

Other parts of the law that remain in effect include a prohibition on state and local government agencies from restricting the enforcement of federal immigration law and a ban on state and local agencies from restricting the sharing of information on people's immigration status for determining eligibility of a public benefit.


Immigration Laws of Alabama, Georgia Under Scrutiny in U.S. Appeals Court

Alabama and Georgia argued to salvage state laws targeting illegal immigrants in a hearing before a federal court that already said there’s a “substantial likelihood” some of those measures will be thrown out.

A three-judge panel heard arguments today in Atlanta in three cases, two from Alabama and one from Georgia. U.S. Circuit Judge Charles Wilson said the panel won’t issue a decision until after the U.S. Supreme Court rules on a challenge to Arizona’s immigration measures. The Arizona case will be heard in April by the high court.

One provision of the Alabama law that has been temporarily blocked requires illegal immigrants to carry registration papers and forces schools to determine the legal status of students as they enroll. Wilson and U.S. Circuit Judge Beverly Martin said they were concerned with the law’s practical application.

“Is it just a scare tactic?” Wilson asked John Neiman, Alabama’s solicitor general.

“No,” said Neiman, calling the information that would be gathered “relevant to policy making.”

The judges asked if the children would be deported after declaring themselves illegal residents.

“Well, I suppose yes,” Neiman said. The children could be deported if the U.S. government decided to ask for the information, he said.

Undocumented Residents

Martin and Wilson asked several times if Alabama’s law is meant to drive undocumented residents out of the state. “That is not the intent,” Neiman said.

The law’s school papers provision says “it is a compelling public interest to discourage illegal immigration” by enforcing federal immigration laws and its own new measures.

The federal government is challenging Alabama’s law, saying immigration is a federal matter. The U.S. has also sued to block laws aimed at apprehending illegal immigrants and keeping them from taking jobs in South Carolina, Arizona and Utah.

“States are not free to complement federal law” regarding immigration, Beth Brinkman of the U.S. Justice Department, told the judges today. State courts could enforce immigration laws inconsistently with federal practice, she said.

Martin said federal immigration law allows illegal residents to live in the U.S. while applications for legal status are pending.

“Why don’t you just accept that?” she asked the states’ lawyers.

Immigration Checks

Georgia’s law would allow the police to check immigration status and bar transporting illegal aliens in some circumstances. It would require employers to verify a worker’s immigration status. The statute was blocked in June by a trial judge’s preliminary injunction. The state appealed. That issue was not considered today.

The Justice Department and nongovernment advocacy groups are likely to win parts of their challenges to the statutes because the federal government exclusively controls immigration, a different three-judge panel of the court said earlier.

Both Alabama and Georgia have argued in court papers that they are trying to help the federal government manage immigrants. The laws are aimed at authorities who police and teach illegal residents, not the immigrants themselves, the states say.

Lawyers for Georgia say the law will help prevent illegal immigrants from being “victimized by employers or others” and “forced to work in horrific conditions.”

‘Criminalizes Its Consequences’

“The state does not regulate immigration but rather criminalizes its consequences,” Georgia Attorney General Samuel S. Olens said in a brief.

Alabama’s documentation rule would “have a chilling effect,” causing children to drop out of school and thus denying them due process of law guaranteed in the Constitution, Justin Cox, a lawyer with the American Civil Liberties Union, said in court papers. The ACLU joined the lawsuits filed by the Hispanic groups in both states.

The Alabama law would encourage illegal residents to “self-deport to states that are supportive” of illegal residents, making it more difficult to find them, the Justice Department said in court papers. The statute “frustrates the federal government’s ability to pursue removal proceedings” when necessary, it said.

Water Services

Martin asked how illegal residents would get life- sustaining services, such as water, under Alabama’s provision that bars them from entering a government contract.

Neiman said the Alabama attorney general wrote an opinion listing mostly licensure activities as barred by the law. Such activities can include obtaining a driver’s license, according to the opinion.

“But it doesn’t exclude water,” Martin said. Martin also said the court can’t use an attorney general’s opinion as precedent for their consideration.

The Supreme Court in December agreed to review a ruling against Arizona’s requirement that police officers check the status of someone arrested who they reasonably suspect is in the country illegally. The Georgia and Alabama laws have the same provision.

The cases are U.S. v. State of Alabama, 11-14532, and Hispanic Interest Coalition of Alabama v. Bentley, 11-14535, U.S. Circuit Court of Appeals for the 11th Circuit (Atlanta) and Georgia Latino Alliance for Human Rights v. Deal, 11-cv-01804, U.S. District Court, Northern District of Georgia (Atlanta).


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