State appeals SB 1070 injunction

PHOENIX — An attorney for the state formally asked a federal appeals court Thursday to undo the injunction a trial judge issued blocking Arizona from enforcing parts of its new immigration law.

In legal papers filed with the 9th Circuit Court of Appeals, John Bouma said Congress always intended to “encourage state and local cooperation'' in enforcement of immigration laws. He said any arguments by the U.S. Department of Justice that SB 1070 is pre-empted by federal law is just wrong.

Potentially more significant, Bouma argued that the harm to Arizona from continued illegal immigration outweighs any burden that might be placed on others if the law is allowed to take effect while claims of its legality make their way through the legal system.

This is a crucial legal point.

In issuing her injunction, U.S. District Court Judge Susan Bolton had to do more than simply conclude there was a likelihood that provisions of the law, which had been set to take effect July 29, were unconstitutional and an infringement on the exclusive right of the federal government. She also had to look at the “balance of hardships'' and who might suffer an undue burden depending on her ruling.

Bolton sided with the Department of Justice, citing the potential danger to those who are not illegal immigrants of being unfairly detained. The judge also said there is a potential harm to United States foreign policy interests by having Arizona enforcing its own potentially illegal immigration law.

Brewer said Thursday the judge got it wrong.

“I think the state's irreparable harm is that our illegal immigration continues to be very damaging to Arizona,'' she said.

“We certainly cannot sustain it or afford it,'' the governor continued. “And the people of Arizona are frustrated and upset.''

Bouma, a private attorney Brewer was empowered by the Legislature to hire, said statistics back that contention.

“The Arizona Department of Corrections has estimated that criminal aliens now make up more than 17 percent of Arizona's prison population,'' he wrote in his legal filing. And he said 21.8 percent of the felony defendants in Maricopa County are illegal immigrants.

“The staggering costs of illegal immigration are estimated to be $2 billion per year,'' Bouma wrote.

On the other side of the equation, the attorney said SB 1070 “will not impose an unconstitutional burden on lawfully present aliens.''

For example, he argued there is nothing wrong with asking people to provide identification.

“It is well known the first thing an officer does when he or she stops or detains any person for any reason is to ask that person for identification or information that will help the officer identify the person,'' Bouma said. He said that is for the officer's own safety and to determine if there are things the officer needs to know, such as outstanding warrants.

Brewer's attorney wasn't the only one making such arguments. State Sen. Russell Pearce, R-Mesa, who sponsored SB 1070, filed his own separate legal brief.

He said the law imposes no new burden on immigrants who are in this country legally.

The Department of Justice has until Sept. 23 to file its own arguments. The appellate court is scheduled to hear from both sides the first week of November in San Francisco.

Sections barred by the judge

from being enforced include:

- Requiring a police officer to make a reasonable attempt to check the immigration status of those they have stopped.

- Forbidding police from releasing anyone they have arrested until that person's immigration status is determined.

- Making it a violation of Arizona law for anyone not a citizen to fail to carry documenation.

- Creating a new state crime for trying to secure work while not a legal resident.

- Allowing police to make warrantless arrests if there is a belief the person has committed an offense that allows them to be removed from the United States.

Sections which took effect July 29:

- Creating a separate state crime making it illegal to transport or harbor an illegal immigrant.

- Altering laws dealing with impoundment of vehicles that are used to transport those not in the country legally.

- Making it a crime to stop a vehicle in traffic to hire a day laborer or for someone looking for work to get into a stopped vehicle.

- Requiring state officials to work with the federal government regarding illegal immigrants.

- Allowing Arizona residents to file suit against any agency, official, city or county for adopting policies that restrict the ability of workers to enforce federal immigration law “to less than the full extent permitted by federal law.''