Will the Fate of Arizona’s SB 1070 Hinge on the Law that Created the 287(g) Program?

It’s not every day that federal officials cite Section 287(g) of the Immigration and Nationality Act (INA) as a limit on—rather than an expansion of—the authority of local police to assist in immigration enforcement. But a veteran Justice Department attorney made just that point during arguments in a federal appeals court yesterday while defending an injunction against Arizona’s SB 1070.

The contention came during a debate over the notorious provision requiring local police officers to check the immigration status of any person they stop whom they have “reasonable suspicion” is residing in the country illegally. As part of a broader argument that Arizona enacted SB 1070 to advance its own immigration priorities, not those of the federal government, the Justice Department attorney, Edwin Kneedler, cited the existence of the 287(g) program as evidence that Congress wanted local police to have federal supervision when enforcing immigration law, not act as freelance ICE agents.

Pushing back against the argument, Judge Carlos Bea, a George W. Bush appointee, noted that Section 287(g)’s final paragraph permits individual officers to “cooperate” with federal immigration agents even if their agencies haven’t signed an agreement. But Kneedler, appearing to have anticipated the question, replied that Congress intended the term “cooperate” to mean that the federal government could seek assistance from local police, not the other way around.

Yesterday’s argument—before a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit—came nearly five months after the Justice Department brought suit to block six of SB 1070’s most draconian provisions from going into effect. A federal judge in Phoenix subsequently granted an injunction against four of the provisions. Arizona then appealed to the Ninth Circuit, which received more than 25 amicus briefs from outside states and organizations and scheduled oral argument for an hour rather than the customary thirty minutes.

Despite Kneedler’s pleas, only one of the three judges—Richard Paez, a Clinton appointee—appeared outwardly inclined to uphold the injunction against the “reasonable suspicion” provision. Also unclear was the fate of a separate section of SB 1070 authorizing police to arrest individuals for the commission of past crimes making them eligible for deportation. Judge Paez noted that whether a criminal conviction makes an individual subject to removal often requires complex and time-consuming analysis. But Judge Bea countered that because some determinations would be straightforward, the provision should survive a preemptive “facial” challenge to the law, as opposed to a future challenge to how SB 1070 is enforced in practice.

In better news, comments from the judges suggested they are likely to uphold the injunction against two provisions of SB 1070: one that criminalizes non-citizens’ failure to register with the federal government or carry immigration documents, and another that criminalizes undocumented immigrants’ efforts to find or engage in work. The Justice Department maintains that the provisions make criminal, under Arizona law, activities that are subject only to civil penalties under federal law. When Kneedler brought up the provisions, Bea and the third judge on the panel—John Noonan, a Reagan appointee—advised him to move on, indicating they would uphold the injunction against them.

Photo by Arasmus Photo.

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