Today, a federal judge will begin to hear arguments on Arizona law SB1070. One of the problems with SB1070 is that it places the federal government in an impossible situation. While the proponents of SB1070 say that Arizona will help ICE enforce immigration laws, the fact is that it would impinge upon ICE’s ability to fulfill its mandate, set enforcement priorities, and allocate resources effectively. SB1070 would inundate DHS with requests to determine the immigration status of individuals police have arrested for suspicion of being unlawfully present. If ICE determines that the individual is indeed unlawfully present, ICE would be expected to take custody of him/her and place him/her in deportation proceedings. Today, IPC released a new fact check on how Arizona’s new law interferes with federal enforcement priorities.
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It would seem that the Obama administration has chosen to mimic its predecessor in its zeal to pursue the criminal prosecution of unauthorized immigrants for minor, nonviolent offenses such as crossing the border. As the Associated Press reported recently, “federal prosecutions of immigrants soared to new levels this spring, as the Obama administration continued an aggressive enforcement strategy championed under President George W. Bush.” However, the IPC has noted that this “dramatic increase in criminal prosecutions can be traced in large part to Operation Streamline, a Department of Homeland Security (DHS) program which mandates federal criminal prosecution and subsequent imprisonment of all persons caught crossing the border unlawfully.” Yet large numbers of these federal immigration prosecutions “have focused on non-violent border crossers.” In other words, DHS under the Obama administration is needlessly clogging the federal courts with people who have not committed any serious crime.
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Almost immediately after Arizona governor Jan Brewer signed S.B. 1070 into law, lawsuits were filed in federal court in Arizona challenging the law. The lawsuits all seek the same result—a halt to the law’s enforcement—although each suit argues different grounds. Some suits cite civil liberty violations, racial profiling and unlawful regulation of federal immigration law, while another suit states that the police training videos exacerbate conflicts between federal and state law. As July 29, 2010, the date S.B. 1070 is set to go into effect, draws near, litigants and supporters on both sides of the lawsuits are seeking swift resolutions. Ultimately though, the timing of any resolution will depend on the court.
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Republican and Democratic governors alike might need a tutorial on the concept of checks and balances, given the dismay they are expressing over the federal government’s lawsuit against Arizona’s SB 1070. Democrats are purportedly worried that it will hurt their chances in tough state elections, while Republicans are calling the lawsuit hypocritical because the federal government is litigating instead of legislating immigration.

Let’s review. As the lawsuit very clearly and eloquently lays out, the Constitution empowers Congress to regulate immigration. The President and his executive branch carry out the laws (and are given the discretion regarding how to exercise them). And when the states pass laws that conflict with this scheme, the federal courts are the referee.
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Today, the United States Department of Justice (DOJ) filed a lawsuit against the state of Arizona in federal court. The lawsuit, prompted by passage of SB 1070 in the Arizona legislature, argues that federal law trumps the state statute and enforcing immigration law is a federal responsibility. The DOJ has requested a preliminary injunction to delay enactment of the law, arguing that the law’s operation will cause “irreparable harm.”
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Yesterday, Arizona Governor Jan Brewer met with President Obama to discuss immigration and border security. Gov. Brewer described the meeting as “cordial,” but neither the President nor the Governor discussed the Justice Department’s plan to move forward with a lawsuit against Arizona’s controversial immigration enforcement law—a law which President Obama has publicly criticized as “misguided.” They did, however, discuss specifics of the most recent round of border-first strategies (the President assured Brewer that he would send White House staff to Arizona in two weeks to further discuss beefing up the border). Although the President asked Gov. Brewer for help “in creating a bipartisan solution” to our immigration problems, Gov. Brewer was unwilling to play ball, which makes one wonder how far the President is willing to go on the border-first strategy without any promise of GOP support for comprehensive reform?
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Over the last week, there has been a great deal of outrage, confusion, and backtracking on the issue of who and how many people the U.S. government deports.

Faced with a great deal of criticism for Bush-style enforcement, the Administration announced last year that it would no longer be conducting large scale worksite raids, and that worksite enforcement would focus on employers. At the same time, the Administration also stated that it would shift the focus of enforcement to “criminal aliens”—the “worst of the worst.” Programs like Secure Communities, which identifies immigrants who are in local jails and are deportable, have helped to make that shift—at least in rhetoric (whether or not immigrants identified as criminals are really criminals is another post).
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While there is no question that Congress needs to step up to the plate and repair our broken immigration system through legislative reform, there are some fixes that can be made now without waiting for Congressional action. If the Department of Homeland Security (DHS) and the Board of Immigration Appeals (BIA) would stop narrowly interpreting existing immigration law, many noncitizens would be eligible to complete applications for legal status in the manner Congress intended.
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Immigrants reasonably rely on their lawyers’ advice, and they expect their lawyers to be knowledgeable about immigration law and procedure. They count on their lawyers to be their voice in immigration court when facing removal and help ensure that they have a meaningful opportunity to be heard. In the great majority of cases, lawyers competently represent their clients’ interests. But what happens in those occasional situations where the immigrant is defrauded by an unscrupulous lawyer, or an otherwise competent lawyer makes an inadvertent mistake that results in the person being ordered removed from the United States? Certainly, a person should not be deprived of the opportunity to present a defense in removal proceedings because of his or her lawyer’s conduct.
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