Immigration law gets first major court hearing - East Valley Tribune: Immigration

Immigration law gets first major court hearing

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Posted: Thursday, July 15, 2010 11:07 am | Updated: 2:35 pm, Tue Dec 7, 2010.

The state and its taxpayers will suffer if there is any delay in enforcing Arizona's new immigration law, an attorney for Gov. Jan Brewer told a federal judge Thursday.

John Bouma said legislators passed SB 1070 to deal with the effects of illegal immigration, ranging from human smuggling and crimes committed by gangs of illegal immigrants to the financial burdens placed on the state. By contrast, he told U.S. District Court Judge Susan Bolton, the claims of those challenging the law that they will be injured are "speculative."

But Stephen Montoya, who represents Phoenix police officer David Salgado, said his client is being placed in the position of either enforcing a state law he believes is unconstitutional and preempted by federal law, or being fired for refusing to enforce the law.

"He has a claim to his job," Montoya told the judge.

Bolton said it may just be Salgado's opinion that SB 1070 is unconstitutional. She questioned whether that's enough for him to allege possible harm by enforcing it.

Montoya responded that any doubt about that was resolved when the Department of Justice filed its own lawsuit saying the United States government believes provisions of the law are preempted by federal statutes.

"It's not a philosophical dispute," he said.

Bouma, however, called that irrelevant.

"The fact that they've brought the claim doesn't mean they're correct," he told the judge.

The question of who is harmed is crucial to the decision Bolton has to make on Montoya's request that she block the law from taking effect as scheduled on July 29.

One issue is who is likely to prevail when there is a full-blown trial on the legality of the law, something that will occur sometime down the road no matter what she rules on the injunction.

The other is who is likely to suffer irreparable harm depending on whether the law takes effect or is placed on hold.

Montoya told the judge there would be no real harm to the state with a short delay in letting police enforce the law. He said Arizona has managed to get along without the statute for years.

Bouma, asked about that after the hearing, scoffed at the contention.

"If you think the system we have now is good and that people aren't being irreparably harmed every day, and that the economy isn't getting hurt by the amount of money we have to spend on education and crime and hospitalization, things like that, if that's your concept ... to let it keep running, then I guess we don't have much irreparable harm, do we?" he said.

Any ruling by Bolton, at least on this case, will not affect the entire law.

Montoya is challenging only selected sections of the statute. While these affect key provisions, other sections do not immediately affect either Salgado or Chicanos Por La Causa, a community organization that operates businesses and schools.

Bolton may pare his list even further.

For example, the judge acknowledged there could be a question of whether federal law preempts a mandate that police who have stopped someone must, when practicable, make a reasonable effort to determine that person's immigration status if there is "reasonable suspicion" that individual is an illegal immigrant.

But the judge said she sees nothing wrong with the other part of that same section of law which makes it illegal for any city or county to "limit or restrict the enforcement of federal immigration laws to less than the full extent permitted by federal law."

Bolton said that language applies only when federal law specifically allows local police to enforce immigration statutes. That, she said, undermines any claim of conflict with or preemption by federal law.

Several of the other six lawsuits challenging the law, however, attack the entire statute and seek to have it overturned entirely. Requests for injunctions in two of those cases will be heard by Bolton this coming Thursday.

Much of what will decide the this and the other cases is the scope of federal law. Montoya said only Congress is entitled to make laws about who can come to the country and, more to the point, the laws applicable to foreign nationals in this country.

Bouma denied that SB 1070 conflicts with federal law. And he said there is no requirement for state officials to sit idle when the border is not secure.

"There's no reason Arizona should have to suffer the consequences of a broken system ... when Arizona has 15,000 well-trained and capable (police) officers to fix it," he said.

Montoya said, though, the law could infringe on the rights of U.S. citizens.

One section says police must determine the immigration status of anyone arrested for any crime, no matter how minor, before that person can be released.

"What if that person is my grandmother?" he asked the judge.

"She can be held in jail until she can produce a birth certificate she never had," Montoya continued, saying his grandmother was born on a rural ranch. And he said she can't produce an Arizona driver's license because she doesn't drive.

Bouma told Bolton she should not void the law based on a presumption that professional police officers would act in a way to violate anyone's legitimate constitutional rights.

Bolton gave no indication whether she will rule on the request for an injunction in this case before hearing the other two.

One is the case filed by the U.S. Department of Justice. The other was filed by attorneys for the American Civil Liberties Union, the National Immigration Law Center and the Mexican American Legal Defense and Educational Fund.

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