Tag Archive for: Arizona

Cyrus Mehta

Preemption of Arizona Driver’s License Policy Provides Another Basis for Supreme Court to Uphold President’s Deferred Action Programs

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On August 15, 2012, when the Deferred Action for Childhood Arrival (DACA) program took effect, Arizona’s then Governor Janet Brewer tried everything in her book to de-legitimize DACA in Arizona. DACA would not confer lawful or authorized status, according to an Arizona executive order signed by Governor Brewer. Arizona’s Motor Vehicle Division announced that it would not accept an employment authorized document (EAD) issued to DACA recipients pursuant to 8 CFR 274a.12(c)(14) with code C33 as proof that their presence was authorized under federal law for purpose of granting a driver’s license.

In 2013, the Arizona Department of Transportation (ADOT) further tried to justify its animus to DACA by revising its policy to only recognize EADs if 1) the applicant has formal immigration status; 2) the applicant is on a path to obtain formal immigration status; or 3) the relief sought or obtained is expressly pursuant to the INA. Under these new criteria, Arizona refused to grant driver’s licenses not only to DACA recipients but also to beneficiaries of traditional deferred action and deferred enforced departure. It continued to grant driver’s licenses only from applicants with EADs pursuant to 8 CFR 274a.12(c)(9), those who had filed adjustment of status applications, or 8 CFR 274a.12(c)(10), those who had applied for cancellation of removal. Under this revision, even one who received deferred action other than DACA under 8 CFR274a.12(c)(14) would now be deprived of a driver’s license.

On April 5, 2016, the Ninth Circuit in Arizona Dream Act Coalition v. Brewer held that these arbitrary classifications defining authorized status were preempted under federal law and has finally put to rest Arizona’s “exercise in regulatory bricolage.” Although the Ninth Circuit also found that these distinctions between different EADs likely violated the Equal Protection Clause, in order to avoid unnecessary constitutional adjudications, the Court also found that these arbitrary classifications under Arizona’s law were preempted as they encroached on the exclusive federal authority to create immigration classifications. The latest ruling permanently enjoins Arizona’s policy of depriving DACA and other deferred action recipients driver’s licenses, following an earlier ruling that affirmed a preliminary injunction of the same executive order.

While Arizona sought to exalt the status of an EAD that was obtained when one sought adjustment of status or cancellation of removal, the Ninth Circuit gave short shrift to such arbitrary classification. There is no difference if one receives an EAD though cancellation of removal or through deferred action as submitting a cancellation application does not signify that the applicant is on a clear path to formal legal status. Such an application could well be denied. In this regard, noncitizens holding an EAD under C9 or C10 are in no different a position than one who has received an EAD pursuant to DACA under C33. The following extract from the Ninth Circuit’s opinion is worth quoting:

Arizona thus distinguishes between noncitizens based on its own definition of “authorized presence,” one that neither mirrors nor borrows from the federal immigration classification scheme. And by arranging federal classifications in the way it prefers, Arizona impermissibly assumes the federal prerogative of creating immigration classifications according to its own design

Arizona Dream Act Coalition thus provides another basis for the Supreme Court in United States v. Texas to uphold the expanded deferred action programs as part of President Obama’s November 20, 2014 executive actions, especially the Deferred Action for Parental Accountability (DAPA) and extended DACA. There is simply no difference between an EAD granted under DACA as an EAD granted based on an application for relief, such as adjustment of status or cancellation or removal. Indeed, it is INA section 274A(h)(3), which provides the authority for a granting of EADs under both DACA and based on application for adjustment of status or cancellation of removal. According to the Ninth Circuit ruling, “DACA recipients and noncitizens with (c)(9) and (c)(10) EADs all lack formal immigration status, yet the federal government permits them to live and work in the country for some period of time, provided they comply with certain conditions.”

INA 274A(h)(3) provides:

As used in this section, the term “unauthorized alien” means, with respect to the employment of an alien at a particular time, that the alien is not at that time either (A) an alien lawfully admitted for permanent residence, or (B) authorized to be so employed by this chapter or by the Attorney General

If INA 274A(h)(3) is discredited, as suggested by the Fifth Circuit in Texas v. USA for the purpose of justifying a grant of EADs under DAPA ,  many other justifications for providing an employment authorization document (EAD) would collapse.  The reason the EAD regulations are principally located in 8 CFR 274a is that the authority for most of them has always been thought to stem from INA 274A(h)(3). While many of the 8 CFR 274a.12(a) EADs have some specific statutory authorization outside of INA 274A(h)(3), which is why they exist incident to status, many 8 CFR 274a.12(c) EAD categories are based on INA 274A(h)(3) in just the same way that  8 CFR 274a.12(c)(14) EADs for deferred action are.  People with pending adjustment applications under 8 CFR 274a.12(c)(9), including the “class of 2007” adjustment applicants, pending cancellation applications under 8 CFR 274a.12(c)(10), pending registry applications under 8 CFR 274a.12(c)(16), all get EADs based on that same statutory authority.  Even the B-1 domestic workers and airline employees at 8 CFR 274a.12(c)(17) have no separate statutory authorization besides 274A(h)(3). Some (c) EADs have their own separate statutory authorization, such as pending-asylum 8 CFR 274a.12(c)(8) EADs with their roots in INA 208(d)(2), and 8 CFR 274a.12(c)(18) final-order EADs with arguable roots in INA 241(a)(7), but they are in the minority.  And even some of the subsection (a) EADs have no clear statutory basis outside 274A(h)(3), such as 8 CFR 274a.12(a)(11) for deferred enforced departure.  If the Fifth Circuit’s theory is taken to its logical conclusion, it would destroy vast swathes of the current employment-authorization framework.

It is thus important for the Supreme Court to uphold the Administration’s authority to implement DAPA and extended DACA as part of its broad authority to exercise prosecutorial discretion, and its authority to grant EADs under INA 274A(h)(3). While on first brush Texas v. USA is not a preemption case, the  Supreme Court in Arizona v. United States, 132 S.Ct. 2492, 2499 (2012), articulated the federal government’s authority  to exercise prosecutorial discretion rather elaborately, which can be deployed to preclude states from opposing this federal authority under dubious standing theories:

A principal feature of the removal system is the broad discretion exercised by immigration officials…… Federal officials, as an initial matter, must decide whether it makes sense to pursue removal at all. If removal proceedings commence, aliens may seek asylum and other discretionary relief allowing them to remain in the country or at least to leave without formal removal….

Discretion in the enforcement of immigration law embraces immediate human concerns. Unauthorized workers trying to support their families, for example, likely pose less danger than alien smugglers or aliens who commit a serious crime. The equities of an individual case may turn on many factors, including whether the alien has children born in the United States, long ties to the community, or a record of distinguished military service. Some discretionary decisions involve policy choices that bear on this Nation’s international relations. Returning an alien to his own country may be deemed inappropriate even where he has committed a removable offense or fails to meet the criteria for admission. The foreign state maybe mired in civil war, complicit in political persecution, or enduring conditions that create a real risk that the alien or his family will be harmed upon return. The dynamic nature of relations with other countries requires the Executive Branch to ensure that enforcement policies are consistent with this Nation’s foreign policy with respect to these and other realities.

The Ninth Circuit, on the eve of oral arguments to be presented before the Supreme Court on April 18, 2016 in United States v. Texas, has provided added impetus for the upholding of President Obama’s deferred action programs. A grant of an EAD under DACA or DAPA is not any less than a grant of EAD to an applicant seeking lawful status through an adjustment of status application or by seeking cancellation of removal. All of these EADs stem from INA 274A(h)(3), which ought to be upheld as a legal basis for the executive to grant work authorization to noncitizens as part of its discretionary authority. Moreover,  it should also not make a difference whether the EAD stems from an application that would ultimately result in permanent residence, such as adjustment of status or cancellation of removal, or through a grant of deferred action. The executive branch has equal authority to grant adjustment of status or deferred action, provided certain conditions are met, from which separately ensue EADs to a noncitizen. The latest Ninth Circuit ruling in Arizona Dream Coalition could not have made this clearer.

David Isaacson

A QUICK KNOCKOUT: SHERIFF JOE ARPAIO’S LAWSUIT AGAINST PRESIDENT OBAMA’S EXECUTIVE ACTION DISMISSED FOR LACK OF STANDING

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By  David A. Isaacson

On November 20, 2013, the very same day that President Obama announced a series of executive actions aimed at “Fixing Our Broken Immigration System”, a lawsuit against the newly announced executive actions and against the existing Deferred Action for Childhood Arrivals program (DACA) was filed by Maricopa County Sheriff Joe Arpaio.  Sheriff Arpaio’s name may be familiar to readers of this blog: among other lowlights of a long and controversial career, he has been found by the Justice Department to have engaged in “unconstitutional policing” targeting Latinos, and was similarly found by a federal judge in the private class-action lawsuit Ortega Melendres v. Arpaio to have engaged in unconstitutional racial profiling.  Barely a month after Sheriff Arpaio’s lawsuit was filed, on December 23, 2013, the Arpaio v. Obama lawsuit was dismissed by a Memorandum Opinion and Order issued by Judge Beryl A. Howell of the U.S. District Court for the District of Columbia.  
In his lawsuit, Sheriff Arpaio sought to challenge DACA as originally implemented, DACA as revised by the November 20 announcement, and the new Deferred Action for Parental Accountability program that will provide deferred action similar to DACA to some parents of U.S. citizens and Lawful Permanent Residents.  Judge Howell’s Memorandum Opinion found that Sheriff Arpaio lacked standing to sue regarding any of these programs, for a number of reasons. 
As Judge Howell explained in her Memorandum Opinion, the Supreme Court has held that the power of federal courts under Article III of the U.S. Constitution to hear “Cases” and “Controversies” is restricted to instances in which the plaintiff meets certain requirements of standing to sue.  

The Supreme Court has explained, “the irreducible constitutional minimum of standing contains three elements.” [Lujan v.] Defenders of Wildlife, 504 U.S. [555,] 560 [(1992)]. First, the plaintiff must have suffered an “injury in fact,” i.e., “an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical.” Id. (citations and internal quotation marks omitted). Second, there must be “a causal connection between the injury and the conduct complained of,” i.e., the injury alleged must be fairly traceable to the challenged action of the defendant. Id. Finally, it must be “likely” that the complained-of injury will be “redressed by a favorable decision” of the court. Id. at 561. In short, “[t]he plaintiff must have suffered or be imminently threatened with a concrete and particularized ‘injury in fact’ that is fairly traceable to the challenged action of the defendant and likely to be redressed by a favorable judicial decision.” Lexmark Int’l, Inc. v. Static Control Components, Inc., 134 S. Ct. 1377, 1386 (2014).

Sheriff Arpaio, Judge Howell found, failed to satisfy all three of these requirements.  First of all, he had not properly alleged any injury in fact to him resulting from the challenged deferred action programs.  To the extent that he sued in his personal capacity, and claimed only the interest of every citizen in governmental compliance with the law, Sheriff Arpaio was asserting a generalized grievance of the sort that the Supreme Court has consistently held not to confer standing.  His assertion of past threats against him by undocumented immigrants was not a basis for standing because those threats, besides being in the past, were not traceable to the challenged deferred action programs and would not be redressed by any action the court might take against those programs. As for Sheriff Arpaio’s claims in his official capacity as Sheriff of Maricopa County, the injuries he asserted there as well, having to do with alleged increases in workload, were generalized to the point of not being cognizable, and extremely speculative to boot: he alleged that the deferred action programs would attract new undocumented immigrants into Maricopa County, and yet the programs by their own terms applied only to those who had already been present in the United States prior to January 1, 2010.
Nor did Sheriff Arpaio’s complaint demonstrate causation and redressability, the other key requirements of standing.  As Judge Howell’s Memorandum Opinion explained, “it is the actions taken by undocumented immigrants—migrating to Maricopa County and committing crimes once there—that are purportedly the direct cause of the plaintiff’s injury.”  Arpaio v. Obama slip op. at 22.  But those actions would not be authorized by the challenged government programs.  Indeed, by enabling federal authorities to focus their resources on actual criminals, the challenged deferred action programs might help rather than harm Maricopa County:  

In the present case, the challenged agency action—the ability to exercise enforcement discretion to permit deferred action relating to certain undocumented immigrants—does not authorize the conduct about which the plaintiff complains. The challenged deferred action programs authorize immigration officials to exercise discretion on removal; they do not authorize new immigration into the United States (let alone Maricopa County); they do not authorize undocumented immigrants to commit crimes; and they do not provide permanent status to any undocumented immigrants eligible to apply for deferred action under any of the challenged programs. Contrary to the plaintiff’s assertion that a consequence of the challenged programs will be an increase in illegal conduct by undocumented immigrants and an increase in costs to the Maricopa County Sheriff’s office, these programs may have the opposite effect. The deferred action programs are designed to incorporate DHS’s enforcement priorities and better focus federal enforcement on removing undocumented immigrants committing felonies and serious misdemeanor crimes. Since the undocumented immigrants engaging in criminal activity are the cause of the injuries complained about by the plaintiff, the more focused federal effort to remove these individuals may end up helping, rather than exacerbating the harm to, the plaintiff.

Arpaio v. Obama slip op. at 24.  Sheriff Arpaio, the court found, had “submitted no evidence showing that the challenged deferred action programs are, or will be, the cause of the crime harming the plaintiff or the increase in immigration, much less “substantial evidence.””  Id. at 25.
Moreover, given the limited resources available to the executive branch for removal of noncitizens from the United States, Sheriff Arpaio also could not establish that his alleged injuries would be redressed by the relief he requested, an injunction against the challenged deferred action programs.  Such an injunction, after all, 

w[ould] not grant additional resources to the executive branch allowing it to remove additional undocumented immigrants or to prevent undocumented immigrants from arriving. Thus, the plaintiff’s complaint regarding the large number of undocumented immigrants and the limited number of removals w[ould] not change as a result of any order by the Court in this litigation. 

Given Sheriff Arpaio’s lack of standing to bring the suit, Judge Howell found herself compelled to dismiss the suit for lack of jurisdiction.  She did, however, go on to detail, in the course of addressing Sheriff Arpaio’s request for a preliminary injunction, some of the other obstacles that his lawsuit faced as well.  Among those obstacles were the fact that “the challenged deferred action programs continue a longstanding practice of enforcement discretion regarding the Nation’s immigration laws,” that they “still retain provisions for meaningful case-by-case review,” and that they “merely provide guidance to immigration officials in the exercise of their official duties.”  Arpaio v. Obama slip op. at 31-32.  For all of these reasons, and given the absence of irreparable harm to Sheriff Arpaio and the public interest weighing against a preliminary injunction Judge, Judge Howell denied the motion for a preliminary injunction and dismissed the suit.
For any readers who may be disturbed that a case of this nature would be dismissed before entirely reaching the merits, it is worth noting that the requirements of standing have played an important role in other controversial areas of law as well.  It was these requirements that led the Supreme Court to rule in Hollingsworth v. Perry, 133 S.Ct. 2652 (2013), that proponents of a California initiative prohibiting the marriage of same-sex couples did not have standing to appeal a decision striking down the statute enacted by that initiative where the governor and Attorney General of California did not appeal.  It was also those same standing requirements that led the Supreme Court to order dismissal of a lawsuit by environmentalists seeking to overturn an administrative rule that limited application of the Endangered Species Act in Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992).  Whatever one thinks of modern standing doctrine, it has clearly gored the proverbial oxen of plaintiffs of all ideological persuasions, immunizing government actions across the political spectrum from judicial review at the behest of bystanders without a sufficient concrete stake in a particular matter.
Sheriff Arpaio’s lawsuit against the President’s executive actions may not be the last to founder for lack of standing.  As explained in a recent post on this blog by Gary Endelman and Cyrus D. Mehta, even the lawsuit filed in December 2013 by a group of states led by Texas to challenge President Obama’s immigration initiatives is likely to fail for lack of standing.  The United States’ Memorandum in Opposition to the states’ request for a preliminary injunction in that litigation also sets out in great detail why standing is lacking there.  The states’ lawsuit, like Sheriff Arpaio’s, is also deeply problematic on the merits, for the reasons explained in that same blog post and in the United States’ Memorandum in Opposition.  For both reasons, the Texas lawsuit may soon meet the same fate as Sheriff Arpaio’s.
Cyrus Mehta

NIGHTMARE IN ARIZONA: GOVERNOR BREWER’S NONSENSICAL AND MEAN-SPIRITED EXECUTIVE ORDER AGAINST DREAMERS

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On August 15, 2012, the day that the Consideration of Deferred Action For Childhood Arrivals programs (DACA) took effect, thousands of young undocumented people lined up at legal assistance clinics with hope and joy. They got to know whether they were eligible to file an application under DACA, and by filing an application, their deportation would be deferred and they would also obtain employment authorization.

It was extremely gratifying to be an immigration attorney that day volunteering at a DACA legal assistance clinic organized by the New York Immigration Coalition, among others. I could see in the twinkle in the eyes of each potential youth applicant when told that he or she could file under DACA. That twinkle revealed a whole new world of opportunity opening up. The sky seemed to be the limit, which before the June 15, 2012 announcement was simply unimaginable.

I could not help broadcast this tweet, @cyrusmehta.com:

To see hope and joy in the faces of 100s lining up at pro bono #DACA clinic of #NYIC+ #AILA NY makes being an #immigration attorney gratifying

As I was basking in the glow of that day and returning home on the New York subway, I saw on my Twitter feed that Governor Brewer of Arizona passed a mean spirited and hateful executive order that evening. According to the executive order, since deferred action does not confer lawful status or lawful presence, the alien granted employment authorization under DACA continues to be unlawfully present, and thus cannot avail of benefits in Arizona, including a driver’s license. I love Twitter because I can instantly express my thoughts, and hopefully there is an audience. These were my new tweets, quite different from the prior exuberant one, in reaction to the horror of Brewer’s executive order:

Brewer’s executive order is unlawful & wicked – there are many who are allowed to remain without lawful status. When is she being sued? #DACA

Brewer’s mean spirited exec order against granting #DACA applicants AZ driver’s licenses will help Obama in elections, http://bit.ly/N4LE8E

I write this blog to expand on my impetuous tweets of last evening.

First, deferred action has existed for several decades. Many have been granted deferred action, including John Lennon. Prior the announcement of DACA, non-citizens who have demonstrated extenuating circumstances, such as medical emergencies or who have lost parents, have been granted deferred action. In recent times, battered spouses, crime victims and widows/ers of US citizens have also been granted deferred action. There are other non-ctiizens who may not have lawful status but are allowed to remain in the US. These include people who are presently in removal proceedings. Even those who have been ordered removed, such as through the grant of withholding of removal (based on persecution in their home countries), can remain in the US and obtain work authorization. Moreover, due to a quirky split in jurisdiction involving arriving aliens between Immigration Court and USCIS, arriving aliens cannot file defensive adjustment applications in Immigration Court, but have to file them with the USCIS while an Immigration Judge can still order them removed. If the adjustment application is approved, they can become lawful permanent residents despite the removal order. How will Brewer’s executive order be able to differentiate between each of these categories of people who have been allowed to remain in the US?

Second, the grant of deferred action stops the accrual of unlawful presence. However, unlawful presence is different from unlawful status. Governor Brewer’s executive order does not seem to understand the difference. Unlawful presence is relevant, according to the USCIS DACA guidance, only with respect to determining whether one is inadmissible under the 3 and 10 year bars. Unlawful presence has nothing to do with status or the ability to remain in the US. There are situations when one may not be in lawful status and yet not be accruing unlawful presence since they are in a “period of stay authorized by the Attorney General.” A classic example is someone who entered lawfully as a tourist, fell in love with a US citizen and married him. She filed an adjustment of status application based on the US citizen spouse’s green card sponsorship. She is allowed to remain in the US while waiting for the green card, although her underlying tourist visa has expired. Such a person may not be in lawful status but is in a “period of stay authorized by the Attorney General” and is also not accruing unlawful presence. Governor Brewer’s executive order does not seem to have grasped any of these distinctions.

Third, in Arizona v. USA, the Supreme Court acknowledged the federal government’s role in exercising prosecutorial discretion. As noted in a prior blog I wrote with Gary Endelman, Justice Kennedy writing for the majority in that decision noted:

A principal feature of the removal system is the broad discretion exercised by immigration officials…… Federal officials, as an initial matter, must decide whether it makes sense to pursue removal at all. If removal proceedings commence, aliens may seek asylum and other discretionary relief allowing them to remain in the country or at least to leave without formal removal….

Discretion in the enforcement of immigration law embraces immediate human concerns. Unauthorized workers trying to support their families, for example, likely pose less danger than alien smugglers or aliens who commit a serious crime. The equities of an individual case may turn on many factors, including whether the alien has children born in the United States, long ties to the community, or a record of distinguished military service. Some discretionary decisions involve policy choices that bear on this Nation’s international relations. Returning an alien to his own country may be deemed inappropriate even where he has committed a removable offense or fails to meet the criteria for admission. The foreign state maybe mired in civil war, complicit in political persecution, or enduring conditions that create a real risk that the alien or his family will be harmed upon return. The dynamic nature of relations with other countries requires the Executive Branch to ensure that enforcement policies are consistent with this Nation’s foreign policy with respect to these and other realities.

Arizona v. USA, supra, Slip Op. at pages 4-5.

Although the Supreme Court struck down all of the other provisions of Arizona’s SB 1070, it narrowly upheld 2(B), the “show me your papers” law, which requires state officers to make “a reasonable attempt….to determine the immigration status” of any person they stop, detain, or arrest on some other legitimate basis if “reasonable suspicion exists that the person is an alien and is unlawfully present in the United States.” Section 2(B) further provides that “[a]ny person who is arrested shall have the person’s immigration status determined before the person is released.” The Supreme Court upheld the provision, for now, since it had not taken effect, but cautioned that a person’s detention under an Arizona provision cannot be prolonged because the state cannot readily determine this person’s immigration status.

Governor Brewer, through her executive order, has perhaps unwittingly opened up another challenge to 2(B). By not recognizing that a grant of deferred action to remain lawfully and work in the US, it will be disregarded by Arizona’s law enforcement personnel, such as by the notorious Sheriff Joe, and his troopers, when he stops a non-citizen for jay walking and suspects that a person is unlawfully present in the US. Even if this DREAMer shows Sherrif Joe an employment authorization that was issued through a DACA filing, it could be disregarded and the person’s detention could be needlessly prolonged even though the federal government has allowed this person to lawfully remain in the US and no longer considers him unlawfully present for purposes of the 3 or 10 year bar.

Finally, it remains to be seen whether Brewer’s executive order will be politically viable. The GOP may see more Latino voters flee by the November elections, and the future of the party without support from Hispanics and minorities looks grim. Moreover, the granting of status to undocumented youth under the proposed DREAM Act, with promise to do well and contribute to the US, has broad support among the American people. Governor Brewer will likely find herself on the wrong side of history, only to be relegated forever in its garbage heap.

Cyrus Mehta

Dreaming in Arizona: Can Prosecutorial Discretion Co-Exist With Show Me Your Papers?

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By Gary Endelman and Cyrus D. Mehta

In our blog, From Madison to Morton: Can Prosecutorial Discretion Trump State Action In USA v. Arizona?, we speculated whether the federal government’s ability to decide not to remove certain non-citizens from the US would be its trump card in Arizona v. USA, 567 U.S ___ (2012). A few days prior to Arizona v. USA, the Obama administration announced deferred action for young persons via a June 15, 2012 memorandum, which will prevent the deportation of over a million people who fell out of status of no fault of their own while Arizona’s SB 1070 aims at driving away these very people through an attrition policy. These young people who will benefit under administrative deferred action would have otherwise been eligible under the DREAM Act, which narrowly failed to pass Congress in December 2010.

We were almost correct. In a 5-3 ruling (with Justice Kagan recusing), the Supreme Court invalidated most of the provisions of SB 1070 on the grounds that they were preempted by federal law such as criminalizing the failure to carry registration documents (section 3), criminalizing an alien’s ability to apply for or perform work (section 5(c)), and authorizing state officers to arrest a person based on probable cause that he or she has committed a removable offense (section 6). On the other hand, the Supreme Court, 8-0, narrowly upheld section 2(B), the “show me your papers” law,  which requires state officers to make “a reasonable attempt….to determine the immigration status” of any person they stop, detain, or arrest on some other legitimate basis if “reasonable suspicion exists that the person is an alien and is unlawfully present in the United States.” Section 2(B) further provides that “[a]ny person who is arrested shall have the person’s immigration status determined before the person is released.”

Before we analyze the Court’s narrow upholding of section 2(B) and how it would impact the federal government’s prosecutorial discretion policies, the following extract from Justice Kennedy’s majority opinion acknowledging the federal government’s ability to exercise prosecutorial discretion is worth noting:

A principal feature of the removal system is the broad discretion exercised by immigration officials…… Federal officials, as an initial matter, must decide whether it makes sense to pursue removal at all. If removal proceedings commence, aliens may seek asylum and other discretionary relief allowing them to remain in the country or at least to leave without formal removal….

Discretion in the enforcement of immigration law embraces immediate human concerns. Unauthorized workers trying to support their families, for example, likely pose less danger than alien smugglers or aliens who commit a serious crime. The equities of an individual case may turn on many factors, including whether the alien has children born in the United States, long ties to the community, or a record of distinguished military service. Some discretionary decisions involve policy choices that bear on this Nation’s international relations. Returning an alien to his own country may be deemed inappropriate even where he has committed a removable offense or fails to meet the criteria for admission. The foreign state maybe mired in civil war, complicit in political persecution, or enduring conditions that create a real risk that the alien or his family will be harmed upon return. The dynamic nature of relations with other countries requires the Executive Branch to ensure that enforcement policies are consistent with this Nation’s foreign policy with respect to these and other realities.

 Arizona v. USA, supra, Slip Op. at pages 4-5.

It is indeed unfortunate that despite noting the role of the federal government in formulating immigration policy, the Court did not, at least for the moment, invalidate 2(B), which essentially legalizes racial profiling. See US v. Brignoni-Ponce, 422 US 873 (1975) (Mexican ancestry on its own cannot be an articulable fact to stop a person). The Court was obviously mindful of concerns relating to racial profiling, but the case that the United States brought against Arizona is more about whether federal immigration law preempts 2(B) and the other provisions of SB 1070. Both conservative and liberal justices did not think so since 2(B) was not creating a new state immigration law as the other invalidated provisions did. All that 2(B) does is to allow Arizona police officers to determine if someone was unlawfully present in the context of a lawful stop by inquiring about that person’s status with the federal Department of Homeland Security, and such communication and exchange of information has not been foreclosed by Congress.

The question is whether 2(B) will interfere with the federal government’s dramatic new prosecutorial initiative to not deport over a million young undocumented people if they met certain criteria. The June 15 memorandum on deferred action directs the heads of USCIS, CBP and ICE to exercise prosecutorial discretion, and thus grant deferred action, to an individual who came to the United States under the age of 16, has continuously resided in the US for at least 5 years preceding the date of the memorandum and was present in the US on the date of the memorandum, and who is currently in school, or has graduated from school or obtained a general education certificate, or who is an honorably discharged veteran of the Coast Guard or Armed Forces of the United States. Moreover, this individual should not be above the age of thirty and should also not have been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise poses a threat to national security or public safety. This directive further applies to individuals in removal proceedings as well as those who have already obtained removal orders. The grant of deferred action also allows the non-citizen to apply for employment authorization pursuant to an existing regulation, 8 CFR § 274a(c)(14).

Even though the new deferred action policy has not been implemented, the memorandum instructs ICE and CBP to refrain from placing qualified persons in removal proceedings or from removing them from the US. How does this very explicit instruction to ICE and CBP officials square with Arizona’s section 2(B)?  While Justice Scalia, who fiercely dissented and blasted the Obama administration from the bench, saw no need for preemption of any of Arizona’s provisions based on the federal government’s ability to exercise prosecutorial discretion, the majority, fortunately, were more mindful of this factor. Suppose a young DREAMer who prima facie qualifies under the deferred action program was stopped for jaywalking in Tuscon, and the Arizona police officer had a reasonable suspicion that her presence was unlawful, would it be reasonable for the police officer to detain this person even though she would not ordinarily be detained for the offense of jay walking? Even if the Arizona officer could query ICE about her status, how long would it take for ICE to respond? Moreover, even though she may qualify for the deferred action program, how would ICE be able to tell if there is no record of her application at all? DHS has yet to even create an application process, but it has instructed its officers from immediately refraining placing such persons in removal proceedings or removing them from the US. Even once an application is lodged, it may take weeks or months before the DHS is able to grant deferred action. While this person should not be apprehended by the federal government under its deferred action policy, Arizona could potentially hold her.

But not for long.The majority explicitly held that 2(B) should be read to avoid the hold of a person solely to verify his or her immigration status. The Court noted in connection with the jaywalker hypothetical, “The state courts may conclude that unless the person continues to be suspected of some crime for which he may be detained by state officers, it would not be reasonable to prolong the stop for the immigration inquiry.” Slip Op. at 22 (citation omitted). Even in a case where a person is held in state custody for a non-immigration offense, the Court cautioned that the delay in obtaining verification from the federal government should not be a reason to prolong that person’s detention. The Court also suggested that 2(B) ought to be “read as an instruction to initiate a status check every time someone is arrested…rather than a command to hold the person until the check is complete no matter the circumstances. Slip Op. at 23. This temporal limitation harkens back to the Court’s rationale for justifying warrantless stops by roving patrols in the border regions with Mexico in Brignoni-Ponce:

The intrusion is modest. The Government tells us that a stop by a roving patrol “usually consumes no more than a minute.” Brief for United States 25. There is no search of the vehicle or its occupants, and the visual inspection is limited to those parts of the vehicle that can be seen by anyone standing alongside…(citation omitted) . According to the Government ;”[a]ll that is required of the vehicle’s occupants is a response to a brief question or two and possibly the production of a document evidencing a right to be in the United States.  422 US at 880.

Finally the Court noted that its opinion did not foreclose other preemption and constitutional challenges as the law as interpreted and applied after it goes into effect. This is particularly the case if delay in the release of a detainee flowed from the requirement to check their immigration status. Indeed, it is only if such status verification took place during a routine stop or arrest and could be accomplished quickly and efficiently could a conflict with federal immigration law be avoided.

As for Justice Scalia, who concurred with the majority on 2(B), but also dissented as he would have upheld all of the other provisions, it is ironic that he is willing to have Arizona add to penalties imposed by Congress but not willing to let the President, a co-equal branch whose role in federal immigration policy is certainly less subject to challenge than that of the states, relieve the harsh impact of such penalties for a discretely delineated protected class. It is also ironic that theAdministration is actively moving ahead to find an administrative solution to our broken immigration system by granting DREAM act relief while Arizona seeks to uphold its right to put in place an enforcement mechanism it may not seek to enforce, if only to avoid further constitutional challenge.

It does not require a crystal ball to imagine that 2(B), if enforced,  will cause mayhem for young DREAMers and their ability to remain in the US through further administrative remedies, despite the Court’s narrow upholding of the provision. It will be difficult, if not impossible, for ICE to communicate with certainty to overzealous Arizona officials like Sheriff Joe that a young person who qualifies for the deferred action program is not unlawfully present. In fact, such a person continues to be unlawfully present even though he or she may qualify for deferred action presently, prior to the filing of the application. Moreover, even after an application is filed, it is not clear how long DHS will actually take to grant deferred action and such a person will still remain unlawfully present during the pendency of the application. Although the grant of deferred action stops unlawful presence for purposes of the federal 3-10 year bars to reentry, it is not clear whether the Arizona definition of lawful presence would recognize someone who has an outstanding removal order but who has also been granted deferred action.  This situation, and many others, such as a potential US citizen being detained for being suspected of being unlawfully present, will result in further challenges to 2(B), which hopefully, the next time around, will be successful.

The Court upheld 2(B) because there was no evidence that Arizona was yet enforcing it. Indeed, for all practical purposes, it had yet to go into effect. Given the natural judicial reluctance to fray the bonds of federalist comity, the Supreme Court stayed its hand for now so that state courts could determine whether SB 1070 could be consistently administered within the straitjacket of the Supreme Court’s ruling. So, in this sense, the issue was not ripe for a determination on pre-emption.  When will this change? How many will have to suffer the consequences before the Supreme Court will act? For this reason, knowing what the future will bring, the nation and its liberties would have been better served if 2(B) had been invalidated.   It is hard to imagine how Section 2(B) can survive if and when Arizona tries to make it come alive. Let us not forget that, despite Arizona Governor Brewer’s protestation to the contrary, the real guts of this law, the warrantless arbitrary arrest powers granted by Section 6, did not survive today. The rule of law did. The status check authorized by Section 2(B) can only happen after there is probable cause to believe that a non-immigration law violation has taken place, and they happen very quickly so as not to prolong any stop or detention. For all our concerns, and despite our fondest hopes for a more sweeping victory, the Supreme Court has reaffirmed our oldest national tradition, that here in America, there is still much room to dream- in Arizona and beyond.