Controversial SB1070 heads to appeals court

The state of Arizona is once again at the center of the immigration debate as it defends the controversial SB1070 in federal court.

At the Ninth Circuit Court of Appeals in San Francisco in early November, representatives from Arizona argued that some of the stricter portions of the law should be reinstated after a judge blocked them in July.

SB1070 allows law enforcement officers to check a person for identification if they suspect he or she is in the country illegally. Opponents of the law contend that it encourages racial profiling and subjects people to unlawful searches and interrogations when they have not obviously committed a crime. U.S. District Court Judge Susan Bolton essentially agreed with this claim when she blocked parts of the law in July, saying, “Race, alienage, or national origin discrimination was a motivating factor in the enactment of SB1070.”

She said that while Arizona Gov. Jan Brewer was correct in pointing out that while the plaintiffs arguing against the law say that it will harm them in the future, but has not harmed them yet, “the threat of future harm is sufficiently imminent.”

Judge Bolton did rule in favor of Brewer’s arguments in several cases, including a First Amendment claim against the bill and an argument that a driver’s license might not be proof enough of U.S. citizenship.

In federal appeals court this month, Arizona representatives sought to overturn this ruling. Arizona’s lawyer, John Bouma, argued that Arizona is trying to curb a federal problem by stopping the flow of undocumented immigrants – a task that he said the federal government is not sufficiently tackling.

An appeals judge questioned whether it was within a state’s right to question if the federal government is doing a sufficient job of enforcing a law, and then to enforce those laws itself if it did find the federal government was lacking. “For instance, if I don’t pay my income tax to the federal government, can California come along and sue me for not paying my income taxes?” the judge asked.

There is no timetable for when the Ninth Circuit will complete its ruling, but Gov. Brewer has said that she will appeal the case to the U.S. Supreme Court if the court does not appeal in favor of the bill.

Stewart Rabinowitz is President of Rabinowitz & Rabinowitz, P.C. Mr. Rabinowitz is Board Certified in Immigration and Nationality Law by the Texas Board of Legal Specialization. To contact a Dallas immigration lawyer or Dallas immigration attorney visit Rabinowitzrabinowitz.com