New America Media, News Report, Valeria Fernández, Posted: Jul 23, 2010

PHOENIX, Ariz.—A week before Arizona’s controversial new immigration law is slated to go into effect, its immediate future rests in the hands of one federal judge. If the judge does not grant an injunction, halting the implementation of the law, then as of next Thursday, July 29, it will be a state crime to be undocumented in Arizona.

In two separate hearings in a Phoenix courtroom on Thursday, attorneys representing a broad coalition of civil rights groups and the U.S. Department of Justice argued that portions of SB 1070 need to be enjoined because they usurp the federal government’s authority to regulate immigration law.

Defense attorneys said Arizona only wants to do its part when it comes to an issue that has gotten out of control in the border state, and the law does not conflict with federal immigration policies but rather allows for cooperation.

Judge Susan Bolton peppered attorneys with probing questions aimed at dissecting SB 1070, section by section: How can the police determine who is removable from the country and who is not? Would SB 1070 require police to hold someone indefinitely until they determine they are in the country illegally? What would happen to people who don’t have documents but are in the process of applying for a humanitarian visa? Why can’t a state create its own policy to have uniformity in the way police departments handle immigration?

The sticking point for the judge seemed to be the fact that Arizona had created a new state crime of being in the country illegally, conflicting with previous Supreme Court decisions that said states couldn’t have their own immigration registration systems.

Yet, Bolton was equally tough with her questions for attorneys on both sides of the argument.

Some legal observers say Bolton may issue a decision before July 29, when the law is set to take effect. But her answer may not be a simple yes or no. Bolton could choose to enjoin certain provisions of the Arizona law.

During the first hearing on Thursday morning, attorneys representing the Mexican American Legal Defense and Educational Fund (MALDEF) and the American Civil Liberties Union (ACLU) argued that the state law would result in racial profiling, and that it would maximize the possibility that someone would be stopped and questioned for a simple infraction.

John Bouma, an attorney representing the state of Arizona, said the law included provisions against profiling, and said the plaintiffs’ claims were based on speculation and hypothetical situations.

Nina Perales, southwestern regional counsel for MALDEF, said they did not need to wait for SB 1070 to go into effect in order to prove that the fear of racial profiling was justified. For example, she said, the office of Maricopa County Sheriff Joe Arpaio, which has used minor traffic stops as a way to question people about their immigration status, is currently under investigation for similar violations.

Attorneys for the civil rights groups argued that by creating a new state crime of being in the country illegally, Arizona was circumventing federal law.

“It criminalizes conduct that Congress specifically chose not to make criminal,” said Omar Jadwat, an attorney with the ACLU Immigrants’ Rights Project.

Attorneys argued that this could open the door for people who are applying for a visa on humanitarian grounds to be arrested for not having documentation.

They said the law also would violate people’s civil rights by allowing police to detain them for an uncertain period of time until they could prove that they are in the country legally.

Bouma argued that no one would be held indefinitely, since the issue could be resolved simply by dialing a call center that U.S. Immigration and Customs Enforcement (ICE) has set up for law enforcement to inquire about someone’s immigration status.

Bouma reaffirmed that Arizona was only seeking to help the federal government by enforcing laws that have gone un-enforced due to a broken immigration system.

In a separate hearing in the afternoon, attorneys for the federal government said that while they have welcomed cooperation in the form of 287(g) agreements between the Department of Homeland Security (DHS) and various localities, it was troubling that Arizona was making it mandatory.

They argued that it was up to the federal government, not the state, to dictate priorities, and that this law opened the door to other localities taking similar actions on an issue that involves foreign relations and national security policy.

“What the state has done is put between the federal government and the state this mandate, that is different from the priorities of the federal government [when it comes to immigration],” said Edwin Kneedler, the deputy solicitor general. “The problem is that the state has adopted its own immigration policy enforcement.”

Attorneys for the federal government argued that if officers asked the immigration status of every single person they stopped, detained or arrested, they could flood the ICE calling center, and interfere with other priorities for ICE.

At times, both hearings moved away from legal analysis and delved into the controversy over illegal immigration in the state.

Attorney Bouma showed the judge a picture of a sign 80 miles outside of Phoenix that the federal government had put up to warn about smuggling in the area and to urge people to call 911 if they saw suspicious activity. He joked that on the one hand, the federal government wants to tell the state that illegal immigration is not its problem, and on the other hand, it expects it to take care of it.

“There’s no possible way an injunction could be in the public interest,” he said.

During both hearings, Judge Bolton asked about several provisions in SB 1070 that she said “mystify” her. One of them makes it a state crime to harbor or transport an undocumented immigrant, while committing another crime. Plaintiffs said this opens the door for anyone to be charged, but defense attorney Bouma argued that it was directed at human smugglers.

Outside of the courtroom, hundreds of people protested against the law and several dozen rallied in support of it.

Seven individuals walked into the middle of the street, holding a large banner with the message: “STOP SB 1070, we will not comply.” After the police told them at least three times that they needed to move, they were arrested on misdemeanor charges of obstructing a public thoroughfare.

Carlos Garcia, one of the individuals who was arrested, read a statement from the PUENTE movement, a group of immigrant rights advocates that has been a strong opponent of Arizona’s new law, although it did not plan the action in the street.

“We will not comply with immoral, racist laws. We cannot obey laws against humanity. If SB 1070 is not stopped by next week, we will be forced to break an unjust law.” He added, “The Department of Justice lawsuit is a step in the right direction, but we expect President Obama to use his executive authority to absolutely stop the implementation of SB 1070. We expect him to take responsibility, for ever-opening the door that led to SB 1070 with programs like the 287(g). He must end this human rights’ crisis and make clear once and for all that local police should not enforce federal immigration law.”

All seven individuals were released Thursday evening with a notice to appear in court.

More civil disobedience actions are planned in the coming days before the new law is expected to go into effect.