PHOENIX -- Gov. Jan Brewer -- or at least her attorneys -- will get a chance to argue that Arizona should be allowed to enforce a law aimed at those who harbor illegal immigrants.
The 9th Circuit Court of Appeals has scheduled an April 2 hearing to decide whether to overturn a trial judge's conclusion last year that the law, a provision of the controversial SB 1070 approved by lawmakers, is illegal. Brewer contends that U.S. District Court Judge Susan Bolton got it wrong.
Brewer is trying to salvage some parts of the 2010 law that she signed in front of a live audience on national television which has since been picked apart by federal courts.
In a ruling last year, the U.S. Supreme Court already has invalidated three sections of the statute.
The justices did agree to let the state require police to ask suspected illegal immigrants for proof of their legal status. But even there, the justices warned that they might revisit the issue if there is evidence that is being enforced in a discriminatory manner.
And another provision aimed at day laborers also is on hold awaiting a decision from the appellate judges.
This law would create a separate crime for someone who is violating any other law to also transport or harbor an illegal immigrant, or to encourage or induce someone to illegally come to or live in the state. The law requires that someone knows the person is in this country illegally or recklessly disregard that fact.
Gubernatorial press aide Matthew Benson said the law is needed.
"We have a significant issue in Arizona with the transport and harboring of illegal immigrants,' he said, saying it affects communities across the state.
"It leads to 'drop houses' and blackmail and torture and all different kind of crimes,' Benson continued. "So it's appropriate that the state ought to be able to combat an issue that's a public safety threat to our citizens.'
Benson also said that there must be some reason to believe the law is legal, pointing out the twists and turns the litigation has taken.
Attorneys for the Obama administration had argued in 2010 that the provision conflicts with the exclusive right of the federal government to regulate immigration. At that time, Bolton rejected that argument.
"(The section) does not attempt to regulate who should or should not be admitted into the United States, and it does not regulate the conditions under which legal entrants may remain in the United States,' she wrote in rebuffing the federal government.
Last year, though, Bolton reversed course, concluding that this is strictly a federal issue.
"It is a federal crime to transport or move an unlawfully present alien within the United States; to conceal, harbor, or shield an unlawfully present alien from detection; or to encourage or induce a person to come to, enter or resident in the United States without authorization.' the judge wrote. And she pointed out federal law also makes it a crime to aid in any of these acts.
"While state officials are authorized to make arrests for these violations of federal law, the federal government retains exclusive jurisdiction to prosecute them,' Bolton ruled.
Benson said just because something is a violation of federal laws does not preclude the state from having its own statutes to deal with the same problems. He said the Arizona statutes "complements' federal law.
Bolton, in her ruling, rejected that contention.
"Permitting the state to impose its own penalties for the federal offenses here would conflict with the careful framework Congress adopted,' the judge wrote.
Bolton said that is precisely why the U.S. Supreme Court last year voided three other sections of SB 1070 as preempted by federal law:
- requiring immigrants carry federal registration papers;
- making it a state crime for someone who is undocumented to seek work or hold a job in Arizona;
- allowing state and local police to arrest suspected illegal immigrants without warrants.
In that ruling last June, the high court sided with Arizona on only one issue: requiring police to question those they have stopped if there is reason to believe that they are in this country illegally. The justices said there was no evidence, at least at this point, those kinds of checks are preempted by federal law.
There is separate litigation by civil rights groups challenging that section, not on the basis of preemption but that there is no way to enforce the law without violating the rights of minorities.