The stated purpose of SB 1070 also known as the “Arizona Immigration Law” was to discourage and deter the unlawful entry and presence of aliens and economic activity by persons unlawfully present in the United States.   There were four main sections of the law that were at issue: sections 2B, 3, 5C and 6.

  • Section 2B requires officers conducting a stop, detention or arrest to make efforts, in certain circumstances to verify the person’s immigration status with the Federal Government.
  • Section 3 made failure to comply with federal alien-registration requirements a state misdemeanor.  Section 5C made it a misdemeanor for an unauthorized alien to seek or engage in work in the State.
  • Section 6 authorized state and local officers to arrest without a warrant a person “the officer has probable cause to believe …has committed any public offense that makes the person removable from the United States.”

Sections 3, 5C and 6 of S.B. 1070 are preempted by federal law and therefore were overturned.   Removal is a civil matter and one of its principal features is the broad discretion exercised by immigration officials, who must decide whether to pursue removal at all.

  • In regard to Section 3, the Court deferred to Congress’ intention in enacting prior immigration law in which they did not think it appropriate to impose criminal penalties on unauthorized employees.  Federal law already makes it illegal for employers to knowingly hire, recruit, refer or continue to employ unauthorized workers.  They are enforced through criminal and civil penalties.
  • With regard to Section 6, the Court stated:  Although federal law permits state officers to “cooperate with the Attorney General in the identification, apprehension, detention, or removal of aliens not lawfully present in the United States, this does not encompass the unilateral decision to detain authorized by this section.”

The Court upheld, for the time being, Section 2B.  They reasoned that this section could possibly be interpreted without racial profiling.  They made a distinction that “if this will require state officers to delay the release of detainees for no reason other than to verify their immigration status, this would raise constitutional concerns.” On the other hand, “2B could be read to avoid these concerns.  If the law only requires state officers to conduct a status check during the course of an authorized, lawful detention or after has been released” then it could be considered constitutionally valid.  The question of whether an individual’s detention was “lawful” or “authorized” as well as what is considered “reasonable” will be an intense source of litigation in the lower courts.  This section on its face, prohibits racial profiling, but it remains to be seen how the police will enforce section 2B without some sort of profiling according to race.

The Court left opened the possibility of later overturning Section 2B of the Arizona law if it is shown that it is being enforced via racial profiling and therefore in violation of individuals’ civil liberties.  There are currently cases that are being litigated in the lower district courts that are slowly winding their way up to the United States Supreme Court.

I believe that it is only a matter of time before Section 2B of this law will be found unconstitutional and therefore the entirety of the Arizona law be overturned.

The Law Office of Susan N. Rosti, Esq. has the experience you need plus a proven track record in representing immigration and deportation cases. Attorney Rosti specializes in this area of law and understands that an individual needs a lawyer to explain their options clearly and assist them in achieving the best resolution possible. Call The Law Office of Susan N. Rosti, Esq. today at 973.883.5977 for a consultation today if you are facing immigration and / or deportation issues and need representation.