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Arizona immigration law: tough questions for both sides at hearing

A three-judge panel of the Ninth Circuit is weighing whether to overturn a federal judge's decision in July to block some of the most controversial sections of the Arizona immigration law.

By Staff writer / November 1, 2010

Arizona Governor Jan Brewer listens during a news conference following a hearing over the state's SB1070 immigration law at the Ninth Circuit Court of Appeals in San Francisco, California, on Nov. 1.

Robert Galbraith/Reuters

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Arizona Gov. Jan Brewer (R) took her fight to fully enforce the state’s tough new immigration law to a federal appeals court in San Francisco on Monday, where the judges closely questioned lawyers on both sides of the case.

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Lawyers for Arizona are asking the three-judge panel of the Ninth Circuit Court of Appeals to overturn a federal judge’s decision in July to block some of the most controversial sections of the law, known as SB 1070. The judge ruled that portions of the Arizona immigration law were preempted by federal immigration law.

After the hearing, Governor Brewer said she was optimistic. “Although the judges asked challenging questions of both sides during this morning’s hearing, we are hopeful that after carefully considering the arguments, the Ninth Circuit will lift the stay and allow SB 1070 to be enforced,” she said in a statement.

It is difficult to predict the outcome of a case based on questions raised by appeals-court judges during an hour-long hearing. But some analysts are predicting a split decision, with Arizona prevailing on some issues and losing on others.

The case has fostered a sharp divide in the United States between those who favor tougher immigration laws and stricter border protection and those advocating a more lenient approach to undocumented immigrants.

After its passage last spring, President Obama and Attorney General Eric Holder expressed concern about Arizona’s new law and the possibility it might lead to widespread racial profiling. The administration filed suit and successfully urged the federal judge to block enforcement of the law.

One invalidated portion required police officers to check the immigration status of anyone involved in a police stop when the officer had reasonable suspicion that the individual was unlawfully present in the US.

Also invalidated was a provision requiring noncitizens to carry registration documents and a measure that made it a crime for an illegal immigrant to apply for a job or engage in employment.

Arizona’s lawyer, John Bouma of Phoenix, told the panel that the law was designed to compensate for ineffective immigration enforcement by the federal government and to protect Arizona residents from drug traffickers and human smugglers active along the Mexican border.

“Arizona is trying to deal with the problems that arise from a federal immigration system that even President Obama acknowledges is broken,” Mr. Bouma said.

Deputy Solicitor General Edwin Kneedler, arguing for the Obama administration, called the Arizona law “an extraordinary statute” that intruded into an area that is reserved for Congress and the national government. The Arizona law, he said, was enacted to make “attrition through enforcement” the official policy for state and local agencies in Arizona.

“What would happen if every state in the nation did this?” he asked. “If every state did this, we’d have a patchwork of laws.”

The Arizona statute seeks to supplement federal law with new criminal penalties imposed by the state, Mr. Kneedler said. The effort, he said, interferes with federal efforts to speak with a single voice on matters of immigration and foreign policy.

Bouma countered that Arizona’s law was aimed at complementing the federal enforcement system by enlisting the efforts of 15,000 state and local law officers.

The contested provisions, Bouma said, are consistent with immigration enforcement objectives set by Congress. The disagreement is with policy priorities of the Obama administration, he said.

“It is congressional objectives that count rather than the administration’s priorities,” he said.

The appeal is being heard by Judges Richard Paez, Carlos Bea, and John Noonan. The case is USA v. State of Arizona, 10-16645.

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