Court signals backing for Arizona immigration law

[DEDixon 39]

(11-01) 16:14 PST SAN FRANCISCO -- A federal appeals court appeared willing Monday to reinstate, but weaken, a central provision of an Arizona law allowing police to stop and question suspected illegal immigrants.

A three-judge panel of the Ninth U.S. Circuit Court of Appeals indicated that it would authorize police to demand papers from those they reasonably suspected of being in the country illegally, but would not allow authorities to arrest or prosecute them under state law.

That would still allow suspects to be referred to U.S. authorities for deportation, however.

At an hour-long hearing in a packed San Francisco courtroom, two panel members suggested that a federal judge had gone too far when she blocked enforcement of all major provisions of the law.

Feds claim authority

Responding to an Obama administration lawsuit that claimed Arizona was interfering with federal regulation of immigration, U.S. District Judge Susan Bolton issued an injunction July 28, less than 24 hours before the law was to take effect.

The judge barred Arizona from requiring police to order anyone they stopped for a crime, and reasonably suspected of being in the country illegally, to produce proof of legal status. She also blocked a provision allowing police to detain anyone they believed was deportable because of a previous criminal conviction.

In addition, Bolton blocked provisions of the law making it a crime for illegal immigrants to seek work, and for a noncitizen to be in the state illegally or to fail to carry immigration documents.

Court's leanings

Based on judges' comments in Monday's hearing, the appeals court appeared likely to lift the ban on police authority to demand immigration papers and detain immigrants who faced deportation, while upholding Bolton's rulings against state criminal penalties.

The appeals court panel - Judges Carlos Bea, John Noonan and Richard Paez - appeared to agree with Bolton's conclusion that a state law against illegal immigration would conflict with federal authority over immigration.

But Bea and Noonan indicated they saw no conflict between federal law and Arizona's requirement that police seek immigration documents from suspected illegal migrants.

Bea noted that federal law requires U.S. officials to respond to local police inquiries about the immigration status of anyone under arrest. If police can request that information, he asked the government's lawyer, why can't they also order someone to show proof of legal status?

Arizona's case

The state can cooperate with federal immigration authorities but can't establish its own enforcement policy, replied Edwin Kneedler, a deputy solicitor general. If Arizona's law is allowed to take effect, it could encourage a "patchwork of law" among different states, he said.

Kneedler also argued that requiring immigrants to produce documents in every police encounter would sweep up legal residents who weren't carrying papers.

But Noonan said Congress has not prohibited police from obtaining immigration information and contacting federal authorities, or from holding a noncitizen who faces possible deportation because of conviction.

What state could do

If the court reinstates those provisions, police in Arizona could order a suspected illegal immigrant to produce a driver's license or other documents, and could make inquiries to immigration officials.

But state prosecutors could not charge someone for failing to possess the required papers.

That would strip the requirement of most of its force, Arizona's lawyer, John Bouma, said at a news conference after the hearing. "If (the state) can't prosecute them, it doesn't make a lot of sense to hold them," he said.

Bouma urged the court to reinstate criminal penalties against illegal immigrants who seek work. But the judges said they were bound by the appeals court's 1990 ruling that allowed penalties only against employers of undocumented immigrants.

Arizona Gov. Jan Brewer, who attended the hearing, said afterward that the state was prepared to appeal to the U.S. Supreme Court.

"We would not be here today if the federal government had done its job," she said.

Civil liberties groups have a separate lawsuit pending before Bolton that contends the Arizona law promotes racial profiling. The city of San Francisco has joined a legal challenge by local governments that argue such laws would hurt crime-fighting efforts by discouraging immigrants from cooperating with police.

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