Page 18 The Metropolitan Corporate Counsel June 2010 A New State Order: Implications Of Arizona’s New Immigration Law David Grunblatt, While the law also these provisions may subject local gov- Christine Alber provides that a law ernments to various frivolous and enforcement offi- expensive law suits filed by private cit- and Praveena Swanson cial “may not izens with anti-immigrant agendas. solely consider • The law prevents day laborers PROSKAUER ROSE LLP race, color, or from seeking work, by making it a national origin,” Class 1 misdemeanor for an undocu- On April 23, Arizona Governor Jan immigrant activists mented individual to apply for or solicit Brewer (R) signed the nation’s toughest David Christine Praveena and the Latino work in a public place. The law even and most controversial state immigra- Grunblatt Alber Swanson community have goes as far to define “solicit” as a verbal tion bill to date. In response to the furor, deficiencies with respect to immigra- argued that the or nonverbal communication made by a “reasonable suspicion” standard opens gesture or a nod. on April 30 Governor Brewer signed a tion, saying “Our failure to act respon- the door to racial profiling by police. In • As mentioned above, the new law follow-up bill (HB 2162) to amend sible at the federal level will only open response, the Governor has said she amends LAWA, which already requires parts of the controversial immigration the door to irresponsibility by others. will establish law enforcement training all employers to utilize E-Verify, the law. The original “Support Law That includes, for example, the recent to implement Arizona’s immigration federal government’s electronic Enforcement and Neighborhoods Act,” efforts in Arizona, which threaten to laws. Many question whether such employment eligibility verification sys- Arizona SB 1070, is set to take effect undermine basic notions of fairness that training alone could be efficacious in tem. When the new law goes into effect, on August 24, 2010 and has ignited a we cherish as Americans….” light of the law’s imperative, and its employers will be required to maintain passionate debate, with equally heated According to the Governor’s public broad evaluation standards. What cre- E-Verify records for the duration of the opinions expressed in favor of greater statements, the changes made to the bill ates a “reasonable suspicion” someone employee’s employment or at least enforcement of our immigrations laws, on April 30 are designed to clarify the may not be in the U.S. lawfully? Their three years, whichever is longer. There and criticism that the law is, on the one intent of the law, and to “make it crys- skin color, their accent, their geograph- is no similar federal mandate for hand, pre-empted by the federal immi- tal clear and undeniable that racial pro- ical location? While the follow-on bill employers participating in the E-Verify gration laws, and on the other hand, filing is illegal and will not be tolerated amends the law to say that racial profil- program, but all employers have an constitutionally suspect. Garnering in Arizona.” Specifically, now the law ing is not permissible, it does not obligation to maintain I-9 Identify and some of the most emotional responses has been amended to include an explicit are its first-ever provisions that make it specifically address this point. Employment Eligibility Verification phrase, repeated in every section of the • The law includes a presumption records for three years after the date of a crime to be in the U.S. illegally, and law, that a police officer or state agency give broad authority to local police offi- that a person who presents a valid Ari- hire, or one year after employment “may not consider race, color, or zona driver or non-operating license, a ends, whichever is later. cers to investigate, detain, and arrest national origin in the enforcement of individuals they “reasonably suspect” valid form of tribal identification; or • In addition, the law provides a the [law] except to the extent permitted other form of federal, state, or local new affirmative defense for employers are in the U.S. without permission. by the U.S. or Arizona Constitution.” Not well publicized in the media issued identification that evidences who may be charged for knowingly The amendment states that immigration his/her legal immigration status, is law- employing an unauthorized worker. frenzy are the provisions that impact status may be determined either by a employers. The new law amends Ari- fully present. This is tantamount to a Employers may assert an “entrapment” law enforcement officer authorized to requirement that all people in the state defense if they can prove by a prepon- zona’s Legal Arizona Workers Act verify status, or by an agent of U.S. (LAWA), the 2007 groundbreaking of Arizona – whether a foreign born or derance of the evidence that the idea of Immigration and Customs Enforce- not, whether a U.S. citizen or not – committing the offense started with the state law requiring employers to regis- ment. ter for and use the federal government’s carry their identification at all times. law enforcement officers. The follow-on bill removes the word • The law creates a state require- Early predictions of speedy legal electronic employment verification sys- “solely” from the sentence, “The attor- tem, E-Verify. SB 1070 supplements ment, and penalty for failure to comply, challenges to the constitutionality of the ney general or county attorney shall not that foreign nationals register their law, and to block its implementation, LAWA by creating a new obligation for investigate complaints that are based employers to retain E-Verify records, addresses with the government and have been borne out. The first two suits solely on race, color, or national ori- carry registration/alien documents at all were filed on April 29: the first, and establishes a new affirmative gin.” The import is that police officers defense for knowingly hiring an unau- times. These requirements are in addi- National Coalition of Latino Clergy & are prohibited from “solely” using race Christian Leaders v. Arizona thorized worker if the employer is tion to the federal immigration laws , D. Ariz., to investigate an individual’s immigra- already in place on these points. The CIV 100943-PHX, complaint filed “entrapped” by law enforcement offi- tion status. In addition, it revises the amendments signed by Governor 4/29/10, contends that the law is uncon- cers. provision that allows a law enforcement Brewer last Friday amend and remove stitutional, and requests an injunction to Governor Brewer and proponents of officer to investigate someone’s immi- some of the serious monetary fines, jail prevent its implementation while its the bill argue that Arizona had to resort gration status if they have reasonable sentences, and felony consequences legality is challenged. The second suit to its own measures because of the fed- suspicion that the person is in the U.S. instituted by the original law. Under the was filed by a Hispanic police officer in eral system’s failure to adequately illegally. The amendment also replaces revised bill, the first violation of this Tucson who contends the law itself was address the country’s immigration the phrase “lawful contact” by the requirement would be classified as a created out of racial bias, as well as issues and problems. The bill describes police officer with the phrase, “stop, Class 1 misdemeanor, punishable with challenging its constitutionality (Esco- the intent of the law as deterring the detention, or arrest,” making apparent a maximum fine of $100. Second viola- bar v. Brewer, D. Ariz., No. 4:10-cv- unlawful entry, presence, and economic that a police officer need not question a tions may result in a jail term of no 00249-DCB, complaint filed 4/29/10). activity by undocumented individuals crime victim or a witness about her more than 20 days, and subsequent vio- From protests to travel boycotts, in Arizona. Furthermore, the stated pur- immigration status. Opponents to the lations are punishable for no longer reaction to Arizona’s new immigration pose of the new law is to perform law vehemently argue that these than 30 days in jail. The American Civil law has been undeniably intense. Mex- “cooperative enforcement” of the fed- amendments are insufficient to prevent Liberties Union and other activist orga- ico has issued a travel warning that “all eral immigration laws, and to “discour- civil rights abuses, and that the Gover- nizations argue that these provisions are Mexican citizens could be bothered or age and deter entry or presence” of for- nor was simply forced to sign off on the a “back door” attempt to create state questioned without motive at any eign nationals without authorization to changes because of mounting pressure arrest authority for immigration viola- moment.” The fear of rampant copy-cat be in the U.S. President Obama swiftly of impending economic boycotts of the tions, which is in clear violation of the laws may turn into a reality – Texas weighed in with his criticism of the new state. Supremacy Clause of the U.S. Constitu- Republican legislators have already law, although he acknowledged federal The follow-on bill did not amend tion. announced that they plan to introduce any of the sections aimed at employers • The new law also creates a private immigration measures similar to the David Grunblatt is a Partner in the in Arizona. right of action for any Arizona citizen new law in Arizona, and reportedly so Labor and Employment Law Depart- Below we provide an overview of to sue any Arizona agency, county, city will conservative Oklahoman lawmak- ment and head of the Immigration & the key provisions of the Arizona law: or town that implements a policy that ers. Nationality Group at Proskauer. Chris- • Police officers are required to restricts the enforcement of federal As the debate unfolds, Proskauer’s tine Alber and Praveena Swanson are make a “reasonable attempt,” when immigration laws. A court may order Immigration and Nationality group will Associates practicing exclusively in the practicable, to determine an individ- civil penalties of $1,000 to $5,000 for continue to provide updates and analy- area of immigration and nationality ual’s immigration status when there is each day that the agency or municipal- sis of the law, its import, and the oblig- law. All three attorneys reside in the “reasonable suspicion” that the individ- ity has been found in violation of the ations of employers in Arizona, and firm’s Newark office. ual is unlawfully present in the U.S. law. Opponents of the law warn that around the country. Please email the authors at [email protected], [email protected] or [email protected] with questions about this article.