Federal immigration law likely preempts an Arizona law that authorizes police to verify a suspect’s immigration status prior to release, the 9th Circuit has ruled in upholding a preliminary injunction.
The Arizona Legislature in April 2010 passed a law requiring police to check the immigration status of an individual who is stopped, detained or arrested if a “reasonable suspicion” exists that the person has entered the country illegally. The statute further authorizes police to make a warrantless arrest when probable cause exists that an individual has committed an offense that makes them removable from the country.
Apart from these law enforcement provisions, the statute makes it a state offense for an illegal immigrant to seek employment and criminalizes an alien’s failure to carry certain documentation required by federal immigration law.
The U.S. obtained a preliminary injunction in federal court to prevent implementation of the Arizona immigration law.
The federal government argued on appeal that the Arizona law violated the Supremacy Clause in that it was preempted by the Immigration and Nationality Act.
The 9th Circuit agreed that the federal government will likely prevail in its preemption argument and that the preliminary injunction should therefore remain in effect.
The court said that “we simply are not persuaded that Arizona has the authority to unilaterally transform state and local law enforcement officers into a state-controlled [Department of Homeland Security] force to carry out its declared policy of attrition. …
“We are not aware of any binding authority holding that states possess the inherent authority to enforce the civil provisions of federal immigration law — we now hold that states do not have such inherent authority.”
U.S. Court of Appeals, 9th Circuit. U.S. v. Arizona, no. 10-16645. April 11.