Here's what the judge wrote:
""Requiring Arizona law enforcement officials and agencies to determine theimmigration status of every person who is arrested burdens lawfully-present aliens because their liberty will be restricted while their status is checked. Given the large number of people
who are technically arrested but never booked into jail or perhaps even transported to a law enforcement facility, detention time for this category of arrestee will certainly be extended during an immigration status verification. (See Escobar, et al. v. City of Tucson, et al., No. CV 10-249-TUC-SRB, Doc. 9, City of Tucsons Answer & Cross-cl., ¶ 38 (stating that during
fiscal year 2009, Tucson used the cite-and-release procedure provided by A.R.S. § 13-3903
to arrest and immediately release 36,821 people).)
And:
"The United States contends that the impact on lawfully-present aliens of the
requirement that law enforcement officials, where practicable, check the immigration status
of a person lawfully stopped, detained, or arrested where there is reasonable suspicion that the
person is an alien and is unlawfully present will be exacerbated by several factors. (Id. at 28-
29.) First, the United States suggests that the impact on lawfully-present aliens is enhanced
because this requirement applies to stops for even very minor, non-criminal violations of state
law, including jaywalking, failing to have a dog on a leash, or riding a bicycle on the
sidewalk. (Id. at 28.) Also, the United States argues that the impact will be increased because
other provisions in S.B. 1070 put pressure on law enforcement agencies and officials to
enforce the immigration laws vigorously.10 (Id. at 29.)
Hines cautions against imposing burdens on lawfully-present aliens such as those
described above. See 312 U.S. at 73-74. Legal residents will certainly be swept up by this
requirement, particularly when the impacts of the provisions pressuring law enforcement agencies to enforce immigration laws are considered. See A.R.S. § 11-1051(A), (H). Certain
categories of people with transitional status and foreign visitors from countries that are part
of the Visa Waiver Program will not have readily available documentation of their
authorization to remain in the United States, thus potentially subjecting them to arrest or
detention, in addition to the burden of the possibility of inquisitorial practices and police
surveillance. Hines, 312 U.S. at 74. In Hines, the Supreme Court emphasized the important
federal responsibility to maintain international relationships, for the protection of American
citizens abroad as well as to ensure uniform national foreign policy. Id. at 62-66; see also
Zadvydas v. Davis, 533 U.S. 678, 700 (2001) (We recognize . . . the Nations need to speak
with one voice in immigration matters.). The United States asserts, and the Court agrees,
that the federal government has long rejected a system by which aliens papers are routinely
demanded and checked. (Pl.s Mot. at 26.)11 The Court finds that this requirement imposes
an unacceptable burden on lawfully-present aliens.
8 The Visa Waiver Program permits visitors from certain countries to enter the United States
without a visa, so long as various requirements are met. See, e.g., 8 U.S.C. § 1187; 8 C.F.R.
§§ 217.1-217.7.
9 Also, upon a check with LESC or a federally-authorized state official, the status of a United
States citizen might not be easily confirmable as many people born in the United States likely
do not have an entry in a DHS database.
10 These provisions include Sections 2(A) and 2(H), which, respectively, prohibit agencies
from restricting the enforcement of immigration laws and create a private right of action for
legal residents to sue agencies if they believe the laws are not being enforced aggressively
enough.
-
"
