Another Ariz. Immigration Law Shot Down by 9th Circuit

Arizona Republic (Arizona)

By Michael Kiefer

October 15, 2014

Another Ariz. immigration law shot down by 9th Circuit 

Another of Arizona's immigration laws was struck down Wednesday when the 9th U.S. Circuit Court of Appeals ruled unconstitutional a law denying bond to undocumented immigrants charged with "serious" crimes.

The law, known as Proposition 100, was passed by voters in November 2006, during the height of anti-immigrant sentiment in the state.

After the vote, the Legislature defined "serious" crimes as Class 4 felonies or worse -- the most serious felonies are Class 1, the least serious Class 6. Subsequent immigration laws tended to be classified as Class 4.

The American Civil Liberties Union challenged the law in federal court, but it was upheld by a U.S. District Court judge in Phoenix, and the first appeal in the 9th Circuit failed last June.

The ACLU then asked to have the case reheard "en banc," meaning, by a larger panel of judges.

"Today's ruling vindicates one of our basic American freedoms—the U.S. Constitution's guarantee that every person accused of a crime is presumed to be innocent until proven guilty," said Cecillia Wang, director of the ACLU's Immigrants' Rights Project, who argued the case before the 9th Circuit.

"The court has restored to Arizona the fundamental constitutional principle that each person is entitled to an individual hearing in court before they are locked up while awaiting trial."

Dan Pochoda of the ACLU of Arizona added, "You're not allowed to punish before trial; this was clearly punishment."

A spokesman for the Sheriff's Office said it would appeal the ruling.

"This is the 9th Circuit substituting itself for the District Court, for the Arizona state legislature, for the Arizona Court of Appeals and four out of five voters who voted for Prop 100," said Deputy Chief Sheriff Jack MacIntyre.

In a prepared statement, Maricopa County Attorney Bill Montgomery noted "an obvious disconnect between the Court's focus on a policy disagreement and the rhetoric of eight years ago with what is actually going on today."

He also said that that undocumented immigrants are often flight risks and do not always show up for court.

"In these circumstances, since conditions of release include the admonition to be law abiding, we have the immediate reality of matters where a person accused of a crime is simultaneously in violation of federal law due to federal inaction, incompetence, and indifference. Rather than protect public safety and victims of crime, the 9th Circuit has chosen to create a victim class of criminals," he said in the statement.

But Montgomery did not say for certain whether he will appeal the ruling; instead, he said, his office will review the matter before taking further steps.

However, many of the state immigration laws passed between 2005 and 2010 already have fallen in the federal courts. Among them:

-- In September 2012, the U.S. Supreme Court upheld injunctions against three parts of the 2010 omnibus Arizona immigration law Senate Bill 1070, specifically provisions that required immigrants to carry "alien-registration papers"; to allow for warrantless arrest if an officer thinks there is probable cause to believe the individual committed a public offense that makes him or her removable from the U.S; and to make it a crime for illegal immigrants to solicit, apply for or perform work. The Supreme Court lifted the injunction on a statute that requires law-enforcement officers to check the legal status of people stopped during the investigation of possible crimes, but it is still being litigated

-- In March 2013, the 9th Circuit ruled against another part of SB 1070, a law against impeding traffic while seeking day labor work.

-- In September 2013, a U.S. District Court judge in Phoenix stopped the practice of charging undocumented immigrants as conspirators under a 2005 human smuggling law. Maricopa County settled the case out of court in July 2014.

-- In October 2013, the 9th Circuit upheld an injunction on another SB 1070 statute making it illegal to harbor or transport undocumented immigrants. In April 2014, the U.S. Supreme Court refused to review the case.

For more information, go to:  www.beverlyhillsimmigrationlaw.com