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Arizona's identity theft laws are not facially preempted by federal immigration law, the Ninth Circuit ruled on Monday. The state's identity theft laws prohibit the use of a false identity to obtain employment. The laws had been used by the controversial sheriff of Maricopa County, Joe Arpaio, to raid and arrest hundreds immigrants at their workplace.
A district court had ruled that the identity theft laws were likely to be unconstitutional last year, but the Ninth circuit disagreed, noting that Arizona's laws would not conflict with federal immigration law when applied to American citizens. The ruling raises the possibility that Sheriff Arpaio's workplace raids could recommence soon.
Arizona adopted its identity theft law in 2007, creating the offense of "aggravated identity theft" for those using false information or the information of another. A year later, that law was expanded, criminalizing the use of false documents to gain employment.
The law led to a series of controversial workplace raids by Arpaio which resulted in the arrest of more than 700 undocumented workers. Critics argued that the law overstepped the state's authority and was preempted by the federal Immigration Reform and Control Act.
Puente Arizona, an immigrant advocacy organization, and several residents of Maricopa County sued. Their suit was initially successful. District Court Judge David Campbell found that Arizona's identity theft laws were likely to be unconstitutional and enjoined their enforcement.
On appeal, however, the Ninth Circuit disagreed. Puente Arizona sought to enjoin "all applications of the identity theft laws," the court noted, not just those against immigrants. As such, preemption with federal immigration law could not be an issue, when the laws applied to American citizens and permanent residents. And while the legislative history shows that the laws were adopted to drive undocumented immigrants from the state, that does not mean that they intruded on federal immigration policy, the panel ruled, in an opinion authored by Judge Richard C. Tallman.
That doesn't end the controversy, however. The case will now return to district court to determine if the laws are unconstitutional as applied to the plaintiffs.
In the meantime, it's unclear if Arpaio's workplace raids would return. Even if the raids would not violate an injunction, they may violate Arpaio's settlement with the Department of Justice, which had accused him of civil rights violations. Arpaio pointed to that settlement in a statement released Monday, in which he explained that he had "not yet decided when or if to resurrect identity theft enforcement."
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