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Arizona's Immigrant Bail Denial Headed Back to En Banc 9th

By William Peacock, Esq. on January 06, 2014 | Last updated on March 21, 2019

Over the past few years, the nation has watched, with little amusement, while a circus of immigration reform efforts have played out in Arizona. Frustrated by what they call the federal government's failings in curbing illegal immigration, the state passed its own set of laws, in the legislature and via referendum, most of which have since met their demise in the courts.

Arizona's laws have been criticized as improperly motivated, and preempted by federal law, but last June, a divided panel upheld Proposition 100, which denies bond to illegal immigrants accused of serious crimes, as a proper means of ensuring that the state can enforce its laws against those prone to flee.

On Thursday, however, the court announced that the case will head back to the court for the full en banc treatment.

Panel Majority: Prop 100 Valid

The majority upheld the law, holding that it didn't violate due process rights, impose excessive bail under the Eighth Amendment, and that it wasn't preempted by federal immigration law.

Using the two-prong test from United States v. Salerno, the court held that the law was regulatory, not punitive, and that it was not excessive in relation to its legitimate purpose (preventing flight risky by denying bail for felony offenses). The majority also pointed out that, per previous state and Ninth Circuit holdings, the right to counsel does not yet attach at this point in the proceedings.

Panel Dissent: Clearly Punitive

Judge Raymond Fisher dissented from the majority's holding, arguing that the categorical denial of bail was being used as a means of punishing illegal immigrants.

"As revealed by Proposition 100's legislative history and scope, however, Arizona is plainly using the denial of bail as a method to punish 'illegal' immigrants rather than simply as a tool to help manage arrestee's flight risk," he wrote.

We'll see which argument prevails when the case gets the en banc treatment later this year.

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