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Arizona Immigration Law Made|Into Farce in 9th Circuit Hearing

(CN) - Once 9th Circuit Judge Carlos Bea focused on what he called the "very strange language" found in an Arizona immigration law, the state's lawyer had no chance to come up for air.

Arizona went before the three-judge panel Tuesday to challenge the preliminary injunction that halts enforcement of parts of Arizona Senate Bill 1070. Gov. Jan Brewer signed the law, known as Support Our Law Enforcement and Safe Neighborhoods Act, in 2010.

One provision blocked by the injunction would make it unlawful for a person "who is in violation of a criminal offense" to transport, conceal or harbor an illegal alien, or encourage or induce an illegal alien to go to or live in Arizona.

Bea seized on the language of this provision. "A person who is in violation, not of a statute, not of a law, but of a criminal offense," he said. "How do you violate an offense? I mean, isn't that sort of an absurd way of writing that?"

Arizona attorney Kelly Kszywienski replied: "I didn't construe it that way. I think it means a violation of any criminal offense."

Judge John Noonan then interrupted: "How do you construe it differently?"

"You know we sent an order to you asking you to respond, and you missed the point," he continued. "I don't know how. We said, 'What does this mean? Violate a criminal offense? How do you violate an offense? Just spell it out, please.'"

That remark referred to an order the court filed just last week, asking Arizona to brief its explanation of that language.

Kszywienski tried to respond, but Noonan pressed on.

"Let's look at the words," he said. "How do you violate an offense? Do you know what the word 'offense' means?"

Finally able to chime in, Kszywienski said, "Yes, and violate a 'statute' would be better wording."

But Noonan quickly jumped in again.

"No, not better wording, because it's nonsense as it stands," he said.

When Kszywienski started again with, "When I read the statute," Noonan continued: "You are misreading the statute, and we are asking you now, having given you a week to think about it, what does it mean to violate a crime?"

Kszywienski eventually had to admit that she did not know how one violates an offense.

Noonan said, though, that the incomprehensibility of the law may still work in Arizona's favor. He reasoned that the injunction relies on the possibility that the law, if applied, could unlawfully harm the plaintiffs.

If the law makes no sense, however, it cannot be enforced, he said.

When Kszywienski laughed, Noonan advised her to concede the point.

"Your understanding must be anchored to the words of the statute and can't be something cooked up by you in your mind," he said.

The pointed interrogation continued until Bea interjected to throw Kszywienski "a lifeline."

Bea asked if Arizona believed the District Court had properly interpreted the phrase as meaning a violation of a criminal statute, and whether the 9th Circuit should defer to that interpretation.

"I do believe so, your honor," Kszywienski responded.


"That's your lifeline," the judge said. Kszywienski, smiling, said, "Thank you very much, your honor."

Leaving the confusion about Arizona's word choice aside for a moment, the appellate panel addressed the other elements of the District Court ruling, specifically whether Arizona or any state may enact their own immigration laws.

In the District Court's preliminary injunction hearing, the plaintiffs asked the court to stop Arizona police from attempting to determine an individual's immigration status during lawful traffic stops, detentions or arrests, but the U.S. District Judge Susan Bolton refused, saying the U.S. Supreme Court had already ruled that the challenge to that will have to face a jury.

Bolton did rule, however, that federal law pre-empts the provision of Arizona law that bans the transport, harbor or conceal illegal aliens. She said the plaintiffs are likely to suffer irreparable harm in the absence of an injunction.

Arizona's opening brief said Senate Bill 1070 was enacted "to address the extraordinary problem of criminal activity within Arizona involving the transporting or harboring of unauthorized aliens."

Though attorney Kszywienski said she believed that the Congress did not intend to limit jurisdiction of all immigration-related matters to federal courts, American Civil Liberties Union attorney Omar Jadwat said that Congress' comprehensive provision of regulation and enforcement creates field pre-emption.

Jadwat was representing Valle del Sol, a self-proclaimed sanctuary organization, and a group of both institutional and individual plaintiffs who are allegedly at risk of prosecution under SB 1070.

Judge Bea asked Jadwat whether Arizona might have an interest in creating a law to deal with immigrants once they are in Arizona.

"As far as the movement and harboring of aliens, Arizona has an interest totally different from the federal interest, which is to keep aliens out of the country," Bea said.

"Arizona is worried about what happens to the aliens when they are here," he added, citing exploitation, trafficking and prostitution.

Jadwat replied that the Arizona statute would not complement federal law and is pre-empted simply because its terms take the federal government out of the equation.

"In taking the federal government out of the (immigration enforcement) process, you open it up to damage to foreign relations and the fact that people could be prosecuted who the federal government would not choose to prosecute," Jadwat said.

Justice Department attorney Mark Stern addressed the court on behalf of the U.S. government, which is not a party to the case but filed an amicus curiae brief. He said the U.S. Constitution gives the federal government the sole authority over immigration policy and the broad language of Arizona's statute intrudes on federal jurisdiction. The federal government addresses alien harboring, and the Arizona law was not written to address an area of traditional state authority, such as employment or housing, he added.

"The national government has to deal with the problems of immigration on a national scale," Stern said. "We cannot have states adopting a patchwork of varying penalties."

Returning to the statute's use of the word "offense," Noonan asked Stern what he made of the language.

"We're not here to pass on gibberish," Noonan said.

Stern replied: "I think the law was very unartfully drafted."

Noonan called that characterization "kind," repeating his belief that the wording actually made Arizona's law "incomprehensible."

Stern then said that the law may be a nullity if the language means it cannot be applied to anyone. He said that federal law nevertheless pre-empts the substance of the law, an issue that the 9th Circuit would still need to address.

Jadwat is with the ACLU in New York and Kszywienski is with Snell & Wilmer in Phoenix.

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