Ninth Circuit Upholds Ariz. Workplace Raids

(CN) — Reversing an injunction, the Ninth Circuit saw no federal bar Monday against Arizona legislation that Maricopa County Sheriff Joe Arpaio used to orchestrate the arrests of undocumented immigrants using stolen identities to work.

Though U.S. District Judge David Campbell found Arpaio's workplace raids probably unconstitutional last year, the Ninth Circuit found the pre-emption concerns misplaced today.

Arizona House Bill 2779 created a new offense of aggravated identity theft in 2007 for people using false information or the information of another person. A year later, Arizona House Bill 2745 supplemented the act by adding the intent to gain employment as part of the offense.

Today's 26-page ruling says Puente Arizona and the other challengers sought "to enjoin enforcement of all applications of the identity theft laws." (Emphasis in original).

Pre-emption by the U.S. Immigration Reform and Control Act is not a factor, the Ninth Circuit said today, when Arizona's laws are applied to U.S. citizens or lawful permanent residents.

"The district court has yet to address Puente's as-applied challenge, and without a fully developed record we think it inappropriate now to enjoin only certain applications of the identity theft laws," Judge Richard Tallman wrote for a three-person panel.

Puente's attorney, Jessica Vosburgh with the National Day Laborer Organizing Network, says their position remains unchanged about Arizona's laws.

"Our reaction is that the worksite raids and the laws that we are challenging continue to be unconstitutional," Vosburgh said.

Tallman said Arizona's laws are neutral since they apply to U.S. citizens, immigrants and undocumented immigrants.

"As noted in hypotheticals raised at oral argument, these laws could easily be applied to a sex offender who uses a false identity to get a job at a daycare center," Tallman wrote. "Or the laws could be applied to stop a convicted felon from lying about his criminal history on a job application for a position of trust."

The panel in San Francisco had forecast such an outcome at oral arguments this past February.

Legislative history shows that Arizona adopted the laws with the intention of preventing undocumented immigrants from remaining in the state, but Tallman said it also demonstrates the state's employment-related, identity-theft problem.

"Congress could not have intended to preempt the state from sanctioning crimes that protect citizens of the state under Arizona's traditional police powers without intruding on federal immigration policy," he wrote. "Thus, we hold that despite the state legislative history, Congress did not intend to preempt state criminal statutes like the identity theft laws."

U.S. District Judge David Campbell must now evaluate Puente's remaining claims for as-applied pre-emption or equal-protection, according to the ruling.

Team Puente may still petition for a Ninth Circuit rehearing, Vosburgh said.

The Arizona Attorney General's Office had not returned a request for comment.

Another aspect of today's ruling dismisses Maricopa County's appeal of the finding that it can be liable for Arpaio's raids since he is a policymaker.

Arpaio actually disbanded the immigration investigation unit that conducted the workplace raids months after Puente Arizona filed suit over it in mid-2014.

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