No. 11-182

In the Supreme Court of the United States

STATE OF ARIZONA, ET AL.,

Petitioners,

v.

UNITED STATES OF AMERICA,

Respondent.

On Writ of Certiorari tothe United States Court of Appeals

for the Ninth Circuit

BRIEF OF STATE AND LOCAL LAWENFORCEMENT OFFICIALS AS AMICI

CURIAE IN SUPPORT OF RESPONDENT

JEFFREY A. MEYER

Yale Law SchoolSupreme Court Clinic127 Wall StreetNew Haven, CT 06511(203) 432-4992

ANDREW J. PINCUS

Counsel of RecordCHARLES A. ROTHFELD

Mayer Brown LLP1999 K Street, NWWashington, DC 20006(202) 263-3000apincus@mayerbrown.com

Counsel for Major Cities Chiefs Police Association

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES...................................... iii

INTEREST OF THE AMICI CURIAE .......................1

SUMMARY OF ARGUMENT.....................................3

ARGUMENT ...............................................................6

S.B. 1070 WILL PRODUCE ERRONEOUSAPPLICATIONS OF FEDERALIMMIGRATION LAWS, UNDERMINEIMPORTANT FEDERALENFORCEMENT POLICIES, ANDREDUCE THE EFFECTIVENESS OFLOCAL LAW ENFORCEMENT. ..........................6

A. Local Law Enforcement Officers Will AsA Practical Matter Find It VirtuallyImpossible To Comply With Both S.B.1070 And Federal Immigration Law. ..............6

1. S.B. 1070 Imposes On Local LawEnforcement Officials TheImpossible Task Of NavigatingComplex Federal Immigration Laws..........7

2. Arizona’s Approach To TrainingConfirms That Police Officers WillNot Be Able To Carry Out Their S.B.1070 Responsibilities Properly. ................14

B. S.B. 1070’s 100% Enforcement MandateConflicts With The FederalGovernment’s ImmigrationEnforcement Priorities And WillSeverely Overburden FederalResources. .......................................................19

ii

TABLE OF CONTENTS—continued

Page

1. S.B. 1070 Is Wholly InconsistentWith Federal EnforcementPriorities. ...................................................20

2. S.B. 1070 Imposes A Heavy BurdenOn Federal Resources, Which WillAdversely Affect The FederalGovernment And Other States. ................22

3. Section 287(g) Agreements—InContrast To Arizona’s UnilateralEnactment—Provide An EffectiveMechanism For CooperationBetween Local And Federal LawEnforcement Officials................................24

C. S.B. 1070 Undermines Federal AndLocal Community Policing Policies................29

CONCLUSION ..........................................................34

iii

TABLE OF AUTHORITIES

Page(s)CASES

Crosby v. Nat’l Foreign Trade Council,530 U.S. 363 (2000)............................................ 19

Anderson v. Creighton, 483 U.S. 635 (1987) .......... 13

Florida v. Royer,460 U.S. 491 (1983)............................................ 13

STATUTES AND REGULATIONS

8 U.S.C.

§ 1101(a)(15)......................................................... 9

§ 1101(a)(15)(T)(i)(aa) .......................................... 9

§ 1101(a)(15)(U).................................................... 9

§ 1182(d)(5)(A).................................................... 11

§ 1184(o)(2) ........................................................... 9

§ 1254a................................................................ 10

§ 1254a(a)(1)(A).................................................. 10

§ 1357(g) ........................................................17, 24

§ 1357(g)(2)-(3) .................................................. 18

Ariz. Rev. Stat. Ann.

§ 11-1051(A) ....................................................... 19

§ 11-1051(B) ..............................................7, 14, 19

§ 11-1051(B)(4) ................................................... 16

§ 11-1051(H) ....................................................... 13

§ 11-1051(K) ....................................................... 13

iv

TABLE OF AUTHORITIES—continued

Page(s)

OTHER AUTHORITIES

57 Fed. Reg. 35,604 (Aug. 10, 1992) ...................... 11

65 Fed. Reg. 52,789-52,791 (Aug. 30, 2000) .......... 11

72 Fed. Reg. 53,014-01 (Sept. 17, 2007),corrected, 72 Fed. Reg. 54,813 (Sept. 27,2007) ................................................................... 10

75 Fed. Reg. 67,383 (Nov. 2, 2010) ......................... 11

76 Fed. Reg. 29,000 (May 19, 2011)........................ 10

76 Fed. Reg. 63,629 (Oct. 13, 2011) ........................ 10

76 Fed. Reg. 63,635 (Oct. 13, 2011) ........................ 10

76 Fed. Reg. 68,488-68,489 (Nov. 4, 2011) ............. 10

76 Fed. Reg. 68,493 (Nov. 4, 2011) ......................... 10

77 Fed. Reg. 1710-1711 (Jan. 11, 2012).................. 10

Anita Khashu, The Role of Local Police:Striking a Balance Between ImmigrationEnforcement and Civil Liberties (MaryMalina ed., 2009), available athttp://www.policefoundation.org/pdf/strikingabalance/Role%20of%20Local%20Police.pdf ....................................................................30, 32

Thomas Alexander Aleinikoff et al.,Immigration and Citizenship: Process andPolicy (6th ed. 2008) .......................................... 11

H.B. 2162, AZ Minority Rep., 49th Leg., 2dSess. (Apr. 29, 2010). ........................................... 7

v

TABLE OF AUTHORITIES—continued

Page(s)

Declaration of Mike Hale, Hispanic Coalitionof Ala. v. Bentley, No. 2:11-cv-02746-SLB(N.D. Ala. July 21, 2011) .................................. 15

Declaration of A.C. Roper, Hispanic Coalitionof Ala. v. Bentley, No. 2:11-cv-02746-SLB(N.D. Ala. Aug. 1, 2011) ...............................15, 30

Declaration of Bobby Timmons, HispanicCoalition of Ala. v. Bentley, No. 2:11-cv-02746-SLB (N.D. Ala. Aug. 1, 2011) ................. 18

Department of Homeland Security, Office ofImmigration Statistics, 2010 Yearbook ofImmigration Statistics (Aug. 2011),available athttp://www.dhs.gov/xlibrary/assets/statistics/yearbook/2010/ois_yb_2010.pdf ........................ 8

Department of Homeland Security, Office ofInspector General, Performance of 287(g)Agreements (Mar. 2010), available athttp://www.oig.dhs.gov/assets/Mgmt/OIG_10-63_Mar10.pdf .......................................25, 26, 28

Department of Homeland Security, U.S.Citizenship and Immigration Services,Immigration Relief for VulnerablePopulations: Human Trafficking, CrimeVictims, Domestic Violence and ChildAbuse (2011), available athttp://www.uscis.gov/USCIS/Humanitarian/T-U-VAWA-relief.pdf. ......................................... 9

vi

TABLE OF AUTHORITIES—continued

Page(s)

Department of Justice, Exec. Office forImmigr. Review, FY 2011: Statistical YearBook (2012), available atwww.justice.gov/eoir/statspub/fy11syb.pdf. ....................................................... 11

Fact Sheet: Delegation of ImmigrationAuthority Section 287(g) Immigration andNationality Act, available athttp://www.ice.gov/news/library/factsheets/#287(g) (last visited Mar.25, 2012) ........................................................17, 18

Fact Sheet: Updated Facts on ICE’s 287(g)Program, ICE,www.ice.gov/news/library/factsheets/287g-reform.htm (last visited Mar. 25, 2012) ............ 27

Government Accountability Office, GAO-09-109, Immigration Enforcement: Better Con-trols Needed over Program AuthorizingState and Local Enforcement of FederalImmigration Laws (Jan. 2009), available athttp://www.gao.gov/new.items/d09109.pdf...27, 28

Public Safety & Civil Rights Implications ofState and Local Enforcement of FederalImmigration Laws: Joint Hearing Beforethe Subcomm. on Immigration,Citizenship, Refugees, Border Sec., andInt’l Law and the Subcomm. on theConstitution, Civil Rights, and CivilLiberties of the H. Comm. on the Judiciary,111th Cong. 77-78 (2009)........................14, 16, 32

vii

TABLE OF AUTHORITIES—continued

Page(s)

S.B. 1070 Public Information Center, AZPOST,http://www.azpost.state.az.us/SB1070infocenter.htm (last edited July 6, 2010)...............15, 16

Secure Communities, Immigration andCustoms Enforcement, Department ofHomeland Security,http://www.ice.gov/secure_communities/(last visited Mar. 25, 2012)...........................28, 29

Major Cities Chiefs Immigration CommitteeRecommendations: For Enforcement ofImmigration Laws By Local Police Agencies(June 2006), available athttps://www.majorcitieschiefs.com/pdf/MCC_Position_Statement.pdf.................................... 33

Jack Dunphy, Arresting a Crime Wave,National Review Online, Jan. 30, 2008,http://www.nationalreview.com/articles/216650/arresting-crime-wave/jack-dunphy ............ 32

The Brennan Center for Justice, CitizensWithout Proof: A Survey of Americans’Possession of Documentary Proof ofCitizenship and Photo Identification (2006),available at www.brennancenter.org/page/-/d/download_file_39242.pdf ............................... 32

viii

TABLE OF AUTHORITIES—continued

Page(s)

Latino Migration Project, The Institute for theStudy of the Americas & The Center forGlobal Initiatives, The 287(g) Program: TheCosts and Consequences of LocalImmigration Enforcement in NorthCarolina Communities (Feb. 2010),available athttp://cgi.unc.edu/uploads/media_items/287g-report-final.original.pdf .................................. 24

Law Enforcement Support Center,Immigration and Customs Enforcement,United States Department of HomelandSecurity, http://www.ice.gov/lesc (lastvisited Mar. 25, 2012) ...................................22, 23

Letter from John Morton, Director,Immigration and Customs Enforcement, toBill Montgomery, Cnty. Attorney, MaricopaCnty. (Dec. 15, 2011), available athttp://media.phoenixnewtimes.com/7508198.0.pdf. ................................................................ 26

Letter from Thomas E. Perez, AssistantAttorney Gen., to Bill Montgomery, Cnty.Attorney, Maricopa Cnty. (Dec. 15, 2011)available athttp://www.justice.gov/crt/about/spl/documents/mcso_ ............................................................ 26

Memorandum of Agreement, Mesa Cty.Sheriff's Dept. (Nov. 2, 2009),http://www.ice.gov/doclib/foia/memorandumsofAgreementUnderstaning/r_287gmesapolicedept11192009.pdf ..................................18, 27

ix

TABLE OF AUTHORITIES—continued

Page(s)

Memorandum from John Morton, AssistantSec’y of U.S. Immigration and CustomsEnforcement, to All ICE Employees (June30, 2010), available athttp://www.ice.gov/doclib/detention-reform/pdf/civil_enforcement_priorities.pdf. .... 20

Memorandum from John Morton, Director ofU.S. Immigration and CustomsEnforcement to All Field Office Directors,All Special Agents in Charge, and All ChiefCounsel (June 17, 2011), available athttp://www.ice.gov/doclib/secure-communities/pdf/domestic-violence.pdf. ........... 21

Metropolitan Policy Program at Brookings,Immigrants, Politics, and Local Responsesin Suburban Washington (Feb. 2009),available athttp://www.brookings.edu/~/media/Files/rc/reports/2009/0225_immigration_singer/0225_immigration_singer.pdf.................................. 25

Morris County Sheriff’s Office, An ImpactReview of the United States Bureau ofImmigration and Customs Enforcement287(g) Program Upon the County of Morris(Oct. 2007), available athttp://www.justicestrategies.org/sites/default/files/MorrisSheriff-287g_impact_review.pdf .................................... 25

x

TABLE OF AUTHORITIES—continued

Page(s)

Press Release, Dep’t Homeland Sec., SecretaryNapolitano Announces New Agreement forState and Local Immigration EnforcementPartnerships & Adds 11 New Agreements(July 10, 2009), available athttp://www.dhs.gov/ynews/releases/pr_1247246453625.shtm................................................. 27

Southern Poverty Law Ctr., Under Siege: Lifefor Low-Income Latinos in the South (Apr.2009), available athttp://www.splcenter.org/sites/default/files/downloads/UnderSiege.pdf ................................ 31

INTEREST OF THE AMICI CURIAE

Amici are associations of state and local law en-forcement officials and individual current and formerlaw enforcement officials. They have deep expertisein local law enforcement and, in addition, on cooper-ative federal-state law enforcement activities. Amicisubmit this brief to inform the Court regarding theeffect of statutes such as the Arizona law at issue inthis case on local law enforcement, on federal-statecooperation in enforcing the federal immigrationlaws, and on the availability of the federal resourcesthat are essential for that cooperation.1

Amici are:

Major Cities Chiefs Police Association,which is a professional association ofchiefs and sheriffs representing the largestcities in the United States, serving morethan 68 million people;

Police Executive Research Forum, which isa national membership organization ofprogressive police executives from thelargest city, county and state law enforce-ment agencies dedicated to improving po-licing and advancing professionalismthrough research and involvement in pub-lic policy debate;

1 Pursuant to Rule 37.6, amici affirm that no counsel for aparty authored this brief in whole or in part and that no personother than amici and their counsel made a monetarycontribution to its preparation or submission. The parties’letters consenting to the filing of amicus briefs have been filedwith the Clerk’s office.

2

National Latino Peace Officers Associa-tion, which is the largest Latino law en-forcement organization in the UnitedStates, with membership including chiefsof police, sheriffs, police officers, paroleagents, and federal officers, all of whomare employed at the local, state, and feder-al levels;

Sheriff Clarence W. Dupnik, Pima County,Arizona, Sheriff’s Department;

Chief Jack Harris, Phoenix, Arizona, Po-lice Department (Retired);

Chief Roberto Villaseñor, Tucson, Arizona,Police Department;

Chief Art Acevedo, Austin, Texas, PoliceDepartment;

Sheriff Leroy D. Baca, Los Angeles, Cali-fornia, Sheriff’s Department;

Chief Charlie Beck, Los Angeles, Califor-nia, Police Department;

Chief Chris Burbank, Salt Lake City,Utah, Police Department;

Chief Ronald Davis, East Palo Alto, Cali-fornia, Police Department;

Chief Sergio Diaz, Riverside, California,Police Department;

Chief Timothy Dolan, Minneapolis, Min-nesota, Police Department;

District Attorney George Gascón, SanFrancisco, California, District Attorney’s

3

Office, San Francisco, California, and for-mer Chief of Police, Mesa, Arizona;

Eduardo Gonzalez, Director of the U.S.Marshall Service (Retired), and formerChief of Police, Tampa, Florida;

Chief Jeff Hadley, Kalamazoo, Michigan,Department of Public Safety;

Chief Jeffrey W. Halstead, Fort Worth,Texas, Police Department;

Chief Rick Jones, Los Rios, California, Po-lice Department;

Chief Arturo Venegas, Jr.; Former Chief ofPolice, Sacramento, California, Police De-partment;

Sheriff Richard Wiles, El Paso, Texas,Sheriff’s Department;

Chief Noble Wray, Madison, Wisconsin,Police Department.2

SUMMARY OF ARGUMENT

The Arizona law at issue in this case creates se-rious obstacles and grave complications for federaland state law enforcement. The law categorically re-quires that all State and local law enforcement offic-ers verify with federal authorities the immigrationstatus of almost anyone they stop or arrest in thecourse of their day-to-day policing activities. If per-mitted to go into effect, this mandate would jeopard-ize the integrity of federal and state law enforcementin at least three ways.

2 For individuals, affiliations are provided for identificationpurposes only.

4

First, Arizona’s categorical verification mandateignores that its police are in no position to enforceresponsibly the immensely complex body of federalimmigration law. The vast majority of Arizona’s lawenforcement officials have no training in immigra-tion law or enforcement. They would be unable legi-timately to determine if there is reasonable suspicionto believe that an individual they have stopped is un-lawfully present in the United States. Indeed, nearly50 million individuals are lawfully admitted into theUnited States each year. Even if Arizona police learnthat an individual who they stop is not a U.S. citizen,a non-citizen might have lawful status under anynumber of visa, parole or asylum programs of whichArizona police are unaware. To make matters worse,the Arizona law threatens fines of up to $5,000 perday for failure to comply with its verificationmandate. As a result, Arizona police officers wouldbe inevitably impelled to presume that virtually allthose they stop or arrest are unlawfully present inthe United States.

This unilateral, blunderbuss approach stands insharp contrast to Congress’s carefully tailoredscheme for federal/state cooperation in immigrationenforcement. The federal Section 287(g) program en-courages States and local law enforcement entities toengage in immigration law enforcement jointly, butonly after intensive training and under close and co-operative federal supervision.

Second, Arizona’s categorical verificationmandate would overburden federal resources andprevent the federal government from focusing on theurgent federal enforcement priority of identifyingand removing the most dangerous criminal aliens.Arizona’s law and similar laws of other States would

5

very likely overwhelm the national Law EnforcementSupport Center that already fields hundreds of thou-sands of verification requests nationwide. Moretroubling still, this flood of requests would doubtless-ly be cluttered with tens of thousands of queriesabout individuals who are in fact U.S. citizens or whohave no background blemish other than their unlaw-ful presence in the United States. Arizona’s categori-cal mandate would impede federal authorities’ com-pelling enforcement priorities and their response tofar more urgent requests from other States involvingdangerous and convicted alien criminals.

Third, Arizona’s categorical verification mandatewould seriously destabilize federal and local commu-nity policing priorities. The reality is that our policecannot protect their communities without fosteringcooperation and trust from all classes of people ineach community. But the Arizona law would poisonany culture of cooperation in communities most af-flicted with crime. Those who believe their immigra-tion status to be subject to question would have littlereason to assist the police to solve very seriouscrimes—against themselves or against lawful immi-grants and U.S. citizens—once they know that theirinvolvement will invariably trigger police scrutiny oftheir immigration background.

In short, Arizona’s categorical verificationmandate hopelessly conflicts with vital federal immi-gration enforcement priorities while severely under-mining vital law enforcement interests in preventingand solving society’s most serious crimes. The judg-ment of the court of appeals should be affirmed.

6

ARGUMENT

S.B. 1070 WILL PRODUCE ERRONEOUS AP-PLICATIONS OF FEDERAL IMMIGRATIONLAWS, UNDERMINE IMPORTANT FEDERALENFORCEMENT POLICIES, AND REDUCETHE EFFECTIVENESS OF LOCAL LAW EN-FORCEMENT.

Arizona’s Support Our Law Enforcement andSafe Neighborhoods Act (“S.B. 1070”) will impedeboth federal and local law enforcement efforts. S.B.1070 imposes on local law enforcement officials astringent, mandatory obligation to enforce federalimmigration law, even though local police officerslack the expertise to navigate complex federal immi-gration standards. Also, by requiring across-the-board enforcement of immigration laws in the Stateof Arizona, S.B 1070 prevents the federal govern-ment’s from using its limited resources in accordancewith federally-established enforcement priorities. Fi-nally, S.B. 1070 interferes with federal and localcommunity policing initiatives—not only within Ari-zona but, more significantly, in other States and lo-calities throughout the nation. By creating friction inthe relationship between federal and local law en-forcement officials, S.B. 1070 thus will impede—andnot promote—enforcement of the federal immigra-tion laws.

A. Local Law Enforcement Officers Will AsA Practical Matter Find It Virtually Im-possible To Comply With Both S.B. 1070And Federal Immigration Law.

S.B. 1070 requires local law enforcement officialsto verify the immigration status of all detained per-

7

sons who reasonably could be suspected of beingpresent in the United States unlawfully.

But federal immigration laws are extremelycomplex, and it will be virtually impossible for localpolice officers, who already have numerous other re-sponsibilities, to become sufficiently familiar withthe various categories of immigration status underfederal immigration law. The inevitable result willbe the erroneous application of federal immigrationlaws to detain for removal individuals who in fact arenot subject to removal.

1. S.B. 1070 Imposes On Local Law En-forcement Officials The Impossible TaskOf Navigating Complex Federal Immigra-tion Laws.

Section 2(B) of the Arizona statute states that alaw enforcement officer who has lawfully stoppedany person for any reason must make a “reasonableattempt” to verify the immigration status of thatperson whenever there is “reasonable suspicion” thatthe individual is unlawfully present in the UnitedStates, as long as such verification is “practicable”and would not otherwise “hinder or obstruct an in-vestigation.” Ariz. Rev. Stat. Ann. § 11-1051(B). Thecircumstances in which the verification obligationarises are therefore extremely broad—extending tovirtually any nonconsensual encounter between anindividual and a law enforcement officer.3

3 During the legislative debate, State Representative KyrstenSinema expressed her concern that the requirement to verifyimmigration status could be triggered during a law enforcementstop to address “civil ordinances including overgrown yards,parking on streets, cars raised on cinder blocks in people'syards, and inoperable vehicles in driveways.” H.B. 2162, AZ

8

To carry out S.B. 1070’s mandate properly, everylocal law enforcement officer in Arizona would haveto become familiar with the multitude of differentimmigration categories that are created by federalimmigration law. While some categories of lawfulstatus are relatively straightforward (i.e., U.S. citi-zen, lawful permanent resident), local police officerswill have to understand the full array of nonimmi-grant visas and special authorization programs toensure that they do not detain someone who has re-ceived permission from a federal agency to remain inthe country.

Nearly 50 million individuals are lawfully admit-ted into the United States each year.4 They fall into awide range of different nonimmigrant visa catego-ries, including the following:

foreign government officials (A visas),

business travelers (B-1 visas),

tourists (B-2 visas),

students (F-1 visas),

guest workers and seasonal workers (vari-ous kinds of H visas),

Minority Rep., 49th Leg., 2d Sess. (Apr. 29, 2010). Even an in-itially voluntary encounter could easily be recharacterized as a“stop” on the basis of the information provided by the individualduring the encounter, thereby triggering the verification re-quirement.

4 More than 46 million individuals were admitted as nonimmi-grants in 2010. See Department of Homeland Security, Office ofImmigration Statistics, 2010 Yearbook of Immigration Statis-tics 70, Table 25 (Aug. 2011), available athttp://www.dhs.gov/xlibrary/assets/statistics/yearbook/2010/ois_yb_2010.pdf.

9

North American Free Trade Agreement(NAFTA) professional workers (TN visas),and

workers in religious occupations (R-1 vi-sas).

See 8 U.S.C. § 1101(a)(15).

Moreover, the federal government provides im-migration authorization to victims of certain crimeswho have cooperated with law enforcement officials.For example, the “T visa” program, available to 5000individuals annually, see 8 U.S.C. § 1184(o)(2), pro-vides legal status, work authorization, and eligibilityfor public benefits for victims of human trafficking ifthe victims have “complied with any reasonable re-quest for assistance in the Federal, State, or local in-vestigation or prosecution” of trafficking crimes. 8U.S.C. § 1101(a)(15)(T)(i)(aa).

An individual’s T status may last up to fouryears, with further extensions based on law enforce-ment need for the individual’s help in an ongoing in-vestigation or prosecution. See Department of Ho-meland Security, U.S. Citizenship and ImmigrationServices, Immigration Relief for Vulnerable Popula-tions: Human Trafficking, Crime Victims, DomesticViolence and Child Abuse (2011), available athttp://www.uscis.gov/USCIS/Humanitarian/TUVA-WA-relief.pdf.

Another category, the “U visa,” is designed toprovide immigration and employment authorizationto individuals who have “suffered substantial physi-cal or mental abuse as a result of having been a vic-tim” of qualifying criminal activity, such as domesticviolence, torture, sexual exploitation, or kidnapping.8 U.S.C. § 1101(a)(15)(U). The purpose of the U visa

10

program is twofold: first, “to strengthen the ability oflaw enforcement agencies to investigate and prose-cute such crimes as domestic violence, sexual as-sault, and trafficking in persons,” and second, “[to of-fer] protection to alien crime victims in keeping withthe humanitarian interests of the United States.” 72Fed. Reg. 53,014-01 (Sept. 17, 2007), corrected, 72Fed. Reg. 54,813 (Sept. 27, 2007).

The federal government also has recognized ad-ditional categories of lawful status based on humani-tarian need. For example, the Temporary ProtectedStatus (“TPS”) program allows the Secretary of Ho-meland Security to designate a foreign country basedon conditions that temporarily prevent the country’snationals from returning safely, such as an ongoingarmed conflict or environmental disaster. 8 U.S.C. §1254a. During the designated period, individualswho are TPS beneficiaries cannot be detained on thebasis of their immigration status, and may not beremoved from the United States. 8 U.S.C.§ 1254a(a)(1)(A).

To ensure that a TPS beneficiary is not inadver-tently detained, local law enforcement officials willhave to familiarize themselves with the details of theprogram and the countries currently designated forTPS status. See, e.g., 77 Fed. Reg. 1710-1711 (Jan.11, 2012) (designating El Salvador for TPS); 76 Fed.Reg. 68,488-68,489 (Nov. 4, 2011) (Honduras); 76Fed. Reg. 68493 (Nov. 4, 2011) (Nicaragua); 76 Fed.Reg. 63,635 (Oct. 13, 2011) (Sudan); 76 Fed. Reg.63,629 (Oct. 13, 2011) (South Sudan); 76 Fed. Reg.

11

29,000 (May 19, 2011) (Haiti); 75 Fed. Reg. 67,383(Nov. 2, 2010) (Somalia).5

The Attorney General may also “parole” other-wise inadmissible aliens into the United Statesbased on “urgent humanitarian reasons or signifi-cant public benefit.” 8 U.S.C. § 1182(d)(5)(A).6 Locallaw enforcement officials would have to be able toidentify individuals present in the United Stateswith the permission of the Attorney General, butwho have not technically been admitted into theUnited States for immigration purposes.

Finally, some individuals may have pending ap-plications for lawful status—such as requests forasylum—that would render detention and removalunjustified. J.A. 43-45 (Aytes Decl.). Hundreds ofthousands of aliens have sought asylum protection inthe United States in the past five years, and morethan half of all applications in fiscal year 2011 weregranted. Department of Justice, Exec. Office for Im-migr. Review, FY 2011: Statistical Year Book I1, K1,

5 TPS designation is not permanent—for example, Bosnia-Hercegovina was first designated for TPS in 1992, 57 Fed. Reg.35,604 (Aug. 10, 1992), but that designation expired in 2000. 65Fed. Reg. 52,789-52,791 (Aug. 30, 2000). A police officer there-fore would be obliged to keep informed not only of TPS designa-tions, but also of TPS expirations.

6 The humanitarian parole power has provided the executivebranch with the flexibility to respond to refugee crises whenordinary statutory provisions were inadequate. See ThomasAlexander Aleinikoff et al., Immigration and Citizenship:Process and Policy 664-665 (6th ed. 2008) (describing large-scale uses of the parole power, such as President Eisenhower’sdecision to authorize the admission of 30,000 Hungarianrefugees into the United States after the Soviet Union senttanks into Hungary to quash the 1956 revolution).

12

K2 (2012), available at www.justice.gov/eoir-/statspub/ fy11syb.pdf.

Importantly, different types of documentation—and sometimes no documentation—are provided toan individual legally within the United States, de-pending on his or her particular status. Officerstherefore would be obliged to learn a tremendousamount in order to verify the various different statuscategories set forth above.

But police officers will not be able to rely upon anindividual’s failure to produce immigration docu-ments in order to make this determination. The fed-eral immigration authorities have made clear thatmany individuals not subject to deportation will notpossess the documents relevant to their status. J.A.41 (Aytes Decl.). In fact, the group of individuals law-fully present in the country but without any docu-mentation are likely to include especially vulnerableindividuals, such as domestic violence victims. J.A.40-41 (Aytes Decl.).

There simply can be no doubt, therefore, that“[i]mmigration law and immigration status is a verycomplex area, and local law enforcement cannot pos-sibly be experts in all the different ways a person canbe lawfully or unlawfully present.” J.A. 58 (HarrisDecl.).

Making correct determinations regarding the le-gitimacy of an individual’s immigration status wouldfor these reasons be extremely difficult even if a lawenforcement officer were able to take his or her timeand exercise flexibility during encounters with po-tentially deportable individuals. But the provisionsof the Arizona statute subject police officers to signif-

13

icant constraints that make a large number of erro-neous determinations inevitable.

To begin with, law enforcement officials or agen-cies who fail to comply with the immigration statusverification obligation are subject to civil penalties ofup to $5000 per day—and any Arizona citizen mayfile a lawsuit to enforce this penalty provision. Ariz.Rev. Stat. Ann. § 11-1051(H). Individual law en-forcement officers may be joined in these actions, andmay be obliged to pay their own attorneys’ fees ifthey are shown to have acted in “bad faith,” a termthat is not defined in the statute. See id. § 11-1051(K).

Law enforcement officials and individual officerstherefore will be extremely reluctant to decline toapply the statute’s requirement in every case, forfear that any refusal could subsequently be deemed aviolation of the statute and lead to substantial mone-tary liability. This Court has recognized repeatedlyin the context of actions under 42 U.S.C. § 1983 “therisk that fear of personal monetary liability and ha-rassing litigation will unduly inhibit officials in thedischarge of their duties.” Anderson v. Creighton, 483U.S. 635, 638 (1987). Here, the Arizona statute’sthreat of liability for inaction will have the oppositeeffect, impelling officers to apply the verification re-quirement notwithstanding concerns about their in-ability to make accurate determinations.

At the same time, because the verification obliga-tion applies even to investigatory stops, which arelimited in duration (see Florida v. Royer, 460 U.S.491 (1983) (holding a fifteen-minute detention toolong)), officers will be under considerable time pres-sure to make their determinations quickly. Other-

14

wise, they might face liability for violating theFourth Amendment.

It simply will not be possible for officers to makecorrect determinations given the complexity of theissue. The inevitable result will be erroneous deter-minations that individuals are present in the countryunlawfully.

2. Arizona’s Approach To Training Con-firms That Police Officers Will Not BeAble To Carry Out Their S.B. 1070 Re-sponsibilities Properly.

The threshold determination under Section 2(B)is whether “reasonable suspicion exists that the per-son is an alien and is unlawfully present in the Unit-ed States.” Ariz. Rev. Stat. Ann. § 11-1051(B). Arizo-na’s failure to provide its police officers with any use-ful guidance regarding this determination—or re-garding the determination whether the individual islawfully in the United States—eliminates any doubtthat the statute will not be enforced properly andwill necessarily lead to the detention of persons law-fully in the United States.

Determining reasonable suspicion of an immi-gration violation requires a working knowledge ofthe legal and policy factors that would make an indi-vidual more or less likely to be subject to deporta-tion. See Public Safety & Civil Rights Implications ofState and Local Enforcement of Federal ImmigrationLaws: Joint Hearing Before the Subcomm. on Immi-gration, Citizenship, Refugees, Border Sec., and Int’lLaw and the Subcomm. on the Constitution, CivilRights, and Civil Liberties of the H. Comm. on theJudiciary, 111th Cong. 77-78 (2009) (statement ofDavid A. Harris, Professor of Law, Univ. of Pitts-

15

burgh School of Law) [hereinafter Harris State-ment].7

The relevant Arizona Peace Officer Standardsand Training Board instructional video directs offic-ers to look to “indications from dress or appearanceof the person that he is an illegal alien”; whether theindividual “speak[s] English poorly”; the presence ofovercrowded vehicles; and whether “[t]he appearanceof the individual is unusual or out of place in a par-ticular locale.” See S.B. 1070 Public InformationCenter, AZ POST, http://www.azpost.state.-az.us/SB1070infocenter.htm (last edited July 6,2010) [hereinafter AZ POST Training Video].8

7 This is of course an entirely different inquiry than the one,familiar to law enforcement officers, of ascertaining the exis-tence of a reasonable suspicion of criminal activity. Declarationof A.C. Roper, Hispanic Coalition of Ala. v. Bentley, No. 2:11-cv-02746-SLB ¶ 11 (N.D. Ala. Aug. 1, 2011) [hereinafter RoperDecl.]; Declaration of Mike Hale, Hispanic Coalition of Ala. v.Bentley, No. 2:11-cv-02746-SLB ¶ 10 (N.D. Ala. July 21, 2011)[hereinafter Hale Decl.] (“My deputies are comfortable estab-lishing the existence of reasonable suspicion as to criminal con-duct generally, but * * * not * * * with reasonable suspicion asto immigration status.”); J.A. 63 (Villasenor Decl.) (same).

8 Other factors include the following (as listed in bullet points inthe State’s video): lack of lawful identification; possession offoreign identification; flight or preparation for flight from lawenforcement; engaging in evasive maneuvers; voluntarystatements by the person regarding his or her citizenship orunlawful presence; foreign vehicle registration; counter-surveillance or lookout activity; being in the company of otherunlawfully present aliens; location, including for example, aplace where unlawfully present aliens are known to congregatelooking for work; travelling in tandem; being in an overcrowdedvehicle or one that “rides heavily”; being in a vehicle wherepassengers attempt to hide or avoid detection; prior informationabout the person; inability to provide his or her residential

16

What dress an illegal immigrant would favorthat a U.S. citizen would not is totally unclear, as arethese other factors. Without extensive knowledge ofand involvement in the immigration process, locallaw enforcement officials will be forced to rely on in-appropriate “substitute clues,” such as the ethnicityand language abilities of individuals, their familymembers, or the community in which they live. Har-ris Statement, at 78. But these attributes cast abroad net that will include, for example, U.S. citizenslawfully visiting family members; minors; and otherindividuals who may lack proper identification. J.A.82-83 (Estrada Decl.). The statutory standard of“reasonable suspicion” of unlawful presence in theUnited States will thus as a practical matter producea focus on minorities, and specifically Latinos. HarrisStatement, at 78.

Similarly of little utility is the statutory specifi-cation that “any valid United States federal, state orlocal government issued identification” is sufficientto establish lawful presence in the United States “[i]fthe entity requires proof of legal presence in theUnited States before issuance.” Ariz. Rev. Stat. Ann.§ 11-1051(B)(4). How could an Arizona police officerpossibly know which of the numerous identification-issuing entities in the United States require suchproof?

Moreover, querying the federal government’s da-tabase will not solve the problem. The flood of inqui-ries from Arizona and the other States with similar

address; claim of not knowing others in same vehicle; providinginconsistent or illogical information; dress; and demeanor: forexample, unusual or unexplained nervousness, erratic behavior,refusal to make eye contact, significant difficultycommunicating in English. AZ POST Training Video.

17

statutes will lead to response times much longerthan the Fourth Amendment allows an investigatorystop to last.

And in any event the federal database is not like-ly to provide the answer in many cases. The data-base, of course, does not contain the names of anyU.S. citizens and also omits the names of some alienslawfully present in the United States. J.A. 94, 98(Palmatier Decl.). A negative response to an inquirytherefore will not enable a police officer to make adecision regarding an individual’s immigration sta-tus.

The negligible guidance provided by Arizonastands in sharp contrast to the process applicable tolocal law enforcement efforts undertaken pursuant tostatutory provisions authorizing federal-state coop-eration in immigration law enforcement.

In 1996, Congress authorized the so-called “Sec-tion 287(g) program” to provide a framework for theAttorney General of the United States to enter intoagreements with state and local governments fortheir assistance in the enforcement of federal immi-gration law. 8 U.S.C. § 1357(g) (codifying Section287(g) of the Immigration and Nationality Act); seealso Fact Sheet: Delegation of Immigration AuthoritySection 287(g) Immigration and Nationality Act,http://www.ice.gov/news/library/fact-sheets-/#287(g)(last visited Mar. 25, 2012) [hereinafter Fact Sheet].Significantly, federal/state agreements governed bythe Section 287(g) program must provide for “ade-quate training [of state and local officers] regardingthe enforcement of relevant Federal immigration en-forcement laws,” and specify that any such state andlocal officers “shall be subject to the direction and su-

18

pervision of the Attorney General.” 8 U.S.C. §1357(g)(2)-(3) (emphasis added).

Under the Section 287(g) program, U.S. Immi-gration and Customs Enforcement (“ICE”) enters in-to “Agreements of Cooperation in Communities toEnhance Safety and Security (ACCESS) Service,”that successfully enable cooperation with law en-forcement agencies to address illegal immigration.Fact Sheet, supra.

The Immigration Authority Delegation Program(IADP), is a training program developed by U.S. Im-migration and Customs Enforcement (“ICE”) for locallaw enforcement participating in 287(g) agreements.See, e.g., Memorandum of Agreement, Mesa Cty.Sheriff's Dept., 4 (Nov. 2, 2009), available athttp://www.ice.gov/doclib/foia/memorandumsofAgreementUnderstanding/r_287gmesapolicedept111-92009.pdf [hereinafter Mesa MOA]. IADP trainingincludes training in civil rights and liberties, ICE’sUse of Force policy, public outreach and complaintprocedures, detention of foreign nationals proce-dures, the Department of Justice’s “Guidance Re-garding the Use of Race by Federal Law Enforce-ment Agencies,” and instructions on cross-culturalissues. Id. at 18. This training can be updated afterone year and supplemented with local training byICE supervisors. Ibid.

Officers assigned to participate in these agree-ments undergo an intensive four-week trainingcourse. Declaration of Bobby Timmons, HispanicCoalition of Ala. v. Bentley, No. 2:11-cv-02746-SLB ¶6 (N.D. Ala. Aug. 1, 2011) [hereinafter TimmonsDecl.]; Fact Sheet, supra.

19

The sharp contrast between the absence of mea-ningful immigration enforcement standards underS.B. 1070 and the requirements of training and su-pervision for participants in the Section 287(g) pro-gram highlights the near certainty that S.B. 1070will inevitably produce erroneous and improper en-forcement of the federal immigration laws.

B. S.B. 1070’s 100% Enforcement MandateConflicts With The Federal Govern-ment’s Immigration Enforcement Prior-ities And Will Severely OverburdenFederal Resources.

The federal government establishes its immigra-tion enforcement priorities on the basis of law en-forcement, humanitarian, and foreign policy objec-tives, as well as available financial resources. S.B.1070, by contrast, requires 100% enforcement of fed-eral immigration laws. See Ariz. Rev. Stat. Ann. §11-1051(A)-(B).

While the United States and Arizona may bothshare a common objective of enforcing federal immi-gration laws, “a common end hardly neutralizes theconflicting means.” Crosby v. Nat’l Foreign TradeCouncil, 530 U.S. 363, 379 (2000). S.B. 1070 elimi-nates the federal government’s ability to set en-forcement priorities by forcing the federal govern-ment to divert its law enforcement resources to han-dle inquiries and referrals for low-priority undocu-mented migrants caught up in Arizona’s immigrationdragnet.

Moreover, existing mechanisms such as the Sec-tion 287(g) program provide a more effective meansfor States and localities to participate in federal im-migration enforcement in a manner that furthers,

20

rather than undermines, federal enforcement priori-ties.

1. S.B. 1070 Is Wholly Inconsistent WithFederal Enforcement Priorities.

The 100% mandatory enforcement directive em-bodied in S.B. 1070 conflicts directly with the priori-ties set by U.S. Immigrations and Customs Enforce-ment pursuant to its statutory authority.

ICE bases its enforcement priorities on a numberof factors, such as the difference between the numberof people currently present in the United States ille-gally (approximately 10.8 million) and the very li-mited number of individuals who ICE has the finan-cial resources to remove each year (approximately400,000). J.A. 109 (Ragsdale Decl.).

The federal immigration enforcement prioritiesare designed to concentrate resources on removingthose undocumented immigrants who pose the great-est threat to national security. The Director of ICEestablished the federal government’s enforcementpriorities in a June 2010 memorandum. Memoran-dum from John Morton, Assistant Sec’y of U.S. Im-migration and Customs Enforcement, to All ICEEmployees (June 30, 2010), available athttp://www.ice.gov/doclib/detention-reform/pdf/civil_enforcement_priorities.pdf.

Under these federal guidelines, which “applyacross all ICE programs” and “inform enforcementactivity, detention decisions, budget requests and ex-ecution, and strategic planning,” ICE places thehighest priority on identifying and removing aliensengaging in terrorism or espionage and aliens con-victed of felonies, particularly violent crimes and re-peat offenders. Id. at 1-2. Under S.B. 1070, however,

21

local law enforcement officials will be required toconduct an inquiry into immigration status whenev-er they develop a reasonable suspicion that an indi-vidual is not lawfully present in the United States,even if the officer has no reason to believe that theindividual poses a danger to others. That will harmboth local and federal officials’ ability to addressmore serious crimes associated with federal immi-gration violations. See J.A. 57-58 (Harris Decl.)(“[S.B. 1070] authorizes officers to divert from focus-ing on [serious crimes like kidnapping and humansmuggling] and instead focus on federal civil viola-tions, such as unlawful aliens who may have expiredstudent or work Visa’s [sic] or those who present nodanger to the public.”).

S.B. 1070 also fails to incorporate federal immi-gration officials’ directive to refrain from pursuingenforcement action against certain crime victims.ICE Director John Morton issued a memorandum inJune 2011 specifying that in ordinary circumstances,“it is against ICE policy to initiate removal proceed-ings against an individual known to be the imme-diate victim or witness to a crime.” Memorandumfrom John Morton, Director of U.S. Immigration andCustoms Enforcement to All Field Office Directors,All Special Agents in Charge, and All Chief Counsel1 (June 17, 2011), available athttp://www.ice.gov/doclib/secure-communities/pdf-/domestic-violence.pdf. The Director noted that dis-cretion was particularly necessary in these circums-tances to avoid deterring individuals from reportingcrimes or from pursuing vindication of their civilrights. Id. at 2.

By prohibiting the exercise of federal immigra-tion enforcement authority in specified circums-

22

tances, the federal government was seeking to fur-ther both humanitarian and law enforcement aims.Local detention of members of these populationscould frustrate or interfere with achieving thosegoals. For example, if local law enforcement officialsdetain an undocumented immigrant who happens tobe a crucial witness to an ongoing federal investiga-tion or prosecution, the federal law enforcement ac-tivity could be compromised.

2. S.B. 1070 Imposes A Heavy Burden OnFederal Resources, Which Will AdverselyAffect The Federal Government And Oth-er States.

S.B. 1070 imposes a new, and extremely heavy,burden on federal resources by forcing ICE to divertits own limited resources to handle the increasingnumber of referrals coming from Arizona, as well asother States that adopt laws similar to S.B. 1070.The influx of referrals of low-priority undocumentedimmigrants will decrease ICE’s ability to detain andremove individuals who threaten national securityand public safety. It will also adversely affect theavailability of ICE resources to other States.

As we have discussed, S.B. 1070 requires locallaw enforcement officers to verify the immigrationstatus of all suspected aliens. See pages 7-8, supra.Each inquiry must be channeled through the LawEnforcement Support Center (“LESC”), the nationalenforcement operations facility of ICE. See Law En-forcement Support Center, Immigration and CustomsEnforcement, United States Department of Homel-and Security, http://www.ice.gov/lesc (last visitedMar. 25, 2012). That is because LESC is the singlenational point of contact for state and local law en-

23

forcement submitting Immigration Alien Queries(“IAQ”). Ibid.

The greatly increased number of local immigra-tion queries from Arizona will strain the Center’s re-sources and prevent it from fulfilling its purpose ofproviding accurate and timely alien status determi-nations. J.A. 92-93 (Palmatier Decl.). Although Ari-zona asserts that requesting and receiving informa-tion from the LESC is quick and can be done duringan investigatory stop, J.A. 171-173, that is not likelyto be true once the inquiries from Arizona and otherStates pour into the Center. J.A. 97 (PalmatierDecl.).

At present, the LESC has 153 Specialists andhas the capacity to handle approximately 1.5 millionIAQs per year. J.A. 95 (Palmatier Decl.). S.B. 1070’smandatory status verification requirements will leadto thousands of additional IAQs annually. J.A. 96-97(Palmatier Decl.). The increased inquiries will delayresponse times to time-sensitive inquiries from lawenforcement, “meaning that very serious violatorsmay well escape scrutiny and be released before theLESC can respond to police and inform them of theserious nature of the illegal alien they have encoun-tered.” J.A. 97 (Palmatier Decl.).

The increased demand on the LESC underminesthe Center’s ability to respond to higher priority re-quests for criminal alien status from other Statesand localities. As federal officials have explained:

This increase in queries from Arizona will de-lay response times for all IAQs and risks ex-ceeding the capacity of the LESC to respondto higher priority requests for criminal alienstatus determinations from law enforcement

24

partners nationwide. Furthermore, the po-tential increase in queries by Arizona alongwith the possibility of other states adoptingsimilar legislation could overwhelm the sys-tem.

J.A. 97 (Palmatier Decl.).

Moreover, federal authorities will have to processfor removal all of the low-priority individuals identi-fied through the S.B. 1070 procedures. That will di-vert federal resources and subvert the federal policy.J.A. 122-123 (Ragsdale Decl.) (“Diverting resourcesto cover the influx of referrals from Arizona (andother states, to the extent similar laws are adopted)could, therefore, mean decreasing ICE’s ability to fo-cus on priorities such as protecting national securityor public safety in order to pursue aliens who are inthe United States illegally but pose no immediate orknown danger or threat to the safety and security ofthe public.”).

3. Section 287(g) Agreements—In ContrastTo Arizona’s Unilateral Enactment—Provide An Effective Mechanism For Co-operation Between Local And FederalLaw Enforcement Officials.

Local law enforcement officials who believe itwould be beneficial to obtain authority to enforcefederal immigration laws have the option of enteringinto 287(g) agreements with the federal government.8 U.S.C. § 1357(g).9 These memoranda of agreement

9 Some local police departments prefer not to enter into suchagreements for policy reasons, including the costs associatedwith immigration enforcement. There have been various reportsanalyzing the costs of entering into a 287(g) agreement amongvarious jurisdictions. See, e.g., The Latino Migration Project,

25

between ICE and the local authorities clearly definethe scope of the local department’s immigration lawenforcement authority. See Department of HomelandSecurity, Office of Inspector General, Performance of287(g) Agreements 2 (Mar. 2010), available athttp://www.oig.dhs.gov/assets/Mgmt/OIG_10-63_Mar10.pdf [hereinafter OIG Report].

Local law enforcement agencies have the flexibil-ity to decide which of the two 287(g) program modelsthey would prefer: the jail enforcement model, underwhich “287(g) officers working in state and local de-tention facilities identify and process removablealiens”; the task force model, under which “287(g) of-ficers identify and process removable aliens in com-

The Institute for the Study of the Americas & The Center forGlobal Initiatives, The 287(g) Program: The Costs andConsequences of Local Immigration Enforcement in NorthCarolina Communities 33 (Feb. 2010), available athttp://cgi.unc.edu/uploads/media_items/287g-report-final.original.pdf (reporting that “[t]he estimated cost for thefirst full year of operation for Alamance County is $4.8 million,”and “the estimated total cost for the first year of operating the287(g) Program in Mecklenburg County is $5.3 million.”);Metropolitan Policy Program at Brookings, Immigrants,Politics, and Local Responses in Suburban Washington 18 (Feb.2009), available athttp://www.brookings.edu/~/media/Files/rc/reports/2009/0225_immigration_singer/0225_immigration_singer.pdf (reportingthat Prince William County, VA, spent $6.4 million to enforceits immigration enforcement policy in the first year afterentering into a 287(g) agreement); Morris County Sheriff’sOffice, An Impact Review of the United States Bureau ofImmigration and Customs Enforcement 287(g) Program Uponthe County of Morris 7 (Oct. 2007), available athttp://www.justicestrategies.org/sites/default/files/MorrisSheriff-287g_impact_review.pdf (estimating the cost of entering into a287(g) agreement at $1.3 million).

26

munity settings”; or a combination of the two. Id. at3.

The 287(g) MOAs identify personnel eligibilitystandards and training requirements and mandatecertain reporting procedures. Id. at 2-3. Most impor-tantly, the MOAs provide that local enforcementagencies are permitted to perform immigration en-forcement activities only under ICE supervision, andthat ICE officials can suspend or revoke participat-ing officers’ authority at any time. Id. at 3.10 Thestructure of the 287(g) program thus ensures thatICE maintains the authority to set enforcementpriorities for the participating local agencies. J.A.111-112 (noting that ICE has refocused the 287(g)program “so that state and local jurisdictions withwhich ICE has entered into agreements to exercisefederal immigration authority do so in a manner con-sistent with ICE’s priorities”).

Indeed, it is significant that the federal govern-ment has in recent years modified 287(g) agreementsto reflect new federal policies concerning immigra-tion, and to promote “consistency in immigration en-

10 The ability to revoke participating agencies’ 287(g) agree-ments is critical in situations in which the local law enforce-ment agency abuses its authority under the program. For ex-ample, the Maricopa County Sheriff’s Office had a 287(g)agreement with ICE, but the program was terminated after theDepartment of Justice found evidence of civil rights violations.See Letter from John Morton, Director, Immigration and Cus-toms Enforcement, to Bill Montgomery, Cnty. Attorney, Mari-copa Cnty. (Dec. 15, 2011), available athttp://media.phoenixnewtimes.com/7508198.0.pdf; Letter fromThomas E. Perez, Assistant Attorney Gen., to Bill Montgomery,Cnty. Attorney, Maricopa Cnty. (Dec. 15, 2011) available athttp://www.justice.gov/crt/about/spl/documents/mcso_findletter_12-15-11.pdf).

27

forcement across the country by prioritizing the ar-rest and detention of criminal aliens.” Fact Sheet:Updated Facts on ICE’s 287(g) Program, ICE,www.ice.gov/news/library/factsheets/287g-reform.htm (last visited Mar. 25, 2012). The revisedpolicy also prioritizes “dangerous criminal aliens”(those convicted or arrested for major drug offensesor violent offenses such as murder, manslaughter,rape, robbery, and kidnapping) for deportation overthose whose, for example, only crime lies in their il-legal immigrant status. Press Release, Dep’t Homel-and Sec., Secretary Napolitano Announces NewAgreement for State and Local Immigration En-forcement Partnerships & Adds 11 New Agreements(July 10, 2009), available at http://www.dhs.gov/ynews/releases/pr_1247246453625.shtm; see MesaMOA, App. D.

The federal government’s 287(g) MOA policy fur-ther confirms the federal determination that en-forcement should be focused on improving publicsafety by deporting dangerous illegal immigrants.J.A. 92, 103, 107-111. And it makes clear that thispolicy determination applies to state resources par-ticipating in immigration under federal supervision.Mesa MOA, App. D (“To ensure resources are ma-naged effectively, ICE requires the [Police Depart-ment] to also manage its resources dedicated to287(g) authority under the MOA.”).11

11 It is noteworthy that, prior to the recent 287(g) policy revi-sions, the federal government had difficulty in maintaining itspriorities even under the 287(g) agreements. See GovernmentAccountability Office, GAO-09-109, Immigration Enforcement:Better Controls Needed over Program Authorizing State and Lo-cal Enforcement of Federal Immigration Laws (Jan. 2009),available at http://www.gao.gov/new.items/d09109.pdf [herei-

28

S.B. 1070 is squarely inconsistent with these fed-eral policy determinations. By mandating 100% en-forcement, the statute undermines the federal policydeterminations reflected in both federal enforcementpriorities and in the federal government’s approachto the 287(g) program—both of which rest on the ex-ercise of power conferred on the federal governmentby Congress.

The very same determination is reflected inICE’s Secure Communities program, which has beenimplemented in more than 1700 jurisdictions, includ-ing all jurisdictions along the Southwest border. Se-cure Communities, Immigration and Customs En-forcement, Department of Homeland Security,http://www.ice.gov/secure_communities (last visitedMar. 25, 2012) (select “The Basics” tab).12 The pro-gram provides a process by which local jurisdictionscan share the fingerprints of inmates with the FBIand ICE, who will check the prints against the feder-al government’s immigration databases. Ibid.

nafter GAO Report]; OIG Report. The GAO report found that20% of the persons apprehended by local law enforcement werenot initially detained by ICE and 15% of those who were de-tained were subsequently released and that "if all the partici-pating agencies sought assistance to remove aliens for such mi-nor offenses, ICE would not have detention space to detain allof the aliens referred to them." GAO Report, at 4. The OIGreport concluded that only 9% of the aliens apprehended by lo-cal agencies were in the top priority classifications. OIG Re-port, at 7.

12 Secure Communities is expected to expand to all lawenforcement jurisdictions nationwide by 2013. Secure Commun-ities, Immigration and Customs Enforcement, Department ofHomeland Security, http://www.ice.gov/secure_communities(last visited Mar. 25, 2012).

29

ICE then decides whether to take enforcementaction, “prioritizing the removal of individuals whopresent the most significant threats to public safetyas determined by the severity of their crime, theircriminal history, and other factors.” Ibid. Important-ly, the program specifies that “the federal govern-ment, not the state or local law enforcement agency,determines what immigration enforcement action, ifany, is appropriate.” Ibid.

Moreover, ICE has specifically and carefully de-signed the Secure Communities program to “focus[]its limited resources” on the federal government’s“highest priority” in enforcing federal immigrationlaws: “the removal of criminal aliens, those who posea threat to public safety, and repeat immigration vi-olators.” Ibid.

The Secure Communities program, like the287(g) MOAs, ensures that the federal government’senforcement priorities will be reflected in the actionsof local law enforcement officials. Enforcement deci-sions are made “only [by] federal DHS officers” and“only after an individual is arrested for a criminal vi-olation of state law, separate and apart from any vi-olations of immigration law.” Ibid.

S.B. 1070, by contrast, usurps this exclusive au-thority, undermines existing immigration enforce-ment programs, and interferes with important policychoices made by the federal government.

C. S.B. 1070 Undermines Federal And LocalCommunity Policing Policies.

Law enforcement cannot successfully protect citi-zens without those citizens’ cooperation. At both thefederal and state level, community policing—the co-operative approach under which law enforcement

30

and community members work together to combatcrime—has resulted in better and more efficient po-licing.

S.B. 1070, however, upsets that balance. Whenevery individual with whom the police interact mustbe subjected to immigration scrutiny, it is inevitablethat law-abiding witnesses and victims of crimes willavoid police interaction, allowing perpetrators to es-cape and creating an atmosphere of fear that willspill over to the rest of the community. And this im-pact will not be restricted to the states that adoptlaws resembling S.B. 1070. It will spill across bor-ders, and adversely affect law enforcement in statesthat do not adopt such policies.

1. Modern law enforcement techniques focus oncultivating relationships with—and the cooperationof—minority communities in order to promote effec-tive policing in those communities. See, e.g., RoperDecl. ¶ 14; Anita Khashu, The Role of Local Police:Striking a Balance Between Immigration Enforce-ment and Civil Liberties, at 24 (Mary Malina ed.,2009), available at http://www.policefoundation.org/pdf/strikingabalance/Role%20of%20Local%20Police.pdf (explaining the increased popularity of such ap-proaches in the policing profession over the pasttwenty years).

Law enforcement “rel[ies] heavily” on informa-tion from both U.S. citizens who live in immigrantcommunities and from individuals who are presentillegally but have committed no other crime. J.A. 51(“Deterring, investigating and solving serious andviolent crimes are the department’s top priorities,and it would be impossible for us to do our job with-out the collaboration and support of communitymembers, including those who may be in the country

31

unlawfully.”); J.A. 61 (same); J.A. 117-119 (describ-ing ICE reliance on unlawful immigrants in seriouscriminal cases and the use of federal discretion toenable aliens to remain in the U.S. to assist in inves-tigations and prosecutions); J.A. 84-85.

2. S.B. 1070 threatens these critical and delibe-rately forged relationships, eliminating importantpublic safety benefits. Police would be compelled tointerrogate and perhaps incarcerate many of theirpotential allies. J.A. 51 (noting that, in the past, anundocumented immigrant physically detained a sus-pected child molester to aid police). Moreover, even ifan exception existed in a certain case, most peoplewill be reluctant to risk deportation by making theirnames—and what they witnessed or experienced—known. J.A. 84-85.

Law enforcement officers’ role as immigration en-forcers will become highly salient in the eyes of thecommunity they seek to protect—and that will rend-er community members, both U.S. citizens and non-citizens, uncooperative, destroying the fundamentalbasis for community policing. J.A. 84-85; J.A. 67(“We cannot bear the destruction of our relationshipswith our local community that we so vitally need inorder to be successful in our mission to protect thepublic and make our City a better place to live withan excellent quality of life.”).

This will deter illegal immigrants from reportingon their own abuse. See, e.g., Southern Poverty LawCtr., Under Siege: Life for Low-Income Latinos in theSouth, at 6 (Apr. 2009), available athttp://www.splcenter.org/sites/default/files/downloads/UnderSiege.pdf (noting that 41% of migrant work-ers surveyed reported wage theft). It will also deterU.S. citizens in mixed-status households, or who fear

32

that their family members will be deported as a re-sult of their interaction with police. J.A. 85.

That is not a small or isolated effect. Studies in-dicate that 2.3 million U.S. citizens live in mixed-status households. Harris Statement, supra, at 77.13

The mandatory 100% enforcement of the immigra-tion laws required by S.B. 1070 therefore threatensthe safety interests of entire communities. See JackDunphy, Arresting a Crime Wave, National ReviewOnline, Jan. 30, 2008,http://www.nationalreview.com/articles/216650/arresting-crime-wave/jack-dunphy (quoting Los AngelesAssistant Chief George Gascón, who noted that aman who assaults an undocumented woman whofails to report the assault will likely repeat the crimeagainst someone else).

As amicus Major Cities Chiefs Association, agroup of police chiefs from the 70 largest police de-partments in the United States and Canada, stated:

13 The Police Foundation estimates that 85% of immigrants livein mixed-status families. Khashu, supra, at 24. Furthermore,many U.S. citizens live in neighborhoods with or engage in oc-cupations shared by illegal immigrants. Both give rise to rea-sonable suspicion for a police investigation. And if these citi-zens, like 11% percent of all voting-age Americans, fail to havea recognized form of government identification, they can be de-tained until ICE can confirm their status. See The BrennanCenter for Justice, Citizens Without Proof: A Survey of Ameri-cans’ Possession of Documentary Proof of Citizenship and PhotoIdentification, at 3 (2006), available atwww.brennancenter.org/page/-/d/download_file_39242.pdf(identifying the number of Americans without citizenship iden-tification).

33

Without assurances that contact with the po-lice would not result in purely civil immigra-tion enforcement action, the hard won trust,communication and cooperation from theimmigrant community would disappear.Such a divide between the local police andimmigrant groups would result in increasedcrime against immigrants and in the broadercommunity, create a class of silent victimsand eliminate the potential for assistancefrom immigrants in solving crimes or pre-venting future terroristic acts.

Major Cities Chiefs Immigration Committee Recom-mendations: For Enforcement of Immigration LawsBy Local Police Agencies 6 (June 2006), available athttps://www.majorcitieschiefs.com/pdf/MCC_Position_Statement.pdf.

Significantly, this effect will not be limited tostates like Arizona that adopt statutes such as S.B.1070. Once it becomes known that law enforcementauthorities in some states have adopted this ap-proach to enforcing federal immigration laws, U.S.citizens and other individuals in immigrant commun-ities in other states will reasonably attribute thesame approach to all law enforcement officers. Statesthat decline to adopt a policy like Arizona’s will non-etheless be burdened by the reduction in law en-forcement effectiveness that flows from the elimina-tion of trust between communities and the law en-forcement officers who protect them.

By adopting an immigration law enforcementapproach that is directly inconsistent with federalpolicy, Arizona will therefore injure not only its ownlaw enforcement efforts, but also the local law en-forcement of its sister states across the nation.

34

CONCLUSION

The judgment of the court of appeals should beaffirmed.

Respectfully submitted.

JEFFREY A. MEYER

Yale Law SchoolSupreme Court Clinic127 Wall StreetNew Haven, CT 06511(203) 432-4992

ANDREW J. PINCUS

Counsel of RecordCHARLES ROTHFELD

Mayer Brown LLP1999 K Street, NWWashington, DC 20006(202) 263-3000apincus@mayerbrown.com

Counsel for Major Cities Chiefs Police Association

MARCH 2012