Final Exam Question based on Arizona’s new immigration law.

Sunday, June 6th, 2010
By: Jonathan MontagJ.D.

In this blog I have posted some surveys. Today, I post a final exam question.

Here is the scenario.

Fred is walking down the street in San Diego, California. His clothes are neat and clean and he stands out in no way other than perhaps an ethnic physiognomy. Immigration officers stop him and ask him where he was born. Fred asks the officers why they want to know. They answer him, “Listen, Shecky, we ask the questions here!” Fred then says, “I do not want to answer. Am I free to go?” The officers tell him he is not free to go and then arrest him. They search him and find no identification. They take him “downtown” and fingerprint him. The prints indicate a conviction for Violating Arizona Revised Statute 13-1509, the new Arizona immigration law, a.k.a. SB 1070, which reads, in part:

Trespassing by illegal aliens; assessment; exception; classification

A. In addition to any violation of federal law, a person is guilty of trespassing if the person is both:

1. Present on any public or private land in this state.

2. In violation of 8 United States Code Section 1304(e) or 1306(a).

B. In the enforcement of this section the final determination of an alien’s immigration status shall be determined either:

Alien’s immigration status shall be determined by either:

1. A law enforcement officer who is authorized by the federal government to verify or ascertain an alien’s immigration status.

2. A law enforcement officer or agency communicating with the United States Immigration and Customs Enforcement or the United States Border Protection Pursuant to 8 United States Code Section 1373(c).

While confined by ICE, Fred explained that he was arrested in Arizona and after he was convicted and sent to jail, Arizona authorities brought him to an Immigration and Customs Enforcement office. The holding pens were filled with aliens ICE officers had arrested that morning which included a large number of serious criminals with outstanding deportation orders. After sitting in the holding cell for several hours, an officer asked for his address and told him to come back next week. Fred left and moved to California where he quickly found work at a restaurant.

ICE sent Fred to immigration court charging him with being present in the United States without authorization. Fred denied the charge and informed the immigration judge that ICE has the burden of proving alienage. ICE attorneys explained to the immigration judge that Fred’s Arizona conviction proved alienage arguing that his conviction for being an “illegal alien” in a competent court in Arizona could be used as proof that he was an illegal alien. The ICE attorney admitted that they had no further proof of alienage. The immigration judge said he would hold in abeyance discussion of whether Fred’s stop by officers on the street was legal, but wanted briefing on who had the burden of proving whether Fred was legal in the United States, Fred or ICE, and whether the Arizona conviction was adequate proof of alienage.

Please discuss:

1. Who has the burden to prove alienage?

2. Is the Arizona conviction adequate to prove that Fred is in the United States legally?

3. What relevance do 8 USC §§ 1304(e) or 1306(a) (INA § 264(e) and 266(a)), the sections of the Immigration and Nationality Act referenced in the Arizona statute as having to be violated have to being illegal in the United States when the registration requirements alluded to in these sections no longer exist?

4. Identify law enforcement officers who are authorized by the federal government to verify or ascertain an alien’s immigration status besides an immigration judge whose decisions are appealable to the Board of Immigration Appeals, the circuit courts of appeals, and the United States Supreme Court? Can the non-binding, seat of the pants opinion of a non-lawyer immigration officer suffice for a finding of being illegal under Arizona law, and if so, is this finding binding on an immigration court?

5. Similarly, should the opinion of a law enforcement officer identified at 8 U.S.C. § 1373  be binding on an immigration judge if that is the basis of the Arizona conviction?

In your answer, address the relevant sections of the Immigration and Nationality Act and be sure to address issues of res judicata and collateral estoppel (consider (1) an identity of claims, (2) a final judgment on the merits, and (3) privity between parties, and Article 1, Section 4 of the U.S. Constitution, the Full Faith and Credit Clause.

Feel free to post your answers. I promise careful analysis of any serious or semi-serious response.   Posted June 5, 2010.

 


 

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