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snowgirl's Journal: Martin H. Escobar vs Jan Brewer et al. 13

Journal by snowgirl

I found a pointer to the actual complaint filed in the District Court of Arizona titled "Martin H. Escobar vs Jan Brewer et al."

A lot of arguments are made throughout much of the complaint about violations of various rights, however towards the end of the complaint is actually, what I perceive as being the most significant piece:

Count Six, "Federal Preemption & Unauthorized or Supervised Federal Immigration Conduct" allegation 58:

58. Defendants' actions against Plaintiff constitute a violation of 8 U.S.C. 1357, Subsection 287(g)(1) and (5) as the City of Tucson has no authorization or agreement with the United States to perform any immigration inquires of any persons present in the United States.

Hm, well, let's take a look at these laws shall we? 8 U.S.C. 1357:

(g) Performance of immigration officer functions by State officers and employees
(1) Notwithstanding section 1342 of title 31, the Attorney General may enter into a written agreement with a State, or any political subdivision of a State, pursuant to which an officer or employee of the State or subdivision, who is determined by the Attorney General to be qualified to perform a function of an immigration officer in relation to the investigation, apprehension, or detention of aliens in the United States (including the transportation of such aliens across State lines to detention centers), may carry out such function at the expense of the State or political subdivision and to the extent consistent with State and local law.
(2) An agreement under this subsection shall require that an officer or employee of a State or political subdivision of a State performing a function under the agreement shall have knowledge of, and adhere to, Federal law relating to the function, and shall contain a written certification that the officers or employees performing the function under the agreement have received adequate training regarding the enforcement of relevant Federal immigration laws.
(3) In performing a function under this subsection, an officer or employee of a State or political subdivision of a State shall be subject to the direction and supervision of the Attorney General.
(4) In performing a function under this subsection, an officer or employee of a State or political subdivision of a State may use Federal property or facilities, as provided in a written agreement between the Attorney General and the State or subdivision.
(5) With respect to each officer or employee of a State or political subdivision who is authorized to perform a function under this subsection, the specific powers and duties that may be, or are required to be, exercised or performed by the individual, the duration of the authority of the individual, and the position of the agency of the Attorney General who is required to supervise and direct the individual, shall be set forth in a written agreement between the Attorney General and the State or political subdivision.
(6) The Attorney General may not accept a service under this subsection if the service will be used to displace any Federal employee.
(7) Except as provided in paragraph (8), an officer or employee of a State or political subdivision of a State performing functions under this subsection shall not be treated as a Federal employee for any purpose other than for purposes of chapter 81 of title 5 (relating to compensation for injury) and sections 2671 through 2680 of title 28 (relating to tort claims).
(8) An officer or employee of a State or political subdivision of a State acting under color of authority under this subsection, or any agreement entered into under this subsection, shall be considered to be acting under color of Federal authority for purposes of determining the liability, and immunity from suit, of the officer or employee in a civil action brought under Federal or State law.
(9) Nothing in this subsection shall be construed to require any State or political subdivision of a State to enter into an agreement with the Attorney General under this subsection.
(10) Nothing in this subsection shall be construed to require an agreement under this subsection in order for any officer or employee of a State or political subdivision of a State--
(A) to communicate with the Attorney General regarding the immigration status of any individual, including reporting knowledge that a particular alien is not lawfully present in the United States; or
(B) otherwise to cooperate with the Attorney General in the identification, apprehension, detention, or removal of aliens not lawfully present in the United States.

What a love piece of law this is... it's like it sets out the legal way that a state or local officer or employee may enforce the immigration laws of the United States. And it requires written federal consent.

I believe that I have stated before that my primary issue with this bill was that Arizona lacks the legal authority to enforce US Immigration Laws, and this pretty much explicitly states how they could get that authority. Yet, rather than follow legal channels, they've decided to just hop the border and do what they want to do.

Any one find some irony in this? That the people calling out for the Federal government to enforce the law... are calling for their state and local governments to break the law themselves? What happened to the importance of "Rule of Law" and "Do it right, or don't do it at all!"

Note: (10)(A) allows the officers to communicate with the Federal Attorney General if they find out someone is illegal, but by federal statutory law they do not have the authority to question someone's immigration status themselves.

If the AZ law held only that Police had to take due responsibility to validate the immigration status of individuals in custody before release (one of the provisions that it does provide) then things would be ok. You have already collected their information, and so you just run it by the AG, and they come back perhaps with a "nope, he's not documented, please detain him until we can take custody". VIOLA, IT'S FUCKING LEGAL.

The whole thing boils down to this. Even if Arizona had specific written authorization for every employee and officer of their state and local governments, each of those individuals would require them to have "knowledge of, and adhere to, Federal law relating to the function" and have written certification, that they have "received adequate training regarding the enforcement of relevant Federal immigration laws." and even then they would be "subject to the direction and supervision of the Attorney General."

While people are purporting that the AZ law mirrors US immigration law, the fact is that it attempts to establish a unilateral cooperation that requires bilateral agreement, and fails to establish the proper authority and supervision of state and local employees.

That's all I have to say about this... you can argue until you're blue in the face, but the law is the fucking law. Yes, it is absolute fact that the immigrants need to have their paperwork on them. Yes, it is absolute fact that immigrants can be questioned by lawfully authorized representatives of the Federal government. But No, it is absolute fact that SB 1070 does not establish the proper authority.

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Martin H. Escobar vs Jan Brewer et al.

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  • That is, maybe Arizona is not wishing that this goes unchallenged (where they'd be stuck handling it by themselves), but that it be challenged, and moved up the consciousness and priority list of Americans and the courts. At least it's hard to imagine that this is what they'd ultimately want.

    If I were the federal govt. (and hence wanted porous borders -- Righties: for the cheap labor, Lefties: for the votes), I would tell Arizona "fine, go ahead". And I think AZ would say "Doh!". I don't see why the corrupt

    • by snowgirl (978879)

      If I were the federal govt. (and hence wanted porous borders -- Righties: for the cheap labor, Lefties: for the votes), I would tell Arizona "fine, go ahead". And I think AZ would say "Doh!". I don't see why the corrupt federal govt. would really care unless other states did similar and actually cut down on this pool of people that's so ripe for use and abuse.

      The Federal Government does enforce immigration law though. Can they catch every single illegal? Can the state and local government catch every speeder?

      The left does not have (quote) "the votes" from illegals as they are now. And if these illegals are capable of voting now, then they are capable of obtaining documents creating a presumption of being citizens, then that would mean the Arizona law as written would be unenforceable.

      The entire point is that there is a rule of law in this country, but not all

      • by gmhowell (26755)

        The illegals may not have the votes, but if they are joining their legal family members in the US, those citizens may be kindly disposed towards politicians who appear to have 'helped'.

        • by snowgirl (978879)

          The illegals may not have the votes, but if they are joining their legal family members in the US, those citizens may be kindly disposed towards politicians who appear to have 'helped'.

          I don't think that those individuals, for whom the presence of their illegal family members would persuade them to to vote for Politician XY, would change their vote if their illegal family member were not here.

          Basically: voter with illegal family member is "helped" by Politician XY, voter votes for Politician XY. Same voter still would have voted for Politician XY if illegal family member weren't "helped", because Politician Z already holds policies that are not in their interest.

          • by gmhowell (26755)

            One of the tricks is that the Hispanic community is not monolithic. Cubans are a large block (particularly in FL) whose peculiar desires color the situation. They view the GOP as helping them in their fight against the communists. But they may think twice if the dry land provision were eliminated. I'm sure there is a better example (say with one of the central American countries we 'assisted' in the 80's), but that's what I have.

            Look at the returns for the '08 election. While Bush and Rove made serious inro

            • by snowgirl (978879)

              I view them as a demographic that SHOULD be in play, but the GOP is running back towards their lunatic fringe. It's insane. Why be so concerned about the Tea Baggers? Where else are they going to go? They can only be a spoiler to the GOP candidate, and the positions and thinking, when it solidifies somewhat, will prove to be offensive to middle of the road independents (vs. the 'no true Scotsman' conservatives who have abandoned the GOP).

              Right... as far as I can see through this particular paragraph of your rambling, you're right.

              The other stuff was fairly undebatable... to quote James Carville in Old School, "I have no response, what he said was perfect."

              • by gmhowell (26755)

                The GOP shouldn't waste any more time going after the tea baggers than the Democratic party does going after PETA or Greenpeace members. The tea baggers have nowhere else to go that really matters. By pulling away (or merely ignoring them) the GOP can appeal to more independents. Should be a net gain.

                • by snowgirl (978879)

                  The GOP shouldn't waste any more time going after the tea baggers than the Democratic party does going after PETA or Greenpeace members. The tea baggers have nowhere else to go that really matters. By pulling away (or merely ignoring them) the GOP can appeal to more independents. Should be a net gain.

                  One would imagine, and could likely prove this as a truth...

                  However, fat chance? :(

  • by gmhowell (26755)

    Viola is kinda like a banjo or fiddle, perhaps you meant 'voila'?

    And the problem with AZ acting in concert with the Fed and following Fed rules is that it wouldn't let the politicians and people of AZ be a bunch of ignorant, xenophobic dipshits, frothing at the mouth to get someone for 'BWL'.

    • by snowgirl (978879)

      Viola is kinda like a banjo or fiddle, perhaps you meant 'voila'?

      I have the strict policy of fucking up French loans into English, and if need be, I will even do it intentionally!

      And the problem with AZ acting in concert with the Fed and following Fed rules is that it wouldn't let the politicians and people of AZ be a bunch of ignorant, xenophobic dipshits, frothing at the mouth to get someone for 'BWL'.

      SB 1070 apologists have been claiming that it mirrors the relevant USC (which is easy to say when the bill says "We will enforce 8 U.S.C. blah blah blah"). The problem, as always, with laws is that this is only half the story. Further laws can greatly change the substance of some laws.

      For instance, the laws regarding what is necessary to fire someone in an "At Will" state typically say somethi

      • by unitron (5733)

        VIOLA, IT'S FUCKING LEGAL.

        So who's this Viola person, and why are you yelling at her? : - )

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