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< Back to current issue of Immigration Daily

SB 1070 Is Dead–Where Do We Go From Here?

by Charles H. Kuck

In her decision on the constitutionality of Arizona’s SB 1070, Judge Bolton was quite specific as to what provisions were unconstitutional:

Applying the proper legal standards based upon well-established precedent, the Court finds that the United States is likely to succeed on the merits in showing that the following Sections of S.B. 1070 are preempted by federal law:

Portion of Section 2 of S.B. 1070 –A.R.S. § 11-1051(B): requiring that an officer make a reasonable attempt to determine the immigration status of a person stopped, detained or arrested if there is a reasonable suspicion that the person is unlawfully present in the United States, and requiring verification of the immigration status of any person arrested prior to releasing that person

Section 3 of S.B. 1070–A.R.S. § 13-1509: creating a crime for the failure to apply for or carry alien registration papers

Portion of Section 5 of S.B. 1070– A.R.S. § 13-2928(C): creating a crime for an unauthorized alien to solicit, apply for, or perform work

Section 6 of S.B. 1070–A.R.S. § 13-3883(A)(5): authorizing the warrant-less arrest of a person where there is probable cause to believe the person has committed a public offense that makes the person removable from the United States.

Her rationale was simple–These specific provisions unconstitutionally infringe on the Federal Governments authority in the area of Immigration. She has a long line of authority supporting her reasoning, dating back to Supreme Court cases from 1941. There is not going to be a successful appeal. Period. From a rational point of view, we do not want or need, as a country, 50 different states passing 50 different versions of immigration law. It is not good for commerce, it is not good for the country, and it certainly is not good for immigrants.

Rather than wasting time (and we are wasting time) fighting a law that the writers KNEW would be declared unconstitutional (don’t doubt that Kris Kobach knew he would lose this fight), why don’t opponents of “illegal immigration” spend time working with members of Congress to pass legislation that changes our immigration laws to reflect the economics of the 21st Century, the goals we have as a country for new immigrants, the demands employers have for skilled and unskilled labor, due process guarantees, and the reunification of families? Why, because the folks who virulently oppose “illegal immigration” are not interested in fixing the system to decrease illegal immigration. They are only interested in eliminating immigrants.

Twenty years of fighting illegal immigration by ever tougher enforcement and attrition simply has not worked. Billions of dollars have been spent, and yet folks still cross the border illegally and overstay their visas. The size of the border patrol has quintupled and we have deported record numbers of immigrants, and yet there is no significant decrease in the overall numbers of undocumented immigrants (absent economic reasons). As Einstein said: Doing the same thing over and over again and expecting a different result is the very definition of Insanity. Do we really want an insane immigration policy? I hope so, because that is exactly what we have right now, and we desperately need to fix it.

How about instead of appealing a well reasoned and strongly supported decision, Governor Brewer (and her fellow Governors) sits down with her members of Congress and encourages them to pass a Comprehensive Immigration Reform package that discourages future illegal immigration by making available avenues for legal immigration that meet the economic and societal needs of a modern America? This same legislation can shrink the size of the current undocumented population by providing incentives to obtain legal status. Magically, her concerns are addressed, AND the folks at DHS can focus on those folks who mean to do us harm, rather stopping dishwashers and landscapers.


About The Author

Charles H. Kuck is the Managing Partner of Kuck Immigration Partners LLC-The Immigration Law Firm, and oversees its nationwide immigration practice. His practice focuses on U.S. Immigration and Nationality Law and international migration matters. Mr. Kuck assists employers and employees with business and professional visas, labor certifications, immigrant visas, consular representation, and citizenship matters. Mr. Kuck also maintains an active Federal Court practice focusing on immigration issues.


The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.


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