In a 5-3 decision authored by Justice Kennedy, the Supreme Court
struck down most of the main provisions of an Arizona law targeting
illegal immigration. The law, known as the "Support Our Law
Enforcement and Safe Neighborhoods Act" or "S.B.
1070," codified Arizona's policy of "attrition
through enforcement." This policy presumes that undocumented
individuals will leave the United States in response to unfavorable
or hostile laws. Four provisions of the law were at issue in this
Section 3, criminalizing the "willful failure to complete
or carry an alien registration document ..."
Section 5(C), providing that it is a misdemeanor for "an
unauthorized alien to knowingly apply for work, solicit work in a
public place or perform work as an employee or independent
contractor in [Arizona]."
Section 6, enabling a police officer to proceed with a
warrantless arrest "... if the officer has probable cause to
believe ... [the individual] has committed any public offense that
makes [him or her] removable from the United States."
Section 2B, empowering Arizona police officers to determine the
immigration status of any individual stopped or arrested should
"reasonable suspicion" exist that the person is illegally
in the country.
In striking down Sections 3, 5(C), and 6, the Court advanced
principles of federalism and preemption to expose how the
provisions conflict, and in some cases undermine, the national
government's immigration regime. Accordingly, the Court found
that these three provisions were preempted by federal law.
The Court did, nonetheless, uphold Section 2B. In so doing, the
Court narrowly construed the provision, thus preventing an
expansive application of the law. It also left open the possibility
of civil rights challenges in the future. We expect to see
challenges to this provision of the law, which will undoubtedly
result in racial profiling in Arizona and states with similar
Various states throughout the country have laws on their books
that deal with immigration issues and many others are considering
implementing immigration-related statutes. Employers must be
mindful of both the federal and state laws that impact their
businesses to ensure proper compliance. Mintz Levin will continue
to monitor developments in Arizona and other states that have
For employers, the Court's ruling in Arizona v. United
States does not disturb current worksite obligations.
Employers must remain vigilant not to hire or employ any
undocumented worker, and must be prepared to handle a worksite
raid. Federal and state contractors who are subject to E-Verify
must ensure that they are using E-Verify properly and that covered
subcontractors have also enrolled in the E-Verify program. An
employer who violates federal immigration laws may be subject to
civil sanctions and/or criminal prosecution.
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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On March 8, United States Citizenship and Immigration Services (USCIS) issued a revised Form I-9, Employment Eligibility Verification, bearing an edition date of March 8, 2013, for immediate use by employers.
A bipartisan group of eight U.S. senators has introduced the Border Security, Economic Opportunity and Immigration Modernization Act of 2013, an 844-page bill that aims to bolster border security and seeks to provide some of the nation's 11 million undocumented people with a path to citizenship.