PHOENIX - Attorneys involved in another challenge of Arizona's immigration law are weighing whether and when to seek their own injunction to stop the law from taking effect.
Alessandra Soler, director of the Arizona chapter of the American Civil Liberties Union, said Friday that the lawyers in that parallel case believe they already have evidence Hispanics are likely to be the victims of racial profiling if SB 1070 is allowed to go into effect. The remaining question, she said, is whether to wait until that happens or intercede now.
But Victor Viramontes, senior counsel for the Mexican American Legal Defense and Educational Fund, said he believes there is a strong case to be made to seek a new injunction based on the likelihood that there is no way SB 1070 can be enforced in a constitutional manner.
There is a small window of time to make a decision.
The 9th U.S. Circuit Court of Appeals said it will not schedule a hearing before July 20 on what to do in the wake of last Monday's ruling by the U.S. Supreme Court upholding a key provision of the controversial 2010 law.
That provision allows state and local police to check the immigration status of those they have stopped if there is reason to believe that person is in the country illegally. The appellate court had previously sided with U.S. District Court Judge Susan Bolton, who concluded that such provision is pre-empted by federal law.
Even at that point, the appellate court ultimately would have to send the case back to Bolton, who issued the original injunction.
The case decided Monday by the high court never addressed the allegations by the ACLU, MALDEF and others in their own legal challenge to the law that there is no way for that provision to be implemented without discriminating against people based on their race or national origin. U.S. Solicitor General Donald Verrilli Jr. conceded during questioning by the justices that the arguments by the Obama administration against SB 1070 were totally unrelated to issues of profiling.
Soler said one option now is to wait until the original injunction against the provision is dissolved and see what happens. But she said that may not be necessary, citing the allegations in the lawsuit filed by the ACLU, MALDEF and others.
"We provided them with plaintiffs who either had been asked for proof of citizenship and either had been stopped a couple of times in April (2010) or would be harmed if the law went into effect," she said.
That first group, Soler said, is significant because they were already being targeted after Gov. Jan Brewer signed the law but before it was even scheduled to take effect.
The second group, she continued, consists of people who are "here with permission of the federal government but didn't have appropriate documentation." These include domestic violence victims who have sought permission to remain in the country but technically are not legal residents.
Viramontes said the issue is even more basic than that.
He noted that Justice Anthony Roberts, in writing Monday's ruling, said the state can ask questions of legal presence of those they already have stopped. But Viramontes said the court essentially said that questioning becomes illegal when someone is detained for any period longer than necessary to deal with the original reason the person was stopped.
Roberts, however, gave no indication of at what point, in terms of minutes, a legal stop becomes illegal. Viramontes said that pretty much makes SB 1070 unenforceable in a legal way.
"Can police officers be asked to apply something that the Supreme Court doesn't even know what it means?" he asked.
The challenge to SB 1070 in which the ACLU and MALDEF are involved was filed prior to the decision by the Obama administration to try to overturn the law on grounds of federal pre-emption. But Bolton opted to have a hearing on the federal case first and issue the injunction based on those preemption issues.
In the interim, she has allowed other challenges to languish, awaiting the Supreme Court ruling.
That decision on Monday eliminates at least some elements of other challenges, striking down three other provisions of the law: making it a state crime for an undocumented worker to seek employment in the state; criminalizing under the failure to carry certain federal immigration documents; and allowing state and local police to detain someone who is guilty of an offense that makes them deportable under federal immigration law.
In each case, the majority of the court said, Arizona was illegally infringing into an area that is exclusively the province of the federal government.