Amicus Curiae Brief from Professors Marie Provine and Cecilia Menjivar

7/23/2019 Amicus Curiae Brief from Professors Marie Provine and Cecilia Menjivar

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Nos.15-15211, 15-15213, 15-15215

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PUENTE ARIZONA, et al.,

Plaintiff-Appellee,

vs.

JOSEPH M. ARPAIO, et al.,

Defendant-Appellants.

On Appeal from the United States District Court for the District of ArizonaCase No. 2:14-CV-01356-DCG (PHX)

Honorable David G. Campbell, District Court Judge

MOTION OF PROFESSORS DORIS MARIE PROVINE AND CECILIA

MENJVARFOR LEAVE TO FILE AMICI CURIAE BRIEF IN SUPPORT

OF PLAINTIFF-APPELLEES

WILLIAM L.THORPESPENCER G.SCHARFFTHORPE SHWER,P.C.3200 North Central Avenue, Suite 1560Phoenix, Arizona 85012-2441Telephone: (602) 682-6100Facsimile: (602) [email protected]

Counsel for Amici CuriaeProfessors Doris Marie Provine andCecilia Menjvar

Case: 15-15211, 08/28/2015, ID: 9665368, DktEntry: 59-1, Page 1 of 5

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MOTION FOR LEAVE TO FILE AMICI CURIAE BRIEF

IN SUPPORT OF PLAINTIFF-APPELLEES

Amici Curiae Professors Doris Marie Provine and Cecilia Menjvar

respectfully move for leave to file the attached amici curiae brief in support of

Plaintiff-Appellees. Amici have obtained consent of the attorneys for Plaintiff-

Appellees and Defendant-Appellant State of Arizona. Amiciendeavored to obtain

consent of Defendant-Appellants Sheriff Arpaio, Maricopa County, and County

Attorney Montgomery for filing this amicibrief, but their attorneys did not respond

toAmicis request. See9th Cir. R. 29-3.

The proposed Amici, Professors Doris Marie Provine and Cecilia Menjvar,

are professors with well-established reputations as experts in policies and practices

related to unauthorized immigrants and in the investigation of legislative intent.

Dr. Doris Marie Provine (J.D., Ph.D. Cornell) has written a well-received

book about Congressional intent in adopting various sentencing laws for violations

of federal drug lawsUnequal Under Law: Race and the War on Drugs

(University of Chicago Press 2007). Dr. Provines current research focuses on

policies affecting unauthorized immigrants, particularly in Arizona. With two

major grants from the National Science Association, she and three co-authors have

written: Policing Immigrants: Local Law Enforcement on the Front Lines

(University of Chicago Press, Forthcoming). Dr. Provine came to Arizona in 2001

from Syracuse University to direct the School of Justice Studies at Arizona State


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University. She is currently professor emeritaat Arizona State University and a

member of the board of the Arizona affiliate of the American Civil Liberties

Union, which serves as co-counsel to Plaintiff-Appellees. Her co-authorship of

this brief, however, arises out of her expertise as a scholar of immigration and

legislative intent.

Dr. Menjvar (Ph.D. U.C. Davis) is a sociologist with expertise in how law

and policy can create adverse consequences for excluded groups. She has written

widely on the situation facing women immigrant communities living under threat

of deportation and guided many doctoral students in the study of immigration

policies and their consequences. Recently, with Professor Daniel Kanstroom, she

edited a major volume on immigration and law: Constructing Immigrant

Illegality: Critiques, Experiences, and Responses(Cambridge University Press

2014). Dr. Menjvar has received much recognition for her contributions, and has

successfully sought major funding for her research. She recently accepted a

position as Foundation Distinguished Professor of Sociology at the University of

Kansas after a successful career at Arizona State University.

The issues raised in this appeal are within their areas of expertise.

Defendant-Appellants claim that H.B. 2779 and H.B. 2745, the two Arizona

statutes that are the subject of this appeal, have no immigrant-related purpose. See

Opening Br. (Dkt. #28) at 14 (contending that the Identity Theft Laws are


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unlike any of the previous statutes found to violate federal supremacy on

immigration because the laws include no reference to immigration.). It is,

however, important to place legislation in its historical, political, and social context

to properly analyze legislative purpose.

By this brief, Amici demonstrate that the history of anti-immigrant

legislation preceding H.B. 2779 and H.B. 2745, as well as the sponsorship of these

two bills by a long-standing opponent of unauthorized immigration, reveal a

motive to make state-level immigration policy in an area preempted by federal law.

As experts in policies and practices related to unauthorized immigrants and in the

investigation of legislative intent, theAmiciare uniquely positioned to offer insight

into the legislative purpose of H.B. 2779 and H.B. 2745. The perspective of the

proposedAmicishould therefore be valuable to the Court.

Amici respectfully request that this Court grant leave to file the brief

submitted concurrently with this motion.

DATED this 28th day of August, 2015.

THORPE SHWER, P.C.

By s/Spencer G. ScharffWilliam L. ThorpeSpencer G. ScharffCounsel for Amici Curiae


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CERTIFICATE OF SERVICE

I hereby certify that on August 28, 2015, I electronically filed the foregoing

MOTION OF PROFESSORS DORIS MARIE PROVINE AND CECILIA

MENJVAR FOR LEAVE TO FILE AMICI CURIAE BRIEF IN SUPPORT OF

PLAINTIFF-APPELLEES, with the Clerk of the Court for the United States Court

of Appeals for the Ninth Circuit by using the appellate CM/ECF system. I certify

that all participants in the case are registered CM/ECF users and that service will

be accomplished by the appellate CM/ECF system.

Dated: August 28, 2015 By s/Spencer G. ScharffWilliam L. ThorpeSpencer G. ScharffCounsel for Amici Curiae


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Nos.15-15211, 15-15213, 15-15215

IN THE UNITED STATES COURT OF APPEALSFOR THE NINTH CIRCUIT

PUENTE ARIZONA, et al.,

Plaintiff-Appellees,

vs.

JOSEPH M. ARPAIO, et al.,

Defendant-Appellants.

On Appeal from the United States District Court for the District of ArizonaCase No. 2:14-CV-01356-DCG (PHX)

Honorable David G. Campbell, District Court Judge

BRIEF OF AMICI CURIAE PROFESSORS DORIS MARIE PROVINE

AND CECILIA MENJVARIN SUPPORT OF PLAINTIFF-APPELLEES

WILLIAM L.THORPESPENCER G.SCHARFFTHORPE SHWER,P.C.3200 North Central Avenue, Suite 1560Phoenix, Arizona 85012-2441Telephone: (602) 682-6100Facsimile: (602) [email protected]

Counsel for Amici CuriaeProfessors Doris Marie Provine andCecilia Menjvar


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CORPORATE DISCLOSURE STATEMENT

Pursuant to Federal Rule of Appellate Procedure 26.1, the undersigned states

that the amicus is not a corporation that issues stock or has a parent corporation

that issues stock.


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STATEMENT OF COMPLIANCE WITH RULE 29(C)(5)

This brief is submitted pursuant to Rule 29(a) of the Federal Rules of

Appellate Procedure. Counsel for Amici Curiae and Counsel for Plaintiff-

Appellees consulted with each other in the drafting of this brief; however, no party

or partys counsel contributed money that was intended to fund preparing or

submitting the brief; and no person other than the amicus curiae, its members, or

its counsel, contributed money that was intended to fund preparing or submitting

the brief.


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TABLE OF CONTENTS

INTEREST OF THE AMICI ..................................................................................... 1

SUMMARY OF THE ARGUMENT ........................................................................ 4

ARGUMENT ............................................................................................................. 6

I. H.B. 2779 and H.B. 2745 were part of a broader effort to enactstate-level immigration policy. . ...................................................................... 7

II. The strategy of attrition through enforcement that became theexpress immigration policy of the state of Arizona in 2010 wasin place when H.B. 2779 and H.B. 2745 were adopted. ............................... 15

CONCLUSION ........................................................................................................20


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TABLE OF AUTHORITIES

Cases

Arizona v. Inter Tribal Council of Ariz., Inc, 133 S. Ct. 2247 (2013) .....................17

Gonzalez v. Ariz., 677 F.3d 383 (9th Cir. 2012) ......................................................17

Puente Arizona v. Arpaio, 76 F. Supp. 3d 833 (D. Ariz. 2015) ..............................20

Statutes and Rules

Arizona House Bill 2154 (1996) ..............................................................................16

Arizona House Bill 2243 (2003) ................................................................................ 8

Arizona House Bill 2246 (2003) ..........................................................................8, 16

Arizona House Bill 2745 (2008) ....................... 2, 4, 5, 6, 7, 8, 12, 15, 16, 18, 19, 20

Arizona House Bill 2779 (2007)(The Legal Arizona Workers Act) .......... 2, 4, 5, 6, 7, 8, 12, 15, 16, 18, 19, 20

Arizona Senate Bill 1070 (2010) .................................................................. 7, 14, 15

Proposition 100, Bailable Offenses (2006) ..............................................................10

Proposition 102, Standing in Civil Actions (2006) .............................................8, 11

Proposition 103, English as the Official Language .............................................8, 10

Proposition 200, the Arizona Taxpayer and Citizen Protection Act(2004) ........................................................................................ 8, 9, 16, 17, 18

Proposition 300, Public Programs Eligibility ......................................................8, 10


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Other Authorities

Arizona School Boards Association, Race, Ethnicity, Poverty Factor into theResegregation of Arizonas Schools, September 15, 2014, AZEDNEWS,Accessed on 8/22/2015 at: http://azednews.com/2014/09/15/race-ethnicity-poverty-factor-into-the-re-segregation-of-arizonas-schools/.................passim

Celeste Gonzalez de Bustamante, Arizona and the Making of a State ofExclusion, 1912-2012, pp. 19 - 42, in Arizona Firestorm: GlobalImmigration Realities, National Media, and Provincial Politics, eds. OttoSanta Ana and Celeste Gonzalez de Bustamante, Rowman & Littlefied,2012passim

Leo Chavez, The Latino Threat: Constructing Immigrants, Citizens, and the

Nation, Stanford University Press, 2008passim

Chandler Davidson, Tanya Dunlap, Gale Kenny, and Benjamin Wise, RepublicanBallot Security Programs: Vote Protection or Minority Vote Suppression -Or Both?, A Report to the Center for Voting Rights and Protection,September 2004. Accessed on 8/22/2015 at: http://www.votelaw.com/blog/blogdocs/GOP_Ballot_Security_Programs.pdf.passim

Roxanne Doty, The Law into Their Own Hands: Immigration and the Politics ofExceptionalism, University of Arizona Press, 2009...passim

Jeremy Duda, Ducey, Brnovich Propose $1 million for Federalism Unit,Capitol Times, February 9, 2015, Accessed on 8/20/2015 at:http://www.highbeam.com/doc/1P2-37668000.html.............................passim

Floyd Galloway, Voting Rights in Arizona: Back to the Future, New AmericanMedia, Nov. 4, 2014. Accessed on 8/10/2015 at:http://newamericamedia.org/2014/11/voting-rights-in-arizona-back-to-the-future.php ......passim

Rob E. Hanson, The Great Bisbee I.W.W. Deportation of July 12, 1917, SignaturePress, 1989.passim

Julianne Hing, Joe Arpaio Launches Air Posse to Hunt Immigrants at Border,Colorlines News, March 30, 2011, Accessed on 8/22/2015 at:


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http://www.colorlines.com/articles/joe-arpaio-launches-air-posse-hunt-immigrants-border..................................................................................passim

Alex Johnson, Pro-English measures being revived across U.S.: Congress, statesconsider new proposals to declare an official language, MSNBC, June 15,2009, Accessed on 8/10/2015 at: http://www.nbcnews.com/id/31176525/ns/us_news-life/t/pro-english-measures-being-revived-across-us/#.VcaT7p1VhBcpassim

Cecilia Menjvar and Daniel Kanstroom (eds.) Constructing ImmigrantIllegality: Critiques, Experiences and Responses, Cambridge UniversityPress, 2014....passim

Brian Montopoli, Where Did Jan Brewers Beheading Claim Come From? CBS

News, July 9, 2010. Accessed on 8/10/2015 at:http://www.cbsnews.com/news/where-did-jan-brewers-beheading-claim-come-from/ ...passim

Hiroshi Motomura, Americans in Waiting: The Lost Story of Immigration andCitizenship in the United States, Oxford University Press, 2006.....passim

Mae Ngai,Impossible Subjects: Illegal Aliens and the Making of Modern America,Princeton University Press, 2004.. passim

Linda C. Noel,Debating American Identity: Southwestern Statehood and MexicanImmigration, University of Arizona Press, 2014... passim

Doris Marie Provine and Gabriella Sanchez, Suspecting Immigrants: ExploringLinks between Racialized Anxieties and Expanded Police Powers inArizona, pp. 116-127 in Stop and Search: Police Power in Global Context,Leanne Weber and Ben Bowling (eds.), Routledge, 2013.passim

Doris Marie Provine and Monica Varsanyi, Immigration Federalism in the

Shifting Political Sands of Two Neighboring States, conference paperdelivered at the 2015 annual meeting of the Law & Society Association,Seattle, Washington, June, 2015..passim

Alia Beard Rau, The Fight over States Rights is Back on the Ballot, October 20,2014, Arizona Republic, Accessed on 8/20/2015 at:


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http://www.azcentral.com/story/news/arizona/politics/2014/10/20/federalism-state-rights-ballot/17596035/............................................................... passim

Ted Robbins, The Man Behind Arizonas Toughest Immigration Laws, NationalPublic Radio, March 12, 2008, accessed on 8/10/2015 at:http://www.npr.org/templates/story/story.php?storyId=88125098........passim

Marc R. Rosenblum and Leo B. Gorman, The Public Policy Implications of State-Level Worksite Migration Enforcement: The Experiences of Arizona,

Mississippi, and Illinois,pp. 115 - 134 in Monica W. Varsanyi (ed.), TakingLocal Control: Immigration Policy Activism in U.S. Cities and States,

Stanford University Press, 2010..1920

Kyrsten Sinema, No Surprises: The Evolution of Anti-Immigration Legislation in

Arizona, pp. 62-88 in Charis E. Kubrin, Marjorie S. Zatz, and RamiroMartnez (eds.), Punishing Immigrants: Policy, Politics, and Injustice, NewYork University Press, 2012...716, 18

Zachary Alden Smith, Politics and Public Policy in Arizona, (3rdedn.), Praeger,2002... passim

Monica W. Varsanyi, Immigration Policy Activism in the U.S, States and Cities:Interdisciplinary Perspectives, pp. 1 - 30 in Monica W. Varsanyi (ed.),Taking Local Control: Immigration Policy Activism in U.S. Cities and

States, Stanford University Press, 2010....passim


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INTEREST OF THE AMICI AND CONSENT TO FILE

Professors Doris Marie Provine and Cecilia Menjvar submit this amicus

brief in support of Appellees argument that the purpose and effect of the

challenged provisions in this case was to regulate immigration at the state level by

criminalizing fraud in the federal employment verification system. The professors

are experts in policies and practices related to unauthorized immigrants and in the

investigation of legislative intent.

Dr. Doris Marie Provine (J.D., Ph.D., Cornell) has written a well-received

book about Congressional intent in adopting various sentencing laws for violations

of federal drug lawsUnequal Under Law: Race and the War on Drugs

(University of Chicago Press 2007). Dr. Provines current research focuses on

policies affecting unauthorized immigrants, particularly in Arizona. With two

major grants from the National Science Association, she and three co-authors have

written: Policing Immigrants: Local Law Enforcement on the Front Lines

(University of Chicago Press, Forthcoming). Dr. Provine came to Arizona in 2001

from Syracuse University to direct the School of Justice Studies at Arizona State

University. She is currently professor emeritaat Arizona State University and a

member of the board of the Arizona affiliate of the American Civil Liberties

Union, which serves as co-counsel to Plaintiff-Appellees. Her co-authorship of


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this brief, however, arises out of her expertise as a scholar of immigration and

legislative intent.

Dr. Menjvar (Ph.D., U.C. Davis) is a sociologist with expertise in how law

and policy can create adverse consequences for excluded groups. She has written

widely on the challenges faced by women immigrants living under threat of

deportation, and she has guided many doctoral students in the study of immigration

policies and their consequences. Recently, with Professor Daniel Kanstroom, she

edited a major volume on immigration and law: Constructing Immigrant

Illegality: Critiques, Experiences, and Responses(Cambridge University Press

2014). Dr. Menjvar has received much recognition for her contributions, and has

successfully sought major funding for her research. She recently accepted a

position as Foundation Distinguished Professor of Sociology at the University of

Kansas after a successful career at Arizona State University.

By this brief, Amici demonstrate that the history of anti-immigrant

legislation preceding H.B. 2779 and H.B. 2745, as well as the sponsorship of these

two bills by a long-standing opponent of unauthorized immigration, reveal a

motive to make state-level immigration policy in an area preempted by federal law.

The preliminary injunction against enforcement of these laws as they pertain to

unauthorized immigrants, therefore, should be affirmed. The observations

contained in this brief reflect the views of the Amici, not of the universities and


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institutions with which we are affiliated with; their academic positions are noted

solely to identify them as established scholars at research-oriented institutions.


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SUMMARY OF THE ARGUMENT

Arizona House Bill 2779 (H.B. 2779) and Arizona House Bill 2745 (H.B.

2745) reflect a long-standing legislative approach to the presence of residents who

have migrated from Mexico and Central America without legal authorization.

Discouraging unauthorized immigrants from settling in Arizona has been the

consistent goal of more than 100 bills proposed with increasing frequency over the

past fifteen years. A number of these bills have been enacted into law. The

legislation takes various forms, but often involves (1) conditioning public benefits

upon proof of legal status; (2) requiring local law enforcement personnel to

actively engage in enforcement of federal immigration law; or (3) creating

prohibitions and penalties, often involving the private sector, that are designed to

make life more difficult for those living in Arizona without legal status. H.B. 2779

and H.B. 2745 are examples of this last form.

The groundswell of immigration-related bills in Arizona is a political

response to public hostility in Arizona over the presence of unauthorized

immigrants and anger with the federal government for its perceived failure to

prevent this situation. H.B. 2779 and H.B. 2745 were aimed at appeasing this

public dissatisfaction, and laid the groundwork necessary for widely publicized

workplace raids as well as the criminal conviction and deportation of hundreds of

immigrant workers.


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Appellants argue that H.B. 2779 and H.B. 2745 are constitutional merely

because they do not mention the words immigrant, alien, illegal resident, or

any similar term. Nevertheless, their sponsorship by a long-time advocate of laws

to discourage unauthorized entry and residence, and the circumstances surrounding

their enactment, demonstrate that their actual goal was to make it difficult for

unauthorized immigrants to live in the state.


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ARGUMENT

Appellants claim that H.B. 2779 and H.B. 2745, the two Arizona statutes

that are the subject of this litigation, have no immigrant-related purpose. See

Opening Br. (Dkt. #28) at 14 (contending that the Identity Theft Laws are

unlike any of the previous statutes found to violate federal supremacy on

immigration because the laws include no reference to immigration.). The facts

suggest otherwise, beginning with the wording of the statutes, which single out

persons using false documentation to secure employment as a particular source

of concern. This purpose does not speak to any contemporaneous problem Arizona

had at the time of enactment concerning identity theft undertaken for financial

gain.

The fact that state law-enforcement agents immediately focused on

workplace raids to enforce the new legislation suggests they understood that the

real goal of these laws was to target unauthorized immigrants and to facilitate their

deportation, regardless of federal legislation that was already in place that

addressed the hiring of unauthorized immigrants. Circumstances surrounding the

passage of H.B. 2779 and H.B. 2745, combined with their sponsorship and

stewardship by a state legislator well-known for strident anti-immigrant advocacy

and association with anti-immigrant groups, undermines Arizonas newly-

advanced claim that this legislation has a neutral, non-immigration-related purpose.


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These state laws were part of an evolving legislative and law-enforcement strategy

that culminated two years later in S.B. 1070, when attrition through enforcement

became the express policy of the State of Arizona toward undocumented

immigrants.

I. H.B. 2779 AND H.B. 2745 WERE PART OF A BROADER EFFORTTO ENACT STATE-LEVEL IMMIGRATION POLICY.

Between 2003 and 2011, a handful of Arizona legislators introduced over

100 bills focused on unauthorized immigrants living in Arizona. See Kyrsten

Sinema,No Surprises: The Evolution of Anti-Immigration Legislation in Arizona,

inPUNISHING IMMIGRANTS:POLICY,POLITICS,AND INJUSTICE85 (Charis E. Kubrin,

Marjorie S. Zatz, and Ramiro Martnez eds., 2012) (hereinafter Punishing

Immigrants). They covered a broad range of topics, including access to state-

provided housing, education, and health benefits, local enforcement of federal

immigration law, access to damages in the courts, voting, availability of

workmans compensation and bail, trespass, day labor sites, sanctuary cities,

professional licensing, and other matters. Each of these bills, however, was

designed for a singular purposeto make living and working in Arizona more

difficult for persons lacking legal status.

Table 1 provides a sampling of these proposals. As this table indicates,

many of these bills stalled in the legislative process, but as public support grew

against unauthorized immigration, so too did their prospects for passage. The


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approval by 56% of the voters of Proposition 200, a 2004 state-wide initiative

requiring proof of citizenship to vote and legal status to receive public benefits

represents an important tipping point, as evidenced by three subsequent initiatives

directed at unauthorized immigrants passed in 2006Propositions 102, 103, and

300. Each of the 2006 propositionsreceived over 70% support of the voters. H.B.

2779 and H.B. 2745, passed in the two years following the 2006 initiatives and

highlighted in bold in the table below, exemplify the legislative response to this

voter mandate.

TABLE 1Immigration-Related Bills, 2003-20111

2003

1 This table does not identify all of the 100-plus immigration-related billsintroduced in the Arizona legislature during this time period; rather, it covers asampling in attempts to provide a broader picture of the types of legislationintroduced. The table is largely based on the Appendix in Sinema, PunishingImmigrantsat 7885.

BILL # SUMMARY PRIMARYSPONSOR

OUTCOME

2246 Proof of Citizenship to Vote Pearce Failed in

Committee2243 Requiring Emergency Medical Personnel to

Report Suspected Undocumented Immigrants;Authorizing Local Law Enforcement toEnforce Federal Immigration Laws;Prohibiting Undocumented Immigrations toEnroll in Public Universities; Requiring AllPublic Agencies to Report SuspectedUndocumented Immigrants; Authorizing Local

Pearce Not Heard


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2004BILL # SUMMARY PRIMARYSPONSOR

OUTCOME

Prop.200

Requiring Proof of Citizenship to Register toVote, an ID to Receive a Ballot, Proof ofCitizenship to Receive Public Benefits, andAgencies to Report Suspected UndocumentedImmigrants

Adoptedwith 56% ofthe Vote

2248 Authorizing the Arizona Attorney General toSuspend Business Licenses for 6 Months forViolations of Federal ImmigrationEmployment Laws

Pearce Held inCommittee

2005


OUTCOME

2394 Requiring Report Undocumented StateMedicaid Applicants to Federal Authorities

Pearce Not Heard

2395 Requiring State Department of EconomicSecurity to Verify Immigration Status of AllApplicants

Pearce Not Heard

2030 Prohibiting Undocumented Students fromReceiving In-State Tuition or Scholarships atPublic Universities; Requiring Proof of LegalStatus for Adult Education and FamilyAssistance Programs

Nichols Passed, butVetoed

2030 Constitutional Amendment Making EnglishArizonas Official Language.

Pearce PassedHouse, Held

in Senate2259 Imposing Longer Sentences for Violations of

Federal Immigration Laws and Adding FiveImmigration-Related Aggravating Factors

Gray Enacted

2709 Building a Private Prison in Mexico forMexican Nationals Convicted in Arizona

Jones Passed, butVetoed

Law Enforcement to Enforce FederalImmigration Laws in Connection with AllArrests


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2389 No Bail for Undocumented ImmigrationsCharged with Class 1, 2, or 3 Felonies(Referred to November 2005 Ballot)

Pearce PassedHouse andSenateCommittee

2028/Prop.100

Constitutional Amendment Outlawing Bail forSerious Felons without Legal Status Pearce Adoptedwith 78% ofthe Vote

2384 Imposing Additional Sanctions on BusinessesSanctioned by Federal Authorities for HiringUndocumented Immigrants

Pearce Not Heard

2592 Prohibiting Day Labor Centers from AssistingUndocumented Immigrants

Rosati Enacted

2386,1306

Authorizing Local Law Enforcement toApprehend and Remove Undocumented

Immigrants from U.S. (OK to cross state lines)

Pearce,Johnson

Initially NoHearing,

then Passed,but Vetoed

2006


OUTCOME

2448 Requiring State Medicaid to Verify CitizenshipStatus of Applicants and Report Violations toFederal Immigration Authorities

Burges Enacted

2068/9 Prohibiting Undocumented Students fromReceiving In-State Tuition or Financial Aid

Gray Not Heard

1031/Prop.300

Prohibiting Undocumented Immigrants fromReceiving State-Assisted Adult Education andChildcare, In-State Tuition, and Financial Aid;Requiring Annual Reports to Legislature onUndocumented Applicants

Martin Adoptedwith 71% ofthe Vote

2036/Prop.

103

Adopting English as Arizonas OfficialLanguage; Providing Private Right of Action

Pearce Adoptedwith 74% of

the Vote2761 Building a Private Prison in Mexico forMexican Nationals Convicted in Arizona

Jones Passed, thenHeld

1057 Stripping Undocumented Immigrants ofStanding to File Civil Suits, Except for ActualDamages

Huppenthal Held inHouse


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1001/Prop.102

Prohibiting Undocumented Immigrants fromObtaining Punitive Damages in Lawsuits

Huppenthal Adoptedwith 74% ofthe Vote

2044 Establishing Immigration-Related Employer

Sanctions (Fines, License Revocation, andCriminal Sanctions)

Pearce Passed in

House, Heldin Senate2582 Authorizing Local Law Enforcement to

Investigate, Apprehend, Detain, or RemoveUndocumented Immigrants.

Pearce Passed inHouse, Heldin Senate

1157 Creating State Crime of Trespassing;Establishing First Offence of UnlawfulPresence as a Misdemeanor, and SubsequentOffenses as a Felony

Gray Passed, butVetoed

2071 Authorizing Local Law Enforcement to

Question Detained Suspected CriminalsRegarding Immigration Status

Gray Not Heard

2837 Stripping Local Governments AdoptingSanctuary Policies of State-Shared Revenues

Pearce Failed inFinal House

2577 Requiring Local Law Enforcement to EnforceFederal Immigration Laws; Denying PunitiveDamage Awards to UndocumentedImmigrants; Creating a State Crime ofTrespassing; Denying Adult Education,

Childcare Assistance, and Tuition Assistance toUndocumented Immigrants; EstablishingImmigration-Related Employer Sanctions;Creating Border Enforcement Security Team;Appropriating Funds for Border Security

Pearce Passed, butVetoed

2007


OUTCOME

2471 Prohibiting Undocumented Immigrants fromReceiving Public Benefits, Including Access toK-12 and Higher Education, Grants, Loans,Professional Licenses and Employment,Retirement Benefits, Public Welfare Benefits,Healthcare, Public Housing, and DisabilityBenefits

Pearce Not Heard


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2779 Legal Arizona Workers Act Pearce Enacted2589 Criminalizing Soliciting Employment or Labor

in Certain LocationsKavanagh Passed, but

Vetoed2022 Prohibiting Undocumented Immigrants from

Entering Private or Public Land

Pearce Passed

Committee,then Held2461 Requiring Local Law Enforcement to Inquire

into Legal Status of Detained CriminalSuspects

Pearce Not Heard

2751 Requiring Local Law Enforcement to Complywith and Enforce Federal Immigration Laws

Pearce Passed ThreeHouseCommittees,then Held

2049 Proposing Ballot Referendum Requiring Local

Law Enforcement to Comply with and EnforceFederal Immigration Laws

Pearce Passed

HouseCommittee,then Held

2008


OUTCOME

2043 Proposing Ballot Referendum that WouldProhibit Public Education Without Proof of

Legal Status

Pearce Not Heard

2745 Adjustments to H.B. 2779 (Legal ArizonaWorkers Act)

Pearce Enacted

2750 Prohibiting Undocumented Immigrations fromReceiving Workmans Compensation

Pearce Not Heard

2412 Redefining Criminal Trespass to IncludeKnowingly Standing on a Public Street,Highway, or Adjacent Areas for the Purpose ofSoliciting Employment

Kavanagh PassedHouse,Failed inSenate

2039 Proposing Ballot Referendum Requiring LocalLaw Enforcement to Comply with and EnforceFederal Immigration Laws and ProhibitingUndocumented Immigrants from EnteringPrivate or Public Land

Pearce PassedHouseCommittee,then Held

2625 Prohibiting Landlords from Knowingly andRecklessly Renting or Leasing any Property or

Pearce PassedHouse


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Dwelling to Undocumented Immigrants Committee,the Held

2807 Requiring Local Law Enforcement to TrainOfficers in Federal Immigration Laws, or to

Imbed ICE Officers in the Police Force

Nelson Passed, butVetoed

2064 Proposing Ballot Referendum for H.R. 2807 Nelson PassedHouseCommittee,the Held

2009


OUTCOME

1172 Requires Department of Education to CollectPopulation Data of Undocumented Studentsand Estimate Cost of Educating UndocumentedStudents; Authorizing Superintendent toWithhold Funds for Non-Compliance

Pearce Not Heard

1334 Prohibiting Undocumented Immigrations fromReceiving Workmans Compensation

Pearce Not Heard

1177 Prohibiting Undocumented Immigrations fromApplying for Work or Working

Pearce Not Heard

2533 Criminalizing the Act of Soliciting

Employment from an Individual in a MotorVehicle While Standing on Street, Highway, orSidewalk

Kavanagh Passed

House, Heldin Senate

2280 Requiring Local Law Enforcement to EnforceFederal Immigration Laws and ProhibitingUndocumented Immigrants from EnteringPrivate or Public Land

Kavanagh PassedHouse andSenate,Failed onFinal Read

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1010

Creating State Crime of Trespassing that

Imposed Civil and Criminal Penalties onUndocumented Immigrants who Entered orRemained on Private or Public Land

Pearce Not Heard

2331 Prohibiting Local Governments from EnactingOrdinances that Prohibited Enforcement ofFederal Immigration Laws

Boone PassedHouse, Heldin Senate


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2010


OUTCOME

1097 Requires Department of Education to Collect

Population Data of Undocumented Studentsand Estimate Cost of Educating UndocumentedStudents; Authorizing Superintendent toWithhold Funds for Non-Compliance

Pearce Passed

Senate, Heldin House

1070 Creating State Penalties Relating toImmigration Law Enforcement IncludingTrespassing, Harboring and TransportingUndocumented Immigrants, Alien RegistrationDocuments, Employer Sanctions, and HumanSmuggling.

Pearce Enacted

2162 Adjustments to S.B. 1070 Nichols Enacted

2011


OUTCOME

1308/1309

Limiting Arizona Citizenship to IndividualsBorn in the U.S. to Parents Who Are Citizensor Legal Permanent Residents; Precluding theU.S. Constitutions Fourteenth AmendmentFrom Applying to Children of UndocumentedImmigrants

Gould Failed inSenate

1222 Conditioning HUD-Funded Public Housing onDemonstrating Lawful Presence

Biggs Passed Senate,Held in House

1405 Requiring Hospitals to Determine CitizenshipStatus of Patients and to Notify ImmigrationAuthorities of Undocumented Immigrants

Smith Failed inSenate

1407 Requires Department of Education to CollectPopulation Data of Undocumented Students

and Estimate Cost of Their Education

Smith Failed inSenate

2191 Retroactively Denying Punitive DamageAwards to Undocumented Immigrants

Weiers Enacted

1490 Prohibits counties from issuing food handlerscards without proof of legal status

Gould Passed Senate,held in House

2102 Prohibiting the Issuance of a License,Fingerprint Clearance Card, or Any State

Kavanagh Enacted


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Identification to Undocumented Immigrants

1117/2537

Permitting House and Senate Leaders toParticipate in S.B. 1070 Litigation WithoutSeeking Authorization from the Legislature

Pearce/Adams

Enacted

1611 Omnibus Legislation Combining a Number ofFormer Pearce-Sponsored Bills from 2006 to2010 and Adding New Restrictive ImmigrationMeasures; Restricting Eligibility of Federal,State, and Local Benefits; ProhibitingUndocumented Immigrations from OperatingMotor Vehicles, Enrolling in K-12 and HigherEducation; Expanding E-Verify Program to AllArizona Employers

Pearce Failed inSenate

Table 1 demonstrates that the broader effort to enact state-level immigration

policy began as a drive by Representative, and later Senator, Russell Pearce. It

also shows that with time he convinced others to join his cause. The proposals

themselves range from areas reserved for state policyeligibility for tuition at

state-supported institutions of higher educationto matters reserved exclusively

by the federal governmentthe creation of immigration-related crimes. H.B. 2779

and H.B. 2745 exemplify the latter.

II. THE STRATEGY OF ATTRITION THROUGH ENFORCEMENTTHAT BECAME THE EXPRESS IMMIGRATION POLICY OF THE

STATE OF ARIZONA IN 2010 WAS IN PLACE WHEN H.B. 2779

AND H.B. 2745 WERE ADOPTED.

Russell Pearce, the man whose name is most frequently associated with

attrition through enforcement because of his sponsorship of S.B. 1070 in 2010,

has a long record of policy proposals that aim at unauthorized immigrants.


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H.B. 2779 and H.B. 2745, both of which he sponsored, are relative latecomers in

this line of bills.

Pearce began promoting various methods of attrition through enforcement

when he became director of the Arizona Motor Vehicle Department in 1995. From

that vantage point, he drafted H.B. 2154, a law that would for the first time require

legal status to obtain a drivers license. Elected four years later to the Arizona

House of Representatives, Pearce began to promote attrition through

enforcementduring his second two-year term. He introduced two restrictive laws

in 2003, neither of which moved forward.

From this point on, Pearce appears to have made immigration the

centerpiece of his activity. After a series of legislative defeats in 2003, including

the failure to get H.B. 2246a bill requiring proof of citizenship to voteout of

committee, Pearce began working with outside groups to take his issues directly

the voters via ballot referendums. Sinema, Punishing Immigrants, at 6263.

These efforts culminated in the passage of Proposition 200, the Arizona Taxpayer

and Citizen Protection Act, which appeared on the November 2004 ballot.

Section 2 of Proposition 200, entitled Findings and declaration,provided that:

This state finds that illegal immigration is causing economic hardshipto this state and that illegal immigration is encouraged by publicagencies within this state that provide public benefits withoutverifying immigration status. This state further finds that illegalimmigrants have been given a safe haven in this state with the aid ofidentification cards that are issued without verifying immigration


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status, and that this conduct contradicts federal immigration policy,undermines the security of our borders and demeans the value ofcitizenship. Therefore, the people of this state declare that the publicinterest of this state requires all public agencies within this state tocooperate with federal immigration authorities to discourage illegalimmigration.2

Proposition 200 represented the first significant victory for such efforts and

ultimately changed Arizonaspolitical and legislative landscape.3

Polls taken in the ensuing months reflected the political momentum behind

anti-immigrant measures. An October 2005 poll conducted by the Arizona

Republic revealed antipathy for unauthorized immigrants and pessimism about the

current success of the federal government in securing the border. Nearly six in ten

called unauthorized immigration an extremely high priority in an August 2006

survey of likely voters. Nearly two thirds of these respondents stated that illegal

immigration hurt the state more than helped it and most opined that the issue of

enforcement was too important to leave to the federal government alone.

These attitudes were reflected in the passage of three anti-immigrant

referenda in 2006. Congresswoman Kyrsten Sinema, who was a state

2 Text of Proposition 200 (2004), available at http://apps.azsos.gov/-election/2004/Info/PubPamphlet/english/prop200.pdf (last visited Aug. 28, 2015).3 In 2013, the Supreme Court held that the provision of Proposition 200 thatrequired voters to provide proof of citizenship when registering to vote or casting aballot was preempted by the National Voter Registration Act of 1993. Arizona v.Inter Tribal Council of Ariz., Inc, 133 S. Ct. 2247 (2013) (affirming Gonzalez v.Ariz., 677 F.3d 383 (9th Cir. 2012) (en banc)).


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representative at the time, attributed the support for H.B. 2779 to the outcome of

the November 2006 election, with its strong voter endorsement of the three anti-

immigrant referenda:

After the 2006 election, the Legislature saw the increasing popularityof anti-immigration legislation in Arizona and forged ahead. By thetime, it was clear to the Legislature that the public supported anti-immigrant measures, at least when presented with no clear sign of anypositive solutions to the growing immigration crisis Arizona wasexperiencing. As such, the political pressure to approve anti-immigrant measures increased exponentially, with Republicans, inparticular, concerned about primary election challenges from the right

as political payback for failure to support these measures. Withgrowing public pressure to do something about immigration andthinly veiled threats from the political right about repercussions forthose who opposed anti-immigrant measures, most legislativeRepublicans began voting for Pearces measures.

Sinema, Punishing Immigrants, at 68. Proposition 200, the three 2006 ballot

referendums, and the general anti-immigrant political environment provided

momentum for H.B. 2779, the Legal Arizona Workers Act,and H.B. 2745, its

2008 companion legislation.

The power of the movement to discourage unauthorized immigrants from

living in the state can be gauged, in part, by the inability of the Arizona business

community to block the Legal Arizona Workers Act. The concern of business

leaders was that this new law would weaken the states economy. SeeMarc R.

Rosenblum and Leo B. Gorman, The Public Policy Implications of State-Level

Worksite Migration Enforcement: The Experiences of Arizona, Mississippi, and


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Illinois, in TAKING LOCAL CONTROL: IMMIGRATION POLICY ACTIVISM IN U.S.

CITIES AND STATES121 (Monica W. Varsanyi ed., 2010) (hereinafter State-Level

Worksite Migration Enforcement). These factors appear to have been ignored in

the rush to support H.B. 2779, which passed both houses of the legislature by four-

to-one margins. Id.

These laws were unambiguously aimed at unauthorized immigrants. While

they impose a series of potentially escalating civil penalties on employers who

knowingly hire unauthorized immigrants, they imposed much harsher penalties on

the immigrant employees they hire, criminalizing applicants who use false

documentation to gain employment. At the same time, Arizona was also implicitly

challenging the federal governments long-time approach to employment by

unauthorized immigrants.

In 2007 and 2008, elected officials, faced with the polling results mentioned

above, supported H.B. 2779 and H.B. 2745, overcoming any doubts they may have

had about the legitimacy of occupying the federal domain in immigration policy.

In this respect they had the support of Arizona voters, who, the polling data

suggests, saw no problem with granting the state significant immigration

enforcement responsibilities. The idea that Arizona must step in where the federal

government has failed to act was a major selling point for H.B. 2779. In fact, co-

sponsor Representative John Kavanagh contended that that People want a


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crackdown. Rosenblum and Gorman, State-Level Worksite Migration

Enforcement, at 121. Then-Governor Napolitano justified her signature

authorizing the bill by citing the apparent inability of Congress to address state

immigration needs. Indeed, the District CourtsPreliminary Injunction Order aptly

cited to statements made by Governor Napolitano and members of the legislature

that clearly evidence the intent of the drafters and supports of these bills:

Senator OHalleran stated that people convicted under the identitytheft law would be encouraged to self-deport instead of serving long

prison sentences. Doc. 30-3 at 45. Senator Robert Burns supportedH.B. 2779 because it would show that Arizona was tough on illegalimmigration. Id. at 42. . . . When signing H.B. 2779 into law,Governor Napolitano noted that a state like Arizona [has] no choicebut to take strong action to discourage the further flow of illegalimmigration through our borders.

Puente Arizona v. Arpaio, 76 F. Supp. 3d 833 (D. Ariz. 2015).

CONCLUSION

It is important to place legislation in its historical, political, and social

context to properly analyze legislative purpose. The history of anti-immigrant

legislation preceding H.B. 2779 and H.B. 2745, and the sponsorship of these two

bills by a long-standing opponent of unauthorized immigration in Arizona, reveal a

motive to make state-level immigration policy in an area preempted by federal law.The preliminary injunction against enforcement of these laws as they pertain to

unauthorized immigrants therefore should be affirmed.


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DATED this 28th day of August, 2015.

THORPE SHWER, P.C.

By s/Spencer G. ScharffWilliam L. ThorpeSpencer G. ScharffCounsel for Amici Curiae


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CERTIFICATE OF COMPLIANCE

Pursuant to Federal Rule of Appellate Procedure 32(a)(7)(C), I certify that

this brief complies with the typeface requirements of Rule 32(a)(5) and (6),

because it is written in 14-pt Times New Roman font, and with the type-volume

limitations of Rules 28.1(e)(2)(B) and 29(d), because it contains 4,068 words,

excluding the portions excluded under Rule 32(a)(7)(A)(iii). This count is based

on the word-count feature of Microsoft Word 2013.



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CERTIFICATE OF SERVICE

I hereby certify that on August 28, 2015, I electronically filed the foregoing

BRIEF OF AMICI CURIAE PROFESSORS DORIS MARIE PROVINE AND

CECILIA MENJVAR, with the Clerk of the Court for the United States Court of

Appeals for the Ninth Circuit by using the appellate CM/ECF system. I certify that

all participants in the case are registered CM/ECF users and that service will be

accomplished by the appellate CM/ECF system.



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