Toobin: What does Arizona immigration ruling mean?

Courtesy of CNN.COM

A federal judge has granted an injunction blocking enforcement of parts of a controversial immigration law in Arizona that is scheduled to go into effect Thursday.

U.S. District Judge Susan R. Bolton ruled the federal government "is likely to succeed" in its challenge of the legality of one of the most controversial sections of the Arizona law. That provision required police to "make a reasonable attempt to determine the immigration status of a person stopped, detained or arrested" if the officer has a reasonable suspicion that the person is in the United States illegally.

Jeffrey Toobin, CNN’s senior legal analyst, spoke with T.J. Holmes on "CNN Newsroom" and offered his immediate reaction to the ruling and what it could mean for Arizona and other states.

What exactly did the judge rule?

The judge ruled that certain provisions are unconstitutional, but parts of the law she approved. The most controversial of which is the duty forced on law enforcement officers to determine if immigrants are people reasonably suspected of being illegal are in fact illegal. That has been struck down temporarily.

The judge said this – the requirement of law enforcement officials to essentially make all possibly illegal immigrants show their papers – is a violation of the separation of powers, a violation of federal sovereignty and federal control of immigration matters.

That argument was the one maintained by the Obama administration. Many civil rights groups argued it was simply discriminatory towards Hispanics.

The judge struck down the law on the ground that it was a violation of the federal control of immigration matters. That’s why the controversial provision at least for the time being will not go into effect.

So what happens now?

Some of it will have to do with the legal strategy followed by the state of Arizona here. The state of Arizona could ask the judge to revisit the issue after more fact-finding. They could also go directly to the Court of Appeals – which is the next up in the federal court structure.

I think this is a case very much destined for United States Supreme Court. It is the kind of big issue relating to the responsibilities of state versus federal government on a very important matter, so it’s likely, given how much attention this law received that other states will be passing similar laws. I think the Supreme Court will get involved probably next year. The issue that’s up in the air is will the law be in effect while the appeals process goes forward? At the moment the answer is no – at least this one provision. But certainly an appeals process will begin. If not immediately, then soon

Posted August 31st, 2010 by Jessica Spinks - Posted in Immigration | | 0 Comments

Federal judge blocks parts of Arizona immigration law

CNN.com

Phoenix, Arizona (CNN) — A federal judge has blocked one of the most controversial sections of a tough Arizona immigration law, granting a preliminary injunction Wednesday that prevents police from questioning people about their immigration status.

That provision of the law requires police to "make a reasonable attempt to determine the immigration status of a person stopped, detained or arrested" if the officer has a reasonable suspicion that the person is in the United States illegally.

U.S. District Judge Susan Bolton’s ruling, in response to a motion filed by the federal government, came with scant hours to go before the law goes into effect.

She also blocked provisions of the law making it a crime to fail to apply for or carry alien registration papers or "for an unauthorized alien to solicit, apply for, or perform work," and a provision "authorizing the warrantless arrest of a person" if there is reason to believe that person might be subject to deportation.

Seven lawsuits are seeking to block implementation of the law, signed by Arizona Gov. Jan Brewer in April. The law, which also targets those who hire illegal immigrant laborers or knowingly transport them, is to go into effect Thursday.

CNN senior analyst Jeffrey Toobin said the ruling reflects the government’s argument that immigration enforcement should be dealt with at the federal level.

"Arizona may have good intentions, they may be trying to make up for where the us government has failed, but what the judge is saying is this is not the way to do it."

"I think this a case very much destined for the Supreme Court," as other states pass similar laws, Toobin said.

The Court of Appeals could take up the case in a matter of days, but the earliest the Supreme Court could look at it would be October because the high court is in summer recess.

Arizona Gov. Jan Brewer said she was disappointed by the ruling and that Arizona will file an expedited appeal to the 9th Circuit Court of Appeals.

"This fight is far from over. In fact, it is just the beginning, and at the end of what is certain to be a long legal struggle, Arizona will prevail in its right to protect our citizens," she said in a statement. "I am deeply grateful for the overwhelming support we have received from across our nation in our efforts to defend against the failures of the federal government."

She emphasized that Wednesday’s action was a temporary injunction, and that many other parts of the bill will go into effect as planned.

For instance, a ban on so-called sanctuary cities stands, as does making it a crime to pick up day laborers who are illegal immigrants. The parts of the law dealing with sanctions for the hiring of illegal immigrants also goes into effect Thursday.

Another supporter of the law, Maricopa County Sheriff Joe Arpaio, said that he and his crusade against illegal immigration will not be deterred.

" I am not really dissapointed about the judges decision," Arpaio said. "I know what my policies are and we are going to continue doing what we have been doing."

The Center for Immigration Studies, which advocates immigration reduction, was disappointed but not surprised by the ruling, said executive director Mark Krikorian.

"If the opponents hadn’t turned it into this bogey man it would have been a useful, if modest, tool for the police," said Krikorian.

He argues the Arizona law wasn’t intended to usurp federal authority.

"Arizona does not have its own immigration policy, even with the law. They are buttressing federal law," Krikorian said.

President Barack Obama, a critic of the Arizona law, was not expected to comment on the ruling Wednesday.

The Justice Department issued a statement saying the court "ruled correctly."

"While we understand the frustration of Arizonans with the broken immigration system, a patchwork of state and local policies would seriously disrupt federal immigration enforcement and would ultimately be counterproductive," the statement said. "States can and do play a role in cooperating with the federal government in its enforcement of the immigration laws, but they must do so within our constitutional framework."

The Department of Homeland Security also weighed in, saying that the injunction "affirms the federal government’s responsibilities in enforcing our nation’s immigration laws."

Meanwhile, the president of the Mexican American Legal Defense and Educational Fund, Thomas A. Saenz, said, "I think it’s a great victory for the Constitution. I think all the provisions she has blocked from implementation were the most egregious."

Reaction was not limited to the United States.

Applause erupted at a protest outside the U.S. embassy in Mexico City when a speaker announced the judge’s decision.

"I think it is a big victory, and it is the start of many more," said Sergio de Alba, president of the National Confederation of Workers and Farmers Organizations.

Minutes earlier, he had called on Mexicans to boycott products from the United States in protest.

Protesters attached signs to a gate in front of the embassy, with one slogan saying, "Boycott Against Arizona-Nazizona, home of hunting migrants and the Ku Klux Klan."

Opponents say the law will lead to racial profiling, which is illegal.

Supporters point out that the law prohibits racial profiling and people cannot be stopped and asked for proof of legal residence based solely on their looks.

In addition to the U.S. Justice Department, the American Civil Liberties Union, the National Coalition of Latino Clergy, the Christian Leaders League of United Latin American Citizens and other individuals or groups have asked the judge to halt the law, commonly known as SB 1070. Bolton heard arguments in the case last week from the Justice Department and the ACLU.

The separate hearings were held in Phoenix, where Bolton sits on the U.S. District Court for the District of Arizona.

Bolton’s courtroom was packed during the two July 22 hearings and protesters chanted outside throughout the afternoon.

Seven protesters were arrested on civil disobedience charges, according to the National Day Laborer Organizing Network.

The legal arguments revolved around a range of issues, including racial profiling, effective enforcement and possible harm to Arizona’s citizens.

Attorneys from the Obama administration presented their case at the second hearing. The administration’s challenge contends Arizona’s law would usurp federal supremacy on immigration.

Brewer attended the hearing.

Arizona has argued that the federal government has not done a good job of securing the border.

"A law unenforced is no law at all," said state attorney John Bouma.

The American Civil Liberties Union and a coalition of civil rights groups argued earlier in the day that the controversial law amounts to racial profiling and will have a profound effect if it goes into effect.

"It treats people of color as suspects first, rather than citizens," attorney Karen Tumlin said after the hearing.

Bouma said the law would not treat people unfairly.

"These are hypothetical arguments. Local police are enforcing immigration laws all over the country," he told Bolton.

Those in favor of the law say SB 1070 is consistent with federal law. They say the law explicitly prohibits racial profiling and they are challenging the legal standing of many of the groups opposed.

They also contend opponents of the law have not been able to show there will be any harm from its implementation.

During the first hearing, Bolton said the law has a section allowing parts to still take effect even if other parts are struck down, according to CNN affiliate KNXV.

Tumlin, managing attorney for the National Immigration Law Center, and other lawyers and foes of SB 1070 repeated assertions that Arizona’s law should be rejected.

"We are here to defend the rights of those who cannot stand up for themselves," said Terri Leon, CEO of the Friendly House, which supports the legal challenge by the American Civil Liberties Union.

Bolton heard a challenge to SB 1070 by an Arizona police officer the previous week.

Posted July 28th, 2010 by Jessica Spinks - Posted in Immigration | | 0 Comments

Arizona immigration law faces 1st court hearing today

A federal judge heard arguments on Thursday morning over whether Arizona’s new immigration law should take effect at the end of the month, marking the first major hearing in one of seven challenges to the strict law.

U.S. District Judge Susan Bolton also is considering Gov. Jan Brewer’s request to dismiss the challenge filed by Phoenix police Officer David Salgado and the statewide nonprofit group Chicanos Por La Causa.

Bolton began by quickly dismissing Brewer as an individual defendant to the lawsuit, a motion unopposed by Salgado’s lawyer. She then began considering whether to dismiss the case.

Bolton said last week that she may not rule on the officer’s request to block the law before it takes effect July 29.

Hearings on the six other lawsuits, including one filed by the federal government, are set for next week.

The large ceremonial courtroom at the main federal courthouse in Phoenix was packed with more than 100 spectators as the hearing began. More than a dozen lawyers were in place along two L-shaped tables, evenly divided between each side. The jury box was filled with law clerks for judges who work in the building who came to observe.

Protesters and supporters of the law gathered outside the courthouse amid heavy security.

About two dozen supporters of the law, many dressed in red, white and blue, held up signs praising Maricopa County Sheriff Joe Arpaio, a major backer of the crackdown on illegal immigrants, and one said "American Pride."

About 50 feet away a group opposed to the law held up signs calling for repeal of the law.

The groups competed with each other using bullhorns.

"We demand an injunction. We demand a federal intervention," opponent Sandra Castro of Phoenix, 22, yelled into a bullhorn.

The law requires police, while enforcing other laws, to question a person’s immigration status if officers have a reasonable suspicion that the person is in the country illegally.

Supporters say the law was needed because the federal government hasn’t adequately confronted illegal immigration in Arizona, the busiest illegal gateway for immigrants into the United States. Opponents say the law would lead to racial profiling and distract from police officers’ traditional roles in combating crimes in their communities.

Since Bgned the measure into law April 23, it has inspired rallies in Arizona and elsewhere by advocates on both sides of the immigration debate. Some opponents have advocated a tourism boycott of Arizona.

It also led an unknown number of illegal immigrants to leave Arizona for other American states or their home countries and prompted the Obama administration to file a lawsuit seeking to invalidate the law.

Salgado’s attorneys argue the judge should block the law before it takes effect because it would require an officer to use race as a primary factor in enforcing the law and because the state law is trumped by federal immigration law.

Attorneys for Brewer asked that the officer’s lawsuit be thrown out because Salgado doesn’t allege a real threat of harm from enforcing the new law and instead bases his claim on speculation. They also said the state law prohibits racial profiling and that it isn’t trumped by federal immigration law because it doesn’t attempt to regulate the conditions under which people can enter and leave the country.

The other challenges to the law were filed by the U.S. Department of Justice, civil rights organizations, clergy groups, a researcher from Washington and a Tucson police officer.

Bolton plans to hold similar hearings July 22 in the lawsuits filed by the federal government and civil rights groups.

—— Associated Press Writers Paul Davenport and Michelle Price contributed to this report.

Read more: http://www.azcentral.com/news/election/azelections/articles/2010/07/15/20100715arizona-immigration-law-court-hearing15-ON.html#ixzz0tmAE4Udh

Posted July 15th, 2010 by Jessica Spinks - Posted in Immigration | | 0 Comments

Arizona immigration law may increase Phoenix foreclosures

 www.azcentral.com

 The impact of Arizona’s tough new immigration law is rippling through the state, six weeks before the law is scheduled to go into effect.

One area where SB 1070 could hurt Arizona, but take many months to manifest, is metropolitan Phoenix’s housing market.

An exodus of people - both legal and illegal residents - could be one more drag on a housing-market recovery. Departures from a state where growth is the economic foundation could add to the number of foreclosures and vacant houses and apartments, all of which will hurt the housing industry just as signs of recovery are starting to appear.

Driving illegal immigrants out of Arizona is one stated purpose of the new immigration law. But the law, experts say, could also drive out legal residents and deter potential new residents - people who are afraid of what might happen to them or who simply object to the law.

Real-estate analysts and economists are watching for signs that both illegal and legal residents are moving from the state, while also tracking the number of newcomers to Arizona. After the immigration law goes into effect July 29, it may become one more factor in real-estate forecasts for the region.

"Estimates are that there are several hundred thousand undocumented aliens residing in Arizona," said Phoenix housing analyst Mike Orr, publisher of the Cromford Report, a daily housing-research report. "If the law has the intended effect and these people do leave, then both population and demand for housing will probably decline."

Homeowners

There’s a misconception among some Arizona residents that illegal immigrants don’t own homes in the state. Housing advocates say thousands if not tens of thousands of people who are not legal residents have purchased houses here.

Before the real-estate crash, it was much easier for everyone, including illegal immigrants, to obtain mortgages to buy Phoenix-area homes.

In some cases, lenders eager to make loans did not check for documentation. In others, there may have been fake documentation.

"Many people in real estate operated with a ‘don’t ask, don’t tell’ policy when it came to certain homebuyers and borrowers. We didn’t feel like it was our job to be an enforcement agency," said Margie O’Campo de Castillo, a Phoenix real-estate agent. "I always tell people if they aren’t legally here, it may not be in their best interest to buy a home. But it’s not my decision."

She is trying to help a friend who owns a small business and who had a Phoenix home but is not a legal U.S. resident.

"He never missed a payment, but his business has slowed down," O’Campo said. "He found a buyer to do a short sale on his home, but his lender wouldn’t work with him because he isn’t here legally. He lost his house to foreclosure."

Since the state’s employer-sanctions law passed in 2007, O’Campo said she’s seen many undocumented homeowners lose homes to foreclosure, either because their lenders won’t work with them or because they can’t sell and want to leave the state. The 2007 law makes it illegal to knowingly hire undocumented workers in the state.

Housing experts believe the employer-sanctions law did have a negative effect on the housing market, though by how much is difficult to say because of the overall recession.

A report from the Department of Homeland Security found that more than 100,000 illegal immigrants left Arizona in 2008, more than any other state. Metro Phoenix foreclosures and apartment vacancies both jumped that year.

Vacant homes

Signs of SB 1070 putting more pressure on the housing market would emerge in several places.

The most obvious and immediate sign would likely be more empty homes and apartments in areas of metro Phoenix heavily populated by Hispanics.

Housing experts say the employer-sanctions law had a negative effect in south and west Phoenix, Maryvale and Avondale. Those areas still have some of the highest foreclosure rates in the region.

During the past few months, the overall number of foreclosures in the Phoenix area has dropped. So any significant increases in foreclosures within communities with high Hispanic populations could be attributed to SB 1070.

Another place where signs of damage to the housing market might appear, housing analysts say, is in foreclosure filings. Large numbers of homes falling into foreclosure, with owners who have Hispanic last names, could also be a sign SB 1070 has pushed more homeowners out of the state. Within days of Gov. Jan Brewer signing SB 1070 into law on April 23, owners of small apartment complexes in parts of metro Phoenix that were home to large Hispanic populations started seeing tenants move out. The same thing happened after the employer-sanctions law.

Metro Phoenix apartment vacancies dropped last month. An increase in specific neighborhoods could be attributed to the new law.

"The immigration law creates a difficult situation for both legal and illegal residents," said Jay Butler, director of realty studies at Arizona State University. "Some illegal residents may have planned on leaving the Valley anyway because they can’t find jobs. But I have talked to young Hispanics who are residents and so are their parents and grandparents. And those Hispanics plan on moving to other states because they don’t want to be perceived as second-class citizens."

Homebuyers

The immigration law’s impact on homebuyers is the biggest unknown.

Butler said it is hard to project how the law will impact the decisions of people from out of state who had planned to move to Arizona or buy investment, second or retirement homes here.

A loss of Hispanic homeowners and renters could be offset if more people who support the immigration law, or don’t care about it, move to the Phoenix area and buy and fill the empty homes.

Despite the many boycotts of Arizona by major cities and organizations because of the immigration law, some recent polls show residents of other states, including Nevada, would back similar legislation.

Arizona housing analyst RL Brown said the main issue for some homebuyers is to feel safe, and the immigration law appeals to some of those people.

"I talk to a lot of potential homebuyers from around the country. So far, no one is really foaming at the mouth about Arizona’s immigration law," he said. "But we’ll see. If home sales fall off the cliff, then we have to look at the law as a factor."

Some market watchers see the immigration law as one more problem that Phoenix’s economy and housing market don’t need now.

"The immigration law just piles onto our problems," said Brett Barry, a Phoenix real-estate agent with HomeSmart. "We are already struggling to find the jobs and keep the schools open to entice new residents."

Orr, the housing analyst, said people from outside Arizona considering buying a vacation or investment home here may change their minds, not to boycott the state but out of concern the law will negatively impact the housing market and home values.

Out-of-state buyers can be tracked through property records. A significant drop or increase in homebuyers from outside Arizona during the next few months would be another indicator of how people are reacting to the state’s immigration law and how it’s going to impact the housing market.

Posted June 14th, 2010 by Jessica Spinks - Posted in Immigration | | 0 Comments

Opposition to Arizona Immigration Law: It’s About Pro-Diversity

Posted on May 12, 2010 by Robert C. Seiger

While the business community has largely attempted to stay out of the debate surrounding Arizona’s Support Our Law Enforcement and Safe Neighborhoods Act (Senate Bill 1070), professional basketball team Phoenix Suns jumps to the center of the debate over the Bill with the team’s decision to wear “Los Suns” jerseys during its playoff game against the San Antonio Spurs on Cinco de Mayo. Suns’ owner, Robert Sarver, announced his disagreement with the Bill, describing it as “mean-spirited.” All of the Sun’s players were reportedly in favor of the decision to wear the jerseys.

Sarver was quoted as saying, “I thought we need to go on record that we honor our diversity in our team, in the NBA, and we need to show support for that. As for the political part of that, that’s my statement." The Suns currently have three foreign-born players on the team.

Groups opposing the Bill have looked to sports teams and leagues to influence the discussion. Some have called on Major League Baseball to move its 2011 All-Star game from Phoenix – just as the Super Bowl was moved 20 years ago when Arizona refused to recognize Martin Luther King, Jr. Day as a state holiday. Recent efforts have prompted Arizona Governor Jan Brewer to write ESPN on responding to the sports boycott requests, which she labeled as “misguided.”

Sports in America have become increasingly international, with players coming from around the globe. In fact, it is international players that dominate the roster of some of our major professional sports teams. The National Hockey League, for example, is made up of 80 percent of players who were born and raised outside of the United States. On the University level, a significant number of our colleges and universities actively seek international talent to gain a competitive edge. While these players may initially come to the United States either as a student-athlete or on a P-visa (a visa designated by immigration as a visa for professional athletes), these same athletes often seek permanent residence or citizenship to remain in the United States at the conclusion of their careers. As a result, we may see professional athletes and their teams play a significant role in shaping the immigration debate.

Posted May 12th, 2010 by Jessica Spinks - Posted in Immigration | | 0 Comments

Immigration Webinar! Sign Up Now!

AZ Immigration Webinar In the days since Governor Jan Brewer signed the “Support Our Law Enforcement and Safe Neighborhoods Act” (Senate Bill 1070) into law, the media coverage concerning the statute and its impact on Arizona has been continuous.  However, this coverage has failed to adequately address the impact that the Bill will have on Arizona employers.  During this webinar, CBR and Jackson Lewis, LLP will do all of the following: Analyze and explain the key provisions of Bill. Address the impact that the Bill will have on Arizona employers. Discuss the various legal challenges to the Bill, which seek to invalidate the Bill before it becomes effective. Provide an overview of steps employers can take to prepare to comply with the Bill. SB 1070 Immigration Webinar: With Immigration experts live from Washington DC with Victor X. Cerda, Partner, Washington DC Region Office, Jackson Lewis LLP and Jeffrey W. Toppel, Attorney, Phoenix, Jackson Lewis LLP Date and time TBD Bring all of your questions and comments regarding the topic! Register Now for the Webinar Sponsored by Creative Business Resources Hosted by Jackson Lewis LLP Presenters: Jeffrey W. Toppel is an associate in Jackson Lewis LLP’s Phoenix office.  Mr. Toppel represents employers in a wide range of employment-related disputes, including wrongful termination and discrimination claims before various state and federal governmental agencies, as well as in Arizona state and federal courts.  Mr. Toppel also represents parties in restrictive covenant and trade secret litigation. In addition to his litigation practice, Mr. Toppel regularly advises employers on issues that arise in the workplace, including compliance with state and federal immigration laws affecting the workplace.  Mr. Toppel often drafts employment policies, handbooks, and contracts.  Mr. Toppel earned his J.D. from Chicago-Kent College of Law with a certificate in labor and employment law, and a B.S. in Political Science from the University of Illinois at Champaign-Urbana.  Mr. Toppel is active in the State Bar of Arizona’s Employment and Labor Law Section, serving on its CLE Committee and as former editor of the Section’s Newsletter.  In addition, Mr. Toppel serves as the Secretary/Treasury on the Board of Directors of the Maricopa County Bar Association’s Employment Law Section.  Victor X. Cerda is an immigration Partner in the Washington, D.C. Region office of Jackson Lewis LLP, and a nationally recognized leader in representing the employer community on complex immigration enforcement issues. He focuses his practice exclusively on advising, counseling, and litigating on behalf of corporations, individuals, and overseas clients on immigration and visa processes. His areas of focus include employer worksite enforcement, I-9 compliance audits, immigrant and non-immigrant visas, entertainment visas, and immigration court removal proceedings. Mr. Cerda has represented and counseled foreign governments, current and former Heads of State, Fortune 500 companies, executives and business owners, members of the motion picture, recording, and professional sports industry, and individuals facing complex immigration matters. Mr. Cerda has successfully counseled companies in navigating through ICE I-9 audits and worksite investigations, defended individuals in removal proceedings, and addressed security issues in the visa process. In addition, Mr. Cerda frequently provides expert commentary on immigration and homeland security issues for national media, including FOX, CNN, The New York Times, and The Washington Post. In 1995, Mr. Cerda began his legal career with the U.S. Department of Justice representing the United States in hundreds of immigration bond and removal hearings. On September 11, 2001, Mr. Cerda was appointed Counsel and Acting Chief of Staff for the legacy-INS. He had primary responsibility for many of the Nation’s post-9/11 immigration efforts and legal reforms. In March 2003, Mr. Cerda became the Counsel to the Assistant Secretary and Acting Chief of Staff for the newly created Department of Homeland Security (DHS), U.S. Immigration and Customs Enforcement (ICE). Mr. Cerda provided legal, policy, and operational oversight over immigration investigations, detention and removals, worksite enforcement, and high-profile deportation cases, including national security cases. He represented ICE in White House and interagency decision-making, and testified before Congress on immigration enforcement issues on numerous occasions. In 2004, he became the Acting General Counsel for ICE, managing 600 attorneys nationwide and formulating ICE legal positions on removal cases, worksite enforcement, and national immigration issues. He concluded his government career as the Acting Director of Detention and Removal Operations (DRO) where he managed DHS’ detention and removal operations and managed more than over 4,000 employees, including more than 2,500 sworn federal law enforcement officers. As DRO Director, he reorganized DRO’s Headquarters and Field Offices, expanded ICE’s fugitive operations mission, deported a then-record number of individuals, implemented a national Alternatives to Detention Program, and began implementing the Criminal Alien Program.

Posted May 7th, 2010 by Jessica Spinks - Posted in Immigration | | 0 Comments

Arizona Governer Sign Controversial Immigration Bill into Law

Jeffrey W. Toppel – Phoenix, Arizona
Sean G. Hanagan – White Plains, New York

Less than two years after the enactment of the Legal Arizona Workers Act (“LAWA”), Arizona Governor Jan Brewer has signed into law the Support Our Law Enforcement and Safe Neighborhoods Act (Senate Bill 1070). The Act requires law enforcement officials to attempt to determine the immigration status of any person that they believe to be an alien unlawfully present in the United States. The Governor’s decision has thrust Arizona into the spotlight of immigration reform debate.

The controversial statute has attracted both national and international attention since the April 23 signing and has led to daily protests at the Arizona State Capitol in downtown Phoenix. Public figures ranging from Los Angeles Catholic Cardinal Roger Mahony to the Reverend Al Sharpton and Mexican President Felipe Calderon have spoken in opposition. Despite this, polls suggest that 70 percent of Arizona voters favor the law.
Widespread Concerns Regarding Racial Profiling

The most controversial provision of Senate Bill 1070 requires law enforcement officials to make a reasonable attempt to determine the immigration status of any person that they come into contact if they believe the person may be an alien unlawfully present in the country. Specifically, the statute provides, “where reasonable suspicion exists that the person is an alien who is unlawfully present in the United States, a reasonable attempt shall when practicable, to determinate the immigration status of the person…”

Other controversial provisions in the statute include:

    * Prohibiting state, city or county officials from limiting or restricting “the enforcement of federal immigration laws to less than the full extent permitted by federal law.” Under the statute, any Arizona resident may sue a public official or agency that adopts or implements a policy that so limits such laws’ enforcement. The provision is intended to prevent “sanctuary cities” that that adopt policies viewed as protecting undocumented aliens.
    * Making it a crime to be an illegal immigrant present in Arizona by creating a state charge for “willful failure to complete or carry an alien-registration document.”
    * Making it a crime for a person to “conceal, harbor or shield or attempt to conceal, harbor or shield an alien from detection in any place in this state … if the person knows or recklessly disregards the fact that the alien has come to, has entered or remains in the United States in violation of the law.”
    * Allowing a peace officer, without a warrant, to arrest a person if the officer has probable cause to believe the person “to be arrested has committed any public offense that makes the person removable from the United States.”
    * Requiring a peace officer to remove and either immobilize or impound a vehicle if the officer determines that a person is “transporting or moving or attempting to transport or move” an alien in the furtherance of the illegal presence of an alien in the United States.

Provisions Impacting the Employment Relationship

Several provisions in the new statute will affect Arizona employers.

The statute makes it a crime for an occupant of a motor vehicle “that is stopped on the street, roadway or highway, to attempt to hire or hire and pick up passengers for work at a different location” if the vehicle blocks or impedes the normal flow of traffic. This is aimed at prohibiting hiring of day laborers who congregate at certain locations, such as home-improvement stores. This provision also makes it a crime for unlawful aliens to “apply for work, solicit work in a public place or perform work as an employee or independent contractor in this state.”

The Act amends the Legal Arizona Workers Act by adding a recordkeeping provision that requires employers to maintain E-Verify verifications for each employee hired after January 1, 2008 (LAWA’s effective date) for the duration of the employment or at least three years, whichever is longer. In addition, it adds a defense of entrapment for employers facing a claim that they either intentionally or knowingly hired an unauthorized alien.
Challenges to Senate Bill 1070 Expected

Many groups have stated that they are considering filing lawsuits to challenge the statute before it becomes effective 90 days after the close of the current legislative session (expected to end in early May). Civil rights groups have expressed concerns that the statute’s provision requiring law enforcement to check a person’s immigration status will lead to widespread abuse and “racial profiling” against members of Arizona’s Latino population.

Influential public officials at all levels also have expressed opposition to the statute and have indicated that a challenge to the statute is likely. In a speech made prior to the Act’s enactment, President Barack Obama called the statute “misguided” and said he has directed his administration to “closely monitor” the civil-rights implications of the statute. Secretary of Department of Homeland Security Janet Napolitano (the former governor of Arizona who signed LAWA into effect two years ago) also has expressed opposition to the statute. It is possible that the Department of Justice may seek to challenge the constitutionality of the statute on civil rights grounds.

At the local level, Phoenix Mayor Gordon has come out in strong opposition to the statute and has indicated that he will seek approval from the Phoenix City Council to file a lawsuit to challenge the statute. Moreover, Maricopa County Attorney Rick Romley, who would be tasked with enforcing many of the Act’s provisions, expressed concerns, on civil rights grounds, about the statute in his attempt to convince the Governor to veto the bill.

Any lawsuit challenging the statute would likely argue that Arizona is impermissibly seeking to regulate in the field of immigration, a field traditionally left to the federal government. Any lawsuit also would challenge the likely civil-rights implications resulting from the statute’s “reasonable suspicion” provision. Jackson Lewis will closely monitor and report legal developments relating to the Act.
Looking Ahead

While a challenge to Senate Bill 1070 is likely before the Act becomes effective, Arizona employers, nevertheless, should prepare to comply with the statute.

Employers in Arizona should consider:

    * Reviewing their compliance with the LAWA to ensure that they are using the E-Verify system to verify all new employees.
    * Reviewing and, if necessary, modifying their record-retention policies to ensure they will be complying with the Act’s new recordkeeping requirement (employers must maintain E-Verify verifications for the duration of an employee’s employment or at least three years, whichever is longer).
    * Reviewing their Form I-9 procedures to ensure full compliance with federal immigration law. Under LAWA, an employer that complies in good faith with the federal I-9 requirements is entitled to an affirmative defense.

After months of inactivity under LAWA, it has been reported that the Maricopa County Attorney’s Office (MCAO) resolved its first case under the statute against an employer who allegedly rehired an employee using fake identification after ICE (Immigration and Customs Enforcement) had determined the employee was an undocumented alien. MCAO may have initiated at least one other prosecution under LAWA. With a newly appointed Maricopa County Attorney taking office, it is not yet clear how aggressively the statute will be enforced in the Phoenix area.

Arizona businesses, particularly those in the hospitality industry, should prepare for the possibility of a boycott or other type of business disruption. Calls for a boycott of Arizona businesses have been widespread and have gained momentum. Democratic U.S. Representative Raul Grijalva of Arizona has called for a boycott of Arizona businesses, noting that a boycott brought about a change in state policy 20 years ago when Arizona refused to recognize Martin Luther King, Jr. Day as a state holiday.

Officials in San Francisco have proposed that the City do no business with companies in Arizona. Moreover, just hours after the Governor announced her decision to sign Senate Bill 1070, the American Immigration Lawyers Association decided to move its planning 2010 conference out of Arizona to protest what it described as the “harshest anti-immigration bill passed in the U.S. in more than a decade.” Other groups may follow suit. At least one labor union, the Services Employee International Union (SEIU), also seems poised to use the enactment of Senate Bill 1070 in its organizing efforts in Arizona. The full extent of the economic impact will not be known for some time.

Finally, the enactment of Senate Bill 1070 has increased calls for the federal government to enact comprehensive immigration reform. Two Senators — Charles E. Schumer (D-NY) and Lindsey O. Graham (R-SC) — have outlined their vision and framework for immigration reform. (See Senators Schumer and Graham Release Immigration Reform Framework.) The pace of activity on immigration reform likely will increase significantly. Attorneys in Jackson Lewis’ Global Immigration practice group will continue to monitor developments at the federal level.

Jackson Lewis attorneys are also available to answer questions about Senate Bill 1070, compliance with its provisions, auditing your Form I-9 compliance, and participation in E-Verify.

Posted April 30th, 2010 by Jessica Spinks - Posted in Immigration | | 1 Comments

What you dont know can hurt you!

I recently found these three news stories where companies had to deal with government agencies because they made detrimental mistakes when it came to their employees and hiring practices.

Don’t let any of this happen to you…

"Employers may face more scrutiny over pay practices in 2010, thanks to a new report claiming that wage-and-hour violations are running rampant in the workplace."

"Starting this month, the Internal Revenue Service ("IRS") is commencing a National Research Project to collect information on employment tax compliance issues."

WSJ.COM, WASHINGTON — Labor Secretary Hilda Solis has spent her first few months in office focusing on handing out $46 billion in stimulus money. Now, her department is adding staff and signaling it will soon begin putting in practice the more assertive regulation of business she promised early in her tenure. Ms. Solis has begun hiring 670 new investigators to enforce labor regulations

There will be 150 investigators added in the Wage and Hour division to enforce wage rules and child-labor laws. Another 100 staff will be added to ensure contractors on stimulus projects are in compliance with applicable laws. The additions will boost the division’s staff by more than one-third.

The Employee Benefits Security Administration, which helps to regulate private retirement, health and other benefit plans covering 150 million Americans, is adding 75 staffers to conduct nearly 600 more criminal and civil investigations.

The Occupational Safety and Health Administration recently formed a task force to design an enforcement program for severe violators. OSHA will conduct an intensive examination of an employer’s inspection history and any systematic problems would trigger additional, mandatory inspections.

"Employers, especially smaller ones, are really looking for help in terms of understanding the requirements and making sure they’re doing things right," said Marc Freedman, the U.S. Chamber of Commerce’s executive director of labor law policy. Instead, the department’s "rhetoric" on workplace safety "seems to be heavy-handed enforcement and generation of more regulations," he said. Mr. Obama’s nominee to head OSHA, David Michaels, is an epidemiologist and research professor at George Washington University known for studies on the health effects of occupational exposure to toxic chemicals.

According to azcentral.com

The Maricopa County Sheriff’s Office arrested nine employees of a Scottsdale Mexican restaurant Friday on suspicion of identity theft and forgery.

Sheriff’s officers executed a search warrant at Arriba Mexican Grill, 15236 N. Pima Road, following a one-year investigation into suspected immigration-related violations.

Nine employees, including the store manager who was found hiding in the bathroom, were booked into jail at 11 a.m., Sheriff Joe Arpaio said.

The Sheriff’s Office has been investigating the restaurant for more than a year after a former employee tipped the office, Arpaio said. The former employee told investigators that several employees admitted to living and working in the state illegally.

According to HLR.com

McLane Co., Inc., has agreed to pay $1,559,316 in back wages to 570 current and former retail merchandising specialists after the Department of Labor accused the company of misclassifying the workers as exempt employees.

The Department of Labor said that McLane Co., a wholesale distributor of food and grocery products, erroneously regarded retail merchandising specialists as outside sales employees exempt from FLSA coverage. The department also accused the company of failing to keep records of hours worked.

The FLSA requires that covered employees be paid at least the federal minimum wage of $5.85 an hour for all hours worked, plus time and one-half their regular rates of pay for hours worked over 40 per week, unless otherwise exempt. The minimum wage will increase to $6.55 per hour effective July 24, 2008, and to $7.25 per hour effective July 24, 2009. Under the law, employers also must maintain accurate time and payroll records.

According to BLR.com

The U.S. Equal Employment Opportunity Commission (EEOC) has published a proposed rule addressing the “reasonable factors other than age” (RFOA) defense under the Age Discrimination in Employment Act (ADEA).

The agency is soliciting comments from the public by Monday, April 19, 2010.

The proposed rule follows a March 31, 2008, Notice of Proposed Rulemaking (NPRM) on disparate impact under the ADEA. In addition to requesting comments on its substance, the prior NPRM asked whether the EEOC should provide more information on the meaning of the RFOA defense. Most commenter’s supported addressing the issue and, accordingly, the EEOC is publishing a new NPRM on RFOA. The NPRM has been coordinated with other federal agencies and reviewed by the Office of Management and Budget.

The proposed rule explains that the RFOA defense applies only if the challenged practice is not based on age and that a neutral practice that disproportionately affects older workers can be justified only by showing that the practice is objectively reasonable when viewed from the perspective of a reasonable employer under like circumstances. The proposed rule sets forth non-exhaustive lists of factors relevant to determining whether a factor is “reasonable” and “other than age.”

What if this had been you??? What if you had never known these laws? Your company could be ruined forever. Using a PEO is much more vital than you think. Let us do all of the messy work for you…so you never have to get involved in the first place…

Posted February 23rd, 2010 by Jessica Spinks - Posted in Immigration | | 1 Comments

10 Problems a PEO can Solve

 Found this on Facebook…

Posted November 6th, 2009 by Jessica Spinks - Posted in Benefits, Customer Service, Health, Human Resources, Immigration, Performance Reviews, Productivity, Recruiting, Wages, Workers' Comp | | 0 Comments

Problem and Solution Part 2

• E-verify is an internet based system operated by the Department of Homeland Security in partnership with the Social Security Administration that allows participating employers to electronically verify the employment eligibility of their newly hired employees.
•  E-Verify is free and voluntary and is the best means available for determining employment eligibility of new hires and the validity of their Social Security Numbers.
• You must follow the innocent before guilty theory and never discriminate or pre- judge if someone is eligible to work or not.
• E verify must be done within 3 days of the employees start date. (check laws in your area)

• Know your own states laws. The requirements for federal and state are different. In addition, laws might be changing soon especially with a new administration so stay up to date.
• If you handle E verify on your own, talk to your own networks of business owners about any questions, comments or concerns

Posted June 25th, 2009 by Jessica Spinks - Posted in Human Resources, Immigration | | 0 Comments