The state of Arizona filed an expedited appeal on July 29 with the Ninth Circuit asking the court to lift a preliminary injunction granted July 28 by Judge Susan Bolton of the District Court of Arizona preventing the state from implementing portions of its new immigration enforcement law (United States of America v State of Arizona, no 2:10-cv-01413-SRB, preliminary injunction motion filed July 29, 2010).

In her decision on July 28, Judge Bolton enjoined four parts of the new law from taking effect as scheduled for July 29:

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

l Section 3 of S.B. 1070/A.R.S. § 13-1509: making failure to apply for or carry alien registration papers a crime;

l A portion of Section 5 of S.B. 1070/A.R.S. § 13-2928(C): making it a crime for an unauthorized alien to solicit, apply for, or perform work; and

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

The notice of appeal and motion for expedited briefing and hearing schedule filed July 29 asks the Ninth Circuit to establish a timeline that would have the state file a substantive brief on August 12, the United States file its response brief on August 26, and the state file its reply brief on September 2. The state asked the Ninth Circuit to schedule oral arguments on the appeal the week of September 13 and to expedite its ruling. Good cause exists to expedite this appeal under Ninth Circuit rules, said the state in its motion, “because it is an appeal of a preliminary injunction enjoining several key provisions of S.B. 1070 that the Arizona legislature determined were critical to address serious criminal, environmental, and economic problems Arizona has been suffering as a consequence of illegal immigration and the lack of effective enforcement activity by the federal government.” Moreover, said the state, an expedited briefing schedule would not unreasonably burden the parties because it is consistent with the expedited briefing schedule the federal government received for the initial ruling on its motion for preliminary injunction and the issues on appeal are narrower than those the district court addressed.

Of note, the US Supreme Court on June 28 agreed to review whether Arizona’s employment sanctions law, the Legal Arizona Workers Act, which suspends and revokes the business licenses of employers that intentionally or knowingly employ workers who are not authorized to work in the United States, is preempted by federal immigration law (Chamber of Commerce v Candelaria, Dkt No 09-115, certiorari granted June 28, 2010). The Ninth Circuit upheld the legality of the law in September 2008 against a facial challenge from a group of plaintiffs, led by the US Chamber of Commerce’s National Chamber Litigation Center, among other business and civil rights groups. The law, which took effect in January 2008, also requires employers in the state to use the federal government’s E-Verify program to check the employment eligibility of their new hires. The Legal Arizona Workers Act was signed into law by then-Arizona Governor Janet Napolitano; she is now Secretary of Homeland Security.