PHOENIX - Attorneys for Gov. Jan Brewer will get a chance to argue that Arizona should be allowed to enforce a law aimed at those who harbor illegal immigrants.
The 9th U.S. Circuit Court of Appeals has scheduled an April 2 hearing to decide whether to overturn a trial judge's conclusion last year that the law, a provision of the controversial SB 1070, is illegal. Brewer contends U.S. District Court Judge Susan Bolton got it wrong.
Brewer is trying to salvage some parts of the 2010 law, which has been picked apart by federal courts.
In a ruling last year, the U.S. Supreme Court invalidated three sections of the statute.
The justices did agree to let the state require police to ask suspected illegal immigrants for proof of their legal status. But even there, the justices warned they might revisit the issue if there is evidence it is being enforced in a discriminatory manner.
Another provision aimed at day laborers also is on hold awaiting a decision from the appellate court.
This law would create a separate crime for someone who is violating any other law to also transport or harbor an illegal immigrant, or to encourage or induce someone to illegally come to or live in the state. The law requires that someone know the person is here illegally, or recklessly disregards that fact.
Brewer press aide Matthew Benson said the law is needed.
"We have a significant issue in Arizona with the transport and harboring of illegal immigrants," he said.
"It leads to 'drop houses' and blackmail and torture and all different kind of crimes," Benson continued. "So it's appropriate that the state ought to be able to combat an issue that's a public safety threat to our citizens."
Benson also said there must be some reason to believe the law is legal, pointing out the twists and turns the litigation has taken.
Attorneys for the Obama administration argued in 2010 the provision conflicts with the exclusive right of the federal government to regulate immigration, which Bolton rejected at that time.
In rebuffing the federal position, she wrote the section "does not attempt to regulate who should or should not be admitted into the United States, and it does not regulate the conditions under which legal entrants may remain in the United States."
Last year, though, Bolton reversed course, concluding this is strictly a federal issue.
"It is a federal crime to transport or move an unlawfully present alien within the United States; to conceal, harbor, or shield an unlawfully present alien from detection; or to encourage or induce a person to come to, enter or resident in the United States without authorization." the judge wrote. And she pointed out federal law also makes it a crime to aid in any of these acts.
"While state officials are authorized to make arrests for these violations of federal law, the federal government retains exclusive jurisdiction to prosecute them," Bolton ruled.
Benson said just because something is a violation of federal laws does not preclude the state from having its own law to deal with the same problem. Bolton, in her ruling last year, rejected that contention.
"Permitting the state to impose its own penalties for the federal offenses here would conflict with the careful framework Congress adopted," the judge wrote, which is why the U.S. Supreme Court last year voided three other sections of SB 1070:
• Requiring that immigrants carry federal registration papers.
• Making it a state crime for someone who is undocumented to seek work or hold a job in Arizona.
• Allowing state and local police to arrest suspected illegal immigrants without warrants.
In that ruling last June, the high court sided with Arizona only on the requirement allowing police to question those they have stopped for some other reason about their status if there is reason to believe that they are in this country illegally. Civil-rights groups are now challenging that section on different grounds.