SAN FRANCISCO - An attorney for Gov. Jan Brewer told federal appellate judges Tuesday they should let Arizona enforce its laws against harboring illegal immigrants because there's no evidence anyone is in danger of actually being prosecuted.
The state wants the 9th U.S. Circuit Court of Appeals to lift an injunction by U.S. District Judge Susan Bolton last year blocking enforcement of the law, which makes it a crime to harbor or transport those someone knows or should know is an illegal immigrant. Bolton said Arizona is preempted by federal law.
Attorney Kelly Kszywienski, representing the state, told the three judges they don't need to decide that issue.
She said to get an injunction, the challengers - individuals and groups that aid illegal immigrants - need to prove prosecution for their activities is "certainly impending." Kszywienski said there is no such proof here.
But Omar Jadwat, an attorney with the American Civil Liberties Union, disagreed.
"There's standing as long as there's a reasonable fear on the part of the plaintiff," he said.
Jadwat specifically mentioned Luz Santiago, a pastor who said she provides sanctuary to illegal immigrants. That argument struck a chord with the court.
"Sanctuary, as I understand the term, and it's an old term with great many meanings," said Judge Carlos Bea. "But one is to give shelter to people to avoid arrest," he said.
Bea told Kszywienski that sounds like someone who would be in fear of prosecution under this law.
"I think that's pretty vague what is sanctuary," she responded. "It doesn't say that she tries to hide them from federal authorities."
"She's certainly trying to have them avoid arrest," Bea responded. "That's what sanctuary is all about."
If the court finds there is a fear of prosecution - meaning the challengers had the right to sue in the first place - the outcome of the case then likely will turn on the key question of whether the Arizona law illegally conflicts with federal laws and immigration policies.
Jadwat pointed out the U.S. Supreme Court voided several other provisions of SB 1070 last year because it left decisions related to immigration in the hands of the state.
"It took the federal government out of the process of enforcing that aspect of federal immigration law," he said. "In taking the federal government out of the process, you open it up to damage to foreign relations, you open it up to that people could be prosecuted (under the state law) who the federal government would not choose to prosecute."
Mark Stern, an assistant U.S. attorney, said the law essentially amounts to Arizona deciding it can enact its own laws against harboring despite the fact that the federal government has its own statutes.
Bea said that, by itself, does not make the law illegal.
He pointed out, for example, there are federal laws against smuggling illegal drugs. Bea said none of that keeps states from enacting their own drug laws.
But Stern said immigration laws are different because Congress gives federal officials discretion on when to enforce those laws and when not to enforce them. Letting the state step in, he said, ignores why Congress gave that discretion to the federal government.
"The federal government, unlike the state, is going to be cognizant and responsive to the concerns of all the states in the country as well as foreign countries," he said.
In defending the harboring provision, Kszywienski acknowledged other parts of SB 1070 were previously rejected by the high court.
She conceded Arizona cannot have laws that conflict with federal statutes. But she argued the harboring law does not conflict with federal law.
Kszywienski pointed to a 2011 Supreme Court decision upholding a separate Arizona law making it a violation of state law for companies to knowingly hire undocumented workers. She said this law, targeting those who aid illegal immigrants and not the immigrants themselves, fits that same category.
Kszywienski also pointed out the statute does not allow someone to be arrested solely for harboring or transporting an illegal immigrant. She said the individual needs to be committing some other offense to be prosecuted for harboring an illegal immigrant.
But Judge John Noonan called that verbiage "nonsense" and "gibberish," questioning whether it actually has any legal meaning.
On StarNet: Find extensive coverage of immigration issues at azstarnet.com/border