PHOENIX — An organization that represents migrants wants a federal judge to immediately block Arizona from enforcing its 2024 voter-approved law that allows state and local police to arrest — and state courts to prosecute and judges to deport — undocumented migrants.
Proposition 314 runs afoul of laws that grant Congress and federal immigration officials the exclusive right to determine how to deal with those in the country illegally, lawyers for the American Civil Liberties Union contend. The result of this state intervention, they are telling U.S. District Court Judge Michael Liburdi, is that some border crossers will not have the opportunity to take advantage of defenses available to them under federal law, like seeking asylum.
Proposition 314, crafted by Republican lawmakers and approved by voters on a 3-2 margin, contains several sections, including one that increases the penalty for selling fentanyl that results in death and another making it a state-level crime to use fake documents to apply for public benefits or employment.
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The key provision — and the one at issue here — makes it a crime for "an alien'' to enter or attempt to enter Arizona directly from Mexico at any location other than a port of entry. Violations are a Class 1 misdemeanor, which generally means up to six months in jail.
But proponents acknowledged the real purpose of that language is to allow such people to be deported.
The legislation language permits judges, rather than incarcerating individuals, to instead dismiss the criminal charges and order them to "return to the foreign nation from which the person entered'' or to the "nation of origin.''
Judges would even have the power to order a state or local law enforcement agency to transport to a port of entry. And if someone refused to leave they would be guilty of a Class 4 felony which carries a presumptive three-year sentence in state prison.
What makes the 2024 ballot measure a legal issue right now is how it was crafted by Republican lawmakers.
In essence, the key provisions are a virtual carbon copy of SB 4, a 2023 Texas statute. That law was immediately challenged by the Biden administration.
So, to avoid a separate lawsuit, GOP lawmakers here inserted a provision to say that Prop 314 could not take effect until at least 60 days after federal courts ruled that the Texas law is enforceable.
On May 14 the Fifth Circuit Court of Appeals overturned the injunction that had barred the Texas law from taking effect. And absent a restraining order being issued here — and soon — that could allow Arizona police to start arresting border crossers this coming week.
A spokesman for Attorney General Kris Mayes, named as the chief defendant in the case, will oppose the bid by the ACLU to block enforcement of Proposition 314.
Mayes actually opposed the 2024 ballot measure, saying it "could very well lead to racial profiling'' and that it would cause "havoc and harm'' to the Arizona economy as did SB 1070, a 2010 law designed to give police more power to stop and question people about their immigration status.
But, as attorney general, she is legally obligated to defend state laws, whether approved by the legislature or, as in this case, by the voters themselves.
Central to the lawsuit is the question of what role, if any, states can play in enforcing federal immigration laws.
Much of that was considered settled more than a decade ago when the U.S. Supreme Court considered Arizona's SB 1070.
The justices in that case allowed some provisions of the 2010 law to take effect, such as requiring police, when they have stopped someone for any reason, to check on that person's immigration status if there is a reasonable suspicion they are undocumented.
But they voided other sections, including one that would have allowed police to make warrantless arrests if they believe a person is violating federal immigration law. Justice Anthony Kennedy, writing the majority decision, said that conflicts with federal law because it would allow the state to decide, without input from the federal government, whether an arrest was warranted.
Despite that ruling, Texas lawmakers in 2023 adopted their SB 4 to allow state and local police to arrest those who cross the border other than at ports of entry.
The Biden administration challenged the law. And a federal judge enjoined its enforcement, calling it "patently unconstitutional'' because it conflicted with federal immigration enforcement and foreign relations. That decision was upheld by a three-judge panel of the Court of Appeals.
In the interim, though, the Department of Justice, now under the Trump administration, dropped its appeal. And that left only El Paso County and two immigrant rights groups as the plaintiffs.
That proved crucial, with the full appellate court saying that they lacked standing to sue in the first place.
All that, in turn, led to that May 15 decision by the Fifth Circuit Court of Appeals giving the go-ahead for Texas to finally start implementing its law. It also started the 60-day clock to allow Arizona to begin enforcing Prop 314.
In the new Arizona lawsuit, the ACLU, representing the Florence Immigrant & Refugee Rights Project, contends that, Texas law or not, what is in the Arizona ballot measure cannot legally stand. It says it "establishes an unprecedented immigration system that entirely bypasses Congress' comprehensive scheme.''
"Arizona has regulated and criminalized entry into the United States; chosen for itself who will be permitted to remain in the country; what statutes will qualify as defenses to removal, and what procedures will apply; and claimed the power to deport noncitizens by ordering them to depart the United States under threat of severe additional penalty,'' the lawsuit argues.
That, the ACLU lawyers said, was precluded when the majority of the Supreme Court, ruling on SB 1070, concluded that letting Arizona decide whether someone who is not a citizen can be detained "violates the principle that the removal process is entrusted to the discretion of the federal government."
Texas lawmakers acknowledged the Supreme Court ruling when they approved SB 4. But they also made no secret of their belief that they could convince the court with a more conservative majority to use SB 4 — and now, possibly Arizona's Prop 314 — to revisit the whole issue of federal preemption of state action on immigration matters and overturn the precedents set in the SB 1070 case.
In filing the Arizona lawsuit, the ACLU lawyers said this is not just a matter of the scope of state authority. They said that what Arizona voters approved would undermine protections in federal law that exist, even for those who enter the country illegally.
"Congress carefully enshrined asylum and other protections from persecution and torture as defenses to removal, specifically providing that individuals who enter between ports of entry may still seek relief,'' they told the judge. There are also protections for unaccompanied minors and victims of crime and trafficking.
"Arizona's new immigration system disregards this entirely,'' the challengers charge.
"Noncitizens are arrested by state officers, held in state custody, and then ordered deported by state agents,'' they told the judge. "Because this new process entirely sidesteps Congress' removal system, noncitizens will be subject to state removal without the opportunity to seek asylum or other forms of humanitarian protection available under federal law.''
The question of state authority aside, one issue with Prop 314 that could affect whether a judge determines it is legal is that a state or local police officer need not actually witness the person crossing the border.
Under the terms of the legislation, a video recording also would be sufficient. So would "any other constitutionally sufficient indicia of probable cause,'' a phrase not defined in the law.
And the measure provides immunity to government entities, officials, employees, and contractors for any actions taken under the law.
That language drew concern from Rep. Patty Contreras. The Phoenix Democrat, who was born in Yuma, told colleagues during the debate on Prop 314 about her father being stopped by police in Quartzsite, about 100 miles north of the border.
"He was an American citizen, he was born in California, he was a Korean War veteran,'' she said.
"But these things didn't matter to the officer,'' Contreras continued, "What mattered to the officer was that there was a brown-skinned man driving a station wagon filled with a bunch of little brown kids.''
Howard Fischer is a veteran journalist who has been reporting since 1970 and covering state politics and the Legislature since 1982. Follow him on X, formerly known as Twitter, Bluesky, and Threads at @azcapmedia or email azcapmedia@gmail.com.
