By Nigel Duara
Bit by bit, the federal judiciary is tearing out the legal ground from under "America's toughest sheriff."
First, a federal appeals court said it was illegal to deny bail to immigrants in the country illegally. Then, on Monday, an Arizona federal judge criticized a state law that stretched the crime of identity theft to include everyone from forgers to people simply seeking employment without valid documentation.
Maricopa County Sheriff Joe Arpaio was using that law to justify workplace raids, more than 80 since the Arizona Legislature passed the law in 2008. Those raids rolled up nearly 800 men and women, charged with felonies for seeking employment while they were in the country illegally. It was unclear how many of them were convicted or deported.
But federal law explicitly says seeking employment is not a crime, no matter a person's immigration status. A group of immigration rights organizations sued Arizona, the county and Arpaio.
On Monday, the plaintiffs prevailed, at least for now.
U.S. District Judge David G. Campbell in Phoenix ordered an immediate halt to the state's enforcement of identity theft laws that penalize immigrants in the country illegally for seeking employment. Campbell said the Arizona law is at odds with corresponding federal statutes.
"These laws were one piece of a tool kit that Sheriff Arpaio used to terrorize immigrant communities," said plaintiff's attorney Jessica Karp, "and that tool kit is being taken apart."
Other sheriffs enforced the law, Karp said, but none conducted raids.
Federal law makes it a crime to use falsified documents but draws a distinction between identity theft and an application to work. It is not illegal for an immigrant in the U.S. illegally to apply for a job.
In 2007 and 2008, however, Arizona changed the legal definition of identity theft to include attempts at employment by immigrants in the country illegally.
The lawsuit's plaintiffs included a woman convicted of identity theft and a taxpayer in Maricopa County, which includes Phoenix, who objected to the use of taxpayer dollars to enforce the law. They argued before Campbell that the federal rule on applications to work by immigrants in the country illegally supersedes Arizona law.
Maricopa County tried to get the suit thrown out.
To resolve those challenges, Campbell took into account a 1947 U.S. Supreme Court case dictating that courts should assume that "the historic police powers of the States" aren't superseded "unless that was the clear and manifest purpose of Congress."
Maricopa County argued that the identity theft laws are neutral on the question of immigration and immigrants in the country illegally, and apply equally to citizens and non-citizens. But Maricopa County's argument was partly undone by one of its own news releases, which said that all suspects charged with identity theft to gain employment were immigrants in the country illegally.
County Atty. Bill Montgomery, one of the defendants, said the ruling was another demonstration of the Obama administration's soft stance on immigration law.
"While pretending to address the concerns of people admittedly violating the law, the victims of identity theft are deprived of the state of Arizona's protection," Montgomery said in a statement.
Arpaio, the county and the state are mulling an appeal. Campbell's ruling did not indicate they would be likely to succeed in his court.
"Plaintiffs have shown that they are likely to succeed on the merits, that they are likely to suffer irreparable harm in the absence of a preliminary injunction, and that the balance of equities and public interest favor an injunction," Campbell wrote.
Enforcement of the laws is on hold at least until Campbell issues another ruling.
Campbell also made news last month when he ordered Arizona to stop denying driver's licenses to young immigrants who qualify for deferred deportation under President Obama's 2012 executive order.
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