SAN FRANCISCO — The federal government argued on Tuesday that a section of
Arizona’s 2010 immigration law that prohibits “harboring” people living in the
country illegally should be blocked.
A three-judge panel of the 9th Circuit U.S. Court of Appeals heard arguments
from attorneys on both sides of the debate over a section of the state’s law
that penalizes those who give rides to, house or otherwise “harbor” people in
the country illegally.
The harboring law was in effect from July 2010 until a lower court last year
barred police from enforcing it. Arizona Gov. Jan Brewer has asked the 9th
Circuit Court of Appeals to overturn the lower court’s ruling.
Lawyers for Brewer say the law applies only to people violating other criminal
laws who also are harboring someone in the U.S. illegally, and doesn’t conflict
with federal immigration laws.
The governor’s attorneys also say there’s no evidence that the ban has been
enforced against any people or organizations represented by a coalition of civil
rights groups that have challenged the law in court.
The U.S. Justice Department, which has challenged Arizona’s immigration law in
court but isn’t a party in Brewer’s harboring ban, successfully petitioned the
appeals court to let its lawyers take part in Tuesday’s arguments in support of
a coalition of civil rights groups who have asked that the statute remain
Mark Stern, a DOJ attorney, argued that the federal government was meant to
enforce immigration laws, not states, because of its close relationship to
foreign policy and other related matters. What’s more, the Arizona statute was
vaguely written, he said, leading to possible confusion over who would be
considered in violation of the law.
“The issue is whether a statute exclusively applies directly to an alien as
opposed to someone who is doing business with or assisting, or is a family
member of an alien,” Stern told the court. “This statute is written in the
broadest possible terms.”
Brewer’s lawyers argue the ban doesn’t conflict with federal policies, is aimed
at confronting crime and that the law’s opponents haven’t shown they have legal
standing to challenge the prohibition.
“There are many situations where states and the federal government prosecute
the same crimes, like some murders and drug crimes” Kelly Kszywienski, one of
the attorneys representing Arizona.
One of the judges, John Noonan, was critical of the way the state’s law was
worded. He took umbrage with the state saying the law targeted people who
“violate a criminal offense,” saying it made the statute “incomprehensible.”
“It’s nonsense as it stands,” said Noonan. “How do you violate an offense?”
The state does not have recent precedent on its side. Another federal appeals
court has barred authorities from enforcing similar harboring bans in Alabama
Also, Arizona’s harboring law has gotten little, if any, use by police. Two
weeks before Bolton shelved the ban, she said during a hearing that she knew of
no arrests that were made under the provision.
The prohibition had been overshadowed by other parts of the law, including a
requirement that went into effect in September that officers, while enforcing
other laws, question the immigration status of those suspected of being in the
The U.S. Supreme Court upheld the questioning requirement in July, but also
struck down other sections of the law, such as a requirement that immigrants
obtain or carry immigration registration papers. The nation’s highest court
didn’t consider the harboring ban.
Last month, the 9th Circuit upheld a decision by Bolton that prohibited police
from enforcing a section of the 2010 law that made it illegal for people to
block traffic when they seek or offer day labor services on streets.
Omar Jadwatt, the American Civil Liberties Union attorney arguing the case for
the coalition that is challenging it, said the real concern is not just for
people living in the U.S. illegally.
“It’s concerning to anybody who regularly gives rides to friends and
neighbors, or family members who lack status. It should be alarming to people
who own rental accommodations,” Jadwatt said. “It’s also a concern for “Dream
Act kids,” who have permission from the federal government to be here, but
Arizona doesn’t think that’s good enough.
Associated Press writer Jacques Billeaud contributed from Phoenix.