Cavuto criticizes judge for examining whether non-citizens will be subject to wrongful arrest

Cavuto: Judge “went beyond whether this was a state versus federal issue to touching on a potential racial one.” From Cavuto's interview of Sen. John McCain on the July 28 edition of Fox News' Your World:

CAVUTO: She went beyond what some legal scholars say was the intent and the issue here over constitutionality, if it's state versus federal rights. She said, and I quote here, “There is a substantial likelihood that officers will wrongfully arrest legal resident aliens under the new law.” So again, she went beyond whether this was a state versus federal issue to touching on a potential racial one.

Supreme Court has struck down state law that subjected non-citizens to special “inquisitorial practices and police surveillance”

Judge Bolton explained that the Supreme Court cautions against states “imposing burdens on lawfully-present aliens.” In her opinion in United States v. Arizona, which found that portions of Arizona's controversial immigration law were likely unconstitutional, Bolton repeatedly relied on the Supreme Court case of Hines v. Davidowitz. As Bolton said, in 1941, the Supreme Court struck down the Pennsylvania Alien Registration Act in Hines under the Supremacy Clause of the Constitution, finding that federal law pre-empted the state law. From Bolton's opinion:

Finding a state law related to alien registration to be preempted, the Supreme Court in Hines observed that Congress “manifested a purpose to [regulate immigration] in such a way as to protect the personal liberties of law-abiding aliens through one uniform national . . . system[] and to leave them free from the possibility of inquisitorial practices and police surveillance.” [alterations in the original]

Supreme Court in Hines: State law that is overly burdensome on “law-abiding aliens” is pre-empted by federal law. From the Supreme Court's opinion in the case of Hines v. Davidovich:

Having the constitutional authority so to do, [Congress] has provided a standard for alien registration in a single integrated and all-embracing system in order to obtain the information deemed to be desirable in connection with aliens. When it made this addition to its uniform naturalization and immigration laws, it plainly manifested a purpose to do so in such a way as to protect the personal liberties of law-abiding aliens through one uniform national registration system, and to leave them free from the possibility of inquisitorial practices and police surveillance that might not only affect our international relations, but might also generate the very disloyalty which the law has intended guarding against. Under these circumstances, the Pennsylvania Act cannot be enforced. Accordingly, the judgment below is

Affirmed.

Bolton identified several ways in which lawfully present non-citizens could be detained under Arizona's law. In her opinion, Bolton also pointed out that the federal government had described several categories of lawfully present non-U.S. citizens who would not have sufficient “readily available documentation” to satisfy Arizona law enforcement that they are legally present in the country. Those categories include people from visa-waiver countries, people who have applied for asylum but have not had their cases heard, and people who applied for protection from domestic abusers under the Violence Against Women Act.

From Bolton's opinion:

The United States further asserts that there are numerous categories of lawfully-present aliens “who will not have readily available documentation to demonstrate that fact,” including foreign visitors from Visa Waiver Program countries, individuals who have applied for asylum but not yet received an adjudication, people with temporary protected status, U and T non-immigrant visa applicants, or people who have self-petitioned for relief under the Violence Against Women Act. (Id. at 26-27.)

[...]

Legal residents will certainly be swept up by this requirement, particularly when the impacts of the provisions pressuring law enforcement agencies to enforce immigration laws are considered. See A.R.S. § 11-1051(A), (H). Certain categories of people with transitional status and foreign visitors from countries that are part of the Visa Waiver Program will not have readily available documentation of their authorization to remain in the United States, thus potentially subjecting them to arrest or detention, in addition to the burden of “the possibility of inquisitorial practices and police surveillance.” Hines, 312 U.S. at 74. In Hines, the Supreme Court emphasized the important federal responsibility to maintain international relationships, for the protection of American citizens abroad as well as to ensure uniform national foreign policy. Id. at 62-66; see also Zadvydas v. Davis, 533 U.S. 678, 700 (2001) (“We recognize . . . the Nation's need to 'speak with one voice' in immigration matters.”). The United States asserts, and the Court agrees, that “the federal government has long rejected a system by which aliens' papers are routinely demanded and checked.” (Pl.'s Mot. at 26.)11 The Court finds that this requirement imposes an unacceptable burden on lawfully-present aliens.

In the section of her decision Cavuto quoted, Bolton also relied on statements by Justice Alito. In the specific section in which Bolton stated that “there is a substantial likelihood that officers will wrongfully arrest legal resident aliens,” Bolton was discussing the constitutionality of a section of the Arizona bill that provides that “an officer may arrest a person without a warrant if the officer has probable cause to believe that 'the person to be arrested has committed any public offense that makes the person removable from the United States.' ”

To back up her finding that this section would create a “substantial likelihood that officers will wrongfully arrest legal resident aliens,” Bolton quoted Supreme Court Justice Samuel Alito's statement that the question of “whether a conviction for a particular offense will make an alien removable is often quite complex.” From Bolton's opinion:

Under any interpretation of the revision to A.R.S. § 13-3883, it requires an officer to determine whether an alien's public offense makes the alien removable from the United States, a task of considerable complexity that falls under the exclusive authority of the federal government. Justice Alito has commented that

providing advice on whether a conviction for a particular offense will make an alien removable is often quite complex. “Most crimes affecting immigration status are not specifically mentioned by the [Immigration and Nationality Act (INA)], but instead fall under a broad category of crimes such as crimes involving moral turpitude or aggravated felonies.” M. Garcia & L. Eig, CRS Report for Congress, Immigration Consequences of Criminal Activity (Sept. 20, 2006) (summary) (emphasis in original). As has been widely acknowledged, determining whether a particular crime is an “aggravated felony” or a “crime involving moral turpitude [(CIMT)]” is not an easy task.

Padilla v. Kentucky, 130 S. Ct. 1473, 1488 (2010) (Alito, J., concurring) (some citations omitted).

[...]

Considering the substantial complexity in determining whether a particular public offense makes an alien removable from the United States and the fact that this determination is ultimately made by federal judges, there is a substantial likelihood that officers will wrongfully arrest legal resident aliens under the new A.R.S. § 13-3883(A)(5). By enforcing this statute, Arizona would impose a “distinct, unusual and extraordinary” burden on legal resident aliens that only the federal government has the authority to impose. Hines, 312 U.S. at 65-66. The Court thus finds that the United States is likely to succeed on the merits in showing that A.R.S. § 13-3883(A)(5), created by Section 6 of S.B. 1070, is preempted by federal law.