Amicus Curiae Brief of NILC Et Al

No. 15-15211, 15-15213 & 15-15215

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PUENTE ARIZONA, et al.,

Plaintiffs-Appellees,

v.

JOSEPH M. ARPAIO, Sheriff of Maricopa County, et al.,

Defendants-Appellants.

Appeal from the United States District Court for the District of Arizona

The Honorable David G. Campbell No. 2:14CV-01356 (DGC) (PHX)

MOTION FOR LEAVE TO FILE BRIEF OF AMICUS CURIAE

NATIONAL IMMIGRATION LAW CENTER, ET AL., IN SUPPORT OF PLAINTIFFS-APPELLEES

Joshua T. Stehlik, SBN 220241 Nicholas Espritu, SBN 237665 NATIONAL IMMIGRATION LAW CENTER 3435 Wilshire Blvd., Suite 2850 Los Angeles, CA 90010 [email protected] [email protected] Telephone: 213.639.3900 Facsimile: 213.639.3911

Counsel for Amicus Curiae

Case: 15-15211, 08/31/2015, ID: 9666315, DktEntry: 60, Page 1 of 106

Pursuant to FED. R. APP. P. 29(a)-(b)(1)-(2), the National Immigration Law

Center (NILC) and 28 Co-Amici, as listed in Appendix A, (collectively Amici)

submit the accompanying brief in support of the District Courts order granting

Plaintiffs-Appellees request for a preliminary injunction suspending portions of

two Arizona state identity theft criminal statutes.1

Amici are each non-profit organizations, with no parent corporations or

publicly traded stock. A description of the individual Amici and their corporate

disclosure information is included in Appendix A to the concurrently submitted

brief.

In their accompanying brief, proposed Amici supplement Plaintiff-

Appellees appeal by drawing on their knowledge and, where relevant, the

experiences of their members, to present information within their unique expertise.

In particular, proposed Amici provide this panel with detail regarding the conflict

preemption arguments, the purposes and objectives of Congress in its regulation of

the federal employment eligibility verification system, and the complex array of

workforce protection, humanitarian, and law enforcement interests the federal

government considers when enforcing that system.

1All parties have consented to this filing and this motion is unopposed. Thus, Amici have authority to file pursuant to FED. R. APP. P. 29(a).


No party or partys counsel authored this brief in whole or in part. No party

or partys counsel contributed money to fund the preparation or submission of this

brief. No other person except NILC and its counsel contributed money to fund the

preparation or submission of this brief. See FED. R. APP. P. 29(c)(5).

Amici respectfully request that the Court grant leave to file the

accompanying amicus brief submitted concurrently with this motion.

Date: August 31, 2015

Respectfully Submitted,

NATIONAL IMMIGRATION LAW CENTER

/s Joshua T. Stehlik Joshua T. Stehlik, SBN 220241 Nicholas Espritu, SBN 237665 3435 Wilshire Blvd., Suite 2850 Los Angeles, CA 90010 [email protected] [email protected] Telephone: 213.639.3900 Facsimile: 213.639.3911 Counsel for Amicus Curiae


CERTIFICATE OF DIGITAL SUBMISSION

I hereby certify that: (1) all required privacy redactions have been made in

compliance with 9th Cir. R. 25-5; (2) the ECF submission is an exact copy of the

hard copies to be submitted to the court; and (3) the digital submissions have been

scanned for viruses with Adobe Acrobat XI, Version 11.0.12, and according to the

program are free of viruses.

CERTIFICATE OF SERVICE

I hereby certify that I electronically filed the foregoing MOTION FOR

LEAVE TO FILE BRIEF OF AMICI CURIAE NATIONAL IMMIGRATION

LAW CENTER, ET AL., IN SUPPORT OF PLAINTIFFS-APPELLEES with the

Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by

using the appellate CM/ECF system on August 31, 2015. Participants in the case

who are registered CM/ECF users will be served by the appellate CM/ECF system.


Date: August 31, 2015 /s Joshua T. Stehlik Joshua T. Stehlik


No. 15-15211, 15-15213 & 15-15215

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PUENTE ARIZONA, et al.,

Plaintiffs-Appellees,

v.

JOSEPH M. ARPAIO, Sheriff of Maricopa County, et al.,

Defendants-Appellants.

Appeals from the United States District Court for the District of Arizona

The Honorable David G. Campbell No. 2:14CV-01356 (DGC) (PHX)

AMICUS CURIAE BRIEF OF NATIONAL IMMIGRATION LAW CENTER, ET AL., IN SUPPORT OF PLAINTIFFS-APPELLEES

Joshua T. Stehlik, SBN 220241 Nicholas Espritu, SBN 237665 NATIONAL IMMIGRATION LAW CENTER 3435 Wilshire Blvd., Suite 2850 Los Angeles, CA 90010 [email protected] [email protected] Telephone: 213.639.3900 Facsimile: 213.639.3911

Counsel for Amicus Curiae


i

TABLE OF CONTENTS

TABLE OF AUTHORITIES ................................................................................... iii

IDENTITY AND INTERESTS OF AMICI .............................................................. 1

INTRODUCTION AND SUMMARY OF ARGUMENT ........................................ 1

ARGUMENT ............................................................................................................. 3

I. State Laws Are Preempted When they Conflict with the Federal Governments Ability to Achieve a Balance of Statutory Objectives ........... 3

II. Arizonas Use of Identity Theft Statutes to Criminalize Fraud in the Employment Eligibility Verification Process Conflicts with the Comprehensive Federal Scheme Governing the Same Activity ................... 5

A. Congress Objectives in Enacting IRCA Involved a Complex Balance of Interests ...................................................................................................... 6

B. Arizonas Identity Theft Statutes Intrude on the Federal Scheme Governing the Same Conduct ..................................................................10

C. Arizonas Identity Theft Statutes Present an Obstacle to the Federal Governments Ability to Balance Diverse Federal Objectives ...............15

III. Congress Explicitly Subordinated the Federal Interest in Enforcing the Employment Verification System to the Federal Interest in Protecting Victims of Trafficking and Certain Other Crimes .......................................27

CONCLUSION ........................................................................................................31


ii

CERTIFICATE OF COMPLIANCE .......................................................................32

STATEMENT OF RELATED CASES ...................................................................32

CERTIFICATE OF DIGITAL SUBMISSION .......................................................93

CERTIFICATE OF SERVICE ................................................................................93


iii

TABLE OF AUTHORITIES

Cases AM Property Holding Corp., 352 NLRB 279 (2008) .........................................................................................19 Arizona v. United States, 132 S. Ct. 2492 (2012) ................................................................................. passim Arizona v. Valle Del Sol Inc., 134 S. Ct. 1876 (2014) ................................................................................... 13,14 Bailey v. Gulf Coast Transp., Inc., 280 F.3d 1333 (11th Cir. 2002) ...........................................................................18 Buckman Co. v. Plaintiffs Legal Comm., 531 U.S. 341 (2001) ..................................................................................... passim Centeno-Bernuy v. Perry, 302 F. Supp. 2d 128 (W.D.N.Y. 2003) ................................................................18 Contreras v. Corinthian Vigor Ins. Brokerage, Inc., 103 F. Supp. 2d 1180 (N.D. Cal. 2000) ........................................................ 18, 19 Crosby v. Natl Foreign Trade Council, 530 U.S. 363 (2000) ............................................................................................... 5 CSX Transp. v. Easterwood, 507 U.S. 658 (1993) ...........................................................................................3, 4 Equal Emp. Opportunity Commn v. Locals 14 and 15, Intl Union of Operating

Engrs, 438 F. Supp. 876 (S.D.N.Y. 1977) ............................................................... 18, 19 Farmer Bros. Coffee v. Workers Comp. Appeals Bd., 35 Cal. Rptr. 3d 23 (Cal. App. 2005) ..................................................................... 9


iv

Gade v. Natl Solid Wastes Mgmt Assn, 505 U.S. 88 (1992) ................................................................................................. 4 Georgia Latino Alliance for Human Rights v. Governor of Georgia, 691 F.3d 1250 (11th Cir. 2012) ................................................................... passim Hines v. Davidowitz, 312 U.S. 52 (1941) ................................................................................................. 3 Hoffman Plastic Compounds, Inc. v. Nat'l Labor Relations Bd., 535 U.S. 137 (2002) ............................................................................................... 6 Immigration and Naturalization Serv. v. Natl. Ctr. for Immigrants' Rights, Inc.,

502 U.S. 183 (1991) ............................................................................................... 6 In re Herrera-Priego, U.S. Dept of Justice, Exec. Office for Immigration Review (July 10, 2003) ....21 Intl Paper Co. v. Ouellette, 479 U.S. 481 (1987) ............................................................................................... 4 Motor Coach Employees v. Lockridge, 403 U.S. 274 (1971) ............................................................................................... 5 Nathan Kimmel, Inc. v. DowElanco, 275 F.3d 1199 (9th Cir. 2002) ............................................................................... 5 Patel v. Quality Inn S., 846 F.2d 700 (11th Cir. 1988) ............................................................................... 9 Puente Arizona v. Arpaio, 76 F. Supp. 3d 833 (D. Ariz. 2015) .....................................................................11 Rivera v. NIBCO, 364 F.3d 1057 (9th Cir. 2004) .............................................................................17 Singh v. Jutla & C.D. & R's Oil, Inc., 214 F. Supp. 2d 1056 (N.D. Cal. 2002) ...............................................................19


v

Sure-Tan, Inc. v. Natl Labor Relations Bd., 467 U.S. 883 (1984) ............................................................................................... 9 United States v. Alabama, 691 F.3d 1269 (11th Cir. 2012) .................................................................... 13, 14 United States v. Arizona, 641 F.3d 339 (9th Cir. 2011) ...............................................................................12 United States v. South Carolina, 720 F.3d 518 (4th Cir. 2013) ...............................................................................14 Utah Coal. of La Raza v. Herbert, 26 F. Supp. 3d 1125 (D. Utah 2014) ....................................................................14 Valle del Sol Inc. v. Whiting, 732 F.3d 1006 (9th Cir. 2013) ....................................................................... 13,14 Wyeth v. Levine, 555 U.S. 555 (2009) ............................................................................................... 3 Statutes 18 U.S.C. 1546(a) .................................................................................................11 18 U.S.C. 1546(b) .................................................................................................11 18 U.S.C. 3231 ......................................................................................................12 22 U.S.C. 7101(a) .................................................................................................29 22 U.S.C. 7101(b)(17) ..........................................................................................28 22 U.S.C. 7101(b)(19) ................................................................................... 29, 30 22 U.S.C. 7101(b)(20) ..........................................................................................28 29 U.S.C. 215(a)(3) ...............................................................................................18 8 U.S.C. 1101(a)(15)(T) ................................................................................. 27, 28


vi

8 U.S.C. 1101(a)(15)(U) ................................................................................ 27, 28 8 U.S.C. 1101(a)(15)(U)(iii) .......................................................................... 27, 30 8 U.S.C. 1182(a)(6)(C) .........................................................................................11 8 U.S.C. 1227(a)(3)(C)(i) ......................................................................................11 8 U.S.C. 1255(c)(8) ...............................................................................................29 8 U.S.C. 1255(l) ............................................................................................. 28, 29 8 U.S.C. 1255(m) ........................................................................................... 28, 29 8 U.S.C. 1324a ............................................................................................... 10, 11 8 U.S.C. 1324b(a) ................................................................................................... 7 8 U.S.C. 1324a(e)(4) .............................................................................................10 8 U.S.C. 1324a(f) ..................................................................................................10 8 U.S.C. 1324c ......................................................................................................11 8 U.S.C. 1427 ........................................................................................................28 A.R.S. 13-2008(A) ........................................................................................ passim A.R.S. 13-2009(A)(3) ................................................................................... passim Immigration Reform and Control Act of 1986, Pub. L. 99603, 100 Stat. 3445 .................................................................... passim Fair Labor Standards Act, 29 U.S.C. 201-219 ................................................................................... 17, 18


vii

National Labor Relations Act, 29 U.S.C. 151-169 .................................................................................... 17, 18 Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e-2000e-17....................................................................... 17, 18 Victims of Trafficking and Violence Protection Act of 2000, Pub. L. 106-386, 114 Stat. 1464 .................................................................. passim Rules FED. R. APP. P. 29(c)(5) ............................................................................................. 1 FED. R. APP. P. 29(a) .................................................................................................. 1 Regulations 8 C.F.R. 274a.10 ...................................................................................................10 28 C.F.R. 0.53 ......................................................................................................... 8 Legislative Materials 119 Cong. Rec. 14184 (1973) ..................................................................................10 H.R. REP. NO. 99-1000 (1986) (Conf. Rep.) .............................................................. 7 H.R. REP. NO. 99-682 (II) (1986) ...........................................................................7, 8 H.R. REP. NO. 99-682 (I) (1986) .............................................................................8, 9 Other Authorities Hearings before the Senate Subcommittee on Immigration and Refugee Policy,

99th Cong. 59 (1985) ...........................................................................................10 ICE Operating Instruction 287.3a, Questioning persons during labor disputes,

...................................................................................................................... passim


viii

Maricopa County Sheriffs Office, News Release: Sheriff Now Investigating Uncle Sam (July 17, 2013) .............................................................................................25

Memorandum from John Morton, Director, U.S. Immigration and Customs

Enforcement, Prosecutorial Discretion: Certain Victims, Witnesses, and Plaintiffs (June 17, 2011) ............................................................................. passim

Revised Memorandum of Understanding between the Departments of Homeland

Security and Labor Concerning Enforcement Activities at Worksites (Dec. 7, 2011) ............................................................................................................ passim

Phil Benson, MCSO: 21 workers with fake IDs busted at Maryvale grocery, World

Now (Jan. 17, 2013) .............................................................................................25

U.S. Dept of Labor, Fact Sheet: Establishment of Interagency Working Group for the Consistent Enforcement of Federal Labor, Employment and Immigration Laws, ....................................................................................................................23

U.S. Dept of Labor, Interagency Working Group for the Consistent Enforcement

of Federal Labor, Employment and Immigration Laws Action Plan (May 8, 2015), ...................................................................................................................24

U.S. Dept of Labor, News Release, US Department of Labor statement on We

Can Help campaign (June 24, 2010),. ................................................................19 U.S. Dept. of Labor, Fact Sheet #48: Application of U.S. Labor Laws to

Immigrant Workers: Effect of Hoffman Plastics decision on laws enforced by the Wage and Hour Division (Revised 2008), ...........................................................18

U.S. Immigration and Customs Enforcement Special Agents Field Manual

33.14(h) ................................................................................................................20


1

IDENTITY AND INTERESTS OF AMICI

The interests of the individual Amici and their corporate disclosure

information are attached as Appendix A.

Pursuant to FED. R. APP. P. 29(c)(5), Amici states that no partys counsel

authored this brief in whole or in part, no party or partys counsel contributed

money that was intended to fund preparing or submitting the brief, and no person

contributed money that was intended to fund preparing or submitting the brief.

All parties have consented to this filing and this motion is unopposed. Thus,

Amici have authority to file pursuant to FED. R. APP. P. 29(a).

INTRODUCTION AND SUMMARY OF ARGUMENT

Amici respectfully request that this Court uphold the District Courts finding

that federal law likely preempts portions of two of Arizonas identity theft statutes,

A.R.S. 13-2008(A) and 13-2009(A)(3), which the Arizona legislature passed in

2007 and 2008 and which criminalize the use of false information and documents

to obtain or continue employment. Amici submit this brief to present further detail

regarding Congress purposes and objectives in its regulation of the employment of

unauthorized immigrants and the complex array of methods by which the federal

government has chosen to achieve these purposes and objectives. Additionally,

this brief will demonstrate the conflict between Arizonas use of its identity theft

statutes to prosecute fraud in the employment verification process and the federal


2

governments ability to effectuate its careful and complex balancing of interests in

the enforcement of federal laws regulating the employment of unauthorized

immigrants.2

Arizonas identity theft in employment provisions create state sanctions for

the use of fraudulent information and documents to establish employment

eligibility that are separate and distinct from the comprehensive set of sanctions

established by Congress for the same conduct in the Immigration Reform and

Control Act of 1986 (IRCA), Pub. L. 99603, 100 Stat. 3445, and subsequent

Congressional enactments. In contrast to the exclusively federal enforcement of

IRCA, Arizonas provisions apply only in Arizona, are enforced only by Arizona

officials and are independent of federal direction or control. Thus, Arizonas

identity theft statutes create a conflict in the method of enforcement, Arizona v.

United States, 132 S. Ct. 2492, 2505 (2012), that interferes with the careful

balancing struck by Congress in its design of the comprehensive federal regulatory

scheme to govern this behavior.

Additionally, Arizonas creation of a distinct state enforcement scheme that

operates outside federal control, unmoored from the consideration of workforce

2 Although this amicus brief focuses on the conflict presented by Arizonas laws, Amici also agree with the arguments made by Appellees that Arizonas identity theft statutes unconstitutionally intrude on a field that was reserved for the federal government. See Appellees Answering Br. Re: Prelim. Inj. 24-34, Dkt. No. 50.


3

protection, humanitarian, and law enforcement interests that are embodied in the

federal scheme, divests the federal government of its ability to implement its

balancing of enforcement priorities. Further, Arizonas law is conflict preempted

because it is divorced from the Congressional recognition, explicit in federal law,

that penalties for violating federal employment verification requirements should be

subordinated to the need to protect trafficked individuals and immigrant victims of

certain other crimes. This conflict is not merely a potential obstacle: the actions of

the Maricopa County Sheriffs Office (MCSO) demonstrate how enforcement of

the state laws has directly conflicted with federal policy goals.

Accordingly, Amici respectfully request that this Court uphold the injunction

against A.R.S. 13-2008(A) and 13-2009(A)(3).

ARGUMENT

I. State Laws Are Preempted When they Conflict with the Federal Governments Ability to Achieve a Balance of Statutory Objectives

A central principle[] of preemption is that a state law is preempted where

it stands as an obstacle to the accomplishment and execution of the full purposes

and objectives of Congress. Arizona, 132 S. Ct. at 2505 (quoting Hines v.

Davidowitz, 312 U.S. 52, 67 (1941)); CSX Transp. v. Easterwood, 507 U.S. 658,

663 (1993); accord Wyeth v. Levine, 555 U.S. 555, 577 (2009). The ultimate task

in any pre-emption case is to determine whether state regulation is consistent with

the structure and purpose of the statute as a whole. Gade v. Natl Solid Wastes


4

Mgmt Assn, 505 U.S. 88, 98 (1992). To determine whether state laws stand in

conflict with federal law, courts look[] to the provisions of the whole [federal]

law, and to its object and policy . . . . Id. (quotation omitted). Courts must

examine not only the state laws professed purpose, but also determine its effect on

the federal scheme. See id. at 105. A state law can present such an obstacle where

it interferes with the methods chosen by Congress to achieve its legislative

purposes and objectives. See Intl Paper Co. v. Ouellette, 479 U.S. 481, 494

(1987).

One way that such a conflict can occur is when the federal statutory scheme

amply empowers the [the federal government] to punish and deter the prohibited

behavior, and this authority is used by the federal government to achieve a

somewhat delicate balance of statutory objectives, but state law nonetheless

authorizes prosecutions for the same behavior, unmoored from the federal

governments delicate and deliberate balancing. Buckman Co. v. Plaintiffs Legal

Comm., 531 U.S. 341, 348 (2001). A state scheme that criminalizes, and thus

allows for prosecution of, the same activity, may be preempted where state law

fails to recognize the careful balance of interests contained in federal law. See

Arizona, 132 S. Ct. at 2505 (a [c]onflict in technique can be fully as disruptive to

the system Congress enacted as conflict in overt policy) (quoting Motor Coach

Employees v. Lockridge, 403 U.S. 274, 287 (1971)); see also Crosby v. Natl


5

Foreign Trade Council, 530 U.S. 363, 379 n.14 (2000) (Identity of ends does not

end our analysis of preemption.). Otherwise, the State would have the power to

bring criminal charges against individuals for violating a federal law even in

circumstances where federal officials in charge of the comprehensive scheme

determine that prosecution would frustrate federal policies. Arizona, 132 S. Ct. at

2503. For example, in Buckman, the Court held the state law fraud statutes were

preempted from being used to prosecute fraud-on-the-U.S. Food and Drug

Administration (FDA) claims because federal law empowers the FDA to pursue

a variety of options aimed at punishing and deterring fraud against the agency, and

these options afforded the agency the flexibility necessary for it to balance

difficult, and often competing, statutory objectives. Buckman, 531 U.S. at 34851;

see also Nathan Kimmel, Inc. v. DowElanco, 275 F.3d 1199, 1206 (9th Cir. 2002)

(holding that federal preemption also applied in the fraud-on-the-U.S.

Environmental Protection Agency context).

II. Arizonas Use of Identity Theft Statutes to Criminalize Fraud in the Employment Eligibility Verification Process Conflicts with the Comprehensive Federal Scheme Governing the Same Activity

The statutory structure and legislative history of IRCA demonstrates that

Congress purpose in enacting the statute was to create a comprehensive

framework for the regulation of immigrant employment, which includes a

graduated series of penalties for employers who violate its employment eligibility


6

verification requirements and sanctions for fraud. These penalties, and their

method of implementation, have been carefully calibrated to allow the federal

government to balance enforcement with consideration of various interests at the

national level, including labor and employment protections. Allowing state

enforcement of parallel penalties for fraud in the employment verification context

undermines the federal control necessary to execute this careful balancing of

enforcement priorities, which has been reflected in various federal interagency

agreements, agency guidance, and agency memoranda. Indeed, MCSOs

enforcement of Arizonas identity fraud statutes concretely demonstrates the

obstacle that these laws present to the accomplishment of federal purposes and

objectives.

A. Congress Objectives in Enacting IRCA Involved a Complex Balance of Interests

Congress enacted IRCA as a comprehensive framework for combating the

employment of illegal aliens. Arizona, 132 S. Ct. at 2504 (quoting Hoffman

Plastic Compounds, Inc. v. Natl Labor Relations Bd., 535 U.S. 137, 147 (2002)).

One of Congress purposes in enacting IRCA was to make combating the

employment of unauthorized immigrants central to [t]he policy of immigration

law. Hoffman 535 U.S. at 147 (quoting Immigration and Naturalization Serv. v.

Natl. Ctr. for Immigrants' Rights, Inc., 502 U.S. 183, 194 n.8 (1991)).


7

IRCAs regulatory scheme was widespread, affecting not just immigrant

workers but changing the requirements for hiring and employment for all

employees and employers in the United States. Congress had to take into

consideration a range of interests and objectives that extended beyond immigrants

and immigration laws, including preserving the integrity of labor standards for all

workers in the United States, regardless of immigration status.

The legislative history of IRCA makes clear that, in drafting the law,

Congress was balancing its intention to minimize, through an employer sanctions

regime, the employment of individuals who lacked employment authorization and

its countervailing concerns that those employer sanctions would result in increased

discrimination against workers based on their perceived national origin or

citizenship status. See, e.g., H.R. REP. NO. 99-682 (II), at 3 (1986), as reprinted in

1986 U.S.C.C.A.N. 5649, 5761 (It is the committees view that if there is to be

sanctions enforcement and liability, there must be an equally strong and readily

available remedy if resulting discrimination occurs.); H.R. REP. NO. 99-1000, at 3

(1986) (Conf. Rep.), as reprinted in 1986 U.S.C.C.A.N. 5840, 5842 (The

antidiscrimination provisions of this bill are a complement to the sanctions

provisions.). As a result, Congress included in IRCA an antidiscrimination

provision that makes it unlawful for an employer to engage in national origin or


8

citizenship status discrimination against protected individuals.3 See 8 U.S.C.

1324b(a).

The legislative history also reflects Congress intent that IRCA not weaken

existing labor protections under federal and state laws:

It is not the intention of the Committee that the employer sanctions provisions of the bill be used to undermine or diminish in any way labor protections in existing law, or to limit the powers of federal or state labor relations boards, labor standards agencies, or labor arbitrators to remedy unfair practices committed against undocumented employees for exercising their rights before such agencies or for engaging in activities protected by existing law.

H.R. REP. NO. 99-682 (I), at 8 (1986), reprinted in 1986 U.S.C.C.A.N. 5649, 5662;

see also H.R. REP. NO. 99-682 (II), at 1 (1986), reprinted in 1986 U.S.C.C.A.N.

5757, 5758 (expressing same understanding by the House Committee on Education

and Labor). Congress recognized that existing labor protections had to be

preserved for unauthorized workers, or else IRCA would provoke an unintended

consequence the creation of an economic incentive for unscrupulous employers

to prefer unauthorized workers over their authorized counterparts directly

contrary to the primary congressional objective of IRCA to deter unauthorized

3 In IRCA, Congress also created the Office of Special Counsel for Immigration-Related Unfair Employment Practices within the U.S. Department of Justice to enforce the new antidiscrimination provision, see IRCA, Pub. L. 99-603, 102(c), see also 28 C.F.R. 0.53, and provided for funds for the Department of Labors Wage and Hour Division to bolster enforcement of employment laws for undocumented workers. See IRCA, Pub. L. 99-603, 111(d).


9

employment. H.R. REP. NO. 99-682 (II), at 1-2, reprinted in 1986 U.S.C.C.A.N. at

5758 (To [limit employment protections] would be counter-productive of our

intent to limit the hiring of undocumented employees and the depressing effect on

working conditions caused by their employment.). In passing IRCA, Congress

thus explicitly intended to safeguard labor protections in existing law in order to

prevent a race to the bottom by unscrupulous employers. H.R. REP. NO. 99-682(I),

at 8, reprinted in 1986 U.S.C.C.A.N. at 5662.

This logic has been routinely affirmed by courts in the years since IRCAs

passage. Ensuring that employees without work authorization receive the same

minimum labor protections as work-authorized workers removes the economic

incentive for employers to hire unauthorized workers. See Sure-Tan, Inc. v. Natl

Labor Relations Bd., 467 U.S. 883, 893 (1984) (finding that [i]f an employer

realizes that there will be no advantage under the NLRA in preferring illegal aliens

to legal resident workers, any incentive to hire such illegal aliens is

correspondingly lessened); Patel v. Quality Inn S., 846 F.2d 700, 704-05 (11th

Cir. 1988) (FLSAs coverage of undocumented aliens goes hand in hand with the

policies behind the IRCA. Congress enacted IRCA to reduce illegal immigration

by eliminating employers economic incentive to hire undocumented

aliensFLSAs coverage of undocumented workers has a similar effect.);

Farmer Bros. Coffee v. Workers Comp. Appeals Bd., 35 Cal. Rptr. 3d 23, 28 (Cal.


10

App. 2005) (making workers compensation benefits dependent on federal work

authorization would act as an encouragement for unscrupulous employersto

hire aliens unauthorized to work.).

B. Arizonas Identity Theft Statutes Intrude on the Federal Scheme Governing the Same Conduct

IRCA makes it illegal for employers to knowingly hire, recruit, refer, or

continue to employ unauthorized workers. Arizona, 132 S. Ct. at 2504. Further it

requires every employer to verify the employment authorization status of

prospective employees, and enforces these requirements through criminal

penalties and an escalating series of civil penalties tied to the number of times an

employer has violated the provisions. Id. (citing 8 U.S.C. 1324a(e)(4), (f); 8

C.F.R. 274a.10). IRCA also sets out the specific tools for federal officials to

address anticipated fraud in response to the federal employment verification

system.

When enacting this scheme, Congress explicitly considered proposals to

criminally sanction unlawfully present immigrants for merely seeking or

performing work but ultimately rejected them. See Arizona, 132 S. Ct. at 2504

(citing 119 Cong. Rec. 14184 (1973) (statement of Rep. Dennis)4; see generally 8

4 See also Immigration Reform and Control Act of 1985: Hearings before the Senate Subcommittee on Immigration and Refugee Policy, 99th Cong. 59 (1985) (statement of Sen. Simpson, Chairman, S. Comm. on the Judiciary) ([I]t was my


11

U.S.C. 1324a. Instead, IRCAs comprehensive frameworkon the employee

side imposes only civil penalties on aliens who seek or engage in unauthorized

work. Arizona, 132 S. Ct. at 2504. This framework only allows for limited

criminal penalties for unauthorized workers to obtain employment through

fraudulent means. Id.; see 18 U.S.C. 1546(b) (creating criminal sanctions for

the use of a false identification document or attestation to satisfy employment

verification requirements); 18 U.S.C. 1546(a) (prohibiting use of fraudulent

immigration documents as evidence of authorized . . . employment in the United

States.).5 Given the comprehensive nature of this federal enforcement scheme,

state laws that place criminal sanctions on noncitizens who seek, or engage in,

unauthorized employment interfere with the careful balance struck by Congress

thought, and the thought of the Select Commission, we ought to try the most humane [way] first, which is to reduce the magnet of jobs.). 5 While Arizonas identity theft statutes are potentially punishable by a prison term that may exceed five years, the federal penalties only carry prison sentences of five years or less. Puente Arizona v. Arpaio, 76 F. Supp. 3d 833, 858 (D. Ariz. 2015). Federal law also establishes a range of civil penalties to disincentivize use of false documents in the employment verification context that are not contemplated by Arizonas regulatory scheme. See, e.g., 8 U.S.C. 1227(a)(3)(C)(i) (creating immigration consequences for fraud in the employment verification process); 8 U.S.C. 1182(a)(6)(C) (creating immigration consequences for false claims to citizenship); 8 U.S.C. 1324c (providing for potential fines for falsely using a document to obtain employment). As the district court correctly noted, these different sanctions that layer additional penalties atop federal law, likely result in conflict preemption. Puente Arizona, 76 F. Supp. 3d at 858 (quoting Georgia Latino Alliance for Human Rights v. Governor of Georgia, 691 F.3d 1250, 1267 (11th Cir. 2012) (GLAHR)).


12

with respect to unauthorized employment of aliens. Arizona, 132 S. Ct. at 2504-

05 (striking down Arizona provision criminalizing unauthorized employment).

While the federal employment verification system imposes penalties for the

use of fraudulent documents in the context of employment eligibility verification,

Congress also prohibited the information provided pursuant to these requirements

from being used for any purpose other than those specified by federal law. See id.

(Congress has made clearthat any information employees submit to indicate

their work status may not be used for purposes other than prosecution under

specified federal criminal statutes for fraud, perjury, and related conduct.)

(emphasis added); see also United States v. Arizona, 641 F.3d 339, 359 (9th Cir.

2011), affd in part, revd in part and remanded, Arizona, 132 S. Ct. 2492 (2012)

(federal law would prohibit Arizona from using personal information in the

verification system for the purpose of investigating or prosecuting violations of its

unconstitutional state law that criminalized unauthorized employment.).

This limitation on the use of information that is required by the federal

employment verification system to prosecution under specific federal statutes

serves to ensure federal control of the criminalization of these actions because only

federal prosecutors can bring these charges, and these charges can only be brought

in federal court. See 18 U.S.C. 3231 (The district courts of the United States

shall have original jurisdiction, exclusive of the courts of the States, of all offenses


13

against the laws of the United States.). The provisions of Arizonas identity theft

statutes dealing with employment divest federal authorities of the exclusive power

to prosecute these employment verification violations. As the U.S. Supreme Court

has recognized, states attempts to independently engage in the enforcement of

immigration related laws diminish the [Federal Government]s control over

enforcement and detract from the integrated scheme of regulation created by

Congress. Arizona, 132 S. Ct. at 2502 (holding Arizona preempted from

prosecuting state alien registration crimes) (internal quotation marks omitted).

Indeed, the diminishment of federal control that would occur if states were

allowed to bring their own prosecutions for fraud in the employment verification

process is similar to that which multiple federal courts, including this circuit, have

recognized can occur in the context of laws criminalizing the harboring and

transporting of unauthorized immigrants. Federal circuits have unanimously held

that federal harboring statutes are part of an extensive and complex federal

scheme of criminal sanctions for those who facilitate the unlawful entry, residence,

or movement of aliens within the United States. Valle del Sol Inc. v. Whiting, 732

F.3d 1006, 1024 (9th Cir. 2013) cert. denied sub nom. Arizona v. Valle Del Sol

Inc., 134 S. Ct. 1876 (2014); see also United States v. Alabama, 691 F.3d 1269,

1285 (11th Cir. 2012) (holding federal law provides a comprehensive framework

to penalize the transportation, concealment, and inducement of unlawfully present


14

aliens); GLAHR, 691 F.3d at 1263-64; United States v. South Carolina, 720 F.3d

518, 531-32 (4th Cir. 2013). The Ninth Circuit recognized with respect to

Arizonas harboring statute that was held preempted:

the current federal scheme reserves prosecutorial power, and thus discretion, over smuggling violations to federal prosecutors. By allowing state prosecution of the same activities in state court, Arizona has conferred upon its prosecutors the ability to prosecute those who transport or harbor unauthorized aliens in a manner unaligned with federal immigration enforcement priorities. In other words, the State would have the power to bring criminal charges against individuals for violating a federal law even in circumstances where federal officials in charge of the comprehensive scheme determine that prosecution would frustrate federal policies.

Valle del Sol Inc., 732 F.3d at 1027 (quoting Arizona, 132 S. Ct. at 2503); see also

South Carolina, 720 F.3d at 531-32 (holding that state harboring statute

improperly place[d] in the hands of state officials the nations immigration policy,

and strip[ped] federal officials of the authority and discretion necessary in

managing foreign affairs); GLAHR, 691 F.3d at 1265-66 ([i]nterpretation of

[state law mirroring federal immigration law] by state courts and enforcement by

state prosecutors unconstrained by federal law threaten the uniform application of

the INA); Alabama, 691 F.3d at 1287 (by confining the prosecution of federal

immigration crimes to federal court, Congress limited the power to pursue those

cases to the appropriate United States Attorney) (internal quotation marks

omitted); Utah Coal. of La Raza v. Herbert, 26 F. Supp. 3d 1125, 1145 (D. Utah

2014) (finding that state criminalization of the same types of behavior as federal


15

law interferes with Congress chosen balance). In addition to the lack of

uniformity, several courts concluded that allowing state prosecution and

adjudication in this area would allow for state authority in matters of federal

immigration law enforcement outside the limited circumstances specified by

federal law and would interfere with the careful balance struck by Congress with

respect to the harboring of unauthorized non-citizens. Arizona, 132 S. Ct. at 2505

06 (noting a difference in the method of enforcement can create a conflict with

federal law).

Thus, Arizonas identity theft in employment provisions conflict with

federal law because they subvert the ability of the federal government to control

enforcement of the laws governing employment eligibility verification in a way

that allows them to balance this enforcement against a complex array of other

federal interests.

C. Arizonas Identity Theft Statutes Present an Obstacle to the Federal Governments Ability to Balance Diverse Federal Objectives

The federal government must balance a range of federal interestsincluding

labor and employment, humanitarian, and law enforcement interestswhen it

engages in enforcement of federal employment eligibility verification

requirements. Allowing Arizona to prosecute undocumented workers under its

state identity theft laws strips federal officials of the discretion necessary to

balance the various federal concerns implicated in the enforcement of federal


16

employment verification requirements. The potential for state actions to frustrate

federal policies is especially acute in the context of federal regulation of the

employment verification process, because the federal government must balance its

interest in the enforcement of IRCAs fraud provisions with the federal interests in

enforcing federal labor and employment laws. This intent to balance IRCAs

enforcement provisions, while ensuring protection from immigration-based

retaliation against workers, de-conflicting federal worksite immigration

enforcement with federal labor and employment law enforcement, and

safeguarding the integrity of worksite investigations by federal labor and

employment agencies, is demonstrated through a complex array of federal

interagency agreements, agency guidance, and interagency practices. These

policies and practices allow the federal government flexibility in making a

measured response to suspected fraud and are, as such, a critical component of

the statutory and regulatory framework under which the [federal government]

pursues difficult (and often competing) objectives. Buckman, 531 U.S. at 349.

MCSOs enforcement of Arizonas identity theft in employment laws demonstrates

how state enforcement in this realm frustrates the full effectuation of federal

policies.

As discussed above, Congress, in enacting IRCA, recognized that pure

enforcement of its sanctions against unauthorized workers, without regard to other


17

existing workplace protections, fails to fully effectuate the purposes of IRCA to

disincentivize the hiring of unauthorized workers and undermines the ability of the

federal government to achieve other important federal interests. Centrally,

immigrant workers facing civil and labor rights violations are too frequently

chilled from enforcing their workplace rights for fear that they will face

immigration consequences as a result. See, e.g., Rivera v. NIBCO, 364 F.3d 1057,

1064-65 (9th Cir. 2004) (noting that most undocumented workers are reluctant to

report abusive or discriminatory employment practices since plaintiffs found to

be undocumented might face criminal prosecution and deportation); cf. Arizona,

132 S. Ct. at 2504 (IRCAs framework reflects a considered judgment that

making criminals out of aliens engaged in unauthorized workaliens who already

face the possibility of employer exploitation because of their removable status

would be inconsistent with federal policy and objectives.). Unaddressed, this

chilling effect undermines the ability of the federal government to enforce federal

labor and employment laws, and ultimately erodes workplace standards for all

workers.

The need to protect workers against the potential for employers to use

immigration sanctions to chill workers ability to enforce their workplace rights is

a central component of the effectuation of the statutes protecting workers rights.

Notably, the Fair Labor Standards Act (FLSA), 29 U.S.C. 201-219, Title VII


18

of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. 2000e-2000e-17, and

the National Labor Relations Act (NLRA), 29 U.S.C. 151-169, all protect the

rights of workers by prohibiting employers from using workers immigration status

as a means of retaliating against them for asserting their rights under these laws.

The FLSA, which was enacted to eliminate substandard working conditions

in the industries within its coverage, specifically provides employees protection

from retaliation in order to insulate employees from adverse actions from their

employers if they complain about a violation of its standards. See 29 U.S.C.

215(a)(3); Bailey v. Gulf Coast Transp., Inc., 280 F.3d 1333 (11th Cir. 2002);

Centeno-Bernuy v. Perry, 302 F. Supp. 2d 128, 135 (W.D.N.Y. 2003) (noting the

anti-retaliation provision is critical to the entire enforcement scheme of federal

wage and hour law); cf. Equal Emp. Opportunity Commn v. Locals 14 and 15,

Intl Union of Operating Engrs, 438 F. Supp. 876, 87980 (S.D.N.Y. 1977)

(witnesses who are [] retaliated against because of their testimony, are going to

be much less likely to testify in a subsequent proceeding ... if such retaliation goes

unchecked.). Undocumented workers are protected against immigration-based

retaliation through this anti-retaliation provision.6 See Contreras v. Corinthian

6 The U.S. Department of Labor (DOL) has also consistently held that the substantive protections of the FLSA apply to workers regardless of their immigration status. See, e.g., U.S. Dept. of Labor, Fact Sheet #48: Application of U.S. Labor Laws to Immigrant Workers: Effect of Hoffman Plastics decision on laws enforced by the Wage and Hour Division (Revised 2008),


19

Vigor Ins. Brokerage, Inc., 103 F. Supp. 2d 1180, 1185 (N.D. Cal. 2000) (holding

employers reporting of plaintiffs undocumented status to federal immigration

officials days after a conference in her unpaid wage claim constituted retaliation);

Singh v. Jutla & C.D. & R's Oil, Inc., 214 F. Supp. 2d 1056, 1059 (N.D. Cal. 2002)

(holding employers threat to call immigration authorities unless plaintiff withdrew

his unpaid wage claim stated a claim for retaliation under FLSA). Similarly, courts

have found that immigration-based retaliation against workers is actionable under

Title VII, see, e.g., Equal Emp. Opportunity Commn v. The Restaurant Co., 490 F.

Supp. 2d 1039, 1050 (D. Minn. 2007) (finding even if [plaintiff] is

undocumented, she still has standing to pursue her Title VII claims, and allowing

her claim of immigration-based retaliation to proceed), and under the NLRA, see,

e.g., AM Property Holding Corp., Maiden 80/90 NY LLC and Media Technology

Centers, 352 NLRB 279, 282 (2008) (finding an employers threat to investigate

the immigration status of its employees in retaliation for providing testimony at an

NLRB proceeding was an unfair labor practice).

To ensure IRCAs employment verification requirements do not

inadvertently undermine these protections, the various federal agencies enforcing

http://www.dol.gov/whd/regs/compliance/whdfs48.htm, (See Amicis App. B for a true and correct copy); U.S. Dept of Labor, News Release, US Department of Labor statement on We Can Help campaign (June 24, 2010), http://www.dol.gov/opa/media/press/whd/WHD20100890.htm#.UIBV3Wc8r2Q (See Amicis App. B).


20

the respective statutes have had to strike a deliberate balance in their worksite

enforcement activities. The federal government has adopted an array of

interagency agreements, agency guidance, and interagency protocols to effectuate

and maintain that balance. Two federal policiesthe Revised Memorandum of

Understanding between the Departments of Homeland Security and Labor

Concerning Enforcement Activities at Worksites (Dec. 7, 2011), (DHS-DOL

MOU), http://www.dol.gov/asp/media/reports/DHS-DOL-MOU.pdf, (See Amicis

App. B), and the ICE Operating Instruction 287.3a, Questioning persons during

labor disputes, (OI 287.3a),

http://www.uscis.gov/iframe/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-

53690/0-0-0-61072/0-0-0-61097.html, (See Amicis App. B)7reflect the balance

of national interests that the federal government has struck to ensure that its

worksite immigration enforcement actions do not undermine its enforcement of

labor and employment laws. In the DHS-DOL MOU, the Department of

Homeland Security (DHS) and the DOL acknowledge that effective

enforcement of labor law is essential to ensure proper wages and working

conditions for all covered workers regardless of immigration status. DHS-DOL

MOU at 1. The MOU reflects the agencies shared desire to protect immigrant

7 OI 287.3a, initially adopted in 1996, was re-designated on April 28, 2000 as U.S. Immigration and Customs Enforcement (ICE) Special Agents Field Manual 33.14(h).


21

workers from employers who would seek to invoke federal immigration

enforcement to chill workers from asserting their workplace rights, including filing

claims with the DOL or participating in DOL investigations. See id. at 2. In

addition, ICE agrees to refrain from initiating civil immigration enforcement

activities at a worksite where DOL is investigating a labor dispute. Id. This

agreement protects DOLs ability to effectively enforce labor standards by

ensuring access to reliable employee testimony, which is difficult to obtain when

an employee fears that participating in an investigation may result in immigration-

related consequences.

The DHS-DOL MOU complements ICEs operational guidance intended to

protect the Service from unknowingly becoming involved in a labor dispute and

to prevent federal immigration authorities from being used to interfere with or to

retaliate against employees for exercising their rights. OI 287.3a at 1; see also

DHS-DOL MOU at 2 (same); In re Herrera-Priego, U.S. Dept of Justice, Exec.

Office for Immigration Review, 1, 24 (Lamb, Immigration J., July 10, 2003),

http://www.nilc.org/document.html?id=363 (concluding that OI 287.3a was

designed to protect fundamental labor rights) (See Amicis App. B). OI 287.3a

requires that, whenever information received from any source creates suspicion

that an immigration enforcement action might involve ICE in a labor dispute, a

reasonable attempt should be made by [Immigration and Naturalization] Service


22

enforcement officers to determine whether a labor dispute is in progress. OI

287.3a at 1. OI 287.3a requires ICE agents to ask specific questions of individuals

providing tips, including whether there is a labor dispute at the worksite in

question, whether the individual is employed by or related to anyone at the

worksite, and whether the workers have complained about any workplace

violations. Id. Where it appears that information may have been provided in

order to interfere with or retaliate against employees for exercising their rights, OI

287.3a instructs ICE agents to take no action without higher level approval within

the agency. Id.

In addition to the DHS-DOL MOU and OI 287.3a, ICE has attempted to

protect the ability of immigrant workers to enforce their labor and employment

rights by providing for administrative relief for workers involved in a labor dispute

or otherwise asserting their civil rights. See Memorandum from John Morton,

Director, U.S. Immigration and Customs Enforcement, Prosecutorial Discretion:

Certain Victims, Witnesses, and Plaintiffs 1 (June 17, 2011), (Victims

Memorandum), http://www.ice.gov/doclib/secure-communities/pdf/domestic-

violence.pdf, (See Amicis App. B).8 The memorandum instructs ICE officers to

8 In addition to the provision of administrative relief in the memorandum, the DHS-DOL MOU reflects ICEs agreement to consider DOL requests that ICE grant a temporary law enforcement parole or deferred action to any witness needed for a DOL investigation of a labor dispute . . . and any related proceeding where such witness is in the country unlawfully. DHS-DOL MOU at 3.


23

give particular consideration to individuals engaging in a protected activity

related to civil or other rights and includes, as examples of such activity, union

organizing or complaining to authorities about employment discrimination and a

non-frivolous dispute with an employer. Id. at 2. In those cases, absent serious

adverse factors, exercising favorable discretion, such as release from detention

and deferral or a stay of removal generally, will be appropriate. Id.

Finally, in order to coordinate and manage the complex array of federal

interests implicated by federal enforcement of IRCAs employment eligibility

verification provisions, the federal government has brought together DHS, DOL,

the Department of Justice, Equal Employment Opportunity Commission, and

National Labor Relations Board to form the Interagency Working Group for the

Consistent Enforcement of Federal Labor, Employment, and Immigration Laws.

See U.S. Dept of Labor, Fact Sheet: Establishment of Interagency Working Group

for the Consistent Enforcement of Federal Labor, Employment and Immigration

Laws, http://www.dol.gov/dol/fact-sheet/immigration/interagency-working-

group.htm, (See Amicis App. B) The working group facilitates federal interagency

coordination to promote workers cooperation with labor and employment law

enforcement authorities without fear of retaliation. Id. To achieve this the

interagency working group aims to [e]nsure federal enforcement authorities are

not used by parties seeking to undermine worker protection laws by enmeshing


24

immigration authorities in labor disputes, id., by enhanc[ing] coordination in

those cases where federal responsibilities to enforce labor, employment, and

immigration laws may overlap. U.S. Dept of Labor, Interagency Working Group

for the Consistent Enforcement of Federal Labor, Employment and Immigration

Laws Action Plan 1 (May 8, 2015), http://www.dol.gov/dol/fact-

sheet/immigration/IWGSix-MonthActionPlan.htm, (See Amicis App. B) The

potential for overlapping federal responsibilities underscores the complexity of

the federal interests that are implicated by the enforcement of IRCA and the need

for federal control over the enforcement of sanctions on federal employment

verification fraud to balance the federal governments array of interests.

Because of this need for federal control, enforcement of Arizonas identity

theft in employment provisions frustrate the federal governments ability to

effectuate the careful balancing of interests and enforcement priorities and

techniques described above. Unlike federal immigration officials, Arizona law

enforcement agents and prosecutors are not required to engage in enforcement in a

manner consistent with the DHS-DOL MOU. State officials are not bound to

assess whether their enforcement activities at a worksite could undermine a DOL

investigation, which leads to the potential for immigrant workers being chilled

from participating in the investigation or, if such workers have been the target of

state or local enforcement efforts, may mean they are unavailable to participate in


25

the DOLs investigation effectively. Indeed, the record reflects that MCSOs

enforcement operations have, in fact, chilled workers from reporting workplace

violations out of a fear [of] being taken by the Sheriff or having their employer

report them to law enforcement. 14-ER-3187, Garcia Decl. 19; see also 14-ER-

3193, de la Fuente Decl. 7 (attesting that the most common reason workers were

reluctant to assert their rights under the labor and employment laws was because

they were concerned about retaliation based on their immigration status.); 14-ER-

3196, Romero Decl. 9 (attesting that I never complained about not getting paid

overtime . . . because I was afraid my employer would retaliate against me.).9

Similarly, the record demonstrates that MCSOs practice has included

receiving hotline tips and basing enforcement actions on those tips,10 revealing

another problem with allowing state enforcement of the identity theft in

employment provisions. These actors, unlike federal officials, are not required to

9 Further, enforcement of the state identity theft in employment provisions also potentially subjects the same undocumented workers to state prosecution whom the federal government has determined should qualify for prosecutorial discretion and termination of removal proceedings, undermining the federal governments explicit policy against remov[ing] individuals in the midst of a legitimate effort to protect their civil rights or civil liberties. Victims Memorandum at 2. 10 See Maricopa County Sheriffs Office, News Release: Sheriff Now Investigating Uncle Sam (July 17, 2013) (noting that the Sheriffs Offices 73rd workplace ID theft operation began after his office received a tip from a caller); Phil Benson, MCSO: 21 workers with fake IDs busted at Maryvale grocery, World Now, Jan. 17, 2013 (stating that the Sheriffs Offices 70th employers sanctions raid began with a hotline tip from a former employer).


26

assess whether the tips received could be motivated by an improper retaliatory

purpose, presenting an obstacle to the federal governments ability to enforce the

balance between immigration and labor law enforcement reflected in these federal

policies. Indeed, since the MCSO accepts and bases enforcement actions on tips

without any regard to guidance provided under the DHS-DOL MOU and OI

287.3a, savvy employers and managers in Maricopa County can circumvent the

federal safeguards by contacting the MCSO instead of federal immigration

officers. In fact, the record reflects that immigrant workers in Arizona have been

chilled from asserting their workplace rights based on employer threats to call the

Sheriff or to send Arpaio to arrest them. 14-ER-3194, de la Fuente Decl. 9;

see also 14-ER-3187, Garcia Decl. 18-19 (attesting to instances where bosses,

managers, and supervisors have told workers that if they dont do certain things,

such as work overtime without pay, their superiors will call the Sheriff or turn

them in.).

Finally, enforcement of the state identity theft laws undermines the very

point of the interagency working group, which is to coordinate the overlapping

federal responsibilities to enforce labor, employment, and immigration laws. If a

state, in prosecuting individuals for fraud in the employment verification process,

is free to take action at odds with the enforcement policies coordinated and


27

implemented by the working group, it obstructs the federal governments ability to

administer these overlapping federal responsibilities effectively.

MCSOs enforcement of Arizonas identity theft statutes demonstrates how

state laws permitting independent state workplace enforcement efforts undermine

the federal control necessary to accomplish the objectives that the interagency

working group, the DHS-DOL MOU, OI 287.3a, and the victims memorandum

were designed to protect.

III. Congress Explicitly Subordinated the Federal Interest in Enforcing the Employment Verification System to the Federal Interest in Protecting Victims of Trafficking and Certain Other Crimes

Arizonas identity theft statutes also conflict with federal law and policy

because they allow for prosecution of victims of human trafficking or of certain

other crimes despite Congress explicit intent that these individuals be insulated

from penalties for using false identity documents to secure employment. Congress,

through the Victims of Trafficking and Violence Protection Act of 2000

(VTVPA), Pub. L. 106-386, 114 Stat. 1464, provides immigration relief to

undocumented immigrants who have been the victim of human trafficking or of

certain crimes through the provision of T and U visas.11 See generally 8 U.S.C.

11 The statute also reflects Congress express objectives to encourage law enforcement officials at the state and local levels to serve immigrant crime victims more effectively. See Victims of Trafficking and Violence Protection Act of 2000, 1513(a)(2)(A), see also 8 U.S.C. 1101(a)(15)(U)(iii) (enumerating the


28

1101(a)(15)(T), 1101(a)(15)(U).12 There, Congress recognized that absent

additional protections, undocumented victims of trafficking and of certain crimes

face a host of barriers that discourage them from reporting the criminal activity

they have suffered, including coercion and intimidation by their traffickers and

fear [of] retribution and forcible removal to countries in which they will face

retribution or other hardship. 22 U.S.C. 7101(b)(20).

Congress noted T and U visa relief was needed to allay the fears of

undocumented immigrant crime victims, given that [e]xisting laws often fail to

protect victims of trafficking, and because victims are often illegal immigrants in

the destination country, they are repeatedly punished more harshly than the

traffickers themselves. 22 U.S.C. 7101(b)(17). In light of these particular

vulnerabilities, Congress determined that trafficking victims should not be

penalized for certain potentially unlawful acts: Victims of severe forms of

trafficking should not be inappropriately incarcerated, fined, or otherwise

penalized solely for unlawful acts committed as a direct result of being trafficked,

such as using false documents, entering the country without documentation, or

qualifying criminal activity in violation of Federal, State, or local criminal law that provides the predicate for U visa relief) (emphasis added). 12 The VTVPA provides eligible victims of trafficking and certain other crimes with protection from removal and four years of nonimmigrant legal status and the ability, after three years of continuous presence in the U.S., to apply for lawful permanent residency and, ultimately, for U.S. citizenship. See 8 U.S.C. 1101(a)(15)(T), 1255(l), 1101(a)(15)(U), 1255(m), 1427.


29

working without documentation. 22 U.S.C. 7101(b)(19) (emphasis added).

Similarly, the adjustment of status process for an individual in T or U

nonimmigrant status to become a lawful permanent resident is exempted from

provisions of the INA that would render an individual ineligible to adjust her status

based upon prior unauthorized employment. Compare 8 U.S.C. 1255(c)(8) with

1255(l) and 1255(m).

Thus, the VTVPA demonstrates Congress intent that, in certain cases,

federal humanitarian and public safety interests take precedence over enforcement

of employment verification laws. See Victims of Trafficking and Violence

Protection Act of 2000, 1513(a)(2)(A) (stating this relief was in keeping with

the humanitarian interests of the United States.); 1513(a)(1)(B) (intent of statute

to strengthen the ability of undocumented crime victims to report . . . crimes to

law enforcement and fully participate in the investigation of the crimes committed

against them.); 1513(a)(2)(A) (describing Congress intent in creating the U

visa to encourage law enforcement officials to better serve immigrant crime

victims and to prosecute crimes committed against aliens.); see also 22 U.S.C.

7101(a) (noting the T visa was created in order to combat trafficking in persons . .

. and to protect their victims.).

Enforcement of state identity theft in employment provisions conflicts with

the federal enforcement priorities established by the VTVPA because it could


30

subject an undocumented worker who has been the victim of trafficking to state

prosecution for using documents that are not her own, directly conflicting with

Congress express intent to protect victims of trafficking from punishment for

using false documents. 22 U.S.C 7101(b)(19). Here, Arizonas state identity

theft statutes contain no provision to determine whether individuals may have been

the victims of trafficking or other criminal activity. Indeed, MCSOs systematic

enforcement of the state identity theft laws against immigrant workers, unmoored

from the federal interests in protecting immigrant trafficking and crime victims,

has resulted in a chilling effect that undermines the ability of MCSO to serve

immigrant crime victims effectively, which, in turn, undermines the ability of

MCSO to identify and prosecute crimes committed against immigrants.13

//

//

//

13 This chilling effect on the willingness of undocumented individuals to report crimes to the MCSO includes certain crimes, such as peonage, involuntary servitude, and trafficking, that most often arise in an employment context and which provide the predicate qualifying criminal activity for a U visa. See 8 U.S.C. 1101(a)(15)(U)(iii) (listing qualifying criminal activity); see also 14-ER-3187, Garcia Decl. 18-19 (attesting to the chilling effect that MCSOs enforcement has had on immigrant workers willingness to report workplace violations out of fear of being taken by the Sheriff); 14-ER-3193-94, de la Fuente Decl. 7-9 (same).


31

CONCLUSION

For the reasons in Appellees brief and the reasons above, Amici respectfully

request that this Court uphold the injunction of A.R.S. 13-2008(A) and 13-

2009(A)(3).

Date: August 31, 2015

Respectfully Submitted,


/s Joshua T. Stehlik Joshua T. Stehlik, SBN 220241 Nicholas D. Espiritu, SBN 237665 3435 Wilshire Blvd., Suite 2850 Los Angeles, CA 90010 [email protected] [email protected] Telephone: 213.639.3900 Facsimile: 213.639.3911 Counsel for Amicus Curiae


32

CERTIFICATE OF COMPLIANCE WITH RULE 32(a)

This brief complies with the type-volume limitation of FED. R. APP. P.

29(d) and 32(a)(7)(B), because this brief contains 6,994 words excluding the parts

of the brief exempted by FED. R. APP. P. 32(a)(7)(B)(iii).

This brief complies with the typeface requirements of Rule 32(a)(5) and the

type style requirements of Rule 32(a)(6) because this brief has been prepared in a

proportionally spaced typeface using Microsoft Word in 14-point Times New

Roman font.

STATEMENT OF RELATED CASES

Amici are not aware of any related cases pending in this Court.


Date: August 31, 2015 /s Joshua T. Stehlik Joshua T. Stehlik


33

APPENDIX A

Pursuant to Federal Rules of Appellate Procedure 29(c) and 26.1, Amici

are each non-profit organizations, with no parent corporations or publicly traded

stock and provide the following:

The National Immigration Law Center (NILC) is the primary national

organization in the United States exclusively dedicated to defending and advancing

the rights and opportunities of low-income immigrants and their families. Over the

past 35 years, NILC has won landmark legal decisions protecting fundamental

rights, and advanced policies that reinforce our nations values of equality,

opportunity, and justice. NILCs interest in the outcome of this case arises from its

first-hand experience with the ways that immigration-based retaliation against

workers chills them from asserting their workplace rights, which, in turn, erodes

workplace standards for all workers.

Advocates for Basic Legal Equality, Inc. (ABLE) is an unrestricted

legal services program that provides representation to low-income groups and

individuals. One of its practice groups, the Agricultural Worker and Immigrant

Rights Practice Group, has litigated a number of lawsuits on behalf of immigrants

and groups with large numbers of immigrant members, including the Ohio

Immigrant Worker Project and the Farm Labor Organizing Committee, AFL-CIO.

This litigation has included employment, immigration and civil rights issues,


34

including wage and working conditions claims, sexual harassment claims, profiling

of Hispanics by local, state and federal law enforcement agencies, issuance of

marriage licenses to persons without Social Security numbers, and filing habeas

corpus petitions for detained immigrants.

The Arizona Border Rights Foundation (DBA) Coalicin de Derechos

Humanos (DH), based in Tucson, Arizona, is a grassroots organization which

promotes respect for human/civil rights and fights the militarization of the

Southern Border region, discrimination, and human rights abuses by federal, state,

and local law enforcement ocials aecting U.S. and non U.S. citizens alike. The

Arizona identity theft laws and their enforcement apparatus have used the criminal

justice system to target workers based on their immigration status, a function that

is wholly a federal responsibility. Our community has faced hundreds of criminal

convictions, incarcerations and the collateral consequences from these policies.

Asian Americans Advancing Justice - Asian Law Caucus (Advancing

Justice - ALC) was founded in 1972 with a mission to promote, advance, and

represent the legal and civil rights of Asian and Pacific Islanders, with a particular

focus on low-income members of those communities. Advancing Justice - ALC is

part of a national affiliation of Asian American civil rights groups, with offices in

Los Angeles, Chicago, Washington DC, and Atlanta. Advancing Justice - ALC

has a long history of protecting low-wage immigrant workers through direct legal


35

services, impact litigation, community education, and policy work. Advancing

Justice - ALC's regular docket includes retaliation cases and advocacy on behalf of

undocumented workers.

Asian Americans Advancing Justice Los Angeles (Advancing Justice

LA), formerly the Asian Pacific American Legal Center, is the nations largest

legal and civil rights organization for Asian Americans, Native Hawaiians, and

Pacific Islanders. Founded in 1983, Advancing Justice LA has had a long history

of promoting immigrants and workers rights through policy initiatives and

lawsuits, including a successful lawsuit against employers who trafficked and

forced 80 Thai garment workers to work behind barbed wire and under armed

guard in El Monte, California. Bureerong v. Uvawas, 922 F. Supp. 1450 (C.D. Cal.

1996), and 959 F. Supp. 1231 (C.D. Cal. 1997). Advancing Justice - LA continues

to represent low-wage, immigrant workers with employment discrimination,

trafficking, and wage & hour claims, and thus, has a strong interest in the outcome

of this case to ensure that workers are not chilled from asserting their rights.

The California Rural Legal Assistance Foundation (CRLAF) is a non-

profit legal services provider that advocates for the rural poor and promotes the

interests of low-wage workers, particularly farm workers. Since 1986, CRLAF has

engaged in impact litigation, community education and outreach, and legislative

and administrative advocacy in the areas of labor, housing education, health,


36

worker safety, pesticides, citizenship, immigration, and environmental justice. A

high percentage of CRLAFs clients are unauthorized workers, many of whom are

eligible for relief from deportation and may be able to regulate their immigration

status with our help. Many are members of mixed status families, where the

childrens well-being can be dependent on careful review and adjustment of their

parents status through the federal immigration system. CRLAF attorneys and

staff are acutely of the devastating impact a state enforcement scheme that operates

outside federal control and without concern for workforce protection,

humanitarian, and law enforcement interests can have on such individuals and their

families.

Casa Latina is a nonprofit, social justice organization founded in 1994 that

empowers low-wage Latino immigrant workers with educational and employment

opportunities to move from economic insecurity to economic prosperity and to

participate fully in our democracy. These opportunities include day labor

employment through Casa Latinas worker center, English language classes,

workplace safety and job skills trainings, leadership development, and organizing

around issues of public policy that affect immigrant workers. In addition to directly

serving the Latino community in King County, Casa Latina has national impact as

a model day worker center whose programs, curricula, and operations have been

emulated by worker centers throughout the country. Casa Latina fights hard for


37

workers to have livable wages and dignified lives and opposes immigration-based

retaliation practices that diminish the rights of workers and create conditions of

abuse and exploitation.

The Center for Neighborhood Leadership of Phoenix, Arizona, is an

anchor organization that is shifting the landscape of social justice, community

development, and community-driven public policy by training under-represented,

low-income Arizonans to engage stakeholders in meaningful dialogue, form

collaborative partnerships, and take action to address local issues. Sheriff Arpaio's

racially biased, predatory, and unlawful use of state identity theft laws has

victimized our families, volunteers, members, and the community at large. Center

for Neighborhood Leadership's volunteers and their family members have been

targeted, arrested, jailed, and deported as a result of Sheriff Arpaio's workplace

raids. Those unlawful actions against immigrant workers have had devastating

repercussions on families including, homelessness, hunger, and the endless

heartache of family separation. Moreover, Sheriff Arpaio has created a widespread

culture of fear of the police and crime reporting that further terrorizes victims of

crime as well as undermines the Maricopa County Sheriffs Office's mandate to

protect and serve our community.

Central Arizonans for a Sustainable Economy (CASE), based in

Phoenix, Arizona, is committed to quality jobs and fair working conditions for all


38

Arizonans. The use of state identity theft laws to criminally prosecute immigrant

workers for "misusing identity information in order to obtain employment" creates

an additional tool employers can use to intimidate and exploit their employees.

Holding the threat of deportation and identity theft prosecution over the heads of

workers those very employers brought into their company to complete important

tasks is a tactic we see all too often, and one that needs to stop. The Maricopa

County Sheriff's Office should not be twisting statutes for the purpose of pursuing

workers whose only wish is to be able to provide for their families.

Centro Legal de la Raza (Centro Legal) has, since 1969, provided legal

aid services to low-income, predominantly Spanish-speaking residents of

Oakland's Fruitvale District and the greater Bay Area. Centro Legal represents

thousands of workers, tenants, and immigrants annually. Centro Legal works to

protect the legal rights of all workers, regardless of their immigration status.

Immigrant workers are especially vulnerable to employer abuse, and in the

previous two years Centro Legal has recovered for workers over one million

dollars in stolen wages. The outcome of this case is important to our clients

because employers too often unlawfully take advantage of immigrant workers who

are afraid to assert their rights, and protections are needed to prevent such

exploitation.


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Farmworker Justice is a non-profit organization based in Washington,

D.C. that seeks to empower migrant and seasonal farmworkers to improve their

living and working conditions, immigration status, health, occupational safety, and

access to justice. Farmworker Justice accomplishes these aims through policy

advocacy, litigation, training and technical assistance, coalition-building, public

education, support for union organization and corporate social responsibility. The

nations roughly 2.5 million seasonal agricultural workers are among the lowest-

paid and exploited employees in the nation. Farmworker Justice participates in this

case due to its strong interest in preventing conflicting laws and practices from

undermining the few workers protections that are currently available from

employer intimidation and harassment.

The Florence Immigrant & Refugee Rights Project (Florence Project)

is the only non-profit organization that provides free legal assistance and

coordinated social services to women, men, and unaccompanied children detained

for immigration proceedings in Arizona. The Florence Project seeks to ensure that

all immigrants facing removal have access to counsel, understand their rights under

the law, and are treated fairly and humanely. The Florence Project believes in

defending the civil rights of immigrants in Arizona, thus our interest in this case.

Since 1920, Friendly House has served the citizens of Arizona and those

seeking a legal path to citizenship, by providing the tools, training and support


40

needed to attain sustaining, self-sufficiency. Through this work, Friendly House

has seen first-hand and is concerned with the barriers potential citizens face in

establishing residency and a pathway to citizenship.

Immigrant Law Center of Minnesota (ILCM) is a Minnesota based

non-profit organization that engages in advocacy, direct services, education,

outreach, and impact litigation to protect the civil and human rights of noncitizens.

ILCM represents noncitizens throughout Minnesota in removal proceedings before

immigration courts, the Board of Immigration Appeals, and in the federal courts.

ILCM routinely represents noncitizens with criminal convictions and receives state

funding to provide technical assistance and training on the immigration

consequences of criminal convictions to Minnesota's public defenders so that

noncitizens receive effective assistance of counsel in their criminal proceedings.

ILCM has a strong interest in the fair, predictable, and correct interpretat

Documents

Amicus Curiae Brief of NILC Et Al