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Puente Arizona v. Arpaio

United States District Court, D. Arizona

January 5, 2015

Puente Arizona, et al., Plaintiffs,
v.
Joseph M. Arpaio, et al., Defendants

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For Puente Arizona, Susan E Frederick-Gray, on behalf of themselves and all others similarly situated, Sara Cervantes Arreola, Guadalupe Arredondo, Plaintiffs: Anne Lai, LEAD ATTORNEY, Sameer M Ashar, University of California Irvine School of Law, Irvine, CA; Daniel Joseph Pochoda, LEAD ATTORNEY, ACLU - Phoenix, AZ, Phoenix, AZ; Jessica Karp Bansal, LEAD ATTORNEY, National Day Laborer Organizing Network, Los Angeles, CA; Ray Anthony Ybarra Maldonado, LEAD ATTORNEY, Law Office of Ray A Ybarra Maldonado PLC, Phoenix, AZ.

For Joseph M Arpaio, Sheriff of Maricopa County Arizona, in his official capacity, Defendant: Ann Thompson Uglietta, LEAD ATTORNEY, Maricopa County Attorneys Office - Civil Services Division, Phoenix, AZ; Michele Marie Iafrate, LEAD ATTORNEY, Iafrate & Associates, Phoenix, AZ.

For Bill Montgomery, Maricopa County Attorney, in his official capacity, Defendant: Douglas L Irish, LEAD ATTORNEY, Maricopa County Attorneys Office - Div. of County Counsel, Phoenix, AZ; J Kenneth Mangum, LEAD ATTORNEY, Maricopa County Attorney's Office -Phoenix (Central Ave, Phoenix, AZ; Thomas P Liddy, LEAD ATTORNEY, Ann Thompson Uglietta, Maricopa County Attorneys Office - Civil Services Division, Phoenix, AZ.

For Maricopa, County of, State of Arizona, Defendant: Douglas L Irish, LEAD ATTORNEY, Maricopa County Attorneys Office - Div. of County Counsel, Phoenix, AZ; J Kenneth Mangum, LEAD ATTORNEY, Maricopa County Attorney's Office -Phoenix (Central Ave, Phoenix, AZ; Michele Marie Iafrate, LEAD ATTORNEY, Iafrate & Associates, Phoenix, AZ; Thomas P Liddy, LEAD ATTORNEY, Ann Thompson Uglietta, Maricopa County Attorneys Office - Civil Services Division, Phoenix, AZ.

For State of Arizona, Defendant: G Michael Tryon, LEAD ATTORNEY, Office of the Attorney General; Stephanie Susan Elliott, LEAD ATTORNEY, Office of the Attorney General, Phoenix, AZ.

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ORDER

David G. Campbell, United States District Judge.

This case involves the constitutionality of two statutes that criminalize the act of identity theft done with the intent to obtain or continue employment. Plaintiffs claim that the purpose of these statutes is to discriminate against unauthorized aliens and that this purpose makes the statutes unconstitutional under the Supremacy and Equal Protection Clauses of the United States Constitution. Plaintiffs have moved for a preliminary injunction that would enjoin Defendants from enforcing portions of these statutes. Doc. 30. Defendants have responded and filed motions to dismiss. Docs. 53, 55. The Court heard oral arguments on October 16, 2014. For reasons set forth below, the Court will grant the motion for a preliminary injunction and deny Defendants' motions to dismiss.

I. Background.

A. Federal Immigration Law.

The federal government has broad and plenary powers over the subject of immigration and the status of aliens. Arizona v. United States, 132 S.Ct. 2492, 2498, 183 L.Ed.2d 351 (2012). This authority rests, in part, on the federal government's constitutional power to establish a uniform rule of naturalization, U.S. Const. art. I, § 8, cl. 4, and its inherent power as a sovereign to control and conduct relations with foreign nations, Arizona, 132 S.Ct. at 2498. In accordance with these powers, Congress passed the Immigration Reform and Control Act (" IRCA" ) in 1986. Pub. L. No. 99-603, 100 Stat. 3359 (1986). IRCA " made combating

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the employment of illegal aliens in the United States central to '[t]he policy of immigration law.'" Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 147, 122 S.Ct. 1275, 152 L.Ed.2d 271 (2002) (quoting INS v. Nat'l Ctr. For Immigrants' Rights, Inc., 502 U.S. 183, 194, 112 S.Ct. 551, 116 L.Ed.2d 546 & n.8 (1991)).

IRCA established a " comprehensive framework" for regulating the employment of unauthorized aliens.[1] Arizona, 132 S.Ct. at 2504. It did so by establishing an extensive " employment verification system," 8 U.S.C. § 1324a(b), to deny employment to unauthorized aliens, Hoffman, 535 U.S. at 147. IRCA requires employers to verify the " employment authorization and identity" of new employees before they begin work. 8 U.S.C. § 1324a(b). An individual may prove his or her employment authorization by providing a document evidencing United States citizenship or an alien registration card. Id. § 1324a(b)(1)(B)-(C). An individual may prove his or her identity by a variety of documents, including a state driver's license. Id. § 1324a(b)(1)(D). All of these requirements are now formalized in the Form I-9 that millions of Americans fill out every year. See 8 C.F.R. § 274a.2. The government has complemented the I-9 process with the E-Verify program, " an internet-based system that allows an employer to verify an employee's work-authorization status." Chicanos Por La Causa, Inc. v. Napolitano, 558 F.3d 856, 862 (9th Cir. 2009).

IRCA makes it unlawful for an employer to knowingly hire a person who cannot satisfy the employment verification system. 8 U.S.C. § 1324a(a)(1). This requirement is " enforced through criminal penalties and an escalating series of civil penalties tied to the number of times an employer has violated the provisions." Arizona, 132 S.Ct. at 2504; 8 U.S.C. § 1324a(e)-(f). IRCA expressly preempts state or local laws that impose civil or criminal sanctions -- other than through licensing and similar laws -- on those who employ unauthorized aliens. Id. § 1324a(h)(2).

IRCA does not impose criminal penalties on unauthorized aliens who merely seek or engage in unauthorized work, Arizona, 132 S.Ct. at 2504, but it does criminalize the act of using an " identification document" that is not lawfully issued, or is false, for the purpose of satisfying the employment verification system, 18 U.S.C. § 1546(b). With the Immigration Act of 1990, Congress also imposed civil penalties on persons who use falsified documents to satisfy the employment verification system. Pub. L. No. 101-649, 104 Stat. 4978 (1990) (adding 8 U.S.C. § 1324c). Congress has also made the use of false documents for employment a deportable offense. See 8 U.S.C. § 1227(a)(1)(B). " Congress has made clear, however, that 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." Arizona, 132 S.Ct. at 2504 (citing 8 U.S.C. § § 1324a(b)(5), (d)(2)(F)-(G)).

A " primary purpose in restricting immigration is to preserve jobs for American workers." Nat'l Ctr. for Immigrants' Rights, 502 U.S. at 194

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(1991) (quoting Sure-- Tan, Inc. v. NLRB, 467 U.S. 883, 893, 104 S.Ct. 2803, 81 L.Ed.2d 732 (1984)). But in passing IRCA, " Congress made a deliberate choice not to impose criminal penalties on aliens who seek, or engage in, unauthorized employment." Arizona, 132 S.Ct. at 2504. " IRCA's framework reflects a considered judgment that making criminals out of aliens engaged in unauthorized work -- aliens who already face the possibility of employer exploitation because of their removable status -- would be inconsistent with federal policy and objectives." Id.

B. Arizona's Identity Theft Laws.

Arizona passed its first identity theft statute in 1996, making it a crime to " knowingly take[] the name, birth date or social security number of another person, without the consent of that person, with the intent to obtain or use the other person's identity for any unlawful purpose or to cause financial loss to the other person." 1996 Ariz. Legis. Serv. Ch. 205 (H.B. 2090) (West). Over the next decade, Arizona repeatedly amended this statute -- now codified at A.R.S. § 13-2008 -- by expanding the definition of identity theft. See, e.g., 2000 Ariz. Legis. Serv. Ch. 189 (H.B. 2428) (West); 2004 Ariz. Legis. Serv. Ch. 109 (H.B. 2116) (West). Arizona also created a new crime of aggravated identity theft under A.R.S. § 13-2009. 2005 Ariz. Legis. Serv. Ch. 190 (S.B. 1058) (West).

Plaintiffs challenge two bills that amended these identity theft laws to make them applicable to employment of unauthorized aliens. In 2007, Arizona passed H.B. 2779, known as the " Legal Arizona Workers Act." 2007 Ariz. Legis. Serv. Ch. 279 (H.B. 2779) (West). The bulk of the bill concerned a new statute, A.R.S. § 23-212, relating to the employment of unauthorized aliens. This new statute prohibited employers from hiring unauthorized aliens and threatened the suspension of licenses if an employer failed to comply. This statute ultimately was held to be constitutional by the United States Supreme Court in Chamber of Commerce of U.S. v. Whiting, 563 U.S. 582, 131 S.Ct. 1968, 179 L.Ed.2d 1031 (2011).

H.B. 2779 also amended Arizona's aggravated identity theft statute, A.R.S. § 13-2009, by adding the following italicized language:

A. A person commits aggravated taking the identity of another person or entity if the person knowingly takes, purchases, manufactures, records, possesses or uses any personal identifying information or entity identifying information of either . . .
3. Another person, including a real or fictitious person, with the intent to obtain employment.

Id. (amendment in italics).

In 2008, Arizona passed H.B. 2745, titled " Employment of Unauthorized Aliens." 2008 Ariz. Legis. Serv. Ch. 152 (H.B. 2745) (West). The bill amended and created statutes relating to the employment of unauthorized aliens. Id. (amending A.R.S. § 23-212; creating A.R.S. § 23-212.01). The bill also contained provisions that ensured employers' participation in the federal government's e-verify program. As relevant here, H.B. 2745 amended A.R.S. § 13-2008(A) to add the following italicized language:

A person commits taking the identity of another person or entity if the person knowingly takes, purchases, manufactures, records, possesses or uses any personal identifying information or entity identifying information of another person or entity, including a real or fictitious person or entity, without the consent of that other person or entity, with the intent to obtain or use the other person's or entity's identity for any unlawful

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purpose or to cause loss to a person or entity whether or not the person or entity actually suffers any economic loss as a result of the offense , or with the intent to obtain or continue employment.

Id. (amendment in italics).

C. This Lawsuit.

This lawsuit concerns § 13-2009(A)(3), created by H.B. 2779, and the language added to § 13-2008(A) by H.B. 2745. For the sake of simplicity, the Court will refer to these challenged provisions as " the identity theft laws."

Plaintiffs argue that the identity theft laws are unconstitutional in two ways. First, they claim that both laws are preempted by federal immigration law under the Supremacy Clause of the United States Constitution. Doc. 23, ¶ ¶ 180-85. Second, they claim that the identity theft laws " constitute impermissible discrimination against noncitizens on the basis of alienage" and are facially invalid under the Equal Protection Clause of the Constitution. Doc. 23, ¶ ¶ 186-91; see Doc. 83 at 18 (agreeing to dismiss their as-applied equal protection challenge).

Plaintiffs include Sara Cervantes Arreola, who was arrested and charged under the identity theft laws and ultimately convicted under § 13-2009(A)(3). Doc. 23, ¶ ¶ 147-56.[2] She asks the Court to declare the identity theft laws unconstitutional and to expunge the record of her arrest and conviction. Doc. 23, ¶ 192. Plaintiffs also include Reverend Susan Frederick-Gray, a Maricopa County taxpayer, and Puente Arizona, a " grassroots" organization that serves the immigrant community. Id., ¶ ¶ 9, 12. They ask the Court to declare the identity theft laws unconstitutional and to permanently enjoin their enforcement by the Maricopa County Defendants. Id., ¶ 192. They also seek to represent a class of unauthorized aliens who could be arrested and prosecuted under the identity theft laws, as well as a class of Maricopa County taxpayers who object to Maricopa County's use of their tax dollars to fund enforcement of the identity theft laws. Doc. 23, ¶ 169. Finally, Plaintiffs ask the Court to permanently enjoin the Maricopa County Defendants from " using information or documents undocumented workers submit to show federal authorization to work as the basis for any arrest or prosecution." Doc. 23, ¶ 192. Plaintiffs have sued Joseph M. Arpaio, Sheriff of Maricopa County; Bill Montgomery, County Attorney for Maricopa County; Maricopa County; and the State of Arizona. Doc. 23, ¶ ¶ 13-16.

Plaintiffs' motion for a preliminary injunction asks the Court to enjoin Defendants from enforcing the identity theft laws during the duration of this lawsuit. Doc. 30. The motion is based only on the Supremacy Clause claim. Defendants have responded and have also filed motions to dismiss. Docs. 53, 55. Defendants argue that (1) Plaintiffs lack standing; (2) Plaintiffs have failed to state a claim under the Equal Protection Clause; (3) Maricopa County is not a proper party under 42 U.S.C. § 1983; and (4) the Court should strike Plaintiffs' complaint in whole or in part for containing impertinent and irrelevant information. The Court will address the question of standing, the motion for a preliminary injunction, and then the remainder of Defendants' arguments.

II. Standing.

" In order to invoke the jurisdiction of the federal courts, a plaintiff must

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establish 'the irreducible constitutional minimum of standing,' consisting of three elements: injury in fact, causation, and a likelihood that a favorable decision will redress the plaintiff's alleged injury." Lopez v. Candaele, 630 F.3d 775, 785 (9th Cir. 2010) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). The injury in fact must constitute " an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical." Lujan, 504 U.S. at 560 (citations omitted). Plaintiffs must prove standing for each claim they seek to press and for each form of relief that is sought. Davis v. FEC, 554 U.S. 724, 734, 128 S.Ct. 2759, 171 L.Ed.2d 737 (2008). A plaintiff must prove standing " in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation." Lujan, 504 U.S. at 561. Ordinarily, " '[f]or purposes of ruling on a motion to dismiss for want of standing, both the trial and reviewing courts must accept as true all material allegations of the complaint and must construe the complaint in favor of the complaining party.'" Maya v. Centex Corp., 658 F.3d 1060, 1068 (9th Cir. 2011) (quoting Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975)). But since Plaintiffs Puente Arizona and Frederick-Gray[3] are moving for a preliminary injunction, they must make " a clear showing of each element of standing." Townley v. Miller, 722 F.3d 1128, 1133 (9th Cir. 2013); see Lopez, 630 F.3d at 785 (" Therefore, at the preliminary injunction stage, a plaintiff must make a 'clear showing' of his injury in fact." ).

A. Sara Cervantes Arreola.

Sara Cervantes Arreola claims she has standing based on the collateral consequences flowing from her conviction under the identity theft laws. See Doc. 83 at 4. Defendants argue that Ms. Arreola has not shown an injury in fact sufficient to confer standing. Doc. 53 at 5. Generally, " [p]ast exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief . . . if unaccompanied by any continuing, present adverse effects." O'Shea v. Littleton, 414 U.S. 488, 495-96, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974); Spencer v. Kemna, 523 U.S. 1, 7, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998) (" Once the convict's sentence has expired, . . . some concrete and continuing injury . . . -- some 'collateral consequence' of the conviction -- must exist if the suit is to be maintained." ).

The Supreme Court has recognized a presumption " that a wrongful criminal conviction has continuing collateral consequences[.]" Spencer, 523 U.S. at 8 (citing Sibron v. New York, 392 U.S. 40, 55-56, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968)). " Once convicted, one remains forever subject to the prospect of harsher punishment for a subsequent offense as a result of federal and state laws that either already have been or may eventually be passed." Chacon v. Wood, 36 F.3d 1459, 1463 (9th Cir. 1994); see also Chaker v. Crogan, 428 F.3d 1215, 1219 (9th Cir. 2005) (recognizing an " irrefutable presumption that collateral consequences result from any ...


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