Because no immigrants have yet been swept up by the state’s new immigration system, a federal judge said there is no pecuniary harm on which relief can be granted at this stage.
PHOENIX (CN) – A federal judge cleared the way Friday for a ballot initiative in Arizona that would have defined “illegal entry from a foreign nation” as a state crime.
U.S. District Judge Michael T. Liburdi discharged a motion for a temporary restraining order by a non-profit organization that provides free legal services to detained migrants. He said the group failed to prove it had standing to challenge the ballot initiative.
Donald Trump’s appointee made his feelings clear less than 10 minutes into the two-hour hearing.
“You had an administration that left the border open for four years,” Liburdi said from his Phoenix courtroom. “Some people say 20 million people were flooded.”
The Florence Program for Immigration and Refugee Rights challenged Section 5 of Proposition 314 – which took effect last week – under the US Constitution’s Supremacy Clause. She argued creating a new nationwide immigration system giving state judges the power to order deportations would undermine the federal government, which typically exercises sole authority over immigration law.
Staff attorney Kathryn Huddleston told Liburd that the Florence Project is entitled to challenge the law because it would be forced to expend additional resources to represent clients in both federal and state facilities.
Liburdi didn’t buy it.
“Is it really the law that the state of Arizona or any other municipality is at the mercy of the Florence Immigration Project Budget when it wants to pass new laws to change immigration policy?” he asked. “Your argument is that Arizona voters can’t pass a new immigration law because a Florence Project staff attorney needs to put an extra tank of gas in their car?”
“Some people might find it absurd,” he said.
Liburdi questioned whether nonprofits that provide services to homeless people would be able to sue the government for damages in the way of lost revenue if the government were to “magically eliminate homelessness.”
Huddleston said such a law would not interfere with the core mission of such an organization, which would be to eliminate homelessness, making the analogy inconsistent.
Huddleston added that implementation of Proposition 314 would in many ways make the Florence Project unable to provide services to those covered by the new state system, which does not include exemptions for those seeking asylum or other humanitarian protections available under federal law.
Liburdi said these and other concerns are not concrete enough to provide relief.
“At this stage, the court finds that the plaintiff’s theory is based only on speculation,” he said. “Any additional expense plaintiff may incur does not amount to an interference with its core activities. Moreover, there is no demonstrable harm to existing customers, as section 5 of Proposition 314 applies only prospectively.”
Arizona voters approved Proposition 314now codified as ARS 13-4295, with a majority of 62% in 2024.
Implementation was initially blocked pending a Fifth Circuit ruling on the legality of Texas Senate Bill 4, which shares similar language with Arizona’s law.
Sixty days after the fifth circuit reversed an injunction blocking the Texas lawArizona has entered into force.
In addition to giving local and state police the authority to arrest those who cross the border outside a legal port of entry, Proposition 314 also prohibits immigrants without permanent legal status from applying for jobs or welfare benefits with false documents, allows state judges to order deportations, and establishes the “lethal sale of fentanyl” as a new crime to crack down on the often-epidemic border drug epidemic.
Activists fear that the new law will happen encourage racial profiling if the police are told to patrol for people who don’t look like citizens. Some have compared the potential impact to the days of SB1070 with her “show me your cards” provision, which ignited boycotts and travel bans which cost the state much needed revenue.
Florence Project attorney Oscar Roman told Liburd that it undermines the federal government’s discretion in how to enforce immigration law.
But Brunn Roysdon, who represents Republican Legislative Leaders Warren Petersen and Steve Montenegro, says the law is only intended to help federal officials who don’t have the capacity to stop every person trying to cross the border.
“How can Section 5 interfere with federal discretion when these people never interact with federal officials?” he asked, conjuring up a hypothetical man in camouflage climbing the 30-foot border fence between the entry gates.
He said the law is actually meant to support federal enforcement by directing people back to ports of entry under federal jurisdiction. Because it results in the same penalty — deportation — Roysdon said the law mirrors, not undermines, federal law.
Florence’s bill says the state would be able to arrest and deport those already allowed into the country under federal asylum law or those subject to formal removal proceedings. Roysden assured Liburd that the state would not interfere in an ongoing federal proceeding.
Although Liburdi has rejected the request for an emergency stop, the plaintiff’s request for a preliminary measure is still pending before the court. The parties will meet again on August 5 to discuss the next steps in the litigation.
Subscribe to our free newsletters
Our weekly newsletter Closing arguments provides the latest on ongoing trials, major litigation and decisions in courts around the US and the world, while monthly Under the lights feeds legal dirt from Hollywood, sports, Big Tech and the arts.
