Saying it harms international relations, the Mexican government wants a U.S. federal court to keep in place an injunction that bars Arizona from punishing those who harbor illegal immigrants.
In legal filings Wednesday, attorneys for Mexico claim the provision of SB 1070 "poses a real threat to Mexico-U.S. bilateral relations.'' The lawyers also said the controversial 2010 Arizona law illegally intrudes into issues of immigration which is solely the province of the U.S. government.
The brief drew an angry reaction from Matthew Benson, press aide to Gov. Jan Brewer.
"It's not for Mexico to interfere in a United States judicial matter, especially when Mexico's own immigration laws are significantly more heavy handed than this,'' he said. Anyway, Benson said, the Arizona statute simply mirrors federal law and is not in conflict.
The provision makes it a crime for someone who is violating any other law to also transport or harbor an illegal immigrant, or to encourage or induce someone to illegally come to or live in the state. A suspect would have to know the person is in this country illegally or recklessly disregard that fact.
The original challenge to that section was rejected by U.S. District Court Judge Susan Bolton. She said nothing in the language infringes on the right of the United States to determine who is admitted or who remains.
Earlier this year, however, Bolton had a change of heart, enjoining enforcement after concluding this is strictly the purview of the federal government.
Attorneys for the governor are urging the 9th U.S. Circuit Court of Appeals to overturn that ruling. But the Mexican government, in its own legal filing, said the appellate judges should leave things the way they are and that Bolton got it right.
"This is fundamentally an immigration law,'' they wrote, pointing out that Congress already has enacted its own laws criminalizing those who harbor certain illegal immigrants. More to the point, they said courts have consistently ruled that there needs to be a single national voice on immigration matters.
And the lawyers for the Mexican government told the judges they need to consider the "significant burdens'' the law would place "on the important and highly productive'' relations between the two countries. But that is not all.
"By imposing new, separate state criminal sanctions on individuals who interact in certain ways with apparent immigrants, (SB 1070) creates substantial new burdens on Mexican nationals who immigrate to or visit Arizona,'' the lawyers wrote. They said if Arizona can start enforcing the law it would result in social and economic harms to Mexican nationals, "which in turn would undermine Mexico-U.S. relations.''
That damage, they insist, is not theoretical.
Even before SB 1070 took effect, the Mexican Senate postponed a review of an agreement on emergency management of natural disasters and accidents. And border state governors from Mexico refused to attend the annual conference in 2010 with their U.S. counterparts.
Beyond that, the attorneys said the provision "encourages marginalization of individuals of Mexican or Latin American appearance, affecting their ability and willingness to engage in business in and with the United States.''
"To steer clear of the risk of violating (SB 1070), Arizona's population must either become immigration experts or avoid transporting, giving shelter or assistance to, or even discussing life in the United States with persons who appear to be undocumented,'' the Mexican government says. "In other words Arizona's state crime encourages its citizens to marginalize a group of people based on appearance.''
Benson said the objections of the Mexican government ignore the problems created by illegal immigrants and those who purport to help them.
"This provision was created to deal with a real problem in Arizona involving illegal immigrants being transported across the state and harbored in drop houses,'' he said. "There's a real crime problem here that the people of Arizona have had to deal with.''
The attorneys for Mexico insisted they are not trying to undermine the right of sovereign countries to decide their own policies. Instead, they said, they were informing the court of the effects Arizona's law which have on U.S. foreign affairs. And that, they said, is crucial for courts to decide if state laws are preempted.
This is not the first section of SB 1070 to be challenged.
In a ruling last year, the U.S. Supreme Court voided three sections of the law as preempted by federal law:
- making it a state crime for someone not in this country legally to fail to carry federally issued regisation cards;
- making it illegal for an undocumented worker to apply for work in a public place or perform work as an employee or independent contractor within Arizona;
- allowing police to make an arrest without a warrant if there is "probable cause'' they committed an offense that makes them removable from the country.
But the justices let stand -- at least for now -- a section of the law which requires police to try to determine the immigration status of someone they have already stopped if there is "reasonable suspicion'' that person is unlawfully in the country. It also requires determination of immigration status of anyone placed under arrest.
The justices warned, though, that they might revisit the issue and reach a different conclusion if there is evidence that law is being applied in a discriminatory fashion.
The 9th Circuit is separately reviewing a different ruling by Bolton which voided another section of SB 1070 aimed at day laborers. It makes it a crime for someone to enter a car stopped on the street to go to work elsewhere and also criminalizes drivers who stop to pick up laborers.