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Case 2:14-cv-01356-DGC Document 519 Filed 07/01/16 Page 1 of 49

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Anne Lai (pro hac vice)


alai@law.uci.edu
Sameer Ashar (pro hac vice)
sashar@law.uci.edu
University of California, Irvine School
of Law Immigrant Rights Clinic
401 E. Peltason Dr., Ste. 3500
Irvine, CA 92616-5479
Telephone: (949) 824-9894
Facsimile: (949) 824-2747
Hector Diaz (SBA No. 020965)
hector.diaz@quarles.com
Sarah R. Anchors (SBA No. 025344)
sarah.anchors@quarles.com
Edward J. Hermes (SBA No. 030529)
edward.hermes@quarles.com
Jose A. Carrillo (SBA No. 030526)
jose.carrillo@quarles.com
QUARLES & BRADY LLP
Renaissance One
Two North Central Avenue
Phoenix, AZ 85004-2391
Telephone: (602) 229-5200

Jessica Karp Bansal (pro hac vice)


jbansal@ndlon.org
Emilou MacLean (pro hac vice)
emi@ndlon.org
National Day Laborer Organizing
Network
675 S. Park View St., Ste. B
Los Angeles, CA 90057
Telephone: (213) 380-2214

Attorneys for Plaintiffs


(Additional attorneys for Plaintiffs listed
on next page)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Puente Arizona, et al.,

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

No. 2:14-cv-01356-DGC
LODGED: PROPOSED PLAINTIFFS
MOTION FOR PARTIAL SUMMARY
JUDGMENT AND MEMORANDUM OF
POINTS AND AUTHORITIES IN
SUPPORT

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(ORAL ARGUMENT REQUESTED)

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Expedited Hearing and Consideration


Requested

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Additional Attorneys for Plaintiffs:


Jessica Myers Vosburgh (pro
hac vice)
jvosburgh@ndlon.org
National Day Laborer Organizing
Network
2104 Chapel Hill Rd.
Birmingham, AL 35216
Telephone: (215) 317-1481
Daniel J. Pochoda (SBA No. 021979)
dpochoda@acluaz.org
ACLU Foundation of Arizona
3707 N. 7th St., Ste. 235
Phoenix, AZ 85014
Telephone: (602) 650-1854
Ray A. Ybarra Maldonado (SBA No.
027076)
rybarra@stanfordalumni.org

Law Office of Ray A. Ybarra


Maldonado, PLC
2701 E. Thomas Rd., Ste. A
Phoenix, AZ 85016
Telephone: (602) 910-4040

Cindy Pnuco (pro hac vice)


cpanuco@hadsellstormer.com
Joshua Piovia-Scott (pro hac vice)
jps@hadsellstormer.com
Dan Stormer (pro hac vice)
dstormer@hadsellstormer.com
Hadsell Stormer & Renick LLP
128 North Fair Oaks Ave.
Pasadena, CA 91103
Telephone: (626) 585-9600

Case 2:14-cv-01356-DGC Document 519 Filed 07/01/16 Page 3 of 49

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Anne Lai (pro hac vice)


alai@law.uci.edu
Sameer Ashar (pro hac vice)
sashar@law.uci.edu
University of California, Irvine School
of Law Immigrant Rights Clinic
401 E. Peltason Dr., Ste. 3500
Irvine, CA 92616-5479
Telephone: (949) 824-9894
Facsimile: (949) 824-2747
Hector Diaz (SBA No. 020965)
hector.diaz@quarles.com
Sarah R. Anchors (SBA No. 025344)
sarah.anchors@quarles.com
Edward J. Hermes (SBA No. 030529)
edward.hermes@quarles.com
Jose A. Carrillo (SBA No. 030526)
jose.carrillo@quarles.com
QUARLES & BRADY LLP
Renaissance One
Two North Central Avenue
Phoenix, AZ 85004-2391
Telephone: (602) 229-5200

Jessica Karp Bansal (pro hac vice)


jbansal@ndlon.org
Emilou MacLean (pro hac vice)
emi@ndlon.org
National Day Laborer Organizing
Network
675 S. Park View St., Ste. B
Los Angeles, CA 90057
Telephone: (213) 380-2214

Attorneys for Plaintiffs


(Additional attorneys for Plaintiffs listed
on next page)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Puente Arizona, et al.,


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

No. 2:14-cv-01356-DGC
PLAINTIFFS MOTION FOR PARTIAL
SUMMARY JUDGMENT AND
MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT
(ORAL ARGUMENT REQUESTED)
Expedited Hearing and Consideration
Requested

Case 2:14-cv-01356-DGC Document 519 Filed 07/01/16 Page 4 of 49

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Additional Attorneys for Plaintiffs:


Jessica Myers Vosburgh (pro
hac vice)
jvosburgh@ndlon.org
National Day Laborer Organizing
Network
2104 Chapel Hill Rd.
Birmingham, AL 35216
Telephone: (215) 317-1481
Daniel J. Pochoda (SBA No. 021979)
dpochoda@acluaz.org
ACLU Foundation of Arizona
3707 N. 7th St., Ste. 235
Phoenix, AZ 85014
Telephone: (602) 650-1854
Ray A. Ybarra Maldonado (SBA No.
027076)
rybarra@stanfordalumni.org
Law Office of Ray A. Ybarra
Maldonado, PLC
2701 E. Thomas Rd., Ste. A
Phoenix, AZ 85016
Telephone: (602) 910-4040

Cindy Pnuco (pro hac vice)


cpanuco@hadsellstormer.com
Joshua Piovia-Scott (pro hac vice)
jps@hadsellstormer.com
Dan Stormer (pro hac vice)
dstormer@hadsellstormer.com
Hadsell Stormer & Renick LLP
128 North Fair Oaks Ave.
Pasadena, CA 91103
Telephone: (626) 585-9600

Case 2:14-cv-01356-DGC Document 519 Filed 07/01/16 Page 5 of 49

TABLE OF CONTENTS

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Page(s)

TABLE OF AUTHORITIES.. v

MOTION............................................................................................................................. 1

MEMORANDUM OF POINTS AND AUTHORITIES .................................................... 1

I.

INTRODUCTION ................................................................................................... 1

II.

BACKGROUND ..................................................................................................... 4

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III.

A.

The Federal Scheme Governing Employment of Undocumented


Immigrants.....................................................................................................4

B.

The Circumstances of Passage of H.B. 2779 and H.B. 2745 ....................... 7

C.

The County Defendants' Enforcement Campaign ........................................ 8

D.

Harm to Plaintiffs........................................................................................ 10

ARGUMENT ......................................................................................................... 11
A.

Legal Standard ............................................................................................ 11

B.

The Statutes Are Preempted as Applied by the MCSO and MCAO .......... 12

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1. The Systematic Criminal Prosecution of Undocumented Immigrants


Under State Law for Fraud in Response to the Federal Employment
Verification System is Field and Conflict Preempted ........................... 13

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2. The County Defendants Have a Policy and Practice of Enforcing the


Worker Identity Provisions and State Forgery Statute Against
Undocumented Workers.........................................................................17

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3. The Record Confirms That the County Defendants Punishment of


Undocumented Immigrants Has Been Purposeful ................................ 20

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4. Any Voluntary Cessation Does Not Preclude Relief ............................. 24

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C.

Plaintiffs Have Standing for the Relief They Are Seeking......................... 25

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1. Puente Has Associational and Organizational Standing ........................ 26

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a. Puente Has Associational Standing Based on the Threat of


Injury to its Members...............................................................26

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b. Puente Has Organizational Standing Based on Frustration of


Its Mission and Diversion of Resources .................................. 28
2. Plaintiffs Reverend Frederick-Gray, Reverend Russell Andrew
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Burnette, and Reverend Erin Tamayo Have Standing as Municipal


Taxpayers............................................................................................... 29

3. Plaintiffs Sara Cervantes Arreola and Elia Estrada Fernandez Have


Standing to Seek Expungement............................................................. 29

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D.

1. Puente and the Taypayer Plaintiffs Are Entitled to a Permanent


Injunction Against the County Defendants' Preempted Enforcement
Practices.................................................................................................30

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2. Plaintiffs Cervantes Arreola and Estrada Fernandez are Entitled to a


Permanent Injunction Expunging Their Convictions ............................ 32

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E.

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Plaintiffs Meet the Other Requirements for Injunctive Relief .................... 30

IV.

The Court Should Grant an Injunction of Sufficient Scope to Ensure


Effective Relief to Plaintiffs ....................................................................... 33

CONCLUSION ..................................................................................................... .34

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TABLE OF AUTHORITIES
1

Page(s)

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FEDERAL CASES
Anderson v. Liberty Lobby, Inc.
477 U.S. 242 (1986) ............................................................................................... 11
Arizona v. California
460 U.S. 605 (1984) ............................................................................................... 13
Arizona Dream Act Coal. v. Brewer
818 F.3d 901 (9th Cir. 2016) .......................................................................... passim
Armstrong v. Davis
275 F.3d 849 (9th Cir. 2001) ................................................................................. 17
Bell v. City of Boise
709 F.3d 890 (9th Cir. 2013) ................................................................................. 25
Bresgal v. Brock
843 F.2d 1163 (9th Cir. 1987) ............................................................................... 34
Buckman Co. v. Plaitniffs Legal Committee
531 U.S. 341 (2012) ............................................................................................... 15
Cammack v. Waihee
932 F.2d 765 (9th Cir. 1991) ................................................................................. 29
Celotex Corp. v. Catrett
477 U.S. 317 (1986) ............................................................................................... 11
Chaker v. Crogan
428 F.3d 1215 (9th Cir. 2005) ............................................................................... 30
City of Mesquite v. Aladdin's Castle, Inc.
455 U.S. 283 (1982) ............................................................................................... 25
Crosby v. Natl Foreign Trade Council
530 U.S. 363 (2000) ......................................................................................... 12, 13
Easyriders Freedom F.I.G.H.T. v. Hannigan
92 F.3d 1486 (9th Cir. 1996) ................................................................................. 34
Ecological Rights Foundation v. Pac. Lumber Co.
230 F.3d 1141 (9th Cir. 2000) ............................................................................... 26
Elrod v. Burns
427 U.S. 347 (1976) ............................................................................................... 31
Fair Housing Council of San Fernando Valley v. Roommate.com, LLC
666 F.3d 1216 (9th Cir. 2012) ............................................................................... 29
///

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Fair Housing Of Marin v. Combs


285 F.3d 899 (9th Cir. 2002) ................................................................................. 28
Friends of Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc.
528 U.S. 167 (2000) ............................................................................................... 25
Frothingham v. Mellon
262 U.S. 447 (1923) ............................................................................................... 31
Georgia Latino Alliance for Human Rights v. Governor of Georgia
691 F.3d 1250 (11th Cir. 2012) ............................................................................. 14
Gordon v. Holder
721 F.3d 638 (D.C. Cir. 2013_ .............................................................................. 32
Havens Realty Corp. v. Coleman
455 U.S. 363 (1982) ............................................................................................... 28
Haywood v. Drown
556 U.S. 729 (2009) ............................................................................................... 20
Heck v. Humphrey
512 U.S. 477 (1994) ............................................................................................... 33
Hines v. Davidowitz
312 U.S. 52 (1941) ................................................................................................... 7
Hoffman Plastic Compounds, Inc. v. N.L.R.B.
535 U.S. 137 (2002) ................................................................................................. 4
Hunt v. Wash. State Apple Adver. Commission
432 U.S. 333 (1977) ............................................................................................... 27
Johnson v. California
543 U.S. 499 (2005) ............................................................................................... 17
Kowall v. United States
53 F.R.D. 211 (W.D. Mich. 1971) ......................................................................... 32
Lavan v. City of Los Angeles
797 F.Supp.2d 1005 (C.D. Cal. 2011) ................................................................... 34
Libertarian Party of Los Angeles County v. Bowen
709 F.3d 867 (9th Cir. 2013) ................................................................................. 27
Llewelyn v. Oakland Cty.Prosecutor's Office
402 F.Supp. 1379 (E.D. Mich. 1975)..................................................................... 33
Lopez v. Candaele
630 F.3d 775 (9th Cir. 2010) ................................................................................. 27
Lozano v. City of Hazleton
724 F.3d 297 (3d Cir. 2013) .................................................................................. 14
Lujan v. v. Defenders of Wildlife
504 U.S. 555 (1992) ......................................................................................... 12, 25
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Maurer v. Los Angeles County Sheriff's Department


691 F.2d 434 (9th Cir. 1982) ................................................................................. 32
Melendres v. Arpaio
695 F.3d 990 (9th Cir. 2012) ................................................................................. 31
Melendres v. Arpaio
No. CV-07-2513-PHX-GMS, 2016 WL 2783715 (D. Ariz. May 13, 2016) ......... 34
Monell v. Department of Social Services of City of New York
436 U.S. 658 (1978) ......................................................................................... 17, 18
Monroe v. Pape
365 U.S. 167 (1961) ............................................................................................... 18
Monsanto Co. v. Geertson Seed Farms
561 U.S. 139 (2010) ............................................................................................... 12
Mont. Shooting Sports Association v. Holder
727 F.3d 975 (9th Cir. 2013) ................................................................................. 11
Morales v. Trans World Airlines, Inc.
504 U.S. 374 (1992) ............................................................................................... 31
Motor Coach Employees v. Lockridge
403 U.S. 274 (1971) ............................................................................................... 19
National Ctr. for Immigrants' Rights, Inc. v. I.N.S.
913 F.2d 1350 (9th Cir. 1990),
revd on other grounds 502 U.S. 183 (1991) ......................................................... 15
Nome Eskimo Community v. Babbitt
67 F.3d 813 (9th Cir. 1995) ................................................................................... 25
Nonnette v. Small
316 F.3d 872 (9th Cir. 2002) ................................................................................. 33
Oklevueha Native America Church of Hawaii, Inc. v. Holder
676 F.3d 829 (9th Cir. 2012) ................................................................................. 26
Presidio Golf Club v. National Park Serv.
155 F.3d 1153 (9th Cir. 1998) ............................................................................... 26
Regents of University of California v. America Broad. Companies, Inc.
747 F.2d 511 (9th Cir. 1984) ................................................................................. 31
Rent-A-Ctr., Inc. v. Canyon Television & Appliance Rental, Inc.
944 F.2d 597 (9th Cir. 1991) ................................................................................. 31
Sharp v. Weston
233 F.3d 1166 (9th Cir. 2000) ............................................................................... 34
Shipp v. Todd
568 F.2d 133 (9th Cir. 1978) ................................................................................. 32
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Smith v. Pac. Properties & Development Corp.


358 F.3d 1097 (9th Cir. 2004) ............................................................................... 28
Summers v. Earth Island Institute
555 U.S. 488 (2009) ............................................................................................... 26
Swann v. Charlotte-Mecklenberg Board of Education
402 U.S. 1 (1971) ................................................................................................... 34
Thomas v. Anchorage Equal Rights Commission
220 F.3d 1134 (9th Cir. 2000) ............................................................................... 26
Triton Energy Corp. v. Square D. Co.
68 F.3d 1216 (9th Cir. 1995) ................................................................................. 11
U.S. v. Sumner
226 F.3d 1005 (9th Cir. 2000) ............................................................................... 32
United States v. Arizona
641 F.3d 339 (9th Cir. 2011)
revd in part 132 S. Ct. 2492 (2012) ............................................................... passim
United States v. Classic
313 U.S. 299 (1941) ............................................................................................... 18
United States v. Linn
513 F.2d 925 (10th Cir. 1975) ............................................................................... 32
United States v. South Carolina
720 F.3d 518 (4th Cir. 2013) ................................................................................. 14
United States v. Supreme Court of New Mexico
No. 14-2037, 2016 WL 3166830 (10th Cir. June 7, 2016) .................................... 12
Valle del Sol v. Whiting
732 F.3d 1006 (2013)...................................................................................... passim
Valle del Sol v. Whiting
No. CV 10-1061-PHX-SRB, 2012 WL 8021265 (D. Ariz. Sept. 5, 2012),
aff'd, 732 F.3d at 1029 ........................................................................................... 31
Village of Arlington Heights v. Metropolitan Housing Development Corp.
429 U.S. 252 (1977) ............................................................................................... 24
We Are America v. Maricopa Cty. Board of Sup'rs
297 F.R.D. 373 (D. Ariz. 2013) ...................................................................... passim
Wells Fargo Bank N.A.v. Boutris
419 F.3d 949 (9th Cir. 2005) ................................................................................. 12
Wisconsin Department of Industry v. Gould Inc.
475 U.S. 282 (1986) ............................................................................................... 19

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FEDERAL STATUTES

8 C.F.R.
214.14 ................................................................................................................... 7
274a.2 .............................................................................................................. 4, 16

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8 U.S.C.
1101(a)(15)(T) ...................................................................................................... 7
1101(a)(15)(U) ...................................................................................................... 7
1182(a)(6)(C) ........................................................................................................ 5
1227(a)(3)(C)(i) .................................................................................................... 5
1324a et seq ................................................................................................. passim
1324c ..................................................................................................................... 5
18 U.S.C.
1001 ...................................................................................................................... 5
1546 ...................................................................................................................... 5
1621 ...................................................................................................................... 5
22 U.S.C.
7101(b)(19) ........................................................................................................... 7
28 C.F.R.
68.1 ....................................................................................................................... 5
42 U.S.C.
3 ..................................................................................................................... 20, 32
1985 .................................................................................................................... 32
Federal Rules of Civil Procedure
Rule 16 ..................................................................................................................... 1
Rule 56 ............................................................................................................... 1, 11

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STATE STATUTES

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A.R.S.

13-702 ................................................................................................................. 19
13-703 ................................................................................................................. 19
13-2002 ..................................................................................................... 1, 19, 33
13-2008 ........................................................................................................ passim
13-2009 ........................................................................................................ passim

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MISCELLANEOUS

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Pub. L. 99-603..................................................................................................................... 5
103 ....................................................................................................................... 5
101 ........................................................................................................................ 5
111 ........................................................................................................................ 6

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Pub. L. 101-649................................................................................................................... 5
House Bill 2745 ......................................................................................................... passim

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House Bill 2779 ......................................................................................................... passim


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Amicus Brief of the United States


2016 WL 1181917 .......................................................................................... passim
Puente Arizona v. Arpaio
No. 15-15211, 2016 WL 1730588 (9th Cir. May 2, 2016) ............................. passim

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MOTION

Pursuant to Rule 56 of the Federal Rules of Civil Procedure, Plaintiffs hereby

move for partial summary judgment on the portion of their First Claim for Relief which

asserts that Defendants Maricopa County Sheriff Joseph M. Arpaio, County Attorney

William Montgomery and Maricopa County (the County Defendants) have a policy,

practice or custom of enforcing A.R.S. 13-2009(A)(3) and the portion of A.R.S. 13-

2008(A) that addresses actions committed with the intent to obtain or continue

employment (collectively the worker identity provisions) and Arizonas forgery

statute, A.R.S. 13-2002, against undocumented immigrants1 in violation of the

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Supremacy Clause. Second Amended Complaint, Doc. 191, at 38-39. In light of the Ninth

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Circuits decision reversing the preliminary injunction previously entered by this Court,

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and in order to prevent further irreparable harm, Plaintiffs respectfully request expedited

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consideration of their motion pursuant to Rule 16 and the Courts inherent authority to

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manage its docket.

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Plaintiffs motion is supported by the following Memorandum of Points and

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Authorities, Plaintiffs separate LRCiv 56.1(a) Statement of Facts Motion (SOF),

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supporting documents, the record on file in this action, and any argument that may be

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presented.
MEMORANDUM OF POINTS AND AUTHORITIES

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I.

INTRODUCTION
In this action for declaratory and injunctive relief, Plaintiffs challenge a state-level

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scheme that criminally punishes individuals who do not have federal authorization to

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work in the United States for the act of securing employment. Promulgated as part of a

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broader platform favored by Arizona nativists to make life so difficult for immigrants

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coming from Mexico and Latin America that they would self-deport, the scheme has

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Plaintiffs intend the term undocumented immigrant and undocumented worker to


refer to individuals who do not have federal authorization to work in the United States.
They use these terms except when quoting or referring to materials that use a different
term.
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turned individuals such as Plaintiff Sara Cervantes Arreolawho was working at a

grocery store on Phoenixs west side to support her young son when she was arrested

into convicted felons.

Shortly after they filed suit in June 2014, Plaintiffs sought temporary injunctive

relief from this Court based on their facial preemption challenge to the worker identity

provisions. Doc. 30. The Court initially granted the request in January 2015, and also

denied Defendants motions to dismiss Plaintiffs First Amended Complaint. Doc. 133.

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On appeal, the Ninth Circuit Court of Appeals declined to uphold the preliminary
injunction on the grounds that the worker identity provisions could be applied to a U.S.

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citizen who uses false information to gain employment for reasons other than to

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demonstrate federal authorization to work. Puente Arizona v. Arpaio, No. 15-15211, 2016

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WL 1730588, at *4 (9th Cir. May 2, 2016). The Ninth Circuit panel ruled that

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enforcement of the statutes should not be enjoined in their entirety. Id. at *7. However,

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noting that some applications of the worker identity provisions appear to nevertheless

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conflict with federal law, the Ninth Circuit remanded the case to this Court to decide

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Plaintiffs as-applied preemption challenge. Id. at *6, 9.

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While the appeal was pending, the United Statesat the Ninth Circuits

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invitationfiled an amicus brief setting forth its views on the scope of state and local

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enforcement activity that is preempted by federal law. Amicus Brief of the United States

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(U.S. Br.), 2016 WL 1181917, mentioned approvingly at Puente Arizona, No. 15-

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15211, 2016 WL 1730588, at *4 n.7. In the United States opinion, state laws are

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preempted to the extent they criminalize fraud in the federal employment verification

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system, or fraud otherwise committed to demonstrate work authorization under federal

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immigration law[.] Id. at *2. The United States made clear that it is not only reliance on

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the Form I-9 and accompanying documents that interfere[s] with [] federal

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prerogatives. Id. at *2, 15-16 (citation omitted). [A]n employee may commit such fraud

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. . . outside the Form I-9 process, such as on employment applications, state payroll tax

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forms, credit release forms, direct deposit forms and other documents, and prosecution
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in those circumstances would likewise intrude upon matters that Congress [] brought

within its exclusive governance [.] Id.

Meanwhile, the Parties moved forward with discovery at the District Court. In

June 2015, this Court granted leave for Plaintiffs to amend their complaint to include an

as-applied preemption challenge to the County Defendants enforcement of the state

forgery statute and to add several new plaintiffs. Doc. 184. Fact discovery and expert

discovery thus focused on enforcement of all three challenged statutes.

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The record is now fully developed and ripe for adjudication on Plaintiffs asapplied preemption claim. See Puente Arizona, 2016 WL 1730588 at *4. The undisputed

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record is clearthe Maricopa County Sheriffs Office (MCSO) and the Maricopa

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County Attorneys Office (MCAO) have and will continue to systematically

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investigate, arrest, detain and prosecute undocumented workers for fraud in connection

13

with their efforts to work in the United States. Between 2007 and 2015, MCSO submitted

14

hundreds of employment-related identity theft and forgery cases to the MCAO for

15

prosecution, and the MCAO prosecuted nearly two thousand such cases. All but a small

16

percentage of those individuals were undocumented.

17

Arizonas worker identity provisions and forgery statute are both field and conflict

18

preempted as applied to individuals who commit fraud: (1) in the Form I-9 process,

19

and/or (2) to otherwise demonstrate authorization to work under federal immigration law.

20

The County Defendants criminal punishment of undocumented workers usurps federal

21

authority and appropriates the employment verification system Congress created for their

22

own purposes, divorced from federal priorities.

23

The families split apart by Defendants enforcement campaign have waited eight

24

long years for a resolution of the constitutional questions raised by this case. Meanwhile,

25

Defendants, such as Defendant Sheriff Arpaio, have been able to pursue their illegal

26

immigration agenda, with worksite identity theft enforcement playing a prominent role.

27

The Court need not wait further to enter an injunction against the County Defendants

28

preempted policy and practice. Plaintiffs can amply demonstrate their standing for
3

Case 2:14-cv-01356-DGC Document 519 Filed 07/01/16 Page 16 of 49

injunctive relief and eligibility for a permanent injunction at this stage, and they request

that the Court move swiftly to prevent further irreparable harm.

II.

BACKGROUND
A.

The Federal Scheme Governing Employment of Undocumented


Immigrants

As this Court previously found, two decades before Arizona enacted H.B. 2779

5
6

and H.B. 2745, Congress had already occupied the field, making combating the

employment of illegal aliens central to the policy of immigration law. Doc. 133 at 2

(quoting Hoffman Plastic Compounds, Inc. v. N.L.R.B., 535 U.S. 137, 147 (2002)).

Through the Immigration Reform and Control Act of 1986 (IRCA),2 Congress created

10

a complex, United States v. Arizona, 641 F.3d 339, 358 (9th Cir. 2011), revd in part,

11

132 S. Ct. 2492, comprehensive, Arizona, 132 S. Ct. 2492, 2504 (2012), and

12

careful[ly] balance[d], id. at 2505, scheme to regulate the employment of

13

undocumented immigrants at the national level. See also SOF 1 (signing statement of

14

President Reagan). This scheme includes a detailed procedure for verifying prospective

15

employees eligibility for employment under federal law, see 8 U.S.C. 1324a(b); 8

16

C.F.R. 274a.2, as well as a graduated series of civil and criminal sanctions for

17

employers who knowingly employ undocumented immigrants, see 8 U.S.C. 1324a(e)-

18

(f). See also U.S. Br., 2016 WL 1181917, at *4-5.


In devising the federal scheme, Congress anticipated that some individuals might

19
20

respond to the new employment verification system by relying on false information or

21

documents. See, e.g., SOF 2 (statement of INS Acting Commr Meissner). Accordingly,

22

Congress provided federal authorities with a multifaceted set of tools to address this

23

concern. See SOF 3 (statement of IRCA co-sponsor Sen. Simpson). The federal tools

24

are comprehensive and versatile, involving civil, criminal and immigration-related

25

penalties. See U.S. Br., 2016 WL 1181917, at *6-7.


First, IRCA amended 18 U.S.C. 1546(b) pertaining to Fraud and misuse of

26
27

visas, permits, and other documents to allow criminal sanctions for the use of a false

28

Pub. L. 99-603, codified at 8 U.S.C. 1324a et seq.


4

Case 2:14-cv-01356-DGC Document 519 Filed 07/01/16 Page 17 of 49

identification document or making of a false attestation for purposes of satisfying the

employment verification requirement. Pub. L. 99-603, 103 (1986). It expanded the

prohibition on selling, making or using fraudulent immigration documents to include

those documents used as evidence of authorized . . . employment in the United States.

Id. (amending 18 U.S.C. 1546(a)). In addition, IRCA specifically designated the

additional federal criminal statutesboth newly amended and pre-existingthat could

be used to address fraud in the employment verification process. See Pub. L. 99-603,

101 (adding 8 U.S.C. 1324a(b)(5) and listing certain statutes related to fraud in Title 18,

Sections 1001 [false statements], 1028 [fraud in connection with identity documents],

10

1546, and 1621 [perjury]).

11

Second, Congress created civil penalties for document fraud. 8 U.S.C. 1324c

12

allows an administrative law judge to impose a fine, after a hearing, on any person or

13

entity who knowingly forge[s], use[s] or attempt[s] to use a document not

14

belonging to the possessor to satisfy the requirements of the Immigration and Nationality

15

Act (INA), including for purposes of obtaining employment. 8 U.S.C. 1324c(a)(1)-

16

(4), 1324c(d).3 These are enforced through a unified federal enforcement process that also

17

covers the INAs employer sanctions and anti-discrimination provisions. See 8 U.S.C.

18

1324a(e), 1324b(e)-(j), 1324c(d); 28 C.F.R. 68.1.


And third, Congress has established immigration consequences for fraud in the

19
20

employment verification process. See, e.g., 8 U.S.C. 1227(a)(3)(C)(i) (making an alien

21

who is the subject of a final order for violation of section 1324c of this title []

22

deportable); 8 U.S.C. 1182(a)(6)(C) (making those who make false claims to

23

citizenship, including for purposes of establishing eligibility for employment,

24

inadmissible and thus ineligible for adjustment of status).


A critical feature of the comprehensive federal scheme is the discretion that it

25
26

affords federal officials. U.S. Br., 2016 WL 1181917, at *18. In implementing the

27
28

Congress added these civil penalties to the federal framework through the Immigration
Act of 1990 (IMMACT), Pub. L. 101-649 (codified as 8 U.S.C. 1324c).
5

Case 2:14-cv-01356-DGC Document 519 Filed 07/01/16 Page 18 of 49

scheme governing fraud by employees to demonstrate authorization to work in the United

States, federal officials balance a range of delicate (and sometimes competing) interests.

Accordingly, U.S. Immigration and Customs Enforcement (ICE) has prioritize[d] the

criminal prosecution of employers who knowingly hire undocumented workers . . . or

facilitate document or benefit fraud, and to the extent enforcement action is taken

against workers, it relies heavily on civil, rather than criminal, measures. SOF 4

(emphasis added). This is consistent with IRCAs view that undocumented workers

should not be treated as severely as the employers that hire them. Arizona, 632 S.Ct. at

2504 (IRCA deliberately does not impose criminal penalties on migrants for engaging in

10

unauthorized work, reflect[ing] a considered judgment that making criminals out of

11

aliens . . . who already face the possibility of employer exploitation because of their

12

removable status would be inconsistent with federal policy).

13

ICE and the U.S. Department of Homeland Security (DHS) have also

14

promulgated written prosecutorial discretion policies designed to encourage

15

undocumented workers who experience unfair labor practices to come forward and report

16

those violations. SOF 5-7. These policies further IRCAs intent to avoid depressing

17

working conditions for all by making undocumented workers more vulnerable than

18

necessary or undermin[ing] or diminish[ing] in any way [their] labor protections in

19

existing law. SOF 8; see also Pub. L. 99-603, 111(d) (authorizing, as part of IRCA,

20

funds for the Department of Labor to strengthen enforcement of labor standards for

21

undocumented workers and noting that it would help remove the economic incentive for

22

employers to exploit and use such aliens).

23

The United States has taken numerous additional steps to further federal

24

objectives. For example, to protect victims of trafficking, including labor trafficking, a

25

federal statute instructs that they should not be inappropriately incarcerated, fined or

26

otherwise penalized for acts committed as a result of being trafficked, such as using

27

false documents. 22 U.S.C. 7101(b)(19). Moreover, Congress has made special visas

28

available to victims and witnesses of trafficking and other crimes to encourage them to
6

Case 2:14-cv-01356-DGC Document 519 Filed 07/01/16 Page 19 of 49

cooperate with law enforcement. See generally 8 U.S.C. 1101(a)(15)(T),

1101(a)(15)(U); 8 C.F.R. 214.14. State prosecutions of the same individuals would,

even if unwittingly, thwart the federal governments ability to rely on those individuals in

high-priority criminal proceedings. U.S. Br., 2016 WL 1181917, at *19. At the

international level, the United States has entered into treaties relating to labor rights,

including those that extend to undocumented immigrants employed domestically. See,

e.g., SOF 9. The ability of the federal government to protect foreign nationals within

our borders from harassment, discrimination and abuse has important consequences for

the reciprocal treatment of American citizens abroad. Arizona, 132 S. Ct. at 2498; see

10

also Hines v. Davidowitz, 312 U.S. 52, 64 (1941); U.S. Br., 2016 WL 1181917, at *20.

11

B.

The Circumstances of Passage of HB 2779 and HB 2745

12

Notwithstanding the extensive federal framework, in 2007 and 2008, Arizona

13

amended its identity theft laws to create a state-level scheme for regulating the use of

14

false information by undocumented immigrants to work. Specifically, House Bill 2779

15

(H.B. 2779), also known as the Legal Arizona Workers Act (LAWA), amended

16

A.R.S. 13-2009 to create a new ground of aggravated identity theft for use of the

17

information of another personreal or fictitiouswith the intent to obtain

18

employment. SOF 10; see also SOF 11. The next year, House Bill 2745 (H.B.

19

2779) supplemented the LAWA by expanding A.R.S. 13-2008, the non-aggravated

20

identity theft statute, to also target use of identifying information for employment. SOF

21

12-13; see also SOF 14. Conceived of as part of Arizona legislators attrition

22

through enforcement immigration strategy, SOF 15-17, the measures capitalized on

23

the practical reality that, because of federal law, undocumented immigrants could not

24

obtain employment in the state without relying on false identifying information.

25

There is little doubt that a primary purpose of the worker identity provisions was

26

to address the employment of undocumented immigrants; fact discovery has only

27

confirmed this. The titles and descriptions of H.B. 2779 and H.B. 2745 reflect this

28

purpose. SOF 13, 18; see also SOF 19. H.B. 2745 1 even included a corollary
7

Case 2:14-cv-01356-DGC Document 519 Filed 07/01/16 Page 20 of 49

provision for employers who knowingly accepted false identity information for the

purpose of determining employment eligibility with an explicit reference to 8 U.S.C.

1324a. SOF 20. Legislators supporting passage of the worker identity provisions were

also not shy to express their view that Arizona should punish undocumented workers

harshly in order to send a strong message on immigration. SOF 21-22; see also SOF

23. Statements expressing dissatisfaction with federal policy in the area were abound.

SOF 24-26. For example, Senator Chuck Gray explained that he supported H.B. 2779

because it advances the cause of protecting our citizens against something that the

Federal Government wont do. SOF 25. In short, as the Ninth Circuit panel agreed, the

10

legislative history of both H.B. 2779 and H.B. 2745 show an intent on the part of Arizona

11

[] to prevent unauthorized aliens from remaining in the state. Puente Arizona, 2016 WL

12

1730588, at *5.

13

Though the provisions in H.B. 2779 and H.B. 2745 that were ultimately enacted

14

were incorporated into Arizonas identity theft laws, it is also apparent that lawmakers

15

were thinking about Arizonas forgery law in a similar way. In 2006, Pearce had

16

championed a predecessor bill, House Bill 2577, which would have revised the definition

17

of forgery to include falsely making or altering a written instrument that purports to be a

18

document that fulfills the requirements for establishing identity, or eligibility to work in

19

the United States pursuant to the federal Immigration Reform and Control Act of 1986[.]

20

SOF 27-28. That bill passed both houses of the Legislature, though it was vetoed by

21

the Governor. SOF 27.

22

C.

The County Defendants Enforcement Campaign

23

The enactment of H.B. 2779 and H.B. 2745 kicked off a seven year-long crack

24

down on undocumented workers in Maricopa County that only started to wane after this

25

lawsuit was filed. See SOF 46-48, 59, 74-75, 159. Shortly after H.B. 2779 became law,

26

the MCAO and MCSO developed a strategy of investigating employees at local

27

businesses who they believed to be undocumented. SOF 29-32. The agencies decided

28

the best way to enforce the new employer sanctions law was to start with the employees.
8

Case 2:14-cv-01356-DGC Document 519 Filed 07/01/16 Page 21 of 49

Id. Investigations would typically begin with a tip from a member of the public, for

example, that a business was employing illegals. SOF 33-42. MCSO would then

work the tip until it developed enough evidence to apply for a search warrant claiming

that the employees were committing identity theft and forgery by using a false identity

and/or Social Security number to work. SOF 43. MCSO would subsequently execute

the search warrant, seizing employee files and arresting the employees in the process.

SOF 44. MCAO would then prosecute the employees criminally under the worker

identity provisions and state forgery statute. SOF 45. The agencies used significant

sums in state grants annually to prosecute employees in this way, SOF 49-56, on the

10

chance that some of the prosecutions of employees might lead to evidence against an

11

employer.4
The strategy did not end up being a very successful one against employers. MCSO

12
13

and MCAO only managed to bring a handful of actions against employers, civil and

14

criminal included, over the years. SOF 58. But the strategy was immensely successful

15

in arresting and locking up many undocumented workers. MCSO reports that it

16

conducted a total of over 80 worksite operations, leading to the arrest of at least 806

17

employees, virtually 100% of which were undocumented. SOF 59-61. Consistent

18

with the Legislatures purpose, MCSOs worksite operations sent a strong message that

19

undocumented immigrants were not welcome in Maricopa County or the State. The high-

20

profile round ups often involved large numbers of arrestees and heavy media coverage.

21

SOF 62-64. During this time, the MCAO was also bringing employment-related

22

identity theft and forgery cases referred from agencies other than the MCSO. SOF 65-

23

67. Further, MCSO investigated and referred some cases outside of its large-scale

24

worksite operations. SOF 68.


Compared to the pre-2007 timeframe, the number of forgery cases co-charged

25
26

with non-aggravated identity theft that were brought against undocumented immigrants

27

rose markedly in the several years after 2007. SOF 69. And of the employment-related

28

Of course, they have also spent County revenues on enforcement. SOF 57.
9

Case 2:14-cv-01356-DGC Document 519 Filed 07/01/16 Page 22 of 49

identity theft and forgery cases that have been handled by the MCAO, including those

referred by agencies other than MCSO, all but a small percentage have been brought

against undocumented immigrants. SOF 70-71. The high number of identity theft and

forgery cases brought against undocumented immigrants by the County Defendants in

this case was a predictable outcome of the focus on employment-related identity fraud

first blessed by H.B. 2779 and H.B. 2745 and later carried out by Defendants. According

to Vicki Kratovil, an MCAO bureau chief who oversaw many of these cases, it is

legally and factually obvious that undocumented workers would have to use

someone elses documents to work because they dont have the documents themselves.

10
11

SOF 72.
Defendants enforcement campaign continued after County Attorney Montgomery

12

took office. SOF 73, 156-57. Even after MCAO realized it should not be bringing

13

charges based on the Form I-9, prosecutors continued to bring forgery counts based on

14

other employment-related documents undocumented workers had filled out or presented

15

with the false name and/or Social Security number instead. SOF 83, 85, 156-57.

16

D.

Harm to Plaintiffs

17

The County Defendants enforcement campaign predictably caused devastation for

18

arrested workers and their families, spread fear throughout the immigrant community and

19

discouraged undocumented workers from reporting labor violations. SOF 148, 185-86,

20

188-93. Undocumented members of organizational Plaintiff Puente Arizona (Puente)

21

constantly worry about being taken by Maricopa County authorities. SOF 169. Puentes

22

own operations have also been impacted by Defendants enforcement of the worker

23

identity provisions and state forgery statute. SOF 184-98.

24

Plaintiffs Sara Cervantes Arreola and Elia Estrada Fernandez are among the many

25

immigrants residing in Arizona who have been branded as serious criminals for working

26

to provide for their families. SOF 211-17. Both used false information to obtain

27

employment because they could not otherwise demonstrate authorization to work in the

28
10

Case 2:14-cv-01356-DGC Document 519 Filed 07/01/16 Page 23 of 49

United States. SOF 214, 217. Today, they live with the impacts of a conviction under

A.R.S. 13-2009(A)(3).
Finally, taxpayers have also been affected by the County Defendants expenditure

3
4

of resources to enforce the worker identity provisions and state forgery statute against

undocumented workers and detain them in the County jails. Plaintiffs-Reverends Susan

Frederick-Gray, Russell Andrew Burnette and Erin Tamayo have and will continue to

have their municipal tax dollars used in furtherance of the County Defendants practices.

SOF 57, 190-207. They disagree with and morally object to such use of their taxes.

SOF 208-10.

10

III.

ARGUMENT

11

A.

12

A court must grant summary judgment if the movant shows that there is no

13

genuine dispute as to any material fact and the movant is entitled to judgment as a matter

14

of law. Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 32223

15

(1986). The movant bears the initial responsibility of presenting the basis for its motion

16

and identifying those portions of the record, together with affidavits, if any, that it

17

believes demonstrate the absence of a genuine issue of material fact. Id. at 323. If the

18

movant meets its initial responsibility, the burden shifts to the nonmovant to present

19

specific facts that show there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc.,

20

477 U.S. 242, 248, 250 (1986); Triton Energy Corp. v. Square D. Co., 68 F.3d 1216,

21

1221 (9th Cir.1995). Only disputes over facts that might affect the outcome of the suit

22

under the governing law will properly preclude the entry of summary judgment.

23

Anderson, 477 U.S. at 248. The non-movant may not rest on mere allegations and

24

denials, but must present evidence of specific, disputed facts. See Anderson, 477 U.S. at

25

248. Id.; see also Fed R. Civ. P. 56(c)(1).

Legal Standard

26

To grant relief at the summary judgment stage, the Court need only find that at

27

least one plaintiff has standing for each type of relief sought. See Mont. Shooting Sports

28

Ass'n v. Holder, 727, F.3d 975, 981 (9th Cir. 2013) (noting that the presence in a suit of
11

Case 2:14-cv-01356-DGC Document 519 Filed 07/01/16 Page 24 of 49

even one party with standing suffices to make a claim justiciable) (quotations omitted);

see also Lujan v. v. Defenders of Wildlife, 504 U.S. 555, 561 (1992) (describing standing

burden at various stages of a case). A permanent injunction is appropriate where

Plaintiffs can establish: (1) that they have and will suffer irreparable injury in the absence

of an injunction; (2) that remedies available at law, such as monetary damages, are

inadequate; (3) that, considering the balance of hardships, a remedy in equity is

warranted; and (4) that the public interest is not disserved by a permanent injunction. See

Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 156 (2010); Arizona Dream Act

Coal. v. Brewer, 818 F.3d 901, 919 (9th Cir. 2016).

10

B.

11

It is a fundamental principle of the Constitution [] that Congress has the power to

12

preempt state law. Valle del Sol v. Whiting, 732 F.3d 1006, 1022 (2013) (quoting Crosby

13

v. Natl Foreign Trade Council, 530 U.S. 363, 372 (2000)). Even where state laws are not

14

preempted in their entirety, they may be per se preempted as applied to a certain class of

15

cases. See United States v. Supreme Court of New Mexico, No. 14-2037, 2016 WL

16

3166830, at *13-14 (10th Cir. June 7, 2016) (explaining that such cases can bear

17

resemblance to a facial challenge but do not call for invalidation of a statute in all of its

18

applications); see also Wells Fargo Bank N.A.v. Boutris, 419 F.3d 949, 967 (9th Cir.

19

2005) (holding California real-estate lending licensing requirements preempted as applied

20

to subsidiaries of national banks). Likewise, a law enforcement agencys policy, pattern

21

or practice of enforcing a statute or statutes in a particular way can also be preempted.

22

See, e.g., We Are Am. v. Maricopa Cnty. Bd. Of Sup'rs, 297 F.R.D. 373, 386-87 (D. Ariz.

23

2013), appeal dismissed (Sept. 15, 2014) (holding Maricopa County policy of enforcing

24

state human smuggling statute against migrants for conspiring to smuggle themselves

25

preempted, noting plaintiffs . . . may challenge the Policy as conflict and field

26

preempted regardless of [the state smuggling statutes] facial constitutionality).

27
28

The Statutes Are Preempted as Applied by the MCSO and MCAO

A state law or local policy is field preempted when it regulates conduct in a field
that Congress, acting within its proper authority, has determined must be regulated by its
12

Case 2:14-cv-01356-DGC Document 519 Filed 07/01/16 Page 25 of 49

exclusive governance. Arizona, 132 S.Ct at 2501. Field preemption can be inferred . . .

[from] a regulatory framework so pervasive . . . that Congress left no room for the States

to supplement it . . . . Valle del Sol, 732 at 1023 (quoting Arizona, 132 S.Ct at 2501).

Further, a state law or local policy can be conflict 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 2501 (citations omitted). As this Court has noted

previously, even where a challenged law or policy shares some goals with federal law,

the layering of additional and different penalties on top of federal law can undermine[]

the congressional calibration of force. Doc. 133 at 24 (quoting Crosby, 530 U.S. at 380);

10
11

see also Valle del Sol, 732 F.3d at 1027.


Here, Arizonas worker identity provisions and forgery statute are both field and

12

conflict preempted as applied to individuals who commit fraud: (1) in the Form I-9

13

process, and/or (2) to otherwise demonstrate authorization to work under federal

14

immigration law, and thus, the County Defendants policy and practice of enforcing these

15

statutes against such individuals should be enjoined.

16
17
18

1.

The Systematic Criminal Prosecution of Undocumented Immigrants


Under State Law for Fraud in Response to the Federal Employment
Verification System is Field and Conflict Preempted

In its decision granting Plaintiffs request for a preliminary injunction, the Court

19

concluded that Congress had occupied the field of unauthorized-alien fraud to obtain

20

employment. Doc. 133 at 22-24. The Ninth Circuits decision did not disturb this finding

21

and there is little reason to revisit it now. See, e.g., Arizona v. California, 460 U.S. 605,

22

618 (1984) ([W]hen a court decides upon a rule of law, that decision should [generally]

23

continue to govern the same issues in subsequent stages in the same case.).

24

When deciding whether a particular area of regulation is field preempted, the

25

Ninth Circuit looks to: (1) the comprehensiveness of the federal scheme, (2) the place of

26

the scheme within a larger regulatory structure, and (3) whether the scheme directly

27

evidenced an intent to limit the role of states. Valle del Sol, 732 F.3d at 1026; see also

28

Lozano v. City of Hazleton, 724 F.3d 297, 316 (3d Cir. 2013); Georgia Latino Alliance
13

Case 2:14-cv-01356-DGC Document 519 Filed 07/01/16 Page 26 of 49

for Human Rights v. Governor of Georgia, 691 F.3d 1250, 1263 (11th Cir. 2012)

(GLAHR); United States v. South Carolina, 720 F.3d 518, 530-31 (4th Cir. 2013).

First, the field of fraud in response to the federal work authorization requirement has

indeed been heavily and comprehensively regulated by Congress, providing federal

officials with a complete set of tools designed to address a range of regulated conduct.

Doc. 133 at 22; see also supra at 4-6. Second, federal regulation of fraud in response to

the employment verification system is part of a broader policy framework regulating the

employment of immigrants, see Arizona, 132 S.Ct. at 2504, that is designed to work as a

harmonious whole. Valle del Sol, 732 F.3d at 1025 (citation omitted); see also Arizona,

10

132 S.Ct. at 2505 (noting the careful balance struck by Congress in IRCA). Third,

11

Congress illustrated its intent to limit states role in this area by circumscribing the use

12

that may be made of information submitted in the verification process. See supra at 5

13

(discussing 8 U.S.C. 1324a(b)(5)); Arizona, 641 F.3d at 358-59 (noting that [8 U.S.C.

14

] 1324a(d)(2)(F) provides in even clearer language that Arizona may not use the

15

verification system to enforce S.B. 1070s Section (C)); see also 8 U.S.C.

16

1324a(d)(2)(C), (d)(2)(G), (b)(4) (containing further language limiting copying and use

17

of documentation).

18

The District Court also previously concluded that punishing undocumented

19

immigrants for fraud committed to obtain or continue employment under state law is

20

conflict preempted because it (1) imposes additional and different penalties on

21

undocumented workers than federal law; and (2) divest[s] federal authorities of the

22

exclusive power to prosecute these crimes and allows local law enforcement to bring

23

cases unaligned with federal . . . priorities. Doc. 133 at 24-25 (citing Valle del Sol, 732

24

F.3d at 1027). The Ninth Circuit further pointed to case law where the Court had found

25

the impacts on federal prosecutorial discretion to be a persuasive reason to conclude that

26

state law was preempted. Puente Arizona, 2016 WL 1730588, at *6.

27

The creation of state or local schemes to regulate fraud by undocumented

28

immigrants in the employment context interfere with federal law. They put prosecutorial
14

Case 2:14-cv-01356-DGC Document 519 Filed 07/01/16 Page 27 of 49

power in the hands of local officials in Arizonaand in potentially 49 other stateswho

are free to disregard federal policies and priorities. The Ninth Circuit recently confirmed

that policies that undermine the broad discretion committed to immigration officials by

Congress are preempted. Arizona Dream Act Coal., 818 F.3d at 910. State interference is

even more problematic in the context of enforcement against immigrant workers because

federal officials must balance enforcement not only against the other priorities reflected

in the Immigration and Nationality Act (INA), but against the interest in preserving the

integrity of labor laws and relevant international agreements. Natl Ctr. for Immigrants

Rights, Inc. v. I.N.S., 913 F.2d 1350, 1366 (9th Cir. 1990) (IRCAs scheme balances

10

specifically chosen measures discouraging illegal employment with measures to protect

11

those who might be adversely affected), revd on other grounds, 502 U.S. 183 (1991).

12

Prosecutorial discretion and versatility are critical to federal officials ability to pursue

13

the delicate balance of statutory objectives embodied in IRCA. Buckman Co. v.

14

Plaintiffs Legal Committee, 531 U.S. 341, 348-49 (2012) (The FDA thus has at its

15

disposal a variety of enforcement options that allow it to make a measured response to

16

suspected fraud upon the Administration. This flexibility is a critical component of the

17

statutory and regulatory framework under which the FDA pursues difficult (and often

18

competing) objectives.); see also U.S. Br., 2016 WL 1181917, at *18-20 (discussing

19

how enforcement of the worker identity provisions against undocumented immigrants

20

interfere with federal prerogatives and interests).

21

In practical terms, preempted enforcement activity in this area can be broken down

22

into two overlapping categories. First, any use by local authorities of the Form I-9 or

23

information that employees submit to indicate their work status as part of the

24

employment verification process is prohibited, Arizona, 132 S. Ct. at 2504, regardless of

25

whether it is submitted by an undocumented immigrant, lawful resident or U.S. citizen.

26

See 8 U.S.C. 1324a(b)(5), (d)(2)(F), 8 U.S.C. 1324a(b)(4), (d)(2)(C), (d)(2)(G); 8

27

C.F.R. 274a.2(b)(4). This use limitation covers not only the Form I-9 itself but any

28

copies or electronic images of documents . . . used to verify an individuals identity or


15

Case 2:14-cv-01356-DGC Document 519 Filed 07/01/16 Page 28 of 49

employment eligibility, such as state drivers licenses and Social Security cards, 8

C.F.R. 274a.2(b)(4); 8 U.S.C. 1324a(b)(1)(C)-(D), and any personal information

utilized by the [employment verification] system, 8 U.S.C. 1324a (d)(2)(C). Naturally,

use means more than just reliance on a document as evidence in court or to make a

charging decision, but reliance in a criminal investigation and any prosecution that flows

from such investigation as well. See U.S. Br., 2016 WL 1181917, at *14.
Second, local authorities are prohibited from prosecuting undocumented

7
8

individuals for fraud they otherwise commit in the employment context simply to

maintain the identity they have adopted in order to obtain employment. An

10

undocumented worker who submits a false name and/or Social Security number as part of

11

the employment verification process will often be asked to complete other employment-

12

related paperwork, ranging from a job application to state and federal tax forms. Their

13

use of the same name and/or Social Security number to be consistent with information

14

they provide in the employment verification process serves the same purpose as the

15

provision of false identity information on the Form I-9to demonstrate authorization to

16

work under federal law. Defendants do not dispute that prosecution of these individuals

17

based on their Form I-9 would be preempted. Prosecution of the very same individuals

18

for other employment-related fraud they commit on account of their unauthorized status

19

wouldas the United States has explainedlikewise usurp the authority Congress

20

arrogated to federal officials and be just as disruptive to the federal scheme. U.S. Br.,

21

2016 WL 1181917, at *15-16. Congress cannot have intended to leave room for local

22

authorities to prosecute those individuals simply by avoiding use of the Form I-9.5

23
24
25
26
27
28

See Doc. 133 at 26-27 (explaining that the existence of an express limitation in federal
law does not bar the ordinary working of [] pre-emption principles or impose a special
burden that would make it more difficult to establish the preemption of laws falling
outside the clause) (quoting Arizona, 132 S. Ct. at 2404-05); supra at 4-7 (setting forth
full federal scheme). Indeed, such prosecutions would still constitute use[] of the
[employment verification] system for a non-enumerated purpose because the fraud being
punished is a response to that system. 8 U.S.C. 1324a(d)(2)(F).
16

Case 2:14-cv-01356-DGC Document 519 Filed 07/01/16 Page 29 of 49

2.
1
2

The County Defendants Have a Policy and Practice of Enforcing the


Worker Identity Provisions and State Forgery Statute Against
Undocumented Workers

It is beyond dispute that the County Defendants, absent an injunction or the threat

of one, have and will continue to systematically investigate, arrest, detain and prosecute

individuals for fraud committed as part of the employment verification process and/or to

otherwise demonstrate authorization to work in the United States. Between 2007 and

2015, MCSO submitted at least 697 employment-related identity theft and forgery cases

to the MCAO for prosecution. SOF 74. At least1,864 employment-related cases were

submitted and/or filed by the MCAO in total. SOF 75. As discussed above, all but a

small percentage of the cases were brought against undocumented immigrants. See supra

10

at 10. Forgery charges played a prominent role in the employment-related casesindeed,

11

a great majority of employment-related cases from 2010 to 2014 involved co-charging

12

forgery with one of the identity-theft charges, A.R.S. 13-2008 or A.R.S. 13-2009.

13

SOF 76. The reliance on forgery in employment-related cases even grew as MCAO

14

charging of forgery cases in general was on the decline. Id.

15

The enforcement of the worker identity provisions and forgery statute against

16

undocumented immigrants is part of an officially-sanctioned policy, pattern and practice.

17

See Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 691, 694 (1978)

18

(noting that a municipality will be liable where an action is the product of official policy

19

or custom); Armstrong v. Davis, 275 F.3d 849, 861 (9th Cir. 2001) (explaining that a

20

showing that harm is part of a pattern of official sanctioned . . . behavior, violative of

21

the plaintiffs [federal] rights, helps establish the violation is likely to recur), abrogated

22

on other grounds by Johnson v. California, 543 U.S. 499 (2005). Until the MCSO

23

disbanded its Criminal Employment Unit (CEU),6 Defendant Sheriff Arpaio had

24

championed the use of state law to prosecute undocumented immigrants for working. See,

25

e.g., SOF 86-90. At a March 2014 event, the Sheriff touted his Offices continued

26
27
28

This unit had previously been called the Employer Sanctions Unit, and then the
Criminal Employment Squad. SOF n.2. Plaintiffs will use the term CEU to refer to the
unit except when speaking about historical practices.
17

Case 2:14-cv-01356-DGC Document 519 Filed 07/01/16 Page 30 of 49

effort to enforce the [] illegal immigration laws by virtue of going into businesses and

locking up the employees with fake ID. SOF 77. Regarding the County Attorney, for

many years the webpage for the MCAO listed the use of a Social Security account or

other identification to get a job in the United States (Employment Identity Theft) as an

Ilegal Immigrant Crime[] prosecuted by the Special Crimes Bureau. SOF 78; see

also SOF 47. This page was reviewed and approved by County Attorney Montgomery

after he took office and did not change until months after the preliminary injunction order

in this case in 2015. SOF 78-79. MCSO and MCAO were both aware of and tracked

information about the immigration status of individuals arrested and prosecutedbut not

10

for the purpose of trying to avoid a conflict with federal law. SOF 124-27.7

11

The officially-sanctioned nature of both the MCSO and MCAOs enforcement of

12

state criminal statutes against undocumented workers is further evidenced by their use of

13

state funds earmarked for enforcement of laws relating immigration to staff the units that

14

brought employment-related identity theft and forgery cases. The MCSO used grant

15

funds earmarked for employer sanctions enforcement to pay for the positions of

16

personnel and operating expenses for the CEU. SOF 52, 56. The MCAO also used

17

employer sanctions grant funds to pay for prosecutor salaries and benefits. SOF 53. In

18

correspondence with the State about the monies, they were transparent about their focus

19

on immigration. See, e.g., id.

20

The County Defendants enforcement of state laws against undocumented workers

21

involves (or involved, in the case of MCSO) investigating and prosecuting individuals for

22

fraud committed as part of the employment verification process. SOF 80-82.8 The

23
24
25
26
27
28

Enforcement efforts were carried out under color of law. See Monroe v. Pape, 365 U.S.
167, 184 (1961) (police officer acts under color of law), overruled on other grounds by
Monell, 436 U.S. at 690-91; United States v. Classic, 313 U.S. 299, 326 (1941)
([m]isuse of power . . . made possibly only because wrongdoer is clothed with the
authority of state law, is action taken under color of state law).
8
Plaintiffs are filing on this same date a Motion for Sanctions based on spoliation of
evidence which includes a request that Defendant Arpaio be precluded from offering
evidence that the MCSO had a policy of no longer seizing the Form I-9s by 2014 or was
advised by the MCAO that Form I-9s were inadmissible, or in the alternative, that
Plaintiffs be granted an adverse inference that MCSO did indeed continue to seize and
use Form I-9s through the end of 2014.
18

Case 2:14-cv-01356-DGC Document 519 Filed 07/01/16 Page 31 of 49

MCAO implemented a policy on September 17, 2014 of not using the Form I-9 for

charging decisions; however, the September 17, 2014 policy does not prohibit reliance on

other documents workers submit to show identity and work authorization. SOF 83.9 The

County Defendants have also prosecuted individuals for fraud committed outside of the

verification process on other employment-related paperwork to maintain the identity they

adopted to demonstrate authorization to work in the United States. SOF 85.


As discussed above, Congress has reserved for federal authorities the prerogative

7
8

of regulating fraud in response to the federal work authorization requirement. Supra at

Pt.3.B.1. Congress clearly did not intend for the employment verification scheme to be

10

used for law enforcement objectives outside of the federal system. Where Congress

11

occupies an entire field states may not enter it in any respect, even with

12

complementary or auxiliary regulation. Arizona, 132 S.Ct at 2501-02. The County

13

Defendants practices are thus field preempted.


Further, the County Defendants practices create a conflict with federal law.

14
15

Because Defendants enforcement scheme consists solely of criminal prosecution, it

16

present a conflict in technique that can be fully as disruptive to the system Congress

17

enacted as conflict in overt policy. Id. at 2503, 2505 (quoting Motor Coach Employees

18

v. Lockridge, 403 U.S. 274, 287 (1971)); see also Wisconsin Department of Industry v.

19

Gould Inc., 475 U.S. 282, 286 (1986) (conflict is imminent whenever two separate

20

remedies are brought to bear on the same activity) (citations omitted); cf. supra at

21

Pt.II.B (describing federal scheme, which relies heavily on civil rather than criminal

22

sanctions, and provides authorities with a versatile range of possible actionscivil,

23

criminal and immigration-relateddepending on the circumstances of each case). Like

24

the worker identity provisions, a violation of Arizonas forgery statute also carries

25

different punishments than the applicable federal criminal statutes. Compare A.R.S.

26

13-702-703, A.R.S. 13-2002 with supra at 5 (listing federal criminal provisions); see

27
28

It also appears, as of the time of filing of this lawsuit, that MCAO was still using the
Form I-9 in some cases. SOF 84.
19

Case 2:14-cv-01356-DGC Document 519 Filed 07/01/16 Page 32 of 49

also Doc. 133 at 24-25. The County Defendants scheme further deprives federal

authorities of prosecutorial control, permitting unchecked criminal punishment of

individuals whom federal authorities may have exempted or de-prioritized from

enforcement. See supra at 6-7, 15.

5
6

3.

The Record Confirms That the County Defendants Punishment of


Undocumented Immigrants Has Been Purposeful

As discussed above, the record demonstrates that the County Defendants have

initiated a substantial number of investigations and prosecutions that encroach upon the

federally preempted field. That alone is sufficient for the Court to enjoin their conduct.

However, further undisputed evidence shows that the routine prosecution of

10

undocumented immigrants was not only the predictable result ofbut in many ways

11

the goal of Defendants focus on employment-related identity theft and forgery cases.

12

See, e.g., Haywood v. Drown, 556 U.S. 729, 736-42 (2009) (examining the purpose of a

13

state scheme requiring damages actions to be filed in state court for evidence of whether

14

it is being used as a device to undermine federal law and ultimately striking down law

15

as applied to 1983 claims).

16

Following the wishes of his constituency, in 2007, Sheriff Arpaio substantially

17

retooled his agency to respond to what he described as the illegal immigration

18

epidemic. SOF 86-87. He laid out the elements of his comprehensive fight in a

19

2007 MCSO News Release. SOF 87. One part of his plan included the cross-

20

certification of MCSO officers to enforce federal immigration laws. Id. Another part

21

just as significantwas the creation of a specialized unit called the Human Smuggling

22

Unit (HSU) that could enforce state laws relating to immigration. Id.

23

Around the same time, the Arizona Legislature passed LAWA and the MCSO

24

started communicating with the MCAO about a strategy for enforcing the new law. SOF

25

29. MCSO established a new squad within its Human Smuggling Unit called the

26

Employer Sanctions Unit that would work with the MCAO on investigating

27

complaints. SOF 30, 94-95. The mission of the HSU at the time was to provide law

28
20

Case 2:14-cv-01356-DGC Document 519 Filed 07/01/16 Page 33 of 49

enforcement services centered on crimes that involve illegal immigration . . . . SOF

96. The Employer Sanctions Unit, and later the Criminal Employment Squad, in turn,

was tasked with addressing the specific issue of employment of personnel using

fraudulent and or stolen identification for purposes of gaining and maintaining

employment. SOF 97; see also SOF 98.

The MCAO, for its part, assigned primary responsibility for enforcing LAWA,

including its identity theft provisions, to its Special Crimes Bureau. SOF 99. The HSU

had been working with the Special Crimes Bureau already on human smuggling cases.

SOF 109. The MCAO, under former County Attorney Andrew Thomas, assigned the

10

cases to the Special Crimes Bureau even though the Office already had a unit dedicated

11

to the enforcement of fraud and identity theft laws, called the Fraud and Identity Theft

12

Enforcement (FITE) Bureau. SOF 100. Before LAWA, FITE would sometimes

13

come across identity theft cases arising in the employment context, but it was not a

14

significant focus of the Bureaus work. SOF 102. There was no deficiency with how

15

FITE was handling those casesindeed, FITE had significant expertise with fraud cases.

16

SOF 101, 103. But the Thomas Administration made a determination to place the new

17

LAWA work in the bureau focuse[d] on criminal activity that violates immigration

18

law. SOF 104; see also SOF 105.

19

Starting in early 2008, members of the HSU and the Special Crimes Bureau began

20

meeting regularly to develop a strategy for working LAWA cases. SOF 30-31, 111.

21

One of the goals of the standing committee was to gather information about businesses

22

who were hiring undocumented immigrants. Thus, to the extent the agencies went

23

initially after employees in an effort to flip them against their employers, see SOF 32,

24

it would have been immigrant workers who would have been the target.

25

HSU and the Special Crimes Bureau worked closely together, initially under a

26

formal Interdepartmental Agreement, and later with their own independent funding

27

streams. SOF 50-51, 110. The MCSO would apprise MCAO ahead of time when it

28

would be conducting a search warrant operation and sometimes submit drafts of search
21

Case 2:14-cv-01356-DGC Document 519 Filed 07/01/16 Page 34 of 49

warrants for MCAO to review. SOF 112. And Special Crimes Bureau prosecutors gave

CEU detectives good props for the work they were doing. SOF 119. Statistical

analysis confirms the close relationship between the two unitsPlaintiffs expert found

that MCSO was particularly active in referring employment-related identity theft and

forgery cases to the MCAO for prosecution relative to other agencies, and that MCSO-

referred cases were primarily handled by Special Crimes as opposed to other bureaus.

SOF 115-17, 120.

The Sheriff (Arpaio) and County Attorneys (first Thomas, then Montgomery) have

shown a keen interest in the work of the special units that were enforcing the LAWA.

10

The Sheriff liked to be briefed on worksite identity theft operations in advance, would

11

show up to most of the operations, and would ask for statistics about the number of

12

undocumented immigrants who were arrested. SOF 121, 124-25; see also SOF 123.

13

He has even kept a personal file relating to employer sanctions and the work of the CEU.

14

SOF 122. Vicki Kratovil, the long-time Bureau Chief over Special Crimes, testified that

15

former County Attorney Thomas wanted to be kept apprised of statistics of illegal

16

immigration cases that her Bureau was handling. SOF 127. Thomas and Arpaio would

17

sometimes issue press releases together, publicly expressing the view that worksite

18

identity theft operations were helping to prevent the undercutting of wages and opening

19

up job opportunities for hard working United States citizens. SOF 89; see also SOF

20

90. Sheriff Arpaio felt strongly that his Office should be able to go forward with

21

enforcement actions even under circumstances where federal immigration authorities

22

would not, and that he could use state law to do so. See, e.g., SOF 91, 137.

23

For a brief time in between the Thomas and Montgomery Administrations, while

24

interim County Attorney Rick Romley was in office, the MCAO assigned responsibility

25

for employment-related identity theft and forgery cases back to the FITE Bureau. SOF

26

106. When Montgomery took office, however, he reversed the policy decision that

27

Romley had made, following through on a commitment he had made during his campaign

28

to restore the policies of the Thomas Administration regarding illegal immigration and
22

Case 2:14-cv-01356-DGC Document 519 Filed 07/01/16 Page 35 of 49

the partnership with Sheriff Arpaio. SOF 107-08. During the Montgomery

Administration, CEU has continued to work with the Special Crimes Bureau, and send

operations plans and shift summaries to the MCAO. SOF 113-14. The Office has also

continued to track the immigration status of defendants for statistical purposes. SOF

127.

The MCSO and MCAOs uniquely enthusiastic approach to enforcing the LAWA

was rewarded by the Legislature in the form of grant funding. See SOF 52, 54. In their

zeal, however, they also caused a significant amount of human suffering. MCSO worksite

operations were generally initiated by a tip from a member of the public calling into the

10

Illegal Immigration Hotline, by e-mail or other method. SOF 128, 130. Tips about

11

illegal employment were the largest category of calls to the hotline, SOF 130, and the

12

agency seems to have attempted to follow up on tips without much regard for the motive

13

of the tipster. SOF 33-39, 129; see also SOF 134.

14
15

SOF 131-33. Its

16

methods drew civil rights complaints and investigations, leading to a finding by the

17

Department of Justice Civil Rights Division that the agency was violating the rights of

18

Latinos, SOF 135, and a ruling by U.S. District Court Judge Murray Snow that the

19

MCSO was engaged in systematic racial profiling and Fourth Amendment violations on

20

immigration-related operations, SOF 136. See also SOF 138 (decision invalidating

21

MCSO search warrant for operation at Uncle Sams Restaurant), 139 (detailing

22

investigation of mishandling of evidence by HSU on operations). Even after Judge Snow

23

ordered the MCSO to stop detaining individuals solely on the basis of suspected unlawful

24

status in December 2011, the MCSO continued the practice, including on worksite

25

operations. SOF 137. During this time, Defendant Montgomery was aware of the legal

26

rulings against MCSO, SOF 142, but continued to partner with the MCSO on

27

workplace identity theft investigations.


SOF 146; see

28
23

Case 2:14-cv-01356-DGC Document 519 Filed 07/01/16 Page 36 of 49

also SOF 143-45, 147. These departures from the norm[] are probative of improper,

purposeful targeting of immigrants. Vill. of Arlington Heights v. Metro. Hous. Dev.

Corp., 429 U.S. 252, 267 (1977).

Even if the Court should find that the County Defendants practices are not field

preempted, then it should find them conflict preempted. Neither MCSO nor MCAO

appears to have had any policy of trying to conform their enforcement practices to be in

line with federal guidelines. They did not consider whether employees might have been

subject to labor violations before proceeding with an arrest or prosecution. SOF 149-

50, 153; see also SOF 151. Indeed, in at least one case, the MCSO conducted a

10

worksite raid at a business that was under investigation by the U.S. Department of Labor

11

at the time. SOF 152. In another case where employees who had been arrested at a

12

business complained of serious workplace abuses, the MCSO investigated the employer

13

only for identity theft-related crimes. SOF 154-55. The result of the County

14

Defendants approach has been to put undocumented workers in an even more vulnerable

15

position than before, thus interfere[ing] with federal authorities election to prioritize

16

enforcement against employers rather than employees and the careful balance struck by

17

Congress with respect to unauthorized employment of aliens in IRCA. Arizona, 132 S.

18

Ct. at 2504.

19
20

4.

Any Voluntary Cessation Does Not Preclude Relief

The County Defendants have not stopped using state criminal laws to prosecute

21

undocumented immigrants for fraud in connection with their employment. Defendant

22

Montgomery has acknowledged that his Office continued to bring employment-related

23

cases under the forgery statute while the preliminary injunction was in place. SOF 156.

24

These cases include those that appear to involve undocumented workers. SOF 157. And

25

Defendant Arpaio would have used MCSOs resources to detain the individuals in the

26

County jail. SOF 158.

27
28

The fact that Sheriff Arpaio announced he would be voluntarily disbanding the
CEU in late 2014, six months after this lawsuit was filed, does not moot any part of
24

Case 2:14-cv-01356-DGC Document 519 Filed 07/01/16 Page 37 of 49

Plaintiffs case. As the Court previously observed, nothing prevents the MCSO from

resuming investigations and arrests at a later date. Doc. 133 at 11-12; see also City of

Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283, 289 n.10 (1982) ([V]oluntary cessation

of allegedly illegal conduct does not moot a case; if it did, the courts would be compelled

to leave the defendant . . . free to return to his old ways.) (citation omitted). To argue

mootness, Sheriff Arpaio bears a heavy burden to make it absolutely clear that the

allegedly wrongful behavior . . . could not reasonably be expected to recura burden

that cannot be met by his own assurances or even adoption of an internal policy. Bell v.

City of Boise, 709 F.3d 890, 898-901 (9th Cir. 2013) (quoting Friends of Earth, Inc. v.

10

Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 189 (2000)). That possibility

11

is certainly foreclosed where, as here, a party discontinues enforcement in response to

12

litigation after a case is filed. SOF 159; see Nome Eskimo Community v. Babbitt, 67

13

F.3d 813, 816 (9th Cir. 1995); Friends of the Earth, Inc., 528 U.S. at 191-92.
Moreover, both Sheriff Arpaio and County Attorney Montgomery have expressed

14
15

interest in enforcing the worker identity provisions again. Sheriff Arpaio testified in his

16

deposition that he would look forward to resuming enforcement if the preliminary

17

injunction were lifted. SOF 160. And Defendant Montgomery announced recently to

18

the Associated Press he intends to resume enforcement in light of the Ninth Circuits

19

decision on the preliminary injunction appeal. SOF 161.

20

C.

Plaintiffs Have Standing for the Relief They Are Seeking

21

The Ninth Circuit did not disturb any of this Courts previous analysis regarding

22

standing, so its rulings on those issues remain the law of the case. See Doc. 133 at 6-18.

23

The main difference between the motion to dismiss stage and now is that, at the summary

24

judgment stage, Plaintiffs must support their allegations of injury, causal connection and

25

redressability with affidavits or other evidence. Lujan, 504 U.S. at 560-61. As discussed

26

below, the undisputed facts amply prove Plaintiffs standing.

27

//

28
25

Case 2:14-cv-01356-DGC Document 519 Filed 07/01/16 Page 38 of 49

1
2

1.

Puente Has Associational and Organizational Standing

The Court previously found that Puente had properly alleged and established both

associational standing and direct standing as an organization to seek declaratory and

injunctive relief. Doc. at 8-15.

a.

Puente Has Associational Standing Based on the Threat of


Injury to its Members

A membership organization has standing to sue on behalf of its members if (a)

its members would otherwise have standing to sue in their own right; (b) the interests it

seeks to protect are germane to the organizations purposes; and (c) neither the claim

asserted nor the relief requested requires the participation of individual members in the

10

lawsuit. Doc. 133 at 8-9 (quoting Ecological Rights Found. v. Pac. Lumber Co., 230

11

F.3d 1141, 1147 (9th Cir. 2000)). The first prong is satisfied if at least one member has

12

standing. See Summers v. Earth Island Inst., 555 U.S. 488, 498 (2009). The second prong

13

is satisfied where the subject of the litigation is pertinent to the organizational purpose.

14

See Presidio Golf Club v. Natl Park Serv., 155 F.3d 1153, 1159 (9th Cir. 1998).

15

Here, record shows that at least three members of Puente have standing in their

16

own right because they face a credible threat of prosecution by Maricopa County

17

authorities under the worker identity provisions and forgery statute. See Thomas v.

18

Anchorage Equal Rights Commn, 220 F.3d 1134, 1138 (9th Cir. 2000) (holding that a

19

credible threat of prosecution is an injury that confers standing); Doc. 133 at 9. The Ninth

20

Circuit has adopted a three-part test to determine the presence of a credible threat of

21

prosecution, which looks to: (1) whether the plaintiffs have articulated a concrete plan

22

to violate the law in question; (2) whether the government has communicated a specific

23

warning or threat to initiate proceedings; and (3) the history of past prosecution or

24

enforcement under the statute. Oklevueha Native Am. Church of Hawaii, Inc. v. Holder,

25

676 F.3d 829, 835 (9th Cir. 2012) (quoting Thomas, 220 F.3d at 1138). As the Court

26

previously observed, the presence of a specific warning is only one factor in determining

27

the existence of a credible threatit is less relevant when there has been a long history of

28
26

Case 2:14-cv-01356-DGC Document 519 Filed 07/01/16 Page 39 of 49

enforcement. Doc. 133 at 11; see also Valle del Sol, 732 F.3d at 1016; Lopez v. Candaele,

630 F.3d 775, 786-87 (9th Cir. 2010).


The concrete plan element is more than satisfied in this case. Puente members

3
4

Jane Doe I, Jane Doe II, and John Doe 1 (the Does) are undocumented immigrants who

are currently violating the worker identity provisions and state forgery statute by working

in jobs that they obtained using false Social Security numbers and green cards. SOF

170-83; see also SOF 168. They provided the false personal identifying information,

including on documents like employment applications and other work-related documents,

in order to demonstrate authorization to work in the United States. SOF 173, 177-78,

10

182-83. See also Doc. 133 at 10 (holding that the concrete plan element is satisfied where

11

an individual is currently violating the challenged provisions). There is also a long history

12

of enforcement of the challenged provisions against undocumented individuals like the

13

Does. See supra Pt. II.D. These undisputed facts establish the Does standing.10

14

The remaining prongs of the associational standing test are also established by

15

undisputed facts. Puente is a membership organization with a discrete, stable group of

16

members who share common interests and collectively set the organizations goals and

17

priorities. See SOF at 162-68; Hunt v. Wash. State Apple Adver. Commn, 432 U.S.

18

333, 344-45 (1977) (holding that an organization is a membership organization for

19

purposes of associational standing if it expresses the collective views and protects the

20

collective interests of its members or equivalents). Its mission to develop, educate, and

21

empower migrant communities to enhance the quality of life of our community

22

members is pertinent to this litigation, which addresses the arrest and prosecution of

23

undocumented residents of Arizona who provide false identity information and

24

documents to work. See SOF at 184; Doc. 133 at 13. Finally, the participation of

25
26
27
28

10

Further, the County Defendants recent statements of intent to enforce the worker
identity provisions, see supra at Pt. III.B.4, constitute specific threats that buttress the
credibility of the threat of prosecution. See Libertarian Party of Los Angeles County v.
Bowen, 709 F.3d 867, 871-72 (9th Cir. 2013) (finding that instructions on Secretary of
State website mandating compliance with requirements of challenged statute and memo
instructing that violators should be reported were a specific threat of enforcement).
27

Case 2:14-cv-01356-DGC Document 519 Filed 07/01/16 Page 40 of 49

individual members is not necessary, because individual members would assert the same

right asserted by Puentethat is, the right not to be subject to unconstitutional

enforcement of state lawsand their specific backgrounds and circumstances are

irrelevant to determining the constitutionality of the challenged laws or Defendants

practices. See Doc. 133 at 13.


b.

6
7

Puente Has Organizational Standing Based on Frustration


of Its Mission and Diversion of Resources

An organization also has standing to sue where it demonstrates a concrete and

demonstrable injury to [its] activities. Doc. 133 at 14 (quoting Havens Realty Corp. v.

Coleman, 455 U.S. 363, 379 (1982)). This may be shown by (1) frustration of its

10

organizational mission; and (2) diversion of its resources to combat the [effects of the

11

particular law] in question. Smith v. Pac. Properties & Dev. Corp., 358 F.3d 1097, 1105

12

(9th Cir. 2004) (citing Fair Hous. Of Marin v. Combs, 285 F.3d 899, 905 (9th Cir.

13

2002)). Here, the record establishes that Defendants enforcement of the worker identity

14

provisions and forgery statute has had both of these impacts.

15

First, Puentes mission has been frustrated by Defendants enforcement because

16

the arrest and prosecutions of undocumented workers has made it more difficult for

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community members to participate in Puente activities. Some undocumented Puente

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members have retreated from public lifeincluding participation in Puente meetings and

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activitiesas a result of the climate of fear created by the Defendants enforcement of

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the worker identity provisions and forgery statute. See SOF at 185. Members have also

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been forced to reduce their participation in Puente activities because they or their family

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members were incarcerated by the County Defendants, leaving them in crisis. SOF at

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186.

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Second, Puente has diverted its limited resources to responding to the effects of

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arrests and prosecutions. Puente has devoted staff time, volunteer time, and financial

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resources to supporting individuals who are detained under the worker identity provisions

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and forgery statute and their families, including by providing housing and transportation

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and helping individuals navigate the legal system. SOF at 187-96. Puente has also

devoted significant resources to educating its members and the public about enforcement.

SOF at 194. In order to do this, Puente had to divert resources away from its core

programs, including health and English programs. SOF at 196. Puente had no choice

but to divert its resources to respond to the crisis Defendants enforcement had created

for the migrant community in Maricopa County: had Puente failed to do so, the urgent

needs of its members and constituents would have gone unmet and, as described above,

its mission would suffer. SOF at 198. See Valle del Sol, 732 F.3d at 1018-19.

This frustration of Puentes mission and diversion of its resources is more than

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sufficient to establish its standing. See id. (holding that diversion of resources to educate

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and address members and constituents concerns about challenged law confers direct

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organizational standing); Fair Hous. Council of San Fernando Valley v. Roommate.com,

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LLC, 666 F.3d 1216, 1219 (9th Cir. 2012) (holding that educational campaigns targeting

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discriminatory practices conferred organizational standing).

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2.

Plaintiffs Reverend Frederick-Gray, Reverend Russell Andrew


Burnette, and Reverend Erin Tamayo Have Standing as
Municipal Taxpayers

As this Court has held, a municipal taxpayer may establish standing by showing an

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improper expenditure of municipal funds. See Doc. 133 at 17 (quoting Cammack v.

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Waihee, 932 F.2d 765, 770 (9th Cir. 1991). The undisputed facts establish that Plaintiffs

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Frederick-Gray, Burnette, and Tamayo are all municipal taxpayers who pay both property

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and sales tax to Maricopa County, including a special jail excise tax. See SOF at 199,

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201-07; see also We Are Am. v. Maricopa Cty. Bd. of Sup'rs, 297 F.R.D. 373, 383 (D.

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Ariz. 2013) (describing jail excise tax used to fund construction and operation of

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Maricopa County jails). The record also shows that the County Defendants have spent

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municipal taxpayer funds on enforcing the worker identity provisions and state forgery

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statute in the employment context. See SOF at 57. Specifically, both MCSO and

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MCAO use county tax funds to pay for their enforcement operations, including arresting

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and prosecuting individuals under the challenged provisions, and detaining them in the
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County jails. See SOF at 156-58, 199-200. Accordingly, Plaintiffs have municipal

taxpayer standing to challenge Defendants enforcement of the challenged provisions.


3.

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Plaintiffs Sara Cervantes Arreola and Elia Estrada Fernandez


Have Standing to Seek Expungement

Plaintiffs Cervantes Arreola and Estrada Fernandez seek a judgment declaring that

their convictions under A.R.S. 13-2009(A)(3), see SOF at 213, 216, were

unconstitutional, and expunging the convictions. Each of them was convicted for using

false identifying information to establish employment eligibility under federal

immigration law and was prosecuted pursuant to the County Defendants unconstitutional

policy and practice. SOF at 211-12, 214-15, 217; see supra Pt. III.B.1. Ms. Cervantes

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Arreola was arrested in an MCSO worksite raid and prosecuted by MCAO, while Ms.

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Estrada Fernandez was arrested by the Gilbert Police Department and prosecuted by

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MCAO. SOF 211-12, 215. They have standing to seek this relief because there is an

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irrefutable presumption that ongoing harm, in the form of collateral consequences

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including the prospect of harsher punishment for a subsequent offense and ineligibility

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for certain forms of immigration reliefresults from any criminal conviction. See Chaker

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v. Crogan, 428 F.3d 1215, 1219 (9th Cir. 2005); Doc. 133 at 7-8.

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D.

Plaintiffs Meet the Other Requirements for Injunctive Relief


1.

Puente and the Taypayer Plaintiffs Are Entitled to a Permanent


Injunction Against the County Defendants Preempted
Enforcement Practices

The record establishes that Plaintiffs have satisfied each of the remaining factors
for a permanent injunction.

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The first non-merits factorthat the injury complained of is irreparable

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overlaps with the second factorthat there be no adequate legal remedy. Arizona Dream

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Act Coal., 818 F.3d at 920 (noting that irreparable harm is traditionally defined as harm

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for which there is no adequate legal remedy). Plaintiffs have established that they will

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suffer irreparable injury in the absence of an injunction. As described above, Puente

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members face a threat of imminent prosecution. See supra Pt III.C.1.a. [I]f an individual

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or entity faces the imminent threat of enforcement of a preempted state law and the

resulting injury may not be remedied by monetary damages, the individual or entity is

likely to suffer irreparable harm. Doc. 133 at 28 (quoting Valle del Sol v. Whiting, No.

CV 10-1061-PHX-SRB, 2012 WL 8021265, at *6 (D. Ariz. Sept. 5, 2012), affd, 732

F.3d at 1029); see also Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012) (It is

well established that the deprivation of constitutional rights unquestionably constitutes

irreparable injury.) (quoting Elrod v. Burns, 427 U.S. 347, 373 (1976)). Money

damages cannot make up for the indignity of an unconstitutional criminal prosecution or

the resulting detention, family separation, and stigma of a lifelong criminal record. See,

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e.g., Morales v. Trans World Airlines, Inc., 504 U.S. 374, 381 (1992) (holding that there

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are no adequate remedies at law for imminent enforcement of a preempted law); see also

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Regents of Univ. of California v. Am. Broad. Companies, Inc., 747 F.2d 511, 520 (9th

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Cir. 1984) (reputational injury may constitute irreparable harm).

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The direct harm suffered by Puente as an organization as a result of the County

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Defendants enforcement, see sura Pt III.C.1.b, also constitutes irreparable injury. See,

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e.g., Valle del Sol, 732 F.3d at 1018, 1029 (holding that ongoing harms to

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[organizations] organizational missions constituted irreparable harm for purposes of

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preliminary injunction); see also Rent-A-Ctr., Inc. v. Canyon Television & Appliance

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Rental, Inc., 944 F.2d 597, 603 (9th Cir. 1991) ([I]ntangible injuries, such as damage to

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ongoing recruitment efforts and goodwill, qualify as irreparable harm.) The health and

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educational programs that Puente had to cancel in order to respond to are missed

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opportunities that money cannot restore. Cf. Arizona Dream Act Coal. v. Brewer, 818

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F.3d at 919 (holding that loss of job opportunities constitutes irreparable harm).

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Additionally, the County Defendants use of taxes paid by Reverends Frederick-Gray,

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Tamayo, and Burnette to pursue enforcement they believe to be immoral and unjust, see

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supra Pt III.C.2; see also SOF 207-09, has caused them irreparable harm, which is

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properly redressed through an injunction. See Frothingham v. Mellon, 262 U.S. 447, 486

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87 (1923) (describing harm arising from misuse of taxpayer funds as direct and
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immediate and properly subject to permanent injunction); We Are America v. Maricopa

County Bd. of Suprs, 297 F.R.D. at 385-86 (granting permanent injunction to Maricopa

County taxpayers to prevent enforcement of unconstitutional policy).


The balance of hardships and the public interest also support a permanent

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injunction in this case. As this Court has found, enjoining enforcement activity that is

preempted poses limited hardship to Defendants and serves the public interest. Doc. 133

at 29-30; Valle del Sol, 732 F.3d at 1029 (holding that it would not be equitable or in the

publics interest to allow the state . . . to violate the requirements of federal law,

especially when there are no adequate remedies available) (quoting Arizona, 641 F.3d at

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366); Gordon v. Holder, 721 F.3d 638, 653 (D.C. Cir. 2013) ([E]nforcement of an

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unconstitutional law is always contrary to the public interest.). Defendants would still be

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permitted to enforce the challenged statutes in other cases not touching on the federally

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preempted field and to refer complaints to federal authorities for consideration.

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2.

Plaintiffs Cervantes Arreola and Estrada Fernandez are Entitled to a


Permanent Injunction Expunging Their Convictions

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It is well settled that the federal courts have inherent equitable power" to expunge

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records of unconstitutional arrests or convictions. Maurer v. Los Angeles County

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Sheriff's Dept., 691 F.2d 434, 437 (9th Cir.1982). Although this power is not to be used in

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every case, it is entirely warranted where, as here, an individual has been convicted under

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an unconstitutional application of a statute. See Order on Motion for Reconsideration,

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Doc. 440 at 3 ([A] conviction under an unconstitutional statute is properly expunged.);

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Shipp v. Todd, 568 F.2d 133, 134 n.1 (9th Cir. 1978) (noting that the power to expunge a

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state arrest record should be reserved for cases like where the statute under which the

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arrestee was prosecuted was itself unconstitutional) (quoting United States v. Linn, 513

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F.2d 925, 927 (10th Cir. 1975).11 Further, Plaintiffs Cervantes Arreola and Estrada

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Whether the statute at issue is unconstitutional in all applications or unconstitutional as


applied to Plaintiffs and others like them should not matter for this analysis; in both
cases, the convictions were unconstitutional. See U.S. v. Sumner, 226 F.3d 1005 (9th Cir.
2000) (holding that criminal records involving unconstitutional state convictions may be
expunged in a civil rights action filed pursuant to 42 U.S.C. 1983 and 1985) (internal
quotation omitted); see also, e.g., Kowall v. United States, 53 F.R.D. 211, 216 (W.D.
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Fernandez may appropriate raise claims about the constitutionality of their convictions in

this 1983 suit, rather than through habeas corpus, because habeas is notand never

wasavailable to them. See Nonnette v. Small, 316 F.3d 872 (9th Cir. 2002) (holding the

Heck v. Humphrey, 512 U.S. 477 (1994) rule, that a challenge to the validity of a

conviction must be brought in habeas, is inapplicable where habeas is unavailable

through no fault of the plaintiff).12

As the Court observed with respect to the expungement Plaintiffs, since the

Constitution is the ultimate expression of the public interest, equitable balancing is

inappropriate where a partys constitutional rights are at stake. Doc. 440 at 3 (quoting

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Llewelyn v. Oakland Cty.Prosecutors Office, 402 F. Supp. 1379, 1393 (E.D. Mich.

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1975). If the Court finds it necessary to engage in equitable balancing at all, however, the

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balance of hardships would favor Plaintiffs. The impact of expungement on Defendants

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of unconstitutional convictions is limited, while expungement would protect Plaintiffs

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from significant harm. See supra Pt. III.C.3.

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E.

The Court Should Grant an Injunction of Sufficient Scope to Ensure


Effective Relief to Plaintiffs

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The permanent injunction sought by Plaintiffs Puente and Rev. Frederick-Gray,

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Burnette and Tamayo should prohibit the County Defendants from

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enforcing A.R.S. 13-2009(A)(3), the portion of A.R.S. 13-2008(A) that addresses

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actions committed with the intent to obtain or continue employment, or A.R.S. 13-

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2002 against individuals who commit fraud: (1) as part of the employment verification

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process, and/or (2) to otherwise demonstrate authorization to work under federal

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Mich. 1971).
Plaintiffs Cervantes Arreola and Estrada Fernandez were only in custody for
purposes of habeas jurisdiction for a short period of time. See SOF at 218-21 (Ms.
Cervantes Arreola was on probation for seven months following entry of judgment and
sentencing); X (Ms. Estrada Fernandez was on probation for four and a half months
following entry of judgment and sentencing); 28 U.S.C. 2254 (providing habeas
jurisdiction to consider claims brought by individuals in custody in violation of the
Constitution or laws or treaties of the United States) (emphasis added). It was not
possible for them to exhaust their Arizona state court remedies by litigating a motion for
post-conviction relief in seven months or less. SOF at 222-23. Thus, they cannot be
faulted for not having brought their challenge through a habeas petition. Nor, obviously,
can they file a habeas petition now.
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Case 2:14-cv-01356-DGC Document 519 Filed 07/01/16 Page 46 of 49

immigration law. This injunction should not be limited to the application of those laws to

the named Plaintiffs. As the Ninth Circuit has held, an injunction may extend benefits to

persons other than those before the Court if such breadth is necessary to give prevailing

parties the relief to which they are entitled. Easyriders Freedom F.I.G.H.T. v. Hannigan,

92 F.3d 1486, 1501-02 (9th Cir. 1996). Here, Puente asks for relief on behalf of its

membership; it would be impractical to require law enforcement officials to distinguish

between targets of enforcement who are Puente members or not. Further, it would not be

feasible to segregate the excise tax revenues paid by the taxpayer Plaintiffs and not apply

them towards enforcement. Under such circumstances, a less than complete . . .

10

injunction would deny Plaintiffs effective relief. Doc. 133 at 30 n.10; see also Lavan v.

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City of Los Angeles , 797 F. Supp. 2d 1005, 1019 (C.D. Cal. 2011) (granting complete

12

injunction where it would likely be impossible for the City to determine whose property

13

is being confiscated); Bresgal v. Brock, 843 F. 2d 1163, 1169 (9th Cir. 1987) (endorsing

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nationwide relief not limited to individual plaintiffs).


Given the long history of enforcement by these Defendants and Sheriff Arpaios

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demonstrated difficulty with abiding by some federal court orders, see Melendres v.

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Arpaio, No. CV-07-2513-PHX-GMS, 2016 WL 2783715 (D. Ariz. May 13, 2016),

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Plaintiffs request thatif the Court grants summary judgment on their as-applied

19

claimthe Parties be permitted to submit further briefing or argument on any additional

20

implementation and monitoring mechanisms that may be appropriate to ensure

21

compliance. See Swann v. Charlotte-Mecklenberg Bd. of Educ., 402 U.S. 1, 15 (1971)

22

(Once a right and a violation [of the Constitution] have been shown, the scope of a

23

district courts equitable powers to remedy past wrongs is broad, for breadth and

24

flexibility are inherent in equitable remedies.); see also Sharp v. Weston, 233 F.3d 1166,

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1173 (9th Cir. 2000).

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IV.

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CONCLUSION
For the reasons set forth herein, Plaintiffs request that the Court grant partial

summary judgment in their favor.


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Case 2:14-cv-01356-DGC Document 519 Filed 07/01/16 Page 47 of 49

1
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RESPECTFULLY SUBMITTED this 1st day of July, 2016.

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By

/s/ Anne Lai


Anne Lai
Sameer Ashar
University of California, Irvine School of
Law Immigrant Rights Clinic
401 E. Peltason Dr., Ste. 3500
Irvine, CA 92616-5479
Sarah Anchors
Hector Diaz
Edward J. Hermes
Jose A. Carrillo
QUARLES & BRADY LLP
Renaissance One
Two North Central Avenue
Phoenix, AZ 85004-2391
Jessica Karp Bansal
National Day Laborer Organizing
Network
675 S. Park View St., Ste. B
Los Angeles, CA 90057
Jessica Myers Vosburgh
National Day Laborer Organizing
Network
2104 Chapel Hill Rd.
Birmingham, AL 35216
Cindy Pnuco
Joshua Piovia-Scott
Dan Stormer
Hadsell Stormer & Renick LLP
128 North Fair Oaks Ave.
Pasadena, CA 91103
Daniel J. Pochoda
ACLU Foundation of Arizona
3707 N. 7th St., Ste. 235
Phoenix, AZ 85014
Ray A. Ybarra Maldonado

Law Office of Ray A. Ybarra


Maldonado, PLC
2701 E. Thomas Rd., Ste. A
Phoenix, AZ 85016

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Case 2:14-cv-01356-DGC Document 519 Filed 07/01/16 Page 48 of 49

Attorneys for Plaintiffs


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On the brief:
Jonathan Langer
Tryphena Liu
Edgar Navarrette
Mallory Whitelaw

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Case 2:14-cv-01356-DGC Document 519 Filed 07/01/16 Page 49 of 49

CERTIFICATE OF SERVICE

I hereby certify that on the 1st day of July, 2016, I electronically transmitted the

attached document to the Clerk's Office using the CM/ECF System for filing. Notice of

this filing will be sent by e-mail to all parties by operation of the Court's electronic filing

system or by mail as indicated on the Notice of Electronic Filing.

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Dated: July 1, 2016


Phoenix, Arizona

/s/ Debbie Hitchens


Debbie Hitchens

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Puente Arizona et al v. Arpaio et al, Docket No. 2:14-cv-01356 (D. Ariz. Jun 18, 2014), Court Docket

General Information

Court

United States District Court for the District of Arizona; United


States District Court for the District of Arizona

Federal Nature of Suit

Constitutionality of State Statutes[950]

Docket Number

2:14-cv-01356

2016 The Bureau of National Affairs, Inc. All Rights Reserved. Terms of Service
// PAGE 50