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State v. Martinez

Supreme Court of Iowa

June 9, 2017

STATE OF IOWA, Appellee,
v.
MARTHA ARACELY MARTINEZ, Appellant.

         Appeal from the Iowa District Court for Muscatine County, Stuart P. Werling, Judge.

         Defendant seeks interlocutory review of denial of motion to dismiss. REVERSED AND REMANDED WITH DIRECTIONS.

          Philip B. Mears of Mears Law Office, Iowa City, for appellant.

          Thomas J. Miller, Attorney General, Darrel Mullins, Assistant Attorney General, and Alan R. Ostergren, County Attorney, for appellee.

          APPEL, Justice.

         In this case, we are called upon to determine if an undocumented noncitizen brought to Iowa as an eleven-year-old child by her parents, educated in Iowa public schools, who has lived in Iowa continuously, who is a mother of four children who are citizens of the United States, and who applied for and was granted deferred action under the Department of Homeland Security's Deferred Action for Childhood Arrivals (DACA)[1] program, may be prosecuted by State authorities for using false documents to obtain federal employment authorization even though federal law pervasively regulates employment of undocumented noncitizens. The answer to this question is no.

         I. Factual Background and Proceedings.

         A. Facts Surrounding Martha Martinez.

         Martha Martinez came to Muscatine with her parents in 1997 when she was eleven years old. She attended Muscatine public schools and worked for several different employers in Muscatine County.

         When she was seventeen years old, Martinez applied for and obtained an Iowa driver's license. She used a birth certificate in the name of Diana Castaneda, a person with a social security number, to obtain the license. She renewed the license in 2008.

         In 2013, Martinez used her fictitious driver's license and a social security card in the same name to obtain employment at Packer Sanitation, a business located in Muscatine County. The documents were used to obtain what is referred to as I-9 paperwork.

         Also in 2013, Martinez applied for and received temporary lawful immigration status from the Department of Homeland Security pursuant to the DACA program. Because she now had temporary lawful immigration status, she was able to obtain work authorization in her own name from the Department of Homeland Security.

         Because of her lawful status, Martinez was now eligible, under Iowa law, to obtain an Iowa driver's license in her own name. In March 2014, she applied for a license in her own name, using her newly issued social security card.

         The Iowa Department of Transportation (IDOT), apparently using facial recognition software, noted a similarity between her photograph taken in 2014 and earlier photographs taken when she obtained her driver's license in 2003 and 2008. As a result, IDOT commenced an investigation.

         According to the notes of the IDOT investigator, a woman appeared at the Iowa City drivers' license station on May 2, 2003, with a California birth certificate in the name of Diana Casteneda. She presented two rent receipts as proof of residency in West Liberty. On October 28, 2008, a woman appeared at the Iowa City drivers' license station and applied for an Iowa ID using the name of Diana Castaneda.

         On March 6, 2014, a woman appeared at the Iowa City drivers' license station and applied for an Iowa driver's license. The person presented an ID and employment authorization card in the name of Martha Martinez. The photograph of Martinez, however, appeared to match the photograph of Diana Castaneda from March 2, 2003, and October 28, 2008.

         The investigator determined that wages were being obtained by Diana Castaneda at Packer Sanitation. The investigator contacted Packer Sanitation and obtained Diana Castaneda's I-9, copies of her Iowa ID, social security card, and payroll history showing she obtained wages in excess of $1000. The investigator contacted immigration authorities and learned that Martinez had a valid employment authorization card.

         The investigator contacted Martinez by phone. Martinez admitted she had obtained the false IDs in 2003 and 2008. She told the investigator she came to the United States as a child and now had three children and was pregnant with a fourth child. She borrowed a birth certificate in the name of Diana Castaneda but did not know her. She had been recently working but had quit due to her pregnancy. She admitted prior employment under the name and social security number of Diana Castaneda. The investigator informed Martinez that he would recommend she be charged with identity theft. The investigator thanked Martinez for being honest and cooperative.

         B. Iowa Criminal Proceedings.

         The State filed two criminal charges against Martinez. Count I alleged the crime of identity theft under Iowa Code section 715A.8 (2013). This Code provision states, "A person commits the offense of identity theft if the person fraudulently uses or attempts to fraudulently use identification information of another person, with the intent to obtain credit, property, services, or other benefit." Iowa Code § 715A.8(2). If the value of the credit, property, or services exceeds one thousand dollars, the person commits a class "D" felony. Id. § 715A.8(3). If the value of the credit, property, or services does not exceed one thousand dollars, the person commits an aggravated misdemeanor. Id. According to the minutes of testimony, the basis for the intent to obtain "credit, property, or services" was employment at Packer Sanitation earning wages in excess of $1000.

         Count II alleged the crime of forgery under Iowa Code section 715A.2(1). This Code provision declares that a person is guilty of the crime of forgery if, with intent to defraud or injure anyone, a person "[m]akes, completes, executes, authenticates, issues, or transfers a writing so that it purports to be the act of another who did not authorize that act." Id. § 715A.2(1)(b). The provision further provides that forgery is a class "D" felony if the writing is or purports to be "[a] document prescribed by statute, rule, or regulation for entry into or as evidence of authorized stay or employment in the United States." Id. § 715A.2(2)(a)(4).

         Martinez filed a motion to dismiss. Citing Arizona v. United States, Martinez argued that federal law preempted her prosecution under the Iowa identity theft and forgery statutes, both on their face and as applied. 567 U.S. 387, ___, 132 S.Ct. 2492, 2510 (2012). The State resisted. The State distinguished Arizona, noting that in that case, the Arizona statute specifically criminalized failure to comply with federal alien registration requirements while the statutes under which Martinez was charged are independent of federal law.

         The district court denied the motion to dismiss. According to the court, the charges of identity theft and forgery were "state crimes independent of Defendant's immigration status." In prosecuting Martinez, the court stated, the State was not acting to enforce or attack federal immigration law. Therefore, Martinez's prosecution was not preempted by federal law.

         Martinez sought interlocutory review. We granted the application.

         II. Discussion.

         A. Overview of Federal Immigration Law Related to Unauthorized Employment of Illegal Aliens.

         1. Introduction.

         "The Government of the United States has broad, undoubted power over the subject of immigration and the status of aliens." Id. at ___, 132 S.Ct. at 2498. This broad authority is in part based upon the federal government's power to "establish a[] uniform Rule of Naturalization." Id. (quoting U.S. Const. art. I, § 8, cl. 4). It is also based upon the federal government's inherent power as a sovereign to control and conduct relations with foreign governments. Id. As demonstrated by an amicus brief in Arizona filed by sixteen nations, immigration policy can affect trade, investment, tourism, and diplomatic relations for the entire Nation as well as the perceptions and expectations of aliens on this country who seek full protection of its law. See Mot. of Argentina, Bolivia, Brazil, Chile, Colombia, Costa Rica, Dominican Republic, Ecuador, El Salvador, Guatemala, Honduras, Nicaragua, Panama, Paraguay, Peru and Uruguay for Leave to Join the United Mexican States as Amici Curiae in Supp. of Resp't at 6, Arizona, 567 U.S. 387, 132 S.Ct. 2492 (2012) (No. 11-182), 2012 WL 1114006, at *6. Current national and international debate regarding building a wall on our southern border and the circumstances under which noncitizens from other nations may enter the United States, along with discussions about who should pay for the wall, has an impact on domestic immigration and international relations.

         2. Early regulation and plenary authority.

         The United States Supreme Court has observed that the supremacy of national power in the general field of foreign affairs-including immigration, naturalization, and deportation-is made clear by the United States Constitution. Hines v. Davidowitz, 312 U.S. 52, 62, 61 S.Ct. 399, 401-02 (1941). Yet, until 1891, no comprehensive immigration legislation existed, and a number of states enacted discriminatory legislation. See Kevin J. Fandl, Putting States Out of the Immigration Law Enforcement Business, 9 Harv. L. & Pol'y Rev. 529, 530-31 (2015) [hereinafter Fandl]. Responding to discriminatory legislation against Chinese aliens, the United States Supreme Court in Chy Long v. Freeman, 92 U.S. 275, 280 (1875), and Fong Yue Ting v. United States, 149 U.S. 698, 707, 13 S.Ct. 1016, 1019 (1893), emphasized the need for "absolute and unqualified" power to deport aliens in the interest of national sovereignty. Fandl, 9 Harv. L. & Pol'y Rev. at 531-32 (quoting Fong Yue Ting, 149 U.S. at 707, 13 S.Ct. at 1019).

         3. Overview of Immigration and Nationality Act.

         Congress exercised its power over immigration through enactment of the Immigration and Nationality Act (INA) which, along with other enactments, provides a "comprehensive federal statutory scheme for regulation of immigration and naturalization" and sets "the terms and conditions of admission to the country and the subsequent treatment of aliens lawfully in the country." Chamber of Commerce of U.S. v. Whiting, 563 U.S. 582, 587, 131 S.Ct. 1968, 1973 (2011) (quoting De Canas v. Bica, 424 U.S. 351, 353, 359, 96 S.Ct. 933, 935, 938 (1976), superseded by statute, Immigration Reform and Control Act of 1986, Pub. L. No. 99-603, 100 Stat. 3359, as recognized in Chamber of Commerce, 563 U.S. at 590, 131 S.Ct. at 1975); see 8 U.S.C. §§ 1101-1537.

         By way of brief summary, the INA provides criteria by which "aliens, " defined as "any person not a citizen or national of the United States, " may enter, visit, and reside in the country. 8 U.S.C. § 1101(a)(3); see Lozano v. City of Hazelton, 620 F.3d 170, 196 (3d Cir. 2010), vacated on other grounds by 563 U.S. 1030, 131 S.Ct. 2958 (2011). The INA establishes three categories of aliens: (1) nonimmigrants, (2) immigrants, and (3) refugees and asylees. 8 U.S.C. §§ 1101(a)(15), 1151, 1157-58; see Lozano, 620 F.3d at 196. In order to be legally admitted to the United States, aliens must meet the eligibility criteria of one of these categories. Lozano, 620 F.3d at 196. Certain aliens who have health conditions, have been convicted of certain crimes, present security concerns, or have been recently removed from the United States are inadmissible. 8 U.S.C. § 1182.

         Persons in the United States unlawfully are subject to removal, with removal proceedings under the INA setting forth the "sole and exclusive procedure for determining whether an alien may be admitted to the United States or, if the alien has been so admitted, removed from the United States." Id. § 1229a(a)(3). INA removal procedures provide for notice, the opportunity to be heard, the opportunity to be represented by counsel, and the possibility of discretionary relief from removal including postponement of removal, cancellation of removal, or even adjustment of status to that of lawful permanent residency. Id. §§ 1229a(c), 1229b.

         4. Immigration Reform and Control Act.

         The INA as originally enacted contained no specific prohibition regarding the employment of aliens which was, as noted by the Supreme Court, at most a "peripheral concern." De Canas, 424 U.S. at 360, 96 S.Ct. at 939. That changed, however, with the enactment of the Immigration Reform and Control Act (IRCA) in 1986. Arizona, 567 U.S. at ___, 132 S.Ct. at 2504; see 8 U.S.C. §§ 1324a-1324b. The IRCA established "a comprehensive framework for 'combating the employment of illegal aliens.' " Arizona, 567 U.S. at ___, 132 S.Ct. at 2504 (quoting Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 147, 122 S.Ct. 1275, 1282 (2002)). Under the IRCA, Congress declared it unlawful to knowingly hire or continue to employ an unauthorized alien without complying with the work authorization verification system created by the statute. 8 U.S.C. § 1324a(a)(1)-(2).

         In order to verify work authorization, the employer must attest under penalty of perjury that an employee is not an unauthorized alien by physically examining documents such as a passport, permanent resident card, driver's license, or other comparable document, and confirm that those documents reasonably appear to be genuine. Id. § 1324a(b)(1)(A)-(D). On the form known as the I-9, employees must also make an attestation of their authorized work status. Id. § 1324a(b)(2).

         With respect to the I-9, Congress has provided that "any information contained in or appended to such form, may not be used for purposes other than for enforcement of" the INA and enumerated federal laws regarding false statements, identification-document fraud, fraud in the federal employment verification system, and perjury. Id. § 1324a(b)(5). As noted by the United States Supreme Court in Arizona, "Congress has made clear . . . that any information employees submit to indicate their work status 'may not be used' for purposes other than prosecution under specified federal criminal statutes." Arizona, 567 U.S. at ___, 132 S.Ct. at 2504 (emphasis added) (quoting 8 U.S.C. § 1324a(b)(5)).

         Federal employment authorization verification requirements are enforced "through criminal penalties and an escalating series of civil penalties tied to the number of times an employer has violated the provisions." Id.; see 8 U.S.C. § 1324a(e)-(f). Congress did not authorize criminal penalties for aliens seeking or engaging in unauthorized employment.

         Congress authorized imposition of a range of penalties on aliens who commit employment-authorization-related fraud in the IRCA. Congress authorized federal criminal penalties against a person who knowingly uses a document not lawfully issued to the person, a false document, or a false attestation "for the purpose of satisfying a requirement" of the federal employment verification system. 18 U.S.C. § 1546(b). Violators of this criminal provision may be sentenced for up to five years in prison. Id. Congress also authorized federal criminal penalties against a person who uses or possesses an immigration document, including one that demonstrates federal work authorization, "knowing it to be forged, counterfeited, altered, or falsely made, or to have been procured . . . by fraud or unlawfully obtained." Id. § 1546(a). Persons convicted under this statute, in most cases, may be imprisoned for up to ten years. Id. In addition to the criminal penalties, Congress authorized civil penalties for document fraud involving immigration requirements, include the work authorization requirement. 8 U.S.C. § 1324c(a)(1)-(4), (d)(3).

         Finally, Congress authorized immigration penalties for persons involved in document fraud. For example, Congress authorized removal of persons convicted of federal criminal document fraud. Id. § 1227(a)(3)(B)-(C); id. § 1324c; 18 U.S.C. § 1546. Further, federal law may preclude aliens from becoming a lawful permanent resident if the alien was employed while he was an "unauthorized alien." 8 U.S.C. § 1255(c)(2).

         5. Illegal Immigration Reform and Immigrant Responsibility Act.

         In 1996, Congress amended the INA by enacting the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104-208, 110 Stat. 3009 (codified as amended in various sections of 8 U.S.C.). The IIRIRA called for improvements in the employer verification system and required that the Attorney General and later the Director of Homeland Security to develop pilot programs designed to improve employment eligibility confirmation process. See Lozano, 620 F.3d at 200. Ultimately, only one of the pilot programs, E-Verify, was reauthorized and expanded to all fifty states. Id. The use of E-Verify rather than the ordinary I-9 process remains voluntary, with a few exceptions. Id.

         The IIRIRA authorized the Department of Homeland Security to enter into agreements with state and local law enforcement agencies to enforce federal immigration law. 8 U.S.C. § 1357(g). Under this provision, state and local governments may assist federal enforcement if (1) there is a written agreement, (2) local cooperating authorities receive appropriate training, and (3) local authorities operate under the supervision of federal immigration officials. Id.

         6. Federal penalties for immigration document fraud.

         The various federal statutes establish a wide range of penalties for document fraud related to immigration. Document fraud in immigration matters is prohibited and subject to an administrative enforcement regime. Id. § 1324c. Criminal penalties for fraud and misuse of visas, permits, and other documents are provided in 18 U.S.C. § 1546. In addition, the Identity Theft Penalty Enhancement Act imposes more severe consequences on those who use social security numbers, credit card accounts, or other information in connection with a felony, including violation of immigration law. 18 U.S.C. § 1028A. However, Congress exempted false use of social security numbers for work in certain situations from claims of fraud under the Social Security Act. 42 U.S.C. § 408(e).

         7. Discretion in enforcement of immigration laws.

         Under federal immigration laws, discretion is vested in federal officials in two ways. Federal immigration law is replete with statutory provisions explicitly vesting discretion in the executive branch. See, e.g., Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 483-84, 119 S.Ct. 936, 943 (1999) (stating in "the initiation or prosecution of various stages in the deportation process . . . [a]t each stage the Executive has discretion to abandon the endeavor").

         Congress has also delegated to the executive branch the determination of when a noncitizen may work. 8 U.S.C. § 1324a(h)(3) (removing from definition of "unauthorized alien" those who the Attorney General authorized to be employed even when they are not lawfully admitted for permanent residence). The implementing regulations provide that an alien without lawful status may still be granted work authorization when the administrative convenience gives cases lower priority and an alien establishes economic necessity. 8 C.F.R. § 274a.12(c)(14) (2016).

         Further, the United States Supreme Court has "recognized on several occasions over many years that an agency's decision not to prosecute or enforce, whether through civil or criminal process, is a decision generally committed to an agency's absolute discretion." Heckler v. Chaney, 470 U.S. 821, 831, 105 S.Ct. 1649, 1655 (1985). In exercising discretion, the United States Supreme Court has recognized that the executive engages in the "balancing of a number of factors which are peculiarly within its expertise." Id. As a result, the cases generally recognize that immigration laws vest substantial discretion in the executive branch with respect to enforcement. See Ariz. Dream Act Coal. v. Brewer, 855 F.3d 957, 967 (9th Cir. 2017), petition for cert. filed, 85 U.S.L.W. 3471, (U.S. Mar. 29, 2017) (No. 16-1180).

         B. Implementation of Supremacy Clause Through Principles of Preemption.

         Under the Supremacy Clause of the United States Constitution, "the Laws of the United States . . . shall be the supreme Law of the Land . . . any Thing in the . . . Laws of any State to the Contrary notwithstanding." U.S. Const. art. VI, cl. 2. Since the days of John Marshall, the Supremacy Clause has been interpreted to mean that even if a state statute is enacted in the execution of acknowledged state powers, state laws that "interfere with, or are contrary to the laws of Congress" must yield to federal law. Gibbons v. Ogden, 22 U.S. 1, 211 (1824). The United States Supreme Court has implemented the Supremacy Clause through the development of its preemption doctrine. Fid. Fed. Sav. & Loan Ass'n v. de la Cuesta, 458 U.S. 141, 152, 102 S.Ct. 3014, 3022 (1982).

         The contours of the doctrine of preemption, if sometimes difficult to apply, are well established. The United States Supreme Court has developed two broad categories of preemption of state law: express and implied. Id. at 152-53, 102 S.Ct. at 3022. Express preemption occurs when the federal statutory text clearly provides that congressional authority is exclusive. Jones v. Rath Packing Co., 430 U.S. 519, 525, 97 S.Ct. 1305, 1309 (1977). When express preemption is implicated, close examination of statutory language is ordinarily required to implement congressional intent. CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 664, 113 S.Ct. 1732, 1737 (1993).

         In addition, the Supreme Court has recognized two types of implied preemption-field preemption and conflict preemption-which arise even when there is no express provision in the federal statute preempting local law. Oneok, Inc. v. Learjet, Inc., 575 U.S. ___, ___, 135 S.Ct. 1591, 1595 (2015). Field preemption arises when Congress has enacted a comprehensive scheme. Pac. Gas & Elec. Co. v. State Energy Res. Conservation & Dev. Comm'n, 461 U.S. 190, 203-04, 103 S.Ct. 1713, 1722 (1983). In these cases, congressional intent to preempt can be inferred from a framework of regulation "so pervasive . . . that Congress left no room for the States to supplement it" or where there is a "federal interest . . . so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject." Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 1152 (1947).

         Conflict preemption occurs when a state law conflicts with a federal provision. Wis. Pub. Intervenor v. Mortier, 501 U.S. 597, 605, 111 S.Ct. 2476, 2482 (1991). There are two variations of conflict preemption. Conflict preemption occurs when "compliance with both federal and state regulation is a physical impossibility." Fla. Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-43, 83 S.Ct. 1210, 1217 (1963). Conflict preemption also is imminent whenever two separate remedies are brought to bear on the same activity. Wis. Dep't of Indus., Labor & Human Relations v. Gould Inc., 475 U.S. 282, 286, 106 S.Ct. 1057, 1061 (1986).

         Conflict preemption also occurs when a state law is an obstacle to the accomplishment of a federal purpose. Hines, 312 U.S. at 66-67, 61 S.Ct. at 404. In this regard, the United States Supreme Court has said, "What is a sufficient obstacle is a matter of judgment, to be informed by examining the federal statute as a whole and identifying its purpose and intended effects." Crosby v. Nat'l Foreign Trade Council, 530 U.S. 363, 373, 120 S.Ct. 2288, 2294 (2000).

         C. Application of Preemption Principles to Immigration Law.

         1. Overview of United States Supreme Court preemption precedent in immigration cases.

         In Hines, the United States Supreme Court considered the validity of a Pennsylvania alien registration statute. 312 U.S. at 59, 61 S.Ct. at 400. A year earlier, Congress had enacted a Federal Alien Registration Act. Id. at 60, 61 S.Ct. at 400. The Hines Court noted that "the regulation of aliens is so intimately blended and intertwined with responsibilities of the national government that where it acts, and the state also acts on the same subject, 'the act of [C]ongress . . . is supreme.' " Id. at 66, 61 S.Ct. at 403-04 (quoting Gibbons, 22 U.S. at 211). The Hines court canvassed the various approaches to preemption, noting that none of the formulations or expressions "provides an infallible constitutional test or an exclusive constitutional yardstick." Id. at 67, 61 S.Ct. at 404. And while the federal law did not have an express preemption provision, the Hines Court concluded that the Pennsylvania law "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." Id.

         A more recent immigration case dealing with federal preemption is De Canas, 424 U.S. 351, 96 S.Ct. 933. In De Canas, the Supreme Court considered whether federal law prohibited California from enacting a statute which forbade an employer from knowingly employing an alien who was not entitled to lawful residence in the United States if such employment would have adverse effect on lawful resident workers. Id. at 352-53, 96 S.Ct. at 935. A California appellate court held that the statute was unconstitutional, noting that "in the area of immigration and naturalization, congressional power is exclusive." De Canas v. Bica, 115 Cal.Rptr. 444, 446 (Ct. App. 1974). The California court further held that state regulatory power was foreclosed when Congress "as an incident of national sovereignty" enacted the INA as a comprehensive scheme governing all aspects of immigration and naturalization, including the employment of aliens and specifically declined to adopt sanctions on employers. Id.

         The De Canas Court held that the California statute was not preempted by the INA. 424 U.S. at 365, 96 S.Ct. at 941. The Court concluded preemption could not be required because "the nature of the regulated subject matter permits no other conclusion" nor because "Congress has unmistakably so ordained." Id. at 356, 96 S.Ct. at 937 (quoting Fla. Lime, 424 U.S. at 142, 83 S.Ct. at 1217). The Court was unwilling to presume that in enacting the INA, Congress intended to oust state authority to regulate the employment of immigrants in a manner consistent with federal law. Id. at 357, 96 S.Ct. at 937. The Court declined to consider whether the California statute was "an obstacle to the accomplishment and execution of the full purposes and objectives of Congress" because the issue was not addressed below. Id. at 363, 96 S.Ct. at 940 (quoting Hines, 312 U.S. at 67, 61 S.Ct. at 404). In light of the vibrancy of obstacle preemption in immigration law, De Canas thus was a limited precedent from the outset.

         In Hoffman Plastic, the United States Supreme Court considered whether an unauthorized immigrant could receive back pay when the individual was unlawfully terminated in retaliation for participating in collective bargaining. 535 U.S. at 140, 122 S.Ct. at 1278. In a battle between federal agencies, the Supreme Court held that a National Labor Relations Board remedy for an illegal alien would "unduly trench" upon the IRCA. Id. at 151, 122 S.Ct. at 1284. Although not a preemption case, Hoffman Plastic declared that "combating the employment of illegal aliens . . . [is] central to '[t]he policy of immigration law.' " Id. at 140, 122 S.Ct. at 1278 (quoting INS v. Nat'l Ctr. for Immigrants' Rights, Inc., 502 U.S. 183, 194 n.8, 112 S.Ct. 551, 558 n.8 (1991)).

         The most recent and most important United States Supreme Court case involving preemption in the context of immigration and employment is Chamber of Commerce, 563 U.S. 582, 131 S.Ct. 1968. In Chamber of Commerce, the Court considered a challenge to an Arizona law which allowed for the suspension and revocation of business licenses for employing illegal aliens and required all employers to verify the employment status of all employees using an internet-based system, E-Verify. Id. at 587, 131 S.Ct. at 1973. Unlike De Canas, which involved a preemption claim under the INA, the Chamber of Commerce case involved preemption under the IRCA. Id. at 588-89, 131 S.Ct. at 1974. The Chamber of Commerce Court ruled, however, that the Arizona regulation was within a "savings clause" of the IRCA, which provided that federal immigration law preempts "any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ . . . unauthorized aliens." Id. at 590, 611, 131 S.Ct. at 1975, 1987 (quoting 8 U.S.C. § 1324a(h)(2)).

         The last case is Arizona, 567 U.S. 387, 132 S.Ct. 2492. In Arizona, the United States challenged four provisions of an Arizona statute dubbed the Support Our Law Enforcement and Safe Neighbor's Act. Id. at ___, 132 S.Ct. at 2497. Two of the challenged provisions created new criminal offenses. Id. One relevant provision made failure to comply with alien registration requirements a state misdemeanor. Id. Another provision made it a misdemeanor for an unauthorized alien to seek or engage in work in the state. Id. at ___, 132 S.Ct. at 2497-98. Two other provisions gave arrest authority and investigative duties with respect to certain aliens to state and local law enforcement. Id. at ___, 132 S.Ct. at 2498.

         Justice Kennedy delivered the opinion of the Court. Id. at ___, 132 S.Ct. at 2497. Justice Kennedy began with a review of the broad scope of federal immigration policy. Id. at ___, 132 S.Ct. at 2498-99. Noting the impact of immigration policy on international relations, Justice Kennedy stressed that the federal governance of immigration status is "extensive and complex." Id. at ___, 132 S.Ct. at 2499. After canvassing the broad sweep of immigration provisions, Justice Kennedy emphasized that "[a] principal feature of the removal system is the broad discretion exercised by immigration officials." Id. Justice Kennedy explained,

Discretion in the enforcement of immigration law embraces immediate human concerns. Unauthorized workers trying to support their families, for example, likely pose less danger than alien smugglers or aliens who commit a serious crime. The equities of an individual case may turn on many factors, including whether the alien has children born in the United States, long ties to the community, or a record of distinguished military service.

Id.

         Justice Kennedy recognized, however, that states bear "many of the consequences of unlawful immigration." Id. at ___, 132 S.Ct. at 2500. Justice Kennedy cited statistics indicating that hundreds of thousands of deportable aliens are captured in Arizona each year. Id. Further, Justice Kennedy acknowledged studies reporting ...


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