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The U.S. Court of Appeals for the Ninth Circuit has dismissed
the appeal of a district court’s denial of a preliminary injunction
sought by plaintiffs challenging Arizona’s Proposition 200. The
plaintiffs -- a nonprofit organization, individual state and local
employees, and Arizona residents -- challenged provisions of the
initiative that require state and local government employees to verify
the identity and immigration status of benefits applicants and report
any “discovered” immigration law violations to federal immigration
authorities.
The proposition makes it a criminal offense
for a government employee to fail to make such a report, or for a
supervisor to fail to direct that employees make such reports. In Nov.
2004 the district court issued a temporary restraining order barring
implementation of these provisions (see “Court Temporarily Halts Arizona Initiative’s
Reporting Requirements for Benefit Applicants,”
Immigrants’ Rights Update,
Dec. 22, 2004, p. 7), but subsequently the court denied a preliminary
injunction and lifted the restraining order, and the plaintiffs appealed
(see “Arizona Allowed to Implement Prop. 200’s
Verification and Reporting Requirements as Litigation Continues,”
IRU, Feb. 10, 2005,
p. 12).
A three-judge panel of the Ninth Circuit
dismissed the appeal, finding that the plaintiffs lacked standing to
challenge these provisions. The court concluded that the plaintiffs had
not demonstrated “a ‘genuine threat of imminent prosecution’” (quoting
San Diego County Gun Rights Comm’n v. Reno, 98 F.3d 1121, 1126 (9th
Cir. 1996). The court concluded that because the plaintiffs lacked
standing, the district court lacked jurisdiction when it entered the
order denying a preliminary injunction. The court therefore vacated the
district court order and remanded the case, instructing the district
court to dismiss the case “without prejudice” (allowing the plaintiffs
to refile if they can show a genuine threat of real injury).
The appellate
court’s conclusion that the plaintiffs had not shown a likelihood of
injury may have been influenced by the fact that the initiative was
narrowly interpreted by the Arizona attorney general. In an opinion
issued Nov. 12, 2004, the attorney general determined that the
initiative applies only to programs governed by Title 46 of the state
code that do not fall within the federal welfare law’s exemptions --
programs for which undocumented immigrants were not eligible before the
proposition was enacted. The district court had accepted this
interpretation as consistent with the text and intent of the
initiative. Other pending litigation, brought by the Federation for
American Immigration Reform and the “Yes on Proposition 200 Committee,”
challenged this interpretation and sought to apply the initiative to a
broader array of benefit programs. The superior court dismissed this
case, but plaintiffs have appealed. Yes on Proposition 200 v.
Napolitano, No. CV2004-092999 (Maricopa County Sup. Ct., order
issued Mar. 14, 2005); AZ Court of Appeals Div. One, CA-CV 05-0235.
The Ninth
Circuit’s recent action vacating the district court’s order eliminates a
ruling that had been a troubling precedent. The district court opinion
rejected the argument that Prop. 200’s reporting requirements constitute
an impermissible state regulation of immigration -- a federal function
-- and declined to follow the reasoning of the federal court that
invalidated California’s Prop. 187.
Friendly House, et al. v. Janet
Napolitano, et al., No. 05-15005
(9th Cir. Aug. 9, 2005).
—By Linton Joaquin,
NILC executive director
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