KGUN9 On Your Side, Tucson News, Weather & SportsImmigration attorney: judge leaning to block SB1070's criminal provision

Immigration attorney: judge leaning to block SB1070's criminal provision

Reporter: Steve Nuñez

TUCSON (KGUN9-TV) - The SB1070 count down: minus four days and still no ruling from a federal judge on whether she will allow all or parts of the law to take effect. Immigration Attorney John Messing thinks he knows how it will play out. His theory? The law will take effect but not without the judge taking the teeth out of it.

Messing is documenting SB1070's court hearings including the federal government's case to block Arizona's immigration law. He says Judge Susan Bolton gave strong indication she's leaning toward blocking the law's provision that makes it a state crime if an illegal fails to "... carry an alien registration document...".   

"In other words, Arizona law says if you don't register in accordance with federal law then you've committed a crime under the state of Arizona," said Messing.

Messing points to a legal citation filed June 4th which cites the 1941 U.S. Supreme Court ruling, Hines vs. Davidowitz, 312 U.S. 52. Back then, Pennsylvania passed a law that made it a crime for aliens who couldn't "provide a (registration) card whenever... demanded by a police officer...".

The high court shot it down because federal law requires "one uniform national registration system... free from the possibility of inquisitorial practices and police surveillance."

Messing said, "At one point the attorney for the state said to her I guess I haven't convinced you on that point so I don't think that that's a great secret."

Nine On Your Side wanted to know how SB1070 would look without the criminal element.  Messing said immigration policy would be like it is today: officers will continue to call ICE or border patrol to arrest illegal's.

"In Arizona what would happen is that you might still have the mandatory detention upon reasonable suspicion or illegal status in the country but no law enforcement officer could actually make an arrest under Arizona law," Messing said.

Messing also points out that no one has challenged the 1941 U.S. Supreme Court ruling. Today, it stands as case law.  

Judge Bolton could do one of the following: she could issue an injunction, keeping the law from taking effect. She could block just parts of the law. Or, she could do nothing. However, she can not strike down the entire law. 

No matter how judge Bolton rules, both sides have said they'll immediately file an appeal to further challenge her ruling.