Valle del Sol v. Goddard (Arizona Contractors v. Candelaria)

The Legal Arizona Workers Act requires all employers in the state of Arizona to verify their employees’ immigration status through a voluntary federal Electronic Employment Verification System, known as “E-Verify.” The Social Security Administration’s own studies have shown that the E-Verify database contains incorrect information for nearly 13 million U.S.-born citizens and almost 10% of naturalized citizens. Employers face serious penalties and fines if they knowingly hire someone who is not legally authorized to work according to the information obtained through the E-Verify database. As a result of the erroneous information obtained through the E-Verify system, hundreds of thousands of legal workers have been and will continue to be wrongfully denied employment.

On December 12, 2007, MALDEF, the ACLU, and the law firm of Altshuler Berzon filed a lawsuit challenging the Arizona employer sanctions law. A related lawsuit was filed by business association plaintiffs on December 10, 2007, and the cases were consolidated going forward.

On February 7, 2008, Judge Neil V. Wake dismissed the cases for lack of subject matter jurisdiction and stated that there was no justiciable case or controversy before the Court. Judge Wake held that the federal Immigration Reform and Control Act (IRCA) expressly authorizes, rather than preempts, the employer licensing sanctions in the Act. Judge Wake also found that the Act’s requirement that all Arizona employers participate in E-Verify does not conflict with the purposes and objectives of Congress, and is therefore not preempted under the Supremacy Clause. Judge Wake also held that the Act provides sufficient due process to Arizona employers charged with violating the Act.

Plaintiffs appealed Judge Wake’s decision to the Ninth Circuit Court of Appeals. Oral argument was held before a three-judge panel at the Ninth Circuit Court of Appeals in San Francisco, California on June 12, 2008. On September 17, 2008, the Ninth Circuit Court of Appeals ruled on the consolidated appeals. In upholding Judge Neil Wake’s decision at the trial court level, the appellate panel held that Judge Wake properly found that the Legal Arizona Workers Act (LAWA) is not preempted by the IRCA. The panel agreed with Judge Wake’s finding that LAWA is not expressly preempted under 8 USC 1324(a)(h)(2), because it falls within the statutory savings clause which permits states to enact “licensing or similar laws.” The panel also upheld Judge Wake’s ruling that Arizona’s decision to mandate that all employers in the state use E-Verify is not conflict preempted, because Congress did not expressly forbid States from making E-Verify mandatory when they made participation voluntary. On October 1, 2008, Appellants filed a Petition for Hearing and Rehearing En Banc with the Ninth Circuit Court of Appeals, and is currently pending before that Court.

Civil Rights Coalition Challenges Arizona Employer Sanctions Law

Lawsuit alleges new state law will conflict with federal immigration law and the U.S. Constitution

September 04, 2007

PHOENIX, AZ — The Mexican American Legal Defense and Educational Fund (MALDEF) joined the American Civil Liberties Union, the ACLU of Arizona, the law firm of Altshuler Berzon and the National Immigration Law Center (NILC) in filing a lawsuit in federal court today on behalf of Chicanos Por La Causa and Somos America challenging Arizona’s new law that threatens employers with permanent loss of business licenses based on invalid new state requirements.

The lawsuit alleges that the new law conflicts with federal immigration law and the U.S. Constitution. The “Legal Arizona Workers Act” requires that employers verify the employment eligibility of an employee through a flawed federal verification database (the Basic Pilot Program) that was intended by Congress to be voluntary and imposes sanctions beyond what the federal government allows. “Under federal law, participation in the Basic Pilot Program is voluntary. By requiring Arizona employers to use this program, the Legal Arizona Workers Act runs afoul of the Constitution and will subject all Arizona employees regardless of legal status – Latinos in particular – to potential discrimination based on their race, ethnicity, or national origin,” said Kristina Campbell, Acting Los Angeles Regional Counsel and lead MALDEF attorney on the case.

“Arizona’s statute attempts to override national law and policy on the employment of immigrants,” said Omar Jadwat, a staff attorney at the ACLU Immigrants’ Rights Project. “If states like Arizona could pass their own immigration laws, workers and employers alike would face a patchwork of conflicting and incompatible requirements based on local politics and conditions, and it would be impossible to have a meaningful national policy.”

The state law also violates the Constitution’s 14th Amendment because it deprives workers of due process, according to the groups filing the lawsuit. “It becomes easier and safer for Arizona business owners to discriminate against anyone they suspect of being foreign rather than risk the fines and penalties associated with a failure to comply with this law,” said Alessandra Soler Meetze, Executive Director of the ACLU of Arizona. “That’s not the way this country works. We make laws to prohibit discrimination. We don’t create laws that require people to discriminate.”

The law requires employers to sign onto the Basic Pilot Program, recently renamed “E-Verify,” a voluntary, experimental program that has gradually expanded to cover approximately 17,000 employers nationwide. “The Basic Pilot has been plagued with problems, including failing to identify legally authorized workers due to its reliance on the error-ridden databases of the Social Security Administration and the Department of Homeland Security, and the DHS’ lack of resources to monitor employer compliance with the rules of the program,” said Linton Joaquin, Executive Director of NILC, also representing the plaintiffs on the case. “The Arizona law requires 130,000 – 150,000 Arizona employers to join this flawed program, and this is truly a recipe for disaster and will cause grievous harm to legally authorized workers.”

In addition to Campbell, Jadwat, and Joaquin, lawyers on the case include Stephen Berzon and Jonathan Weissglass of Altshuler Berzon; Cynthia Valenzuela of MALDEF; Marielena Hincapié, Monica T. Guizar, and Karen C. Tumlin of NILC; Daniel Pochoda of the ACLU of Arizona; and Lucas Guttentag and Jennifer Chang of the ACLU Immigrants’ Rights Project.