Professional Documents
Culture Documents
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Plaintiffs,
v.
Joseph M. Arpaio, et al.,
Defendants.
No. 2:14-cv-01356-DGC
LODGED: PROPOSED PLAINTIFFS
REPLY TO THE COUNTY
DEFENDANTS JOINT RESPONSE IN
OPPOSITION TO PLAINTIFFS
MOTION FOR PARTIAL SUMMARY
JUDGMENT
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No. 2:14-cv-01356-DGC
PLAINTIFFS REPLY TO THE
COUNTY DEFENDANTS JOINT
RESPONSE IN OPPOSITION TO
PLAINTIFFS MOTION FOR PARTIAL
SUMMARY JUDGMENT
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TABLE OF CONTENTS
I. THE ONLY APPLICATIONS OF THE WORKER IDENTITY PROVISIONS
THAT THE NINTH CIRCUIT PRESERVED ARE THOSE WHERE AN
EMPLOYEE USES FALSE IDENTITY INFORMATION FOR NONIMMIGRATION REASONS ........................................................................................ 2
A. Defendants Are Not Helped by the Law of the Case Doctrine ............................ 2
B. The Ninth Circuit Identified Immigration Preemption Precedents Relevant to
Plaintiffs As-Applied Claim and Spoke Positively of the United States Amicus
Brief ............................................................................................................................ 6
II. THE COUNTY DEFENDANTS THEORY OF PREEMPTION, IN ADDITION
TO BEING UNSUPPORTED BY THE NINTH CIRCUITS DECISION, WOULD
RESULT IN AN END RUN AROUND FEDERAL LAW............................................ 6
A. The Federally Preempted Field Has Already Been Defined by This Court ......... 7
B. The County Defendants Proposed Scope of Preempted Activity Makes Little
Sense ........................................................................................................................... 8
C. The County Defendants Use of the Term Practical Effect Demonstrates a
Misunderstanding of Preemption Law ...................................................................... 11
D. Rather Than Respond to the United States Amicus Brief, the County
Defendants Take the Extreme Position That the Court Should Not Consider It At
All .......................................................................................................................... 13
E. The County Defendants Dismissal of the United States Position Parallels Their
Dismissal of Federal Interests ................................................................................... 15
III. THE EVIDENCE OF DEFENDANTS PRACTICES IS MORE THAN
SUFFICIENT TO WARRANT AN INJUNCTION ..................................................... 17
A. The County Defendants Have Brought Thousands of Cases Under The Worker
Identity Provisions and Forgery Statute Against Undocumented Immigrants
Pursuant to a Policy, Pattern and Practice ................................................................ 17
B. Defendants Raise Numerous Red Herring Issues to Distract the Court from the
Material Evidence ..................................................................................................... 19
C. There Is No Merit to the County Defendants Remaining Arguments Against an
Injunction .................................................................................................................. 19
IV. EXPUNGEMENT IS AN APPROPRIATE REMEDY FOR PLAINTIFFS SARA
CERVANTES ARREOLA AND ELIA ESTRADA FERNANDEZ ........................... 20
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Judgment (CD Br.), Docs. 569, 572, fails to demonstrate why a trial would be
that Defendants they have collectively brought thousands of cases under the worker
identity provisions1 and state forgery statute against undocumented immigrants over eight
years, and that the conduct these employees are being punished for is fraud they commit
law. Defendants cannot deny that these cases were brought pursuant to a policy, pattern
and practice sanctioned at the highest levels of their respective agencies. And Defendants
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numerous collateral issues for the Courts consideration. Insisting that preemption turns
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on the document that prosecutors choose to file charges on rather than the nature of the
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fraud being punished and whether it interferes with federal authorities ability to pursue a
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Committee, 531 U.S. 341, 348-49 (2012), Defendants point to statistical data about the
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number of instances where I-9s were charged alone or with another document.
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Suggesting that there can only be a conflict with federal law if federal authorities had
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sought to grant U/T visas or grant whistleblower protection to an arrested worker, they
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note that none of the Plaintiffs or witnesses in the case have received such status. And
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believing that enforcement activity is justified because Defendants seek retribution for
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crime victims, they refer to evidence of victim harms submitted with their motions for
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summary judgment. But none of the issues raised by Defendants change the core
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questions in the case. Only disputes over facts that might affect the outcome of the suit
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under the governing law will properly preclude the entry of summary judgment.
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Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 250 (1986).
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For consistency, Plaintiffs will use the same terminology and acronyms in this brief that
they have used in their summary briefing, including their Motion for Partial Summary
Judgment (Pls. MSJ), Doc. 538.
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waived their request, and given Defendant Arpaio and Montgomerys own statements,
there is a substantial risk that delay will result in additional constitutional violations. The
parties respective motions are fully briefed and the record is ripe for adjudication.
I.
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facial challenge to the worker identity provisions was not likely to succeed because the
provisions had at least some constitutional applications. Puente Arizona v. Arpaio, 821
F.3d 1098, 1108 (9th Cir. 2016). The point the Ninth Circuit disagreed with the District
Court on was how the facial challenge standard in United States v. Salerno, 481 U.S. 739
(1987) should be applied. Id. at 1104, 1108. It did not disturb this Courts other findings.
Predictably, Defendants try to make much of the reversal of the preliminary
injunction, citing to the law of the case doctrine and the mandate rule. See, e.g., CD Br.
at 4. But the Ninth Circuits opinion is not nearly as expansive as Defendants have made
it out to be, and those doctrines cannot help them. Indeed, the Ninth Circuit expressly left
open the possibility of an injunction on remand. Puente Arizona, 821 F.3d at 1105-08.
A. Defendants Are Not Helped by the Law of the Case Doctrine
The only constitutional applications of the worker identity provisions that the
Ninth Circuit discussed were those where a person uses anothers identity for nonimmigration reasons. Id. at 1104, 1106; see also CD Br. at 3. Defendants suggest that
the law of the case doctrine forecloses the possibility of an injunction, but they can
only get there by severely distorting what the Ninth Circuit did and defying the plain
meaning of its words.
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The law of the case doctrine generally precludes a court from reconsidering an
case. United States v. Thrasher, 483 F.3d 977, 981 (9th Cir. 2007) (internal citation
omitted). By definition, it applies only to issues actually decided; thus, dicta has no
preclusive effect. Milgard Tempering v. Selas Corp. of Am., 902 F.2d 703, 715-16 (9th
Cir. 1990). Here, Defendants propose that the Ninth Circuit has endorsed their view of
See, e.g., CD Br. at 4, 16. Thus, they surmise, they are free to use any documents other
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than the I-9regardless of the contextunder the law of the case. There are several
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First, it should be obvious that Defendants cannot make two terms synonymous
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enforcement . . . is not preempted where such enforcement does have a practical effect
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on immigration, i.e., the I-9 system.) (emphasis changed). Viewed in context, the Ninth
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Circuit clearly meant something a bit different. When it described the use of anothers
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individual, like a U.S. citizen, use[s] anothers identity to hide [his or her] criminal
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record. Puente Arizona, 821 F.3d at 1106; see also id. at 1102. In both places in the
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opinion where the Ninth Circuit referred to use for a non-immigration reason, it
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immediately followed those words with this example. Id.2 The Ninth Circuit was not
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talking about cases where an undocumented immigrant uses the same false identity
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information on a document other than the Form I-9. Indeed, even the system has to be
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understood as broader than just the Form I-9. See Pls MSJ at 15-16.
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While Plaintiffs do not impute any bad intent on Defendants, they note that in the one
place where Defendants included a block quote referencing the non-immigration
reasons language, they removed this example from the middle of the quote without
replacing it with any ellipses, giving the impression that the Ninth Circuit provided no
further context for what it meant by the term. See CD Br. at 7.
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reason[,] Puente Arizona, 821 F.3d 1102, 1106, has a plain meaning, one that is
inconsistent with Defendants theory. As the Ninth Circuit explained, people prosecuted
under the worker identity provisions for an immigration-related reason included those
who used a false identity to prove that they are authorized to work in the United States.
Id. at 1102. Plaintiffs have explained elsewhere that undocumented immigrants who
submit false identity information in the I-9 process have to complete other employment-
related paperwork to get or maintain a joband their use of the same false information
on those other documents to maintain the same identity is still being done for an
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immigration-related reason, to prove that they are authorized to work in the United
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States. Id.; see also Pls. MSJ at 16 & SOF 85. While Defendants suggest that the
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motivation for completing these non I-9 documents is to comply with employer business
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Plaintiffs Statement of Facts (CDCSOF) 85,3 that is the motivation for filling them
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out, not the motivation for filling them out with false identity information.
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do not dispute Plaintiffs Statement of Facts at 1, 3, 8, 12, 14, 28, 30-31, 42, 46, 49-50,
52-53, 55, 56-58, 61-62, 70, 72-73, 77-80, 84, 86-87, 89-91, 94-95, 97-98, 100-103, 106107, 109, 119, 122-128, 130-132, 134-136, 142, 145, 147, 151, 153, 156-213, 215-216,
218-223, and those paragraphs can therefore be deemed admitted for purposes of
[Plaintiffs] motion for summary judgment. LRCiv 56.1(b). Numerous other paragraphs
in Plaintiffs Statement of Facts are not genuinely disputed or disputed only in part.
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document use limitation to say that preemption cannot go broader than that. CD Br. at 12.
That misreads what the court was doing. In that part of the opinion, the court was
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Like the State, the County Defendants suggest that the Ninth Circuit somehow
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found state legislative purpose to be irrelevant. MC Br. at 6. Based on this, they argue
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that this Court should not consider materials Plaintiffs submitted with their moving
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But rather than treating state legislative purpose as extraneous, the Ninth Circuit affirmed
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that legislative purpose should be analyzed, and specifically invited Plaintiffs to produce
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legislative purpose of both H.B. 2779 and H.B. 2745 showed a desire to prevent
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unauthorized aliens from remaining in the state. Id. at 1106. It did not find any clear
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error on the District Courts part with respect to findings of fact. While Defendants would
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like to believe that the Ninth Circuit made a finding that the legislative purpose of the
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bills was to respond to the high numbers of FTC complaints, CDs Br. at 6, they
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misunderstand the role of an appellate court. The Ninth Circuit does not make factual
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findings in the first instance, and even if it could, the FTC reports do not appear in the
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Contrary to Defendants suggestion, CDs Br. at 6 n.4, the Ninth Circuit did not dismiss
evidence of purpose submitted by Plaintiffs from outside the legislative recordthe court
simply did not specifically call it out. Such evidence remains probative as before. Further,
the County Defendants objected to several of Plaintiffs SOFs discussing emails and
articles on grounds of hearsay. CDCSOF 16, 17, 19, 23. Those emails and articles,
however, are admissible as evidence of former Representative Pearces state of mind
and/or under FRE 801(d)(1) (declarant-witnesss prior statement).
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legislative record. Thus, the more plausible explanationand the only one that fits with
the evidenceis that the Ninth Circuit believed one of the effects of the worker identity
Contrary to Defendants assertions, the Ninth Circuit decision, rather than helping
precedents such as Valle del Sol, 732 F.3d 1006 (9th Cir. 2012), Arizona Dream Act
Coal. V. Brewer, 818 F.3d 901 (9th Cir. 2016), and Arizona, v. United States, 132 S. Ct.
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2492, (2012). Puente Arizona, 821 F.3d at 1106-07. While it found them distinguishable
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for purposes of analyzing Plaintiffs facial claim, the court specifically explained that the
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cases would be more persuasive for their as-applied claim. Id. In addition, the Ninth
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Circuit found the amicus brief submitted by the United Stateswhich Plaintiffs cite in
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The County Defendants fail to argue their case according to the standards of
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simply has no effect on federal immigration policy. A state law or local enforcement
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policy is preempted when it punishes conduct in a field that Congress, acting within its
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Arizona, 132 S.Ct at 2501. Where the federal government has fully occupied a field,
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states may not enter it in any respect, even with ostensibly complementary or auxiliary
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The County Defendants further argue that because they were not responsible for the
States enactment of the worker identity provisions, legislative history evidence regarding
their purposes should be disregarded. But the lack of the County Defendants involvement
does not mean legislative history is irrelevant to the as-applied claim. The Ninth Circuit
said as much. Puente Arizona, 821 F.3d at 1106 n.9.
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purposes and objectives of Congress, id. at 2501 (citations omitted), for example, by
Crosby v. Natl Foreign Trade Council, 530 U.S. 363, 380 (2000). The investigation,
A. The Federally Preempted Field Has Already Been Defined by This Court
When discussing the law of the case, Defendants neglect to mention that this
Court has already found that Congress has exclusively occupied the field of
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Circuit did not disturb this finding, holding instead that the worker identity provisions
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were not preempted because they regulated some conduct outside this field. Puente
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Arizona, at 1106. The difference here with Plaintiffs as-applied claim is that focuses
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only on the subset of applications of the worker identity provisions (and forgery statute)
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that fall within the federally preempted field. Defendants reference to the Ninth Circuits
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misrepresenting the scope of activity Plaintiffs seek to enjoin. They state that the Ninth
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Circuit has rejected Plaintiffs repeated argument here asserting an alleged preemptive
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field of fraud in employment. Id. But Plaintiffs made very clear in their moving papers
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what they believe is preempted, Pls. MSJ at 3, 13, 15-16, and the field is not so broad.6
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Plaintiffs argument is that Arizonas worker identity provisions and forgery statute are
both field and conflict preempted as applied to individuals who commit fraud: (1) in the
Form I-9 process, and/or (2) to otherwise demonstrate authorization to work under
federal immigration law. Id. The other terms Defendants refer to when they characterize
Plaintiffs field as a moving target, CDs Br. at 10 n.6e.g., fraud by undocumented
immigrants in seeking employment, fraud by employees to demonstrate authorization
to work in the United States, fraud in response to the federal work authorization
requirementare all intended to serve as shorthand for this same field. In a couple
places, Plaintiffs refer to fraud committed by undocumented immigrants in the
employment context, Pls. MSJ at 14, 16, but that term, when read in context, is also
intended to mean the same thing. Plaintiffs acknowledge there may be a rare case where
an undocumented immigrant commits fraud in employment for reasons other than to
demonstrate authorization to work. In that case, Defendants would be able to show that
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Indeed, insisting on a field of all fraud in employment would be indeliberate, and that
has never been Plaintiffs intent, not even for their facial challenge.
Notably, this Court found that Congress had occupied the field of unauthorized-
preemption applies.7 Cf. CDs Br. at 4-10, 13, 16, 21, 24, 29.
B.
Defendants continue to take the position that the only activity that is preempted is
prosecution based on a Form I-9. CDs Br. at 12, 13, 17 (Plaintiffs do not dispute that
90% of Employment Prosecutions do not rely on evidence of the I-9 Form.). In other
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words, the only enforcement action Defendants cannot take is that which is expressly
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prohibited by federal law. But that ignores the well-established rule that Congress may
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preempt state and local action by implication.8 And as this Court explained and the
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United States amicus brief echoed, the existence of an express limitation in federal law
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does not bar the ordinary working of [] pre-emption principles. Doc. 133 at 26-27
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(quoting Arizona, 132 S. Ct. at 2504-05; Amicus Brief of the United States (U.S. Br.),
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Puente Arizona v. Arpaio, No. 15-15211, 2016 WL 1181917, at *14-15 (9th Cir. March
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prosecution is for another reason and their ability to take enforcement action would not
be affected by Plaintiffs requested injunction. Cf. CDs Br. at 26 (describing example of a
person who presents a false drivers license to demonstrate commercial or passenger
drivers license credentials or bypasses a criminal background check to enter a secure
area); Plaintiffs Consolidated Opposition to Defendants Motions for Summary
Judgment (Pls. Opp. to Ds MSJs), Doc. 588, at 35.
Defendants also suggest that Plaintiffs use of a header relating to the federal field
governing employment of undocumented immigrants is improper. CDs Br. at 11 n.6.
But Plaintiffs used this header in the background section to describe relevant federal law,
since the field of fraud in response to the federal work authorization requirementwhich
Plaintiffs contend is fully occupiedis part of a broader legal and policy framework
regulating the employment of immigrantswhich Plaintiffs do not at this time contend is
preempted. See Pls. MSJ at 14 (explaining relevance of broader policy framework in
field preemption analysis under Valle del Sol).
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In its preliminary injunction ruling, this Court did not explicitly decide whether the
presumption against preemption applies and simply assumed that it did for purpose of its
analysis. Doc. 133 at 27. The Ninth Circuit did reach the issue, and found the
presumption to apply. Puente Arizona, 821 F.3d at 1104. Plaintiffs do not contest that for
purposes of summary judgment, but reserve the issue for trial, if there should be one.
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This has routinely been the case in the area of immigration. See Pls. MSJ at 13-15 and
authorities cited therein.
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25, 2016). In fact, it is the other way around. As the case law explains, where a scheme
directly evidences an intent to limit the role of the statessuch as here, through the
express use provisionsuch evidence serves as further support for preemption of the
whole field. Valle del Sol, 732 F.3d at 1026. CDs Br. at 14.
Defendants reading of the use limitation is itself unreasonably narrow. As the Supreme
Court explained, it is not only the I-9 but any information employees submit to indicate
their work status as part of the employment verification process that is covered. Arizona,
132 S. Ct. at 2504. This includes copies or electronic images of documents . . . used to
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1324a(d)(2)(C). See also Pls. MSJ at 15-16. And the prohibition is not just on reliance of
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a document as admissible evidence, but any use, including in an investigation. Id. at 16.
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Even copying of these documents is prohibited unless done for the purposes of
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submitted as part of the verification process, but they apparently take the view that
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reliance of those documents seized from employerswhether submitted as part of the I-9
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process or notis only prohibited if they are charged together with an I-9 in a complaint
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or indictment.9 This, of course, makes no sense. Under Defendants theory, they would be
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free to charge an undocumented worker for offering a false Social Security card that they
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know was submitted for the verification process simply by foregoing a separate count
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They then argue that the number of cases where that has occurred is not sufficient for
Monell
liability, an argument Plaintiffs address infra at 18.
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MCAO does not make any effort to avoid using documents obtained from an employer
that were used only for the verification process, and do not try to determine if this is the
case or not. Pls. SSOF 272. Perhaps in an effort to overcome this, Defendants contend
that offenders routinely use anothers identity on state drivers licenses/state
identification cards or social scrutiny numbers/cards to complete a variety of [other
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submitted in the employment verification process, that does not end the inquiry.
Defendants assert that documents like tax forms11 are not directly regulated by IRCA or
federal immigration fraud statutes. CDs Br. at 12. This is not what preemption turns on.
In establishing the employment verification scheme and the requirement that all
numerous interests discussed at length in Pls. MSJ at 4-7. It reserved for federal
authorities the prerogative of deciding how to use the array of civil, criminal and
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involvement and encouragement of employers) who try to evade that requirement. As set
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forth more fully in Pls. MSJ at 5-6, 14-15, discretion and versatility are critical to
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federal officials ability to pursue the delicate balance of statutory objectives. Id. at 15
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(quoting Buckman, 531 U.S. at 348-49). What Defendants propose is that they should be
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able to prosecute the same individuals for fraud that they commit for the same purpose,
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so long as by the time it comes time to file charges, prosecutors can identify at least one
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form, etc.that an employee has completed with the same name or identifying
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information while working at a business. See Pls. MSJ at 16. But Congress would not
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have gone through such lengths to create a comprehensive federal scheme just to have
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federal control so easily wrestled away by enterprising local officials who have a
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documents] such as job applications, tax forms . . . . CDs Br. at 13. But in all cases it
would be the false identity information that is used on those other documents. The fraud
is prompted by the need to demonstrate work authorization status; no drivers license or
Social Security card is needed once it has been provided for the I-9.
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Defendants also make much of the fact that they charge many cases based on a W-4 or
A-4 tax withholding forms. See, e.g., CDs Br. at 17. Separate laws restrict the use that
may be made of those documents, see e.g., 26 U.S.C. 6103; A.R.S. 42-2003, and it is
not clear if Defendants are complying with those laws. In any event, Defendants
contention that it is employees submission of false identity information on a tax
withholding form (as opposed to a W-2 or other form submitted by the employer to IRS)
that would cause victims financial harm is entirely unsupported. See Pls. Resp. to
Montgomery SOF 6.
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Rather than endorsing a tidal wave of lawlessness, CDs Br. at 12, 26-27, what
Plaintiffs propose is much less extreme. Plaintiffs proposal is that the Court restore
meaningful control to federal authorities over the punishment of fraud in response to the
workers from punishment, this would allow federal authorities to make their own
decisions about which individuals to prosecute and carry out policies that further a range
of interests. Defendants may not like that result, and equate it with lawlessness, but that
is not what it is. Put another way, Plaintiffs proposal ensures that the federal verification
system and the requirement to show authorized status to work is not appropriated for
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local use. See 8 U.S.C. 1324a(d)(2)(F) (prohibiting use[] of [t]he system for any
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target at which the state law aims. Oneok, Inc. v. Learjet, Inc., 135 S. Ct. 1591, 1599-
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1600 (2015) (emphasis in original). For Plaintiffs facial claim, it made complete sense
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for this Court and the Ninth Circuit to examine evidence of state legislative purpose and
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practical effect. As discussed above, however, Plaintiffs as-applied claim focuses only
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on the subset of applications of the worker identity provisions (and forgery statute) that
fall within the federally preempted field of punishing fraud to demonstrate authorization
to work in the United States. Anything outside of this field is not part of Plaintiffs claim.
There is therefore no need to analyze whether Defendants policies and practices have a
substantial practical effect on the preempted field. That analysis would be redundant.
Court must undertake that is similar toand perhaps easily confused witha practical
effects analysis. To determine whether a state or local policy poses an obstacle to the
accomplishment and execution of the full purposes and objectives of Congress, Arizona,
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132 S. Ct. at 2501 (internal citation omitted), a court should evaluate not only its formal
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terms, but practical result. Arizona Dream Act Coal. v. Brewer, 757 F.3d 1053, 1062-
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consider the relationship between state and federal laws as they are interpreted and
applied, not merely as they are written.) (internal citation omitted). Where, as here,
Congress intended to reserve prosecutorial power, and thus discretion, Valle del Sol,
732 F.3d at 1027, to federal officials, a state or local policy that provides for subfederal
prosecution of undocumented workers for fraud to demonstrate authorization to work,
even if not styled as an immigration policy, inevitably and actually conflicts with
federal law. Buckman, 531 U.S. at 350 (emphasis added); cf. CDs Br. at 25.
The County Defendants do not contest that their enforcement policies layer
additional and different penalties on top of federal law, see Pls. MSJ at 14-15, but they
argue that there is no conflict preemption because they are regulating different activity
than federal law. CDs Br. at 13-14. To understand whether use of a false identity on non-
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verification status is the same activity for these purposes as use of a false identity on an I-
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9, this court must view the situation through a practical lens. If local officials come across
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an undocumented worker who committed fraud in the I-9 process that federal authorities
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who is DACA eligible to receive deferred actionit would defeat the purpose of the
governments exercise of discretion for local officials to arrest, detain and prosecute that
same worker. It matters little whether local officials ultimately choose to charge the I-9 or
one of the several other documents the worker had to fill out with a name and Social
Security number to get the job. As the United States explained, the disruption to the
system Congress created is the same. U.S. Br. at *14-21 (describing the reliance on
information from other documents to be punishment for the very same fraud); cf CDs
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D. Rather Than Respond to the United States Amicus Brief, the County
Defendants Take the Extreme Position That the Court Should Not
Consider It At All
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In their moving papers, Plaintiffs cited the United States amicus brief filed with
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the Ninth Circuit in this matter. Pls. MSJ at 2, 4, 5, 7, 15-16. The brief was solicited by
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the Ninth Circuit and described by the panel as helpful to the preemption questions.
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Puente Arizona, 821 F.3d at 1105 n.7; U.S. Br. at *1. Defendants choose not to contest
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the points made by the United States on their merits, and argue instead that the brief
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should be dismissed out-of-hand. CDs Br. at 14-15. Defendants attempt to discount the
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Plaintiffs submitted with their moving papers ample evidence that undocumented
individuals who were the subject of Defendants enforcement actions had used the same
identity information on other employment documents as on the I-9. The Court, applying
common sense, can reasonably infer that their purpose for using false identity
information on the other documents was to present themselves as being authorized to
work. See Whole Woman's Health v. Hellerstedt, 136 S. Ct. 2292, 2317 (2016) (Courts
are free to base their findings on commonsense inferences drawn from the evidence.);
see also Pls. SOF 72 (testimony of Vicki Kratovil that it is legally and factually
obvious that undocumented workers would have to use someone elses documents to
work); CDCSOF 173, 177-78, 182-83 (not disputing statements from Doe declarants
that they had to use false identifying information on documents, including non-I-9
documents, because they are undocumented and dont have a Social Security number).
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The County Defendants also try to argue that, if there is any overlap between their
enforcement policies and federal law, it is with respect to only a single statute, 18 U.S.C.
1028. CDs Br. at 14. They cobble together arguments about the text and history of that
statute, federal removal cases and FTC materials that they say evince an intent across
three branches of the federal government that their policies can co-exist harmoniously
with the federal scheme. Id. at 14-15. Plaintiffs have extensively addressed Defendants
flawed and problematic reasoning elsewhere, see Pls. Opp. to Ds MSJ at 4-5, 30-31;
Pls. Resp. to AZSOF 13-16; Pls. Resp. to Montgomery 34-36, and will not repeat
those arguments again here.
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amicus curiaeassisting in a case of general public interest. See Funbus Sys, Inc. v.
State of Cal. Pub. Utils. Commn, 801 F.2d 1120, 1125 (9th Cir. 1986). Federal courts
routinely draw on the arguments and expertise of amici who provide unique information
or perspective that can help the court. NGV Gaming, Ltd. v. Upstream Point Molate,
LLC, 355 F. Supp. 2d 1061, 1067 (N.D. Cal. 2005). Moreover, the United States has a
expert. FRAP 29(a) (describing standing invitation to the United States to file amicus
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briefs); see also Universal Oil Prod. Co. v. Root Ref. Co., 328 U.S. 575, 581 (1946).
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Courts frequently seek out and rely on its views. See, e.g., Astra USA, Inc. v. Santa Clara
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Cty., Cal., 563 U.S. 110 (2011) (relying on amicus brief when interpreting congressional
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intent); K2 Am. Corp. v. Roland Oil & Gas, LLC, 653 F.3d 1024, 1026, 1027 n.1 (9th Cir.
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2011) (reaching the conclusion recommended by the United States as invited amicus
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preemption context, whereas herethe United States has unique insight into the
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relevant federal statutory scheme and how state law may interfere with federal law and
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interests. See Pls. MSJ at 2-7, 15-16; see also, e.g., Geier v. Am. Honda Motor Co., 529
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United States); Humana Inc. v. Forsyth, 525 U.S. 299 (1999) (citing governments
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amicus brief in discussion of congressional intent); Ariz. Dream Act Coal. v. Brewer, 818
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F.3d 901, 906, 918 (9th Cir. 2016) (relying on information in United States amicus brief
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Defendants cite a single case to suggest that the Ninth Circuit and Supreme Court
have consistently rejected the governments position on preemption. Id. A single
instance can hardly overcome the many examples of courts citing such briefs
approvingly. Defendants assertion that amicus briefs cannot render unconstitutional an
otherwise valid state law, CDs Br. at 15, also misses the point. No one is contending that
the United States amicus brief in this litigation is the reason for preemption.
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that federal district courts may take into account legal arguments in United States amicus
briefs. See, e.g., Equal Empt Opportunity Commn v. Peabody W. Coal Co., No. 2:01-
cv-01050, 2012 WL 5034276 at *5 n.36 (D. Ariz. Oct. 18, 2012) (citing governmental
amicus briefs in three different cases); In re Wash. Mut. Overdraft Prot. Litig., 539 F.
Supp. 2d 1136, 1145 (C.D. Cal. 2008) (taking judicial notice of an amicus brief filed by
Several of the competing interests reflected in the federal statutory scheme and
which federal officials balance when they carrying it out include securing the cooperation
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high-priority proceedings. Pls. MSJ at 5-7, 15; see also U.S. Br. at *18-21. In addition,
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federal officials have to consider relationships with foreign nations when deciding how to
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nationals within our borders from mistreatment has important consequences for the
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omitted). The undisputed record shows that the County Defendants enforcement
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practices fail to take these interests into account, reflecting their further conflict with
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whether there were any workers arrested who would have been eligible for or applied for
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U/T visas or whether Defendants inhibited federal agencies from . . . granting protected
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status to whistleblowers. CDs Br. at 22-23. This gets the analysis backwards. The
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It is therefore irrelevant that the brief is not part of the factual record, CDs Br. at 14.
In response to Pls. SOF 4, Defendants object on grounds of hearsay and point out
that 72%-46% of ICEs criminal arrests . . . were employee arrests. CDCSOF 4. But
the CRS Report is admissible under FRE 803(8)(a)(i) as a statement of ICEs activities.
Further, Defendants neglect to mention that the percentage of employees criminal
prosecuted experienced a steep decline after 2009, consistent with ICEs renewed focus
on criminally investigating and prosecuting employers. CRS Report at 7-8.
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question is not whether Defendants prevented anyone from getting relief, but whether
their enforcement actions have thwarted the underlying policy benefits to be gained by
offering federal relief.17 The fact that workers did not complain more reinforces
Plaintiffs point that enforcement had a detrimental effect on their willingness to come
forward and cooperate with authorities. Plaintiffs have also submitted evidence, much of
it not genuinely disputed, that Defendants enforcement in fact did chill workers from
reporting labor violations, at least until they were arrested. Pls. SOF 148, 153-55.18
The County Defendants contend that the federal laws and policies Plaintiffs point
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to relating to the labor rights of immigrants have nothing to do with identity theft and
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forgery, CDs Br. at 22, but of course, the potential criminal prosecution of
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undocumented immigrants for conduct they engage in to work has everything to do with
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whether or not they would feel comfortable coming forward with reports about abuses.
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Federal authorities can remove the fear of prosecution (and thereby encourage
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cooperation), see Pls. MSJ at 7, but not if state actors can step in and undo their
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discretionary decisions.19,20
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For the same reason, it matters little that employees who may receive U and T visas
may eventually not have to continue using false identity information to work. Cf. CDs Br.
at 22.
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Defendants assert there is no evidence that Fernando Abundez Gonzalez and Valentin
Villanueva Fernandez were victims of U visa qualifying crimes, but Defendants list of
qualifying offenses is incomplete. CDs Br. at 23. Defendants exclude extortion,
blackmail, perjury, witness tampering, and obstruction of justice, see USCIS, Victims of
Criminal Activity: U Nonimmigrant Status,
at https://www.uscis.gov/humanitarian/victims-human-trafficking-other-crimes/victimscriminal-activity-u-nonimmigrant-status/victims-criminal-activity-u-nonimmigrantstatus, some of which appear to have occurred at Uncle Sams. See Pls. SOF 154.
While MCAO has moved to unseal the plea/testimonial agreements that Mr. Abundez
Gonzalez and Mr. Villanueva Fernandez entered into, such unsealing is entirely
unnecessary, since neither had to do with their reports of labor rights violations. Abundez
Gonzalez Decl. 17-18; Villanueva Fernandez Decl. 1617.
In addition, Defendants suggest that because undocumented members of Puente still
attend functions that they must not be afraid. CDCSOF 247. This is flatly contradicted
by the record. Pls. SOF 185-86.
19
Indeed, the trafficking victims statute is explicit about identity theft, stating that
trafficking victims should not be inappropriately prosecuted for using false documents.
22 U.S.C. 7101(b)(19).
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Defendants protest that the DHS-DOL MOU is not relevant because it addresses only
civil, rather than criminal, enforcement. CDs Br. at 24. But this simply reflects the reality
that much of the federal enforcement activity against undocumented workers is civil, not
criminal. In entering into the MOU, federal authorities recognized that even civil
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582 (2011) somehow precludes Plaintiffs conflict preemption theories. But Whiting dealt
employers might exacerbate discrimination in the I-9 process. Id. at 605. The issue here is
whether enforcement by state and local actors against employees undermines the federal
interest in not making workers more vulnerable to exploitation than they already were.
Regarding Defendants arguments about the impact on foreign relations, the point
is not whether there is a federal policy . . . in favor of identity theft being committed by
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foreign nationals. CDs. Br. at 24. Defendants singular and systematic focus on criminal
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punishment of other countries nationals who are working in the United States, however,
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impacts the ability of federal officials to carry out the nations foreign policy agenda.
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identity theft and forgery cases, and MCAO prosecuted a total of 1,864 such cases, the
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vast majority of which were brought against undocumented immigrants. Pls. SOF 70-
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71, 75-76. Forgery charges played a prominent role in employment-related cases, Pls
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SOF 76. The reliance on forgery in employment-related cases even grew as MCAO
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enforcement against undocumented workers may interfere with their ability to gain the
workers trust and cooperation.
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Plaintiffs assert no private cause of action under NAFTA, cf. CDs Br. at 24 n.13, but
present
information about the NAALC as probative evidence of federal interests.
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Defendants appear to criticize Dr. Earls findings about the growth in forgery cases
against undocumented individuals in the years after 2007. CDCSOF 69. But Dr.
Cohens criticism of Dr. Earls use of forgery as a baseline has nothing to do with the
finding discussed in Pls. SOF 69. Regarding her use of forgery as a baseline when
LEAs referral of employment-related identity theft/forgery cases, her reasons are
explained at pages 33-34 of her rebuttal report.
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what they characterize as low percentages of cases where MCAO charged a Form I-9
alone or together with a state drivers license/identification card or Social Security card.
CDs Br. at 12, 17-18. They suggest that these percentages are not sufficient to show a
policy or practice for Monell liability. Id. But the policy alleged and challenged by
employment verification requirement. Even if the Court were to find that only the use of
an I-9 and associated documents is preempted, the instances where MCSO or MCAO did
rely on those documents can still be enjoined, because the constitutional violation still
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flows from the broader, officially-sanctioned policy, pattern and practice. See Chew v.
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Gates, 27 F.3d 1432, 1444 (9th Cir. 1994) (municipal policy need only cause [the]
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disclaiming any immigration-related purpose for their enforcement policies. CDs Br. at 8
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& n.5. But summary judgment on Plaintiffs as-applied claim does not depend on
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City of Oakland, 47 F.3d 1522, 1534 (9th Cir. 1995) (quoting Pembaur v. City of
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Cincinnati, 475 U.S. 469, 483-4 (1986)). 24 Plaintiffs have submitted ample evidence that
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Defendants Arpaio and Montgomery were well aware of their subordinates prosecution
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of undocumented workers and, in some cases, even encouraged it. Pls. MSJ at 17-18.25
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On pages 18-21, Defendants raise numerous issues that are irrelevant to Plaintiffs
as-applied claim. First, they maintain that there is no evidence that Defendants actions
have caused individuals to leave the state. CDs Br. at 18-19. That is not Plaintiffs
contention with respect to the County Defendants policies. Next, they disclaim any
20-21; see also CDs Br. at 16-17. Plaintiffs have already addressed this in their summary
judgment opposition briefing. See Pls. Opp. to Ds MSJ at 17-18, 21. Third, Defendants
argue that MCAOs assignment of employment-related identity theft and forgery cases to
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the Special Crimes Bureau is not a preempted action. CDs Br. at 19-20. But Plaintiffs
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presented evidence about the assignment of cases to Special Crimes rather than FITE to
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show that MCAO viewed the cases as related to illegal immigration, not to argue that the
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motions about victims and victim complaints. CDs Br. at 4, 9-10, 26. But like before,
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they do not establish why such information is relevant, since the legality of Defendants
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actions either rise or fall on federal law. As this Court has explained, it is never equitable
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or in the public interest to violate the constitution. Pls. MSJ at 32; Doc. 440 at 3.
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Dr. Cohen testified that it makes sense for Bureaus to specialize only strengthens
Plaintiffs case. CDCSOF 236. But if any Bureau had the expertise to handle identity
theft and forgery cases, it was FITE. See Pls. SOF 100-101, 103, 105. Instead, in 2008,
and then again in 2010, MCAO assigned primary responsibility for employment-related
identity theft and forgery cases to the Bureau that, among other things, was prosecuting
Illegal Immigrant Crimes. See Pls. SOF 78-79.
As Dr. Cohen notes, for a short time in 2010, the employment-related cases were
directed to the FITE Bureau. Defendants point out that while the number of such cases
handled by FITE was lower, the proportion brought against undocumented immigrants
was similar to that of Special Crimes. Cohen Third Decl., CASOF Ex. 4, Tables 1 & 3.
This seems to reflect little more than the common sense observation, which Plaintiffs
have made elsewhere, that the enforcement of state employment-related identity theft and
forgery cases is most likely to impact undocumented immigrants. See also Pls. SOF 72.
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against MCSO would be appropriate unless the Court enjoins every other law
enforcement agency in Maricopa County. CDs Br. at 25. But there is no rule that a Court
must enjoin either every actor engaged in illegal conduct or none at all. The absence of
other agencies from the lawsuit does not make an injunction against MCSO any less
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Plaintiffs to seek an injunction. They contest only the eligibility of Plaintiffs Cervantes
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Arreola and Elia Estrada Fernandez for expungement of their convictions under A.R.S.
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under Arizona law. However, Arizona law does not preclude relief for Ms. Cervantes
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Arreola or Ms. Estrada Fernandez, because Plaintiffs are not seeking expungement under
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Arizona law. Rather, Plaintiffs seek expungement pursuant to the inherent power of the
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Court to expunge criminal records where an arrest or conviction is found to have been
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invalid. See Doc. 133 at 8; Doc. 144 at 3; United States v. Sumner, 226 F.3d 1005, 1014
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(9th Cir. 2000); Maurer v. Los Angeles County Sheriff's Dept., 691 F.2d 434, 437 (9th
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Cir.1982) (It is well settled that the federal courts have inherent equitable power to order
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the expungement of local arrest records as an appropriate remedy in the wake of police
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The County Defendants suggest that Plaintiffs conflate[d] and confuse[d] the issues
by discussing them together in Plaintiffs briefing. CDs Br. at 2 n.1. But there is nothing
improper about addressing issues jointly when they are common to more than one party
in the interests of efficiency. Of course the County Defendants are each separate entities
and Plaintiffs trust that the Court is capable (as are the parties) of keeping that in mind. If
this Court should find, for example, that only one of the agencies has engaged in
preempted conduct, than it may enjoin Defendant Arpaio without enjoining Defendant
Montgomery and vice versa. Of course, Maricopa Countys liability is based on the
actions and policies of Defendant Arpaio. Pls. Opp. to Ds MSJ at 35-40; cf. CDs Br. at
21-22.
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the case where a court expunges a valid arrest and conviction solely for equitable
considerations. Doc. 538 at 27 (citing United States v. Crowell, 374 F.3d 790, 793 (9th
CDs Br. at 28. But a guilty plea does not foreclose a subsequent challenge where the
charge to which [the defendant] pleaded guilty is one which the State may not
constitutionally prosecute. Lemke v. Ryan, 719 F.3d 1093, 1096 (9th Cir. 2013) (internal
citation omitted) (explaining that a waiver of collateral attack must be express, and that
a plain waiver of appeal does not suffice). Further, Defendants suggest that Plaintiffs
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must have tried to promptly seek habeas or other relief in order to be eligible for relief
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under 1983. CDs Br. at 28. While 1983 relief is unavailable where a plaintiff let the
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time for [a habeas] petition expire, Nonnette v. Small, 316 F.3d 872, 877 & n.6 (9th Cir.
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2002), there is no bar when federal habeas was unavailable because of the shortness of
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[plaintiffs] prison sentence. Guerrero v. Gates, 442 F.3d 697 (9th Cir. 2006); see also
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Nonnette, 316 F.3d at 875-77 & n.6 (permitting plaintiff to challenge deprivation of
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simply not in custody for purposes of habeas jurisdiction long enough to exhaust state
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(admitting that it would not be possible to litigate a motion for post-conviction relief
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within 7 months);28 Pls. SOF 218-221 (setting forth Plaintiffs length of incarceration
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and/or probation). There was no sense in Plaintiffs initiating a process that could not have
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Defendants have moved to strike the Declaration of Harold Higgins on the ground that
it constitutes a late-disclosed expert opinion. CDs Br. at 28. Since Defendants dont
contest the timeline for litigating a Rule 32 motion under Arizona law, the Higgins
Declaration is not necesasry. Nevertheless, should the Court wish to consider it, it may.
Mr. Higgins declaration is based on his own experience as a criminal attorney and not on
any scientific, technical or other specialized knowledge. See FRE 701; Range Rd. Music,
Inc. v. E. Coast Foods, Inc., 668 F.3d 1148, 1153 (9th Cir. 2012) ([T]he distinction
between lay and expert witness testimony is that lay testimony results from a process of
reasoning familiar in everyday life, while expert testimony results from a process of
reasoning which can be mastered only by specialists in the field.) (citing FRE 701
Advisory Committee Note). And Plaintiffs properly disclosed Mr. Higgins as a fact
witness. See Plaintiffs Sixth Supplemental Disclosure Statement, attached hereto as
Exhibit 1.
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RESPECTFULLY SUBMITTED this 16th day of September, 2016.
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By
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Sarah Anchors
Hector Diaz
Edward J. Hermes
Jose A. Carrillo
QUARLES & BRADY LLP
Renaissance One
Two North Central Avenue
Phoenix, AZ 85004-2391
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Cindy Pnuco
Joshua Piovia-Scott
Dan Stormer
Hadsell Stormer & Renick LLP
128 North Fair Oaks Ave.
Pasadena, CA 91103
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Katheleen E. Brody
Daniel J. Pochoda
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Finally, the County Defendants suggest that they are not the proper parties to be subject
to an expungement order. CDs Br. at 27. While Plaintiffs agree that any expungement
order should also run to the State, which generally controls the distribution of criminal
history records, see A.R.S. 41-1750, and be shared with the Maricopa County Superior
Court, the County Defendants also maintain records of Plaintiffs arrests and convictions,
see, e.g., Montgomery SOF 66-67, and they should be required to update their records
to reflect any expungement order issued by this Court.
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CERTIFICATE OF SERVICE
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
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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
Docket Number
2:14-cv-01356
2016 The Bureau of National Affairs, Inc. All Rights Reserved. Terms of Service
// PAGE 30