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June 10, 2010

The Real Story of California Penal Code 834b and Arizona's SB 1070

Many people concerned with immigration reform have been forwarding the text of California Penal Code 834b. Section 834b is very similar to Arizona's newly passed SB 1070 in that it provides for effective state and local cooperation with federal immigration enforcement. Here, FAIR and IRLI (Immigration Reform Law Institute) provide some answers for the most commonly asked questions about California Penal Code 834b and immigration enforcement. (cont'd)

Frequently asked questions:

Q: Why is California ignoring 834b and not enforcing the law?

A: California Penal Code 834b is the statutory language added to the California Penal Code by Prop. 187. In 1997, then-Governor Gray Davis moved to put the lawsuit filed (League of United Latin American Citizens v. Wilson, 908 F.Supp. 755, 763 (C.D.Cal.1995)) into mediation. Subsequently, the initial injunction that held that provisions of Prop. 187 were pre-empted was not challenged. The move by Davis allowed the challenge to Prop. 187 to prevail, and the 9th Circuit opinion about the pre-emption issue was never litigated to a conclusion.

Q: How is Arizona SB 1070 different from California Penal Code 834b?

A: Arizona SB 1070 was very carefully drafted after a legal analysis of the arguments in the LULAC v. Wilson case. Arizona SB 1070 incorporates federal law - a different approach from Prop. 187's. Arizona SB 1070 represents years worth of research and litigation (including other state level measures in Arizona upheld by federal courts) to completely fall within acceptable state action.

Prop. 187 is still the "toughest" state immigration enforcement measure ever enacted - a point made by IRLI General Counsel Mike Hethmon in this op-ed on April 30, 2010. (Read Here)

Q: Isn't there a way for California to start enforcing Section 834b?

A: No, because of the decision in LULAC v. Wilson, California cannot enforce those provisions. California voters or California's legislature need to pass an Arizona-style immigration measure again, and also defend it in court as Arizona is preparing to do.

Q: Is there any enforceable provision of California Law Similar to SB 1070?

A: There is a California Code Section that is in place, has been upheld by a California Appellate Court and is similar to the Arizona Statute. Under Section 11369 of the Health and Safety Code, "[w]hen there is reason to believe that any person arrested for a violation [of any of 14 specified drug offenses] may not be a citizen of the United States, the arresting agency shall notify the appropriate agency of the United States having charge of deportation matters." Fonseca v. Fong, (2008). Similar to that provision, SB 1070 requires an Arizona State Officer who has reason to believe that someone is in the country unlawfully, to contact the federal government, so that the federal government can determine the suspect's immigration status.

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