Proposed Brief of The United Mexican States as Amicus Curiae in Support of Plaintiffs

Case 2:10-cv-01061-JWS Document 231 Filed 06/22/10 Page 1 of 27

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ALBERT M. FLORES
ALBERT M. FLORES LAW OFFICE
2
337 N 4th Ave
3
Phoenix, AZ 85003
Telephone: (602) 271-0070
4
amflegal@aol.com
Attorney No. 005653
5

HENRY L. SOLANO*
6
CARLA GORNIAK*
CHRISTOPHER R. CLARK*
7
DEWEY & LEBOEUF LLP
8
1301 Avenue of the Americas
New York, NY 10019
9
Telephone: (212) 259-8000
Facsimile: (212) 632-0162
10
hsolano@DL.com
cgorniak@DL.com
11
crclark@DL.com
12

Counsel for Amicus Curiae
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*Application for admission pro hac vice forthcoming.
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15
UNITED STATES DISTRICT COURT

16
DISTRICT OF ARIZONA

17



18
Friendly House, et al.,

19

CASE NO. CV-10-01061-MEA
Plaintiffs,

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v.
LODGED: Proposed Brief Of
21

The United Mexican States As
Michael B. Whiting, et al.,
Amicus Curiae In Support Of
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Plaintiffs Attached
Defendants.
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Case 2:10-cv-01061-JWS Document 231 Filed 06/22/10 Page 2 of 27

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ALBERT M. FLORES
ALBERT M. FLORES LAW OFFICE
2
337 N 4th Ave
3
Phoenix, AZ 85003
Telephone: (602) 271-0070
4
amflegal@aol.com
Attorney No. 005653
5

HENRY L. SOLANO*
6
CARLA GORNIAK*
CHRISTOPHER R. CLARK*
7
DEWEY & LEBOEUF LLP
8
1301 Avenue of the Americas
New York, NY 10019
9
Telephone: (212) 259-8000
Facsimile: (212) 632-0162
10
hsolano@DL.com
cgorniak@DL.com
11
crclark@DL.com
12

Counsel for Amicus Curiae
13

*Application for admission pro hac vice forthcoming.
14


15
UNITED STATES DISTRICT COURT

16
DISTRICT OF ARIZONA

17


18


19
Friendly House, et al.,


CASE NO. CV-10-01061-MEA
20
Plaintiffs,



21
v.
BRIEF OF THE

UNITED MEXICAN STATES
22
Michael B. Whiting, et al.,
AS AMICUS CURIAE

IN SUPPORT OF PLAINTIFFS
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Defendants.


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Case 2:10-cv-01061-JWS Document 231 Filed 06/22/10 Page 3 of 27

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TABLE OF CONTENTS
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INTEREST OF AMICUS CURIAE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
3
SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
4
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
5
I.
SB 1070 Impedes International Relations; There Needs to Be One
6
Cohesive, Consistent and Controlling United States Voice . . . . . . . . . . . . . . . 3
7
A. SB 1070 Will Severely Hinder Trade and Tourism Between Mexico
and Arizona . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
8
B. SB 1070 Derails Efforts Towards Comprehensive Immigration
9
Reform . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
10
C. SB 1070 Obstructs International Collaboration to Combat Drug-
11
Trafficking Organizations and Drug-Related Violence . . . . . . . . . . . . . . . . 8
II. Mexico’s Has a Legitimate Interest Protecting Its Citizens’ Rights
12
Under the U.S. Constitution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
13
A. SB 1070’s Results in Racial Profiling Reminiscent of African-American
14
Discrimination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13
15
B. SB 1070’s Harmful Effects Lead to Dangerous Harms Spanning
From Physical Violence to Promotion of Negative, Ill-Conceived
16
Stereotypes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
17
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
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APPENDIX A: INDEX OF CITED AUTHORITIES
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APPENDIX B: CERTIFICATE OF SERVICE
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21
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INTEREST OF THE AMICUS CURIAE
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The United Mexican States (“Mexico”) respectfully submits this amicus curiae
3
brief to express its grave concerns over Arizona Senate Bill 1070, 49th Leg., 2nd Reg.
4
Sess., Ch. 113 (Az. 2010), as amended (“SB 1070”), and to underscore the importance of
5
declaring SB 1070 unconstitutional in its entirety.
6
Mexico seeks to ensure that its bilateral diplomatic relations with the United States
7
of America (“U.S.” or “United States”) are transparent, consistent and reliable, and not
8
frustrated by individual U.S. states’ actions, in particular the Arizona Defendants herein.
9
10
SB 1070 substantially impacts Mexico, its officials and citizens, by inappropriately
11
burdening the uniform and predictable sovereign-to-sovereign relations, opening the door
12
to divergent requirements among the different states, and with respect to the national
13
government.
14
Under Article 5(a) of the Vienna Convention on Consular Relations, to which both
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countries are signatories, Mexico has a right to protect the interests of its nationals within
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the limits of international law.2 Mexico seeks to assure that its citizens, present in the
17
United States, are accorded the human and civil rights granted under the U.S.
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Constitution; having therefore a substantial and compelling interest in protecting its
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citizens and ensuring that their ethnicity is not used as basis for state-sanctioned acts of
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discrimination, including the inequitable application of civil and criminal laws and state’s
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law enforcement powers. SB 1070 creates an imminent threat of state-sanctioned bias or
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23
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2 Vienna Convention on Consular Relations art. 5, Apr. 24, 1963, 596 U.N.T.S. 261.
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discrimination, resulting not only in individual injury, but also in broader social and
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economic harms to its citizens, undermining Mexico–U.S. relations.
3
The enactment of SB 1070 has been closely followed at the highest levels of the
4
Mexican government and throughout Mexican society. The issues raised herein are of
5
great importance to the people of Mexico, including the almost twenty million Mexican
6
workers, tourists and students lawfully admitted to the United States throughout 2009,
7
those already present or who will similarly be admitted to the U.S in the future, and the
8
countless millions affected by international trade, immigration policies and drug violence.
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The government of Mexico respectfully submits that SB 1070 adversely impacts
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the bilateral relations between Mexico and the United States, as well as law abiding
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Mexican citizens and other people of Latin-American descent present in Arizona as
12
13
argued by Plaintiffs.
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SUMMARY OF ARGUMENT
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Through the enactment of SB 1070, Arizona has taken action that decisively
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departs from the collective immigration policy of the United States for the purpose of
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imposing Arizona’s own independent and conflicting set of requirements. Such action
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directly and indirectly interferes with the bilateral economic, immigration and security
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policies of Mexico and the U.S. federal government. Thus, SB 1070 raises substantial
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challenges to the bilateral diplomatic relations between Mexico and the U.S.
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In addition, Mexico is gravely concerned that SB 1070 will lead to disparate
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treatment among Mexican nationals in the U.S., as well as disparate treatment as
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compared to U.S. citizens. This disparate treatment will be in the form of racial profiling
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and detentions of Mexican citizens without regard to whether they have taken any actions
2
or exhibited any behavior indicating they are guilty of a crime or “unlawfully present” in
3
the U.S.
4
ARGUMENT
5
I. SB 1070 Impedes International Relations; There Needs to Be One Cohesive,
6
Consistent and Controlling United States Voice
“The Federal Government, representing as it does the collective interests of the
7
8
[fifty] states, is entrusted with full and exclusive responsibility for the conduct of affairs
9
with foreign sovereignties.”3 Through SB 1070, Arizona imposes its own independent
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and conflicting requirements. Arizona does this despite specific provisions of federal
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immigration law that permit Arizona to assist with the enforcement of immigration law
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after receiving federal approval and appropriate training to ensure constitutionality.4
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Arizona’s unilateral action burdens Mexico enormously by forcing its officials and
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citizens to respond to divergent requirements imposed by the different divisions of the
15
U.S. government. In order to conduct effective diplomatic relations with the U.S.,
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countries such as Mexico need and depend on transparent, consistent and reliable
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bilateral negotiations. Amicus cannot effectively collaborate with the United States on a
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sovereign basis to address inherently international matters such as immigration, trade and
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security, if U.S. political subdivisions establish their own requirements that conflict not
20
21
only with each other but also with the efforts, priorities and commitments of the U.S.
22
federal government.

23
3 Hines v. Davidowitz, 312 U.S. 52, 63 (1941); see also Meissner Decl. ¶¶ 13-14
(asserting that States’ interventions frustrate the federal government’s ability to
24
achieve its objectives).
4 See 8 U.S.C. § 1357(g) (2006).
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SB 1070 adversely impacts U.S. relations with foreign countries, directly
2
interfering with the U.S. Department of State’s ability to conduct foreign affairs and
3
policy.5 As conveyed by U.S. Secretary of State Hillary Clinton, although SB 1070 is not
4
yet in effect, it is already straining U.S.–Mexico relations.6 Mexico’s ambassador to the
5
U.S. Arturo Sarukhan explains that SB 1070 “threatens to poison the well from which our
6
two nations have found and should continue to find inspiration for a joint future of
7
prosperity, security, tolerance and justice.”7
8
A. SB 1070 Will Severely Hinder Trade and Tourism Between Mexico and
9
Arizona
10
One area of great concern to Mexico relates to the repercussions of SB 1070 on
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trade and commercial relations with the United States. Growth in U.S. trade with Latin
12
America has historically outpaced that of all other regions.8 Mexico is the third largest
13
trading partner of the United States and the second purchaser of U.S. exports.9 The
14
interaction of labor markets, tourism, business travel, and student migration between the
15
16
17

5
18
Meissner Decl. ¶¶ 32–33.
6 See Meet the Press with Secretary Clinton [Transcript] (May 2, 2010), available at
19
http://secretaryclinton.wordpress.com/2010/ 05/02/meet-the-press/.
7 Instituto Cultural Mexicano, Entrega de los premios Ohtli, at 3 (May 4, 2010),
20
www.ime.gob.mx/documentos/Entrega_Ohtlis.doc; CNN, U.S., Mexican Presidents
Say Key Issues Must be Tackled Together (May 20, 2010),
21
http://www.cnn.com/2010/US/05/19/ mexico.president.visit/index.html. See also
Lowenthal Decl. ¶ 10.
22
8 J. F. Hornbeck, U.S.-Latin America Trade: Recent Trends and Policy Issues,
Congressional Research Service, at 1 (Sept. 3, 2009), available at
23
http://www.fas.org/sgp/crs/row/98-840.pdf.
9 M. Angeles Villarreal, U.S.-Mexico Economic Relations: Trends, Issues, and
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Implications, Congressional Research Service, at 1 (Mar. 31, 2010), available at
http://www.fas.org/sgp/crs/row/ RL32934.pdf.
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countries is widespread and of great importance to both economies.10 A University of
2
California study estimates that immigration into the United States over the 1990–2006
3
period increased U.S. economic efficiency, resulting in a 2.86% real wage increase for
4
the average U.S. worker.11 In particular, each day approximately 65,000 Mexicans are
5
admitted into Arizona; and each day they spend an average of $7.35 million in its stores,
6
restaurants, hotels and other businesses.12
7
SB 1070 poses a threat to this mutually beneficial trade between the two nations.
8
As discussed in more detail in Section II, if SB 1070 takes effect, Mexican citizens will
9
be afraid to visit Arizona for work or pleasure out of concern that they will be subject to
10
unlawful police scrutiny and detention.
11
To enhance the benefits of economic trade and collaboration, the United States
12
13
and Mexico have pursued trade liberalization through collaborative multilateral, regional
14
and bilateral negotiations, resulting in advantageous multi-faceted economic relationships
15
(e.g. North American Free Trade Agreement).13 Diplomacy is crucial to such
16
negotiations. SB 1070 impedes collaboration by pushing “nations that work together and
17
trade” to “mutual recrimination, which has been so useless and damaging in previous
18

19
10 Press Release, The White House, Remarks by President Obama and President
Calderón of Mexico at Joint Press Availability (May 19, 2010), available at
20
http://www.whitehouse.gov/the-press-office/remarks-president-obama-and-
president-calder-n-mexico-joint-press-availability. See also Tamar Jacoby,
21
Immigration Nation, 85 Foreign Affairs 50, 54-58 (2006).
11 Giovanni Peri, The Impact of Immigrants in Recession and Economic Expansion,
22
University of California Davis, at 10 (June 2010), available at
http://www.migrationpolicy.org/pubs/Peri-June2010.pdf.
23
12 Vera Pavlakovich-Kochi and Alberta H. Charney, Mexican Visitors to Arizona,
Economic and Business Research Center (Dec. 2008), available at
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http://ebr.eller.arizona.edu/research/ mexican_visitors_to_ arizona_2007_08.pdf.
13 Hornbeck, supra note 8, at 5; Villarreal, supra note 9, at 16-18.
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times.”14 Strained diplomatic ties substantially impede the ability of the U.S. and Mexico
2
to collaboratively develop, enhance and maintain commercial ties critical to their
3
economies.
4
B. SB 1070 Derails Efforts Towards Comprehensive Immigration Reform
5
With over eleven million nationals in the U.S., Mexico has a significant interest in
6
U.S. comprehensive immigration reform. The United States is equally interested in
7
Mexico’s involvement. In fact, one of the five immigration principles of the Obama
8
administration is to collaborate with Mexico.15
9
Immigration was a principal topic discussed by the presidents of Mexico and the
10
U.S. in their May 19, 2010 meeting. As President Barack Obama acknowledged, both
11
countries share a responsibility to address the issue. Among the responsibilities, he noted
12
Mexico’s efforts to create jobs and the United States’ efforts to “fix our broken
13
14
immigration system[.]”16 Both presidents expressed their belief that SB 1070 is a
15
“misdirected effort” to address immigration concerns, and that collaboration among the
16
two federal governments is essential to ensure that immigration reform “does not have an
17
adverse impact on the economies of [the border] regions.”17
18
19

20
14 Press Release, The White House, Remarks by President Calderón of Mexico at
Official Arrival Ceremony (May 19, 2010), available at
21
http://www.whitehouse.gov/the-press-office/remarks-president-calder-n-mexico-
official-arrival-ceremony. See also Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752, 770
22
(2004) (removing blockade to cross-border trucking); and Villarreal, supra note 9, at
20-24 (discussing Mexico-U.S. trade issues).
23
15 The White House, Immigration (last visited June 10, 2010),
http://www.whitehouse.gov/issues/immigration.
24
16 Remarks by Presidents Obama and Calderón, supra note 10.
17 Id.
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The effects of U.S.–Mexico migration to labor markets, tourism, business travel,
2
and education is of great importance to both the U.S. and Mexico.18 Mexican citizens
3
comprised the highest percentage (12%) of the 163 million non-immigrants legally
4
admitted into the United States in 2009, including tourists, business travelers, specialty
5
workers and students.19 Furthermore, as noted by President Obama, the countries also
6
profit from the intellectual exchange.20
7
Immigration policy is crucial to the communities of the 2000-mile U.S.–Mexico
8
border. As noted by President Obama, “there are enormous flows of trade and tourists
9
and people along the border region; the economies are interdependent[.]”21 In addition to
10
immigration, law enforcement policies are critical to border areas highly susceptible to
11
drug-related violence. Accordingly,
12
13
[r]ecognizing the importance of securing and facilitating the lawful flow of goods,
services, and people between their countries[,] [u]nderstanding that joint and
14
collaborative administration of their common border is critical to transforming
management of the border to enhance security and efficiency[, and u]nderstanding
15
that law enforcement coordination between the Participants is essential to
preventing crime and to disrupting and dismantling transnational criminal
16
organizations[,]”
17
on May 19, 2010, amicus and the United States entered into the Declaration by The
18
Government Of The United States Of America and The Government Of The United
19
Mexican States Concerning Twenty-First Century Border Management to express their
20

18 Id. See also, Jacoby, supra note 10, at 54-58 (noting that foreign labor has
21
complemented, not competed with, the U.S. labor force).
19 Randall Monger and MacReadie Barr, Nonimmigrant Admissions to the United
22
States: 2009, Department of Homeland Security Office of Immigration Statistics
(April 2010), available at http://www.dhs.gov/xlibrary/assets/statistics/
23
publications/ni_fr_2009.pdf.
20 Remarks by Presidents Obama and Calderón, supra note 10 (highlighting
24
Calderón’s U.S. education).
21 Id.
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