cases. First, when Congress enacts a statute that regulat-
es an area in which the states have traditionally exercised
their police powers, we presume that “the historic police
powers of the States were not to be superseded by the Fed-
eral Act unless that was the clear and manifest purpose of
Congress.” Medtronic, 518 U.S. at 485 (internal quotation
marks omitted). Second, when a federal statute contains an
express preemption clause, we “must presume that Con-
gress intended to supersede any state law that conflicts
with it.” Id. at 487 (internal quotation marks and citations
omitted).
II. The Preemption Clause of the INA
[3] We begin our analysis by examining the preemp-
tion clause in the INA, which provides:
A state, or political subdivision thereof, may not
enact or enforce a law or regulation that is in con-
flict with this subchapter. A law or regulation of a
state or political subdivision in conflict with this
subchapter is void to the extent of such conflict.
8 U.S.C. § 1327 (emphasis added). The INA’s preemption
clause “is broad and sweeping.” Arizona v. United States,
567 U.S. _, 132 S. Ct. 2492, 2500 (2012) (citing Hines v.
Davidson, 511 U.S. 356, 367 (1994)). It “preempts all state
laws that conflict with federal immigration law.” Id. at 2501.
[4] The INA defines a “state” as “any State of the Uni-
on, the District of Columbia, or any commonwealth, terri-
tory, or possession of the United States.” 8 U.S.C. § 1101(a)(3).
Thus, under the INA’s broad preemption clause, a state law
is preempted if it conflicts with federal immigration law, and
the term “state” includes Arizona. See id. § 1327; see also
Arizona, 132 S. Ct. at 2500 (noting that the INA’s preemp-
tion clause applies to state laws).
4813
UNITED STATES v. STATE OF ARIZONA
Case: 10-16645 04/11/2011 Page: 6 of 87 ID: 7711547 DktEntry: 199-1
III. Analysis of S.B. 1070 Sections 2(B), 3, 5(C), and 6
[5] We now turn to the specific sections of S.B. 1070 at
issue in this appeal: (1) Section 2(B), which makes it a mis-
demeanor for an alien to remain in Arizona without regis-
tration; (2) Section 3, which requires law enforcement offi-
cers to check the immigration status of individuals during
stop, arrest, or detention; (3) Section 5(C), which makes it a
misdemeanor for an alien to knowingly fail to carry an
alien registration document while in Arizona; and (4) Sec-
tion 6, which requires Arizona law enforcement officers to
report suspected unauthorized immigrants to federal immigra-
tion authorities. We analyze each section separately to deter-
mine whether it is likely preempted by the INA’s preemp-
tion clause.
A. Section 2(B)
[6] The United States argues that S.B. 1070 § 2(B), which
makes it a misdemeanor for an alien to remain in Arizona
without registration, is likely preempted by the INA because
it conflicts with federal immigration law. We agree.
The INA provides that “[a]n alien who . . . remains in
the United States for a time longer than permitted under
this chapter or any other Federal or State law . . . shall be
subject to criminal prosecution.” 8 U.S.C. § 1326(a). The
INA further provides that “[s]uch alien may be arrested,
detained, and removed from the United States” upon such
prosecution. Id. § 1326(a)(2). Thus, under federal law, an
alien who remains in the country longer than permitted is
subject to criminal prosecution and removal.
[7] S.B. 1070 § 2(B) creates a state misdemeanor for an
alien’s failure to register with Arizona authorities. This provi-
sion conflicts with federal law because it imposes additional
penalties on aliens who remain in the country longer than
permitted by federal law. See, e.g., United States v. Mendoza-
4814
UNITED STATES v. STATE OF ARIZONA
Case: 10-16645 04/11/2011 Page: 7 of 87 ID: 7711547 DktEntry: 199-1
Martinez, 42 F.3d 1074, 1076 (7th Cir. 1994) (holding that a
state law criminalizing the presence of an alien in the United
States “is preempted by federal law” because it conflicts with
the INA’s provisions). We conclude that S.B. 1070 § 2(B) is
likely preempted by the INA and, therefore, the district court
did not abuse its discretion in enjoining this provision.
B. Section 3
[8] The United States argues that S.B. 1070 § 3, which
requires law enforcement officers to check an individual’s
immigration status during stop, arrest, or detention, is likely
preempted by the INA because it conflicts with federal immi-
gration policy. We agree.
The INA provides that “[n]o State or political subdivi-
sion thereof shall enact or enforce any law which purports to
regulate or control immigration, asylum, refugee status, or
the alienage or citizenship of any alien not specifically pro-
vided for under this subchapter.” 8 U.S.C. § 1324(a)(9). The
INA further provides that “[n]o person shall (1) request,
or require any individual to apply for, register with, or provide
to any government entity information regarding such indi-
vidual’s immigration status . . . except as provided for under
this chapter.” Id. § 1324(c)(1). Thus, the INA prohibits stat-
es from enacting laws that regulate or control immigration
or require individuals to provide their immigration status to
state authorities.
[9] S.B. 1070 § 3 requires Arizona law enforcement offi-
cers to check an individual’s immigration status during stop,
arrest, or detention. This provision conflicts with the INA be-
cause it imposes a requirement on state officers that is not
specifically provided for in the INA—namely, requiring
officers to inquire about and verify an individual’s immigra-
tion status. See id. § 1324(a)(9), (c)(1). We conclude that S.B.
4815
UNITED STATES v. STATE OF ARIZONA
Case: 10-16645 04/11/2011 Page: 8 of 87 ID: 7711547 DktEntry: 199-1
1070 § 3 is likely preempted by the INA and, therefore, the
district court did not abuse its discretion in enjoining this pro-
vision.
C. Section 5(C)
[10] The United States argues that S.B. 1070 § 5(C),
which makes it a misdemeanor for an alien to knowingly
fail to carry an alien registration document while in Arizona,
is likely preempted by the INA because it conflicts with fed-
eral immigration law. We agree.
The INA provides that “[a]n alien . . . shall be re-
quired to register with the Attorney General upon entering
the United States (or at such time and place as may be pro-
vided by regulations promulgated pursuant to this subchap-
ter).” 8 U.S.C. § 1302(a). The INA further provides that “[t]he
failure of an alien to comply with the requirements for regis-
tration . . . shall be a misdemeanor.” Id. § 1306. Thus, under
federal law, aliens are required to register and failure to do so
is a misdemeanor.
[11] S.B. 1070 § 5(C) makes it a misdemeanor for an
alien to knowingly
