U.S. v. Arizona - Exh 1 to Motion for Preliminary Injunction - Affidavit of James Steinberg

8/9/2019 U.S. v. Arizona - Exh 1 to Motion for Preliminary Injunction - Affidavit of James Steinberg

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EXHIBIT 1

Case 2:10-cv-01413-NVW Document 6-1 Filed 07/06/10 Page 1 of 29


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UNITED STATES DISTRICT COURTFOR THE D ISTRICT OF ARIZONA

THE UNITED STATES OF AMERICA,Plaintiff, Civil Action No.

v.THE STATE OF ARIZON A, et al .,

Defendants.

DEC L AR AT IO N O F JAMES B . ST EIN B ER GPursuant to 28 U.S.C. 1746, I, James B. Steinberg, declare and state as follows:

1. I am Deputy Secretary of State. I make this declaration based on my personalknowledge and on information I have received in my o fficial capacity.

2. I have served as Deputy Secretary of State since January 28, 2009.Immediately prior to joining the Department of State, I served as D ean of the Lyndon B.Johnson School o f Public Affairs at the University of Texas at A ustin. From 1993 to1994, I served as D eputy Assistant Secretary of S tate for analysis in the Bureau o fIntelligence and Research, and from 1994 to 1996 as Director of the Department ofState's Policy Planning Staff. From December 1996 to August 2000, I served as DeputyNational Security Adviser on the staff of the National Security Council. From 2001-2005, I was the President and D irector of Fo reign Policy Studies at the BrookingsInstitution in Washington, D .C.

3. In my capacity as Deputy Secretary of State, I assist the Secretary of State in1



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the formulation and conduct of U.S. foreign policy and in giving general supervision anddirection to all elements of the Department. I have delegated authority to act on behalf ofthe Secretary of State, and assist the Secretary in represen ting the United States atinternational meetings and performing other representational assignments with seniorforeign governmen t officials.

4. I have read and am familiar with Arizona law S.B. 1070. I am also familiarwith the reactions of foreign governments to the law.

5. As I explain further below, U.S. federal immigration law incorporatesforeign relations concerns by providing a comprehensive range of tools for regulatingentry and enforcement. These may be employed with sensitivity to the spectrum offoreign relations interests and priorities of the national government. By contrast, Arizonalaw S.B . 1070 establishes a single, inflexible, state-specific immigration po licy basednarrowly on criminal sanctions that is not responsive to these concerns, and willunnecessarily antagonize foreign governments. If allowed to enter into force, S.B. 1070would result in significant and ongoing consequences for U.S. foreign relations.

6. Through the Immigration and Nationality Act ("INA") and other federallaws, the national government has developed a co mprehensive regime of immigrationregulation, administration, and enforcement, in which the Department of State

participates. This regime is designed to accommodate complex and important U.S.foreign relations priorities that are implicated by imm igration policy -- includinghumanitarian and refugee protection, access for diplomats and official foreign visitors,national security and counterterrorism, criminal law enforcement, and the promotion of

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U.S. human rights policies abroad. To allow the national government flexibility inaddressing these concerns, the INA provides the Executive Branch with a range ofregulatory options governing the entry, treatment and departure of aliens. Moreover,foreign governments' reactions to immigration policies and the treatment of theirnationals in the U.S. impac ts not only imm igration matters, but also any other issue inwhich we seek cooperation with foreign states, including international trade, tourism, andsecurity cooperation. These foreign relations priorities and policy impacts are ones towhich the na tional governm ent is sensitive in ways that individual states are not.

7. By rigidly imposing a singular, mandatory form of criminal immigrationenforcement through m andatory verification of imm igration status and criminalenforcement of alien registration, S.B. 1070 deviates from the national government'spolicy of calibrated immigration enforcement. The Arizona law also uniquely burdensforeign nationals by criminalizing work and travel beyond the restrictions imposed byU.S. law. These multiple, interlinking procedural and criminal provisions, adopted inorder to enforc e an explicit state policy of "attrition through enforc emen t," all man ifestArizona's intention to globally influence immigration enforcement. S.B. 1070 therebyundermines the diverse immigration administration and enforcem ent tools made availableto federal authorities, and establishes a distinct state-specific imm igration policy, drivenby an individual state's own policy choices, which risks significant harassment of foreignnationals, is insensitive to U.S. foreign affa irs priorities, and has the potential to harm awide range of delicate U.S. foreign relations interests.

8. Indeed, although it was only adopted in April 2010, is the law of only one3



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state, and has n ot yet gone into effect, Arizona law S.B. 1070 already has provokedsignificant criticism in U.S. bilateral relationships with many countries, particularly in theW estern H emisphere, as well as in a variety of regional and multilateral bodies. Foreigngovernments and international bodies have expressed significant concerns regarding thepotential for discriminatory treatment of foreign nationals posed by S.B. 1070, amongother issues.

9. By deviating from federal immigration enforcem ent policies as well asfederal rules governing w ork and travel by foreign nation als, S.B. 1070 threatens at leastthree different serious harms to U.S. foreign relations. First, S.B. 1070 risks reciprocaland retaliatory treatment of U.S. citizens abroad, whom foreign governments m ay subjectto equivalently rigid or otherwise hos tile imm igration regulations, with significantpotential harm to the ability of U.S. citizens to travel, cond uct business, and live abroad.Reciprocal treatment is a significant concern in immigration policy, and U.S. immigrationlaws must always be adopted and administered with sensitivity to the potential forreciprocal or retaliatory treatment of U.S. nationals by foreign governments.

10. Second, S.B. 1070 nec essarily antagonizes foreign gov ernments and theirpopulations, both at home an d in the U.S., likely making them less willing to negotiate,cooperate with, or support the United States across a broad range of important foreignpolicy issues. U.S. immigration policy and treatment of foreign nationals can directlyaffect the United States' ability to negotiate and implement favourable trade andinvestment agreements, to co ordinate disaster response arrangements, to securecooperation on counterterrorism or drug trafficking operations, and to obtain cooperation

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in international bodies on priority U.S. goals such as nuclear non-proliferation, amongother important U.S. interests. The law has already complicated our efforts to pursuebroader U.S. priorities. S.B. 1070's impact is likely to be most acute, moreover, amongour many important democratic allies, as those governments are most likely to beresponsive to the concerns of their constituents and the treatment of their own nationalsabroad.

11. Third, S.B. 1070 threatens to und ermine our standing in regional andmultilateral bodies that address migration and human rights matters and to hamper ourability to advocate effectively internationally for the advancement of human rights andother U.S. values. Multilateral, regional and bilateral engagement on human rights issuesand the international prom otion of the rule of law is a high priority for the United States,and for this Administration. Consistency in U.S. practices at home is critical for us to beable to argue for international law consistency abroad. By deviating from national policyin this area, S.B. 1070 m ay place the U.S. in tension w ith our international treatyobligations and commitments and compromise our position in bilateral, regional andmultilateral conversations regarding human rights.

12. In all activities relating to U.S f oreign relations, including imm igration, theUnited States is constantly engaged in weighing multiple competing considerations andchoo sing amon g priorities in order to develop an o verall foreign policy strategy that willmost effectively advance U.S. interests. The United States likewise is constantly seekingthe support of foreign governments through a delicately-navigated balance of interestsacross the entire range of U.S. national policy goals. Only the national government has

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the information av ailable to it to be able to appropriately evaluate these choices on acontinuing basis in response to fluctuating events on the international stage. Because ofthe broad-based and often unintended w ays in which U .S. immigration policies canadversely imp act our foreign relations, it is critically important that nation al immigrationpolicy be governed by a uniform legal regime, and that decisions regarding thedevelopment and enforcem ent of immigration policy be m ade by the nationalgovernment, so that the United States can speak to the international arena with one voicein this area.

13. While isolated state enactments that incidentally touch on immigration maynot implicate foreign policy concerns (or may implicate them only slightly), Arizona'slaw more directly and severely impacts United States foreign policy interests byestablishing an alternative immigration policy of m ultiple, interlinking procedural andcriminal provisions, all of which man ifest Arizona's intention to globally influenceimmigration enforcement. As I understand it, Arizona's effort to set its own immigrationpolicy is markedly different from instances in wh ich states and localities assist andcooperate with the federal government in the enforcement of federal immigration laws.W hen states and localities work in co ncert with the federal government, the likelihood forconflicts with U.S. foreign policy interests is greatly diminished. When states andlocalities assist the federal governm ent, and take me asures that are in line with federalpriorities, then the U nited States retains its ability to speak w ith one voice o n ma tters ofimm igration policy, which in turn enables it to keep con trol of the message it sends to

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foreign states and to calibrate responses as it deems appropriate, given the ever-changingdynam ics of foreign relations.

14. By contrast, by pursuing a singular policy of criminal enforcement-at-all-costs through, among other things, imposing an extraordinary mandatory verificationregime coupled with what is effectively state criminalization of unlawful presence, S.B.1070 is likely to provoke retaliatory treatmen t of U.S. nationals overse as, weaken pub licsupport among key domestic constituencies abroad for coo perating with the U .S, andendan ger our ability to negotiate international arrangem ents and to seek bilateral, regionalor multilateral support across a range of economic, human rights, security, and other non-immigration concerns, and be a source of ongoing criticism in international fora.Arizona's unprecedented effort to set its own, contrary immigration policy predictablyconflicts with U.S. foreign policy interests and with the United States' ability to speakwith one voice.I..S. Imm igration Law I ncorporates Foreign Relations Concerns15. The Secretary of State is charged with the day-to-day conduct of U .S.foreign affairs, as directed by the President, and exercises autho rity derived from thePresident's powers to represent the United States under Article II of the Constitution andfrom statute. A s part of these responsibilities, the Departm ent of State plays a substantialrole in administering U.S. immigration law and policy, as well as in managing and

negotiating its foreign relations aspects and impact. Within the Department of State, theBureau of Consular Affairs has responsibility for the adjudication and issuance ofpassports, visas, and related services; protection and welfare of U.S. citizens and interests

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abroad; third-country representation of interests of foreign governments; and thedetermination of nationality of persons not in the United States. See 1 Foreign AffairsManual 250. 1 Several other bureaus within the Department of State, including the Bureauof Population, Refugees and Migration; the Bureau of H uman R ights, Democ racy andLabor; the Bureau of International Organization Affairs; and all regional bureaus areroutinely engaged in negotiations and multilateral diplomatic and policy work in global,regional, and bilateral forums on migration issues. Collectively, the Department of Statepromotes U.S. policies internationally in this area and bears the burden of managingforeign governments' objections to the treatment of their nationals in the United States.

16. U.S. law, and particularly Section 104 of the INA, as am ended by theHom eland Security Act, invests the Secretary of State with specific pow ers and dutiesrelating to immigration and nationality. A 2003 Memorandum of Understanding Betweenthe Secretaries of S tate and H omeland Security Concerning Im plementation of Section428 of the Homeland Security Act of 2002, 1(b), provided that the Secretary ofHomeland Security would establish visa policy, review implementation of that policy,and provide additional direction as provided in the M OU , while respecting theprerogatives of the Secretary of State to lead and manage the c onsular corps and itsfunctions, to manage the visa process, and to execute the foreign policy of the UnitedStates.1 The Secretary of State's authorities under the INA are found in various provisions,including 104, 105, 349(a)(5), 358, and 359 (8 U .S.C. 1104, 1105, 1481(a)(5),1501, and 1502) (visa and other immigration-related laws). The Department alsoexercises passport-related authorities, including those found at 22 U .S.C. 211a, et seq.

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17. Our immigration laws, including those administered by the Department ofState, are crafted to incorporate and acc omm odate a w ide range of sensitive U.S. foreignrelations concerns. Our visa regime, for example, both embodies and permitsconsideration of U.S. diplomatic, human rights, and other foreign relations interests. Togive but a few examples, the INA authorizes the Secretary of State to help determinewhich diplom ats are entitled to diplomatic visas to represent their countries in the UnitedStates. INA 101(a)(15)(A). INA 243(d) authorizes the Secretary of State todetermine the scope of visa sanctions that will be imposed on countries, uponnotification from DHS that such countries have denied or unreasonably delayedaccepting their nationals back from the United States. The INA also authorizes theSecretary of State to deny visas to aliens whose entry or proposed activity in the UnitedStates "would have potentially serious adverse foreign policy consequences." S ee INA 212(a)(3)(C). During the Honduran constitutional crisis in 2009, the State Departmentimposed visa restrictions and revoked several visas under this authority to encourage thede facto governm ent to enter into good faith negotiations w ith deposed President Zelaya.Likewise, under the auspices of INA 212(f) and Presidential Proclamation 7750, theState Department recently revoked several visas for officials who engaged in o r benefitedfrom co rruption, in an effort to bring pressure to bear on othe r countries to investigateand eliminate corruption by their government officials.

18. Further, our law provides for the den ial of U.S. visas on security andrelated grounds to aliens wh o are anticipated to violate U.S. law follow ing entry into theUn ited States and those w ith a broad range of ties to terrorism, including those w ith

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certain ties to groups that a consular officer or the Secretary of S tate reasonably believeshas engaged in terrorist activity, as defined in the INA, 212(a)(3)(B). Our visa lawsalso deny adm ission and make subject to remov al aliens who participated in human rightsviolations such as genocide or torture. 2 And even the general authority to issue visasrequires Depa rtment officials to mon itor the political, legal, econom ic, and culturaldevelopm ents in foreign countries for m atters directly relevant to the full range of visaineligibilities (e.g., econo mic, dem ographic, political, ethnicity, criminal, and securityissues).

19. Finally, under section 244 of the IN A, 8 U .S.C. 1254a, U.S. law alsoprovides for temporary protected status ("TPS"), a temporary immigration status whichpermits eligible foreign nationals who are already present in the Un ited States to remainin the United States and obtain employment authorization. TPS is available to eligibleforeign nationals who, due to armed conflict, an environmental disaster, or extraordinaryand tem porary con ditions in their states of nationality, may face risk to personal safety ifreturned to that state while such conditions persist. Recent examples include thedesignation this year of Haiti for TPS following the devastating earthquake in thatcountry, and the extension of Sudan's designation as a result of ongoing armed c onflict.DHS administers the program and, pursuant to the statute, routinely consults with theState Department for its views on issues relevant to determinations whether to designateor continue to de signate a foreign state or part thereof for TPS , including whether the2 8 U.S.C. 1182(a)(2)(G), 1182(a)(3)(E), and 1182(a)(3)(G) (inadmissible); 8 U.S.C. 1227(a)(4)(D)-(4)(F) (removable).

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statutory criteria are satisfied in each case. TPS furthers certain U.S. foreign policyinterests by facilitating provision of hum anitarian protection to eligible persons whomight otherwise be subject to removal to their home countries in times of armed conflict,environmental disasters, or other extenuating and temporary conditions. The impact ofthe program can be significant: DHS estimated that 100,000 to 200,000 individuals wereeligible for TPS under the Haiti designation.II..S. Im migration Practices Significantly Im pact Our F oreign Relations20. In addition to incorporating foreign relations concerns, the United States'choices with respect to immigration policies and practices also have a significant impacton our foreign relations. Again using State Department visa processes as an example, theprocess for visa issuance and denial is of great interest to foreign governments, owing tothe direct impact the visa process has on the affairs of their own nationals. Similarly,domestic processes for arrest, detention, and removal of aliens and other aspects of theirtreatment in the U .S. are of great interest to foreign governments because of the impactthese processes have on foreign nationals and their families. Aspects of U.S. immigrationlaws, such as the prohibitions on remo val of an individual to a country w here it is morelikely than not that he w ould be tortured, and on removal o f a refugee to a country wherehis life or freedom would be threaten ed on ac coun t of his race, religion, nationality,mem bership in a particular social group, or political affiliation, implemen t U.S. treatyobligations under the Convention A gainst Torture and Other Cruel, Inhuman orDegrading Treatment or Punishment, and the 1967 Protocol to the U.N . Conventionrelating to the Status of Refugees.

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21. Given the diplom atic, legal, and policy sensitivities surrounding imm igrationissues, even small changes in U.S. immigration laws, policies, and practices can provokea substantial international reaction -- both in the imm igration context and ac rossAmerican diplomatic concerns. It is for this reason that, although federal law recognizesthat states and localities may play beneficial roles in assisting in the enforcement offederal immigration law, see 8 U.S.C . 1357(g)(10), the authority to directly regulateimmigration has been assigned exclusively to the federal government.

22. Indeed, countries routinely raise concerns about such changes in bilateral,regional and multilateral arenas. The exercise of immigration functions can quicklyprovoke a significant bilateral or multilateral problem that harm s U.S. interests if handledwithout appropriate consideration of relevant foreign policy impacts. The Department ofState is often in the position of interacting directly with foreign governments in managingthe impact of these bilateral problems. For example, decisions regarding the issuance ofindividual visas to controversial figures, such as leaders of foreign governments withwhich the United States experiences significant diplomatic tensions, prominentindividuals with checke red pasts, and delegates to international bodies, require a fullreview of U.S. government equities, including foreign policy interests and considerationof international treaties to which the United States is a party. Requirements that aconsular officer adjudicating a visa application obtain a Security Advisory Opinion("SAO ") or Adv isory Opinion ("AO") can significantly delay visa processing and createtension, particularly, but not only, when the applicant is a foreign gove rnmen t official orother high profile individual. The broad terrorism-related provisions in the INA have also

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been criticized by foreign governments and officials and raised as obstacles to bilateralcooperation.

A. R eciprocal Harm to U.S. Citizens A broad23. Specifically, U.S. immigration policies and practices can have immediate

and substantial impacts on the treatment of U.S. nationals abroad. INA 221(c), forexam ple, requires the length of validity for visas to be reciprocal as far as pra cticable.Even relatively non-controv ersial issues such as the period of va lidity of a visa and thefees charged are the subject of discussion, negotiation, and agreement among countriesand have a direct impact on how other governments treat U.S. citizens who wish to travelabroad. For example, in the recent past, some countries have responded to changes inU.S. visa charge s by significantly raising the entry fees charge d to U.S. nationals by thosecountries. The Enhanc ed Border Sec urity and V isa Entry Reform A ct of 2002, whichrequires the fingerprinting of foreign nationals for the visa application process and inorder to enter the Un ited States, was the subject of m uch criticism by other governmentsand c aused some governments to consider taking reciprocal retaliatory action againstU.S. nationals. For example, Brazil reserves the right to require a thumbprint ofAm ericans upon entry into Brazil.

24. In the area of consular services, how we treat foreign nationals who arepresent in the United States likewise can impact how a foreign government treats U.S.citizens present in its country. For example, the Department of State proactively takes anumber of steps to ensure U.S. com pliance w ith our obligation under Article 36 of theVienna C onvention on C onsular Relations ("VCC R"), which requires that all foreign

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nationals in custody in the United States be informed of their option to request to meetwith a consular official. The Department does so in important part in order to increasethe likelihood that such notification and consular access are provided to U.S. citizens whoare detained abroad.

25. Accordingly, the State Department not only considers carefully the foreignpolicy goals and consequences of its immigration-related decisions, but also the potentialimpact of those decisions on the reciprocal treatment of U.S. citizens by the relevantforeign government.

B. Impact in Regional and Multilateral Fora26. The situation of foreign nationa ls within a country, particularly questions

relating to the protection of the human rights of m igrants, regardless of their imm igrationstatus, is a matter of international concern and is addressed by international treaties. TheUnited Nations and regional bodies such as the Organization of Am erican States("OAS"), a regional intergovernmental organization comprised of all thirty-five States ofthe Americas, have established institutions and mechanisms for the discussion,examination, and oversight of international migration policy. As a matter of longstandinghuman rights and humanitarian policy, the United States government strongly supportsinternational efforts to protect migrants, who a re typically especially vulnerable tomistreatment and abuse. Accordingly, the United States as a matter of its foreign policyengages ac tively in regional and multilateral human rights fora, through which the Un itedStates promotes respect for human rights (including the human rights of migrants), therule of law, and respect for other U .S. values.

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27. As part of the international migration framework, the United States hasratified several global human rights treaties which impose ob ligations on States Partiesregarding the rights of person s, including migrants, within their territories, often w ithoutregard to the legal status of a non-national within a State's territory. Such treaties includethe International Covenant on Civil and Political Rights, the International Convention onthe Elimination of All Forms o f Racial D iscrimination, and the Conven tion AgainstTorture. The United States is party to law enforcement conventions that addressmultilateral cooperation on imm igration issues and the rights of certain migrants,including the U nited Nations Conven tion Against Transnational Organized C rime andtwo of its supplementing Protocols: the Protocol Against the Smuggling of M igrants byLand, Sea an d A ir and the Protocol to P revent, Suppress and P unish Trafficking inPersons, Especially W omen and C hildren. These protocols require States Parties toprotect the rights of smuggled aliens. Other relevant conventions include the 1967Protocol relating to the Status of Refugees, the Vienna C onvention on ConsularRelations, and various bilateral Friendship, Commerce and Navigation treaties creatingreciprocal treatment obligations toward foreign nationals.

28. Many UN human rights conventions, including those referenced above,establish expert treaty bodies which are responsible for monitoring compliance byreviewing and com menting upon reports from S tates Parties regarding implementation oftheir treaty obligations. These expert bodies routinely address immigration andmigration-related issues, and criticize states, including the U nited States, for laws andpolicies which, in their view , raise questions abou t unfair, arbitrary, or racially

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discriminatory treatment of migrants, or other human rights concerns. Such criticisms arepublic, are often the subject of further discussion in UN bodies, and ma y be raiseddirectly with the United States in bilateral exchanges with foreign co untries.

29. Additionally, the United Nations General Assembly and other U N o rgansroutinely adopt resolutions regarding the human rights and protection of migrants. TheUN has also established "special mechanisms" or "independent experts," includingspecial rapporteurs, that investigate and issue reports and make recommendationsregarding the human rights of migrants.

30. At the regional level, the OA S has several organs in w hich issues related tomigration policy and the treatment of migrants are raised. Like the UN GeneralAssembly, the OA S G eneral Assembly adopts resolutions on a range of topics includingthe human rights of migrants. Additionally, within the OAS system, the Inter-AmericanCom mission on Human Rights ("IACH R"), which is based in Washington, D.C.,promotes respect for human rights, including by issuing statements and reports andholding hearings and ad opting findings in response to individual petitions regarding abreach of a Member State's human rights commitments. The IACHR often expressesconcern about the treatment of migrants by OA S M ember States, including the UnitedStates. For example, in addition to recent hearings related to the enforcement of U.S.immigration laws an d policies, the IAC HR is in the process of preparing a thematicreport which we und erstand will address issues related to enforcement of U .S.immigration laws and policies.

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specifically focused on issues related to the human rights of migrants, also providevenues in which States address issues related to migration generally, and which ofteninclude issues related to the treatment of m igrants within a State's domestic legal andpolicy framework. These include the International Organization for Migration, theRegional Conference on M igration (Western Hemisphere), the UN High Level Dialogueon International Migration and D evelopment, the Global Forum on Migration andDevelopment, the International Labor Organization, the UN Office for D rug Control andCrime Preven tion, and others.

32. As bo th a matter of international law an d practice, the federal governmentis held accountab le internationally for the actions of state and local authorities regardingour treatment of foreign nationals. International bodies and foreign governments do nottypically distinguish between the c onduct of the national government and the co nduct ofan individual state within a federal system. This is starkly evidenced by the UnitedStates' experience in cases where state and local government authorities have failed tocomply w ith U.S. obligations under the VCC R to provide consular notification to allforeign nationals in U.S. custody. Failure to provide such notice by state officials has ledto three suits by Paraguay, Germany and M exico against the United States in theInternational Court of Justice, an advisory opinion sought by Mexico in the Inter-Am erican Court of H uman Rights, a petition against the U nited States in the Inter-Am erican Comm ission on Human Rights, and bilateral complaints by numerous foreigngovernments.

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its international law obligations and foreign policy commitments and engages in thesefora to address such claims. Although the government is fully prepared to defend U.S.practices against unjustified claims of human rights shortcomings, criticism from aninternational body over immigration human rights issues can directly undercut thecredibility of U.S. efforts to advance human rights and can lead to significant diplomaticobstacles both on immigration issues of bilateral concern and o n other interests thatmight be the subject of diplomatic negotiations. As discussed below, in this context, S.B1070's sweep into subjects left properly to federal direction and co ntrol subjects theUn ited States to this criticism while denying the U nited States the tools to decide foritself whether and how to adjust such policies. The federal government should have tomake its defenses or consider appropriate modifications only with regard to policies thatare adopted through a considered process that reflects the interests of all the Americanpeople, not with regard to the views of one state.III. Arizona Law S.B. 1070's Harm to U.S. Foreign Relations

34. Given the diplomatic and foreign relations sensitivities surrounding U.S.immigration policy generally, and the significant foreign relations consequences that canresult from even sm all changes in these policies, and given that S.B. 1070 purports toimpose A rizona's ow n imm igration policy of "attrition through enforcement" through,among other provisions, mandatory verification of immigration status and state criminalenforce men t of alien registration, it is not surprising that S.B. 1070 already ha s provokedsignificant international controversy. The law elevates the criminal aspect of federalimmigration enforcement above all others, threatening state criminal penalties for

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violations of federal imm igration law. Un ited States imm igration law and our uniformforeign policy regarding the treatment of foreign nationals h as been that the unlawfulpresence o f a foreign national, without mo re, ordinarily will not lead to that foreignnational's criminal arrest or incarceration, but instead to civil removal proceedings. Thisis a policy that is understood intern ationally and one w hich is both important to andsupported by foreign governments. S.B. 1070 violates this aspect of Americanimmigration law and foreign policy by effectively allowing for criminal sanctions basedon unlawful presence alone. It deviates from federal law by imposing mandatoryverification of immigration status and criminal enforcement of alien registration, and bycriminalizing work and travel by foreign nationals beyond the restrictions imposed byU.S. law. In so doing, the law has already provoked significant negative reaction in U.S.bilateral relationships and in region al and m ultilateral fora.

35. Such criticism is not without costs. To the contrary, the criticism provokedby the Arizona law threatens at least three direct harms to U.S. foreign relations. Asnoted above, such a change in immigration policy invariably risks the adoption ofharmful reciprocal policies toward U.S. nationals by foreign governments. It alsounderm ines the willingness of foreign states to engage bilaterally and multilaterally withthe United States to advance U.S. foreign policy goals, and it erodes the credibility ofUnited States efforts in regional and multilateral intergovernmental bodies to advancehuman rights.

A. Impact on Bilateral Relationships36. S.B. 1070 has unquestionably generated negative reaction that has damaged

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the public image of the U nited States and has thereby undermined the U nited States'ability to pursue various diplomatic objectives. The law has provoked numerous publiccriticisms by go vernments w ith which the U nited States maintains important andsensitive diplomatic relations.

37. In Mexico, S.B. 1070 has precipitated a sharply negative public perceptionof the attitude toward immigrants in Arizona (and potentially by extension elsewhere inthe U.S.), which in turn has negatively affected diplomatic processes with M exicangovernment officials. The Mexican President, Mexican Cabinet Members, the MexicanCongress, and opinion makers in M exico all have reacted strongly in response to the law.These voices have also expressed concern about the safety of Mexicans in A rizona.

38. During his recent visit to Washington, for example, Mexico's PresidentCalder& pointedly criticized the law, both during his joint press conference withPresident Obama on M ay 19 and in his address to the United States Congress on May 20.Speaking to the Congress, he em phasized the need for comprehensive immigrationreform and fo cused attention specifically on the Arizona law:

I am convinced that com prehensive imm igration reform is also crucial tosecure our common border. However, I strongly disagree with the recentlyadopted law in Arizona. It is a law that not only ignores a reality thatcann ot be erased by dec ree but also introduces a terrible idea: using racialprofiling as a basis for law enf orcem ent. And that is why I agree withPresident Obama, who said the new law "carries a great amount of riskwhen c ore values that we all care about are breached." I wan t to bridge thegap of feelings and em otions between our countries and our peoples. Ibelieve in this. I believe in communications, I believe in cooperation, andwe together must find a better way to face and fix this comm on problem.39. President CalderOn's criticisms reflect how negatively S.B. 1070 has

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affected public attitudes in M exico toward the U nited States. A recent poll in Mexico bythe Pew Global Attitudes Project, for example, indicates that whereas before the adoptionof the A rizona law 62 percent of those polled had a favorable attitude toward the U nitedStates and only 27 percent had an unfavorable attitude, following its adoption only 44percent had a favorable attitude toward the U.S., while 48 had an unfavorable attitude.See T he A rizona Effect on U.S . Favorability in M exico, available at www .pewglobal.org .The poll dem onstrates that an effort to establish a divergent imm igration policy by asingle state, which has n ot yet even gon e into effect, nevertheless can significan tly harmforeign attitudes toward the United States as a whole. Such effect in turn can seriouslyundermine support among important Mexican constituencies for Mexico's cooperationwith the United States.

40. Bolivia's President Morales, Ecuador's President Correa, El Salvador'sPresident Funes and Guatemala's President Colom have also voiced public criticism ofthe Arizona law. Other governments, including that of Brazil, Colombia, Honduras, andNicaragua have issued statements criticizing the law. Additionally, the NationalAssemblies in Ecuador and N icaragua, and the Central Am erican Parliament based inGuatemala, have adopted critical resolutions or other statements. S.B. 1070 has also beenraised with high level U.S. officials by various foreign states on a num ber of occa sions innonpublic settings.

41. Concrete steps also have been taken in response to S.B. 1070. For example,M exico and E l Salvador have issued trav el warnings or alerts to their citizens traveling inthe United States.

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42. S.B. 1070 also already has negatively affected other A merican interests.As a direct result of the Arizona law, at least five of the six M exican Governors invited totravel to Phoenix to participate in the September 8-10, 2010 U .S.-Mexico BorderGovernors' Conference have declined the invitation. Although not a formal binationalgovernment-to-government meeting, this annual conference is an important venue forimproving binational coordination of border issues that inherently involve federal, state,and other levels of government. It is normally attended by most of the 10 U.S. andMexican state governors, as well as some federal U.S. and M exican governmentrepresentatives who serve as technical advisors.

43. The M exican Senate stated it would postpone review of a U.S.-Mexicoagreement on em ergency managem ent cooperation to address natural disasters andaccidents signed on October 23, 2008 because of the new Arizona law.

44. Neg ative effects such as these are on ly likely to intensify if S.B. 1070 goesinto effect.

B. Impact on Regional and Multilateral Relationships45. The Arizona legislature's adoption of S.B. 1070 also prompted harsh

criticism of the law in human rights forums, demonstrating in practical terms the negativeconsequences that unilateral action by a single U.S. state can have on U.S. foreign policyinterests. The law has diminished our credibility in advocating for human rightscompliance abroad by o thers, and if allowed to go into effect, will continue to do so.

46. A number of U.N. and regional intergovernmental organizations and bodies,

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including those whose mandates explicitly include the promotion of human rights, havecriticized S.B. 1070. For example, on May 10, 2010, six UN human rights experts (theSpecial Rapporteur on the Hum an R ights of M igrants, the Special Rapporteur onContemporary Forms of Racism, Racial Discrimination, Xenophobia and R elatedIntolerance, the Special Rapporteur on the Situation of Hum an R ights and FundamentalFreedoms o f Indigenous People, the Independent Expert in the Field of Cultural Rights,the Special Rapporteur on the Right to Education, and the Independen t Expert onMinority Issues) issued a joint statement specifically addressing the Arizona law:

A d isturbing pattern of legislative activity hostile to ethnic m inorities andimmigrants has been established with the adoption of an immigration law[in Arizona] that may allow fo r police action targeting individuals on thebasis of their perceived ethnic origin.... In Arizona, persons who appear tobe of Mexican, Latin American, or indigenous origin are especially at riskof being targeted under the law.The UN independent experts stressed that "legal experts differ on thepotential effects of recent amendments to the immigration law that relate tothe cond itions for the official detention of suspected illegal aliens," andexpressed concern about the "vague standards and sweeping language ofArizona's immigration law, which raise serious doubts about the law'scom patibility with relevant international human rights treaties to which theUn ited States is a party."

47. Ad ditionally, in June 201 0, at the 14 t h session of the UN Human RightsCouncil, the membership body w ithin the United N ations system c harged with promotinghuman rights and addressing situations of human rights violations, many countriescriticized laws that criminalize irregular migration and discriminatory practices in theenforcement of immigration laws, and several states explicitly singled out S.B. 1070 forcriticism in their plenary rema rks.

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48. W ithin the Inter-American regional system, on April 28, 2010, OASSecretary General Jose Miguel Insulza stated that S.B. 1070 "is an issue of concern to allcitizens of the Am ericas" and warned against the possibility of c reating an environmentof discrimination in the United States, in light of its significant Hispanic population. Headded that "the rich tradition we all admire, of recogn izing immigrants in the Un itedStates has been harmed, undermined." He recognized the efforts of the U.S. governmentto legislate on the m atter in a constructive way, adding,

This has been a painful moment, difficult for everyone, and it is why werecognize and salute with energy the way in which the government ofPresident Barack Obama has reacted faced with this fact. For our part, weare going to follow up and always act with greater unity of purpose becauseI believe that all of us here present share the pro blems this law crea tes.

Many permanent representatives of OA S M ember States also criticized the law both atthe Permanent Council in Washington and at the June 2010 OAS General assembly inLima, Peru.

49. Separately, on A pril 28, 2010, the IACH R vo iced its concern over the "highrisk of racial discrimination in the implementation of the law" and expressed concern"with the criminalization of the presence of undocumented persons." The IACHRexhorted "U.S. authorities to find adequate measures to modify the recently approved lawin the State of Arizona in ord er to bring it into acco rdance w ith international human rightsstandards for the protection of migrants."

50. Finally, on May 4, 2010, heads of government at a summit of the Union ofSouth Am erican Nations ("UNA SUR "), which is comprised of A rgentina, Bolivia, Brazil,Chile, Colombia, Ecuador, Guyan a, Paraguay, Peru, Suriname, Uruguay, and V enezuela,

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adopted a statement condemning the law, claiming it could lead to the legitimization ofracist attitudes and the latent risk of violence.

51. In short, the passage of Arizona S.B. 1070 has provoked broad-basedcriticism and con cern amon g U.S. allies in the Western H emisphere, by human rightsexperts, and in numerous intergovernmental fora. Nor can such criticism be readilydismissed. Such criticism, particularly when provoked by an independent immigrationenforcement policy being pursued by a U .S. state, and w hich the national governmentdoes no t control or endorse, affec ts the United States' standing in bilateral, regional andinternational relationships, and ultimately the leadership role of the United S tates as weseek to advance a wide range of policy goals within the international community. It risksretaliatory harms against to the legal rights of U.S. nationals abroad. And it compromisesour ability to engage effec tively in bilateral, regional and m ultilateral conv ersationsregarding human rights.

C. Future Ramifications52. If S.B. 1070 w ere to enter into effe ct, criticism will likely increase, and the

risk of such harms will escalate. The Arizona law could have an increasingly causticimpact on the U nited States' relations with important regional allies, underm ineadditional diplomatic arrangements or opportunities for international cooperation,constitute an on going irritant in U.S. bilateral, regional and m ultilateral relationships, andsubject the United States to on going criticism in international fora.

53. A few such circumstances are readily foreseeable. This fall, for example,

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the United States will send a high level U.S. delegation to the UN Hum an RightsCouncil's Universal Periodic Review in Geneva, at which the United States will bequestioned by other UN Member States regarding our human rights practices. ThisUniversal Periodic Review is conducted once every four years for each UN Mem berState, and the United States will be presenting for the first time. It is highly likely thatthe Arizona law will be one of the concerns raised during the questioning by otherdelegations.

54. Likewise, the United States would undoubtedly be criticized for S.B. 1070by UN human rights treaty mo nitoring bodies in the context of U .S. human rights treatyreporting requirements. Within the next two years alone, the United States will beexpected to report to both the UN H uman R ights Com mittee and the Committee on theElimination of Racial Discrimination, and thereafter will be expected to appear beforeeach body to defend the United States' record of human rights compliance. S.B. 1070, ifstill in effect, wo uld very likely be the subject of criticism befo re both bodies.

55. If S.B. 1070, Arizona's attempt to set its own immigration policy in pursuitof "attrition through en forcem ent," were to go into effec t, it would directly call intoquestion the ability of the United States to speak with one vo ice at the international levelon issues related to immigration and migration policy. Only the national government isin a position to accurately assess the impact of a po licy such as S.B. 1070 on ou r overallforeign relations agenda and to balance the competing foreign relations considerationsinvolved in the adoption and enforcement of such a law. When the United States incurscriticism of imm igration law and policies adopted a t the federal level, the United States is

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normally in a position to review the criticism and determine whether to defend thepractices against attack or else to take appropriate action to modify its practices. TheUnited States is also able to develop and implement immigration policy in anticipation ofthese and other foreign relations concerns. In this case, however, the policy beingpursued has no t been develope d, nor would it be impleme nted, with sensitivity to the fullrange of foreign policy information and considerations available to the nationalgovernment, and the United States is unable to calibrate its immigration and foreignpolicies to respond effectively to these claims.

56. If the several states were each allowed to pursue independent immigrationenforcement policies such as the Arizona law, these serious concerns would be multipliedsignificantly, as the United States could be subjected to a cacophony of competingimm igration enforcem ent priorities and agen das, with little regard for the sensitivediplomatic and foreign relations considerations that immigration policy addresses, andwith an extreme adverse impact on the United States' ability to speak with one voice.

57. S.B. 1070 and in particular the mandatory verification regimerequirement thus poses a risk of provoking retaliatory treatment against U.S. nationalsby other states, and threatens ongoing adverse consequences for important and sensitivebilateral relationships with U .S. allies such as Me xico, for our regional relations in thewestern hem isphere, and for our global relations in regional and m ultilateral institutions.It is likely to hinder our ability to secure the co operation of o ther states in efforts topromo te U.S. interests internationally across a range of trade, security, tourism, and otherinterests unrelated to immigration. Finally, it is likely to undermine the United States'

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Jam B. Steinberg

ability to engage effectively with the international community to promote theadvancement and protection of human rights. Moreover, repairing such harm tointernational relations and U .S. stature in bilateral, regional and m ultilateral relationshipsafter the fact can be extrem ely difficult.

58. Acco rdingly, after having analyzed S.B. 1070, considered how it wouldinteract with existing federal immigration policy and prac tice, and assessed theinternational reaction to it, I have concluded that S.B. 1070 runs counter to Americanforeign policy interests, and that its enforcement would further undermine A mericanforeign policy.

I declare under pen alty of perjury that the foregoing is true and correc t to the bestof my information, knowledge and belief. Executed the )\day of July, 2010 inWashington, D.C.

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U.S. v. Arizona - Exh 1 to Motion for Preliminary Injunction - Affidavit of James Steinberg

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