Bar on South Carolina Immigration Law Upheld

(CN) - Provisions of South Carolina's immigration law wrongly criminalizes activity that should be left to the federal government to regulate, the 4th Circuit ruled.

The U.S. government and the American Civil Liberties Union had brought a constitutional challenge to the law soon after Gov. Nikki Haley signed it in 2011.

Critics at the time noted parallels between South Carolina's law and that of SB 1070 in Arizona, which was then widely considered one of the toughest of such statutes in the country.

In a separate action, the Lowcountry Immigration Coalition also challenged various sections of the law, largely on the grounds that federal law pre-empted them.

U.S. District Judge Richard Gergel consolidated the cases and put the measure on hold in December 2011, just before the law was set to take effect, ruling that the U.S. Supreme Court should first consider a challenge to Arizona's law.

The Supreme Court ultimately struck down three provisions of SB 1070 in June 2012, but it declined to evaluate Arizona's so-called "papers please" provision since the measure had not yet gone into effect.

In light of this holding, Gergel revisited his earlier decision later that year. Gergel lifted a portion of his injunction that had barred law enforcement from checking the immigration status of any detained suspect. He refused, however, to revivea provision that would require immigrants to carry a valid alien registration card, and another provision that would make it illegal to harbor and transport an illegal immigrant.

A three-judge panel of the 4th Circuit affirmed Tuesday, shooting down South Carolina's claims that its law is a proper exercise of its police powers and does not undermine or conflict with federal law.

"We are hard-pressed to see how an unlawfully present alien, going about her normal daily life, would be able to avoid violating" the provisions in question, Sections 4(A) and (C) of the act, Judge Andre Davis wrote for the Richmond, Va.-based panel.

Indeed, "simply staying in one's home could be viewed as an attempt to 'shelter' oneself from detection," Davis added. "Taking a bus or driving home at the end of the workday would be 'transport[ing]' oneself to the shelter of one's home to avoid detection."

The Supreme Court's holding in Arizona v. United States shows "that unlawful presence is not a criminal offense," and the broad sweep of the enjoined sections flies in the face of that, according to the ruling.

"In an analogous case, the Eleventh Circuit affirmed a preliminary injunction against a section of an Alabama statute that prohibited state courts from enforcing a contract to which an unlawfully present alien was a party," Davis wrote.

"In essence, Sections 4(a) and (c) operate to criminalize unlawful presence, a stance plainly at odds with federal law," he added.

Opponents of the law have clearly shown they were likely to suffer irreparable harm if an injunction were not granted, according to the ruling.

"The irreparable injury to the nation's foreign policy if the relevant sections take effect has been clearly established by the United States," Davis wrote. "And for individual, unlawfully present immigrants and others, the likelihood of chaos resulting from South Carolina enforcing its separate immigration regime is apparent."

"For the reason stated, the order of the District Court granting a preliminary injunction is affirmed," he added.

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