Familiar Immigration Law Fallout in S.C.

     COLUMBIA, S.C. (CN) – South Carolina police can check the immigration status of any detained suspect, but other provisions of the controversial new law should not go into effect, a federal judge ruled.
     The decision is the latest chapter in litigation filed by the U.S. government and the American Civil Liberties Union to challenge the constitutionality of a law that closely mirrors Arizona’s immigration law and is widely considered one of the toughest of such statutes in the country.
     Under the law, state or local law-enforcement officers who lawfully stop an individual for a criminal offense must make a reasonable effort to determine the individual’s immigration status if they have a “reasonable suspicion” that “the person is unlawfully present in the United States.”
     Any stop or detention may not be longer than “a reasonable amount of time as allowed by law,” and must be consistent with federal immigration law and the U.S. Constitution.
     U.S. District Judge Richard Gergel initially put the law on hold in December 2011, just before it was set to take effect, ruling that the U.S. Supreme Court should first consider a challenge to Arizona’s law.
     Noting that Arizona’s so-called “papers please” provision had not yet gone into effect, the high court said it could not assess its constitutionality. The Supreme Court struck down three provisions of SB 1070 in June 2012.
     Revisiting his earlier decision in light of this holding, Gergel lifting the injunction on immigration checks.
     Echoing the Supreme Court’s decision, Gergel noted that detaining individuals solely to verify their immigration status would raise constitutional concerns.
     “Though it recognized significant limitations on the authority of the state to detain a person suspected of being unlawfully present in the United States, the Supreme Court found that it was possible that the Arizona statute might be interpreted by the state courts ‘to avoid these concerns,'” Gergel wrote.
     “Applying the holding of the Arizona decision to the status-checking provisions of act 69, in particular Sections 6(A), (B)(1), (C)(1)-(3), and (D), this court concludes that an injunction at this stage of the litigation is not appropriate, and hereby dissolves its preliminary injunction regarding these provisions,” he added.
     The decision reminds state officials that the dissolved injunction “does not foreclose a future as applied challenge based upon subsequent factual and legal developments.”
     Gergel also upheld earlier injunctions of a provision that would require immigrants to carry an alien registration card and another provision that would make it illegal to harbor and transport an illegal immigrant.
     Arizona’s registration card provision was found to conflict with federal framework, and South Carolina’s fails for the same reason, Gergel said.
     The judge similarly handled the harboring provision.
     “Though the state defendants are correct that the United States Supreme Court did not address similar harboring and sheltering provisions in its Arizona decision, they fail to appreciate that this is because the issue was not raised on appeal,” Gergel wrote. “In fact, there is little in the Arizona decision that gives support to the state defendants’ argument.
     “This court, having carefully considered the arguments of all parties and the recent case law on this issue, continues to find that Sections 4(B) and (D) infringe upon a comprehensive federal statutory scheme and would interfere with the federal government’s supremacy in the realm of immigration,” he added. “Further, the South Carolina statutory provisions would allow state officials to exercise discretion regarding the prosecution of persons allegedly harboring or sheltering persons unlawfully present in the United States, creating a conflict with federal law since that discretion has previously been the exclusive province of the federal government. Consequently, the Court leaves in place its preliminary injunction regarding Sections 4(B) and (D) of Act 69.”
     A spokesman for South Carolina Attorney General Alan Wilson, who had appealed Gergel’s earlier injunction, said the staff is evaluating its options before deciding whether to pursue an appeal.
     ACLU attorney Andre Segura meanwhile said the decision “follows a string of rulings in South Carolina and other states that have dealt a blow to state anti-immigrant laws by blocking most parts from going into effect.
     “The court reaffirmed that it would be unconstitutional for state and local officers to detain individuals on the basis of their status alone and left open the door to future challenges involving civil rights abuses under this law,” Segura said in a statement. “We will continue to closely monitor the law’s enforcement in order to ensure a person’s basic rights are protected.”

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