Georgia Can Look Into Immigration Statuses

     ATLANTA (CN) – A federal judge reined in his restriction of Georgia’s immigration law, finding that law enforcement can check the immigration status of criminal suspects who cannot provide specified identity documents.
     Immigrant advocacy groups sued Gov. Nathan Deal and other state officials in June 2011, challenging the constitutionality of House Bill 87, also known as Georgia’s Illegal Immigration Reform and Enforcement Act of 2011.
     The Northern District of Georgia dismissed most constitutional challenges to the law, but blocked two provisions of the act after concluding the plaintiffs were likely to prove that federal law pre-empted those sections.
     In August 2012, a three-judge panel of the 11th Circuit affirmed the block against section 7 of the law, which penalized the transportation and harbor of illegal immigrants and inducing an illegal alien to enter Georgia.
     The federal appeals court reversed the ruling against Section 8, however, finding that the advocacy groups were not likely to prove pre-emption. Section 8 authorizes law-enforcement officers to check the citizenship status of individuals detained on suspicion of unrelated crimes when those individuals cannot produce adequate identity documents. The provision prohibits racial profiling and requires probable cause to detain suspects.
     Citing the U.S. Supreme Court’s ruling on Arizona’s similar anti-immigration law, the 11th Circuit found that a pre-enforcement challenge was premature, and noted that an unconstitutional application of the law could be challenged in later litigation.
     In blocking section 8, U.S. District Judge Thomas Thrash had found that it would create a state system for prosecuting and interpreting immigration law, which would undermine federal authority.
     Thrash permanently enjoined section 7 on remand in March. On July 19, he reluctantly followed the appellate court’s lead in dismissing the plaintiffs’ constitutional challenge to the “show me your papers” provision.
     “The Court of Appeals followed Justice Kennedy in confusing and conflating the Supremacy Clause and Fourth Amendment claims,” Thrash wrote in a footnote. “My analysis of section 8 under the Supremacy Clause was not based upon the plaintiffs’ claims of potential racial profiling and excessive detention. My analysis of section 8 was that federal law already sets forth the circumstances under which local law enforcement are authorized to aid in immigration enforcement under the supervision of the attorney general. … On its face, HB87 conflicts with that. In addition, my analysis of section 8 was that it will undermine federal law enforcement priorities and strategies by authorizing individual law enforcement jurisdictions within Georgia to implement their own immigration policies.”
     He added that, “unfortunately for the plaintiffs, their burden to establish the facial unconstitutionality of section 8 now appears to be insurmountable.”
     “Any further challenges to the Illegal Immigration Reform and Enforcement Act of 2011 must take the form of as-applied challenges,” Thrash added.
     Citing the 11th Circuit ruling, Thrash noted that the state’s interpretation of the provision could remedy potential constitutional problems. And, unlike Arizona’s similar law, which includes a mandatory investigation provision, Georgia’s law authorizes, but does not require, inquiries into the immigration status of detained suspects, the ruling stated.
     Since the statute itself prohibits racial profiling, the plaintiffs are not likely to prove that there is no way the provision can be applied in a manner that does not conflict with federal law, according to the ruling.
     Thrash denied the plaintiffs’ request for discovery on Georgia law enforcement training, which could have involved 159 counties and 536 municipalities.

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