Georgia Immigration Law Given Some Leeway

ATLANTA (CN) - Georgia police can investigate the immigration status of detained suspects, but the state cannot criminalize the act of harboring and transporting illegal aliens, the 11th Circuit ruled.

Georgia's Illegal Immigration Reform and Enforcement Act of 2011, known as House Bill 87, authorized the police to check the immigration status of criminal suspects who could not provide certain identity documents, to detain them, and to take them to a state or federal prison if they concluded the suspects were in the United States illegally. The law also criminalized transporting and harboring undocumented immigrants "while committing another criminal offense" and inducing them to enter Georgia. Those who provide privately funded social services, and government employees engaging in certain activities in the scope of their employment, could qualify for narrow statutory exceptions under the law.

After Georgia enacted House Bill 87 in April 2011, but before it took effect, the American Civil Liberties Union and the Georgia Latino Alliance for Human Rights led a pre-emptive challenge under the Immigration and Nationality Act (INA). The groups also argued that certain provisions violated the Fourth and 14th Amendments and the constitutional right to travel.

A federal judge last year blocked the sections pertaining to status verification, and harboring and transportation of undocumented immigrants, but left the rest of the law intact pending the outcome of the constitutional challenge to the law.

Georgia appealed the decision, claiming that the plaintiffs lacked standing to sue and were not likely to succeed on the merits of their challenge to the constitutionality of the blocked sections.

But the 11th Circuit ruled Monday that many of the plaintiffs may challenge provisions of H.B. 87.

The three-judge panel agreed that several individual plaintiffs face a "credible threat of application" of section 7, which prohibits transporting, harboring and inducing undocumented immigrants to enter the state.

A civil immigration attorney who regularly transports undocumented immigrants to and from court hearings, and assists them in other ways, may face prosecution for nonexempt activities, such as representation in civil matters, the 33-page ruling states.

The law may also penalize undocumented immigrants who remain in the United States legally while awaiting resolution of their immigration case.

According to declarations from three law-enforcement experts, any minor traffic violation, such as failure to use a turn signal, can provide probable cause for application of the law, the decision states.

The judges found that Georgia Latino Alliance for Human Rights and other organizational plaintiffs also have standing to sue, since they alleged that educating affected members about H.B. 87 caused them to divert resources from regular activities such as citizenship classes, language classes and assistance in completing legal documents.

Private parties may challenge the enforcement of state statutes that federal law allegedly pre-empts, according to the ruling.

The Immigration and Nationality Act, which penalizes the transportation, concealment, and inducement of unlawfully present aliens, limits the role of the states to arrest for violations of federal law. Extending state authority to the realm of immigration-related law enforcement threatens the uniform application of the INA and dilutes federal power, the ruling states.

"Given the federal primacy in the field of enforcing prohibitions on the transportation, harboring, and inducement of unlawfully present aliens, the prospect of fifty individual attempts to regulate immigration-related matters cautions against permitting states to intrude into this area of dominant federal concern," Judge Charles Wilson wrote for a three-member panel.

Section 7 is also inconsistent with federal law, which does not criminalize encouraging an undocumented immigrant who is already in the country to migrate between states, the ruling states.

"Plaintiffs are under the threat of state prosecution for crimes that conflict with federal law, and we think enforcement of a state law at odds with the federal immigration scheme is neither benign nor equitable," Wilson wrote.

But the court lifted the injunction against Section 8, which authorizes police officers to check the immigration status of criminal suspects who cannot prove their legal presence in the United States.

In light of the U.S. Supreme Court's refusal to block a similar law in Arizona, the court concluded that the plaintiffs are not likely to succeed on their claim that federal law pre-empts Section 8.

"Notably, the [Supreme] Court left open the possibility that the interpretation and application of Arizona's law could prove problematic in practice and refused to foreclose future challenges to the law," Wilson wrote, noting that the panel upheld the law only as long as it is enforced in a nondiscriminatory manner.

Section 8, which authorizes - but does not require - state officials to check a suspect's immigration status when the suspect cannot produce satisfactory identification, prohibits racial profiling and authorizes arrest and detention only to the extent permitted by federal law, the ruling adds.

The Northern District of Georgia must still rule on the plaintiffs' constitutional challenge to the law.

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