Parts of S.C. immigration law blocked by federal judge

The State (Columbia, S.C.)December 23, 2011 

State and local police will not be checking for immigration documents on Jan. 1 after a federal judge on Thursday blocked portions of the South Carolina immigration law.

U.S. District Judge Richard Gergel also suspended one section that would require immigrants to carry their registration documents and another section that would make it a crime to harbor or transport an illegal immigrant, meaning people could be arrested for renting a room to an illegal immigrant or driving one to church.

In his opinion, Gergel used the word “dragnet” to describe provisions that would allow police to check for immigration documents of people stopped for minor crimes such as jaywalking. Those actions would conflict with federal immigration policy, which sets priorities for which illegal immigrants it wants to detain. The state’s detention of illegal immigrants also could interfere with foreign relations, Gergel said in agreeing with the U.S. Department of Justice, which sued to block the law.

“The pursuit by state and local law enforcement officers of low priority targets through widespread traffic and street level dragnets mandated would, according to the United States, overburden federal immigration enforcement resources and disrupt the federal government’s enforcement scheme,” Gergel wrote.

Gergel’s decision could factor in the U.S. Supreme Court’s review next year of a similar suit against Arizona’s immigration laws. The S.C. law was modeled after Arizona’s. Similar suits also have been filed in Alabama and Utah.

The Justice Department was joined in the suit by a coalition of immigrant and civil rights groups. Four days ago, attorneys for all sides argued their points in front of Gergel in federal court in Charleston.

Immigrant and civil rights advocates praised Gergel’s decision.

“We’re very pleased with the ruling, not only for the immigrant community, but also for the American citizens who could have been impacted,” said Tammy Besherse, an attorney for the S.C. Appleseed Legal Justice Center and an advocate for immigrants. “We look forward to the Supreme Court’s decision in the Arizona case and having all of these matters behind us.”

The state has said it needed to create immigration laws because the federal government had failed to take action against the flow of illegal immigrants into the country. On Thursday, Gov. Nikki Haley continued to make that claim.

“If the feds were doing their job, we wouldn’t have had to address illegal immigration reform at the state level,” her spokesman, Rob Godfrey, wrote in an email. “But, until they do, we’re going to keep fighting in South Carolina to be able to enforce our laws. Governor Haley is hopeful that the U.S. Supreme Court will soon do what Congress and the executive branch have failed to do, which is allowing the states to pick up the slack where Washington has failed.”

But Gergel disagreed with that stance.

“These members of the General Assembly, of course, have every right to hold that opinion, but that opinion does not entitle the State of South Carolina to adopt its own immigration policy to supplant the policy of the national government,” he wrote.

In his order, Gergel asserted that the federal government alone has the authority to set immigration policy, especially as it relates to foreign affairs and commerce.

“First, the federal government’s regulation of immigration enforcement is so pervasive and comprehensive that it has not left any room for the state to supplant it,” he wrote in the section addressing police identification checks. “This area has long been under the control of the national government, and the State of South Carolina has not traditionally regulated it.”

The portion of the law that would allow police to check immigration documents was the most controversial section, drawing an outcry from immigrants and their advocates who feared that it would promote racial profiling. Federal immigration law is complicated and it takes special training to understand the nuances, they said. They also feared legal immigrants and American citizens of various ethnic backgrounds would be illegally detained.

Gergel sided with the argument that having local police apprehend illegal immigrants could burden federal resources, since they in the end still must decide whether to deport each immigrant arrested.

“This state-mandated scrutiny is without consideration of federal enforcement priorities and unquestionably vastly expands the persons targeted for immigration enforcement action,” Gergel wrote. “The United States asserts that this state statutory scheme will disrupt federal enforcement operations and burden finite immigration enforcement resources. The breadth and volume of these state-mandated immigration inquiries and investigations would, according to the United States, raise significant foreign relations problems that would likely adversely affect American foreign policy interests.”

And he did not buy a statement from the state’s attorneys that South Carolina was trying to cooperate in a common goal of immigration enforcement.

“Since the State of South Carolina has now been sued by the national government over its adoption of Act 69, it begs the question of the meaning of the word ‘cooperate,’” he wrote.

To read more, visit www.thestate.com.

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