By BILL BARROW, The Associated Press, August 20, 2012
ATLANTA — Law enforcement in Georgia, at least for now, may verify the immigration status of criminal suspects who fail to produce proper identification, a federal appeals court ruled Monday.
A three-judge panel of 11th U.S. Circuit Court of Appeals said that a lower court’s hold blocking that section of the state’s 2011 immigration law should be lifted. It was not immediately clear when that would happen.
The panel did leave in place a part of the injunction blocking the prosecution of people who knowingly harbor or transport an illegal immigrant during the commission of a crime.
A lower court must still rule on both of those issues, which are part of a broader challenge to the law by activist groups and labor unions. Monday’s decision dealt only with preliminary injunctions.
The decision follows a recent U.S. Supreme Court ruling upholding parts of a similar law in Arizona. The Atlanta-based court referenced that decision in its opinion to lift the injunction on the verification section, also known as section 8.
“In Arizona v. United States, the Supreme Court approved of a similar state provision, and in light of that holding we likewise conclude at this stage of litigation that Plaintiffs are not likely to succeed on the claim that section 8 is pre-empted by federal law,” the panel wrote.
Georgia is one of several states besides Arizona that has enacted anti-illegal immigration laws in recent years. Proponents have argued they are necessary in part because of alleged federal inaction. Opponents have argued that many of the laws are punitive to immigrants and that immigration policy must be steered by the federal government.
The appeals court also ruled that part of Alabama’s tough immigration law that ordered public schools to check the citizenship status of new students was ruled unconstitutional. It said police there also could continue to check papers for suspects they detain.
Circuit Judge Charles Wilson wrote in a 33-page decision that Georgia’ section on checking immigration status “is less facially problematic than the provision” that the Supreme Court let stand in Arizona. That law requires authorities to investigate immigration status when a detainee cannot prove their legality. The Georgia law merely authorizes such action.
Wilson, however, also emphasized the Supreme Court’s explanation that it was siding with Arizona before the law’s actual implementation. “The Court left open the possibility that interpretation and application of Arizona’s law could prove problematic in practice and refused to foreclose future challenges,” Wilson wrote.
Basically, the court reasoned, future plaintiffs could raise constitutional issues if the law is enforced in a discriminatory way. Wilson noted that Georgia’s law specifically bars racial profiling in its application.
Both sides claimed some victory in the divided ruling.
In a statement, Georgia Attorney General Sam Olens said he was generally pleased with the ruling but disagreed with the court on the section still being blocked.
“After over a year of litigation, only one of the 23 sections of (House Bill) 87 has been invalidated. We are currently reviewing the 11th Circuit’s ruling to determine whether further appeal would be appropriate at this stage of the case,” Olens said.
A spokesman for Gov. Nathan Deal also focused on the immediate result. “We knew Georgia was on solid footing” after the Arizona ruling, Brian Robinson said.
American Civil Liberties Union lawyer Omar Jadwat said he was disappointed the court didn’t keep the injunction for the verification section but was pleased with the court’s decision to keep one part of the injunction.
“I think it’s a strong sign that all the state harboring laws will go down,” Jadwat said.
He also said the organization will continue to challenge so-called “show-me-your-papers” provisions of the state immigration laws.
“The court today rejected many parts of Alabama and Georgia’s anti-immigrant laws, including attempts to criminalize everyday interactions with undocumented immigrants and Alabama’s callous attempt to deprive some children of their constitutional right to education,” he said in a statement. “The court explicitly left the door open to further challenges against the ‘show me your papers’ provision, which we will continue to fight.”
State Rep. Matt Ramsey, R-Peachtree City, sponsored the immigration bill. “Just as we were pleased when the US Supreme Court upheld one of the center pieces of the Arizona law … we are pleased that the 11th Circuit has upheld a similar provision in our Georgia law,” Ramsey said.
Sitting with Wilson on the case were Circuit Judge Beverly Martin and District Judge Richard Voorhees, a special appointee from federal trial court in North Carolina. Wilson and Martin are Democratic appointees. Voorhees is a Republican appointee.