Federal Appeals Court Blocks Most of SC Immigration Law

Posted July 29, 2013 in Criminal Law Immigration by

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Most of South Carolina’s legislative attempt to control illegal immigration will remain blocked, for now, after the 4th U.S. Circuit Court of Appeals on July 23 ruled that federal immigration laws exclusively govern the issue.


State Can’t Criminalize Harboring or Fake Papers

South Carolina’s SB 20 made it a felony to transport or harbor illegal immigrants in order to avoid detection or help them get into the country. It also criminalized the failure of noncitizens to carry registration papers and the possession of fake ones.

SPLC attorney Michelle Lapointe speaks to the press after the initial hearing on the injunction in 2011.

The 4th Circuit, upholding an earlier federal district court decision, said that all of these provisions were preempted by federal immigration laws, explains Michelle Lapointe, a staff attorney with the Immigrant Justice Project at the Southern Poverty Law Center (SPLC) in Atlanta.

The SPLC is part of a coalition of civil rights groups and advocates that filed suit against the law in October 2011, according to the SPLC. The Department of Justice also challenged the law, arguing that it should be blocked because it interferes with federal immigration law.

It was also very broad, covering actions by third parties who wouldn’t have any reason to care about the immigration status of others. 

“The Fourth Circuit noted that “[s]imply staying in one’s home could be viewed as an attempt to ‘shelter’ oneself from detection,” and “[t]aking a bus or driving home at the end of the workday would be ‘transport[ing] oneself to the shelter of one’s home to avoid detection,’” says Lapointe. “Therefore, a person giving a ride to a friend or a place to stay would certainly have been at risk for prosecution under this state law.”


Dominoes Follow Arizona’s Fall

South Carolina was one of a handful of states that tried their hands at legislating immigration. For the most part, they’ve been unsuccessful. The Arizona law’s attempt to control “traffic obstructions” by day laborers was overturned in March by the 9th Circuit .

“Georgia, Alabama, Utah, and Indiana have all passed their own legislation modeled to varying degrees after Arizona’s SB 1070,” notes Lapointe. “Federal courts, including the 11th U.S. Circuit Court of Appeals, have blocked many portions of these laws.”

The SPLC will now try to get the South Carolina law provisions blocked permanently, she says. They must go back to the federal trial court to do that.


‘Reasonable Suspicion’ Checks Allowed

Like Arizona’s now-infamous SB 1070, the South Carolina law also allows police to check the immigration status of a person they stop or detain if they have “reasonable suspicion” that he or she is in the country illegally. But that part of the law will stand.

“After the Supreme Court’s decision in Arizona, the district court lifted its injunction of [that] section of South Carolina’s law,” says Lapointe. “So that part of the law has gone into effect.” 

The U.S. Supreme Court ruled last summer that most of Arizona’s SB 1070 was preempted but left standing the same “reasonable suspicion” provision, according to the ACLU.

That basically means that people in the country illegally are still at risk of deportation by the feds if they are stopped by local police in Arizona and South Carolina. 

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