Monday, August 20, 2012


The 11th Circuit has issued its ruling in the HB 87 case. The Court has upheld the injunction against Section 7 (Transporting, Harboring and Inducing), which now is a permanent injunction, so it cannot be a crime in Georgia to harbor or transport someone who is here illegally.
The 11th Circuit has not upheld the injunction against Section 8 (Show me your papers provision) similar to the U.S. Supreme Court case. This is not bad news in itself because just like the Supreme Court decision, the 11th Circuit reiterated that if some actual harm is shown in the future (for example, a longer than normal traffic stop to check a person's immigration status), Section 8 would be preempted by federal law.
Judge Charles Wilson wrote: “The illegal-immigration issues that our country faces today are, no doubt, exceptionally important to both the state and federal governments. As a federal court, we do not sit in judgment of the policy decisions of state legislatures, and we are usually reluctant to conclude that states are forbidden from enacting statutes related to activities within their borders. However, when state laws intrude into areas of overwhelming federal interest and erode the discretion implicit in the sovereignty of the country, we must recognize the supremacy of federal law. Here, section 7 of H.B. 87 cannot be reconciled with the federal immigration scheme or the individual provisions of the INA. As a result, we affirm in part the district court’s order preliminarily enjoining enforcement of section 7. We reverse in part the portion of that order enjoining section 8. This case is remanded to the district court for further proceedings.”
So, basically, if all the state statute requires is that state officers’ conduct an immigration inquiry “during the course of an authorized, lawful detention or after a detainee has been released, the provision likely would survive preemption—at least absent some showing that it has other consequences that are adverse to federal law and its objectives.”
So, the challenge to the law can still be done in the future if it is proved problematic in practice.
Read the decision at:

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