The District Court for the Northern District of Georgia granted a preliminary injunction against the enforcement of Sections 7 and 8 of the state’s Illegal Immigration Reform and Enforcement Act of 2011 and allowed preemption claims against the provisions to proceed. Georgia Latino Alliance for Human Rights v. Deal, 1:11–CV–1804–TWT, 2011 WL 2520752 (June 27, 2011). The judge was nominated by Clinton. The suit was brought by the ACLU and National Immigration Law Center, among other groups.
On April 14, Georgia enacted the Illegal Immigration Reform and Enforcement Act of 2011, also known as House Bill 87 (“HB87”). Section 7 of HB87 makes it a crime to transport or harbor an illegal alien, or to induce an illegal alien to enter Georgia; while committing another crime. Section 8 allows state and local law enforcement officials to investigate the immigration status of criminal suspects given probable cause that the suspect has committed another criminal offense. The law was to come into effect on July 1, but plaintiffs sought a preliminary injunction in the District Court for the Northern District of Georgia. Defendants sought to dismiss the lawsuit on various grounds.
The Court began by resolving standing and jurisdictional issues in the plaintiffs’ favor. Relying on Church v. City of Huntsville, 30 F.3d 1332 (11th Cir.1994), it reasoned that the formal policies in Sections 7 and 8 in HB87 presented “a realistic threat of injury” that justified standing for individual plaintiffs. The separate offense needed to trigger the provisions did not weigh against the likelihood of an injury because any suspected crime, even a traffic violation, would suffice. Following Common Cause/Georgia v. Billups, the Court decided that the plaintiff organizations had standing because HB87 would “divert resources from [their] regular activities” (554 F.3d 1340, 1350 (11th Cir.2009)). It then noted that the Immigration and Naturalization Act, 8 U.S.C. § 1101 et seq., creates a federal right under 42 U.S.C. §1983, and, following Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 96 n. 14 (1983), that federal courts have jurisdiction over preemption claims under 28 U.S.C. § 1331.
In deciding whether to issue a preliminary injunction, the Court followed a four-part test from Zardui–Quintana v. Richard, 768 F.2d 1213, 1216 (11th Cir.1985): (1) a substantial likelihood of succeeding on the merits, (2) the risk of irreparable injury without the injunction, (3) the injury’s outweighing damage to the defendant, and (4) the injunction’s lack of harm to the public interest. The opinion quickly found in favor of an injunction for the last three factors, leaving its most extensive discussion for the first.
For the first factor, the Court reasoned that the plaintiffs were likely to succeed on preemption claims against HB87. It quoted Hines v. Davidowitz, 312 U.S. 52, (1941), as establishing the federal government’s “exclusive” authority on immigration matters, connecting them to foreign relations. For Section 7, the Court distinguished Chamber of Commerce v. Whiting, 131 S.Ct. 1968 (May 26, 2011), by noting significant differences from 8 U.S.C. § 1324, including the creation of inducing an illegal alien to enter Georgia from another state as a new crime, the expansion of the federal definition of “harboring” an undocumented immigrant, the substitution of state and local authority for federal authority in enforcement, and the lack of a carve-out provision for state regulation of immigration.
The Court objected to Section 8’s grant of authority to Georgia officials to police unauthorized presence in the U.S. (a civil offense), remarking that it would undermine the congressionally legislated “mechanism by which state and local officers may enforce” civil immigration law. It explicitly declined to apply the presumption against preemption, noting that this area of law is not traditionally within the states’ purview. The opinion also found the provision similar to an Arizona law that the Ninth Circuit found preempted by 8 U.S.C. § 1357 (which places state and local enforcement in the discretion of the U.S. Attorney General) in United States v. Arizona, 641 F.3d 339 (April 11, 2011).
The Court denied the defendants’ motions to dismiss the preemption challenges to HB87, but it granted their motions against other challenges. It dismissed the plaintiffs’ claim that Section 8 violates the Fourth Amendment, characterizing the claim as a “‘facial challenge…disfavored’ in the law” (Washington State Grange v. Washington State Republican Party, 552 U.S. 442, 450, (2008)), and noting that the state had had no opportunity to implement the law to prevent unconstitutional search and seizure.
The plaintiffs also alleged constitutional violations based on documents that Section 19 of HB87 does not allow for proving legal immigration status, and all were dismissed. First, they alleged that the law “violates the right to travel because Georgia does not accept driver’s licenses issued by states that do not require confirmation of legal residence as proof of immigration status.” However, the Court rejected this claim, noting that such licenses “have nothing to do with immigration status.” Then the Court dismissed two Fourteenth Amendment claims based on consular identification cards. It dismissed an Equal Protection claim, stating that the law’s rejection of the cards does not facially discriminate against foreign nationals of countries that issue them; and a Due Process claim that the cards constitute a property interest, deeming past use of the cards as insufficient to show that the state of Georgia had granted such a property interest.
