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States Argue for Immigration Measures in U.S. Appeals Court

Alabama and Georgia argued to salvage state laws targeting illegal immigrants in a hearing before a federal court that already said there’s a “substantial likelihood” some of those measures will be thrown out.

A three-judge panel heard arguments today in Atlanta in three cases, two from Alabama and one from Georgia. U.S. Circuit Judge Charles Wilson said the panel won’t issue a decision until after the U.S. Supreme Court rules on a challenge to Arizona’s immigration measures. The Arizona case will be heard in April by the high court.

One provision of the Alabama law that has been temporarily blocked requires illegal immigrants to carry registration papers and forces schools to determine the legal status of students as they enroll. Wilson and U.S. Circuit Judge Beverly Martin said they were concerned with the law’s practical application.

“Is it just a scare tactic?” Wilson asked John Neiman, Alabama’s solicitor general.

“No,” said Neiman, calling the information that would be gathered “relevant to policy making.”

The judges asked if the children would be deported after declaring themselves illegal residents.

“Well, I suppose yes,” Neiman said. The children could be deported if the U.S. government decided to ask for the information, he said.

Undocumented Residents

Martin and Wilson asked several times if Alabama’s law is meant to drive undocumented residents out of the state.

“That is not the intent,” Neiman said.

The law’s school papers provision says “it is a compelling public interest to discourage illegal immigration” by enforcing federal immigration laws and its own new measures.

The federal government is challenging Alabama’s law, saying immigration is a federal matter. The U.S. has also sued to block laws aimed at apprehending illegal immigrants and keeping them from taking jobs in South Carolina, Arizona and Utah.

“States are not free to complement federal law” regarding immigration, Beth Brinkman of the U.S. Justice Department, told the judges today. State courts could enforce immigration laws inconsistently with federal practice, she said.

Martin said federal immigration law allows illegal residents to live in the U.S. while applications for legal status are pending.

“Why don’t you just accept that?” she asked the states’ lawyers.

Immigration Checks

Georgia’s law would allow the police to check immigration status and bar transporting illegal aliens in some circumstances. It would require employers to verify a worker’s immigration status. The statute was blocked in June by a trial judge’s preliminary injunction. The state appealed. That issue was not considered today.

The Justice Department and nongovernment advocacy groups are likely to win parts of their challenges to the statutes because the federal government exclusively controls immigration, a different three-judge panel of the court said earlier.

Both Alabama and Georgia have argued in court papers that they are trying to help the federal government manage immigrants. The laws are aimed at authorities who police and teach illegal residents, not the immigrants themselves, the states say.

Lawyers for Georgia say the law will help prevent illegal immigrants from being “victimized by employers or others” and “forced to work in horrific conditions.”

‘Criminalizes Its Consequences’

“The state does not regulate immigration but rather criminalizes its consequences,” Georgia Attorney General Samuel S. Olens said in a brief.

Alabama’s documentation rule would “have a chilling effect,” causing children to drop out of school and thus denying them due process of law guaranteed in the Constitution, Justin Cox, a lawyer with the American Civil Liberties Union, said in court papers. The ACLU joined the lawsuits filed by the Hispanic groups in both states.

The Alabama law would encourage illegal residents to “self-deport to states that are supportive” of illegal residents, making it more difficult to find them, the Justice Department said in court papers. The statute “frustrates the federal government’s ability to pursue removal proceedings” when necessary, it said.

Water Services

Martin asked how illegal residents would get life-sustaining services, such as water, under Alabama’s provision that bars them from entering a government contract.

Neiman said the Alabama attorney general wrote an opinion listing mostly licensure activities as barred by the law. Such activities can include obtaining a driver’s license, according to the opinion.

“But it doesn’t exclude water,” Martin said. Martin also said the court can’t use an attorney general’s opinion as precedent for their consideration.

The Supreme Court in December agreed to review a ruling against Arizona’s requirement that police officers check the status of someone arrested who they reasonably suspect is in the country illegally. The Georgia and Alabama laws have the same provision.

The cases are U.S. v. State of Alabama, 11-14532, and Hispanic Interest Coalition of Alabama v. Bentley, 11-14535, U.S. Circuit Court of Appeals for the 11th Circuit (Atlanta) and Georgia Latino Alliance for Human Rights v. Deal, 11-cv-01804, U.S. District Court, Northern District of Georgia (Atlanta).

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