Georgia is asking a federal appeals court to reconsider its decision to block a key part of the state’s immigration law from taking effect, potentially keeping another controversial provision on hold and prolonging the legal battle for months to come.
The state’s move comes as state and local police were preparing to start — possibly as soon as next week — enforcing another part of the law that would authorize them to investigate the immigration status of certain suspects. That part will remain on hold until the 11th U.S. Circuit Court of Appeals in Atlanta acts on the state’s request for a rehearing.
At issue is a part of the law that would punish people who knowingly transport or harbor illegal immigrants while committing other crimes. A first offense for transporting seven or fewer illegal immigrants at the same time would carry up to 12 months behind bars and a fine up to $1,000.
Civil and immigrant rights groups sued to block that provision, saying it is pre-empted by federal law and is therefore unconstitutional. A lower court put that measure on hold last year. The state appealed. Last month, a three-judge panel from the 11th Circuit ruled the measure is pre-empted by federal law, which already prohibits such activities.
In a 27-page petition filed Wednesday, state officials asked the three-judge panel — as well as the full appeals court — to reconsider last month’s decision. Such petitions are rarely granted. If the judges grant the petition, the soonest they could hold oral arguments would be in February, according to the court.
In its petition, state officials said the court’s ruling “threatens to undermine the cooperative federalism found throughout state and federal criminal law, as well as thousands of criminal convictions for violations of state laws that mirror federal laws.”
Omar Jadwat, senior staff counsel for the American Civil Liberties Union’s Immigrants’ Rights Project, criticized the state’s move.
“It’s a pointless attempt to postpone the harboring provision’s inevitable demise,” he said. “This mean-spirited law has failed the constitutional test at every stage of this litigation, and it is going to keep failing no matter how long the state drags out the fight.”
The ACLU and others, citing a potential for racial profiling, also sued to block the provision that would give state and local police the option to investigate the immigration status of certain suspects they believe have committed state or federal crimes and who cannot provide identification that could help police identify them. The measure also would authorize police to detain people who are determined to be in the country illegally and take them to jail.
The appeals court sustained that part of the law last month, pointing out that the law prohibits racial profiling.
“It is inappropriate for us to assume that the state will disregard its own law,” the court said, “and we therefore reject the argument in this respect, keeping in mind that unconstitutional application of the statute could be challenged in later litigation.”