Though the U.S. Supreme Court ruled the provison could take effect, a coalition of civil rights groups is raising new challenges.
The provision is Section 2B of the law, and is also known as the “show me your papers,” section. It requires state law enforcement, when they are enforcing other laws, to check people's immigration status if they suspect that person is in the country illegally.
U.S. District Judge Susan R. Bolton is no stranger to this issue. She had issued a temporary injunction on several provisions of SB 1070, including Section 2B, in 2010.
In June, the U.S. Supreme Court struck down three sections of SB 1070 on the basis that they preempted federal law, but said Section 2B could take effect.
Then on Monday afternoon, just half a day before these oral arguments were scheduled, the Eleventh Circuit Court of Appeals in Atlanta said similar provisions in Georgia and Alabama could go forward, based on the U.S. Supreme Court’s decision.
So in federal court on Tuesday morning, Bolton questioned the plaintiffs about why she should issue another injunction at this stage. In particular she referenced a line in Justice Anthony Kennedy’s majority opinion that reads:
“This opinion does not foreclose other preemption and constitutional challenges to the law as interpreted and applied after it goes into effect."
Karen Tumlin of the National Immigration Law Center insisted the U.S. Supreme Court's ruling did leave open the window for other challenges before law takes effect. She said the coalition representing the plaintiffs is raising new concerns, about prolonged detentions, and discrimination.
“There was no equal protection claim before the Supreme Court,” Tumlin told reporters after the hearing. “There was no Fourth Amendment claim, and significantly none of the evidence we presented today was available to the U.S. Supreme Court.”
Tumlin argues her side's evidence reveals that if the provision goes forward, law enforcement will prolong detaining people in order to check their immigration status, which was a concern raised in Kennedy’s opinion.
Lawyers for the plaintiffs also claim enforcing the provision will result in discrimination of Latinos and Mexican nationals, and violations of the equal protection clause of the Fourteenth Amendment.
To win that claim, plaintiffs must prove the law was intended to be discriminatory. They argue racially charged emails sent from key backers of the law, such as former Senate Majority Leader Russell Pearce, prove passage of the law was racially motivated.
Another factor for proving discriminatory intent is if a legislature passes a law that burdens a single racial ethnic group, according to Mexican American Legal Defense and Education Fund attorney Victor Miramontes, who is part of the coalition representing the plaintiffs.
“There is no doubt that the legislature understood that the people who would be harmed would overwhelmingly be Latinos,” Miramontes said after the hearing.
But John Bouma, an attorney for the state, disagreed that proves discriminatory intent.
“My understanding of why this legislation went through is people were worried about illegal immigration, and there is good reason to worry about illegal immigration,” Bouma told reporters.
“If Hispanics happen to be the people who are the highest percentage who come across the border believe it or not, they are the highest percentage who will be prosecuted under the statute."
Plaintiffs are also requesting the court block another provision of SB 1070 that criminalizes harboring or transporting an undocumented immigrant.
The Eleventh Circuit blocked a similar provision in Georgia's immigration law Monday.
Bolton had previously allowed the harboring provision to be implemented, but she acknowledged in court on Tuesday that when she made that decision, she had not had the benefit of a higher court’s opinion.
She did not indicate when she would issue a ruling.
