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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION

LOWCOUNTRY IMMIGRATION COALITION; MUJERES DE TRIUNFO; NUEVOS CAMINOS; SOUTH CAROLINA VICTIM ASSISTANCE NETWORK; SOUTH CAROLINA HISPANIC LEADERSHIP COUNCIL; SERVICE EMPLOYEES INTERNATIONAL UNION; SOUTHERN REGIONAL JOINT BOARD OF WORKERS UNITED; JANE DOE #1; JANE DOE #2; JOHN DOE #1; YAJAIRA BENETSMITH; KELLER BARRON; JOHN MCKENZIE; and SANDRA JONES,
Plaintiffs,
v.
NIKKI HALEY, in her official capacity as Governor of the State of South Carolina; ALAN WILSON, in his official capacity as Attorney General of the State of South Carolina; JAMES ALTON CANNON, in his official capacity as the Sheriff of Charleston County; and SCARLETT A. WILSON, in her official capacity as Solicitor of the Ninth Judicial Circuit,
Defendants.

Civil Action File No. ___2_:_1_1-_c_v_-0_2_7_7_9_-R__M_G____
COMPLAINT FOR DECLARATORY AND
INJUNCTIVE RELIEF
CLASS ACTION

1. This action challenges South Carolina’s comprehensive immigration law, Senate Bill 20 (“SB 20,” attached as Exhibit A), on multiple constitutional grounds and seeks injunctive and declaratory relief to prevent serious harm that Plaintiffs and putative class members across the state will suffer if the law goes into effect.
2. Through SB 20, South Carolina has created a punitive and comprehensive state immigration system that, among other things: (1) mandates that state and local law enforcement officers engage in immigration enforcement; (2) creates new criminal immigration laws specific

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to and wholly administered by the State of South Carolina; and (3) creates a South Carolinaspecific alien registration system.
3. SB 20 is unconstitutional in several respects. SB 20 in its entirety violates the Supremacy Clause of the U.S. Constitution by attempting to regulate immigration—a function that is constitutionally committed exclusively to the federal government. SB 20 is also preempted because it conflicts with federal law in several ways. SB 20 further violates the Fourth Amendment’s prohibition against unreasonable searches and seizures and the Fourteenth Amendment’s guarantees to equal protection and due process under the law.
4. SB 20 will subject South Carolinians—including U.S. citizens and non-citizens with permission from the federal government to remain in the United States—to unlawful interrogations, prolonged detentions, and arrests. See Secs. 6 & 7, codified at S.C. CODE §§ 1713-170, 23-3-1100. SB 20 mandates that state and local law enforcement officers investigate the immigration status of any individual they stop, detain, or arrest whenever they have a “reasonable suspicion” that the individual lacks immigration status. Individuals perceived as “foreign” by state or local law enforcement agents will be in constant jeopardy of harassment and unlawfully prolonged detention and arrest. Under SB 20, all South Carolinians will be required to carry state-approved identity documentation in order to prevent lengthy investigations into their immigration status.
5. SB 20, in combination with existing South Carolina law, will subject South Carolinians—including U.S. citizens and non-citizens with permission from the federal government to remain in the United States—to criminal penalties and incarceration for humanitarian daily activities, such as giving a ride to a neighbor, family member, client, or fellow congregant, or for opening their homes to individuals, including individuals in need. See
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Sec. 4, codified at S.C. CODE § 16-9-460. The South Carolina Illegal Immigration Reform Act of 2008 (“A280”), adopted June 4, 2008, created the state immigration crimes of harboring or transporting. See S.C. CODE § 16-9-460 (2008). SB 20 amended this provision to criminalize unlawful presence by making unlawful the acts of allowing oneself to be transported or harboring oneself—effectively authorizing the arrest of individuals simply suspected of being unlawfully present—while maintaining the existing immigration-related transporting and harboring offenses. See Sec. 4, codified at S.C. CODE § 16-9-460. SB 20 further encourages broad enforcement of South Carolina’s harboring and transporting crimes by subjecting law enforcement agencies to potential civil liability for failure to enforce these laws to the maximum extent possible. See Sec. 1, codified at S.C. CODE § 6-1-170.
6. SB 20 also creates a South Carolina-specific alien registration scheme, allowing state and local law enforcement officers to arrest individuals simply for failing to carry with them certain registration documents. See Sec. 5, codified at S.C. CODE § 16-17-750. And it creates new state criminal penalties for using false identity documents, which apply solely when the documents are used by individuals who are deemed by the State to be unlawfully present in the United States or if offered as proof of an individual’s lawful presence in the United States. See Sec. 6, codified at S.C. CODE § 17–13–170(B)(2).
7. SB 20 interferes with the core federal interests of maintaining a uniform national immigration scheme and speaking for the entire nation in conducting foreign relations. SB 20 would fundamentally rework the federal immigration scheme by regulating the terms on which immigrants may remain in the state and the penalties that attach to state-created immigration crimes, thus undermining the federal government’s ability to ensure uniformity and speak with a single voice. Indeed, South Carolina’s 46 counties inevitably will interpret SB 20’s vague and
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expansive provisions differently, leading to a patchwork of immigration enforcement even within the State of South Carolina.
8. The State of South Carolina’s intent to displace federal immigration authority is apparent not only from the scope and design of SB 20, but also from the express statements of the members of the South Carolina General Assembly who drafted and supported the legislation.
JURISDICTION AND VENUE 9. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1331 because this action arises under the U.S. Constitution and laws of the United States, and pursuant to 28 U.S.C. § 1343 because this action seeks to redress the deprivation under color of state law of Plaintiffs’ civil rights and secure equitable or other relief for violation of such rights. 10. This Court has jurisdiction to grant declaratory relief pursuant to 28 U.S.C. §§ 2201 and 2202, and Federal Rule of Civil Procedure Rule 57. 11. Venue is proper in this District and Division under 28 U.S.C. § 1391(b). Defendants are sued in their official capacity. Each Defendant resides within the State of South Carolina and two Defendants reside within this Division. Additionally, Organizational Plaintiffs Lowcountry Immigration Coalition, Mujeres de Triunfo, and Nuevos Caminos are located within this Division, Organizational Plaintiffs SEIU and the Southern Regional Joint Board of Workers United have numerous members who reside and work in this Division, and Individual Plaintiffs Jane Doe #1, John Doe #1, and Yajaira Benet-Smith reside within this Division.
PARTIES Organizational Plaintiffs 12. Plaintiff Lowcountry Immigration Coalition (“LIC”) is a non-profit volunteer corporation in accordance with the laws of the State of South Carolina that seeks to provide a
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forum for individuals in the Lowcountry of South Carolina to support efforts toward comprehensive immigration reform policies. LIC seeks to educate, inform, communicate, and advocate through meetings, public functions, media, and other mechanisms in support of immigration policies to advance a human rights agenda, including the protection of civil liberties, prevention of discrimination, and education on cultural awareness.
13. LIC was founded in 2010 and has grown significantly since that time. LIC has 12 active board members and approximately 240 supporters who help provide services to a number of constituents annually. Its membership is open to business owners, local and state office holders, enforcement officials, faith communities, and members of the legal profession, among others. Today, LIC provides a wide range of services, including voter registration drives, workshops on starting small businesses and investing in local banks, “Know Your Rights” presentations, seminars on safety and hurricane preparedness, and advocacy for access to medical services among immigrant communities. LIC provides services without regard to immigration status and is aware that some of its constituents are undocumented.
14. Since SB 20 passed, LIC has had to completely shift its priorities. Instead of hosting voter registration drives, LIC has dedicated itself to educating people about the provisions of SB 20. Rather than sponsoring workshops to teach Latino immigrants how to start small businesses or how to invest in their local banks, LIC now must hold multiple “Know Your Rights” presentations to inform individuals about their rights if SB 20 goes into effect. Instead of working with medical providers to increase access to health care among the immigrant community, LIC has had to recruit attorneys from civil rights organizations to answer specific pressing questions about SB 20.
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15. Since many of the individuals whom LIC serves cannot obtain driver’s licenses due to their immigration status, LIC members pick up individuals from their homes and bring them to LIC functions. LIC members have also organized car pools for people to attend their events. If SB 20 goes into effect, members of LIC will continue to drive individuals, including undocumented individuals, to appointments of various types around the Lowcountry area if requested by those who attend their functions. This would subject LIC members to criminal prosecution under the law for transporting undocumented immigrants.
16. Since SB 20 passed, LIC has seen a decrease in volunteers, making it difficult to sponsor educational seminars. LIC volunteers have been deterred from continuing to work with LIC for fear of retaliation against them or their businesses. If SB 20 goes into effect, it is likely that some of these supporters will stop their support completely. In the past, LIC has used churches to host their community meetings and other activities. Since the passage of SB 20, churches have been increasingly unwilling to host LIC for community meetings due to the fact that it is known that LIC provides services to undocumented immigrants.
17. The passage of SB 20 has also decreased attendance at LIC events because their constituents fear being stopped by the police when traveling to functions. If SB 20 goes into effect, LIC will lose even more attendees because people fear the police will detain or arrest them.
18. Due to the extremely difficult climate that SB 20 has created, LIC has more work than ever and faces the prospect of substantial adversity in continuing its work as a result of fewer volunteers, difficulty getting space to hold meetings, and an atmosphere of fear that prevents the advertisement of its meetings and events. Since the passage of SB 20, LIC has shifted its resources to educating the community about the provisions of SB 20 instead of
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providing other needed services like education, voter registration, and letter-writing campaigns. LIC’s mission is frustrated by SB 20 and its deleterious effects.
19. Plaintiff Mujeres de Triunfo is a grassroots membership organization of Latinas in the Charleston, South Carolina region. Mujeres de Triunfo is dedicated to serving women and children through support groups, skill-building workshops, facilitating access to community resources and medical care, including professional therapy, because some of its members are trauma and abuse survivors. The group provides its members with transportation to meetings and to medical and other appointments for the health and welfare of members and their children. Mujeres de Triunfo informs members about community resources, such as domestic violence shelters. It ensures access to resources vital to members’ well-being by informing, transporting, and accompanying women to important social services. Mujeres de Triunfo also manages clothes donations among its members.
20. Plaintiff Mujeres de Triunfo welcomes women regardless of immigration status to become members. Some members are U.S. citizens while others are undocumented.
21. SB 20 is affecting the ability of Mujeres de Triunfo to have members attend meetings, and fewer members now attend meetings. Members fear encountering the police while driving, being driven, or even walking to meetings due to SB 20, and Sections 4, 5, 6, and 7, in particular. They fear being stopped, questioned by police about their immigration status, and then detained and separated from their children. Since SB 20 passed, immigrant members fear leaving their homes even for basics needs, such as groceries. Members fear driving women and children even for medical emergencies because they could be held criminally liable for transporting or harboring, as well as being transported or harbored.
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22. SB 20 is impeding the ability of Mujeres de Triunfo to carry out its mission to provide critical services, including transportation, to women and children in need. Although its mission is to provide support and information to women who have experienced trauma, Mujeres de Triunfo’s limited resources are now being re-directed to responding to members’ fears and concerns surrounding SB 20’s impact on their lives. During its meetings, Mujeres de Triunfo normally aims to cover educational, informational, motivational, preventative, and community service topics. However, since SB 20’s passage, meetings have repeatedly devolved into discussions of SB 20 and its effects on transportation, carrying immigration documents, and interactions with law enforcement. This has impacted Mujeres de Triunfo’s mission by changing the meetings’ focus from sustaining and developing Latino families’ quality of life to crisis planning and responses to SB 20’s effects on members’ daily lives.
23. In addition, SB 20 criminalizes the actions of members seeking to promote Mujeres de Triunfo’s shared values of respect, integrity, humanity, service, education, and strength. Members of Mujeres de Triunfo will be subject to criminal liability for providing routine services, such as transportation, arranging meetings and inviting its members to attend, or responding to urgent crises. Consequently, since SB 20 passed, Mujeres de Triunfo has not met as a large group and has resorted to smaller, less formal meetings to provide services to its members. Mujeres de Triunfo relies on its members to volunteer their time, resources and vehicles to ensure other members and their children have access to basic necessities, such as food, clothing and medical care, as well as access to a support group. However, since SB 20 passed, fewer members are available or willing to transport members or arrange meetings, thus hindering Mujeres de Triunfo’s ability to carry out its mission.
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24. Plaintiff Nuevos Caminos is a 501(c)(3) organization dedicated to providing hope to Hispanic families in the communities of Charleston, Dorchester, and Berkeley Counties in South Carolina. The organization provides services to Hispanic families, including immigrant families, through needs assessment, case management, Spanish/English assistance, community forums, parenting and pre-parenting classes, mothers’ support groups, and assistance to victims of violence, including domestic violence. All of their services are provided in Spanish. Families are often referred to Nuevos Caminos after they are in contact with the South Carolina Department of Social Services, the criminal court, or the family court. Some of Nuevos Caminos’s services are provided to crime victims.
25. In the past, Nuevos Caminos has received donations to assist in servicing the immigrant population, as many of the people it serves live in poverty. Nuevos Caminos provides its services regardless of the immigration status of its clients. The organization’s work with immigrant families occasionally requires that staff or volunteers provide transportation to clients between their homes and other service providers, medical providers, or court hearings. Some of these clients are known to be undocumented. Without such transportation, some of Nuevos Caminos’s clients would not be able to meet obligations required of them by the criminal or family courts.
26. If SB 20 goes into effect, Nuevos Caminos will not be able to fully serve the Hispanic population or fulfill their organizational mission. Since SB 20’s passage, Nuevos Caminos’s funding sources have decreased because funders fear that the organization’s work may be illegal under SB 20. In addition, SB 20 has caused Nuevos Caminos’s resources to be diverted from its core mission, and it has increased demands on staff time because, in anticipation of SB 20’s enforcement, Nuevos Caminos’ staff and volunteers have needed to assist
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families with issues relating to legal status and SB 20’s provisions, instead of providing services to strengthen families. Nuevos Caminos’ ability to provide services to its target population is also suffering because, despite years of attending community meetings and meals with Nuevos Caminos, many immigrants are now too fearful to leave their homes to engage with them. Additionally, Nuevos Caminos is concerned that its staff and volunteers may be exposed to criminal sanctions if they continue to serve immigrant families by transporting them to services or hearings or by opening their homes to them in hospitality.
27. Finally, many of the service providers for Nuevos Caminos are licensed by the State of South Carolina as public school teachers, social workers, or psychologists. Under SB 20, those professionals might have their professional licenses revoked as a result of the criminalization of their continued work with the immigrant population Nuevos Caminos serves. Nuevos Caminos believes that the services it routinely provides to its target population will expose its staff and volunteers to criminal charges for providing transportation and shelter to people known to be undocumented, making it impossible for its staff and volunteers to carry out the mission of the organization.
28. Plaintiff South Carolina Victim Assistance Network (“SCVAN”) was founded to coordinate the efforts and resources of victims’ services groups around South Carolina. As an umbrella agency, SCVAN’s primary role is to provide support, training, funding, and resources that help sustain groups on the front line of servicing victims in South Carolina. SCVAN’s secondary function is to fill existing gaps in victim services by implementing programs that address pressing needs amongst the victim population in the state. Directly, and in cooperation with local victim organizations, SCVAN provides an array of services across the state to any person who has suffered from a criminal act and to their families, regardless of their immigration
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status. That work includes, but is not limited to: providing funds to crime victims to meet their basic needs during the recovery process; enforcing the rights of victims through legal representation, language translation, and cultural sensitivity education services; providing sexual assault response teams; and advocating for victims in the criminal justice system. Annually, SCVAN serves about 1,500 victims across the 46 counties in South Carolina.
29. While immigrants have access to all of SCVAN’s programming, the Immigrant Victim Network (“IVN”), a subsidiary of SCVAN, mainly targets the immigrant population. IVN is particularly vulnerable to criminal repercussions under SB 20 because a large majority of its clients do not have legal status or are at risk of losing their legal status when they first contact SCVAN. IVN was formally established in 2009 and functions as a collaborative network of partners—including immigrant communities, victim service providers, health care and legal professionals, and law enforcement agencies—dedicated to working together to better serve immigrant victims of crimes, to ensure that these victims receive justice, and to obtain meaningful access to culturally and linguistically competent resources on their behalf.
30. SCVAN’s ability to carry out its mission is directly threatened by the implementation of SB 20 because it will force the organization to either change and limit its services, or face criminal liability. A significant portion of the assistance that SCVAN provides is funding to victims for expenses to meet their basic needs and ensure their well-being, such as arranging housing and food assistance. SCVAN personnel also frequently provide rides to clients between appointments and their homes. These routine services may violate SB 20’s prohibition against transporting and harboring undocumented immigrants, exposing SCVAN staff to criminal liability for simply doing their jobs. SB 20 frustrates SCVAN’s mission and endangers its ability to provide victim-related services to those most in need.
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31. SB 20 has already changed the nature of SCVAN’s work by diverting precious time and resources away from the direct victim services that are central to its mission, and instead towards responding to questions about the provisions of SB 20. SCVAN now has to spend a great deal of time having conversations with law enforcement officials at all levels to discuss SB 20’s provisions and the implications on their work; providing “Know Your Rights” presentations around the state about SB 20 and how the legislation will affect immigrants and service providers; and counseling and encouraging some apprehensive victims to approach law enforcement to report crimes, as immigrants have become increasingly apprehensive of harassment by law enforcement.
32. The burden of assuming the tasks of public education and advocacy for SB 20 has already and will undoubtedly continue to divert precious resources away from where they are needed most—the victims. Specifically, the IVN program has had to limit the number of new victims it can serve because it now takes longer to serve each victim and communicate with law enforcement given the constraints of SB 20. Typically, SCVAN now has to allot an additional half hour for each intake meeting. During each intake with a victim, SCVAN is not only asking about their victimization and social services needs, but now also has to answer questions about SB 20’s provisions and how it impacts the victim’s right to report these crimes and get supportive services. Significant portions of the appointments are spent easing the victim’s heightened fears towards law enforcement, especially in light of the new law.
33. SB 20 has placed new demands on SCVAN, which challenge its ability to ensure that immigrant victims in South Carolina are able to access the justice system and get help from law enforcement when they are crime victims. Additionally, the increased awareness of SB 20 and SCVAN’s active encouragement of reporting crimes arising from recent advocacy initiatives
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have greatly increased the number of calls that SCVAN has received from victims seeking assistance before the law takes effect. SCVAN is inundated and has had to reprioritize cases that it can work on based on their urgency. SCVAN is also considering limiting the days on which it receives phone calls due to the influx of new clients calling the organization. Furthermore, victims who previously utilized SCVAN’s services are shying away from getting the help they need because they lack proper identification documentation and fear the real possibility of police investigation, scrutiny, and detention under SB 20 if they come forward.
34. Plaintiff South Carolina Hispanic Leadership Council (“SCHLC”) is an organization dedicated to enhancing the quality of life and quantity of services delivered to the Hispanic Community in South Carolina through the sharing of useful information and timely exchange of ideas. The SCHLC has approximately 5 board members and approximately 180 members. The majority of its members are Latino. The SCHLC serves the Hispanic community in South Carolina by educating members about business leadership, offering Reach scholarships to low-income students, being a partner in the state’s Latin Festival, convening an annual luncheon, and offering public speakers during Hispanic Heritage Month. The volunteer board members carry out these services and organize these events.
35. This year, the SCHLC has received approximately 10 to 12 requests to speak during Hispanic Heritage Month, almost all of which relate to SB 20 and its impact on the Hispanic community in South Carolina. Normally, the SCHLC would speak about topics related to business leadership, which furthers its organizational mission, but this year it has had to divert scarce volunteer resources to address the fear in the Hispanic community and among its allies regarding the impact of SB 20. SCHLC’s mission focuses on building partnerships with other businesses, but since SB 20 passed, it has not been able to work on this goal at all. SB 20
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frustrates SCHLC’s mission of enhancing the quality of life and quantity of services delivered to the Hispanic community by burdening the Hispanic community through its identification requirements and hampering SCHLC’s ability to serve its constituency.
36. Plaintiff Service Employees International Union (“SEIU”) is one of the largest labor organizations in the world, representing 2.2 million men and women who work primarily in the public sector and in janitorial, health services, long-term care, and security industries. Many of SEIU’s members are recent immigrants to the United States and many of its members come from racial minority groups. SEIU has long called for and worked toward comprehensive reform of U.S. immigration laws. Another priority for SEIU is fighting discrimination against minorities, women, and other groups in the workplace and society in general. In South Carolina, SEIU has a local affiliate, the Southern Regional Joint Board of Workers United. This affiliate represents about 1,125 employees who live in South Carolina. These employees work in seven different work sites across the state and at one worksite in Pineville, North Carolina, which is on the North-South Carolina border. At least 50 of these employees reside in the Charleston area. Approximately 15 percent of the employees that the Joint Board represents in South Carolina are Latino and the majority of the remainder are African American. In South Carolina, SEIU works in partnership with the Southern Regional Joint Board and other groups to combat discrimination and mobilize for immigration reform at the national level.
37. The implementation of SB 20 will have a severe impact on SEIU’s organizational mission. Some of SEIU’s Latino members or their families have already been subjected to stops by local law enforcement where they have been asked to produce proof of immigration status. SEIU will be harmed if SB 20 is implemented because its minority members will be even more likely to be stopped, detained, arrested, and questioned by state and local police. This will cause
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hardship for members of SEIU. In addition, SEIU will be harmed if SB 20 is implemented because its members and potential members, regardless of nationality and immigration status, will refrain from exercising their rights to attend rallies, demonstrations, and union meetings or to engage in leafleting or other traditional labor activities because of the possibility of being stopped by police under SB 20. This will significantly affect the ability of SEIU to protect its existing members. In addition, the Latino community is one of the fastest growing in the state and is heavily represented in the industries in which Workers United is concentrated— manufacturing, industrial laundries, and distribution. SEIU joins this lawsuit to preserve its ability to organize new members and to protect the rights and interests of its members and prospective members.
38. Plaintiff Southern Regional Joint Board of Workers United (“Joint Board”) is a labor union and an affiliate of Plaintiff SEIU. The Joint Board represents approximately 1,125 workers in South Carolina. Approximately 15 percent of the Joint Board’s South Carolina membership is Latino. The primary mission of the Joint Board is to organize, represent, and empower employees in South Carolina. In addition, the Joint Board works in partnership with SEIU and other groups to combat discrimination and mobilize for immigration reform at the national level.
39. The Joint Board will be harmed because its minority members, including U.S. citizens and lawful immigrants, are likely to be unlawfully stopped, detained, arrested, and questioned by state and local police after SB 20 goes into effect. This will cause hardship for members of the Joint Board. In addition, the Joint Board will be harmed if SB 20 is implemented because its members and potential members will refrain from exercising their rights
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to attend rallies, demonstrations, and union meetings or to engage in leafleting or other traditional labor activities because of the possibility of being stopped by police under SB 20.
40. Members have already told the Joint Board that they have faced additional police scrutiny and questioning since SB 20 was passed. They believe this additional police scrutiny was based solely on their ethnic appearance and/or English speaking ability. This discriminatory treatment by law enforcement will significantly impede the ability of the Joint Board to protect its current members and to organize new members. Some members of the Joint Board lack the qualifying identity documents required by SB 20 or do not regularly carry these documents with them when traveling through the state, and are therefore at risk of lengthy detention and investigation under the new law.
41. The Joint Board will also be harmed if SB 20 is implemented because employers in the state will refrain from hiring members and potential members of the Joint Board that they believe look or sound “foreign” out of a fear that they will be subject to increased liability under SB 20. This will have a serious impact on the ability of the Joint Board to recruit new members. The Joint Board will be further harmed if SB 20 takes effect because of the provision criminalizing the transporting of undocumented immigrants. This provision will have a chilling effect on the Joint Board’s efforts to give rides to people attending union meetings and other events. The Joint Board will have a more difficult time organizing transportation to these key union activities because people will be afraid to associate with someone whose racial/ethnic appearance might result in getting the driver stopped for a minor traffic offense leading to further police scrutiny and possible criminal prosecution under the law. In addition, if SB 20 is implemented, the Joint Board will need to spend significant new time educating members and potential members about the law. This will divert The Joint Board’s resources from other core
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organizational priorities. The Joint Board joins this lawsuit to preserve its ability to organize new members and to protect the rights and interests of its members and prospective members. SB 20 will frustrate the Joint Board’s mission and force it to further divert resources to combat it.
Individual Plaintiffs 42. Plaintiff Jane Doe # 1 is a Mexican national who currently lives in North Charleston, South Carolina, with her husband and two young sons. Both her children were born in South Carolina. 43. Plaintiff Jane Doe # 1 does not have lawful immigration status in the United States, but she is currently in the process of getting a visa. Her petition for an Alien Relative Visa (I-130) has been approved by the federal authorities and she is waiting for a visa to become available. 44. Plaintiff Jane Doe # 1 does not have a South Carolina driver’s license and is not eligible to apply for one. The only documents she has that show that she has an application pending with federal immigration authorities are notices related to her I-130 Petition. The notices she has received are government correspondence, not official identification or registration documents. These documents do not bear her photograph or have any dates defining the time period for which they are valid. Jane Doe # 1 is concerned that a police officer would not accept such documents as proof of current immigration status. If SB 20 is implemented, and Jane Doe # 1 is stopped by police, she fears they will not understand that federal immigration authorities are aware she is in the country without status but have not sought to deport her. 45. If SB 20 is implemented, Jane Doe # 1 will be subject to police interrogation and detention, as well as prosecution under the state alien registration scheme and the state transporting crime if she is stopped by police for any reason. As a result, she will reduce her
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travel in the state in order to avoid possible contact with law enforcement. But she cannot completely avoid such encounters, because she must still leave home for groceries and other necessities.
46. Jane Doe # 1 is the primary caregiver to her two young children. She is concerned that if SB 20 is implemented, it will separate her from her husband and children because she will be subject to prolonged detention, or arrest under the law’s provisions.
47. Plaintiff Jane Doe # 2 lives in West Columbia, South Carolina with her five children. She has lived in South Carolina for six years.
48. Plaintiff Jane Doe # 2 currently lacks lawful immigration status in the United States, but has applied to the federal government for a U-visa—a form of federal immigration relief for crime victims and certain family members that provides a pathway to lawful permanent residence. Jane Doe # 2’s application is based on her cooperation, and that of her grown daughter, in the criminal prosecution of the daughter’s abusive husband. Although federal authorities are aware that Jane Doe # 2 is undocumented, they have not elected to initiate immigration proceedings against her, and her application for a U-visa is pending.
49. Although her petition for immigration relief is pending, Plaintiff Jane Doe # 2 does not have a federal alien registration document; nor does she have any document that can easily establish to South Carolina law enforcement officials that her presence in the country is known to the federal government. As a result, if SB 20 is implemented, Jane Doe # 2 will be subject to unlawful interrogation and detention by law enforcement officials based on her Latina appearance and lack of state-approved identity documents.
50. If SB 20 takes effect, Plaintiff Jane Doe # 2 will curtail her travel and engagement in other daily activities in order to reduce the chance that she will be stopped, interrogated, and
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detained by local law enforcement based on her Latina appearance. But she cannot completely avoid such encounters, because she must still leave home for necessities like groceries and English classes. In addition, Jane Doe # 2 sometimes receives rides from others and fears being prosecuted under the new law for allowing herself to be transported as an immigrant lacking lawful status.
51. Plaintiff John Doe #1 is a resident of Johns Island, South Carolina, and has resided in South Carolina for 21 years. Originally from Guatemala, Plaintiff John Doe #1 came to the United States in 1989 to escape the civil war in his native country. Plaintiff John Doe #1 has been able to obtain an Employment Authorization Document (“EAD”) from the U.S. government as a result of his eligibility for immigration relief under the Nicaraguan Adjustment and Central American Relief Act (“NACARA”). However, he must apply for renewal of his EAD on an annual basis, and he often goes weeks or even months before he receives a current EAD. John Doe # 1’s driver’s license and EAD expire in early January 2012. Without a current EAD, Plaintiff John Doe #1 is unable to renew his South Carolina driver’s license, which is only valid for the same period as his EAD. As a result, he regularly goes for periods of a few weeks or months without a current EAD or driver’s license.
52. During the periods when he does not have a current EAD or driver’s license, Plaintiff John Doe #1 will not be able to provide a South Carolina law enforcement officer with an identity document meeting the requirements of SB 20. Although the federal government is aware of Plaintiff John Doe #1’s immigration status and is not seeking to deport him, he fears that South Carolina law enforcement will subject him to prolonged detention and prosecution under new state immigration crimes created by SB 20. Plaintiff John Doe #1 has experienced racial profiling in the past during a traffic stop in which he was scrutinized more thoroughly than
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non-Hispanic drivers, and he fears that such disparate treatment by law enforcement will increase if SB 20 goes into effect.
53. Due to his significant workload and duties as a single parent, Plaintiff John Doe #1 sometimes forgets to carry his EAD when he leaves the house. As a result of SB 20, Plaintiff John Doe #1 fears being stopped and arrested for not carrying his alien registration documents at all times.
54. Plaintiff John Doe #1 would suffer great harm if he were detained for state immigration crimes, because he is the sole caregiver for his two young U.S. citizen daughters.
55. Plaintiff Yajaira Benet-Smith was born in Caracas, Venezuela, and has been living in Beaufort, South Carolina, since 2009. Her husband is a U.S. citizen. Plaintiff BenetSmith has a green card and is a Lawful Permanent Resident of the United States. She will be eligible to apply for U.S. citizenship in two years.
56. Plaintiff Benet-Smith uses a South Carolina driver’s license as her main form of identification. She does not always carry her green card when she leaves the house, because she worries about the time-consuming and costly process to replace her green card if she were to lose it. If SB 20 is implemented, she fears being stopped, detained, and arrested by South Carolina law enforcement officials for not having her green card on her when they demand it.
57. Plaintiff Benet-Smith works for a social service and advocacy agency in Beaufort and Jasper counties that empowers Latinos to have healthy families through maternal and child health care. In her personal time, Plaintiff Benet-Smith has given rides to people she knows to be undocumented. In particular, she has driven a sick friend and his wife to doctor’s appointments in Charleston and plans to continue doing so even after SB 20 is implemented. She plans to do this because her friends need to visit the doctor, and if they were to drive
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themselves and were stopped by local police for driving without a license, she believes they would be questioned about their immigration status. Plaintiff Benet-Smith worries, however, that if SB 20 goes into effect and she is pulled over while driving her undocumented friends, the police might question her friends’ immigration status and she would be criminalized simply for helping a sick friend get to the doctor.
58. Plaintiff Benet-Smith has also hosted people she knows lack immigration status in her home and may do so again. If SB 20 goes into effect, she fears she could be criminally prosecuted for inviting friends and neighbors into her home, and could lose her chance to become a U.S. citizen or even be deported.
59. Finally, Plaintiff Benet-Smith also worries about the climate of suspicion SB 20 will create for anyone who looks or talks differently. Plaintiff Benet-Smith speaks English fluently but has a strong accent and worries that under SB 20 she could be profiled by police officers and detained simply based on her accent.
60. Plaintiff Keller Barron is a 79-year-old resident of Columbia, South Carolina, where she has lived since 1953. She raised four children and has been active in the League of Women Voters for decades, including chairing that group’s national effort for ratification of the Equal Rights Amendment. For the past 10 years or so, Barron has provided assistance to a family whose parents came from Mexico to provide a better life for their children. This has included providing rides to the undocumented mother so that she can attend medical appointments and parent-teacher conferences at school, among other things. Barron has also provided financial assistance to the parents so that they can more fully participate in their children’s lives.
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61. While she plans to continue assisting the family, including the undocumented mother, Barron worries that she will be subject to prosecution under SB 20 for transporting and otherwise assisting an undocumented immigrant to remain in South Carolina.
62. Plaintiff John McKenzie is a resident of Columbia, South Carolina, and an active member of the South Carolina State Bar. He practices law primarily in the areas of subrogation, criminal defense, domestic relations, worker’s compensation, and personal injury. An important part of his practice involves providing for the legal needs of the Latino community in South Carolina. In 2004, he was recognized by the Government of Mexico for his work with the Mexican-American community. Plaintiff McKenzie estimates that a significant percentage of his Latino clients are undocumented. Plaintiff McKenzie represents these individuals in personal injury, worker’s compensation, criminal defense, and family law matters.
63. Because many of his Latino clients do not have driver’s licenses, Plaintiff McKenzie routinely provides transportation to his clients to court hearings. If SB 20 is implemented, Plaintiff McKenzie would be subject to criminal prosecution for concealing, harboring, or transporting undocumented immigrants in order to further such persons’ entry into the United States. SB 20 will fundamentally interfere with Plaintiff McKenzie’s ability to practice his profession effectively on behalf of the members of the Latino community.
64. Since SB 20 passed, Plaintiff McKenzie is aware that Latinos and immigrants are increasingly afraid to access the courts to protect their rights. If SB 20 is implemented, Plaintiff McKenzie anticipates losing up to 20 percent of his law practice, if not more, and sustaining certain financial loss. In addition, if SB 20 is implemented, Plaintiff McKenzie would be subject to a loss of his professional license from the State of South Carolina to practice law. If he were to be convicted, plead guilty to, or enter a nolo contendere plea with respect to transporting or
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harboring undocumented individuals, Plaintiff McKenzie would be subject to disciplinary action by the South Carolina Supreme Court and sanctions, including possible disbarment.
65. Plaintiff Sandra Jones is the pastor of Spring of Life Lutheran Church in Columbia, South Carolina, where she conducted outreach for a year before establishing the church in 2008. Pastor Jones ministers to a congregation of nearly 200 Latino individuals, many of whom are undocumented. She also serves as Executive Director of the Carolina Lutheran Outreach Centers.
66. Plaintiff Jones undertakes activities that serve the spiritual, physical, intellectual, and emotional needs of individual congregants and others in the community who seek her assistance. These activities include transportation, food distribution, counseling, education, and advocacy.
67. Plaintiff Jones transports children to after-school and summer programs. She also facilitates adult education courses at the church. Plaintiff Jones often transports people to medical appointments and to shop for groceries and school supplies. Further, she transports congregants to church services and events. Many of these individuals are undocumented; Plaintiff Jones does not inquire into their status, but frequently learns of it in the course of her ministry and providing services.
68. Plaintiff Jones is concerned that in undertaking her work as a pastor, she will be subject to monetary fines or jail time for transporting members to various appointments or for providing one of the many services she provides her congregants. Further, she is concerned that the undocumented immigrants whom she serves as a part of her ministry will be subject to criminal prosecution.
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69. After the passage of SB 20, Plaintiff Jones has heard members of her congregation express fear about leaving their houses to go to church or get groceries. Others are leaving the state.
70. Since SB 20 passed, Plaintiff Jones is aware that her congregants choose not to go out during weekday evenings to attend classes or even worship out of fear that they will be stopped by police and asked to produce proof of immigration status. Plaintiff Jones has had to put adult and youth group ministries on hold because people are nervous about leaving their homes and being stopped and arrested by police based on their perceived immigration status.
71. In addition, since SB 20 passed, churches that previously loaned Plaintiff Jones vans or buses, as well as drivers, to transport her congregants are now reluctant to do so without some assurance that the driver will not be arrested for transporting undocumented persons. Further, churches that previously made donations to Plaintiff Jones’s church are now hesitant to do so because they are afraid of being charged with a crime for aiding undocumented persons. This is making it more difficult for Plaintiff Jones to raise funds for the church and its programs, and to conduct her ministry.
72. Despite concerns of her own as well as those of her congregants, Plaintiff Jones will continue to operate church and outreach center programs and engage in activities central to her role as a pastor. Plaintiff Jones’s ministry manifests her religious beliefs and defines for her what is humane and Christian work.
Defendants 73. Defendant Nikki Haley is the Governor of South Carolina. Defendant Haley exercises “[t]he supreme executive authority of” South Carolina, S.C. CONST. ART. 4 § 1, and she is constitutionally required to “take care that the laws be faithfully executed.” Id. § 15. As such,
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Defendant Haley is responsible for the enforcement of SB 20 in the State of South Carolina and is an appropriate defendant in this case. Defendant Haley is sued in her official capacity.
74. Defendant Alan Wilson is the Attorney General of South Carolina. The South Carolina Constitution requires that the Attorney General “shall assist and represent the Governor” in taking care that the laws be faithfully executed. S.C. CONST. ART. 4 §15. The Attorney General is also mandated to “consult with and advise the solicitors in matters relating to the duties of their offices.” S.C. CODE § 1-7-100. The South Carolina code requires that the Attorney General “appear for the State” in cases “in which the State is a party or is interested . . . in any . . . court or tribunal when required by the Governor or either branch of the General Assembly.” S.C. CODE § 1-7-40. Defendant Alan Wilson is responsible for the enforcement of SB 20 in the State of South Carolina and is an appropriate defendant in this case. Defendant Alan Wilson is sued in his official capacity.
75. Defendant James Alton Cannon is the Sheriff of Charleston County. As Sheriff, Defendant Cannon is empowered to arrest “any person for . . . felony or breach of the peace committed in his presence” and “any person for . . . felony upon probable and reasonable grounds.” S.C. CODE § 23-17-90. Defendant Cannon is charged with the duty of enforcing the criminal provisions of SB 20 within Charleston County. Defendant Cannon is further required to “serve, execute, and return every process, rule, order or notice issued by any court of record in this State or by other competent authority.” S.C. CODE § 23-15-40. Defendant Cannon is sued in his official capacity.
76. Defendant Scarlett A. Wilson is Solicitor of the Ninth Judicial Circuit, which includes Charleston and Berkeley counties. In that capacity, Defendant Scarlett Wilson is charged with the duty of enforcing the criminal provisions of SB 20 within Charleston and
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Berkeley counties. S.C. CODE § 1-7-310 et seq. Defendant Scarlett Wilson is sued in her official capacity.
FACTS History and Intent of SB 20 77. On June 21, 2011, the South Carolina General Assembly enacted SB 20, a comprehensive law that governs numerous aspects of immigration regulation. SB 20 was originally introduced in the State Senate on January 11, 2011. It was then introduced in the State House of Representatives on March 14, 2011. 78. Governor Nikki Haley signed SB 20 on June 27, 2011. Except for Section 17, the law is scheduled to take effect on January 1, 2012. 79. In enacting SB 20, South Carolina legislated in an area committed exclusively to the federal government under the U.S. Constitution. 80. Indeed, South Carolina expressly intended not only to intrude into an area of exclusive federal control, but to supplant the federal government in key respects. 81. The legislative record makes clear that a primary motivating factor in passing this law was the South Carolina General Assembly’s disagreement with federal immigration policy. 82. During the debate, legislators expressly stated that they intended for the State of South Carolina to wrest control over immigration regulation away from the federal government. For example, Senator Glenn McConnell commented: “[B]oth Republican and Democrat, House of Representatives, Senate and Presidents of the United States have failed the country on this issue.” Debate on SB 20 Before the Senate (Mar. 8, 2011) (remarks of Sen. Glenn McConnell). Senator Larry Martin stated that “the big problem that has brought us here today is the failure of the federal government to secure our borders. . . . [I]t bothers me that our borders are still not
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secure, and that’s why we have to deal with this today.” Debate on SB 20 Before the Senate (Mar. 2, 2011) (remarks of Sen. Larry Martin).
83. During the debate over SB 20, legislators expressly stated that the intent of the law was to deport undocumented immigrants and to deter them from living in South Carolina. The intent of the legislators could not be clearer than stated by Senator Larry Grooms, sponsor of the bill in the Senate, when talking about SB 20:
[It] will have an impact. It will cause South Carolina to be a very unpleasant state if you are here illegally. And I would want those that are here illegally to find places that the temperature is not quite so hot. Go to Vermont. They will welcome you with open arms. Go back to your country of origin, but leave South Carolina. Leave South Carolina unless you are here legally. If you are here legally, I welcome you. I want you to integrate and become part of our society. But if you are here illegally, please, please go somewhere else. And this bill . . . will make South Carolina a difficult place to live. It will cause many of the illegal immigrants to self-deport. Debate on SB 20 Before the Senate (Mar. 8, 2011) (remarks of Sen. Larry Grooms). 84. Several legislators who supported SB 20 publicly expressed their frustration with the federal government’s immigration policies and announced that it was time for the State of South Carolina to take immigration into its own hands. 85. For example, Senator Grooms’s official website opines that “[p]rotecting our borders is a national obligation the federal government has failed to enforce,” and promises that SB 20—which Senator Grooms calls the “Arizona Law”—“will help keep illegal aliens off our streets.” See Senator Larry Grooms, “Issues,” available at http://larrygrooms.com/issues/ (last visited October 11, 2011). 86. A newspaper article on another supporter of SB 20, Senator Larry Martin noted that the he supported SB 20 “because the federal government is failing to address the issue. He hopes an increase in calls from the state’s local law enforcement agencies will get the attention
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of federal agencies responsible for immigration enforcement. ‘I want the phones of the federal government to ring off the hook,’ Martin said.” Noelle Phillips, Ford: Mexicans Needed To Do Work Others Reject, The State (Feb. 8, 2011), available at http://www.thestate.com/2011/02/08/1685334/tougher-immigration-proposal-goes.html.
87. House Speaker Bobby Harrell, another proponent of SB 20, told the press: “It has become abundantly clear that if we want something done about illegal immigration, we’re going to have to do it ourselves.” Harriet McLeod, South Carolina House Passes Illegal Immigration Bill, Reuters (May 25, 2011), available at http://www.reuters.com/article/2011/05/25/usimmigration-southcarolina-idUSTRE74O0OM20110525. When the House approved SB 20, Speaker Harrell “said the state was stepping into a void because the federal government ‘refuses to effectively support our law enforcement officers by enforcing immigration laws.’” Associated Press, SC Gov Signs Illegal Immigration Police Checks Law (June 27, 2011), available at http://www.bostonherald.com/news/national/south/view/20110627sc_gov_signs_illegal_immigra tion_police_checks_law/srvc=home&position=recent.
88. And Representative Bill Hixon, who also voted for SB 20, told reporters that “[i]t seems like the federal government won’t help us” with immigration, and that “our state is going to try to fix it.” Fraendy Clervaud, SC Immigration Bill Set To Become Law, MidlandsConnect.com (June 22, 2011), available at http://www.midlandsconnect.com/news/story.aspx?id=632818#.Totg1nL-3To.
89. In signing SB 20 into law, Governor Haley also reiterated the intent of the bill by stating that “illegal immigration is not welcome in South Carolina” and that “South Carolina will not tolerate any illegal immigration in this state.” In thanking the sponsors of the bill, Governor Haley acknowledged that they “understood how important it was to make sure that South
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Carolina became the state that was known across the country as one that was going to enforce our immigration laws and make sure that anyone that was illegal found another state to go to.” See The Times-Examiner, Gov. Nikki Haley Signs Illegal Immigration Reform Bill (June 27, 2011), available at http://www.timesexaminer.com/videos/807-gov-nikki-haley-signs-illegalimmigration-reform-bill (statement made at signing ceremony).
90. Similarly, bill sponsor Senator Larry Grooms remarked at the bill-signing ceremony: “Illegal immigration is a direct and serious threat to American liberty and our very freedoms, it must necessarily be eradicated,” and “freedom-loving states must do what is necessary to preserve our American way of life. . . .” See id. (statement made at signing ceremony).
91. In short, the legislative history leaves no question that the General Assembly enacted SB 20 as a comprehensive solution to the perceived problem of the federal government’s failure to regulate immigration to South Carolina’s liking with the express goal of driving undocumented immigrants out of the state.
Key Provisions of SB 20 State-Based Harboring-Related Immigration Crimes (Section 4 & S.C. CODE § 16-9-460 (as currently in effect))
92. Section 4 of SB 20, amending the section of the South Carolina Code enacted under A280, see supra ¶ 5, creates state law immigration crimes punishable by fines and/or imprisonment. See Sec. 4, codified at S.C. CODE § 16-9-460. These provisions are at odds with federal immigration policy.
93. Section 4 makes it a state crime for those who have “come to, entered, or remained in the United States in violation of law to allow themselves to be transported” or to “solicit or conspire to be transported or moved within the State with the intent to further the
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person’s unlawful entry into the United States or avoiding apprehension or detection of the person’s unlawful immigration status by state or federal authorities.” Sec. 4, codified at S.C. CODE § 16-9-460(A).
94. South Carolina also criminalizes transporting within the state, or soliciting or conspiring to transport within the state, a person who has “come to, entered, or remained in the United States in violation of law” with the “intent to further the person’s unlawful entry into the United States or avoiding apprehension or detection of the person’s unlawful immigration status by state or federal authorities.” Sec. 4, codified at S.C. CODE § 16-9-460(B).
95. Section 4 makes it state crime for those who have “come to, entered, or remained in the United States in violation of law to conceal, harbor, or shelter themselves from detection or to solicit or conspire to” do so “in any place, including a building or means of transportation, with intent to further that person’s unlawful entry into the United States or avoiding apprehension or detection of the person’s unlawful immigration status by state or federal authorities.” Sec. 4, codified at S.C. CODE § 16-9-460(C).
96. South Carolina also criminalizes “conceal[ing], harbor[ing], or shelter[ing]” a person who has “come to, entered, or remained in the United States in violation of law,” or soliciting or conspiring to do so, “with intent to further that person’s unlawful entry into the United States or avoiding apprehension or detection of that person’s unlawful immigration status by state or federal authorities.” Sec. 4, codified at S.C. CODE § 16-9-460(D).
97. Under SB 20, a violation of these new state crimes is considered a felony, punishable by a fine of up to $5,000 or up to 5 years in prison, or both. Furthermore, under SB 20, a person who is convicted of, pleads guilty to, or enters into a plea of no contest to a violation
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of Section 4 is also not permitted to seek or obtain any professional license offered by the State or any agency or political subdivision of the State. Sec. 4, codified at S.C. CODE § 16-9-460(E).
98. South Carolina enacted its own version of these provisions precisely to bypass the federal government’s definitions and prosecutorial and adjudicatory processes under the comprehensive federal statute, 8 U.S.C. § 1324.
99. Under SB 20, both the actor and recipient of the conduct targeted by Section 4 are subject to criminal prosecution, an unprecedented expansion of who can be found guilty of harboring. Never before has a state or locality, much less the federal government, explicitly criminalized the recipient (i.e. the immigrant) for “allowing” someone else to transport or harbor them or for “harboring” themselves. The purpose and effect of subjecting the recipient of such conduct to criminal prosecution is to allow the state to identify and imprison individuals it regards as unlawfully present. Section 4 also requires officers to make an independent determination of an individual’s immigration status.
100. South Carolina intended (and achieved) an extraordinarily broad criminal prohibition in Section 4. And, as discussed below, law enforcement agencies will prioritize and maximize enforcement of these provisions in order to avoid the possibility of civil liability under Section 1 of SB 20.
101. The new state immigration crimes created by Section 4 criminalize routine behavior undertaken on a daily basis by U.S. citizens and noncitizens with legal status in South Carolina. Under these state-based immigration offenses, South Carolinians who give a lift to a neighbor, a client, or fellow congregant, who invite a family member to visit from out of state or rent out a room to a friend, or who married a person without considering his or her immigration status, are subject to prosecution, fines, and incarceration if state authorities decide that they
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knew or recklessly disregarded that the other person has “come to, entered, or remained in the United States in violation of law” within the meaning of the South Carolina criminal code. State-Specific Alien Registration Scheme (Section 5)
102. Section 5 of SB 20 enacts a state alien registration regime by creating a new state criminal offense of “fail[ure] to carry in the person’s personal possession any certificate of alien registration or alien registration receipt card . . . while the person is in this State.” Sec. 5, codified at S.C. CODE § 16-17-750. One element of the offense is that the certificate or card was “issued pursuant to 8 U.S.C. § 1304,” a federal statute imposing certain requirements that particular non-citizens carry registration documents. Under SB 20, a violation of this new state crime is considered a misdemeanor, punishable by a fine of up to $100 or up to 30 days of jail time, or both.
103. This provision supplants federal registration laws (and the federal officers who administer and enforce those laws) and congressional judgments regarding the appropriate penalties for failure to carry registration documents in the United States. This provision further requires state officers to make independent judgments regarding an individual’s immigration status and whether an individual is required under federal law to carry registration documents. Section 5 is a backdoor attempt to enforce unlawful presence—a civil violation and an offense for which state and local officers are not authorized to make arrests—by allowing arrests upon probable cause that an individual is a foreign national and lacks certain immigration registration documents.
104. The provision governs activities and presence of certain non-citizens within this country, and will undoubtedly burden lawfully present non-citizens.
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Mandatory Investigation of Immigration Status and Prolonged Detention by State and Local Law Enforcement (Sections 6 & 7)
Section 6 105. SB 20 converts many routine encounters with South Carolina law enforcement officers into prolonged detentions solely for the purpose of investigating immigration status and implementing South Carolina’s own immigration policies and rules. 106. Section 6 of SB 20 requires every law enforcement officer in South Carolina to determine the immigration status of any person the officer stops, detains, investigates, or arrests if the officer develops “reasonable suspicion to believe that the person is unlawfully present in the United States.” Sec. 6, codified at S.C. CODE § 17-13-170(A). Under Section 6, an officer may demand that any person subject to any lawful stop, detention, investigation, or arrest produce one of four state-approved identity documents. Sec. 6, codified at S.C. CODE § 17-13170(B)(1). Only individuals who can produce or who are verified as having a state-approved document receive a presumption of lawful status. See id. 107. Only the following four categories of identification documents are approved by the State of South Carolina to provide such a presumption of immigration status: 1) a driver’s license or picture identification issued by the South Carolina Department of Motor Vehicles; 2) a driver’s license or picture identification issued by another state; 3) a federal picture identification such as a United States passport or military identification; and 4) a tribal picture identification. See Sec. 6, codified at S.C. CODE § 17-13-170(B)(1). Individuals who cannot produce or do not possess such a document—which includes many persons who are U.S. citizens or non-citizens with federal permission to remain in the United States—are subject to a lengthy and intrusive immigration verification process.
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108. SB 20 fundamentally changes the primary role and day-to-day operations of state, county, and municipal law enforcement officers in South Carolina. SB 20 radically changes South Carolina law enforcement officers’ duties by injecting civil immigration investigations and enforcement into every stop, detention, and arrest they make.
109. Section 6 requires that South Carolina law enforcement officers contact the federal government in the process of investigating immigration status. Sec. 6, codified at S.C. CODE § 17-13-170(C)(1).
110. The federal government does not respond to immigration status queries instantaneously. Federal authorities take over 80 minutes on average to respond to immigration status queries from state and local police under best-case scenarios—when they are given sufficient biographical information and they are readily able to locate the target in the immigration databases that they search. However, the databases that federal officials search for immigration status queries often return no information whatsoever. For example, there is no centralized database of U.S. citizens. In these circumstances, federal immigration officials will report that there is “no match” for the suspect, and in certain circumstances, may have to engage in a lengthy and manual file review. If a manual file review is required in response to an inquiry on an individual, this process can take over two days.
111. Section 6 will unreasonably prolong police encounters, including traffic stops that would ordinary result in a citation and that would take only minutes absent SB 20’s mandates. Many citable traffic violations and other minor offenses, such as jaywalking or failure to wear a seatbelt, are deemed criminal violations under South Carolina law. See, e.g., S.C. CODE. §§ 565-730 (failure to obey traffic provisions is a misdemeanor), 56-5-990 (failure by a pedestrian to obey “walk” and “wait” traffic signals), 56-5-3150 (jaywalking), 56-5-6520 (mandatory use of
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seatbelts). Under Section 6, South Carolina law enforcement officers are required to prolong such stops in order to investigate immigration status whenever they have “reasonable suspicion” “that the person is an alien who is unlawfully present in the United States.” Sec. 6, codified at S.C. CODE § 17-13-170(A).
112. SB 20 fails to enumerate any criteria for developing a “reasonable suspicion” of what an individual’s immigration status might be. SB 20 leaves that determination entirely to an officer’s discretion, making it inevitable that officers will detain individuals without proper suspicion of criminal activity, basing their suspicions instead on appearance, language choice, or English-language ability.
113. Section 6 is designed to require, and will have the effect of requiring, everyone in South Carolina, and particularly those who might be perceived as foreign, to carry identification papers reflecting their immigration status at all times to avoid unreasonably prolonged law enforcement encounters.
114. Section 6 further authorizes peace officers to arrest without a warrant anyone they determine to be “unlawfully present” in order to transfer that person to the custody of the federal government. Sec. 6, codified at S.C. CODE § 17-13-170(C)(4). During this time, peace officers are effectively required to arrest such individuals under no lawful basis in order to transport them to federal custody.
115. Law enforcement officials across the country and in South Carolina have stated that SB 20 cannot be implemented lawfully and will inevitably lead law enforcement officers to rely inappropriately on race, ethnicity, and English-language ability in making decisions about whom to subject to additional scrutiny with questions regarding their immigration status.
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116. Implementation of SB 20 will have a significant negative impact on the ability of local law enforcement officers to protect immigrant communities and mixed-immigration-status communities and families (i.e., communities and families that include both people with immigration status and people without such status). Because immigrants will avoid the police out of fear that any interaction with law enforcement could lead to immigration status inquiries, South Carolina law enforcement officers will not receive the assistance they need to prosecute crimes. For example, Plaintiff Jane Doe # 2 has avoided interactions with police since becoming aware of SB 20 and was afraid to report a shooting in her neighborhood. To avoid the risk of interrogation and detention due to her immigration status, she will refrain from contacting the police as a victim or witness if SB 20 goes into effect.
Section 7 117. Under Section 7, if a person is charged with a criminal offense and confined for any period in a state or local jail, South Carolina law enforcement officers are required to attempt to determine whether the confined person is “an alien unlawfully present in the United States.” Sec. 7, codified at S.C. CODE § 23-3-1100(A). 118. Section 7 also provides that if “the prisoner is an alien,” correctional officials “must make a reasonable effort to verify whether the prisoner . . . is unlawfully present in the United States.” Such verification must be made within 72 hours through a query to the federal government. Sec. 7, codified at S.C. CODE § 23-3-1100(B). 119. If the prisoner has been determined to be “unlawfully present” in the United States and has completed his or her sentence of incarceration, an officer must notify DHS and securely transport the prisoner to federal custody. Sec. 7, codified at S.C. CODE § 23-3-1100(E). Officers are therefore required to maintain custody of an individual beyond the time the
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individual would normally be released in order to transport him or her to the federal government—regardless of whether the federal government has requested, either formally or informally, that the individual be further detained or delivered to federal custody.
120. The immigration status queries mandated by SB 20 impose a substantial burden on federal authorities, who will be required to respond to an enormous increase in the number of immigration status inquiries and will be hindered in their attempts to prioritize among their enforcement obligations as directed by federal statutes, regulations, and policies. Criminalization of False Identification Documents Relating to Immigration (Section 6)
121. In addition to the provisions described above, Section 6 also creates a state criminal enforcement scheme for false identity documents relating to immigration.
122. Section 6 makes it unlawful to use or possess “a false, fictitious, fraudulent, or counterfeit picture identification for the purpose of offering proof of the person’s lawful presence in the United States.” Sec. 6, codified at S.C. CODE § 7–13–170(B)(2). It further provides that upon the first offense, the violator is guilty of a misdemeanor and subject to a $100 fine and 30 days’ imprisonment. With a second offense, this penalty becomes a felony, subject to a $500 fine and five years’ imprisonment. Id.
123. The criminal offenses created by Section 6 apply only when documents are used “for the purpose of offering proof of the person’s lawful presence in the United States.” Id. This limiting language demonstrates the purpose of the state legislature to regulate in the federal domain of immigration. Immigration Enforcement Mandate (Section 1)
124. Section 1 tasks all state and local agencies and officials with the enforcement of federal immigration law and of SB 20 under threat of civil liability and steep monetary penalties.
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125. Section 1 creates a private right of action for a South Carolina resident to sue any political subdivision that enacts any ordinance or policy that intentionally limits or prohibits a law enforcement officer or local government employee “from seeking to enforce a state law with regard to immigration” or “communicating to appropriate federal or state officials regarding the immigration status of a person” within the state. Sec. 1, codified at S.C. CODE § 6-1-170(E)(1).
126. Political subdivisions found guilty of such violations face steep monetary fines of no less than $1,000 and up to $5,000 for each day that the enactment, action, policy, or practice remains or remained in effect. Sec. 1, codified at S.C. CODE § 6-1-170(E)(1)(c)(3). Under threat of civil liability, law enforcement agencies will be compelled to enforce the provisions in SB 20 to the full extent possible, even where discretion in enforcement is permitted.
Comprehensive Federal Immigration System 127. The federal government has exclusive power over immigration matters. The U.S. Constitution grants the federal government the power to “establish a uniform Rule of Naturalization,” U.S. CONST. ART. I, § 8, cl. 4, and to “regulate Commerce with foreign Nations,” U.S. CONST. ART. I, § 8, cl. 3. In addition, the Supreme Court has held that the federal government’s power to control immigration is inherent in the nation’s sovereignty. 128. Congress has created a comprehensive system of federal laws, agencies, and procedures regulating immigration. See generally Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101 et seq. 129. The extensive statutory scheme created by the INA leaves no room for supplemental state immigration laws.
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130. In addition, the federal government has issued numerous regulations, policies, and procedures interpreting the provisions of the INA and has established a large and complex administrative apparatus to carry out these mandates.
131. The INA carefully calibrates the nature—criminal or civil—and the degree of penalties applicable to each possible violation of its terms.
132. The INA contains complex and exclusive procedures for determining an individual’s immigration and citizenship status, deciding whether the civil provisions of the immigration laws have been violated, and determining whether an individual may lawfully be removed from the United States.
133. Under the INA, a non-citizen’s immigration status may be fluid and subject to change over time. A non-citizen who enters the United States with authorization—with a student visa, for example—may remain in the country past his period of authorized stay and thus no longer be in status. (Alternatively, he may overstay his original visa yet remain in status, for example, if he is eligible to change into a different visa classification.) Conversely, a non-citizen who enters the United States without authorization, for example by crossing into the country by foot while evading border authorities, may subsequently gain lawful status, such as through a successful asylum application or U-visa application as a victim of serious crime.
134. The fluidity of immigration status is a fundamental feature of federal immigration law. It is a direct and unavoidable consequence of the system of immigration regulation that Congress has prescribed, and it accommodates many important national interests including, for example, the nation’s humanitarian and international law obligations regarding asylum seekers and people fleeing torture.
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135. SB 20 presumes that immigration status is definite, not subject to nuance, and readily and quickly ascertained. But those presumptions are false.
136. Under federal law, there is no single, readily ascertainable category or characteristic that establishes whether a particular person may or may not remain in the United States. The answer to that question is a legal conclusion that can only be reached through the processes set forth in the INA, and that may depend on the discretionary determinations of federal officials.
137. There are many non-citizens who are present in the United States without formal immigration status who would not be removed if placed in federal removal proceedings, or who actually have temporary permission from the federal government to be in the United States. For example, an individual without federal immigration status may be eligible for a form of immigration relief, such as asylum, adjustment of status, or withholding of removal. Some of these individuals are known to the federal government, often because they have applied for immigration relief; others will not be identified until they are actually placed in proceedings by the federal government and their cases are adjudicated.
138. In addition, some individuals, like those granted Temporary Protected Status due to turmoil or natural disasters in their native countries, have permission to be in the United States, but are unlikely to have one of the enumerated qualifying identity documents under SB 20.
139. The fact that some persons have permission to remain in the United States without having a formal immigration status, or despite being technically removable, is also a fundamental feature of federal immigration law and the system of immigration regulation that Congress has prescribed. This system accommodates many important national interests
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including, for example, Congress’s desire to allow certain individuals to obtain relief from removal.
140. Federal agencies do not and cannot determine definitively, in response to a demand from a state or local official, whether an individual is subject to removal. It is impossible to make a determination of whether an individual is lawfully in the United States based upon a search of the federal databases that federal officials check in the course of responding to an immigration status query. Such determinations involve complex questions of fact and law and are made through a federal administrative and judicial process—a process that may take years.
141. Moreover, the federal government has established certain priorities that determine where resources for immigration enforcement are focused and when discretion should be used. For example, the federal government prioritizes the apprehension and removal of non-citizens it deems to represent the most serious risk to public safety.
142. The federal Law Enforcement Support Center (“LESC”), which is responsible for responding to immigration status queries from law enforcement agencies, has experienced continuous and dramatic increases in immigration status determination queries over the past four years. The verification process at the LESC is time-intensive and can take between 80 minutes and two days per request. Following congressional directives, the LESC has prioritized its efforts in order to focus resources on those non-citizens deemed most likely to pose a threat to public safety or national security.
143. On September 21, 2011, the federal Department of Homeland Security issued a memorandum setting forth the proper role of state and local officers in immigration enforcement pursuant to achieving federal goals and priorities. See U.S. DHS, Guidance on State and Local
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Governments’ Assistance in Immigration Enforcement and Related Matters, available at http://www.dhs.gov/xlibrary/assets/guidance-state-local-assistance-immigration-enforcement.pdf (“Federal Guidance”). In the view of the agency charged with administering the INA, “[s]tate or local laws or actions that are not responsive to federal control or direction, or categorically demand enforcement in such a way as to deprive the Federal Government—and state and local officers—of the flexibility and discretion that animates the Federal Government’s ability to globally supervise immigration enforcement [are prohibited], . . . even if the state or local government’s own purpose is to enforce federal immigration law.” Federal Guidance at 8. “[T]he INA thus requires that a state or local law enforcement officer who assists DHS officers in their enforcement of the immigration laws must at all times have the freedom to adapt to federal priorities and direction and conform to federal discretion, rather than being subject to systematic mandatory state or local directives that may work at odds with DHS.” Id. at 9. “[S]tate or local governments must not systematically act in a way that conflicts with the policies or priorities set by the Federal Government or limits the ability of the Federal Government to exercise discretion under federal law whenever it deems appropriate.” Id. at 10.
144. In addition, the federal government often exercises its prosecutorial discretion to prioritize certain cases for action over others. The federal government’s decision to exercise such discretion may be based upon a wide range of equitable factors, and its exercise in any given case cannot be predicted in advance.
145. As a result, the question whether any given non-citizen may remain in the United States depends upon a host of complicated and time-consuming legal and discretionary determinations by a variety of federal officials. It cannot be conclusively determined by a status verification query to the federal government. Inquiries made by law enforcement officers to the
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LESC or by state agencies to the federal Systematic Alien Verification for Entitlements (“SAVE”) program yield, at best, a snapshot of what a federal agency believes to be an individual’s current immigration status or eligibility for benefits, respectively, which may not correspond to the ultimate finding of whether she is subject to removal. See Department of Justice Office of the Inspector General, Follow-up Review of the Status of IDENT/IAFIS Integration at 41 (2004), available at http://www.justice.gov/oig/reports/plus/e0501/final.pdf (noting that, according to DHS officials, DHS’s immigration “databases cannot be relied upon to accurately determine immigration status [at any given time] because immigration status is dynamic[,]” and database entries may “not be current”). Thus, not all inquiries to the federal government regarding immigration status yield a clear response.
146. Whether a person is a citizen of the United States is not easily ascertained in the contexts demanded by SB 20. U.S. citizens are not required to carry documentary proof of their citizenship. There is no national database that contains information about every U.S. citizen. Some people are actually unaware of their U.S. citizenship because they may have acquired U.S. citizenship at birth by operation of law due to their parents’ citizenship, despite not being born in the United States. See, e.g., 8 U.S.C. § 1433. Others automatically obtain citizenship when their parents become naturalized U.S. citizens. See, e.g., 8 U.S.C. § 1431.
147. SB 20’s creation of a state immigration system fundamentally conflicts with the congressionally created statutory scheme, impermissibly encroaches on the federal government’s exclusive power to regulate immigration, and will to lead to erroneous determinations and unlawful detention by state and local officials.
148. Moreover, SB 20 conflicts with and is preempted by provisions of the INA that set forth comprehensive federal schemes addressing: (1) alien registration documentation
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requirements; (2) transportation and harboring; (3) immigration enforcement authority; and (4) fraudulent immigration documents. Federal registration system
149. The INA includes a national alien registration system that displaces and preempts state alien registration laws.
150. The federal registration scheme has been in place since 1940 and was designed to create a single, uniform, national scheme.
151. The preemptive effect of the federal alien registration scheme was expressly recognized by the President of the United States when the scheme was created and has been upheld by the Supreme Court.
152. The federal regulation implementing 8 U.S.C. §§ 1302, 1304, and 1306 prescribes as “evidence of registration” specific forms for compliance. See 8 C.F.R. § 264.1. The list, however, has not been updated to include some of the current federal forms that are commonly used. For example, there is no corresponding registration form available for recipients of Uvisas (given to victims of crime who assist in the prosecution of the case) or T-visas (given to victims of human trafficking). As a result, there are categories of non-citizens who have applied for immigration benefits or whose presence in the United States is otherwise known to federal immigration agencies who do not have registration documents that are recognized as valid under the regulations.
153. The federal government rarely prosecutes registration violations. Many of the changes that have been made to the INA since the enactment of the registration provisions reflect Congress’s decision to focus on and prioritize immigration enforcement against those immigrants who commit serious criminal offenses. Targeting immigrants convicted of serious
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crimes, rather than those who may be in violation of the registration provisions, is the principal priority of federal immigration officers.
154. According to the federal government, it is impermissible for “State or local governments [to] creat[e] state prohibitions or impos[e] civil or criminal sanctions for conduct that is within the scope of the INA, even if not prohibited by the INA—for example, penalizing aliens present in the United States without lawful status [or] penalizing aliens who are in violation of federal registration requirements . . . .” Federal Guidance at 14. Federal transportation and harboring provision
155. The INA also establishes criminal penalties for the transporting and harboring of certain non-citizens. See 8 U.S.C. § 1324(a)(1)-(2). Violations of these provisions carry fines and prison terms ranging from five years to life. Id.
156. The federal courts are engaged in an ongoing process of interpreting the statutory language in 8 U.S.C. § 1324(a) and determining the reach of the federal prohibitions therein.
157. Section 4 of SB 20 conflicts with 8 U.S.C. § 1324(a) because there are numerous and material differences between the state and federal statutes. Section 4 removes federal control over the enforcement and prosecution of immigration-related transportation and harboring offenses, providing no mechanism for federal discretion or the complexity of federal immigration law. These state laws will be enforced by state police and prosecutors and interpreted by state judges.
158. Section 4 also criminalizes those who are themselves transported or harbored— conduct which is not subject to prosecution under 8 U.S.C. § 1324.
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Federal restrictions on immigration enforcement authority 159. Mere presence inside the United States without federal immigration status is not a
criminal offense. Rather, it is a civil violation under federal immigration law. 160. State and local law enforcement officers have no general authority to enforce
federal civil immigration law. Federal law specifically authorizes state officers to assist in immigration enforcement only in narrowly defined circumstances; otherwise, it reserves immigration enforcement authority to the federal government.
161. Section 1357(g) of Title 8 of the U.S. Code allows the federal government to “enter into a written agreement with a State, or any political subdivision” to carry out “function[s] of an immigration officer in relation to the investigation, apprehension, or detention of aliens in the United States.” 8 U.S.C. § 1357(g). These agreements are commonly referred to as “287(g) agreements” after the section of the INA in which they are codified. Such agreements, however, may be entered into only if the federal government determines that the particular state officers to be deputized are “qualified to perform a function of an immigration officer,” id., and the federal government must train and supervise each officer who is deputized under such an agreement.
162. There are two types of 287(g) enforcement models: the task force officer model and the detention model. Under the detention model, only those individuals brought to jail by local arresting agencies are scrutinized under 287(g) authority. The task force officer model involves engaging in certain immigration-related enforcement on patrol. Currently, the sheriffs’ offices of only 4 of South Carolina’s 46 counties—Beaufort, Charleston, Lexington, and York— have 287(g) agreements with the federal government pursuant to this statutory provision. The only jurisdiction designated under the task force officer model is Beaufort County, while
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Charleston, Lexington, and York Counties are designated with authority under only the detention model. See U.S. ICE, Fact Sheet: Delegation of Immigration Authority Section 287(g) Immigration and Nationality Act, available at http://www.ice.gov/news/library/factsheets/287g.htm.
163. SB 20 violates the U.S. Constitution by granting state and local officers in South Carolina immigration enforcement authority outside of the authority provided by 287(g) agreements. SB 20’s provisions mandating immigration status investigation by all state and local law enforcement officials in the field conflicts with the limited manner in which the federal government has allowed particular South Carolina law enforcement agencies to assist in the enforcement of federal immigration law under the federal government’s control and supervision.
164. The other provisions in federal law authorizing state or local participation in immigration enforcement are also carefully constrained. Federal immigration statutes expressly authorize state and local police to make arrests for exactly two immigration crimes—federal immigration crimes of smuggling, transporting, or harboring certain aliens, and illegal entry by a previously deported felon. See 8 U.S.C. §§ 1324(c), 1252c. Another provision, 8 U.S.C. § 1103(a)(10), allows the U.S. Attorney General to authorize state and local officers to enforce immigration laws upon certification of “an actual or imminent mass influx of aliens,” but no such certification has ever occurred.
165. Congress’s intent to generally prohibit state and local officers from enforcing civil immigration laws is clear both from the statutory scheme and from legislative history. Furthermore, the federal government has emphasized that it is impermissible for “[s]tate governments [to] mandat[e] that state or local law enforcement officers inquire into the immigration status of a specified group or category of individuals” and for “[s]tate or local
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government officials [to] consistently refer[] certain classes of individuals or matters to DHS for some action to such an extent as to risk burdening limited DHS resources and personnel either after being asked by DHS not to refer those matters or where such referrals fall outside of DHS priorities.” Federal Guidance at 14. Federal regulation of immigration documents
166. Federal criminal law comprehensively governs document fraud in the immigration context. See, e.g., 8 U.S.C. § 1306(d) (false alien registration cards); 8 U.S.C. § 1324(c) (penalties for document fraud); 18 U.S.C. § 1424-25 (false papers in naturalization proceedings); id. § 1028 (production, possession, or use of false identification documents); id. § 1426 (false naturalization, citizenship, or alien registration papers); id. § 1542-43 (forgery or false use of passport); id. § 1544 (misuse of passport); id. § 1546 (fraud and misuse of visas); id. § 911 (false claim to citizenship). Federal law also comprehensively regulates in the area of picture identifications issued by the United States, such as passports and military identification, including the criminal production, issuance, distribution, possession, or use of false, fictitious, fraudulent, or counterfeit federal picture identifications.
167. All of the abovementioned statutes are undergoing continual and ongoing statutory interpretation by both federal courts and federal agencies lawfully delegated authority to do so.
168. Section 6 of SB 20 purports to create a parallel state system governing the same area—immigration-related document fraud. By mimicking federal criminal immigration statutes, and creating different, sometimes conflicting penalties to be charged and prosecuted through a state criminal system—Section 6 intrudes upon an area of exclusive federal control and, as such, is preempted. This creates unavoidable conflict with both the federal immigration
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priorities and the specific federal statutes regulating the issue. And, this state provision inappropriately layers additional penalties on top of the scheme created by Congress, thereby undermining the congressional calibration of force. Federal government’s interests in a uniform immigration system and conducting foreign relations
169. The federal government has a core, constitutionally protected interest in setting a uniform federal immigration scheme, and in conducting foreign relations with other nations. State immigration laws interfere with these core interests.
170. The President of the United States criticized a similar law enacted by the State of Georgia on this basis on April 26, 2011, stating: “It is a mistake for states to try to do this piecemeal. We can’t have 50 different immigration laws around the country. Arizona tried this and a federal court already struck them down.” See Matthew Bigg, Obama Criticizes New Georgia Immigration Law, Reuters, Apr. 26, 2011, available at http://www.reuters.com/article/2011/04/26/us-obama-immigration-georgiaidUSTRE73P7QD20110426?feedType=RSS&feedName=domesticNews&rpc=22&sp=true.
171. Janet Napolitano, the former governor of Arizona and current U.S. Secretary of Homeland Security, publicly opposed a similar law enacted by the State of Arizona, saying: “The Arizona immigration law will likely hinder federal law enforcement from carrying out its priorities of detaining and removing dangerous criminal aliens.” Divisive Arizona Immigration Bill Signed Into Law, CBS/AP, Apr. 23, 2010, available at http://www.cbsnews.com/stories/2010/04/23/politics/main6426125.shtml.
172. As the U.S. Department of Justice argued in its lawsuit against Arizona’s SB 1070—a law on which SB 20 was explicitly modeled—state laws that attempt to supplement the federal immigration scheme with a patchwork of state immigration laws “interfere with vital
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foreign policy and national security interests by disrupting the United States’ relationship with Mexico and other countries.” Compl. ¶ 4, United States v. Arizona, Case No. 10-1413 (D. Ariz. filed July 6, 2010). Most recently, the U.S. Department of Justice argued in its challenge to a similar law in Alabama that these state laws “would result in further and significant damage to . . . U.S. foreign relations” and will jeopardize the treatment of “American nationals who are unlawfully present in other countries.” Compl. ¶¶ 36-37, United States v. Alabama, No. 11-2746 (N.D. Ala., filed Aug. 1, 2011).
173. Local law enforcement agencies and other government agencies across South Carolina’s 46 counties inevitably will interpret SB 20’s vague and expansive provisions differently, leading to a patchwork of enforcement even within South Carolina. This cacophony of enforcement poses a serious threat to the federal government’s ability to regulate immigration.
174. Because the United States’ immigration policy is inextricably intertwined with foreign relations, South Carolina’s attempt to regulate immigration through SB 20 will adversely impact the United States’ ability to conduct foreign relations with other countries. SB 20 will undermine the ability of the U.S. government to speak with a single voice about immigration, including communicating to foreign nations what their nationals can expect when they come to visit or reside in the United States. State attempts to interfere with these inherently federal issues can have severe impacts on foreign relations. See Decl. of William J. Burns ¶¶ 8-10, 38, 46-49, 53, United States v. Alabama, No. 11-CV-02746 (N.D. Ala. filed Aug. 1, 2011) (noting cumulative impact of recent state immigration laws, including SB 20, on foreign affairs and that such laws are “already complicating [U.S.] efforts to pursue [foreign policy] interests”).
175. SB 20 has already impaired the United States’ foreign relations by upsetting a key ally. On the day Governor Haley signed SB 20 into law, the Mexican government expressed
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concern that the law will threaten the “human and civil rights of Mexicans who live in or visit South Carolina,” and that its “passage ignores . . . Mexico’s importance as the state [of South Carolina]’s fourth largest export market” and “contradicts the principles of shared responsibility, trust, and mutual respect with which the Federal Governments of Mexico and the United States operate in order to address their shared challenges in North America.” Mexican Foreign Affairs Ministry, The Government of Mexico Regrets that S20 Has Been Signed into Law in South Carolina (July 27, 2011), available at http://www.sre.gob.mx/csocial/contenido/comunicados/2011/jun/cp_228.html.
176. In response to similar state anti-immigrant laws—such as Arizona’s SB 1070, Georgia’s HB 87, Utah’s HB 497, and Alabama’s HB 56—numerous foreign governments have expressed concern that such laws will cause widespread violations of the United States’ treaty obligations, which would harm their nationals living in or visiting the United States. See, e.g., Amici Curiae Brief by Argentina, Bolivia, Brazil, Chile, Colombia, Costa Rica, Dominican Republic, Ecuador, El Salvador, Guatemala, Honduras, Nicaragua, Paraguay, Peru, United Mexican States, and Uruguay in Support of Plaintiffs, Hispanic Interest Coalition of Alabama v. Bentley, No. 11-2484, Doc. No. 95 (N.D. Ala. filed Aug. 4, 2011); Motion of the Governments of Argentina, Brazil, Chile, Colombia, Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua and Peru for Leave to Join Brief of the United Mexican States as Amicus Curiae in Support of Plaintiffs, Georgia Latino Alliance for Human Rights, et al. v. Deal, et al., No. 111804, Doc. No. 54 (N.D. Ga. filed June 15, 2011); Brief of the United Mexican States as Amicus Curiae in Support of Plaintiffs, United Coalition of La Raza et al. v. Herbert et al., No. 1100401, Doc. No. 68 (D. Utah filed June 7, 2011); Brief of the United Mexican States as Amicus Curiae in Support of Plaintiffs, Friendly House et al. v. Whiting et al., No. 10-01061, Doc. No.
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299 (D. Ariz. filed July 8, 2010). These governments have also explained that state immigration laws, if implemented, would negatively impact foreign relations by undermining public opinion in their home countries and by making it impossible for their countries to engage on a sovereignto-sovereign basis with the United States on important issues such as immigration and trade.
CLASS ACTION 177. The Individual Plaintiffs bring this action on behalf of themselves and all other persons similarly situated pursuant to Federal Rules of Civil Procedure 23(a) and 23(b)(2). The class, as proposed by Plaintiffs, consists of all persons:
a. who are or will be subject to detention, arrest, or interrogation with respect to their citizenship or immigration status pursuant to the provisions of SB 20; or
b. who are or will be subject to unlawful detention or prosecution pursuant to the provisions of SB 20; or
c. who are or will be deterred from living, associating, or traveling with immigrants in South Carolina because of the provisions of SB 20.
178. The requirements of Federal Rules of Civil Procedure 23(a) and 23(b)(2) are met here, in that the class is so numerous that joinder of all members is impracticable.
179. There are questions of law and fact common to the proposed class, including: (1) whether SB 20 is preempted by the U.S. Constitution and federal law; (2) whether SB 20 violates the Fourth Amendment of the U.S. Constitution; (3) whether SB 20 violates the Equal Protection Clause of the U.S. Constitution; and (4) whether SB 20 violates the Due Process Clause of the U.S. Constitution. These questions predominate over any questions affecting only the Individual Plaintiffs.
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180. The claims of the Individual Plaintiffs are typical of the claims of the proposed class.
181. All of the Individual Plaintiffs will fairly and adequately represent the interests of all members of the proposed class because they seek relief on behalf of the class as a whole and have no interests antagonistic to other members of the class. The Individual Plaintiffs are also represented by pro bono counsel, including the ACLU Foundation Immigrants’ Rights Project and Racial Justice Program, the Mexican American Legal Defense and Educational Fund, the National Immigration Law Center, the Southern Poverty Law Center, the ACLU of South Carolina, South Carolina Appleseed Legal Justice Center, LatinoJustice PRLDEF, the law firm of Rosen, Rosen & Hagood, LLC, and the law firm of Reginald Lloyd, who collectively have extensive experience in class action litigation, including litigation regarding the rights of immigrants and constitutional law. Finally, Defendants have acted and will act on grounds generally applicable to the class in executing their duties to enforce SB 20, thereby making appropriate final injunctive relief with respect to the class as a whole.
DECLARATORY AND INJUNCTIVE RELIEF 182. An actual and substantial controversy exists between Plaintiffs and Defendants as to their respective legal rights and duties. Plaintiffs contend that they face an imminent threat of harm if SB 20 is enforced, and that this law violates the U.S. Constitution and federal law. Defendants are obligated to enforce this law unless it is found to be illegal. 183. In violating Plaintiffs’ rights under the U.S. Constitution and federal law, Defendants have acted and will be acting under color of law. 184. If allowed to go into effect, SB 20 will cause irreparable injury to Plaintiffs.
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185. Plaintiffs have no plain, speedy, and adequate remedy at law against SB 20 other than the relief requested in this Complaint.
186. If SB 20 takes effect, the Plaintiffs, and in particular other individuals of color in South Carolina, will be subject to unlawful detention, arrest, prosecution, and harassment including all Individual Plaintiffs and the staff and members of all the Organizational Plaintiffs, as well as members of the proposed plaintiff class.
187. In addition, SB 20 will thwart the missions of Organizational Plaintiffs Lowcountry Immigration Coalition, Mujeres de Triunfo, Nuevos Caminos, SCVAN, SCHLC, SEIU, and the Joint Board by forcing them to divert their resources in order to respond to their constituents’ questions regarding their rights under the new law, which will undermine their ability to advance pre-existing organizational priorities and services.
188. In addition, SB 20 will thwart the missions of Organizational Plaintiffs Lowcountry Immigration Coalition, Mujeres de Triunfo, Nuevos Caminos, and SCVAN by deterring their members and/or clients from availing themselves of the organizations’ services and/or participating in membership activities.
189. In doing the things alleged in this Complaint, Defendants will deny Plaintiffs’ rights secured by the U.S. Constitution and federal law.
190. Defendants’ enforcement of SB 20 will constitute an official policy of the state of South Carolina.
191. Plaintiffs are entitled to a declaration that SB 20 is unconstitutional on its face and to an order preliminarily and permanently enjoining its enforcement.
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CAUSES OF ACTION COUNT ONE
SUPREMACY CLAUSE; 42 U.S.C. § 1983 192. Count One is brought against Defendants Haley and Alan Wilson by all Plaintiffs. It is brought with respect to the entirety of SB 20. 193. Count One is brought against Defendants Cannon and Scarlett Wilson by Organizational Plaintiffs Mujeres de Triunfo, Nuevos Caminos, SEIU, and the Joint Board, and by Individual Plaintiffs Jane Doe # 1, John Doe #1, and Yajaira Benet-Smith. 194. Paragraphs 1-191 are repeated and incorporated as though fully set forth herein. 195. The Supremacy Clause, Article VI, Section 2, of the U.S. Constitution provides: This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. 196. SB 20 is void in its entirety because it is a regulation of immigration, and therefore usurps powers constitutionally vested in the federal government exclusively. 197. In addition, SB 20, and particularly Sections 1, 4, 5, 6, and 7, conflicts with federal laws, regulations and policies; attempts to legislate in fields occupied by the federal government; imposes burdens and penalties on legal residents not authorized by and contrary to federal law; and unilaterally imposes burdens on the federal government’s resources and processes, each in violation of the Supremacy Clause. 198. Plaintiffs move for relief on this claim both directly under the Constitution, as an action seeking redress of the deprivation of statutory rights under the color of state law, and also under 42 U.S.C. § 1983.
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COUNT TWO FOURTH AMENDMENT; 42 U.S.C. § 1983 199. Count Two is brought against Defendants Haley and Alan Wilson by Organizational Plaintiffs Lowcountry Immigration Coalition, Mujeres de Triunfo, Nuevos Caminos, SCVAN, SCHLC, SEIU, and the Joint Board, and by Individual Plaintiffs Jane Doe # 1, Jane Doe #2, and John Doe #1. 200. Count Two is brought against Defendants Cannon and Scarlett Wilson by Organizational Plaintiffs Mujeres de Triunfo, Nuevos Caminos, SEIU, and the Joint Board, and by Individual Plaintiffs Jane Doe # 1 and John Doe #1. 201. Paragraphs 1-54, 73-76, 105-120, 124-126, 159-165, and 177-191 are repeated and incorporated as though fully set forth herein. 202. The Fourth Amendment to the U.S. Constitution prohibits “unreasonable searches and seizures.” The Fourth Amendment’s guarantees are applied to the States through the Fourteenth Amendment. 203. Sections 6 and 7 of SB 20 require officers to seize, detain, arrest, and hold individuals without reasonable suspicion or probable cause to believe a person has engaged in criminal activity in violation of the Fourth Amendment. 204. Plaintiffs move for relief on this claim as an action seeking redress of the deprivation of Constitutional rights under the color of state law, through 42 U.S.C. § 1983.
COUNT THREE FOURTEENTH AMENDMENT EQUAL PROTECTION CLAUSE 205. Count Three is brought against Defendants Haley and Alan Wilson by Organizational Plaintiffs Lowcountry Immigration Coalition, Mujeres de Triunfo, Nuevos
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Caminos, SCVAN, SCHLC, SEIU, and the Joint Board, and by Individual Plaintiffs Jane Doe #1, Jane Doe # 2, John Doe # 1, and Yajaira Benet-Smith.
206. Count Three is brought against Defendants Cannon and Scarlett Wilson by Organizational Plaintiffs Mujeres de Triunfo, Nuevos Caminos, SEIU, and the Joint Board, and by Individual Plaintiffs Jane Doe # 1, John Doe #1, and Yajaira Benet-Smith.
207. Paragraphs 1-59, 73-76, 102-104, 124-126, and 177-191 are repeated and incorporated as though fully set forth herein.
208. The Fourteenth Amendment to the U.S. Constitution provides that “No State shall . . . deny to any person within its jurisdiction the equal protection of the laws.”
209. Section 5 of SB 20 impermissibly discriminates against non-citizens on the basis of alienage and against various classes of non-citizens on the basis of immigration status and deprives them of the equal protection of the laws within the meaning of the Fourteenth Amendment to the U.S. Constitution.
210. Plaintiffs move for relief on this claim as an action seeking redress of the deprivation of Constitutional rights under the color of state law, through 42 U.S.C. § 1983.
COUNT FOUR FOURTEENTH AMENDMENT DUE PROCESS (VAGUENESS); 42 U.S.C. § 1983
211. Count Four is brought against Defendants Haley and Alan Wilson by Organizational Plaintiffs Lowcountry Immigration Coalition, Mujeres de Triunfo, Nuevos Caminos, SCVAN, SCHLC, SEIU, and the Joint Board, and by all Individual Plaintiffs.
212. Count Four is brought against Defendants Cannon and Scarlett Wilson by Organizational Plaintiffs Mujeres de Triunfo, Nuevos Caminos, SEIU, and the Joint Board, and by Individual Plaintiffs Jane Doe # 1, John Doe #1, and Yajaira Benet-Smith.
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213. Paragraphs 1-76, 92-101, 105-126, and 177-191 are repeated and incorporated as though fully set forth herein.
214. The Fourteenth Amendment to the U.S. Constitution provides that no State shall “deprive any person of life, liberty, or property without due process of law.”
215. Sections 4 and 6 base criminal liability on the undefined and vague term of “unlawfully present” or “lawful presence,” concepts that have no single definition under federal law, but rather are defined only for quite specific purposes that bear no relation to these provisions of SB 20.
216. Sections 4 criminalizes behavior by private parties who are not legally authorized to make verification requests to the federal government, and who for this reason, and because immigration status is otherwise a complex legal determination not readily made by laypersons, cannot have notice at the time they are required to conform their conduct to the law as to whether a person is “unlawfully present” within the meaning of SB 20. Section 4 states that it “does not apply” to certain programs which, among other things, “are necessary for the protection of life or safety,” but the statute does not define that standard, leaving groups and individuals uncertain whether they would be deemed to fall within the savings clause or not. Section 4 of SB 20 violates the Due Process Clause as impermissibly vague and overbroad.
217. Additionally, Section 6 directs state and local law enforcement officials to detain an individual if they have a “reasonable suspicion” that the individual is “unlawfully present.” The statute leaves the term “reasonable suspicion” undefined, which further confuses the meaning of this provision.
218. Plaintiffs move for relief on this claim as an action seeking redress of the deprivation of Constitutional rights under the color of state law, under 42 U.S.C. § 1983.
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COUNT FIVE FOURTEENTH AMENDMENT DUE PROCESS (PROCEDURAL); 42 U.S.C. § 1983
219. Count Five is brought against Defendants Haley and Alan Wilson by Organizational Plaintiffs Lowcountry Immigration Coalition, Mujeres de Triunfo, Nuevos Caminos, SCVAN, SCHLC, SEIU, and the Joint Board, and by Individual Plaintiffs Jane Doe # 1, Jane Doe #2, and John Doe # 1.
220. Count Five is brought against Defendants Cannon and Scarlett Wilson by Organizational Plaintiffs Mujeres de Triunfo, Nuevos Caminos, SEIU, and the Joint Board, and by Individual Plaintiffs Jane Doe # 1, and John Doe #1.
221. Paragraphs 1-59, 73-76, 105-120, 124-126, 159-165, and 177-191 are repeated and incorporated as though fully set forth herein.
222. The Fourteenth Amendment to the U.S. Constitution provides that no State shall “deprive any person of life, liberty, or property without due process of law.”
223. Sections 6 and 7 of SB 20 direct South Carolina state and local law enforcement officers to deprive persons of their liberty interests without due process of law by subjecting Plaintiffs and putative class members to prolonged detention without any process, in violation of the Fourteenth Amendment Due Process Clause.
224. Plaintiffs move for relief on this claim as an action seeking redress of the deprivation of Constitutional rights under the color of state law, under 42 U.S.C. § 1983.
PRAYER FOR RELIEF WHEREFORE, in light of the foregoing facts and arguments, Plaintiffs request that the Court: a. Assume jurisdiction over this matter;
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b. Declare that SB 20 is unconstitutional in its entirety as a regulation of immigration and that Sections 1, 4, 5, 6, and 7 unconstitutionally conflict with federal law;
c. Declare that Sections 6 and 7 violate the Fourth Amendment; d. Declare that Section 5 violates the Equal Protection Clause; e. Declare that Sections 4, 6, and 7 violate the Due Process Clause; f. Enjoin Defendants from enforcing SB 20 and S.C. CODE § 16-9-460 (as currently
in effect); g. Grant Plaintiffs costs of suit and reasonable attorneys’ fees and other expenses
pursuant to 42 U.S.C. § 1988; and h. Grant such other relief as the Court may deem appropriate.

Dated: October 12, 2011 On behalf of Attorneys for Plaintiffs

Respectfully submitted,
_s/Susan K. Dunn________________ Susan K. Dunn (Federal Bar No. 647) American Civil Liberties Union of South Carolina P. O. Box 20998 Charleston, South Carolina 29413-0998 T: (843) 720-1425 sdunn@aclusouthcarolina.org

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Susan K. Dunn (Federal Bar No. 647) American Civil Liberties Union of South Carolina P. O. Box 20998 Charleston, South Carolina 29413-0998 T: (843) 720-1425 sdunn@aclusouthcarolina.org
Steven Suggs (Federal Bar No. 7525)+ SOUTH CAROLINA APPLESEED LEGAL JUSTICE CENTER P.O. Box 7187 Columbia, South Carolina 29202 T: (803) 779-1113 ssuggs@scjustice.org
Andre Segura* Omar Jadwat* Courtney Bowie* AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street, 18th Floor New York, New York 10004 T: (212) 549-2660 asegura@aclu.org ojadwat@aclu.org cbowie@aclu.org
Michelle R. Lapointe* Naomi Tsu* Daniel Werner* SOUTHERN POVERTY LAW CENTER 233 Peachtree St., NE, Suite 2150 Atlanta, Georgia 30303 T: (404) 521-6700 michelle.lapointe@splcenter.org naomi.tsu@splcenter.org daniel.werner@splcenter.org

Reginald Lloyd (Federal Bar No. 6052) LLOYD LAW FIRM One Law Place, 223 East Main Street Suite 500 Rock Hill, South Carolina 29730 T: (803) 909-8707 reggie@lloydlawfirm.net
Alice Paylor (Federal Bar No. 3017) ROSEN, ROSEN & HAGOOD 134 Meeting Street, Suite 200 Charleston, South Carolina 29401 T: (843) 628-7556 apaylor@rrhlawfirm.com
Linton Joaquin* Karen C. Tumlin* Nora Preciado* Melissa S. Keaney* NATIONAL IMMIGRATION LAW CENTER 3435 Wilshire Boulevard, Suite 2850 Los Angeles, California 90010 T: (213) 639-3900 joaquin@nilc.org tumlin@nilc.org preciado@nilc.org keaney@nilc.org
Victor Viramontes* Martha L. Gomez* MEXICAN AMERICAN LEGAL DEFENSE AND EDUCATIONAL FUND 634 S. Spring Street, 11th Floor Los Angeles, California 90014 T: (213) 629-2512 x 133 vviramontes@maldef.org mgomez@maldef.org

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Katherine Desormeau* Cecillia D. Wang* Kenneth J. Sugarman* AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS’ RIGHTS PROJECT 39 Drumm Street San Francisco, California 94111 T: (415) 343-0775 kdesormeau@aclu.org cwang@aclu.org irp_ks@aclu.org

Mary Bauer* Samuel Brooke* SOUTHERN POVERTY LAW CENTER 400 Washington Ave. Montgomery, Alabama 36104 T: (404) 956-8200 mary.bauer@splcenter.org samuel.brooke@splcenter.org

Amy Pedersen* MEXICAN AMERICAN LEGAL DEFENSE AND EDUCATIONAL FUND 1016 16th Street NW, Suite 100 Washington, DC 20036 T: (202) 293-2828 x 12 apedersen@maldef.org

Foster S. Maer* Ghita Schwarz* Diana S. Sen* LATINOJUSTICE PRLDEF 99 Hudson St., 14th Floor New York, New York 10013 T: (212) 219-3360 fmaer@latinojustice.org gschwarz@latinojustice.org dsen@latinojustice.org

* pro hac vice admission forthcoming + Attorney only for Plaintiffs Lowcountry Immigration Coalition, SCVAN, Mujeres de Triunfo, and Nuevos Caminos

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 2:11-cv-02779-RMG Date Filed 12/22/11 Entry Number 123 Page 1 of 42

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION

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United States of America,

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Plaintiff,

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State of South Carolina and Nikki R.

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Haley, in her official capacity as the

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Governor ofthe State of South Carolina, )

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Defendants,

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Lowcountry Immigration Coalition, et al., )

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Plaintiffs,

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V.

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Nikki R. Haley, in her official capacity as )

the Governor ofthe State of South Carolina,)

et al.,

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Defendants.

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Civil Action No. 2:11-cv-2958 Civil Action No. 2: 11-cv-2779

ORDER This matter comes before the Court on motions for preliminary injunction filed by plaintiffs in the two above-captioned matters. These actions arise out of legislation adopted by the South Carolina General Assembly on June 27, 2011 (hereafter referred to as "Act 69" or "the Act"). Act 69 attempts to address a broad range of immigration related issues through, inter alia, the adoption of various state criminal provisions, employer sanctions and mandates to local law
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enforcement regarding the identification and apprehension of persons unlawfully present in the United States. Plaintiffs in the two separate actions assert similar, but not identical, constitutional challenges to various sections of Act 69 and seek to preliminarily enjoin the implementation of portions of the challenged state statute, which will otherwise become effective on January 1, 2012. All parties to this action have submitted extensive briefs relating to the pending motions for preliminary injunction, and the Court heard several hours of oral argument on December 19, 2011. The Court addresses these motions below.
Factual Background The South Carolina General Assembly took up the matter of state immigration legislation in the 2011 legislative session because of a perceived failure of the United States to "secure our southern border," which "really jeopardize[s] our national security." (Dkt. No. 29-25 at 13). 1 The Act was designed to deal with "issues regarding folks being in South Carolina unlawfully [and] not having proper identification." (!d. at 2). The South Carolina Senate conducted four public hearings across the State in the fall of 2010 regarding local problems with unlawful immigration. (!d.) In the course oflegislative debate, legislators acknowledged that the proposed legislation might be subject to legal challenge. One of the Senate sponsors of the bill stated during floor debate that "we get real close to the line in some respects," and a supporter stated, "since there is a severability clause, I want to go ahead and be as muscular and push as hard as we can in terms of what our state rights are." (Dkt. No. 29-25 at 11; Dkt. No. 29-26 at 24). Another senator,
1 In this Order, all references to docket entries refer to entries in the case brought by the private plaintiffs, Civil Action No.2: 11-2779, except for the references to docket entry 16, which are references to the United States' motion for preliminary injunction and its attachments in the case brought by the United States, Civil Action No. 2:11-2958, and the reference to docket entry 43, which is a reference to the defendants' response to the United States' motion for preliminary injunction in Civil Action No. 2:11-2958.
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who opposed the legislation, stated during floor debate that the bill was "clearly unconstitutional" and would "subject[] this state government to attorneys' fees." (Dkt. No. 2926 at 37-38).
One of the bill's sponsors acknowledged during Senate floor debate that the State had the option of entering into a written agreement with the federal government regarding immigration enforcement (known as "287(g) agreements") and that "it would be much better" if an agreement "had been entered into between the ChiefofSLED2 and the federal government." (Dkt. No. 2925 at 14). Rather than attempting to enter into a 287(g) agreement with the federal government as expressly authorized by the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1357(g)(l), the State elected to go forward with its own immigration bill, which included state criminal sanctions, because it was "really important" to have State "control." (Dkt. No. 29-25 at 14). Supporters of the bill voiced the hope that the Act would encourage persons unlawfully present in South Carolina to find "a different state to go to." (Dkt. No. 16-1 at 4 & n.l; Dkt. No. 29-26 at 4). Supporters also stated their expectation that the Act would make the federal government's "phone ring[] off the hook." (Dkt. No. 29-25 at 24).
The final bill for Act 69 contained twenty separate sections. Several sections closely track existing federal statutes relating to the harboring and sheltering of unlawfully present persons, possessing alien registration materials and making counterfeit picture identification materials. See Act 69, §§ 4(B) and (D), 5 and 15. The Act allows state enforcement and prosecution of what previously were exclusively federal offenses. Other provisions of the Act, apparently unique in American law, make it a state crime for unlawfully present persons to shelter, harbor or transport themselves. Id. § 4(A) and (C). Another section of the Act directs all
2 "SLED" is the acronym for the South Carolina Law Enforcement Division. 3

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state and local law enforcement officers making a traffic stop or arrest and having a "reasonable suspicion" that the person may be unlawfully present in the United States to "make a reasonable effort, when practicable, to determine whether the person is lawfully present in the United States." !d. § 6(A). This section goes on to identify various "valid" forms of identification which create a presumption that the person is lawfully present in the United States. !d. § 6(B). If the person being arrested or stopped does not have one of these state-approved forms of identification in his or her possession, then the law enforcement officer "shall make a reasonable effort, when practicable, to verify the person's lawful presence in the United States." !d. § 6(C). If the person is determined to be unlawfully present, state or local law enforcement officers are authorized to "securely transport the person to a federal facility in this State." !d. § 6(C)(4).
The Act further addresses employer sanctions, establishing an elaborate scheme of employer licenses and making it unlawful for an employer to knowingly employ "an unauthorized alien." !d. §§ 8-14. Another provision mandates the determination of whether any person arrested and detained at a jail or prison facility in South Carolina is unlawfully present in the United States. !d. § 7. An additional provision authorizes private rights of action against any political subdivision enacting an ordinance interfering with enforcement of Act 69 or violating the law intentionally. !d. § 1. The Act also establishes an Illegal Immigration Enforcement Unit within SLED and provides that the "director shall negotiate the terms of a memorandum of agreement with the United States Immigration and Customs Enforcement [("ICE")] pursuant to Section 287(g) of the federal INA as soon as possible after the effective date of this act." !d. § 17(A) and (E). Finally, the Act contains a savings clause, severability clause and a section establishing the effective date of the Act. !d. §§ 18-20.
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Act 69 was considered and approved by the South Carolina General Assembly during a time period in which a number of states adopted similar immigration statutes and then faced legal challenges to the newly adopted legislation in federal court. The first state to adopt a comprehensive immigration statute was Arizona. Portions of its statute relating to the failure to carry registration materials and the verification of immigration status of persons questioned in the course of traffic stops were preliminarily enjoined by the district court, and that decision was subsequently affirmed 2-1 by a panel of the Ninth Circuit. United States v. Arizona, 703 F. Supp. 2d 980 (D. Ariz. 2010), aff'd, 641 F.3d 339 (9th Cir. 2011). The United States Supreme Court recently granted certiorari in that case. Arizona v. United States, No. 11-182,2011 WL 3556224 (U.S. Dec. 12, 2011).
On June 24, 2011, an Indiana federal district court temporarily enjoined portions of a new Indiana state law limiting the use by foreign nationals of consular I.D.s for identification and authorizing the making of warrantless arrests for non-criminal conduct. Buquer v. City of Indianapolis, No. 11-708,2011 WL 2532935 (S.D. Ind. June 24, 2011). Three days later, on June 27, 2011, a federal district court in the Northern District of Georgia temporarily enjoined portions of a newly adopted Georgia statute that created state criminal sanctions for harboring and transporting unlawful aliens and mandated verification of the immigration status of any person suspected of committing a crime. Ga. Latino Alliance for Human Rights v. Deal, 793 F. Supp. 2d 1317 (N.D. Ga. 2011). Subsequently, the Alabama district court and the Eleventh Circuit temporarily enjoined portions of an Alabama state immigration statute prohibiting the harboring or transporting of unlawfully present aliens and requiring the carrying of alien registration documents. United States v. Alabama, No. 11-2746, 2011 WL 4469941 (N.D. Ala. Sept. 28, 2011) and Hispanic Interest Coal. ofAla. v. Bentley, No. 11-2484,2011 WL 5516953
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(N.D. Ala. Sept. 28, 2011), injunction pending appeal granted in part and denied in part, Nos. 11-14532, 11-14535,2011 WL 4863957 (11th Cir. Oct. 14, 2011). The district court and the Eleventh Circuit, however, declined to grant a temporary injunction regarding a portion of the Alabama statute allowing for the verification of the immigration status of persons stopped by law enforcement officers. !d.
In the above-captioned action brought by the United States, only four of the twenty sections of Act 69 are challenged. The challenged sections include provisions in which the State of South Carolina essentially adopts federal statutes and creates new state criminal sanctions relating to the harboring and transporting of unlawfully present persons (Subsections 4(B) and (D)), the failure to carry alien registration materials (Section 5) and the creation of fraudulent identification documents (Section 15). The United States also challenges the provisions making it a state crime for an unlawfully present person to transport or shelter himself (Subsections 4(A) and (C)) and the directive to local and state law enforcement officials to determine the immigration status of certain persons encountered in routine traffic stops and other contacts in which there is a "reasonable suspicion" that the person may be in the United States unlawfully (Section 6). The private plaintiffs also challenge Sections 4, 5 and 6 of the Act (but not Section 15) and further assert that the provisions requiring the determination of the immigration status of persons detained in state and local jails (Section 7) and authorizing a private right of action to enforce the Act (Section 1) are unlawful. The private plaintiffs also make a preemption challenge to the Act in its entirety.
Below, the Court initially addresses various preliminary issues, including standing, existence of a federal cause of action and jurisdiction, the preemption doctrine and standards for preliminary injunction. The Court then addresses the plaintiffs' likelihood of success on the
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merits of their preemption challenges to the sections of Act 69 for which the plaintiffs have standing. Finally, the Court addresses the remaining elements of the preliminary injunction standard and the issue of remedy.
Preliminary Issues A. Standing Standing "is a threshold question in every federal case, determining the power of the court to entertain the suit." Warth v. Seldin, 422 U.S. 490, 498 (1975). The plaintiffbears the burden of demonstrating "a personal stake in the outcome of the controversy" that will be sufficient to warrant the party's "invocation of federal court jurisdiction." Summers v. Earth Island Inst., 555 U.S. 488,493 (2009). This requires the plaintiff to show: (1) "he is under threat of suffering 'injury in fact' that is concrete and particularized"; (2) "the threat [is] actual and imminent, not conjectural or hypothetical"; (3) the threatened injury is "fairly traceable to the challenged action of the defendant"; and (4) it is likely that "a favorable judicial decision will prevent or redress the injury." Id. An organization has standing to sue as a representative of its members if the individual members have standing to sue, the interests sought to be protected are germane to the organization's purpose and the suit does not require the participation of the individual members. Equity in Athletics, Inc. v. Dep 't ofEduc., 639 F.3d 91, 99 (4th Cir. 2011). A plaintiff who challenges a statute must face a realistic danger of sustaining a direct injury, but the plaintiff need not await actual suffering of that injury, such as an arrest, to obtain preventive relief. Babbitt v. United Farm Workers Nat'! Union, 442 U.S. 289,298 (1979). In these actions, defendants do not contest the standing of the United States to assert challenges to Sections 4, 5, 6 and 15 of the Act. Defendants also do not contest the standing of the private plaintiffs to assert challenges to Sections 4, 5 and 6 of the Act. Defendants do,
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however, contest the standing of the private plaintiffs to assert a challenge to the Act in its entirety on the basis of the alleged impermissible impact on the nation's foreign affairs and the Act's alleged impermissible burdening of federal financial resources. Defendants also contest the standing of the private plaintiffs to assert challenges to Sections I and 7 of the Act.
The Court recognizes its duty to make an independent determination of standing notwithstanding the defendants' decision not to contest the plaintiffs' standing to assert challenges to Sections 4, 5, 6 and 15 of the Act. The complaint of the United States clearly sets forth the basis of its standing to challenge Sections 4, 5, 6 and 15 of the Act. See Compl. ,-r,-r 2-6, 15-32. The private plaintiffs' complaint also sets forth sufficient allegations to establish standing to challenge Sections 4, 5 and 6 of the Act. See Compl. ,-r,-r 44, 45, 48, 49.
The Court has trouble identifying the type of concrete and particularized injury that is sufficiently actual and imminent to satisfy standing requirements with regard to the private plaintiffs' challenge to the Act in its entirety on the basis of the impact on foreign affairs and federal financial resources, or with regard to the private plaintiffs' challenges to Sections 1 and 7 of the Act. The alleged injuries the private plaintiffs face as a result of Act 69's impact on foreign affairs and federal financial resources are too remote and speculative to confer standing. Private plaintiffs also do not face any concrete and particularized injury that is actual and imminent as a result of Section 1, which simply authorizes private civil actions against local political subdivisions who do not enforce the Act.
Section 7 requires the verification of the immigration status of any person incarcerated or detained in a jail facility and provides for potential delivery of incarcerated persons to federal facilities if they are determined to be unlawfully present in the United States. Initially, Section 7 appears to expose several of the private plaintiffs to a potential injury that is concrete and
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particularized since the operation of Sections 4, 5 and 6 of the Act may result in one or more private plaintiffs being arrested and detained at a local or state prison facility. See Hispanic Interest Coal. ofAla., 2011 WL 5516953, at *44 (finding that private plaintiffs had standing to challenge a provision which only applied to detained persons where private plaintiffs showed likelihood that they may be subject to detention pursuant to specific laws). In other words, the injury which private plaintiffs could potentially suffer as the result of Section 7 is primarily dependent upon the implementation of Sections 4, 5 and 6 of the Act. (See Dkt. No. 93 at 26 (private plaintiffs arguing that they have standing to challenge Section 7 on the basis that they may be arrested pursuant to Sections 4, 5 or 6 of the Act)). However, as discussed later in this Order, the Court finds that the United States and the private plaintiffs are likely to succeed on the merits oftheir challenges to Sections 4, 5 and 6 of the Act and will temporarily enjoin the enforcement of those challenged sections. As a consequence of the Court's action regarding those sections, the potential injury to the named private plaintiffs appears to the Court too remote and speculative to satisfy the requirements for standing to challenge Section 7. The Court notes that none of the named private plaintiffs are alleged to be incarcerated or otherwise likely affected by the operation of Section 7.3
To summarize the Court's rulings on standing, the United States has standing to challenge Sections 4, 5, 6 and 15 of the Act, and the private plaintiffs have standing to challenge Sections 4, 5 and 6 of the Act. The private plaintiffs do not have standing to make a preemption challenge to Act 69 in its entirety or to challenge Sections 1 and 7 of the Act.
3 The United States has not challenged Section 7.
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B. Federal Cause of Action and Jurisdiction Defendants assert that neither the United States nor the private plaintiffs have a federal cause of action which allows them to challenge Act 69 on the basis that it is preempted by federal law. (Dkt. No. 43 at 14-25). Specifically, defendants argue that plaintiffs have no right of action under the Supremacy Clause and may not assert a Supremacy Clause claim as a matter of right under 42 U.S.C. § 1983. Defendants then reach the conclusion that, since plaintiffs assert what defendants characterize as simply Supremacy Clause claims, both the United States government and the private plaintiffs, potentially facing significant legal injury arising out of Act 69, are powerless to challenge the deprivation of their rights in federal court. This cannot be and is not the law. Defendants are correct that the Supremacy Clause itself"is not a source of any federal rights"; instead, it "secure[s] federal rights by according them priority whenever they come in conflict with state law." Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 613 (1979). As the Supreme Court explained in Chapman, "all federal rights, whether created by treaty, by statute, or by regulation, are 'secured' by the Supremacy Clause." !d. Section 1983 provides a federal remedy for the "deprivation of any rights, privileges or immunities secured by the Constitution and laws" ofthe United States. 42 U.S.C. § 1983. In this case, both the United States and the private plaintiffs assert rights which are secured by the Constitution and the laws. First, the United States asserts that the federal government's constitutionally guaranteed control of naturalization, foreign affairs and foreign commerce is impaired and undermined by Act 69. See U.S. Const. art. I,§ 8, cl. 3, 4; id. art. II,§ 2, cl. 2. Second, the private plaintiffs assert that in the event that a private plaintiff is arrested, detained and/or incarcerated on the basis of a state statute rendered unlawful because it is
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preempted by federal statutory or constitutional law, such seizure or deprivation of the person's freedom of movement would constitute a violation of the Fourth and Fourteenth Amendments of the United States Constitution. Third, the private plaintiffs assert that the unlawful implementation of a state criminal statute regulating immigration, when such a matter is exclusively within the control ofthe federal government pursuant to the INA, 8 U.S.C. § 1101 et seq., would violate an adversely affected person's legal rights under the INA.
With regard to the defendants' challenge to the private plaintiffs' right to bring this action, the determination of whether a federal constitutional or statutory provision creates a remedy under § 1983 involves a two step inquiry. First, "the plaintiff must assert the violation of a federal right." Golden State Transit Corp. v. City ofLos Angeles, 493 U.S. 103, 106 (1989). The Court is to look to the constitutional or statutory provision in question and determine whether it creates rights intended to benefit the plaintiff. !d. Second, if the Court determines that the statutory or constitutional provision does create a federal right, the defendant may then show that Congress intended to foreclose a remedy under § 1983. !d.
Here, it is clear from the plain language of the constitutional and statutory provisions at issue that the private plaintiffs have asserted federal rights in which § 1983 provides a remedy. The private plaintiffs, potentially subject to arrest and incarceration from arguably invalid state immigration statutes, have clearly identified rights under the Fourth and Fourteenth Amendments which can be asserted in such circumstances as presented here under § 1983. Furthermore, the INA presents a comprehensive enforcement scheme exclusively under federal control, and this scheme creates the right by persons subject to the INA to be free from state statutory provisions conflicting with or preempted by the federal Act. In a recent decision by the district court in the Northern District of Georgia addressing a challenge to the Georgia immigration statute by
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private plaintiffs, the court stated without equivocation that "the Immigration and Naturalization Act ... creates a right enforceable under § 1983." Ga. Latino Alliance for Human Rights, 793 F. Supp. 2d at 1327.
The Court finds instructive the long line of cases involving federal court decisions addressing the state regulation of immigration, all of which involved alleged violations of federal rights and all of which were brought by private plaintiffs. In a case this past term, the United States Supreme Court addressed the right of the state of Arizona to adopt various employer sanctions relating to the employment of unlawfully present aliens. See Chamber ofCommerce of the U.S. v. Whiting, 131 S. Ct. 1968 (2011). The challenge to the Arizona statute was brought by the United States Chamber of Commerce on behalf of its members and addressed the scope of federal preemption ofthe state immigration-related legislation. Surely if the United States Chamber of Commerce, on behalf of its members, has a federal cause of action to challenge a state statute affecting immigration on the basis of alleged federal preemption, then it stands to reason that the individuals adversely affected by an allegedly unlawful state immigration law would also have a federal cause of action to challenge such a state law that would allegedly deprive them of rights secured by the Constitution and laws of the United States.
In Toll v. Moreno, 458 U.S. 1 (1982), the Supreme Court dealt with the rights of students whose parents had non-immigrant alien visas to qualify for in-state tuition at Maryland state universities. The Court addressed the plaintiffs' rights under the Fourteenth Amendment and the INA and determined that the state policy was preempted by federal law. !d. at 13-17. Further, the Supreme Court in Hines v. Davidowitz, 312 U.S. 52 (1941), voided a Pennsylvania alien registration law, in an action brought by a private individual, on the basis that the state statute was preempted by broad federal control over immigration policy. Additionally, in what was
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among the first and historically one of the most significant challenges to a state immigration statute in American history, the United States Supreme Court in Chy Lung v. Freeman, 92 US 275 (1875), struck, on preemption grounds, a California statute which permitted a state official to exact a bounty from recently arriving immigrants as the price of admission into the United States. The lawsuit was brought by a private plaintiff, described by the Court as "a subject of the Emperor of China." !d. at 276.
To accept defendants' argument that private plaintiffs have no cause of action to challenge unlawful state immigration statutes would require this Court to rewrite American legal history and strike from the legal precedents some of the most foundational and majestic decisions in the Supreme Court's history. The Court finds no basis in law to support such an argument. The Court finds that the private plaintiffs have asserted sufficient allegations to state a claim under § 1983.
Similarly, the Court rejects the defendants' argument that the United States, through the office of the Attorney General of the United States, does not have a right to challenge Act 69 on the basis that it is preempted by the INA and provisions of the United States Constitution vesting in the national government the authority to conduct foreign policy, regulate foreign commerce and administer a uniform system of naturalization. In United States v. San Jacinto, 125 U.S. 273, 279-80 (1888), the United States Supreme Court rejected the argument that the Attorney General lacked the inherent power to bring an action to void a fraudulently obtained land patent issued by the United States government. Although recognizing that the Attorney General had no "express authority" to bring such a suit, the Court indicated that the national government was not so "helpless" and had the "apparent authority" to institute an action where its rights were involved. !d.
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The authority of the Attorney General to institute a suit was again challenged in Sanitary District ofChicago v. United States, 266 U.S. 405 (1925), which involved a plan of a local governmental agency to withdraw large volumes of water from the Great Lakes and potentially adversely affect the navigable waters under the control of the national government. The Supreme Court made short work of this contention, noting that "[t]his is not a controversy between equals." Id. at 425. Observing that the suit involved the "United States ... asserting its sovereign power to regulate commerce and to control the navigable waters within its jurisdiction," the Court concluded that the "Attorney General by virtue of his office may bring this proceeding and no statute is necessary to authorize it." Id. at 425-26; see also United States v. California, 332 U.S. 19,26-29 (1947) (holding that the Attorney General has "statutorily granted power to invoke [the federal court's] jurisdiction" as a result of"very broad authority ... to institute and conduct litigation in order to establish and safeguard government rights and properties"); Kern River Co. v. United States, 257 U.S. 147, 154-55 (1921) (holding that "the general authority of the Attorney General in respect to pleas of the United States and the litigation which is necessary to establish and safeguard its rights affords ample warrant for the institution and prosecution by him" of forfeiture suits on behalf of the government); Abraham v. Hodges, 255 F. Supp. 2d 539, 549 (D.S.C. 2002) (upholding the authority of the national government under the Commerce Clause to challenge the actions of the governor of South Carolina seeking to prevent the importation of nuclear waste to federal facilities within the state); 28 U.S. C. §§ 515, 516, 517, 518 and 519. It is an interesting historical fact that when Chy Lung, the 1875 case that established the first legal precedent for federal control over immigration matters, was argued before the United States Supreme Court, Attorney General Edwards Pierrepont personally appeared to argue on behalf of the plaintiff and in support of the federal
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government's authority over foreign affairs and immigration matters. 92 U.S. at 276-77. No legal developments since Chy Lung have diminished the Attorney General's authority to assert and defend the powers of the national government granted by the Constitution.
In sum, the Court finds that the Attorney General has broad and sufficient authority to assert claims, such as those before the Court, which defend and affirm the national government's powers and prerogatives regarding the conduct of foreign relations, foreign commerce and a uniform system of naturalization. Defendants' argument that the Attorney General requires express Congressional authority is contrary to the Supreme Court's long and distinguished history in upholding the United States' authority to assert its rights and claims in the United States district courts. To rule otherwise would render the powers of the federal government a nullity.
Further, the Eleventh Amendment does not bar the private plaintiffs' suit. The "Eleventh Amendment confirms that the fundamental principle of sovereign immunity limits the grant of judicial authority in [Article] III." Green v. Mansour, 474 U.S. 64, 68 (1985). Generally speaking, because of the Eleventh Amendment, states may not be sued in federal court without consent or an intent by Congress to abrogate the state's sovereign immunity. However, under Ex parte Young, 209 U.S. 123, 155-56, 159 (1908), suit maybe brought in federal court to "grant[] prospective injunctive relief to prevent a continuing violation of federal law." Green, 474 U.S. at 68. Such is the case here, in that the private plaintiffs seek relief on the ground that Act 69 conflicts with Congress' power to regulate immigration and is preempted by a federal statutory scheme.
Finally, this Court has federal question jurisdiction under 28 U.S.C. § 1331. "It is beyond dispute that federal courts have jurisdiction over suits to enjoin state officials from interfering
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with federal rights." Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 96 n.l4 (1983) (citing Ex parte Young, 209 U.S. at 160-62). "A plaintiff who seeks injunctive relief from state regulation, on the ground that such regulation is pre-empted by a federal statute which, by virtue of the Supremacy Clause of the Constitution, must prevail, thus presents a federal question which the federal courts have jurisdiction under 28 U.S.C. § 1331 to resolve." ld.
C. Preemption The Supremacy Clause of the United States Constitution provides that the Constitution and laws of the United States "shall be the supreme Law of the Land; ... any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." U.S. Const. art. IV, cl. 2. The laws of the United States are "supreme," and the "law ofthe State ... must yield to it." Gibbons v. Ogden, 22 U.S. 1, 82 (1824). "[T]he purpose of Congress is the ultimate touchstone in every preemption case." Wyeth v. Levine, 555 U.S. 555, 565 (2009). Federal preemption of a state law may be express or implied and "is compelled whether Congress' command is explicitly stated in the statute's language or implicitly contained in its structure and purposes." Gade v. Nat'! Solid Wastes Mgmt. Ass 'n, 505 U.S. 88, 98 (1992). Express preemption occurs when Congress "expressly declares its intent to preempt state law." Pinney v. Nokia, 402 F.3d 430, 453 (4th Cir. 2005). There are at least two types of implied preemption: field preemption and conflict preemption. Gade, 505 U.S. at 98; Hines, 312 U.S. at 67. Field preemption occurs "where the scheme of federal regulation is so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it." Gade, 505 U.S. at 98. The regulation of immigration is the quintessential example of field preemption. The Supreme Court succinctly stated inDeCanas v. Bica, 424 U.S. 351,354 (1976), that the
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"[p]ower to regulate immigration is unquestionably exclusively a federal power." As Justice Black explained in Hines, a case involving an attempt by the state of Pennsylvania to adopt an identical state version of the federal alien registration law, "where the federal government, in the exercise of it superior authority in this field, has enacted a complete scheme of regulation and has therein provided a standard for registration of aliens, states cannot, inconsistently with the purpose of Congress, conflict or interfere with, curtail or complement, the federal law, or enforce additional or auxiliary regulations." 312 U.S. at 66. An exception to field preemption exists only where states have traditionally regulated in that area or where Congress has expressly reserved that power to the states. Whiting, 131 S. Ct. at 1974, 1977 (recognizing an exception to field preemption for state-adopted employer sanctions because states have traditionally regulated employment and Congress explicitly excepted state licensing laws from preemption in the INA).
Conflict preemption occurs "where compliance with both federal and state regulations is a physical impossibility" or where state law "stands as an obstacle to the accomplishment and execution ofthe full purposes and objectives of Congress." Gade, 505 U.S. at 98. One ofthe ways in which a state law may stand as an obstacle to full implementation of federal law is where the state law "interferes with the methods by which the federal statute was designed to reach [its] goal." !d. at 103. States cannot avoid preemption of challenged state laws simply on the argument that the state and the federal government have the same "ultimate goal." !d. In evaluating a potential conflict preemption issue, the Court is to undertake a two step process. First, the Court must analyze the applicable state and federal statutes. Second, the Court must determine if they are in fact in conflict. Chi. & N W. Transp. Co. v. Kalo Brick & Tile Co., 450
u.s. 311,317 (1981).
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The Court should start any preemption analysis with a presumption against preemption. Wyeth, 555 U.S. at 565. This presumption is particularly strong where Congress has legislated in an area the states have traditionally occupied. !d. Conversely, the presumption against preemption is not strong in areas where the states have not traditionally legislated, most particularly in areas which are "inherently federal in character." Buckman Co. v. PlaintiffS' Legal Comm., 531 U.S. 341,347 (2001). It is notable that in a number of recent decisions involving the adoption of state immigration statutes, courts have generally declined to apply a presumption against preemption because the field of immigration has traditionally been a responsibility of the federal government and not the states. See United States v. Arizona, 641 F.3d at 348; Ga. Latino Alliance for Human Rights, 793 F. Supp. 2d at 1330; United States v. Alabama, 2011 WL 4863957, at *12, 30, 39. Whatever presumption against preemption exists generally has been demonstrably overcome here by the facts before the Court, including the traditionally predominant role of the federal government in the field of immigration, and in the related fields of foreign affairs and foreign commerce, and the limited role in the past of the states, including South Carolina, in the area of immigration regulation.4
4 Plaintiffs' preemption challenges to various sections of Act 69 pursuant to the Supremacy Clause are necessarily "facial" challenges, as Act 69 is not yet in effect. To the extent the plaintiffs are able to establish that portions of Act 69 are preempted by federal law pursuant to the rules of preemption discussed above, the "facial" nature ofplaintiffs' challenge is not important. See United States v. Arizona, 641 F.3d at 345-46 (holding that, for purposes of defendants' argument that the plaintiffs' challenge to the law was "facial" and not "as applied," "there can be no constitutional application of a statute that, on its face, conflicts with Congressional intent and is therefore preempted by the Supremacy Clause"). As noted by the Ninth Circuit, recent Supreme Court cases analyze "facial" preemption challenges without mentioning the standard for facial challenges. !d. (citing Crosby v. Nat 'I Foreign Trade Council, 530 U.S. 363 (2000) and Am. Ins. Ass 'n v. Garamendi, 539 U.S. 396 (2003)).
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D. Standards for Preliminary Injunction A preliminary injunction is an "extraordinary and drastic remedy" and "is never awarded as of right." Munafv. Geren, 553 U.S. 674, 690 (2008). "The purpose of a preliminary injunction is merely to preserve the relative positions of the parties until a trial on the merits can be held." Univ. ofTex. v. Camenisch, 451 U.S. 390, 395 (1981). As the Fourth Circuit explained in In re Microsoft Corp. Antitrust Litigation, 333 F.3d 517, 525 (4th Cir. 2003), "[t]he traditional office of a preliminary injunction is to protect the status quo and to prevent irreparable harm during the pendency of a lawsuit ultimately to preserve the court's ability to render a meaningful judgment on the merits."
A moving party must establish the presence of the following: (1) "a clear showing that it will likely succeed on the merits"; (2) "a clear showing that it is likely to be irreparably harmed absent preliminary relief'; (3) the balance of equities tips in favor of the moving party; and (4) a preliminary injunction is in the public interest. Real Truth About Obama, Inc. v. Fed. Election Comm., 575 F.3d 342, 346-47 (4th Cir. 2009); W. Va. Assoc. ofClub Owners & Fraternal Servs., Inc. v. Musgrave, 553 F.3d 292, 298 (4th Cir. 2009). These standards follow the newly articulated requirements for preliminary injunction set forth by the Supreme Court in Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 22-23 (2008). Unlike the Fourth Circuit's previous "balance of hardship" test set forth in Blackwelder Furniture Co. v. Seilig Manufacturing Co., 550 F.2d 189, 196 (4th Cir. 1977), the moving party seeking a preliminary injunction must establish the presence of each of the four requirements, satisfying the standards of each as articulated. Real Truth About Obama, Inc., 575 F.3d at 347.
Challenges to Specific Sections of Act 69 The United States has challenged Sections 4, 5, 6 and 15 of Act 69, all which the Court
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has determined it has standing to challenge. The private plaintiffs, like the United States, have challenged Sections 4, 5 and 6, and the private plaintiffs have additionally challenged the Act in its entirety, as well as Sections 1 and 7. The Court has determined, however, that the private plaintiffs do not have standing to challenge the Act in its entirety or Sections 1 and 7. Thus, the Court will address below the motions for preliminary injunction only as to Sections 4, 5, 6 and 15. The Court will not address the provisions of any other section of Act 69.
The Court will initially address those provisions of Act 69 which adopt or closely track the provisions of existing federal immigration statutes. These provisions-found at Subsections 4(B) and (D), Section 5, Subsection 6(B)(2) and Section 15-seek to take what were previously only federal crimes subject to federal prosecution and federal enforcement procedures, and make them also state crimes subject to state prosecution and state enforcement procedures. Plaintiffs assert that the enforcement of federal immigration law involves the exercise oflaw enforcement and prosecutorial discretion based upon well-developed federal priorities and the balancing of sometimes conflicting and competing national interests. The United States asserts that the establishment of separate and independent state enforcement procedures would likely conflict with and disrupt federal interests and priorities, both in the area oflaw enforcement and in the areas of foreign relations and foreign commerce.
The Court will then address Subsections 4(A) and (C), which make it a state crime for an unlawfully present person to transport, shelter or harbor himself or herself. The plaintiffs assert that these provisions essentially make it a crime to be unlawfully present, which they assert is contrary to and in conflict with federal immigration law. Finally, the Court will address the provisions of Section 6 which direct state and local law enforcement officers, when encountering persons whom they have a "reasonable suspicion" are unlawfully present in the United States, to
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conduct an inquiry into their status and take action should they determine that such persons are in fact unlawfully present. The United States asserts that such a state-mandated law enforcement scheme is contrary to federal immigration priorities, which focus upon unlawfully present persons who are national security and public safety risks, and would burden and disrupt federal immigration enforcement efforts and the national government's administration of foreign policy.
A. Challenges to State Criminalization of Federal Immigration Laws 1. Subsections 4(B) and (D)
Subsections 4(B) and (D) of Act 69 make it a state felony punishable by up to five years in prison to "transport, move or attempt to transport" or "conceal, harbor or shelter" a person "with intent to further that person's unlawful entry into the United States" or to help that person avoid "apprehension or detection ... by state or federal authorities."5 Federal law has long made it unlawful to "transport or move" or "conceal[], harbor[] or shield[]" an unlawful alien. 8 U.S.C. § 1324(a)(l)(A)(ii) and (iii). The federal law authorizes state and local law enforcement officers to make arrests for § 1324 violations, but prosecution is exclusively a federal prerogative with prosecution and interpretation of the federal law handled by the federal courts. !d. § 1324(c).
The federal harboring and transporting statute,§ 1324(a)(l)(A)(ii) and (iii), is part of a larger statutory scheme which addresses comprehensively the actions of third parties aiding and assisting unlawful aliens. Other provisions in this statutory scheme penalize persons unlawfully bringing aliens into the United States, 8 U.S.C. § 1323(a), and persons who import aliens for immoral purposes, 8 U.S.C. § 1328. Congress has expressly carved out a role for state and local law enforcement officers in this comprehensive statutory scheme, allowing them to make arrests
5 These provisions were adopted by the South Carolina General Assembly initially in 2008 and can be found at S.C. Code§ 16-9-460.
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for§ 1324 violations, while preserving control of prosecutions and judicial interpretation to federal officials. Subsections 4(B) and (D) disrupt this comprehensive federally controlled immigration enforcement scheme by placing state prosecutors in control of enforcement efforts under Subsections 4(B) and (D) and permitting state judges to interpret the harboring and transporting statutes.
The United States asserts that Subsections 4(B) and (D) are preempted because "South Carolina is improperly imposing its own substantive regulation over the movement of aliens in the United States," something it asserts is the exclusive province of the federal government. (Dkt. No. 16-1 at 21). The United States further asserts that the independent state penalties and prosecution "operate wholly beyond federal control." (!d.) Such an approach by the State, argues the United States, "removes any federal discretion and impermissibly places the entire operation-including arrest, incarceration and statutory interpretation-squarely within the State's control." (!d. at 22). Further, the federal statute creates a safe harbor from prosecution for persons and bona fide religious organizations who bring an alien to the United States to "perform the vocation of minister or missionary." 8 U.S.C. § 1324(a)(1)(C). Subsections 4(B) and (D) do not contain such a safe harbor provision, creating the potential scenario where a person acting lawfully under the federal harboring statute could be prosecuted by state officials for conduct expressly excepted from federal criminal law.
Recent court decisions have addressed similar state harboring and transporting statutes. In United States v. Alabama, the district court preliminarily enjoined a state harboring and transporting statute, noting both the loss of federal control over prosecution and judicial interpretation and conflicts between the state and federal statutes. The Alabama district court also noted that this was not an area traditionally regulated by the state of Alabama. 2011 WL
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4469941, at *41-43. The district court reviewing the Georgia immigration statute, Georgia Latino Alliance for Human Rights v. Deal, reached a similar conclusion regarding Georgia's version of the harboring and transporting statute. The court, in granting a preliminary injunction, concluded that the Georgia statute was an attempt to "replace the discretionary and interpretative mechanism of the federal government" with control by the state government. 793 F. Supp. 2d at 1336. The district court concluded that this was not acceptable because state and federal officials may have different priorities, and the federal government must balance "difficult (and often competing) objectives, of 'protecting national security, protecting public safety and securing the border."' !d. at 1335 (quoting United States v. Arizona, 641 F.3d at 352).
It is clear to the Court, after carefully comparing the relevant provisions of the INA, particularly§§ 1323, 1324 and 1328, and Subsections 4(B) and (D) of Act 69, that Congress adopted a scheme of federal regulation regarding the harboring and transporting of unlawfully present persons so pervasive that it left no room in this area for the state to supplement it. Gade, 505 U.S. at 98. Thus, this is a classic case offield preemption. The adoption of Subsections 4(B) and (D) was part of a larger state effort to alter federal immigration enforcement priorities and to assert state control over such policy decisions. (Dkt. No. 29-25 at 14). While the Court does not doubt the good faith of the South Carolina General Assembly in attempting to address the immigration issue, the Constitution of the United States and the INA have placed the policymaking role regarding immigration in the hands of the national government. Hines, 312 U.S. at 401-04. Further, in light of the express exception within§ 1324 authorizing state and local law enforcement officers to make arrests under that section, it is clear to the Court that Congress did not intend to allow the states any further role beyond arresting persons allegedly harboring or transporting unlawfully present persons. Moreover, this is not an area traditionally regulated by
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the state. Additionally, the inconsistent safe harbor provisions of state and federal law result in conflict preemption.
Therefore, the Court concludes that plaintiffs have made a clear showing that they will likely succeed on the merits of their challenge to Subsections 4(B) and (D), satisfying the first of four prongs for the grant of preliminary injunctive relief. The Court will address the balance of the preliminary injunction standards regarding Subsections 4(B) and (D) in the remedy section of this Order.
2. Section 5, Subsection 6(B)(2) and Section 15 Section 5 of Act 69 makes it unlawful for any person 18 years or older "to fail to carry" in his or her possession "a certificate of alien registration or alien registration receipt card issued to the person pursuant to 8 U.S.C. § 1304." The language of this Section closely tracks the federal registration statute, 8 U.S.C. § 1304(e). The adoption of the state provision would permit state control of prosecutions for failure to carry federally issued registration materials, something that is, now and historically, exclusively under the control of the national government. Under the federal enforcement scheme, there are few prosecutions for failure to possess alien registration materials. Indeed, it appears that from 1994-2009, there have been only 14 federal prosecutions for violating § 1304 in South Carolina. (Dkt. No. 29-29 at 2). According to an affidavit filed by the former general counsel of the Immigration and Naturalization Service, prosecutions are rarely undertaken under§ 1304 because the system is outdated and the registration materials exclude numerous persons who are present lawfully. (Dkt. No. 29-30 at 14-15). Among the persons who may not be in possession of registration documents pursuant to § 1304 but who are lawfully present in the United States are petitioners under the Violence Against Women Act, persons granted humanitarian status based upon asylum
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or protections of the Convention Against Torture, victims of trafficking who may have obtained authorization from the Attorney General granting "continued presence" in the United States, and I-918 petitioners for U-Visa status filed by survivors of serious crimes who are cooperating with law enforcement authorities. (!d. at 16; Dkt. No. 16-3 at 7-18). These classes of persons would not likely be prosecuted by the federal government but would nevertheless be subject to state prosecution for failure to be in possession of registration materials issued pursuant to § 1304.
There is little doubt that alien registration is a field under the exclusive control of the federal government. In fact, one of the seminal cases of federal law preemption of state immigration laws is Hines v. Davidowitz, which involved the adoption by the state of Pennsylvania of an alien registration law identical to the federal statute. 312 U.S. at 61. The Supreme Court noted the foreign policy implications of competing state and federal registration laws and the potential for such laws to create international tensions and reciprocal problems for American nationals abroad. !d. at 63-65. The Supreme Court stated: "It cannot be doubted that both the state and federal registration laws belong to that class of laws which concern the exterior relation of this whole nation with other nations and governments." !d. at 66. In such a situation, the state law on registration must "yield" to the federal law because the federal registration law is the supreme law of the land. !d. Recent court decisions in Alabama and Arizona enjoined provisions similar to Section 5. See United States v. Alabama, 2011 WL 4863957, at *6; United States v. Arizona, 703 F. Supp. 2d at 999.
An examination and comparison of Section 5 and the federal statutes relating to alien registration documents demonstrate that the national government has adopted a pervasive and comprehensive scheme that leaves no place for state regulation in this area. The State of South Carolina has not traditionally regulated the area of alien registration materials. This is, again, a
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classic case of field preemption. Further, state enforcement of Section 5 creates the real risk that persons lawfully present in the United States but not in possession of federal alien registration materials would be subject to arrest, prosecution and incarceration, creating a conflict with federal law and an obstacle to the full implementation of the objectives of Congress. Thus, this law is also preempted pursuant to conflict and obstacle preemption.
Subsection 6(B)(2) and Section 15 address the making, selling and possession of counterfeit identification materials by persons unlawfully present in the United States. Subsection 6(B)(2) makes it unlawful for any person to possess or use a counterfeit ID as proof of lawful presence. Section 15 makes it unlawful to make or sell counterfeit identification to a person unlawfully present in the United States. Federal law makes it a crime to counterfeit federal immigration documents or to use such documents in an effort to satisfy immigration requirements. 8 U.S.C. § 1324c(a)(l) and (2).
As mentioned above regarding Section 5, the federal government has adopted a pervasive and comprehensive regulatory scheme regarding alien registration that includes the regulation of registration materials. The State of South Carolina has not previously regulated in this area. Under Subsection 6(B)(2) and Section 15, the State would have the ability to initiate arrests and prosecutions and judicially interpret state law regarding alien registration, all areas previously under the exclusive control of the United States government. Moreover, the state arrest and prosecution of persons with false identifications could generate tensions with foreign nations and retaliation against American nationals abroad, which support the argument of the United States that such matters need to be under its exclusive discretion and control and are field preempted.
Therefore, the Court finds that plaintiffs have made a clear showing that they will likely succeed on the merits of their challenge to Section 5 and Subsection 6(B)(2), and the United
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States has made a clear showing that it will likely succeed on the merits of its challenge to Section 15, thereby satisfying the first of four prongs for the grant of a preliminary injunction regarding these sections of the Act. The Court will address the balance of the preliminary injunction standards regarding these sections in the remedy portion of this Order.
B. Challenge to State Criminalization of Unlawful Presence Subsections 4(A) and (C) of Act 69 make it a criminal offense for an unlawfully present person to allow himself or herself to be "transported or moved" within the state or to be harbored or sheltered to avoid apprehension or detection. There is no comparable federal statute, and it appears that this provision is unique in American law. Plaintiffs argue convincingly that this provision is the equivalent of unlawful presence, which is notable because the federal government has studiously avoided making unlawful presence a federal crime.6 Instead, the federal government has made unlawful presence grounds for a civil removal proceeding, 8 U.S.C. §§ 1182(a)(6)(A)(i) and 1227(a)(l)(B) and (C), and has made unlawful presence an element of a criminal act only if the person has previously committed a felony and has been deported from, or voluntarily left, the United States after his or her conviction. !d. § 1252c(a). It is well-settled that "[w]here a comprehensive federal scheme intentionally leaves a portion of the regulated field without controls, then the pre-emptive inference can be drawn-not from federal inaction alone, but from inaction joined by action." P.R. Dep 't ofConsumer Affairs v. Isla Petroleum Corp., 485 U.S. 495, 503 (1988). Congressional intent can further be found in § 1252c, which expressly authorizes state and local law enforcement officers to make arrests pursuant to that section under the following specific circumstances: (1) the alien is illegally
6 It is hard to imagine that an unlawfully present person would not necessarily be required to move or shelter himself as incident to living in a particular location or community. Thus, the provisions of Subsections 4(A) and (C) are found by the Court to be the legal and practical equivalent to criminalizing unlawful presence.
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present in the United States; (2) the alien has previously been convicted of a felony and was thereafter deported or left the country; (3) the alien has reentered the United States; and (4) the state or local law enforcement officer has confirmed the suspect's status with the Immigration and Naturalization Service. See 8 U.S.C. § 1252c. The striking limitations on the arrest powers of state and local officials regarding unlawfully present aliens in § 1252c reflect that state intrusion beyond that provided by statute is neither authorized nor welcome. Subsections 4(A) and (C) go well beyond the strictures of§ 1252c.
A review of Subsections 4(A) and (C) and the applicable provisions of federal immigration law clearly demonstrates that Subsections 4(A) and (C) are field and conflict preempted. These subsections seek to criminalize what Congress has chosen to treat only as a civil offense. Congressional intent to adopt a pervasive and comprehensive scheme in this area is clear, and further evidence of Congressional intent to limit the powers of the states to regulate in this area is demonstrated by the restrictions on state and local law enforcement arrest powers set forth in§ 1252c. Therefore, the Court finds that plaintiffs have made a clear showing that they will likely succeed on the merits of their challenge to Subsections 4(A) and (C) of the Act. This satisfies the first prong for the grant of a preliminary injunction, and the Court will address the balance of those prongs regarding these subsections in the remedy section of this Order.
C. Challenge to Systematic State Plan Mandating Under Certain Circumstances Verification of Immigration Status of Persons Subject to Law Enforcement Encounters Section 6 of Act 69 directs state and local government law enforcement officers who have stopped, detained, investigated or arrested any person for whom they have a "reasonable suspicion" may be unlawfully present in the United States to "when practicable ... determine whether the person is lawfully present in the United States." Act 69, § 6(A). A presumption of
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lawful presence is established under the Act if the person has certain designated forms of picture identification, such as a state issued driver's license, military identification or a United States passport. !d. § 6(B)(1). If the person subject to the law enforcement encounter does not possess one of the acceptable forms of identification, the "officer shall make a reasonable effort, when practicable, to verify the person's lawful presence in the United States." !d. § 6(C)(1). The statute identifies acceptable methods of inquiry, including contact with the United States ICE Law Enforcement Support Center and the newly created Illegal Immigration Enforcement Unit of SLED. !d. § 6(C)(1 )(a)-(d).
Section 6 goes on to provide that, should the person be determined to be unlawfully present in the United States, the officer, after consulting with appropriate state or federal officials, will decide whether to retain custody or deliver the unlawfully present person to State or federal officials. The statute authorizes the officer to "securely transport the person to a federal facility" without any requirement that the federal government assent to the delivery of the person. !d. § 6(C)(4).
The United States asserts that its immigration enforcement policy focuses on the identification, apprehension and deportation of certain classes of unlawfully present persons, including those who "pose a clear risk to national security," "serious felons, repeat offenders or individuals with a lengthy criminal record," "known gang members" or others "who pose a danger to public safety," and individuals with "an egregious record of immigration violations." (Memorandum from John Morton, Director, U.S. ICE, Exercising Prosecutorial Discretion Consistent with the Civil Immigration and Enforcement Priorities ofthe Agency for the Apprehension, Detention, and Removal ofAliens (June 17, 2011), http://www.ice.gov/doclib/secure-communities/pdf/prosecutorial-discretion-memo.pdf; Dkt. No.
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16-5 at 4 n.4). The United States asserts that its enforcement efforts and immigration resources are directed toward those priority classes of unlawfully present persons and are fully absorbed in the pursuit of those priority targets. (See Declaration of Daniel H. Ragsdale, Executive Associate Director of United States ICE, Dkt. 16-4). The pursuit by state and local law enforcement officers of low priority targets through widespread traffic and street level dragnets mandated by Section 6 would, according to the United States, overburden federal immigration enforcement resources and disrupt the federal government's enforcement scheme. (!d. at 17-26).
In the declaration submitted by Mr. Ragsdale of ICE referenced above, and not contested by any factual submissions of defendants, the United States has sufficient staff resources in immigration to apprehend, process and deport 400,000 unlawfully present persons a year. Through the 287(g) program and other initiatives, the United States has targeted unlawfully present persons in local and state detention facilities and has absorbed a significant amount of its resources with this high priority group. (!d. at 10-11, 18-25). The sudden delivery by South Carolina law enforcement officials to federal immigration officials of persons who do not fit the high priority federal government profile, and who may simply have encountered law enforcement officers as a result of a burned out taillight or jaywalking, would, per the United States, burden and disrupt federal immigration enforcement efforts.
The United States further asserts that the broad traffic and street level dragnet mandated by Section 6 could produce significant turmoil and tension with longtime American allies and neighbors within our hemisphere. In a declaration submitted by Deputy Secretary of State William Bums, the implementation by South Carolina of "an inflexible immigration enforcement policy based narrowly on criminal sanctions" would "interfere[] with the national government's carefully calibrated policy of immigration regulation" and potentially cause "harm [to] a wide
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range of delicate U.S. foreign relations interests." (Dkt. No. 16-2 at 5). Secretary Bums identifies three principal types of potential harms to American foreign interests from the South Carolina immigration statute: (1) "reciprocal and retaliatory treatment ofU.S. citizens" with "significant potential harm to the ability of U.S. citizens to travel, conduct business and live abroad"; (2) antagonization of foreign governments, making them "less willing to negotiate with, assist, or support the United States across a broad range of foreign policy issues," including favorable trade and investment agreements, cooperation with counter terrorism and drug trafficking operations and support in various international bodies; and (3) the threat of undermining the standing of the United States in international bodies that address migration and human rights matters. (Dkt. No. 16-2 at 7-8).
Secretary Bums further notes that because of the potential foreign affairs implications of immigration policies, the State Department "plays a substantial role in administering U.S. immigration law and policy, as well as in managing and negotiating their foreign relations aspects and impacts." (!d. at 11). Because of the sensitivity of immigration issues in many foreign countries, immigration concerns are frequently raised in discussions and negotiations with foreign governments. (!d. at 17). Secretary Bums asserts that it is, therefore, of vital national concern that the federal government, and not an individual state, be responsible for the development and implementation of such a delicate foreign policy issue as immigration. (!d. at 24-26). The Secretary concludes his declaration by asserting that Act 69 "runs significantly counter to American foreign affairs interests, and ... its enforcement would ... undermine American foreign policy." (!d. at 39). Defendants have offered no statements or other evidence to counter Secretary Bums' declaration regarding the potential adverse impact of Act 69 on American foreign policy interests.
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It has long been recognized that "at some point an exercise of state power that touches on foreign relations must yield to the National Government's policy, given the concern for uniformity in this country's dealings with foreign nations that animated the Constitution's allocation of the foreign relations power to the National government in the first place." Garamendi, 539 U.S. at 413. In Federalist Paper No. 42, James Madison, one of the principle draftsmen of the Constitution, observed the practical necessity of federal control of foreign affairs, noting that otherwise individual states would have the power to "embroil the Confederacy [as a whole] with foreign nations." The Federalist No. 42, at 237 (Forgotten Books, 2008). This point was reiterated by Alexander Hamilton in Federalist Paper No. 80 when he stated that the "Union w[ould] undoubtedly be answerable to foreign Powers for the conduct of its members." !d. No. 80, at 452. Hamilton went on to observe that the "peace of the WHOLE should not be left at the disposal of the PART." !d.
The simple principle that the Constitution vests the national government with certain fundamental indicia of national sovereignty, including the control of foreign policy and foreign affairs and the administration of immigration, has long been beyond dispute in our constitutional jurisprudence. In Chy Lung v. Freeman, 92 U.S. 275 (1875), the state of California adopted a statute authorizing a state officer to extract sums from newly arrived immigrants. The United States Supreme Court noted the potential foreign affairs implications of the state immigration rule and the risk of creating international conflict or retaliation. If an international inquiry were to be made, the Court noted, "[u]pon whom would such a claim be made? Not upon the State of California; for, by our Constitution, she can hold no exterior relations with other nations. It would be made upon the government of the United States." !d. at 279. Under the Constitution
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of the United States, the power to pass such laws "belongs to Congress, and not the States." Id. at 280.
The intimate relationship between the conduct of foreign affairs and immigration policy was again addressed in the seminal state immigration regulation case of Hines v. Davidowitz. The case involved Pennsylvania's effort to adopt a state alien registration system identical to the federal system. Justice Black, writing for the Court, observed that "[o]ur system of government . . . imperatively requires that federal power in the field affecting foreign relations be left entirely free from local interference." 312 U.S. at 63. He went on to observe that "[e]xperience has shown that international controversies of the gravest moment ... may arise from real or imagined wrongs to another's subjects inflicted, or permitted, by a government." !d. at 64. In the area of alien registration, Justice Black asserted, the law of the nation must be supreme and the laws of the states "must yield to it." !d. at 66. He concluded that "where the federal government ... has enacted a complete scheme of regulation and has therein provided a standard for the registration of aliens, states cannot, inconsistently with the purpose of Congress, conflict or interfere with, curtail or complement, the federal law, or enforce additional or auxiliary regulations." !d. at 66-67.
Statutes similar to Section 6 have been adopted by Arizona, Alabama and Georgia, and there has been some division on the constitutionality of these provisions by the reviewing courts. The majority view, represented by decisions involving challenges to the Arizona and Georgia statutes, is that such provisions are likely preempted and should be enjoined. United States v. Arizona, 703 F. Supp. 2d at 993-98, 1008, aff'd, 641 F.3d at 348-54; Ga. Latino Alliance for Human Rights, 793 F. Supp. 2d at 1330-33. The minority view, represented by a decision
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involving a challenge to the Alabama statute, is that such provisions are not likely preempted and should not be enjoined. United States v. Alabama, 2011 WL 4469941, at *27-38.7
Defendants contend that Section 6 is effectively authorized by § 1357(g)(l 0), which permits officers or employees of state or local governments without a written agreement "to cooperate with the Attorney General in the identification, apprehension, detention, or removal of aliens not lawfully present in the United States." Defendants contend that Act 69 is nothing more than an effort to cooperate with the federal government in the pursuit of the common goal of immigration enforcement. Since the State of South Carolina has now been sued by the national government over its adoption of Act 69, it begs the question of the meaning of the word "cooperate."
The Department of Homeland Security has issued a document titled Guidance on State and Local Governments' Assistance in Immigration Enforcement and Related Matters (Dkt. No. 29-11), which addresses the Department's interpretation ofthe meaning of the word "cooperate." The Department asserts that the duty to cooperate with the Attorney General necessarily requires federal primacy in immigration enforcement and requires any systematic state policy to be responsive to federal direction and priorities. (Jd. at 8-12). The Department's interpretation of the statute, which it is charged to enforce, is due some deference. United States v. Mead Corp., 533 U.S. 218,234 (2001) ("[A]n agency's interpretation may merit some deference whatever its form, given the specialized experience and broader investigations and information available to
7 Defendants in this case and the Alabama district court exhaustively discussed Judge Bea's dissenting opinion in United States v. Arizona, 641 F.3d at 369-91. This Court found more persuasive Judge Noonan's brief and thoughtful concurring opinion in the same decision in which he focused upon the foreign affairs implications of the Arizona immigration statute. He observed: "What foreign policy can a federal nation have except a national policy? That fifty individual states or one individual state should have a foreign policy is absurdity too gross to be entertained.... [T]he federal nation must speak with one voice." Id. at 367.
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the agency... and given the value of uniformity in its administrative and judicial understandings of what a national law requires."). Moreover, the Department's interpretation of the term "cooperate" comports with the overall structure of the INA (which places primary responsibility for immigration policy and enforcement on federal officials and limits state and local officials to narrow and specific responsibilities) and the long line ofjurisprudence that recognizes the "power to regulate immigration is unquestionably ... a federal power." Whiting, 131 S. Ct. at 1974 (citing DeCanas, 424 U.S. at 354).
It is apparent to the Court from a review of the legislative debate surrounding the adoption of Act 69 and the language of the Act itself that supporters of Act 69 do not approve of the federal government's strategy or actions regarding immigration enforcement. (See Dkt. Nos. 29-25 at 12, 13, 24; 29-26 at 47). These members ofthe General Assembly, of course, have every right to hold that opinion, but that opinion does not entitle the State of South Carolina to adopt its own immigration policy to supplant the policy of the national government. The supporters of Act 69 clearly seek to expand the pool of persons targeted for immigration enforcement beyond those high priority persons that are the focus of federal immigration policy. Far from seeking to "cooperate" with the federal enforcement strategy, they seek by Act 69 to "control" immigration policy and to alter it. (Dkt. No. 29-25 at 14). Further, state and local law enforcement officers are authorized to "securely transport" a person determined to be unlawfully present in the United States "to a federal facility." Act 69, § 6(C)(4). This action can be taken by a state or local law enforcement officer without any independent authorization so long as the unlawfully present person is not delivered to a federal facility outside South Carolina. !d. The policy choices reflected in Act 69 may be many things, but they are not an effort to "cooperate"
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with the Attorney General. Thus, § 1357(g)(1 0) does not provide the State a safe harbor for Act 69.
Section 6 is subject to both field preemption and obstacle preemption. First, the federal government's regulation of immigration enforcement is so pervasive and comprehensive that it has not left any room for the state to supplant it. Gade, 505 U.S. at 98. This area has long been under the control of the national government, and the State of South Carolina has not traditionally regulated in this area. Whiting, 131 S. Ct. at 1974. Second, Act 69 burdens finite and limited federal immigration enforcement resources and acts as "an obstacle to the accomplishment and execution ofthe full purposes and objectives of Congress." Gade, 505 U.S. at 98. Third, Act 69 improperly infringes on the federal government's exclusive control of foreign affairs. No credible national sovereign can allow an individual state to embark on an independent immigration policy that exposes the national government to a disruption of its foreign relations and ability to conduct and control foreign policy.
The State of South Carolina is not without options to address its particular concerns with the federal government's immigration policy. Section 1357 of the INA permits state and federal governments to enter into agreements to address specific matters or concerns of a state government. For reasons that are not clear to the Court, South Carolina elected to forego an effort to negotiate its own agreement with the federal government and instead adopted Act 69. (Dkt. No. 29-25 at 14). Section 17(E) of Act 69, which is not affected by this Order, mandates that after January 1, 2012, the Chief of SLED negotiate a 287(g) agreement with the federal government. Perhaps through good faith negotiations and frank discussion the State of South Carolina and the federal government can fashion an agreement to address, in whole or in part, the
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concerns of state officials without unduly burdening federal resources or disrupting the foreign affairs of the national government.8
Based upon the foregoing, the Court concludes that plaintiffs have made a clear showing that they will likely succeed on the merits of their challenge to Section 6 of Act 69. This satisfies the first of four parts of the preliminary injunction standard. The balance of those preliminary injunction requirements will be addressed in the remedy portion of the Court's Order.
Remedy Plaintiffs, having made a "clear showing that [they] will likely succeed on the merits" of their preemption challenge to Sections 4, 5, 6 and 15 of the Act, are entitled to preliminary injunctive relief only if they can also make "a clear showing" that they are "likely to be irreparably harmed absent preliminary relief," that the balance of equities tips in their favor and that preliminary injunctive relief is in the public interest. Real Truth About Obama, Inc., 575 F.3d at 346-47. Below, the Court addresses these requirements for each of the challenged sections of Act 69. A. Section 4 The challenges to Section 4 fall into two general categories, one relating to the subsections making it a state crime for third parties to harbor, shelter or transport unlawfully present persons (Subsections 4(B) and (D)), and the other relating to the subsections making it a state crime for unlawfully present persons to harbor, shelter or transport themselves (Subsections 4(A) and (C)). Subsections (B) and (D) closely track existing federal criminal law, see 8 U.S.C.
8 The Court notes that the United States did not challenge Section 7 of the Act, involving the mandating ofverification ofthe immigration status of persons in state and local government prisons and detention centers. This section of the Act does appear to further national immigration policy objectives, which is presumably the basis for the United States' decision not to challenge it. This suggests to the Court that there may be common ground between state and federal officials for purposes of reaching a 287(g) agreement.
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§ 1324, and were originally adopted in 2008 as S.C. Code§ 16-9-460. Control ofthe prosecution and judicial interpretation of this area of statutory law has been traditionally a federal government prerogative. The United States asserts that the creation of an independent state regime of prosecution and judicial interpretation for those harboring, sheltering and transporting unlawfully present persons will disrupt and conflict with the comprehensive federal enforcement scheme. Further, the likely state prosecutions of lawfully present foreign nationals (who may be family and friends of the unlawfully present persons) could raise significant foreign relations issues. Moreover, the federal statute, 8 U.S.C. § 1324(a)(1)(C), provides an express safe harbor for persons who bring an alien to the United States to perform duties as a minister or missionary, and Section 4 provides no such safe harbor. This creates a real risk of persons being subject to state prosecution under Section 4 of Act 69 when the same conduct would be lawful under federal law. The United States asserts this conflict in state and federal law could create a chaotic situation in immigration enforcement.
Based on the foregoing, the Court finds that plaintiffs have made a clear showing that they will likely suffer irreparable injury should Subsections 4(B) and (D) become effective. The Court further finds that the balance of equities tips decidedly in plaintiffs' favor, and the public interest is served by the grant of preliminary injunctive relief. Therefore, the Court grants a preliminary injunction enjoining the enforcement of Subsections 4(B) and (D) of Act 69 and S.C. Code § 16-9-460 until further order of this Court.
Subsections 4(A) and (C) create the equivalent of a state crime for unlawful presence and, as such, create a conflict with federal immigration law which treats unlawful presence as a civil enforcement matter. Plaintiffs assert that this conflict between state and federal law would disrupt the federal enforcement scheme and create a potentially chaotic situation in which
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previously civil enforcement matters would be criminalized under the South Carolina scheme. This obviously raises potential foreign affairs sensitivities, which were well articulated by Secretary Bums in his declaration. The Court finds that plaintiffs have clearly shown that they will suffer irreparable injury should these subsections become effective. The Court further finds that the balance of equities tips decidedly in favor of plaintiffs, and the public interest is served by the grant of preliminary injunctive relief. Therefore, the Court grants a preliminary injunction enjoining the enforcement of Subsections 4(A) and (C) of Act 69 until further order of this Court.
B. Section 5 Section 5 closely tracks existing federal statutory law requiring the carrying of federal registration cards by aliens present in the United States. See 8 U.S.C. § 1304. Plaintiffs have provided the Court with evidence that this statute is now only rarely enforced by federal officials because the federal registration system does not cover numerous aliens lawfully present in the United States, including asylum seekers, victims of torture, persons cooperating with law enforcement officials in criminal prosecutions and other classes of persons who are lawfully present. Section 5 contains no safe harbor or exception for such classes of persons who do not have federal registration documents. Plaintiffs persuasively assert that state criminal prosecutions for the failure to carry federal registration materials under Section 5 could create a chaotic situation regarding the large classes of persons subject to state prosecution who would almost certainly not be subject to federal prosecution. The United States further asserts that it has exclusively controlled this area of the law, and a significant number of arrests under Section 5 could raise troublesome foreign relations issues and result in retaliation of American nationals abroad.
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The Court concludes that plaintiffs have clearly shown that they will likely suffer irreparable injury should Section 5 be enforced. The Court further finds that the balance of equities clearly tips in favor of plaintiffs and that the grant of a preliminary injunction is in the public interest. Therefore, the Court grants a preliminary injunction enjoining the enforcement of Section 5 until further order of this Court.
C. Section 6 Section 6, excepting the provisions of Section 6(B)(2), mandates that every law enforcement encounter with any person be infused with consideration of the person's legal status in the United States. If the officer has a "reasonable suspicion" that the person may be unlawfully present, Section 6 directs the officer to undertake certain inquiries and actions where "practicable." This state-mandated scrutiny is without consideration of federal enforcement priorities and unquestionably vastly expands the persons targeted for immigration enforcement action. The United States asserts that this state statutory scheme will disrupt federal enforcement operations and burden finite immigration enforcement resources. The breadth and volume of these state-mandated immigration inquiries and investigations would, according to the United States, raise significant foreign relations problems that would likely adversely affect American foreign policy interests. The Court finds that plaintiffs have clearly shown that they will likely suffer irreparable injury should Section 6 be enforced. The balance of equities tips decidedly in favor of plaintiffs, and the public interest is served by the grant of preliminary injunctive relief. Therefore, the
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Court grants a preliminary injunction enjoining the enforcement of Section 6 until further order ofthis Court, except as to 6(B)(2) which is specifically addressed below. 9
Section 6(B)(2) makes it a state crime to possess or attempt to use a fraudulent I.D. for the purpose of establishing lawful presence in the United States. The United States asserts that federal law now exclusively regulates this area and that enforcement of this subsection would create an independent scheme of prosecution and judicial enforcement outside the control of the federal government and without regard to federal immigration enforcement priorities. The United States further asserts that discretionary decisions to treat certain matters as civil, rather than criminal, are carefully calibrated to accomplish immigration enforcement ends without unduly disrupting the nation's relations with foreign governments. Since the South Carolina enforcement scheme is exclusively criminal in nature and outside the control of the federal government, the United States asserts that irreparable injury to the nation's foreign policy is likely.
The Court finds that the United States has made a clear showing that it will likely suffer irreparable injury should Section 6(B)(2) be enforced. The equities tip in favor of the United States, and the public interest would be served by a grant of preliminary injunctive relief. Therefore, the Court grants the preliminary injunction enjoining the enforcement of Section 6(B)(2) until further order of this Court.
9 Nothing in this Order should be construed to prevent a state or local law enforcement officer, in the exercise of his or her discretion, from investigating any potential immigration law violation or from taking action in an immigration matter as may be authorized by federal law. Since any state or local government immigration enforcement activity should be in cooperation with the Attorney General and in furtherance of federal enforcement activities, state and local officers should act consistently with federal immigration policy objectives as set forth from time to time in official circulars, policy statements and regulations of agencies charged with federal immigration enforcement.
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D. Section 15 Section 15 prohibits the making or selling of counterfeit I.D.s for the use of persons unlawfully present in the United States. Private plaintiffs do not challenge this section. The United States asserts that this area is already addressed by the comprehensive federal immigration enforcement effort and that exclusive federal control of such matters is important. While the Court has found that the United States will likely prevail on its legal challenge that Section 15 is preempted by federal law, the Court is not persuaded that the United States will suffer irreparable harm should a preliminary injunction not be granted. Enforcement of this section does not appear to the Court to necessarily involve the arrest and prosecution of unlawfully present persons and would not likely raise the foreign policy sensitivities raised by other sections of Act 69 addressed above. The Court concludes that the United States has not made a clear showing that it will likely suffer irreparable harm should Section 15 be enforced, and therefore, the motion for preliminary injunction as to Section 15 is denied.
Conclusion The Court hereby grants the motions for preliminary injunction regarding Sections 4, 5 and 6 of Act 69, and S.C. Code§ 16-9-460, until further order ofthis Court. AND IT IS SO ORDERED.

Charleston, South Carolina December ~ 2011

Ric ard Mark Gergel United States District Judge
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 2:11-cv-02779-RMG Date Filed 01/09/12 Entry Number 126 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT 
 FOR THE DISTRICT OF SOUTH CAROLINA 

CHARLESTON DIVISION 


United States of America,

)

)

Plaintiff,

)

)

vs.

)

)

State of South Carolina and Nikki R.

)

Haley, in her official capacity as the

)

Governor of South Carolina,

)

)

Defendants.

)

Civil Action No.2: 11-2958-RMG

Lowcountry Immigration Coalition et al. )

)

Plaintiffs,

)

)

Nikki Haley, in her official capacity

)

as Governor of the State of South

)

Carolina, et aI.,

)

)

Defendants.

)

)

Civil Action No. 2:11-2779-RMG

ORDER 
 This matter comes before the Court on the joint motion of all of the above captioned parties to stay further proceedings in these actions pending the resolution of the appeal of United States v. Arizona (No. 11-182) before the United States Supreme Court. The consent motion recommends the following conditions related to the proposed stay: 1. The stay encompass all discovery and the obligation of the parties to respond to the

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complaints in these actions; 2. The stay will not affect or prejudice the rights of all parties to assert any claims or
defenses, and defendants reserve the right during the stay to appeal the Court's preliminary injunction order of December 22, 2011 ;
3. Each party reserves the right to move before the Court for a lifting of the stay; and 4. The Court schedule a status conference in these actions shortly after the Supreme Court's decision in United States v. Arizona. The Court finds that the entry of a stay of proceedings as requested by the parties will promote judicial economy and serve the interests ofjustice. Therefore, the Court hereby enters a stay of all proceedings in the above captioned actions in accord with the conditions set forth above. The entry of this stay shall have no affect on any aspect of the Court's preliminary injunction entered on December 22, 2011. AND IT IS SO ORDERED.

Charleston, South Carolina January 9,2012

United States Distric

-2­

 
 2:11-cv-02958-RMG Date Filed 11/15/12 Entry Number 118 Page 1 of 16

IN THE UNITED STATES DISTRICT COURT DISTRICT OF SOUTH CAROLINA CHARLESTON DIVISION

United States of America,

)

)

Plaintiff,

)

)

vs.

)

)

State of South Carolina and

)

Nikki R. Haley, in her official

)

capacity as the Governor of

)

South Carolina,

)

)

Defendants.

)

)

______________________________)

)

Lowcountry Immigration Coalition, )

et al.,

)

)

Plaintiffs,

)

)

vs.

)

)

Nikki R. Haley, in her official

)

capacity as the Governor of

)

South Carolina, et al.,

)

)

Defendants.

)

)

______________________________)

Civil Action No. 2:11-2958 Civil Action No. 2:11-2779

ORDER This matter comes before the Court pursuant to a lim ited remand from the United States Court of Appeals for the Fourth Circuit on August 16, 2012 to allo w this Court to reexam ine its preliminary injunction issued on December 22, 2011 in light of the United States Supreme Court’s opinion in Arizona v. United States, 132 S. Ct. 2492 (2012) (hereinafter “Arizona decision”), issued

2:11-cv-02958-RMG Date Filed 11/15/12 Entry Number 118 Page 2 of 16
on June 25, 2012. (Dkt. No. 98).1 This limited remand followed this Court’s “indicative ruling,” issued pursuant to Federal Rule of Civil Procedure 62.1 on July 9, 2012, that the United States Supreme Court’s Arizona decision raised “substantial issues” regarding at least a portion of this Court’s earlier decision. (Dkt. No.92). Upon the grant of the limited remand, this Court established a briefing schedule and set oral argument for November 13, 2012. (Dkt. No. 102). After a careful consideration of the relevant precedents, including the Arizona decision, the full record before the Court, and the written and oral arguments of all parties to these actions, the Court hereby modifies its earlier order in regard to portions of Section 6 of S.C. Act No. 69 ( hereinafter “Act 69”) and leaves in place the grant of preliminary injunctive relief regarding Sections 4(A), (B), (C) and (D), 5, and 6(B)(2) of Act 69, as further set forth below.
Background The South Carolina General Assembly formally adopted a comprehensive state immigration statute, Act 69, on June 27, 2011. A num ber of individuals and advocacy groups (hereina fter collectively “private Plaintiffs”) filed suit onOctober 12, 2011 challenging Act 69 in its entirety as well as specific portions of the Act and requesting prelim inary and permanent injunctive relief. (C.A. No. 2:11-2779, Dkt. No. 1). Thereafter, the United States filed a separate action on October 31, 2011 challenging the validity of Sections 4, 5, 6and 15 of Act 69 and requesting preliminary and permanent injunctive relief. (Dkt. No. 1). Because Act 69 was seto take effect on January 1, 2012, the Court set an expedited briefing schedule onNovember 1, 2011 and scheduled oral argument on December 19, 2011. The Court issued an order on Decem ber 22, 2011 prelim inarily enjoining
1 All citations to the case docket will be to C.A. No. 2:11-2958 unless specifically indicated otherwise.
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Sections 4(A), (B), (C), and (D), 5, and 6 of Act 69. United States v. South Carolina, 840 F. Supp. 2d 898 (D.S.C. 2011). As referenced above, this Court now reviews this preliminary injunction in light of the Arizona decision.
Discussion The above captioned parties have, somewhat predictably, taken different views on the issues before the Court in this limited remand. The state Defendants2 assert that the Court should dissolve the preliminary injunction in its entirety despite the United States Suprem e Court af firming significant portions of the Arizona district court and Ninth Circuit opinions that declared multiple and, in many instances, similar provisions of Arizona’s immigration statute unconstitutional. (Dkt. Nos. 105, 110, 113). The private Plaintiffs urge the Court to m aintain the previously is sued preliminary injunction, including the section enjoining immigration inquiries for persons lawfully stopped or detained for other reasons, notwithstanding the fact that the Arizona decision reversed lower court decisions enjoining a similar provision of the Arizona statute. (Dkt. No. 106; C.A. No. 2:11-2779, Dkt. Nos. 154, 158). The United Sattes asserts that, in light of theArizona decision, this Court should dissolve that portion of the preliminary injunction relating to immigration inquiries for persons lawfully stopped or detained and, in all other respects, maintain the Court’s previously granted preliminary injunctive relief. (Dkt. Nos. 107, 111). The Court will address each relevant section of Act 69 below.
2 The term “state Defendants” refers collectively to the named defendants in the two above captioned actions.
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A. Sections 4(B) and (D) Sections 4(B) and (D) of Act 69 e stablished two new state criminal provisions relating to persons who knowingly or recklessly participate in the transporting or sheltering of persons in furtherance of an unlawfully present person’s entry into the United States or to avoid detection of such a person’s unlawful presence. These newly adopted state provisions are sim ilar to existing provisions of federal law. See 8 U.S.C. §§ 1324(1)(a)(ii), (iii). The federal law authorizes state and local law enforcement officials to make arrests under the fe deral statute but prosecution remains exclusively within the discretion of the federal government. Id. § 1324(c). This Court enjoined Sections 4(B) and (D) of Act 69, stating that this was a “classic case of field preemption” because Congress had “adopted a scheme of federal regulation regarding the harboring and transporting of unlawfully present persons so pervasive that it left no room in this area for the state to supplement it.” United States v. South Carolina, 840 F. Supp. 2d at 916-17. The state Defendants now argue that the Arizona decision did not specifically address this issue and point out that the Arizona district court had earlier refused to enjoin a provision similar to Sections 4(B) and (D). (Dkt. No. 105 at 9) . Though the state Defendants are correct that the United States Supreme Court did not address si milar harboring and sheltering provisions in it s Arizona decision, they fail to appreciate that this is because the issue was not raised on appeal. In fact, there is little in the Arizona decision that gives support to the state Defendants’ argument. In examining Section 3 ofthe Arizona statute,relating to a new state misdemeanor for failing to carry an alien regi stration card, the Suprem e Court noted that there was overlap with a comprehensive federal regulatory sche me concerning the docum entation requirements of alien persons within the United States. Arizona v. United States, 132 S. Ct. at 2501-03. The Supreme
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Court, in declaring the Arizona statute preempted, noted that “[p]ermitting the State to impose its own penalties f or the federal of fenses here w ould create conf lict with the caref ul framework Congress adopted.” Id. at 2502.
In addition, in two post-Arizona decisions the Eleventh Circuit enjoined similar transporting and sheltering provisions found in the Alabama and Georgia statutes. See Ga. Latino Alliance for Human Rights v. Georgia, 691 F.3d 1250, 1263-67 (11th Cir.2012) (hereinafter “GLAHR”); United States v. Alabama, 691 F.3d 1269, 1285-88 (11th Cir. 2012).The Eleventh Circuit inGLAHR found that the federal criminal provisions relating to harboring and transporting unlawfully present persons were “comprehensive” and that the “breadth of these laws illustrates an overwhelm ing dominant federal interest in the field.” 691 F.3d at 1264. The GLAHR court further found that Georgia’s harboring and sheltering statute “threaten[ed] the uniform application” of federal immigration law and challenged “federal supremacy in the realm of immigration.” Id. at 1265-66. Based on that reasoning, the Eleventh Circuit found the Georgiastatutory provision preempted by federal law,id. at 1267, as well as the Alabama provision in the companion case, United States v. Alabama, 691 F.3d at 1290.
Further, the Arizona district court recentlyrevisited the sheltering and harboring provisions of the Arizona statute in a new suit brought by private litigants. See Valle del Sol v. Whiting, No. 10-1061 (D. Ariz. Sept. 5, 2012) (order granting prelim inary injunction).3 The Arizona district court, though it had twice rejected arguments invalidating the harboring and sheltering provisions of the Arizona immigration statute, relied heavily onthe analysis contained in the Eleventh Circuit’s decisions in GLAHR and United States v. Alabamaand ultimately concluded that the Arizona statute
3 This decision is apparently not currently published but can be found at Dkt. No. 105-1. -5-

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was field and conflict preempted. (Dkt. No. 105-1 at 8). This Court, having carefully considered the arguments of all parties and the recent case law
on this issue, continues to find that Sections 4(B) and (D) infringe upon a comprehensive federal statutory scheme and would inte rfere with the federal governm ent’s supremacy in the realm of immigration. Further, the South Carolina statutoryprovisions would allow state officials to exercise discretion regarding the prosecution of persons lalegedly harboring or sheltering persons unlawfully present in the United States, creating a conlfict with federal law since that discretion has previously been the exclusive province of the federal government. Consequently, the Court leaves in place its preliminary injunction regarding Sections 4(B) and (D) of Act 69.
B. Sections 4(A) and (C) Sections 4(A) and (C) make it a state criminal offense for persons unlawfully present in the United States “to allow themselves to be transported” or to “conceal, harbor or shelter themselves from detection.” In granting the Plaintiffs’ motions for preliminary injunction, this Court found that these provisions, which apparently have no counterpart in state or federal law, were the functional equivalent of making unlawful presence a criminal offense. United States v. South Carolina, 840 F. Supp. 2d at 919. This Court concluded that these provisions were field and conflict preempted because they “seek to criminalize what Congress has chosen to treat only as a civil offense.” Id. The state Defendants assert that since no othe r state has “self harboring pr ovisions,” and consequently no other court has addressed the validity of such statutes, this Court should dissolve its injunction. (Dkt. No. 105 at 10). This Court finds that argum ent unpersuasive. The Arizona decision only served to underscore that, in a realm where Congress has enacted a comprehensive framework for addressing a national issue and judged that a particular activity is best enforced as
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a civil matter, any effort by a State to criminalize that activity creates a “conflict in the method of enforcement” that stands as “an obstacle to theregulatory system Congress chose” and is, therefore, “preempted by federal law.” See Arizona v. United States, 132 S. Ct. at 2505 (concluding that a State effort to crim inalize seeking or engaging in unauthorized em ployment is preempted by a federal statute that instead imposes civil penalties on employees).
Sections 4(A) and (C) represent just such an effort to criminalize an activity that is, under federal law, deemed a civil violation. The provsiions place criminal sanctions on the sheltering and transporting of one’s self—activities that are, practically speaking, unavoidable. In effect, Sections 4(A) and (C) criminalize removable aliens’ presence in the State, and do so despite the Suprem e Court’s affirmation in Arizona that, “[a]s a general rule, it is not a crim e for a removable alien to remain present in the United States.” Id. As a result, like Arizona’s attem pt to crim inalize unauthorized work after Congress had judged it a civil matter, Sections 4(A) and (C) necessarily conflict with federal policy judgments relating to removability, and are therefore preem pted by federal law.
This Court continues to find South Carolina’s “self harboring” statute as conflicting with a well ordered and settled federal statutory scheme for dealing with unlawfully present persons and that it is preempted by federal law. Thus, the Court finds no basis to alter its preliminary injunction regarding Sections 4(A) and (C).
C. Sections 5 and 6(B)(2) Section 5 of Act 69 makes it a state misdemeanor for a person eighteen years or older not to carry an alien registration card issued pursuan t to 8 U.S.C. § 1304. S ection 6(B)(2) of Act 69 makes it unlawful for any person to possess “false,fictitious, fraudulent or counterfeit identification”
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for purposes of offering proof of one’s lawful presence in the United States. This Court previously enjoined these provisions because, given that “thenational government has adopted a pervasive and comprehensive scheme that leaves no place for state regulation in this area,” it is clear that “alien registration is a field under the exclusive control of the federal government.” United States v. South Carolina, 840 F. Supp. 2d at 917-18.
In the Arizona case, the Supreme Court confronted a new state m isdemeanor statute that prohibited “willful failure to complete or carry an alien registration document . . . in violation of 8 United States Code section 1304(e) or 1306(a).” Ariz. Rev. Stat. Ann. § 11-1509(A). Affirming that the “States m ay not enter, in any respect, an ar ea the Federal Governm ent has reserved for itself,” and observing in particular that “[f]ede ral law makes a single sovereign responsible fo r maintaining a com prehensive and unified system to keep track of alie ns within the Nation’s borders,” the Supreme Court concluded that, in regard to alien registration, “[p]ermitting the State to impose its own penalties f or the federal offenses would conflict with the caref ul framework Congress adopted.” Arizona v. United States, 132 S. Ct. at 2502. Notably, like this Court in its earlier order in this case,the Supreme Court inArizona recognized that preemption here is necessary and comprehensive because the federal scheme for alien registration “touches on foreign relations.” Id. The Court therefore found the provision preempted.
Despite the Supre me Court’s unequivocal statem ent that alien registration is a field preempted by federal law, the state Defendants contni ue to assert that this Court should dissolve its injunction regarding Sections 5 and 6(B)(2). (Dkt. No. 105 at 11-12). This Court sees nothing in the Arizona decision that would call for dissolving thisportion of the injunction, and indeed views Arizona as precedent supporting the decision to keep the injunction in place. The Court continues
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to find that the area of a lien registration is field preempted from state regulation and leaves undisturbed its preliminary injunction regarding Sections 5 and 6(B)(2) of Act 69.
D. Sections 6(A), (B)(1), (C)(1)-(3), and (D) Section 6(A) of Act 69 mandates that a state or local law enforcement officer who lawfully stops a person for a criminal offense and has a “reasonable suspicion” that “the person is unlawfully present in the United States” must make a “reasonable effort” to determ ine that person’ s immigration status. Section 6(B)(1) allows the use ocfertain official picture identifications to create a presumption of a person’s lawful presence. If the person under suspicion does not possess one of the designated forms of identification, the officermust make a “reasonable effort, when practicable, to verify the person’s lawful presence.” S.C. Act 69, § 6(C)(1). Thicsan include inquiries to federal immigration officials or a newly created state immigration enforcement unit. Id. The statute goes on to provide that any stop or detention m ay not be longer than “a reasonable am ount of time as allowed by law” and m ust be consistent with federal im migration law and the United States Constitution. Id. §§ 6(C)(2), (D). The Supreme Court addressed a similar provision in the Arizona statute, Section 2(B), and expressed concerns regarding the possible detenti on or holding of persons sim ply to verify their immigration status. The Supreme Court noted that “[d]etaining individuals solely to verify their immigration status would raise constitutional concerns.” Arizona v. United States , 132 S. Ct. at 2509. Further, the Supreme Court observed that “it would disrupt the federal framework to put state officers in the position of holding aliens in custody for possible unlawful presence without federal direction and supervision.” Id. The Supreme Court went on to hold, however, that if the Arizona statute “only requires state officers to conduct a st atus check during the course of an authorized,
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lawful detention or after a detainee has been released, the provision l ikely would survive preemption—at least absent some showing that it hasother consequences that are adverse to federal law and its objectives.” Id.
Thus, though it recognized significant lim itations on the authority of the State to detain a person suspected of being unlawfully present inthe United States, the Supreme Court found that it was possible that the Arizona s tatute might be interpreted by the state courts “to avoid these concerns.” Id. The Court explained that, where “[t]here is a basic uncertainty about what the law means and how it will be enforced,” it would be “inappropriate to assume [the provision] will be construed in a way that creates a conflict with federal law.” Id. at 2510. As a result, the Supreme Court held that enjoining the Arizona statute on the basis of a facial challenge was not proper, though the Court made a point not to “foreclose other preemption and constitutional challenges to the law as interpreted and applied after it goes into effect.” Id.
This Court earlier enjoined the immigration inquiry provisions of Section 6, holding at the time that such inquiries potentially burdened anddisrupted “finite and limited federal immigration enforcement resources” and interfered with fede ral control over matters potentially affecting the foreign affairs of the United States. United States v. South Carolina, 840 F. Supp. 2d at 924. Courts reviewing the constitutionality of the Arizona and Georgia immigration statutes reached sim ilar conclusions. See United States v. Arizona, 703 F. Supp. 2d 980, 993-98 (D. Ariz. 2010),aff’d, 641 F.3d 339, 348-54 (9th Cir. 2011); GLAHR, 793 F. Supp. 2d at 1330-33. But see United States v. Alabama, 813 F. Supp. 2d 1282, 1318-29 (N.D. Ala. 2011).
The Supreme Court in the Arizona decision concluded otherwise. In doing so, the Court observed that the requesting of immigration status information by state and local officials from the
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federal government was explicitly authorized under federal law and “[i]ndeed, [Congress] has encouraged the sharing of information about possible immigration violations.” Arizona v. United States, 132 S. Ct. at 2508. Thus, the Supreme Court concluded that the “federal scheme . . . leaves room for a policy requiring state officials to contact ICE as a routine matter.” Id.
The private Plaintif fs argue that Sections 6(A) and 6(C)(1) will inevitably lead to the detention of persons solely to verify their im migration status. They m ake this argument on the premise that the time necessary to conduct an immigration status inquiry will routinely exceed the time reasonably necessary t o complete the law en forcement work associated with the original purpose of a stop or detention. (Dkt. No. 106 at 15-18). The Arizona decision leaves little doubt that, should such detentions occur, they wouldraise constitutional concerns. 132 S. Ct. at 2509;see also Arizona v. Johnson, 555 U.S. 323, 333 (2009) (“An officer’s inquiries into matters unrelated to the justification for the traffic stop . . . do not convert the encounter into something other than a lawful seizure, so long as t hose inquiries do not m easurably extend the duration of the stop.”); Illinois v. Caballes, 543 U.S. 405, 407 (2005) (“A seizure that is justified solely by the interest in issuing a warning ticket to the driver can b ecome unlawful if it is prolonged beyond the time reasonably required to complete that mission.”).
The state Defendants argue, as did the defendants in Arizona, that the immigration inquiry statute can be interpreted to avoid such unconstitutional detentions. For exam ple, the Arizona decision noted that, sim ply because the state st atute mandated the initiation of an im migration inquiry, it did not require that the inquiry be completed while the person under suspicion is being stopped or detained. 132 S. Ct. at 2509. Further, Section 6(C)(2) provides that a person may be detained “only for a reasonable am ount of tim e as allowed by law” and that, if the person’s
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immigration status cannot be determined in such time, “the officer may not further . . . detain . . . the person solely on the person’s lawful presence in the United States.” Additiona lly, Section 6(D) provides that Section 6 must be construed consistently with federal immigration law and the United States Constitution.
Applying the holding of the Arizona decision to the status-checking provisions of Act 69, in particular Sections 6(A), (B)(1), (C)(1)-(3), and (D), this Court concludes that an injunction at this stage of the litigation is not appropriate, and hereby dissolves its preliminary injunction regarding these provisions. This litigation is only at the prlieminary injunction stage, and this Court’s decision to dissolve the injunction regarding these status-checking provisions does not foreclose a future asapplied challenge based upon subsequent factual a nd legal developments. In the course of this litigation, the parties will have the opportunity to conduct discovery regarding the actual practices and procedures associated with the implementation of Sections 6(A) and 6(C)(1), and this Court can then address these issues with the benefit of a full record.4
4 For example, the Court is aware from an affidavit filed by an official with the Law Enforcement Support Center, which administers the immigration status inquiry program, that the time necessary to initiate and complete an immigration inquiry is estimated to take on average 81 minutes. (Dkt. No. 16-7 at 10, 12-13). A detention of a person suspected of being unlawfully present in the United States for this period of time simply to determine immigration status would raise constitutional concerns. See United States v. Place, 462 U.S. 696, 709-10 (1983) (“[A]lthough we decline to adopt any outside time limitation for a permissible Terry stop, we have never approved a seizure of the person for the prolonged 90-minute period involved here . . . .”); United States v. McFarley, 991 F.2d 1188, 1193-94 (4th Cir. 1993) (“[W]e hold that 38 minutes is not per se an unreasonably long time period in which to conduct that limited investigation.”). A legitimate line of inquiry in discovery would be whether law enforcement officers, in circumstances where the work associated with the original purpose of the stop or detention has been completed, terminate or prolong the detention while awaiting the completion of the immigration status inquiry.
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E. Section 6(C)(4) Section 6(C)(4) of Act 69 provides that, if a aste or local law enforcement officer determines that a person is unlawfully present in the UnitedStates, the officer “shall determine in cooperation with” state and federal immigration officials whether the officer will retain custody relating to the criminal offense which led to the initial stop or detention or whether state or f ederal immigration agencies “shall assume custody of the person.” The subsection goes on to provide that the “officer may securely transport the person to a federal facility in this State or to any other point of transfer into federal custody that is outside of the officer’jsurisdiction,” provided that the officer must obtain judicial authorization if the transporting of th e person to federal custody is outside of South Carolina. In granting a prelim inary injunction enjoining enforcement of this subsection, this Court interpreted the statutory language as authorizing sat te and local law enforcement officials to deliver persons determined to be unlawfully present in the United States to any federal facility without federal authorization. United States v. South Carolina, 840 F. Supp. 2d at 923. Following the clear and unequivocal language of the Arizona decision that the State “holding aliens in custody for possible unlawful presence without federal direction and supervision” would “disrupt the federal framework,” Arizona v. United States , 132 S. Ct. at 2509, the state Defendants now a ssert that Section 6(C)(4) “is not interpreted by [the state Defendants] or the Department of Public Safety to permit the detention of individuals based on immigration status pending and during transfer unless authorized by federal officials.” (Dkt. No. 113 at 3-4).5
5 The state Defendants have filed an affidavit executed by the commander of the newly created Immigration Enforcement Unit at the South Carolina Department of Public Safety to provide factual support for this statement. (Dkt. No. 115).
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This Court is m indful of the Suprem e Court’s admonition in the Arizona decision that it should exercise restraint in granting prelim inary injunctive relief as a result of a facial challenge where there is “basic uncertainty about what the law means and how it will be enforced.” Arizona v. United States, 132 S. Ct. at 2510. Further, the Arizona Court noted that the State had placed certain “limits” on its law, including providing that the law would be “im plemented in a manner consistent with federal law regarding im migration, protecting civil rights of all pe rsons and respecting the privileges and immunities of United States citizens.” Id. at 2508.
South Carolina included nearly identical li miting language in its im migration statute at Section 6(D). Interpreting the whole of Section 6 in light of the restrictions on state authority set forth in Arizona, and considering the new and unequivocal statem ent of the State that it cannot detain or transport to a federal facility any person for alleged unlawful presence without expr ess federal supervision and authorization, the Court recognizes the possibility that Section 6(C)(4) can be interpreted and enforced in a manner consistent with federal law. Therefore, the Court finds that, at this stage of the litigation, it isappropriate to dissolve the injunction as to Section 6(C)(4). This action does not, however, foreclose a later as-applied challenge to this provision should the law be implemented in a manner inconsistent with federal law.
F. Section 7(E) The private Plaintiffs urge the Court to consider enjoining Section 7(E) of Act 69 because it mandates that, upon the completion of any “sentence of incarceration” by a person unlawfully present in the United States, the jailer “shall secure ly transport the prisoner to a f ederal facility.” (Dkt. No. 106 at 22). The privatePlaintiffs argue that this provision undermines federal control over immigration and raises significant Fourth Amendment issues. (Id. at 23-24). They also correctly
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note that the Court previously declined to address the Section 7 issues because the granting of the preliminary injunction regarding Sections 4, 5, and 6largely eliminated the risk of being adversely affected by Section 7. The private Plaintiffs contend that, should the Court dissolve any portion of the previously issued injunction, it should revisit the issue of whether an injunction is appropriate regarding Section 7 of the Act. The s tate Defendants assert that consideration of an injunction regarding Section 7 goes beyond t he scope of the limited remand granted by the Fourth Circuit. (Dkt. No. 113 at 11).
While the Court is not persuaded that consideration of Section 7(E) is beyond the scope of the limited remand, the Court concludes that the private Plaintiffs have significant standing problems associated with a challenge to this particular por vision. For a party to satisfy the threshold question of standing, the party must demonstrate that it is under threat of suffering an injury in fact that is “concrete and particularized; the threat m ust be actual and i mminent, not conjectural or hypothetical.” Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009). Though a plaintiff who seeks preventive relief while challenging a statute need not await actual injury to have standing, that plaintiff must nonetheless face a realistic danger ofsustaining a direct injury through the application of that statute. See Babbit v. United Farm Workers Nat’l Union, 442 U.S. 289, 298 (1979).
Although some of the private Plaintiffs may be unlawfully present in the United States, none has pleaded a realistic danger of sustaining injurythrough the application of Section 7(E). Section 7(E) potentially impacts persons who have been arrested, tried, convicted, incarcerated and are then expecting release following the completion of their sentence.6 The threat of injury resulting from
6 In this way, standing to challenge Section 7(E) differs from cases in which plaintiffs facing a threat of prosecution have standing to challenge a criminal statute. See, e.g., Virginia v. Am. Booksellers Ass’n, 484 U.S. 383 (1988); Steffel v. Thompson, 415 U.S. 452, 459 (1974).
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the application of Section 7(E)only faces individuals who, it can beexpected, will at some point be released from incarceration. None of the private Plaintiffs claims to have been arrested, let alone to be currently incarcerated. As aresult, the Court finds that the potential injury to any ofthe private Plaintiffs is too rem ote, contingent, and speculative at this tim e to satisfy Article III standing requirements regarding Section 7(E).
Conclusion Based upon the foregoing, the Court hereby dissolves the preliminary injunction regarding Section 6 of Act 69, except as to Section 6(B)(2), and lea ves in place all other aspects of the preliminary injunction issued on December 22, 2011.

AND IT IS SO ORDERED.
Charleston, South Carolina November 15, 2012

s/ Richard M. Gergel Richard Mark Gergel United States District Judge

The plaintiffs in those cases were directly injured because their conduct, which they alleged was constitutionally protected, was chilled by the threat of prosecution. In contrast, here, the private Plaintiffs do not claim any such direct injury; rather, they allege an injury that may or may not come to pass, depending on, among other things, whether they are subsequently convicted of, and incarcerated for, some unspecified crime.
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PUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 12-1096
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
STATE OF SOUTH CAROLINA; NIKKI HALEY, in her official capacity as the Governor of South Carolina,
Defendants – Appellants,
------------------------------
UNITED MEXICAN STATES; GOVERNMENT OF ARGENTINA; GOVERNMENT OF BOLIVIA; GOVERNMENT OF BRAZIL; GOVERNMENT OF CHILE; GOVERNMENT OF COLOMBIA; GOVERNMENT OF COSTA RICA; GOVERNMENT OF DOMINICAN REPUBLIC; GOVERNMENT OF ECUADOR; GOVERNMENT OF GUATEMALA; GOVERNMENT OF EL SALVADOR; GOVERNMENT OF HONDURAS; GOVERNMENT OF NICARAGUA; GOVERNMENT OF PARAGUAY; GOVERNMENT OF PERU; GOVERNMENT OF URUGUAY,
Amici Supporting Appellee.
No. 12-1099
LOWCOUNTRY IMMIGRATION COALITION; MUJERES DE TRIUNFO; NUEVOS CAMINOS; SOUTH CAROLINA VICTIM ASSISTANCE NETWORK; SOUTH CAROLINA HISPANIC LEADERSHIP COUNCIL; SERVICE EMPLOYEES INTERNATIONAL UNION; SOUTHERN REGIONAL JOINT BOARD OF WORKERS UNITED; JANE DOE, No. 1; JANE DOE, No. 2; JOHN DOE, No. 1; YAJAIRA BENET-SMITH; KELLER BARRON; JOHN MCKENZIE; SANDRA JONES,
Plaintiffs – Appellees,

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v. NIKKI HALEY, in her official capacity as the Governor of South Carolina; ALAN WILSON, in his official capacity as Attorney General of the State of South Carolina,
Defendants – Appellants, and JAMES ALTON CANNON, in his official capacity as the Sheriff of Charleston County; SCARLETT A. WILSON, in her official capacity as Solicitor of the Ninth Judicial Circuit,
Defendants.
No. 12-2514
UNITED STATES OF AMERICA, Plaintiff – Appellee,
v. STATE OF SOUTH CAROLINA; NIKKI HALEY, in her official capacity as the Governor of South Carolina,
Defendants – Appellants.
No. 12-2533
LOWCOUNTRY IMMIGRATION COALITION; MUJERES DE TRIUNFO; NUEVOS CAMINOS; SOUTH CAROLINA VICTIM ASSISTANCE NETWORK; SOUTH CAROLINA HISPANIC LEADERSHIP COUNCIL; SERVICE EMPLOYEES INTERNATIONAL UNION; SOUTHERN REGIONAL JOINT BOARD OF WORKERS UNITED; JANE DOE, No. 1; JANE DOE, No. 2; JOHN DOE, No. 1; YAJAIRA BENET-SMITH; KELLER BARRON; JOHN MCKENZIE; SANDRA JONES,
Plaintiffs – Appellees,
2

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v.
NIKKI HALEY, in her official capacity as the Governor of South Carolina; ALAN WILSON, in his official capacity as Attorney General of the State of South Carolina,
Defendants – Appellants,
and
JAMES ALTON CANNON, in his official capacity as the Sheriff of Charleston County; SCARLETT A. WILSON, in her official capacity as Solicitor of the Ninth Judicial Circuit,
Defendants.

Appeals from the United States District Court for the District of South Carolina, at Charleston. Richard Mark Gergel, District Judge. (2:11-cv-02958-RMG, 2:11-cv-02779-RMG, 2:11-cv-02958RMG, 2:11-cv-02779-RMG)

Argued: May 14, 2013

Decided: July 23, 2013

Before DUNCAN, AGEE, and DAVIS, Circuit Judges.

Affirmed by published opinion. Judge Davis wrote the opinion, in which Judge Duncan and Judge Agee joined.

ARGUED: James Emory Smith, Jr., OFFICE OF THE ATTORNEY GENERAL OF SOUTH CAROLINA, Columbia, South Carolina, for Appellants. Daniel Tenny, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Karen C. Tumlin, NATIONAL IMMIGRATION LAW CENTER, Los Angeles, California, for Appellees. ON BRIEF: Alan Wilson, Attorney General, Robert D. Cook, Deputy Attorney General, OFFICE OF THE ATTORNEY GENERAL OF SOUTH CAROLINA, Columbia, South Carolina, for Appellants. William N. Nettles, United States Attorney, Columbia, South Carolina, Stuart F. Delery, Principal Deputy Assistant Attorney General, Beth S. Brinkmann, Deputy Assistant Attorney General, Mark B. Stern, Benjamin M. Schultz, Jeffrey E. Sandberg, UNITED STATES DEPARTMENT OF
3

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JUSTICE, Washington, D.C., for Federal Appellee.

Linton

Joaquin, Nora A. Preciado, Melissa S. Keaney, Alvaro M. Huerta,

NATIONAL IMMIGRATION LAW CENTER, Los Angeles, California; Andre

Segura, Omar Jadwat, Lee Gelernt, AMERICAN CIVIL LIBERTIES UNION

FOUNDATION, New York, New York; Cecillia D. Wang, Katherine

Desormeau, San Francisco, California, Justin B. Cox, AMERICAN

CIVIL LIBERTIES UNION FOUNDATION – IMMIGRANTS' RIGHTS PROJECT,

Atlanta, Georgia; Susan K. Dunn, AMERICAN CIVIL LIBERTIES UNION

OF SOUTH CAROLINA, Charleston, South Carolina; Victor

Viramontes, MEXICAN AMERICAN LEGAL DEFENSE AND EDUCATIONAL FUND,

Los Angeles, California; Michelle R. Lapointe, Naomi Tsu,

Atlanta, Georgia, Samuel Brooke, SOUTHERN POVERTY LAW CENTER,

Montgomery, Alabama; Alice Paylor, ROSEN, ROSEN & HAGOOD,

Charleston, South Carolina; Foster Maer, LATINO JUSTICE PRLDEF,

New York, New York for Appellees Lowcountry Immigration

Coalition, Mujeres De Triunfo, Nuevos Caminos, South Carolina

Victim Assistance Network, South Carolina Hispanic Leadership

Council, Service Employees International Union, Southern

Regional Joint Board of Workers United, Jane Doe, No. 1, Jane

Doe, No. 2, John Doe, No. 1, Yajaira Benet-Smith, Keller Barron,

John Mckenzie, Sandra Jones.

Stephen Nickelsburg, Carla

Gorniak, Alexander M. Feldman, CLIFFORD CHANCE US LLP,

Washington, D.C.; Henry L. Solano, WILSON ELSER MOSKOWITZ

EDELMAN & DICKER LLP, Denver, Colorado, for The United Mexican

States, Amicus Curiae.

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DAVIS, Circuit Judge: In 2011, the South Carolina legislature passed, and the
governor signed, a package of immigration laws known as Act 69 (“the Act”). In this pre-enforcement challenge, the district court preliminarily enjoined Sections 4, 5, and 6(B)(2) of the Act on federal preemption grounds. These sections made it a state criminal offense for (1) a person unlawfully present in the United States to conceal, harbor, or shelter herself from detection, or allow herself to be transported within the state; (2) a third party to participate in concealing, sheltering, or transporting a person unlawfully present in the United States; (3) an alien 18 years or older to fail to carry an alien registration card; and (4) an individual to display or possess a false identification card for the purpose of proving lawful presence. South Carolina (“the State”) brings this interlocutory appeal. For the reasons that follow, we affirm.
I. A. The South Carolina General Assembly passed the Act, a comprehensive package of laws and regulations regarding immigration, in response to a perceived failure of the United States to secure its southern border and protect its national security. See United States v. South Carolina, 840 F. Supp. 2d 898, 904 (D.S.C. 2011) (“South Carolina I”), remanded for 5

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reconsideration, No. 12-1096, Doc. 72 (4th Cir. Aug. 16, 2012).
Legislative supporters of the Act said they hoped the bill would
encourage persons unlawfully present in South Carolina to find
“a different state to go to.” Id. The Act was signed by the
governor in 2011 and scheduled to take effect January 1, 2012.
The Act contained twenty sections, only three of which are
at issue in this appeal. Subsections 4(A) and (C) make it a
state felony for an unlawfully present person to allow himself
or herself to be “transported or moved” within the state or to
be harbored or sheltered to avoid detection.1 Violation of those
1 Sections 4(A) and (C) provide, in full:
(A) It is a felony for a person who has come to, entered, or remained in the United States in violation of law to allow themselves to be transported, moved, or attempted to be transported within the State or to solicit or conspire to be transported or moved within the State with intent to further the person’s unlawful entry into the United States or avoiding apprehension or detection of the person’s unlawful immigration status by state or federal authorities.
. . .
(C) It is a felony for a person who has come to, entered, or remained in the United States in violation of law to conceal, harbor, or shelter themselves from detection or to solicit or conspire to conceal, harbor, or shelter themselves from detection in any place, including a building or means of transportation, with intent to further that person’s unlawful entry into the United States or avoiding apprehension or detection of the person’s unlawful immigration status by state or federal authorities.
Act 69, 2011 S.C. Acts (S.B. 20); J.A. 106-07.
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subsections is punishable by a fine not to exceed $5,000, up to
five years in prison, or both.
Subsections 4(B) and (D) make it a state felony, also
punishable by a fine not to exceed $5,000, up to five years in
prison, or both, to “transport, move or attempt to transport” or
“conceal, harbor or shelter” a person “with intent to further
that person’s unlawful entry into the United States” or to help
that person avoid apprehension or detection.2
2 Sections 4(B) and (D) provide, in full:
(B) It is a felony for a person knowingly or in reckless disregard of the fact that another person has come to, entered, or remained in the United States in violation of law to transport, move, or attempt to transport that person within the State or to solicit or conspire to transport or move that person within the State with intent to further that person’s unlawful entry into the United States or avoiding apprehension or detection of that person’s unlawful immigration status by state or federal authorities.
. . .
(D) It is a felony for a person knowingly or in reckless disregard of the fact that another person has come to, entered, or remained in the United States in violation of law to conceal, harbor, or shelter from detection or to solicit or conspire to conceal, harbor, or shelter from detection that person in any place, including a building or means of transportation, with intent to further that person’s unlawful entry into the United States or avoiding apprehension or detection of that person’s unlawful immigration status by state or federal authorities.
Act 69, 2011 S.C. Acts (S.B. 20); J.A. 106-07.
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Section 5 makes it a state misdemeanor for any person 18 years or older to “fail to carry” “a certificate of alien registration or alien registration receipt card.”3 A violation of Section 5 is punishable by a fine of not more than $100, up to 30 days’ imprisonment, or both.
Subsection 6(B)(2) makes it unlawful for any person to display or possess a counterfeit or false ID for the purpose of providing proof of lawful presences in the United States.4 Conviction for a first violation of subsection 6(B)(2) is a misdemeanor punishable by a fine of not more than $100 or imprisonment of not more than 30 days. Conviction for a second

3 Section 5 provides, in relevant part:
(A) It is unlawful for a person eighteen years of age or older to fail to carry in the person’s possession any certificate of alien registration or alien registration receipt card issued to the person pursuant to 8 U.S.C. Section 1304 while the person is in this State.
Act 69, 2011 S.C. Acts (S.B. 20); J.A. 108.
4 Section 6(B)(2) provides:
It is unlawful for a person to display, cause or permit to be displayed, or have in the person’s possession a false, fictitious, fraudulent, or counterfeit picture identification for the purpose of offering proof of the person’s lawful presence in the United States.
Act 69, 2011 S.C. Acts (S.B. 20); J.A. 108-09.
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offense under the section is a felony punishable by a fine of not more than $500 or imprisonment of not more than five years.
B. In two separate actions filed in the United States District Court for the District of South Carolina, the Lowcountry Immigration Coalition (“Lowcountry Plaintiffs”) and the United States challenged various sections of the Act, largely on preemption grounds. Lowcountry Plaintiffs is a group of individuals and organizations, including the National Immigration Law Center, the Southern Poverty Law Center, and the American Civil Liberties Union of South Carolina. The district court, after consolidating the cases, found Sections 4, 5, and 6(B)(2) (as well as other subsections of Section 6 not relevant here) were preempted by federal law and issued a preliminary injunction as to those sections. South Carolina I, 840 F. Supp. 2d 898. Before we could hear the State’s appeal from that order, the Supreme Court decided Arizona v. United States, 132 S. Ct. 2492 (2012), striking down several provisions of an Arizona law that, inter alia, made it a state crime for an alien to fail to carry an alien registration document and for an unauthorized alien to apply for, solicit, or perform work. We remanded the instant case to the district court for reconsideration in light of Arizona. On remand, the district
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court let stand its injunction of Sections 4, 5, and 6(B)(2).5 United States v. South Carolina, 906 F. Supp. 2d 463, 466-69, 473-74 (D.S.C. 2012) (“South Carolina II”).
South Carolina appealed to this Court. We have jurisdiction pursuant to 28 U.S.C. § 1292(a)(1).
II. We “review the decision to grant a preliminary injunction for abuse of discretion. Factual determinations are reviewed for clear error and legal conclusions de novo.” E. Tenn. Natural Gas Co. v. Sage, 361 F.3d 808, 828 (4th Cir. 2004). “Faithful to the abuse-of-discretion standard, we are obliged to affirm [a grant of a preliminary injunction when] the district court applied a correct preliminary injunction standard, made no clearly erroneous findings of material fact, and demonstrated a firm grasp of the legal principles pertinent to the underlying dispute.” Greater Balt. Ctr. for Pregnancy Concerns, Inc. v. Mayor and City Council of Balt., --- F.3d ---, No. 11-1111, slip op. at 57 (4th Cir. July 3, 2013) (en banc) (citation and internal quotation marks omitted).

5 The district court had initially enjoined other subsections of Section 6, but dissolved the injunction as to those other sections on remand. See United States v. South Carolina, 906 F. Supp. 2d 463, 470-73 (D.S.C. 2012).
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“The purpose of a preliminary injunction is merely to preserve the relative positions of the parties until a trial on the merits can be held.” Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981). “The traditional office of a preliminary injunction is to protect the status quo and to prevent irreparable harm during the pendency of a lawsuit ultimately to preserve the court’s ability to render a meaningful judgment on the merits.” In re Microsoft Corp. Antitrust Litig., 333 F.3d 517, 525 (4th Cir. 2003).
III. Before reaching the merits of this case, we must resolve several threshold issues. South Carolina argues that Lowcountry Plaintiffs do not have a right of action to seek an injunction and that, under Younger abstention, the district court should have declined to hear the case. Both arguments lack merit.
A. South Carolina first presses its argument that Lowcountry Plaintiffs do not have a right of action under the Supremacy Clause or 42 U.S.C. § 1983 to bring their claim. (The State does not argue that the United States lacks a right of action.) The State argues that because the Supremacy Clause is not a source of substantive federal rights, it cannot be the basis for a private right of action here. The State leans heavily on Chief Justice Roberts’s dissent in Douglas v. Independent Living
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Center of Southern California, Inc., 132 S. Ct. 1204 (2012), arguing it stands for the proposition that the Supremacy Clause does not create a private right of action.
Douglas concerned three California statutes that reduced payments to Medicaid recipients. Id. at 1208. The state submitted the changes to a federal agency charged with reviewing any changes to how Medicaid payments are calculated. Id. But before the agency could complete its review, groups of Medicaid providers and beneficiaries filed a series of lawsuits seeking to enjoin the reductions on the ground that they were preempted by federal Medicaid law. Id. The Ninth Circuit “ultimately affirmed or ordered preliminary injunctions that prevented the State from implementing its statutes” and “held that the Medicaid providers and beneficiaries could directly bring an action based on the Supremacy Clause.” Id. at 1209.
The Supreme Court granted certiorari “to decide whether Medicaid providers and recipients may maintain a cause of action under the Supremacy Clause to enforce a federal Medicaid law.” 132 S. Ct. at 1207. But about a month after oral argument in the Supreme Court, the federal agency charged with reviewing the payment change approved the reductions. Douglas, 132 S. Ct. at 1209. That raised the question of whether the plaintiffs should seek review of the agency determination under the Administrative Procedure Act, rather than in a Supremacy Clause challenge, and
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so the Court remanded for the Ninth Circuit to answer that question. Id. at 1201-11. (The Ninth Circuit has not yet answered the question.) Given the remand based on changed circumstances, the Court explicitly stated that “we do not address whether the Ninth Circuit properly recognized a Supremacy Clause action to enforce this federal statute before the agency took final action.” Id. at 1211.
Chief Justice Roberts, joined by Justices Scalia, Thomas, and Alito, dissented in Douglas. He stated that he believed there is no private right of action under the Supremacy Clause to enforce 42 U.S.C. § 1396a(a)(30)(A), the relevant provisions of the Medicaid Act, which requires a state’s Medicaid plan and amendments to meet certain standards of efficiency, economy, and quality of care. Noting that the Supremacy Clause is not a source of any federal rights, the Chief Justice stated:
Indeed, to say that there is a federal statutory right enforceable under the Supremacy Clause, when there is no such right under the pertinent statute itself, would effect a complete end-run around this Court's implied right of action and 42 U.S.C. § 1983 jurisprudence. Douglas, 132 S. Ct. at 1213 (Roberts, C.J., dissenting). The Chief Justice distinguished the situation in Douglas from Ex parte Young, 209 U.S. 123 (1908), and its progeny, which “present quite different questions involving the pre-emptive assertion in equity of a defense that would otherwise have been
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available in the State’s enforcement proceedings at law.” Douglas, 132 S. Ct. at 1213 (Roberts, C.J., dissenting) (citation and internal quotation marks omitted). He continued, “Nothing of that sort is at issue here; the respondents are not subject to or threatened with any enforcement proceeding like the one in Ex parte Young. They simply seek a private cause of action Congress chose not to provide.” Id.
We find no merit in the State’s contention. Nothing in the Chief Justice’s dissent disturbed the prior holdings of the Supreme Court or circuit courts that have allowed private parties to seek injunctive relief from state statutes allegedly preempted by federal law. A long line of cases confirms this right of action. See Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 96 n.14 (1983) (“A plaintiff who seeks injunctive relief from state regulation, on the ground that such regulation is preempted by a federal statute which, by virtue of the Supremacy Clause of the Constitution, must prevail, thus presents a federal question which the federal courts have jurisdiction under 28 U.S.C. § 1331 to resolve.”); Local Union No. 12004, United Steelworkers of Am. v. Massachusetts, 377 F.3d 64, 75 (1st Cir. 2004) (“[I]n suits against state officials for declaratory and injunctive relief, a plaintiff may invoke the jurisdiction of the federal courts by asserting a claim of preemption, even absent an explicit statutory cause of
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action.”); Loyal Tire & Auto Ctr., Inc. v. Town of Woodbury, 445 F.3d 136, 149 (2d Cir. 2006) (Sotomayor, J., majority opinion) (a plaintiff’s “right to bring an action seeking declaratory and injunctive relief from municipal regulation on the ground that federal law preempts that regulation is undisputed”); Qwest Corp. v. City of Santa Fe, New Mexico, 380 F.3d 1258, 1266 (10th Cir. 2004) (“A party may bring a claim under the Supremacy Clause that a local enactment is preempted even if the federal law at issue does not create a private right of action.”); Georgia Latino Alliance for Human Rights v. Georgia, 691 F.3d 1250, 1262 (11th Cir. 2012) (“GLAHR”) (finding, in a challenge to a Georgia immigration law, that private plaintiffs had a right of action, and stating, “[l]ike the other circuits to address the issue head on, we ‘have little difficulty in holding that [Plaintiffs] have an implied right of action to assert a preemption claim seeking injunctive . . . relief’” (quoting Planned Parenthood of Houston & Se. Tex. v. Sanchez, 403 F.3d 324, 334 n. 47, 335 (5th Cir. 2005)).
This Court, too, has allowed private parties to assert preemption claims seeking injunctive relief. See AES Sparrows Point LNG, LLC v. Smith, 527 F.3d 120, 127 (4th Cir. 2008) (finding federal preemption, under the Supremacy Clause, of a local zoning ordinance in a case brought by private companies); Norfolk S. Ry. Co. v. City of Alexandria, 608 F.3d 150, 160 (4th
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Cir. 2010) (finding preemption, under the Supremacy Clause, of a municipal haul ordinance in case brought by railroad company). As the above cited cases make clear, the State’s reliance on the Douglas dissent is misplaced.
We hold that under the Supremacy Clause Lowcountry Plaintiffs have an implied right of action to seek injunctive relief from South Carolina’s Act 69 on federal preemption grounds.
B. South Carolina next argues that the district court should have declined to hear the case under Younger abstention. A district court’s decision to decline to abstain under Younger v. Harris, 401 U.S. 37 (1971), is reviewed for abuse of discretion. Life Partners, Inc. v. Morrison, 484 F.3d 284, 301 (4th Cir. 2007). “Abstention from the exercise of federal jurisdiction is the exception, not the rule.” Colo. River Water Conservation Dist. v. United States, 424 U.S. 800, 813 (1976). As a general rule, “federal courts have a strict duty to exercise the jurisdiction that is conferred upon them by Congress.” Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 716 (1996). One of the limited exceptions to this rule is found in Younger, where the Supreme Court held that federal courts should not stay or enjoin pending state court criminal prosecutions except in
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special circumstances, such as bad faith or harassment. 401 U.S. at 41, 54. We have explained that Younger applies when the requested relief would interfere with “‘(1) an ongoing state judicial proceeding, instituted prior to any substantial progress in the federal proceeding; that (2) implicates important, substantial, or vital state interests; and (3) provides an adequate opportunity for the plaintiff to raise the federal constitutional claim advanced in the federal lawsuit.’” Laurel Sand & Gravel, Inc. v. Wilson, 519 F.3d 156, 165 (4th Cir. 2008) (quoting Moore v. City of Asheville, 396 F.3d 385, 390 (4th Cir. 2005)). As there is no ongoing state judicial proceeding here, Younger abstention is inapplicable.
South Carolina, however, asserts that it is basing its argument on Younger’s warning about federal courts enjoining “threatened or anticipated state criminal proceedings.” Appellant’s Opening Br. 22-23 (emphasis in original).6 Younger states:
‘[W]hen absolutely necessary for protection of constitutional rights, courts of the United States have power to enjoin state officers from instituting criminal actions. But this may not be done, except under extraordinary circumstances, where the danger of irreparable loss is both great and immediate. Ordinarily, there should be no interference with such officers; primarily, they are charged with the duty of
6 We observe that the word “anticipated” does not appear in Younger.
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prosecuting offenders against the laws of the state, and must decide when and how this is to be done. The accused should first set up and rely upon his defense in the state courts, even though this involves a challenge of the validity of some statute, unless it plainly appears that this course would not afford adequate protection.’ Younger, 401 U.S. at 45 (quoting Fenner v. Boykin, 271 U.S. 240, 243-44 (1926)). Those principles, Younger stated, “have been repeatedly followed and reaffirmed in other cases involving threatened prosecutions.” 401 U.S. at 45. The State argues that, based on principles of comity and federalism, it is inappropriate for a federal court to enjoin threatened state criminal proceedings when the federal issue could be raised as a defense in a state proceeding. We disagree. We have held that Younger does not bar the granting of federal injunctive relief when a state criminal prosecution is expected and imminent. Age of Majority Educ. Corp. v. Preller, 512 F.2d 1241, 1243 (4th Cir. 1975) (en banc). We have also drawn a distinction between the commencement of “formal enforcement proceedings,” at which point Younger applies, versus the period of time when there is only a “threat of enforcement,” when Younger does not apply. Telco Commc’ns, Inc. v. Carbaugh, 885 F.2d 1225, 1229 (4th Cir. 1989), cert. denied, 495 U.S. 904 (1990). In Telco, where a state agency had commenced an investigation of a firm, we held that abstention was not appropriate because the state proceedings were in a
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preliminary stage. Id. at 1228. We observed that the state’s contention – “that abstention is required whenever enforcement is threatened” – “would leave a party’s constitutional rights in limbo while an agency contemplates enforcement but does not undertake it.” Id. at 1229. Further, if Younger abstention were to apply, “[a] federal plaintiff would be placed ‘between the Scylla of intentionally flouting state law and the Charybdis of forgoing what [it] believes to be constitutionally protected activity in order to avoid becoming enmeshed in enforcement proceedings.’” Id. (quoting Steffel v. Thompson, 415 U.S. 452, 462 (1974)) (second alteration in original).
Other circuits have endorsed the Telco reasoning. See, e.g., Guillemard-Ginorio v. Contreras-Gomez, 585 F.3d 508, 519 (1st Cir. 2009) (finding that the Telco rule, “requiring the commencement of ‘formal enforcement proceedings’ before abstention is required, better comports with the Supreme Court’s decisions in Younger and its progeny, in which an indictment or other formal charge had already been filed against the parties seeking relief at the time the federal action was brought”); La. Debating & Literary Ass’n v. City of New Orleans, 42 F.3d 1483, 1490 (5th Cir. 1995) (in a scenario similar to Telco, finding that “Younger abstention was inappropriate because there was no ongoing state proceeding”).
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The Supreme Court has made clear that injunctions of state
criminal statutes may be proper when constitutional rights are
at issue:
It is correct that generally a court will not enjoin the enforcement of a criminal statute even though unconstitutional, since such a result seriously impairs the State's interest in enforcing its criminal laws, and implicates the concerns for federalism which lie at the heart of Younger. But this is not an absolute policy and in some circumstances injunctive relief may be appropriate. To justify such interference there must be exceptional circumstances and a clear showing that an injunction is necessary in order to afford adequate protection of constitutional rights. Wooley v. Maynard, 430 U.S. 705, 712-13 (1977) (emphasis added)
(citations and internal quotation marks omitted). See also Doran
v. Salem Inn, Inc., 422 U.S. 922, 929-31 (1975) (affirming grant
of preliminary injunction to two bar owners challenging town
ordinance prohibiting topless dancing, finding Younger
abstention inapplicable, and holding that, in the absence of a
state criminal proceeding, “a plaintiff may challenge the
constitutionality of the state statute in federal court,
assuming he can satisfy the requirements for federal
jurisdiction”).
Following our reasoning in Telco, we hold that Younger
abstention is inapplicable where, as here, state proceedings
have not begun against the federal plaintiffs and the plaintiffs
seek injunctive relief to protect their constitutional rights.
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Plaintiffs need not wait to be arrested under the challenged sections of the Act before they can assert a constitutional claim. They need not live under a cloud of “prolonged uncertainty” as to their rights. Telco, 885 F.2d at 1229. The district court was correct to decline to abstain.
IV. We turn now to the merits. The district court issued preliminary injunctions for Sections 4, 5, and 6(B)(2) of Act 69, finding those sections preempted by federal immigration law and regulations. South Carolina II, 960 F. Supp. 2d at 466. The State argues the Act is a proper exercise of its police powers and does not undermine or conflict with federal law. Courts recognize three types of federal preemption: (1) express preemption, in which Congress expressly states its intent to preempt state law, Cox v. Shalala, 112 F.3d 151, 154 (4th Cir. 1997); (2) field preemption, in which Congress occupies a certain field by “regulating so pervasively that there is no room left for the states to supplement federal law,” id. (citing Fid. Sav. & Loan Ass’n v. de la Cuesta, 458 U.S. 141, 153 (1982)), or where there is a “federal interest . . . so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject,” Arizona, 132 S. Ct. at 2501 (citation and internal quotation marks omitted); and (3) conflict preemption, arising when state law is preempted “to the
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extent it actually conflicts with federal law,” Cox, 112 F.3d at 154 (citing Pac. Gas & Elec. Co. v. State Energy Res. Conservation & Dev. Comm’n, 461 U.S. 190, 204 (1983)). The Supreme Court has instructed that conflict preemption “includes cases where compliance with both federal and state regulations is a physical impossibility, and those instances where the challenged state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Arizona, 132 S. Ct. at 2501 (citations and internal quotation marks omitted). The district court enjoined Sections 4, 5, and 6(B)(2) under theories of field and conflict preemption.
We note that the presumption against preemption does not apply here because immigration is an area traditionally regulated by the federal government. This Court has declined to apply the presumption against preemption when dealing with a state law that “regulates an area with authorized federal presence,” such as national banking. Epps v. JP Morgan Chase Bank, N.A., 675 F.3d 315, 322 (4th Cir. 2012). We further decline to apply the presumption to state laws that concern immigration, an area with extensive federal presence. See Arizona, 132 S. Ct. at 2510 (observing that “[i]mmigration policy shapes the destiny of the Nation” and “[t]he National Government has significant power to regulate immigration”).
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Sections 4(A) and (C) of the Act make it a state felony for an unlawfully present person to allow himself or herself to be “transported or moved” within the state or to be harbored or sheltered to avoid detection. The district court found these subsections essentially criminalize mere presence. South Carolina II, 960 F. Supp. 2d at 467-70. The State argues that these sections do not punish mere unlawful presence because they “require that the illegally present alien take action to transport, harbor or shelter themselves” with the intent to further his or her unlawful entry into the United States or to avoid apprehension or detection. Appellant’s Opening Br. 46. South Carolina also presses the argument that these sections only concern “the historic police powers” of the State and thus should be given great deference. Id. at 41.
The Supreme Court recognized in Arizona that “[a]s a general rule, it is not a crime for a removable alien to remain present in the United States.” 132 S. Ct. at 2505. We are hardpressed to see how an unlawfully present alien, going about her normal daily life, would be able to avoid violating Sections 4(A) and (C) of the Act. Simply staying in one’s home could be viewed as an attempt to “shelter” oneself from detection. Taking a bus or driving home at the end of the workday would be “transport[ing]” oneself to the shelter of one’s home to avoid detection. The broad sweep of these sections violates the clear
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rule of Arizona that unlawful presence is not a criminal offense.
In an analogous case, the Eleventh Circuit affirmed a preliminary injunction against a section of an Alabama statute that prohibited state courts from enforcing a contract to which an unlawfully present alien was a party. United States v. Alabama, 691 F.3d 1269, 1296 (11th Cir. 2012). The court found the statute to be “extraordinary and unprecedented,” and criticized its broad sweep: “Essentially, the ability to maintain even a minimal existence is no longer an option for unlawfully present aliens in Alabama.” Id. at 1293. In finding the section preempted, the court noted that it burdened “a capability that, in practical application, is essential for an individual to live and conduct daily affairs.” Id. at 1294.
In essence, Sections 4(A) and (C) operate to criminalize unlawful presence, a stance plainly at odds with federal law. Under federal law, unlawfully present aliens are subject to civil removal proceedings. See 8 U.S.C. § 1227. “A principal feature of the removal system is the broad discretion exercised by immigration officials.” Arizona, 132 S. Ct. at 2499. This discretion is necessary because it “involves policy choices that bear on this Nation’s international relations.” Id. The State, by criminalizing what Congress has deemed a civil offense and entrusted to the discretion of the executive branch, is
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“pursu[ing] policies that undermine federal law.” Id. at 2510. Sections 4(A) and (C) are thus conflict preempted because they stand as an obstacle to the execution of the federal removal system and interfere with the discretion entrusted to federal immigration officials. They make criminals out of aliens attempting to do no more than go to school, go to work, and care for their families. Cf. Arizona, 132 S. Ct. at 2504 (“[M]aking criminals out of aliens engaged in unauthorized work – aliens who already face the possibility of employer exploitation because of their removable status – would be inconsistent with federal policy and objectives.”).
The district court was correct to enjoin Sections 4(A) and (C) because they criminalize actions that Congress has, as a policy choice, decided are a civil matter. We hold that Sections 4(A) and (C) are preempted by federal law.
B. Sections 4(B) and (D) of the Act make it a state felony to “transport, move or attempt to transport” or “conceal, harbor or shelter” a person “with intent to further that person’s unlawful entry into the United States” or to help that person avoid apprehension or detection. The district court found the provisions present “a classic case of field preemption.” South Carolina I, 840 F. Supp. 2d at 917. The sections are similar to a federal statute that makes it unlawful to “transport or move”
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or “conceal[], harbor[] or shield[]” an unlawful alien. 8 U.S.C. § 1324(a)(1)(A)(ii) and (iii). While the federal law authorizes state and local law enforcement officers to make arrests for violations under the statute, prosecution is at the discretion of federal prosecutors and the cases are brought in federal court. Id. § 1324(c).
The State argues that it is possible to comply with both the federal and state harboring laws, and that the state law is not field preempted because the federal regulations do not provide “a full set of standards.” Id. Provisions of the United States Code, however, show otherwise. The Immigration and Naturalization Act (“the INA”) provides for penalties against third parties engaged in a full set of harboring and transporting offenses: the INA authorizes penalties against those who conceal, harbor, or shield unlawfully present aliens from detection, 8 U.S.C. § 1324(a)(1)(A)(iii); those who encourage or induce aliens to enter the United States without lawful authorization, id. § 1324(a)(1)(A)(iv); those who transport an alien within the United States in furtherance of the alien’s violation of federal immigration laws, id. § 1324(a)(1)(A)(ii); and those who assist or conspire in the commission of those acts, id. § 1324(a)(1)(A)(v). There are also penalties for smuggling or otherwise bringing aliens into the United States without lawful authorization, id. §§ 1323,
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1324(a)(1)(A)(i), 1324(a)(2), and for knowingly aiding or assisting certain inadmissible aliens to enter unlawfully, id. § 1327. The federal government has clearly occupied the field of regulating the concealing, harboring, and transporting of unlawfully present aliens.
The Eleventh Circuit affirmed preliminary injunctions against similar anti-harboring schemes in Alabama and Georgia. See GLAHR, 691 F.3d 1250; United States v. Alabama, 691 F.3d 1269. The court found that Section 7 of Georgia’s Illegal Immigration Reform and Enforcement Act of 2011, which made it a state criminal offense to transport, conceal, or harbor a removable alien, was both field and conflict preempted. GLAHR, 691 F.3d at 1263-64. The section was field preempted because “the federal government has clearly expressed more than a ‘peripheral concern’ with the entry, movement, and residence of aliens within the United States, and the breadth of these laws illustrates an overwhelmingly dominant federal interest in the field.” Id. at 1264. The court found the section was conflict preempted because, by allowing for state prosecution of immigration crimes that Congress had confined to federal court, the section “present[ed] an obstacle to the execution of the federal statutory scheme and challenge[d] federal supremacy in the realm of immigration.” Id. at 1265.
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The Eleventh Circuit also affirmed a preliminary injunction of Section 13 of Alabama’s Taxpayer and Citizen Protection Act. Section 13 of the statute created state crimes for concealing, harboring, transporting, or shielding an unlawfully present alien. The Eleventh Circuit found the section to be both field and conflict preempted, Alabama, 691 F.3d at 1285-88, and observed that “federal law provides a comprehensive framework to penalize the transportation, concealment, and inducement of unlawfully present aliens,” id. at 1285 (citation and internal quotation marks omitted). Alabama, by enacting concurrent state legislation in a field of federal concern, “undermines the intent of Congress to confer discretion on the Executive Branch in matters concerning immigration.” Id. at 1287.
We find the Eleventh Circuit’s reasoning persuasive. Sections 4(B) and (D) of the Act are field preempted because the vast array of federal laws and regulations on this subject, see supra, slip op. at 24-25, is “so pervasive . . . that Congress left no room for the States to supplement it.” Arizona, 132 S. Ct. at 2501 (citation and internal quotation marks omitted). “[W]here the federal government, in the exercise of its superior authority in this field, has enacted a complete scheme of regulation . . . states cannot, inconsistently with the purpose of Congress, conflict or interfere with, curtail or complement,
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the federal law, or enforce additional or auxiliary regulations.” Hines v. Davidowitz, 312 U.S. 52, 66-67 (1941).
Furthermore, the sections are conflict preempted because “there is a federal interest . . . so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject.” Arizona, 132 S. Ct. at 2501 (citation and internal quotation marks omitted). We observe that “[t]he dynamic nature of relations with other countries requires the Executive Branch to ensure that enforcement policies are consistent with this Nation’s foreign policy with respect to these and other realities.” Id. at 2499. Sections 4(B) and (D) create an obstacle to the smooth functioning of federal immigration law, improperly place in the hands of state officials the nation’s immigration policy, and strip federal officials of the authority and discretion necessary in managing foreign affairs.
We hold that Sections 4(B) and (D) of Act 69 are preempted by federal law.
C. Section 5 makes it a state misdemeanor for any person 18 years or older to “fail to carry” “a certificate of alien registration or alien registration receipt card issued to the person pursuant to 8 U.S.C. Section 1304.” This provision is almost identical to the federal registration statute, 8 U.S.C. §
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1304(e), which requires every alien in the U.S. over the age of 18 to “at all times carry with him and have in his personal possession any certificate of alien registration or alien registration receipt card” issued under that statute.
In Arizona v. United States, the Supreme Court confronted a similar statute. Section 3 of Arizona’s S.B. 1070 forbade the “willful failure to complete or carry an alien registration document . . . in violation of 8 United States Code section 1304(e) or 1306(a).” Ariz. Rev. Stat. Ann. § 11–1509(A) (West Supp. 2011). The Supreme Court held Section 3 to be preempted by federal law. Arizona, 132 S. Ct. at 2503. Detailing the framework and penalties Congress has established for alien registration, the Court found that “the Federal Government has occupied the field of alien registration.” Id. at 2502. “Where Congress occupies an entire field, as it has in the field of alien registration, even complementary state regulation is impermissible.” Id.
Accordingly, we hold that Section 5 is field preempted by federal law.
D. Section 6(B)(2) makes it unlawful for any person to display or possess a false or counterfeit ID for the purpose of proving lawful presence in the United States. Federal law makes it a crime to counterfeit federal immigration documents or to use
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such documents in an effort to satisfy immigration requirements. 8 U.S.C. § 1324c(a)(1) and (2); 18 U.S.C. § 1546. The district court found that Section 6(B)(2), like Section 5, dealt with alien registration and, following Arizona, was preempted because Congress has occupied the field of alien registration. South Carolina II, 960 F. Supp. 2d at 469.
South Carolina argues that Section 6(B)(2) “should not be encompassed by the alien registration field recognized by Arizona because this statute addresses ordinary fraud.” Appellant’s Opening Br. 49-50. The State further argues that the presumption against preemption applies to this section because “fraud is an area traditionally for state legislation.” Id. at 50. Appellee United States responds that Section 6(B)(2) does not address ordinary fraud but rather “constitutes the State’s attempt to enforce federal provisions designed to prevent aliens from circumventing federal immigration law.” United States Br. 23. Further, “protecting the integrity of the federal immigration scheme is an exclusively federal function and not the purview of the States.” Id. at 23-24.
As an initial matter, when the fraud at issue involves federal immigration documents, the presumption against preemption does not apply. Cf. Buckman Co. v. Plaintiffs’ Legal Comm., 531 U.S. 341, 347 (2001) (“Policing fraud against federal agencies is hardly a field which the States have traditionally
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occupied . . . .”) (citation and internal quotation marks omitted).
As with other immigration-related measures, prosecution for counterfeiting or using federal immigration documents is at the discretion of the Department of Justice acting through the United States Attorney, and allowing the state to prosecute individuals for violations of a state law that is highly similar to a federal law strips federal officials of that discretion. As the Arizona Court observed, “Discretion in the enforcement of immigration law embraces immediate human concerns” and also “involve[s] policy choices that bear on this Nation’s international relations.” 132 S. Ct. at 2499.
Section 6(B)(2) is field preempted in that Congress has passed several laws dealing with creating, possessing, and using fraudulent immigration documents. See 8 U.S.C. § 1324c(a)(1) and (2); 18 U.S.C. § 1546 (providing penalties up to 25 years’ imprisonment). Congress has occupied this field and, in such a case, even complementary or auxiliary state laws are not permitted. See Hines, 312 U.S. at 66-67; Arizona, 132 S. Ct. at 2501-02. In addition, Section 6(B)(2) is conflict preempted because enforcement of these federal statutes necessarily involves the discretion of federal officials, and a state’s own law in this area, inviting state prosecution, would “stand[] as
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an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Hines, 312 U.S. at 67.
We hold Section 6(B)(2) is preempted by federal law. V.
To obtain a preliminary injunction, a moving party must establish the presence of the following: (1) “a clear showing that it will likely succeed on the merits”; (2) “a clear showing that it is likely to be irreparably harmed absent preliminary relief”; (3) the balance of equities tips in favor of the moving party; and (4) a preliminary injunction is in the public interest. Real Truth About Obama, Inc. v. Fed. Election Comm., 575 F.3d 342, 346–47 (4th Cir. 2009); W. Va. Ass’n of Club Owners & Fraternal Servs., Inc. v. Musgrave, 553 F.3d 292, 298 (4th Cir. 2009).
We have held that Lowcountry Plaintiffs and the United States have made a clear showing that they are likely to succeed on the merits of their challenge to Sections 4, 5, and 6(B)(2) of Act 69. We further hold that the appellee-plaintiffs have made a clear showing they will likely suffer irreparable harm if an injunction is not granted, that the balance of equities tips in favor of the appellee-plaintiffs, and that preliminary injunctive relief is in the public interest. See South Carolina I, 840 F. Supp. 2d at 924-27. The irreparable injury to the nation’s foreign policy if the relevant sections take effect has
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been clearly established by the United States. And for individual, unlawfully present immigrants and others, the likelihood of chaos resulting from South Carolina enforcing its separate immigration regime is apparent.
VI. For the reasons stated, the order of the district court granting a preliminary injunction is
AFFIRMED.

34

 
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IN THE UNITED STATES DISTRICT COURT 
 FOR THE DISTRICT OF SOUTH CAROLINA 

CHARLESTON DIVISION 


United States of America,

)

)

Plaintiff,

)

)

v.

)

)

State of South Carolina, and

)

Nikki R. Haley, in her official

)

capacity as the Governor of

)

South Carolina,

)

)

Defendants.

)

)

Lowcountry Immigration Coalition, et aI, )

)

Plaintiffs,

)

)

v.

)

Nikki Haley, et aI,

)

)

Defendants.

)

--------------------------- )

Civil Action No.2: l1-cv-02958-RMG
., -, ,­
Civil Action No.2: ll-cv-02779-RMQ

FINAL JUDGMENT Pursuant to the Fourth Circuit's decision in United States v. South Carolina, 720 F.3d 518 (4th Cir. 2013), and the parties' Joint Report Regarding Case Status and Disposition, the Court hereby enters final judgment in this action as follows: 1. The Defendants Governor, Attorney General and State of South Carolina are PERMANENTLY ENJOINED from implementing Sections 4, 5, 6(B)(2), and 15 of South Carolina's Act 69 (S.C. Code §§ 16-9-460, 16-17-750, 17-13-170(B)(2), 16-13-480). Should governing statutory or decisional law or other circumstances change in the future, the Defendants reserve their right, and that of any other appropriate State official, to seek modification of the injunctions in the Final Judgment via a post-judgment motion under the Federal Rules of Civil

2:11-cv-02779-RMG Date Filed 03/04/14 Entry Number 201 Page 2 of 16
Procedure or through any other means permitted by law. 2. Defendants represent in the Joint Report that Section 7 and Section 6, excluding
subpart (B)(2), of Act 69 (S.C. Code §§ 23-3-1100, 17-13-170), will be interpreted as specified by the attached Opinion of the Office of the Attorney General of March 3, 2014, which states in sum that Section 6 "does not permit officers to prolong the original stop based upon the officer's inquiry into or based on a determination, suspicion, or admission concerning a person's immigration status," "Section 7 does not authorize prolonging the detention of a person in jail or prison simply to determine the person's immigration status," and "state law does not authorize state and local officials to arrest or maintain custody of an individual believed or determined to be unlawfully present for any purpose, even to transfer the individual to federal custody." Pursuant to this interpretation, Plaintiffs have agreed to voluntarily dismiss without prejudice their remaining claims as to Sections 6 and 7.
3. Each reference to a provision of Act 69 above shall be construed as a reference to any amendments to those provisions as of this date.
4. Plaintiffs' remaining claims are dismissed without prejudice. AND IT IS SO ORDERED. 

Charleston, South Carolina
~ Lf ,2014
2 


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ALAN WILSON ATfORNEY GENERAL

March 3, 2014

The Honorable Richard M. Gergel 
 Judge, United States District Court 
 P. O. Box 835 
 Charleston, SC 29402 

Dear Judge Gergel:
You have asked South Carolina's position regarding the proper interpretation of Sections 6 and 7 of Act No. 69 of 2011, now codified at S.C. Code Arm. § 17-13-170 and 23-3-1100 respectively. It is our opinion that, consistent with the language of Section 6 itself, as well as the requirement that the Section should, if possible, be interpreted in conformity with the Constitution, such Section must be construed to require that, once the purpose of a valid traffic stop has been fulfilled, the officer making the stop may not continue to detain the automobile and occupants thereof based upon the person's or persons' lawful presence in the United States (or suspected lack thereot). In other words, it is our opinion that Section 6, as properly interpreted pursuant to well-recognized principles of statutory interpretation, does not permit officers to prolong the original stop based upon the officer's inquiry into or based on a determination, suspicion, or admission concerning a person's immigration status. We reach a similar conclusion that Section 7 does not authorize prolonging the detention of a person in jailor prison simply to determine the person's immigration status. Likewise, state law does not authorize state and local officials to arrest or maintain custody of an individual believed or determined to be unlawfully present for any purpose, even to transfer the individual to federal custody.
Law!Analysis
Sections 6 and 7 of Act No. 69 of2011
Section 6 of Act No. 69 of 2011, is codified at S.C. Code Arm. Section 17-13-170 provides as follows:
§ 17-13-170. Law enforeement authorization to determine immigration status; reasonable suspicion; procedures; data collection on motor vehicle stops.

REMBERT C. DENNIS BUILDING • POST OFFICE Box 11549 • COLUMBIA, SC 29211-1549 • TELEPHONE 803-734-3970 • FAcsIMn.e 803-253.6283

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The Honorable Richard M. Gergel Page 2 March 3,2014
(A) If a law enforcement officer of this State or a political subdivision of this State lawfully stops, detains, investigates, or arrests a person for a criminal offense, and during the commission of the stop, detention, investigation, or arrest the officer has reasonable suspicion to believe that the person is unlawfully present in the United States, the officer shall make a reasonable effort, when practicable, to determine whether the person is lawfully present in the United States, unless the determination would hinder or obstruct an investigation.
(B)(1) If the person provides the officer with a valid form of any of the following picture identifications, the person is presumed to be lawfully present in the United States:
(a) a driver's license or picture identification issued by the South Carolina Department of Motor Vehicles;
(b) a driver's license or picture identification issued by another state;
(c) a picture identification issued by the United States, including a passport or military identification; or
(d) a tribal picture identification.
(2) It is unlawful for a person to display, cause or permit to be displayed, or have in the person's possession a false, fictitious, fraudulent, or counterfeit picture identification for the purpose of offering proof of the person's lawful presence in the United States. A person who violates the provisions ofthis item:
(a) for a first offense, is gUilty of a misdemeanor, and, upon conviction, must be fined not more than one hundred dollars or imprisoned not more than thirty days; and
(b) for a second offense or subsequent offenses, is guilty of a felony, and, upon conviction, must be fined not more than five hundred dollars or imprisoned not more than five years.
(3) If the person cannot provide the law enforcement officer with any of the forms of picture identification listed in this subsection, the person may stiH be presumed to be lawfully present in the United States, ifthe officer is able to otherwise verify that the person has been issued any ofthose forms of picture identification.
(4) If the person is operating a motor vehicle on a public highway of this State without a driver's license in violation of Section 56-1·20, the person may be arrested pursuant to Section 56-1-440.

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The Honorable Richard M. Gergel Page 3 March 3, 2014
(5) If the person meets the preswnption established pursuant to this subsection, the officer may not further stop, detain, investigate, or arrest the person based solely on the person's lawful presence in the United States.
(6) This section does not apply to a law enforcement officer who is acting as a school resource officer for any elementary or secondary school.
(C){l) If the person does not meet the presumption established pursuant to subsection (B), the officer shall make a reasonable effort, when practicable, to verify the person's lawful presence in the United States by at least one of the following methods:
(a) contacting the Illegal Immigration Enforcement Unit within the South Carolina Department of Public Safety;
(b) submitting an Immigration Alien Query through the International Justice and Public Safety Network;
(c) contacting the United States Immigration and Customs Enforcement's Law Enforcement Support Center; or
(d) contacting the United States Immigration and Customs Enforcement's local field office.
(2) The officer shall stop, detain, or investigate the person only for a reasonable amount of time as allowed by law. If, after making a reasonable effort, the officer is unable to verify the person's lawful presence in the United States by one of the methods described in item (I), the officer may not further stop. detain, investigate, or arrest the person based solely on the person's lawful presence in the United States.
(3) If the officer verifies that the person is lawfully present in the United States, the officer may not further stop. detain, investigate, or arrest the person based solely on the person's lawful presence in the United States.
(4) If the officer determines that the person is unlawfully present in the United States, the officer shall determine in cooperation with the Illegal Immigration Enforcement Unit within the South Carolina Department of Public Safety or the United States Immigration and Customs Enforcement. as applicable, whether the officer shall retain custody of the person for the underlying criminal offense for which the person was stopped, detained, investigated, or arrested, or whether the Illegal Immigration Enforcement Unit within the South Carolina Department of

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The Honomble Richard M. Gergel Page 4 March 3, 2014
Public Safety or the United States Immigration and Customs Enforcement, as applicable, shall assume custody of the person. The officer is not required by this section to retain custody of the person based solely on the person's lawful presence in the United States. The officer may securely transport the person to a federal facility in this State or to any other point of transfer into federal custody that is outside of the officer's jurisdiction. The officer shall obtain judicial authorization before securely transporting a person to a point of transfer that is outside of this State.
(D) Nothing in this section must be construed to require a law enforcement officer to stop, detain, investigate, arrest, or confine a person based solely on the person's lawful presence in the United States. A law enforcement officer may not attempt to make an independent judgment of a person's lawful presence in the United States. A law enforcement officer may not consider race, color, or national origin in implementing this section, except to the extent permitted by the United States or South Carolina Constitution. This section must be implemented in a manner that is consistent with federal laws regulating immigration, protecting the civil rights of all persons, and respecting the privileges and immunities of United States citizens.
(E) Except as provided by federal law, officers and agencies of this State and political subdivisions of this State may not be prohibited or restricted from sending, receiving, or maintaining information related to the immigration status of any person or exchanging that information with other federal, state, or local government entities for the following purposes:
(1) determining eligibiJity for any public benefit, service, or license provided by the federal government, this State, or a political subdivision of this State;
(2) verifying any claim of residence or domicile, if determination of residence or domicile is required under the laws of this State or a judicial order issued pursuant to a civil or criminal proceeding in this State;
(3) determining whether an alien is in compliance with the federal registration laws prescribed by Chapter 7, Title II of the federal Immigration and Nationality Act; or
(4) pursuant to 8 U.S.C. Section 1373 and 8 U.S.C. Section 1644.
(F) Nothing in this section must be construed to deny a person bond or from being released from confinement when such person is otherwise eligible for release. However, pursuant to the provisions of Section 17-15-30, a court setting bond

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The Honorable Richard M. Gergel PageS March 3, 2014
shall consider whether the person charged is an alien unlawfully present in the United States.
(G) No official, agency, or political subdivision of this State may limit or restrict the enforcement of this section or federal immigration laws.
(H) This section does not implement. authorize, or establish, and shall not be construed to implement. authorize. or establish the federal Real ID Act of2005.
(I) Any time a motor vehicle is stopped by a state or local law enforcement officer without a citation being issued or an arrest being made. and the officer contacts the Illegal Immigration Enforcement Unit within the Department of Public Safety pursuant to this section. the officer who initiated the stop must complete a data collection form designed by the Department of Public Safety. which must include information regarding the age, gender, and race or ethnicity of the driver of the vehicle. This information may be gathered and transmitted electronically under the supervision of the Department of Public Safety, which shall develop and maintain a database storing the information collected. The Department of Public Safety must promulgate regulations with regard to the collection and submission of the information gathered. In addition. the Department of Public Safety shall prepare a report to be posted on the Department of Public Safety's website regarding motor vehicle stops using the collected information. The General Assembly shall have the authority to withhold any state funds or federal pass­ through funds from any state or local law enforcement agency that fails to comply with the requirements of this subsection.
Section 7 of Act No. 69. codified as § 23-3-1100. further provides in relevant part:
§ 23-3-1100. Determination of lawfulness of prisoner's presence in United States; notification of Department of Homeland Security of presence of unlawful alien; housing and maintenance expenses; transportation.
(A) If a person is charged with a criminal offense and is confined for any period in a jail of the State. county. or municipality, or a jail operated by a regional jail authority. a reasonable effort shall be made to determine whether the confined person is an alien unlawfully present in the United States.
(B) If the prisoner is an alien, the keeper of the jailor other officer must make a reasonable effort to verify whether the prisoner has been lawfully admitted to the United States or if the prisoner is unlawfully present in the United States. Verification must be made within seventy-two hours through a query to the Law Enforcement Support Center (LESC) of the United States Department of Homeland Security or other office or agency designated for that purpose by the

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The Honorable Richard M. Gergel Page 6 March 3, 2014
United States Department of Homeland Security. If the prisoner is determined to be an alien unlawfully present in the United States, the keeper of the jailor other officer shall notify the United States Department of Homeland Security.
(C) Upon notification to the United States Department of Homeland Security pursuant to subsection (B), the keeper of the jail must account for daily expenses incurred for the housing, maintenance, transportation, and care of the prisoner who is an alien unlawfully present in the United States and must forward an invoice to the Department of Homeland Security for these expenses.
(D) The keeper of the jailor other officer may securely transport the prisoner who is an alien unlawfully present in the United States to a federal facility in this State or to any other point of transfer into federal custody that is outside of the keeper of the jailor other officer's jurisdiction. The keeper of the jailor other officer shall obtain judicial authorization before securely transporting a prisoner who is unlawfully present in the United States to a point of transfer that is outside ofthis State.
(E) If a prisoner who is an alien unlawfully present in the United States completes the prisoner's sentence of incarceration, the keeper of the jailor other officer shall notify the United States Department of Homeland Security and shall securely transport the prisoner to a federal facility in this State or to any other point of transfer into federal custody that is outside of the keeper of the jailor other officer's jurisdiction. The keeper of the jailor other officer shall obtain judicial authorization before securely transporting a prisoner who is unlawfully present in the United States to a point of transfer that is outside ofthis State.
(F) Nothing in this section shall be construed to deny a person bond or from being released from confinement when such person is otherwise eligible for release. However, pursuant to the provisions of Section 17-15-30, a court setting bond shall consider whether the person charged is an alien unlawfully present in the United States.
(0) The State Law Enforcement Division shall promulgate regulations to comply with the provisions of this section in accordance with the provisions of Chapter 23, Title 1.
(H) In enforcing the terms of this section, no state officer shall attempt to make an independent judgment of an alien's immigration status. State officials must verify an alien's status with the federal government in accordance with 8 U.S.C. Section 1373(c).

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The Honorable Richard M. Gergel Page 7 March 3, 2014
In construing Sections 6 and 7, as codified, a number of principles of statutory construction are applicable. "The cardinal rule of statutory construction is to ascertain and effectuate the intent of the legislature." Hodges v. Rainey, 341 S.C. 79, 86, 533 S.E.2d 578, 581 (2000). "[Courts] will give words their plain and ordinary meaning, and will not resort to a subtle or forced construction that would limit or expand the statute's operation." Harris v. Anderson County Sheriff's Office, 381 S.C. 357,362,673 S.E.2d 423,425 (2009). Statutes must be read as a whole, and sections which are part of the same general statutory scheme must be construed together and each one given effect, if reasonable. Stale v. Thomas, 372 S.C. 466, 468, 642 S.E.2d 724, 725 (2007). Moreover, a statute must, if possible, be construed consistently with the Constitution. State v. Peake, 353 S.C. 499, 579 S.E.2d 297 (2003). As our Supreme Court has consistently recognized, "[a] possible constitutional construction of a statute must prevail over an unconstitutional interpretation ...." State v. 192 Coin-Operated Video Game Machines, 338 S.C. 176, 196,525 S.E.2d 872, 873 (2000).
Fourth Amendment Baekground
Before addressing Sections 6 and 7 specifically, it is also helpful to provide some general background regarding the requirements of the Fourth Amendment of the United States Constitution in the context of investigative stops and seizures. The Fourth Amendment guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures...." U.S. Const., Amend. IV. We have previously advised that these constitutional guarantees apply both to citizens of the United States, as well as to undocumented immigrants. Op. S.c. Alty. Gen., May 26, 2010 (2010 WL 2320807) [citing Plyler v. Doe, 457 U.S. 202 (1982)]. The Fourth Amendment protects against unreasonable searches and seizures, including seizures that involve only a brief detention. Slate v. Pichardo, 367 S.C. 84, 623 S.E.2d 840, 847 [citing United Stales v. Mendenhall, 446 U.S. 544, 551 (1980)J. The temporary detention during an automobile stop, even if only for a brief and limited purpose, constitutes a seizure under the Fourth Amendment. Pichardo, 623 S.E.2d at 847 [citing Whren v. United Slates, 517 U.S. 806, 809-10 (1996)]. Generally, the decision to conduct a traffic stop is reasonable when the police have probable cause to believe a traffic violation has occurred. Id., 517 U.S. at 810. See also, Slate v. Provet, 405 S.C. 101,108,747 S.E.2d 453, 457 (2013) ["Violation of motor vehicle codes provides an officer reasonable suspicion to initiate a traffic stop."] The principles articulated by the Supreme Court in Terry v. OhiO, 392 U.S. 1,20 (1968), holding that a law enforcement officer may conduct an investigation "reasonably related in scope to the circumstances which justified the interference in the first place," generally govern such stops.
Further, upon making a valid traffic stop, an officer's actions must be "reasonably related in scope to the circumstances which justified the interference in the first place." Terry, 392 U.S. at 20. The detention "must be temporary and last no longer than necessary to effectuate the purpose of the stop." Florida v. Royer, 460 U.S. 491, 500 (1983); see also, Slate v. Morris, 395 S.C. 600, 720 S.E.2d 468 (Ct. App. 2011). Moreover, the officer should employ the least intrusive means reasonably available to investigate his or her suspicions in a short period of time.

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The Honorable Richard M. Gergel
PageS March 3, 2014
Royer, 460 U.S. at 500. With regard to duration of the stop, although the reasonable duration of a traffic stop "cannot be stated with mathematical precision," Branch, 537 F.3d at 336, a stop may become unlawful if it is prolonged beyond the time reasonably necessary to effectuate the stop. The proper inquiry is whether, during the detention, the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the individual(s). United Siaies v. Sharpe, 470 U.S. 675 (1985); State v. Woodruff, 344 S.C. 537, 544 S.E.2d 290 (Ct. App. 2001). If the time, manner or scope of the investigation exceeds the proper parameters, a constitutionally permissible stop may be transformed into one which violates the Fourth Amendment. ld.
The Fourth Circuit Court of Appeals has also recently summarized the permissibility of a traffic stop as follows:
[a]lthough the scope and duration components of Terry's second prong require highly fact-specific inquiries, the cases make possible some generalizations. When a police officer lawfully detains a vehicle, "police diligence involves requesting a driver's license and vehicle registration, running a computer check, and issuing a ticket." United States v. Digiovanni, 650 F.3d 498,507 (41b Cir. 2011). The officer may also, "in the interest of personal safety," request that the passengers in the vehicle provide identification, at least so long as the request does not prolong the seizure. United States v. Soriano-Jarquin, 492 F.3d 495,500-01 (41b Cir. 2007). Similarly, the officer may "inquir[e] into matters unrelated to the justification for the traffic stop," Arizona v. Johnson, 555 U.S. 323, 333, 129 S.Ct. 781, 172 L.Ed.2d 694 (2009), and may take other actions that do not constitute "searches" within the meaning of the Fourth Amendment, such as conducting a dog-sniff of the vehicle, [Rllnois v.l Caballes, 543 U.S. [405,] 409 [2005], but again only "so long as those inquiries [or other actions] do not measurably extend the duration of the stop." Johnson, 129 S.Ct. at 788.
United States v. Guljon-Ortiz, 660 F.3d 757, 764-65 (41b Cir. 2011).
Once the officer has completed the original purpose of the stop, the traffic stop should come to an end. Moreover, when the unrelated questions demonstrate that the officer has "definitely abandoned the prosecution of the traffic stop and embarked on another sustained course of investigation or where the unrelated questions constitute the bulk of the interaction between the police officer and the defendant, they unreasonably extend the scope and duration of the stop." Digiovanni, 650 F.3d at 508-09. In other words, if an individual is detained incident to a traffic stop, "when the purpose justifYing the stop is exceeded, the detention becomes illegal unless a reasonable suspicion of some other crime exists." United States v. Jackson, 280 F.3d 403,405 (4th Circuit 1998).

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Again, courts emphasize that the intrusiveness and duration of the stop must bear a reasonable relation to either the underlying traffic offense or other circumstances suggesting criminal activity that come lawfully to the officer's attention during the stop. Slale v. Pichardo, 367 S.C., supra at 98, 623 S.E.2d, supra at 848 [once the purpose of the traffic stop has been completed, an officer can lengthen the stop. or expand the scope of the stop. only with a reasonable, articulable suspicion of criminal activity needed to justify further detention]. See also lllinois v. Cabal/es, 543 U.S. 405, 407 (2005) ["... a seizure that is lawful at its inception can violate the Fourth Amendment if its manner of execution unreasonably infringes upon interests protected by the Constitution."]. Nonnally, an extension is pennitted only if (1) the encounter becomes consensual or (2) the officer has at least a reasonable, articulable suspicion of other criminal activity. Siale v. Morris, 395 S.C. 600, 720 S.E.2d 468, 471 (Ct. App. 2011); Pichardo, 623 S.E.2d at 848. The officer's suspicion. of course, must be based upon "particularized, objective facts which, taken together with rational inferences from those facts, reasonably warrant suspicion that a crime is being committed.n In detennining whether reasonable suspicion exists, the Court must consider the totality of the circumstances. In doing so, the court may consider any added meaning that certain conduct might suggest to experienced law enforcement officers in the field, trained in the observation of criminal activity. United Slales v. Corlez, 449 U.S. 411,417 (1981).
Arizona v. United States
With this general summary of Fourth Amendment case law in the context of investigative stops in mind, we turn now to the application of these principles to immigration enforcement by state and local officers in light of the Supreme Court's seminal decision in Arizona v. Uniled Siales, _ U.S. - ' 132 S.Ct. 2492, 183 L.Ed.2d 351 (2012), (hereinafter "Arizona"). There, the Court addressed a provision similar to § 17-13-170 (Section 6 of Act No. 690f2011). The Court declined to enjoin that Arizona provision, recognizing that the law was subject to two possible interpretations, one of which could be read as not subjecting the statute to federal preemption. According to the Supreme Court, "[a]t this stage, without the benefit of the definitive interpretation from the state courts, it would be inappropriate to assume [the provision] will be construed in a way that creates a conflict with federal law." 132 S.Ct. at 2510. However, while Arizona did not directly decide the issue, the Supreme Court noted that "[d]etaining individuals solely to verify their immigration status would raise constitutional concerns." Arizona, 132 S.Ct. at 2509. Referencing Arizona v. Johnson, supra and Illinois v. Cabal/es, supra, the Supreme Court in Arizona quoted Caballes with approval that "[a] seizure that is justified solely by the interest of issuing a warning ticket to the driver can become unlawful if it is prolonged beyond the time reasonably required to complete that mission." ld., quoting Cabel/es, 543 U.S. at 407. Moreover, in the Supreme Court's view, "it would disrupt the federal framework [regarding immigration policies] to put state officers in the position of holding aliens in custody for possible unlawful presence without federal direction and supervision." ld. However, according to the Court, if the Arizona provision "oruy requires state officers to conduct a status check during the course of an organized, lawful detention ...(,)" then "the provision likely would survive preemption - at least absent some showing that it has other consequences

2:11-cv-02779-RMG Date Filed 03/04/14 Entry Number 201 Page 12 of 16
The Honorable Richard M. Gergel Page 10 March 3, 2014
that are adverse to federal law and its objectives." fd. Thus, Arizona, cognizant of the constitutional concerns regarding prolonged detention, noted that "the state courts may conclude that, unless the person continues to be suspected ofsome crime for which he may be detained by state officers, it would not be reasonable to prolong the stop for the immigration inquiry." Id. (emphasis added).
Santos Case (4th Circuit)
Following the Arizona decision by the Supreme Court, the Fourth Circuit recently addressed the nature of an immigration status inquiry in Santos v. Frederick County Bd. of Com'rs., 725 F.3d 451 (4th Cir. 2013). There, the Court dealt with the issue of whether, once there was a "seizure" pursuant to the Fourth Amendment, deputies could then further detain and ultimately arrest an individual based upon the existence of a civil ICE removal warrant. The Fourth Circuit noted that state officers could assist "federal immigration efforts under 8 U.S.C. § 1357 (g)(1), which authorizes the Attorney General to enter into agreements with local law enforcement agencies that allow specific local officers to perform the functions of federal immigration officers." 725 F.3d at 463464, citing Arizona v. United States, 132 S.Ct. at 2506. Further, the Court proceeded to explain that other provisions of federal law allow state or local officers to assist in federal immigration enforcement:
Even in the absence of a written agreement, local law enforcement agencies may "cooperate with the Attorney General in the identification, apprehension, detention, or removal of aliens not lawfully present in the United States." § 1357 (g)(lO){B). When enforcing federal immigration law pursuant to Section 1357{g) local law officers are "subject to the direction and supervision of the Attorney General." § 1357 (g){3).
Other statutory provisions authorize local law enforcement officers to engage in immigration enforcement in more circumscribed situations. See, e.g. § 11 03 (a)(lO) (allowing the Attorney General to authorize local law enforcement officers to assist in immigration enforcement in the event of an 'actual or imminent mass influx of aliens arriving off the coast of the United States"); § 1252 c(a) (authorizing local law enforcement officers to arrest illegally present aliens who have "previously been convicted of a felony in the United States and deported or left the United States after such conviction); § 1324 (c) (allowing local law enforcement officers to arrest individuals for bringing in and harboring certain aliens).
Id. at 464.
The Fourth Circuit, in Sanlos, quoting Arizona" noted that" '[a]s a general rule, it is not a crime for a removable alien to remain present in the United States ....'" 725 F.3d at 464, quoting Arizona, 132 S.Ct. at 2505. Thus, as Sanlos recognized, the Supreme Court in Arizona

2:11-cv-02779-RMG Date Filed 03/04/14 Entry Number 201 Page 13 of 16
The Honorable Richard M. Gergel Page 11 March 3, 2014
concluded that" '[i]fthe police stop someone based on nothing more than possible removability, the usual predicate for arrest is absent.'" Santos, Id. Thus, as the Fourth Circuit correctly pointed out, Arizona held unconstitutional a provision that authorized a state officer to " 'without a warrant ... arrest a person if the officer has probable cause to believe ... [the person] has committed any public offense that makes [him] removable from the United States.' " Santos,Id. quoting Arizona, Id (which quoted Ariz.Rev.Stat Ann. § 13-3883(A)(5». In the view of the Supreme Court in Arizona such a provision "attempts to provide state officers even greater authority to arrest aliens on the basis of possible removability than Congress has given to trained federal immigration officers." Arizona, 132 S.Ct. at 2506. Thus, according to Santos, Arizona was dispositive of this question:
Lower federal courts have universally-and we think correctly-interpreted Arizona v. United States as precluding local law enforcement officers from arresting individuals solely based on known or suspected civil immigration violations. See Melendres v. Arpaio, 695 F.3d 990, 1001 (9th Cir.2012); Melendres v. Arpaio, No. PHX-CV-07-02513-GMS, 2013 WL 2297173, at *60­ 63 (D.Ariz. May 24; 2013); Buquer v. City o/Indianapolis, No. 1:11-cv-00708­ SEB, 2013 WL 1332158, at *10-11 (S.D.Ind. Mar. 28, 2013).
725 F.3d at 464-465. As the Santos Court reasoned:
A law enforcement officer may arrest a suspect only if the officer has " 'probable cause' to believe that the suspect is involved in criminal activity." Brown v. Texas, 443 U.S. 47, 51, 99 S.Ct. 2637,61 L.Ed.2d 357 (1979). Because civil immigration violations do not constitute crimes, suspicion or knowledge that an individual has committed a civil immigration violation, by itself, does not give a law enforcement officer probable cause to believe that the individual is engaged in criminal activity. Melendres, 695 F.3d at 1000-0 I. Additionally, allowing local law enforcement officers to arrest individuals for civil immigration violations would infringe on the substantial discretion Congress entrusted to the Attorney General in making removability decisions, which often require the weighing of complex diplomatic, political, and economic considerations. See Arizona v.
United States, 132 s.a. at 2506-07 .... Nonetheless, the Court's logic regarding
arrests readily extends to brief investigatory detentions. In particular, to justify an investigatory detention, a law enforcement officer must have reasonable, articulable suspicion that "criminal activity may be afoot." Terry, 392 U.S. at 30, 88 S.Ct. 1868. And because civil immigration violations are not criminal offenses, suspicion or knowledge that an individual has committed a civil immigration violation "alone does not give rise to an inference that criminal activity is 'afoot.' .. Melendres, 695 F.3d at 1001.
Therefore, we hold that, absent express direction or authorization by federal statute or federal officials, state and local law enforcement officers may

2:11-cv-02779-RMG Date Filed 03/04/14 Entry Number 201 Page 14 of 16
The Honorable Richard M. Gergel Page 12 March 3,2014
not detain or arrest an individual solely based on known or suspected civil violations of federal immigration law.
Like the district court, we conclude that the deputies seized Santos for purposes of the Fourth Amendment when Deputy Openshaw gestured for her to stay seated after dispatch infonned him of the outstanding civil ICE deportation warrant. See supra Part III.C. At that time, the deputies' only basis for detaining Santos was the civil ICE warrant. Yet as the defendants concede, the deputies were not authorized to engage in immigration law enforcement under the Sherifi's Office's Section 1357{g){1) agreement with the Attomey General. They thus lacked authority to enforce civil immigration law and violated Santos's rights under the Fourth Amendment when they seized her solely on the basis of the outstanding civil ICE warrant.
Id., at 464-465 (emphasis added). Thus, in Santos the Fourth Circuit concluded that " ... the deputies violated Santos' rights under the Fourth Amendment when they seized her after learning that she was the subject of a civil immigration warrant and absent ICE's express authorization or direction." Id. at 469.
Conclusion
In Arizona v. United States, supra, the United States Supreme Court addressed the validity of a provision similar to Section 6 of Act No. 69 of 20 11, now codified at § 17~13-170. The Court declined to enjoin that provision, recognizing that the law was subject to two possible interpretations, one of which could be read as not subjecting the Arizona statutory provision at issue to federal preemption. While the Supreme Court cautioned that "[d]etaining individuals solely to verify their immigration status would raise constitutional concerns," the Court further observed that such "constitutional concerns" could be avoided if statutes similar to §17~13-170 are construed so that "unless the person [stopped and detained for a valid reason other than immigration status] continues to be suspected of some crime for which he may be detained by state officers, it would not be reasonable to prolong the stop for the immigration inquiry." Arizona, 132 S.Ct. at 2509. According to the Arizona Court, if the provision "only requires state officers to conduct a status check during the course ofan organized 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." Id. (emphasis added). Moreover, in Santos, the Fourth Circuit also recently held that "local officers lack authority to arrest individuals suspected of civil immigration violations." 725 F.3d supra at
464.
It is our opinion that a court is likely to interpret § 17~ 13-170 (Section 6 of Act No. 69 of 2011) in the manner which Arizona recognized necessary to ensure avoidance of preemption concerns. The express language of § 17-13~170 (A) specifies that "during the commission of a valid stop" [such as for a traffic offense], an officer, upon "reasonable suspicion," must "make a

2:11-cv-02779-RMG Date Filed 03/04/14 Entry Number 201 Page 15 of 16
The Honorable Richard M. Gergel Page 13 March 3, 2014
reasonable effort, when practicable, to detennine whether the person [suspected of a criminal offense] is lawfully present in the United States ....,,1 Based upon the legislature's use of the language "during the commission of a valid stop" - indicating that the immigration inquiry must occur while the investigation ofthe original stop is ongoing, but not afterwards - in other words, we believe the General Assembly intended that individuals may not be stopped, detained, arrested or have their detention prolonged based upon their immigration status, and any immigration inquiry may not be initiated after the stop has ended.
In our opinion, this means that even if a state or local officer is able to verify that an individual is present in violation of federal immigration laws, § 17-13-170 does not authorize the officer to make an arrest or continue to detain the individual on that basis. Section 17-13-170 (C){4) emphasizes that even "[i]fthe officer determines that the person is unlawfully present in the United States ...," the officer "is not required by this section to retain custody of the person based solely on the person's lawful presence in the United States." Such a limitation is the overriding premise throughout the statute - i.e. a person may not be held or detained based upon his or her immigration status.
Thus, if an officer stops, detains or arrests a person for a valid non-immigration reason [e.g. reasonable suspicion or probable cause to believe that the individual has violated a state criminal law], during that time, the officer may ask the person questions related to his or her immigration status and may even communicate with the authorities (including federal authorities), specified in § 17-13-170, to inquire further regarding such immigration status. However, such questioning and inquiry regarding the person's or persons' immigration status may not prolong the original detention, even if the inquiry as to immigration status is still pending. Thus, once the original justification for the stop has been addressed, the individual must be released unless there is additional reasonable suspicion of a separate crime that would justify further detention. As stated, the express language used in § 17-13-170 (A) "during the commission of the stop" means that any prolonged detention in order to make or further an immigration inquiry is not authorized. Accordingly, the General Assembly clearly anticipated that § 17-13-170 must confonn to federal immigration law. See, § 17-13-170 (D).
Likewise, § 23-3-1100 does not authorize prolonging the detention of a person in jailor prison simply to detennine the person's immigration status. As § 23-3-1100 (F) expressly states, nothing in the Section "shall be construed to deny a person bond or from being released from confinement when such person is otherwise eligible for release." While § 23-3-1100 (E) might suggest otherwise, the literal language of § 23-3-1100 (F) is clear that additional confinement or
I It is important to note that the literal text of Section 6 requires that an investigation conducted pursuant thereto applies only to the person suspected of a criminal offense, and not to other individuals who may be present but are not suspected of any criminal activity. For example, officers may question a vehicle passenger about his or her immigration status pursuant to Section 6 only when that individual is also suspected of a criminal offense, even if the officer has reasonable suspicion that the individual may also be present without authorization.

2:11-cv-02779-RMG Date Filed 03/04/14 Entry Number 201 Page 16 of 16

The llonorable Richard M. Gergel
Page 14 March 3,2014
detention of an individuaL based upon one's immigration status, is not authorized.:! In short, § 23-3-1100 docs not authorize a state or local law enforcement officer to transfer an individual suspected of being unlawfully present, and who has completed his or her sentence, to a federal facility, as this would constitute a prolonging of the person's detention based upon immigration status.

Moreover, we do not believe the Legislature. in enacting Sections 6 and 7 of Act No. 69 of 2011, sanctioned such prolonged detention of those suspected of illegal presence even in the narrow circumstances of a suspected federal criminal violation or at of the request of ICE. Again, the words "during the commission of the stop," as we read them, particularly in conjunction with the requirement of § 17-13-170 (D) - that any stop must be consistent with federal immigration law and the United States Constitution - mandates that any detention not be prolonged based solely upon one's immigration status. Thus, as § 17-13-170 expressly directs, any inquiry concerning a person's or persons' immigration status must be conducted "during the commission of the [original] stop" and not beyond that lime and circumstance. Nothing herein should be construed to lmdennine general FOUlth Amendment law, as specified in Arizona, that an officer may continue to detain a person suspected of "some other crime for which he may be detained by state [or local J officers ......

We trust that this opinion is responsive to your questions conceming interpretation of Sections 6 and 7 of Act No. 69 of2011.

RDC/an

SincereYY.
i
d / /;.1i1'k{-/;-;;;t!'"(Fe': ~h.- . -
Robert D. Cook Solicitor General

2 Our opinion herein is confined to the terms 1.)1' Act No. 69 of 2011. We do not address the applicability of any federal statute or any detainer from federal authorities.

 
 2:11-cv-02779-RMG Date Filed 07/07/14 Entry Number 211 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION

Lowcountry Immigration Coalition, et a!, )

)

Plaintiffs,

)

)

v.

)

Nikki Haley, et al,

)

)

Defendants.

)

-------------)

Civil Action No. 2: 11-cv-02779

ORDER

~
c:::> ,c:-
rcL :-=
_..J

r-:
(
~ l

Pursuant to the Parties' Joint Motion to Resolve Attorneys' Fees and ~ts filed m
0
Lowcountry Immigration Coalition, el a!., v. Governor Haley, et al., Case No. 2:'fl -cv<~92779,

the Court ORDERS as follows:

1) The Joint Motion to Resolve Attorneys' Fee" ::mel C:o"t" i" <TRANTFn _

2) A JUDGMENT for attorneys' fees and costs against the State of South Carolina in

Case No. 2: 11-cv-02779, is entered in the amount of $98,000. This JUDGMENT is

against the State of South Carolina only and not against the named Defendants who

are state actors sued in their official capacity.

3) Interest on the JUDGMENT at the rate of 1% per month will begin accruing on

February 15, 2015 until no later than July 31, 2015. Should the JUDGEMENT be

paid to Plaintiffs' Counsel on or before December I, 2015, then this 1% interest is

waived and none shall be paid. Interest will accrue after July 31, 2015 at the normal

post-judgment rate specified by law unless the JUDGMENT is paid by August 16,

2015. Plaintiffs' CounseL on behalf of Plaintiffs. are ORDERED to execute

appropriate releases and file a Satisfaction of Judgment with the Court after receiving

payment in full. The releases shall be binding upon the Plaintiffs.

1

2:11-cv-02779-RMG Date Filed 07/07/14 Entry Number 211 Page 2 of 2 AND IT IS SO ORDERED.

Charleston, South Carolina
July 7, 2014

Richard Mark Gergel United States District Judge

2

 
 Case: 2:11-cv-2779 As of: 02/13/2013 02:39 PM EST 1 of 56

APPEAL,STAYED
U.S. District Court District of South Carolina (Charleston) CIVIL DOCKET FOR CASE #: 2:11−cv−02779−RMG

Lowcountry Immigration Coalition et al v. Haley et al Assigned to: Honorable Richard M Gergel related Case: 2:11−cv−02958−RMG
Case in other court: 4CCA, 12−01243
4CCA, 12−02533 Cause: 28:1331 Fed. Question: Civil Rights Violation
Plaintiff

Date Filed: 10/12/2011 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Lowcountry Immigration Coalition

represented by Christina Iturralde Southern Poverty Law Center (GA) 233 Peachtree Street NE Suite 2150 Atlanta, GA 30066 404−521−6700 Email: christina.iturralde@splcenter.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Susan King Dunn ACLU SC National Office PO Box 20998 Charleston, SC 29403 843−720−1425 Fax: 843−720−1428 Email: sdunn@aclusouthcarolina.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alice Fountain Paylor Rosen Rosen and Hagood PO Box 893 Charleston, SC 29402 843−577−6726 Fax: 843−724−8036 Email: apaylor@rrhlawfirm.com ATTORNEY TO BE NOTICED

Alvaro M Huerta National Immigration Law Center 3435 Whilshire Boulevard Suite 2850 Los Angeles, CA 90010 213−639−3900 Email: huerta@nilc.org PRO HAC VICE ATTORNEY TO BE NOTICED

Amy R Pedersen Mexican American Legal Defense and Educational Fund MALDEF 1016 16th Street NW Unit 100 Washington, DC 20036 202−293−2828 Email: apedersen@maldef.org PRO HAC VICE

Case: 2:11-cv-2779 As of: 02/13/2013 02:39 PM EST 2 of 56
ATTORNEY TO BE NOTICED
Andre Ivan Segura American Civil Liberties Union Foundation 125 Broad Street 18th Floor New York, NY 10004 212−549−2620 Email: asegura@aclu.org PRO HAC VICE ATTORNEY TO BE NOTICED
Cecillia D Wang ACLU Immigrants' Rights Project (CA) 39 Drumm Street San Francisco, CA 94111 415−343−0775 Email: cwang@aclu.org PRO HAC VICE ATTORNEY TO BE NOTICED
Courtney A Bowie 125 Broad Street 18th Floor New York, NY 10004 212−549−2628 Email: cbowie@aclu.org PRO HAC VICE ATTORNEY TO BE NOTICED
Daniel Werner Southern Poverty Law Center (GA) 233 Peachtree Street NE Suite 2150 Atlanta, GA 30303 404−521−6700 Email: daniel.werner@splcenter.org PRO HAC VICE ATTORNEY TO BE NOTICED
Diana Sagorika Sen Latino Justice PRLDEF 99 Hudson Street 14th Floor New York, NY 10013 212−219−3360 Email: dsen@latinojustice.org TERMINATED: 12/27/2012 PRO HAC VICE ATTORNEY TO BE NOTICED
Ghita R Schwarz Latino Justice PRLDEF 99 Hudson Street 14th Floor New York, NY 10013 212−219−3360 Email: gschwarz@latinojustice.org PRO HAC VICE ATTORNEY TO BE NOTICED
John Foster Symes Maer Latino Justice PRLDEF 99 Hudson Street

Case: 2:11-cv-2779 As of: 02/13/2013 02:39 PM EST 3 of 56
14th Floor New York, NY 10013 212−219−3360 Email: dsen@latinojustice.org PRO HAC VICE ATTORNEY TO BE NOTICED
Justin Bryan Cox American Civil Liberties Union Foundation 230 Peachtree Street NW Suite 1440 Atlanta, GA 30303 404−523−2721 Email: jcox@aclu.org PRO HAC VICE ATTORNEY TO BE NOTICED
Karen C Tumlin National Immigration Law Center 3435 Whilshire Boulevard Suite 2850 Los Angeles, CA 90010 213−639−3900 Email: tumlin@nilc.org PRO HAC VICE ATTORNEY TO BE NOTICED
Katherine Desormeau ACLU Immigrants' Rights Project (CA) 39 Drumm Street San Francisco, CA 94111 415−343−0778 Email: kdesormeau@aclu.org PRO HAC VICE ATTORNEY TO BE NOTICED
Kenneth John Sugarman ACLU Immigrants' Rights Project (CA) 39 Drumm Street San Francisco, CA 94111 415−343−0778 Email: irp_ks@aclu.org TERMINATED: 05/03/2012 PRO HAC VICE
Linton Joaquin National Immigration Law Center 3435 Whilshire Boulevard Suite 2850 Los Angeles, CA 90010 213−639−3900 Email: joaquin@nilc.org PRO HAC VICE ATTORNEY TO BE NOTICED
Mary Catherine Bauer Southern Poverty Law Center (AL) 400 Washington Avenue Montgomery, AL 36104 334−956−8200 Email: mary.bauer@splcenter.org PRO HAC VICE ATTORNEY TO BE NOTICED

Case: 2:11-cv-2779 As of: 02/13/2013 02:39 PM EST 4 of 56
Melissa Keaney National Immigration Law Center 3435 Whilshire Boulevard Suite 2850 Los Angeles, CA 90010 213−639−3900 Email: keaney@nilc.org PRO HAC VICE ATTORNEY TO BE NOTICED
Michelle Rose Lapointe Southern Poverty Law Center (GA) 233 Peachtree Street NE Suite 2150 Atlanta, GA 30303 404−521−6700 Email: michelle.lapointe@splcenter.org PRO HAC VICE ATTORNEY TO BE NOTICED
Naomi Ruth Tsu Southern Poverty Law Center (GA) 233 Peachtree Street NE Suite 2150 Atlanta, GA 30303 404−521−6700 Email: naomi.tsu@splcenter.org PRO HAC VICE ATTORNEY TO BE NOTICED
Nora Preciado National Immigration Law Center 3435 Whilshire Boulevard Suite 2850 Los Angeles, CA 90010 213−639−3900 Email: preciado@nilc.org PRO HAC VICE ATTORNEY TO BE NOTICED
Omar Cassim Jadwat American Civil Liberties Union Foundation 125 Broad Street 18th Floor New York, NY 10004 212−549−2620 Email: ojadwat@aclu.org PRO HAC VICE ATTORNEY TO BE NOTICED
Reginald I Lloyd Lloyd Law Firm 39 Ole Still Lane Elgin, SC 29045 803−413−4840 Email: lloydlaw3@gmail.com ATTORNEY TO BE NOTICED
Samuel Jacob Brooke Southern Poverty Law Center (AL) 400 Washington Avenue Montgomery, AL 36104 334−956−8200 Email: samuel.brooke@splcenter.org

Case: 2:11-cv-2779 As of: 02/13/2013 02:39 PM EST 5 of 56

Plaintiff Mujeres De Triunfo

PRO HAC VICE ATTORNEY TO BE NOTICED
Steve Suggs Janet Jenner and Suggs 500 Taylor Street Suite 301 Columbia, SC 29201 803−726−0050 Fax: 803−727−1059 Email: ssuggs@scjustice.org ATTORNEY TO BE NOTICED
Victor Viramontes Mexican American Legal Defense and Educational Fund MALDEF 634 South Spring Street 11th Floor Los Angeles, CA 90014 213−629−2512 Email: vviramontes@maldef.org PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Christina Iturralde (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Susan King Dunn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alice Fountain Paylor (See above for address) ATTORNEY TO BE NOTICED
Alvaro M Huerta (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Amy R Pedersen (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Andre Ivan Segura (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Cecillia D Wang (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Courtney A Bowie (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Case: 2:11-cv-2779 As of: 02/13/2013 02:39 PM EST 6 of 56
Daniel Werner (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Diana Sagorika Sen (See above for address) TERMINATED: 12/27/2012 PRO HAC VICE ATTORNEY TO BE NOTICED
Ghita R Schwarz (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
John Foster Symes Maer (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Justin Bryan Cox (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Karen C Tumlin (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Katherine Desormeau (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kenneth John Sugarman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Linton Joaquin (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Mary Catherine Bauer (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Melissa Keaney (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Michelle Rose Lapointe (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Naomi Ruth Tsu (See above for address) PRO HAC VICE

Case: 2:11-cv-2779 As of: 02/13/2013 02:39 PM EST 7 of 56

Plaintiff Nuevos Caminos

ATTORNEY TO BE NOTICED
Nora Preciado (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Omar Cassim Jadwat (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Reginald I Lloyd (See above for address) ATTORNEY TO BE NOTICED
Samuel Jacob Brooke (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Steve Suggs (See above for address) ATTORNEY TO BE NOTICED
Victor Viramontes (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Christina Iturralde (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Susan King Dunn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alice Fountain Paylor (See above for address) ATTORNEY TO BE NOTICED
Alvaro M Huerta (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Amy R Pedersen (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Andre Ivan Segura (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Cecillia D Wang (See above for address) PRO HAC VICE

Case: 2:11-cv-2779 As of: 02/13/2013 02:39 PM EST 8 of 56
ATTORNEY TO BE NOTICED
Courtney A Bowie (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Daniel Werner (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Diana Sagorika Sen (See above for address) TERMINATED: 12/27/2012 PRO HAC VICE ATTORNEY TO BE NOTICED
Ghita R Schwarz (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
John Foster Symes Maer (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Justin Bryan Cox (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Karen C Tumlin (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Katherine Desormeau (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kenneth John Sugarman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Linton Joaquin (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Mary Catherine Bauer (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Melissa Keaney (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Michelle Rose Lapointe (See above for address)

Case: 2:11-cv-2779 As of: 02/13/2013 02:39 PM EST 9 of 56

Plaintiff
South Carolina Victim Assistance Network

PRO HAC VICE ATTORNEY TO BE NOTICED
Naomi Ruth Tsu (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Nora Preciado (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Omar Cassim Jadwat (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Reginald I Lloyd (See above for address) ATTORNEY TO BE NOTICED
Samuel Jacob Brooke (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Steve Suggs (See above for address) ATTORNEY TO BE NOTICED
Victor Viramontes (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Christina Iturralde (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Susan King Dunn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alice Fountain Paylor (See above for address) ATTORNEY TO BE NOTICED
Alvaro M Huerta (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Amy R Pedersen (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Andre Ivan Segura (See above for address)

Case: 2:11-cv-2779 As of: 02/13/2013 02:39 PM EST 10 of 56
PRO HAC VICE ATTORNEY TO BE NOTICED
Cecillia D Wang (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Courtney A Bowie (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Daniel Werner (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Diana Sagorika Sen (See above for address) TERMINATED: 12/27/2012 PRO HAC VICE ATTORNEY TO BE NOTICED
Ghita R Schwarz (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
John Foster Symes Maer (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Justin Bryan Cox (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Karen C Tumlin (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Katherine Desormeau (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kenneth John Sugarman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Linton Joaquin (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Mary Catherine Bauer (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Melissa Keaney

Case: 2:11-cv-2779 As of: 02/13/2013 02:39 PM EST 11 of 56

Plaintiff
South Carolina Hispanic Leadership Council

(See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Michelle Rose Lapointe (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Naomi Ruth Tsu (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Nora Preciado (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Omar Cassim Jadwat (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Reginald I Lloyd (See above for address) ATTORNEY TO BE NOTICED
Samuel Jacob Brooke (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Steve Suggs (See above for address) ATTORNEY TO BE NOTICED
Victor Viramontes (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Christina Iturralde (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Susan King Dunn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alice Fountain Paylor (See above for address) ATTORNEY TO BE NOTICED
Alvaro M Huerta (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Amy R Pedersen

Case: 2:11-cv-2779 As of: 02/13/2013 02:39 PM EST 12 of 56
(See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Andre Ivan Segura (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Cecillia D Wang (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Courtney A Bowie (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Daniel Werner (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Diana Sagorika Sen (See above for address) TERMINATED: 12/27/2012 PRO HAC VICE ATTORNEY TO BE NOTICED
Ghita R Schwarz (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
John Foster Symes Maer (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Justin Bryan Cox (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Karen C Tumlin (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Katherine Desormeau (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kenneth John Sugarman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Linton Joaquin (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Case: 2:11-cv-2779 As of: 02/13/2013 02:39 PM EST 13 of 56

Plaintiff Service Employees International Union

Mary Catherine Bauer (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Melissa Keaney (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Michelle Rose Lapointe (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Naomi Ruth Tsu (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Nora Preciado (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Omar Cassim Jadwat (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Reginald I Lloyd (See above for address) ATTORNEY TO BE NOTICED
Samuel Jacob Brooke (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Victor Viramontes (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Christina Iturralde (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Susan King Dunn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alice Fountain Paylor (See above for address) ATTORNEY TO BE NOTICED
Alvaro M Huerta (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Case: 2:11-cv-2779 As of: 02/13/2013 02:39 PM EST 14 of 56
Amy R Pedersen (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Andre Ivan Segura (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Cecillia D Wang (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Courtney A Bowie (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Daniel Werner (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Diana Sagorika Sen (See above for address) TERMINATED: 12/27/2012 PRO HAC VICE ATTORNEY TO BE NOTICED
Ghita R Schwarz (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
John Foster Symes Maer (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Justin Bryan Cox (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Karen C Tumlin (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Katherine Desormeau (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kenneth John Sugarman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Linton Joaquin (See above for address) PRO HAC VICE

Case: 2:11-cv-2779 As of: 02/13/2013 02:39 PM EST 15 of 56

Plaintiff
Southern Regional Joint Board of Workers United

ATTORNEY TO BE NOTICED
Mary Catherine Bauer (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Melissa Keaney (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Michelle Rose Lapointe (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Naomi Ruth Tsu (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Nora Preciado (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Omar Cassim Jadwat (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Reginald I Lloyd (See above for address) ATTORNEY TO BE NOTICED
Samuel Jacob Brooke (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Victor Viramontes (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Christina Iturralde (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Susan King Dunn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alice Fountain Paylor (See above for address) ATTORNEY TO BE NOTICED
Alvaro M Huerta (See above for address)

Case: 2:11-cv-2779 As of: 02/13/2013 02:39 PM EST 16 of 56
PRO HAC VICE ATTORNEY TO BE NOTICED
Amy R Pedersen (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Andre Ivan Segura (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Cecillia D Wang (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Courtney A Bowie (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Daniel Werner (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Diana Sagorika Sen (See above for address) TERMINATED: 12/27/2012 PRO HAC VICE ATTORNEY TO BE NOTICED
Ghita R Schwarz (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
John Foster Symes Maer (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Justin Bryan Cox (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Karen C Tumlin (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Katherine Desormeau (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kenneth John Sugarman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Linton Joaquin

Case: 2:11-cv-2779 As of: 02/13/2013 02:39 PM EST 17 of 56

Plaintiff
Jane Doe No 1

(See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Mary Catherine Bauer (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Melissa Keaney (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Michelle Rose Lapointe (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Naomi Ruth Tsu (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Nora Preciado (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Omar Cassim Jadwat (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Reginald I Lloyd (See above for address) ATTORNEY TO BE NOTICED
Samuel Jacob Brooke (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Victor Viramontes (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Christina Iturralde (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Susan King Dunn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alice Fountain Paylor (See above for address) ATTORNEY TO BE NOTICED

Case: 2:11-cv-2779 As of: 02/13/2013 02:39 PM EST 18 of 56
Alvaro M Huerta (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Amy R Pedersen (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Andre Ivan Segura (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Cecillia D Wang (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Courtney A Bowie (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Daniel Werner (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Diana Sagorika Sen (See above for address) TERMINATED: 12/27/2012 PRO HAC VICE ATTORNEY TO BE NOTICED
Ghita R Schwarz (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
John Foster Symes Maer (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Justin Bryan Cox (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Karen C Tumlin (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Katherine Desormeau (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kenneth John Sugarman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Case: 2:11-cv-2779 As of: 02/13/2013 02:39 PM EST 19 of 56

Plaintiff
Jane Doe No 2

Linton Joaquin (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Mary Catherine Bauer (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Melissa Keaney (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Michelle Rose Lapointe (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Naomi Ruth Tsu (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Nora Preciado (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Omar Cassim Jadwat (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Reginald I Lloyd (See above for address) ATTORNEY TO BE NOTICED
Samuel Jacob Brooke (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Victor Viramontes (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Christina Iturralde (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Susan King Dunn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alice Fountain Paylor (See above for address)

Case: 2:11-cv-2779 As of: 02/13/2013 02:39 PM EST 20 of 56
ATTORNEY TO BE NOTICED
Alvaro M Huerta (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Amy R Pedersen (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Andre Ivan Segura (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Cecillia D Wang (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Courtney A Bowie (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Daniel Werner (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Diana Sagorika Sen (See above for address) TERMINATED: 12/27/2012 PRO HAC VICE ATTORNEY TO BE NOTICED
Ghita R Schwarz (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
John Foster Symes Maer (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Justin Bryan Cox (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Karen C Tumlin (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Katherine Desormeau (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kenneth John Sugarman (See above for address)

Case: 2:11-cv-2779 As of: 02/13/2013 02:39 PM EST 21 of 56

Plaintiff
John Doe No 1

PRO HAC VICE ATTORNEY TO BE NOTICED
Linton Joaquin (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Mary Catherine Bauer (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Melissa Keaney (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Michelle Rose Lapointe (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Naomi Ruth Tsu (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Nora Preciado (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Omar Cassim Jadwat (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Reginald I Lloyd (See above for address) ATTORNEY TO BE NOTICED
Samuel Jacob Brooke (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Victor Viramontes (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Christina Iturralde (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Susan King Dunn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:11-cv-2779 As of: 02/13/2013 02:39 PM EST 22 of 56
Alice Fountain Paylor (See above for address) ATTORNEY TO BE NOTICED
Alvaro M Huerta (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Amy R Pedersen (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Andre Ivan Segura (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Cecillia D Wang (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Courtney A Bowie (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Daniel Werner (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Diana Sagorika Sen (See above for address) TERMINATED: 12/27/2012 PRO HAC VICE ATTORNEY TO BE NOTICED
Ghita R Schwarz (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
John Foster Symes Maer (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Justin Bryan Cox (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Karen C Tumlin (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Katherine Desormeau (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Case: 2:11-cv-2779 As of: 02/13/2013 02:39 PM EST 23 of 56

Plaintiff Yajaira Benet−Smith

Kenneth John Sugarman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Linton Joaquin (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Mary Catherine Bauer (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Melissa Keaney (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Michelle Rose Lapointe (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Naomi Ruth Tsu (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Nora Preciado (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Omar Cassim Jadwat (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Reginald I Lloyd (See above for address) ATTORNEY TO BE NOTICED
Samuel Jacob Brooke (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Victor Viramontes (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Christina Iturralde (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Susan King Dunn (See above for address) LEAD ATTORNEY

Case: 2:11-cv-2779 As of: 02/13/2013 02:39 PM EST 24 of 56
ATTORNEY TO BE NOTICED
Alice Fountain Paylor (See above for address) ATTORNEY TO BE NOTICED
Alvaro M Huerta (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Amy R Pedersen (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Andre Ivan Segura (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Cecillia D Wang (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Courtney A Bowie (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Daniel Werner (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Diana Sagorika Sen (See above for address) TERMINATED: 12/27/2012 PRO HAC VICE ATTORNEY TO BE NOTICED
Ghita R Schwarz (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
John Foster Symes Maer (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Justin Bryan Cox (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Karen C Tumlin (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Katherine Desormeau (See above for address) PRO HAC VICE

Case: 2:11-cv-2779 As of: 02/13/2013 02:39 PM EST 25 of 56

Plaintiff Keller Barron

ATTORNEY TO BE NOTICED
Kenneth John Sugarman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Linton Joaquin (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Mary Catherine Bauer (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Melissa Keaney (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Michelle Rose Lapointe (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Naomi Ruth Tsu (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Nora Preciado (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Omar Cassim Jadwat (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Reginald I Lloyd (See above for address) ATTORNEY TO BE NOTICED
Samuel Jacob Brooke (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Victor Viramontes (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Christina Iturralde (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Susan King Dunn

Case: 2:11-cv-2779 As of: 02/13/2013 02:39 PM EST 26 of 56
(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alice Fountain Paylor (See above for address) ATTORNEY TO BE NOTICED
Alvaro M Huerta (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Amy R Pedersen (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Andre Ivan Segura (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Cecillia D Wang (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Courtney A Bowie (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Daniel Werner (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Diana Sagorika Sen (See above for address) TERMINATED: 12/27/2012 PRO HAC VICE ATTORNEY TO BE NOTICED
Ghita R Schwarz (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
John Foster Symes Maer (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Justin Bryan Cox (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Karen C Tumlin (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Katherine Desormeau

Case: 2:11-cv-2779 As of: 02/13/2013 02:39 PM EST 27 of 56

Plaintiff John McKenzie

(See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kenneth John Sugarman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Linton Joaquin (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Mary Catherine Bauer (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Melissa Keaney (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Michelle Rose Lapointe (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Naomi Ruth Tsu (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Nora Preciado (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Omar Cassim Jadwat (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Reginald I Lloyd (See above for address) ATTORNEY TO BE NOTICED
Samuel Jacob Brooke (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Victor Viramontes (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Christina Iturralde (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Case: 2:11-cv-2779 As of: 02/13/2013 02:39 PM EST 28 of 56
Susan King Dunn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alice Fountain Paylor (See above for address) ATTORNEY TO BE NOTICED
Alvaro M Huerta (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Amy R Pedersen (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Andre Ivan Segura (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Cecillia D Wang (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Courtney A Bowie (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Daniel Werner (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Diana Sagorika Sen (See above for address) TERMINATED: 12/27/2012 PRO HAC VICE ATTORNEY TO BE NOTICED
Ghita R Schwarz (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
John Foster Symes Maer (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Justin Bryan Cox (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Karen C Tumlin (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Case: 2:11-cv-2779 As of: 02/13/2013 02:39 PM EST 29 of 56

Plaintiff Sandra Jones

Katherine Desormeau (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kenneth John Sugarman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Linton Joaquin (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Mary Catherine Bauer (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Melissa Keaney (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Michelle Rose Lapointe (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Naomi Ruth Tsu (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Nora Preciado (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Omar Cassim Jadwat (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Reginald I Lloyd (See above for address) ATTORNEY TO BE NOTICED
Samuel Jacob Brooke (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Victor Viramontes (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Christina Iturralde (See above for address) LEAD ATTORNEY

Case: 2:11-cv-2779 As of: 02/13/2013 02:39 PM EST 30 of 56
PRO HAC VICE ATTORNEY TO BE NOTICED
Susan King Dunn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alice Fountain Paylor (See above for address) ATTORNEY TO BE NOTICED
Alvaro M Huerta (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Amy R Pedersen (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Andre Ivan Segura (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Cecillia D Wang (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Courtney A Bowie (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Daniel Werner (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Diana Sagorika Sen (See above for address) TERMINATED: 12/27/2012 PRO HAC VICE ATTORNEY TO BE NOTICED
Ghita R Schwarz (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
John Foster Symes Maer (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Justin Bryan Cox (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Karen C Tumlin (See above for address)

Case: 2:11-cv-2779 As of: 02/13/2013 02:39 PM EST 31 of 56
PRO HAC VICE ATTORNEY TO BE NOTICED
Katherine Desormeau (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kenneth John Sugarman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Linton Joaquin (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Mary Catherine Bauer (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Melissa Keaney (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Michelle Rose Lapointe (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Naomi Ruth Tsu (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Nora Preciado (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Omar Cassim Jadwat (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Reginald I Lloyd (See above for address) ATTORNEY TO BE NOTICED
Samuel Jacob Brooke (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Victor Viramontes (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
V.

Case: 2:11-cv-2779 As of: 02/13/2013 02:39 PM EST 32 of 56

Defendant Nikki Haley in her official capacity as Governor of the State of South Carolina
Defendant Alan Wilson in his official capacity as Attorney General of the State of South Carolina
Defendant James Alton Cannon in his official capacity as the Sheriff of Charleston County

represented by James Emory Smith , Jr SC Attorney General's Office PO Box 11549 Columbia, SC 29211 803−734−3970 Fax: 803−734−3677 Email: agesmith@ag.state.sc.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Frances G Jowers SC Attorney General's Office PO Box 11549 Columbia, SC 29211 803−734−3996 Fax: 803−734−3677 Email: mfjowers@scag.gov ATTORNEY TO BE NOTICED
Robert Dewayne Cook SC Attorney General's Office PO Box 11549 Columbia, SC 29211 803−734−3736 Fax: 803−734−3524 Email: agrcook@ag.state.sc.us ATTORNEY TO BE NOTICED
represented by James Emory Smith , Jr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Frances G Jowers (See above for address) ATTORNEY TO BE NOTICED
Robert Dewayne Cook (See above for address) ATTORNEY TO BE NOTICED
represented by Sandra Jane Senn Senn Legal PO Box 12279 Charleston, SC 29422 843−556−4045 Fax: 843−556−4046 Email: Sandy@sennlegal.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robin Lilley Jackson Senn Legal PO Box 12279 Charleston, SC 29422 843−556−4045 Fax: 843−556−4046 Email: Robin@sennlegal.com ATTORNEY TO BE NOTICED

Case: 2:11-cv-2779 As of: 02/13/2013 02:39 PM EST 33 of 56

Defendant Scarlett A Wilson ih her official capacity as Solicitor of the Ninth Judicial Circuit
V. Interested Party United States of America
Amicus United Mexican States

represented by James Emory Smith , Jr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sandra Jane Senn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Dewayne Cook (See above for address) ATTORNEY TO BE NOTICED
represented by Barbara Murcier Bowens US Attorneys Office 1441 Main Street Suite 500 Columbia, SC 29201 803−929−3000 Fax: 803−252−2759 Email: barbara.bowens@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
William Scott Simpson US Department of Justice PO Box 883 Civil Division Federal Programs Branch Washington, DC 20044 202−514−3495 Email: scott.simpson@usdoj.gov ATTORNEY TO BE NOTICED
represented by Christopher W Adams Christopher W Adams Law Office PO Box 561 Charleston, SC 29402 843−577−2153 Email: adams.c@comcast.net LEAD ATTORNEY ATTORNEY TO BE NOTICED
Carla Gorniak Clifford Chance 31 W 52nd Street New York, NY 10019 212−787−8000 Email: carla.gorniak@cliffordchance.com PRO HAC VICE ATTORNEY TO BE NOTICED
Christopher R Clark Dewey and LeBoeuf 1301 Avenue of the Americas New York, NY 10019

Case: 2:11-cv-2779 As of: 02/13/2013 02:39 PM EST 34 of 56

Amicus Government of Argentina
Amicus Government of Bolivia
Amicus Government of Brazil

212−259−7163 Email: crclark@dl.com PRO HAC VICE ATTORNEY TO BE NOTICED
Henry L Solano Dewey and LeBoeuf 1301 Avenue of the Americas New York, NY 10019 212−259−8030 Email: hsolano@dl.com PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Christopher W Adams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Carla Gorniak (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Christopher R Clark (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Henry L Solano (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Christopher W Adams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Carla Gorniak (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Christopher R Clark (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Henry L Solano (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Christopher W Adams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Carla Gorniak

Case: 2:11-cv-2779 As of: 02/13/2013 02:39 PM EST 35 of 56

Amicus Government of Chile
Amicus Government of Colombia
Amicus Government of Costa Rica

(See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Christopher R Clark (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Henry L Solano (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Christopher W Adams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Carla Gorniak (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Christopher R Clark (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Henry L Solano (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Christopher W Adams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Carla Gorniak (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Christopher R Clark (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Henry L Solano (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Christopher W Adams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Carla Gorniak

Case: 2:11-cv-2779 As of: 02/13/2013 02:39 PM EST 36 of 56

Amicus Government of Dominican Republic
Amicus Government of Ecuador
Amicus Government of El Salvador

(See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Christopher R Clark (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Henry L Solano (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Christopher W Adams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Carla Gorniak (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Christopher R Clark (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Henry L Solano (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Christopher W Adams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Carla Gorniak (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Christopher R Clark (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Henry L Solano (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Christopher W Adams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Carla Gorniak

Case: 2:11-cv-2779 As of: 02/13/2013 02:39 PM EST 37 of 56

Amicus Government of Guatemala
Amicus Government of Honduras
Amicus Government of Nicaragua

(See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Christopher R Clark (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Henry L Solano (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Christopher W Adams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Carla Gorniak (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Christopher R Clark (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Henry L Solano (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Christopher W Adams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Carla Gorniak (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Christopher R Clark (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Henry L Solano (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Christopher W Adams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Carla Gorniak

Case: 2:11-cv-2779 As of: 02/13/2013 02:39 PM EST 38 of 56

Amicus Government of Paraguay
Amicus Government of Peru
Amicus Government of Uruguay

(See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Christopher R Clark (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Henry L Solano (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Christopher W Adams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Carla Gorniak (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Christopher R Clark (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Henry L Solano (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Christopher W Adams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Carla Gorniak (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Christopher R Clark (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Henry L Solano (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Christopher W Adams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Carla Gorniak

Case: 2:11-cv-2779 As of: 02/13/2013 02:39 PM EST 39 of 56

Amicus American Immigration Lawyers Association
Amicus Asian American Justice Center, The and other civil rights amici identified

(See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Christopher R Clark (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Henry L Solano (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Amanda Bethea Keaveny Amanda Bethea Keaveny Law Office PO Box 141 Charleston, SC 29402 843−722−1091 Fax: 843−722−2288 Email: amandakeaveny@bellsouth.net LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andres C Benach Duane Morris−DC 505 Ninth Street NW Suite 1000 Washington, DC 20004 202−776−7814 Email: acbenach@duanemorris.com PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Geraldine Sumter Ferguson Stein Wallas Adkins Gresham and Sumter PO Box 36486 Charlotte, NC 28202 704−375−8461 Fax: 704−334−5654 Email: gsumter@fergusonstein.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ranadeb Robert Mukherjee Covington and Burling PO Box 7566 Washington, DC 20044 202−662−5657 Email: rmukherjee@cov.com PRO HAC VICE ATTORNEY TO BE NOTICED
Russell Higson Carpenter , Jr Covington and Burling PO Box 7566 Washington, DC 20044 202−662−5657 Email: rcarpenter@cov.com PRO HAC VICE ATTORNEY TO BE NOTICED

Case: 2:11-cv-2779 As of: 02/13/2013 02:39 PM EST 40 of 56

Amicus Legal Momentum ASISTA Immigration Assistance and twenty−five other organizations as amici curiae
Amicus Anti−Defamation League

represented by Debra Sherman Tedeschi Tedeschi Law Firm 1422 Laurel Street Columbia, SC 29201 803−540−3090 Email: deb@tedeschilaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christos Ravanides Skadden Arps Slate Meagher and Flom Four Times Square New York, NY 10036 212−735−3245 Email: cravanid@probonolaw.com PRO HAC VICE ATTORNEY TO BE NOTICED
Timothy Scott Kearns Skadden Arps Slate Meagher and Flom 1440 New York Avenue NW Washington, DC 20005−2111 202−371−7000 Email: timothy.kearns@skadden.com PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Tucker S Player Player Law Firm PO Box 21005 Columbia, SC 29221 803−772−8008 Fax: 803−772−8037 Email: tucker@playerlawfirm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Dale Marvin Schwartz Dale Marvin Schwartz and Associates St 450 RiverEdge One 5500 Interstate N Parkway NW Atlanta, GA 30328 770−951−1100 Email: dale@immlawfirm.com PRO HAC VICE ATTORNEY TO BE NOTICED

Date Filed 10/12/2011
10/12/2011

# Docket Text
1 COMPLAINT against James Alton Cannon, Nikki Haley, Alan Wilson, Scarlett A Wilson ( Filing fee $ 350 receipt number 0420−3657886.), filed by Jane Doe(No 1), Nuevos Caminos, South Carolina Hispanic Leadership Council, John McKenzie, Lowcountry Immigration Coalition, South Carolina Victim Assistance Network, Southern Regional Joint Board of Workers United, Service Employees International Union, Mujeres De Triunfo, Sandra Jones, John Doe, Keller Barron, Jane Doe(No 2), Yajaira Benet−Smith. (Attachments: # 1 Exhibit Senate Bill 20)(sshe, ) (Entered: 10/13/2011)
2 Local Rule 26.01 Answers to Interrogatories by Keller Barron, Yajaira Benet−Smith, Nuevos Caminos, Jane Doe(No 1), Jane Doe(No 2), John Doe,

Case: 2:11-cv-2779 As of: 02/13/2013 02:39 PM EST 41 of 56

10/12/2011 10/14/2011
10/14/2011 10/14/2011 10/14/2011 10/14/2011 10/14/2011
10/14/2011
10/14/2011 10/17/2011

Sandra Jones, Lowcountry Immigration Coalition, John McKenzie, Service Employees International Union, South Carolina Hispanic Leadership Council, South Carolina Victim Assistance Network, Southern Regional Joint Board of Workers United, Mujeres De Triunfo.(sshe, ) (Entered: 10/13/2011)
4 Summons Issued as to All Defendants. (sshe, ) (Entered: 10/13/2011)
5 ORDER re 1 Complaint, filed by John McKenzie, John Doe, South Carolina Victim Assistance Network, Keller Barron, Jane Doe, Southern Regional Joint Board of Workers United, Sandra Jones, Lowcountry Immigration Coalition, Service Employees International Union, Yajaira Benet−Smith, Mujeres De Triunfo, Nuevos Caminos, South Carolina Hispanic Leadership Council. Details set forth in Order. Signed by Honorable Richard M Gergel on 10/14/2011. (sshe, ) (Entered: 10/14/2011)
6 ***DOCUMENT E−MAILED 5 Order, to USA William Nettles at bnettles@usa.doj.gov. (ltap, ) (Entered: 10/14/2011)
7 MOTION to Appear Pro Hac Vice by Omar Jadwat ( Filing fee $ 250 receipt number 0420−3664046) by Lowcountry Immigration Coalition. Response to Motion due by 10/31/2011 (Attachments: # 1 Exhibit Application, # 2 Exhibit Certificate of Good Standing)No proposed order(Dunn, Susan) (Entered: 10/14/2011)
8 MOTION to Appear Pro Hac Vice by Andre Segura ( Filing fee $ 250 receipt number 0420−3664769) by Lowcountry Immigration Coalition. Response to Motion due by 10/31/2011 (Attachments: # 1 Exhibit Application, # 2 Exhibit Certificate of Good Standing)No proposed order(Dunn, Susan) (Entered: 10/14/2011)
9 MOTION to Appear Pro Hac Vice by Joaquin Linton ( Filing fee $ 250 receipt number 0420−3664845) by Lowcountry Immigration Coalition. Response to Motion due by 10/31/2011 (Attachments: # 1 Exhibit Application, # 2 Exhibit Certificate of Good Standing)No proposed order(Dunn, Susan) (Entered: 10/14/2011)
10 MOTION to Appear Pro Hac Vice by Nora Precaido ( Filing fee $ 250 receipt number 0420−3665342) by Lowcountry Immigration Coalition. Response to Motion due by 10/31/2011 (Attachments: # 1 Exhibit Application, # 2 Exhibit Certificate of Good Standing)Proposed order is being emailed to chambers with copy to opposing counsel(Dunn, Susan) (Attachment 2 replaced on 10/17/2011) (sshe, ). Modified on 10/17/2011 to replace incorrect document with corrected document as provided by filing user per attorney notified Clerk's office that an error occurred in their filing (sshe, ). (Entered: 10/14/2011)
11 MOTION Leave to Proceed Under Pseudonyms by Lowcountry Immigration Coalition. Response to Motion due by 10/31/2011 (Attachments: # 1 Memo in Support Memo in Support of Doe Plaintiffs' Motion to Proceed Under Pseudonyms, # 2 Supporting Documents Declaration of Jane Doe #1, # 3 Supporting Documents Declaration of Jane Doe #2, # 4 Supporting Documents Declaration of John Doe #1, # 5 Supporting Documents Declaration of Melissa S. Keaney, # 6 Supporting Documents Declaration of Elaine Cantrell Lacy, # 7 Supporting Documents Declaration of Myriam Torres)Proposed order is being emailed to chambers with copy to opposing counsel(Dunn, Susan) (Entered: 10/14/2011)
12 MOTION to Appear Pro Hac Vice by Melissa S. Keaney ( Filing fee $ 250 receipt number 0420−3665810) by Lowcountry Immigration Coalition. Response to Motion due by 10/31/2011 (Attachments: # 1 Exhibit Application, # 2 Exhibit Certificate of Good Standing)Proposed order is being emailed to chambers with copy to opposing counsel(Dunn, Susan) (Entered: 10/14/2011)
13 MOTION to Appear Pro Hac Vice by Karen Tumlin ( Filing fee $ 250 receipt number 0420−3666978) by Lowcountry Immigration Coalition. Response to Motion due by 11/3/2011 (Attachments: # 1 Exhibit Tumlin Application, # 2 Exhibit Certificate of Good Standing)Proposed order is being emailed to chambers with copy to opposing counsel(Dunn, Susan) (Entered: 10/17/2011)

Case: 2:11-cv-2779 As of: 02/13/2013 02:39 PM EST 42 of 56

10/17/2011 10/17/2011 10/17/2011 10/17/2011 10/17/2011 10/17/2011 10/17/2011 10/17/2011 10/17/2011 10/18/2011 10/18/2011

14 MOTION to Appear Pro Hac Vice by Victor Viramontes ( Filing fee $ 250 receipt number 0420−3667083) by Lowcountry Immigration Coalition. Response to Motion due by 11/3/2011 (Attachments: # 1 Exhibit Viramontes Application, # 2 Exhibit Certificate of Good Standing)Proposed order is being emailed to chambers with copy to opposing counsel(Dunn, Susan) (Entered: 10/17/2011)
15 MOTION to Appear Pro Hac Vice by Amy R. Pedersen ( Filing fee $ 250 receipt number 0420−3667177) by Lowcountry Immigration Coalition. Response to Motion due by 11/3/2011 (Attachments: # 1 Exhibit Pedersen Application, # 2 Exhibit Certificate of Good Standing)Proposed order is being emailed to chambers with copy to opposing counsel(Dunn, Susan) (Entered: 10/17/2011)
16 MOTION to Appear Pro Hac Vice by Michelle Rose Lapointe ( Filing fee $ 250 receipt number 0420−3667942) by Lowcountry Immigration Coalition. Response to Motion due by 11/3/2011 (Attachments: # 1 Exhibit Lapointe Application, # 2 Exhibit Certificate of Good Standing)Proposed order is being emailed to chambers with copy to opposing counsel(Dunn, Susan) (Entered: 10/17/2011)
17 MOTION to Appear Pro Hac Vice by Mary Catherine Bauer ( Filing fee $ 250 receipt number 0420−3668094) by Lowcountry Immigration Coalition. Response to Motion due by 11/3/2011 (Attachments: # 1 Exhibit Application, # 2 Exhibit Certificate of Good Standing)Proposed order is being emailed to chambers with copy to opposing counsel(Dunn, Susan) (Entered: 10/17/2011)
18 MOTION to Appear Pro Hac Vice by Samuel Jacob Brooke ( Filing fee $ 250 receipt number 0420−3668233) by Lowcountry Immigration Coalition. Response to Motion due by 11/3/2011 (Attachments: # 1 Exhibit Application, # 2 Exhibit Certificate of Good Standing)Proposed order is being emailed to chambers with copy to opposing counsel(Dunn, Susan) (Entered: 10/17/2011)
19 MOTION to Appear Pro Hac Vice by Naomi Ruth Tsu ( Filing fee $ 250 receipt number 0420−3668336) by Lowcountry Immigration Coalition. Response to Motion due by 11/3/2011 (Attachments: # 1 Exhibit Application, # 2 Exhibit Certificate of Good Standing)Proposed order is being emailed to chambers with copy to opposing counsel(Dunn, Susan) (Entered: 10/17/2011)
20 MOTION to Appear Pro Hac Vice by Daniel Werner ( Filing fee $ 250 receipt number 0420−3668440) by Lowcountry Immigration Coalition. Response to Motion due by 11/3/2011 (Attachments: # 1 Exhibit Application, # 2 Exhibit Certificate of Good Standing)Proposed order is being emailed to chambers with copy to opposing counsel(Dunn, Susan) (Entered: 10/17/2011)
21 MOTION to Appear Pro Hac Vice by Kenneth John Sugarman ( Filing fee $ 250 receipt number 0420−3668481) by Lowcountry Immigration Coalition. Response to Motion due by 11/3/2011 (Attachments: # 1 Exhibit Application, # 2 Exhibit Certificate of Good Standing)Proposed order is being emailed to chambers with copy to opposing counsel(Dunn, Susan) (Entered: 10/17/2011)
22 MOTION to Appear Pro Hac Vice by Katherine Desormeau ( Filing fee $ 250 receipt number 0420−3668548) by Lowcountry Immigration Coalition. Response to Motion due by 11/3/2011 (Attachments: # 1 Exhibit Application, # 2 Exhibit Certificate of Good Standing)Proposed order is being emailed to chambers with copy to opposing counsel(Dunn, Susan) (Entered: 10/17/2011)
23 MOTION to Appear Pro Hac Vice by Cecillia D. Wang ( Filing fee $ 250 receipt number 0420−3669775) by Lowcountry Immigration Coalition. Response to Motion due by 11/4/2011 (Attachments: # 1 Exhibit Application, # 2 Exhibit Certificate of Good Standing)Proposed order is being emailed to chambers with copy to opposing counsel(Dunn, Susan) (Entered: 10/18/2011)
24 ORDER granting 7 Motion to Appear Pro Hac Vice; granting 8 Motion to Appear Pro Hac Vice; granting 9 Motion to Appear Pro Hac Vice; granting 10 Motion to Appear Pro Hac Vice; granting 12 Motion to Appear Pro Hac Vice; granting 13 Motion to Appear Pro Hac Vice; granting 14 Motion to Appear Pro Hac Vice; granting 15 Motion to Appear Pro Hac Vice for Plaintiffs Signed by Honorable Richard M Gergel on 10/18/2011.(sshe, ) (Entered: 10/18/2011)

Case: 2:11-cv-2779 As of: 02/13/2013 02:39 PM EST 43 of 56

10/20/2011 10/20/2011 10/20/2011 10/21/2011 10/21/2011
10/24/2011 10/24/2011

25 MOTION for Leave to File Excess Pages for Memo in Support of Plaintiffs' Motion for Preliminary Injunction by Lowcountry Immigration Coalition. Response to Motion due by 11/7/2011 Proposed order is being emailed to chambers with copy to opposing counsel(Dunn, Susan) (Entered: 10/20/2011)
26 ORDER granting 25 Plaintiffs' Motion for Leave to File Excess Pages Signed by Honorable Richard M Gergel on 112779.(sshe, ) (Entered: 10/20/2011)
27 ORDER granting 17 Motion to Appear Pro Hac Vice; granting 18 Motion to Appear Pro Hac Vice; granting 19 Motion to Appear Pro Hac Vice; granting 20 Motion to Appear Pro Hac Vice; granting 21 Motion to Appear Pro Hac Vice; granting 22 Motion to Appear Pro Hac Vice; granting 23 Motion to Appear Pro Hac Vice; granting 16 Motion to Appear Pro Hac Vice for Plaintiffs. Signed by Honorable Richard M Gergel on 10/20/2011.(sshe, ) (Entered: 10/20/2011)
28 REPLY by Lowcountry Immigration Coalition to 5 Order,. (Attachments: # 1 Exhibit 10/12/11 Letter to Dept. of Justice from US Court of Appeals)(Dunn, Susan) (Entered: 10/21/2011)
29 MOTION for Preliminary Injunction by Lowcountry Immigration Coalition. Response to Motion due by 11/7/2011 (Attachments: # 1 Memo in Support Plaintiffs' Memo in Support of Motion for Preliminary Injunction, # 2 Exhibit List of Exhibits to Memo, # 3 Exhibit State v. Marquez arrest record, # 4 Exhibit Friendly House v. Whiting Brief in Support of Plaintiffs, # 5 Exhibit Motion for Leave to Join Brief of United Mexican States in Support of Plaintiffs, # 6 Exhibit Brief of United Mexican States in Support of Plaintiffs' Complaint for Declaratory and Injunctive Relief, # 7 Exhibit Declaration of Jane Doe #2, # 8 Exhibit Declaration of John Doe #1, # 9 Exhibit Declaration of Yajaira Benet−Smith, # 10 Exhibit Declaration of George Gascon, # 11 Exhibit Guidance on State and Local Governments' Assistance in ImmigrationEnforcement and related matters, # 12 Exhibit Declaration of Eduardo Gonzales, # 13 Exhibit Declaration of George Kanuck, # 14 Exhibit Declaration of Romina McCandless, # 15 Exhibit Declaration of Rich Robinson, # 16 Exhibit Declaration of Veronica Swain Kunz, # 17 Exhibit Declaration of Gregory Torrales, # 18 Exhibit Declaration of Orin Baird, # 19 Exhibit Declaration of Harris Raynor, # 20 Exhibit Declaration of Jane Doe #1, # 21 Exhibit Declaration of John McKenzie, # 22 Exhibit Declaration of Pastor Sandra Jones, # 23 Exhibit Declaration of Kellar Barron, # 24 Exhibit Declaration of Hannah Robbins, # 25 Exhibit Transcript of March 2, 2011 Senate debate on SB20, # 26 Exhibit Transcript of March 8, 2011 Snate debate on SB20, # 27 Exhibit Abraham F. Lowenthal Declaration, # 28 Exhibit Declaration of William J. Burns, # 29 Exhibit Bureau of Justice Services Statistics, # 30 Exhibit Bo Cooper Declaration, # 31 Exhibit Declaration of Lori Scialabba, # 32 Exhibit Declaration of David V. Aguilar, # 33 Exhibit Declaration of James B. Steinberg, # 34 Exhibit Declaration of William M. Griffen, # 35 Exhibit Declaration of Daniel H. Ragsdale, # 36 Exhibit Transcript of May 4, 2011 House Hearing on SB20)Proposed order is being emailed to chambers with copy to opposing counsel(Dunn, Susan) (Entered: 10/21/2011)
30 MOTION to Appear Pro Hac Vice by John Foster Symes Maer ( Filing fee $ 250 receipt number 0420−3682144) by Lowcountry Immigration Coalition. Response to Motion due by 11/10/2011 (Attachments: # 1 Exhibit Application, # 2 Exhibit Certificate of Good Standing)Proposed order is being emailed to chambers with copy to opposing counsel(Dunn, Susan) (Entered: 10/24/2011)
31 MOTION to Appear Pro Hac Vice by Diana Sagorika Sen ( Filing fee $ 250 receipt number 0420−3682252) by Lowcountry Immigration Coalition. Response to Motion due by 11/10/2011 (Attachments: # 1 Exhibit Application, # 2 Exhibit Certificate of Good Standing)Proposed order is being emailed to chambers with copy to opposing counsel(Dunn, Susan) (Main Document 31 replaced on 10/24/2011) (sshe, ). (Attachment 1 replaced on 10/24/2011) (sshe, ). (Attachment 2 replaced on 10/24/2011) (sshe, ). Modified on 10/24/2011 to replace incorrect attachments with correct documents as provided by filing user per attorney notified Clerk's office that an error occurred in their filing prior to QA review(sshe, ). (Entered: 10/24/2011)

Case: 2:11-cv-2779 As of: 02/13/2013 02:39 PM EST 44 of 56

10/24/2011
10/24/2011 10/26/2011
10/31/2011 10/31/2011 10/31/2011 10/31/2011 10/31/2011 11/01/2011 11/01/2011 11/01/2011
11/01/2011
11/01/2011 11/01/2011

32 MOTION to Appear Pro Hac Vice by Ghita R. Schwarz ( Filing fee $ 250 receipt number 0420−3682331) by Lowcountry Immigration Coalition. Response to Motion due by 11/10/2011 (Attachments: # 1 Exhibit Certificate of Good Standing, # 2 Exhibit Application)Proposed order is being emailed to chambers with copy to opposing counsel(Dunn, Susan) (Entered: 10/24/2011)
33 NOTICE of Appearance by Sandra Jane Senn on behalf of James Alton Cannon (Senn, Sandra) (Entered: 10/24/2011)
34 ORDER granting 30 Motion to Appear Pro Hac Vice; granting 31 Motion to Appear Pro Hac Vice; granting 32 Motion to Appear Pro Hac Vice of John Foster Symes Maer, Diana Sagorika Sen, Ghita R Schwarz for Plaintiffs Signed by Honorable Richard M Gergel on 10/26/2011.(sshe, ) (Entered: 10/26/2011)
35 NOTICE of Hearing: Telephone Conference set for 11/1/2011 at 11:00 AM before Honorable Richard M Gergel. Attorneys are to initiate conference call and then call into Chambers. Court Staff needed.(ltap, ) (Entered: 10/31/2011)
37 REPLY by Nikki Haley, Alan Wilson, Scarlett A Wilson to 5 Order, Memorandum of Defendants Governor, Attorney General and Solictor Regarding Joinder of USA. (Attachments: # 1 Certificate of Service)(Smith, James) (Entered: 10/31/2011)
38 REPLY by United States of America to 5 Order,. (Nettles, William) (Entered: 10/31/2011)
39 NOTICE of Appearance by Barbara Murcier Bowens on behalf of United States of America (Bowens, Barbara) (Entered: 10/31/2011)
40 MOTION to Appear Pro Hac Vice by William Scott Simpson by United States of America. Response to Motion due by 11/17/2011 (Attachments: # 1 Application for Pro Hac Admission, # 2 Certificate in Good Standing, # 3 Order responsive to #8 of the application)No proposed order(Bowens, Barbara) (Entered: 10/31/2011)
42 ORDER granting 40 Motion of William Scott Simpson to Appear Pro Hac Vice for United States of America Signed by Honorable Richard M Gergel on 11/1/2011.(sshe, ) (Entered: 11/01/2011)
43 Minute Entry. Proceedings held before Honorable Richard M Gergel: Status Conference held on 11/1/2011. Court to issue order. Court Reporter Amy Diaz. (erav, ) (Entered: 11/01/2011)
44 TEXT ORDER The parties have jointly requested the following schedule for briefing the motion for preliminary injunction and the filing of the Defendants' time to answer or otherwise plead: (1) Defendants' response to Plaintiffs' motion for preliminary injunction (Dkt. No. 29) due by 11/18/11; (2) Plaintiffs' reply to Defendants' memorandum to motion for preliminary injunction due by 11/30/11; and (3) Defendants' time to answer or otherwise plead extended to 1/17/12. The Court hereby grants the requested schedule as set forth above. AND IT IS SO ORDERED. Entered at the Direction of Honorable Richard M Gergel on 11/1/2011. (sshe, ) (Entered: 11/01/2011)
45 TEXT ORDER Plaintiffs moved for leave of certain plaintiffs to proceed under pseudonyms. (Dkt. No. 11). Defendants advised the Court in the telephone status conference of 11/1/11 that they do not object to the motion. Therefore, the Court hereby grants Plaintiffs' motion to proceed under pseudonyms. AND IT IS SO ORDERED. Entered at the Direction of Honorable Richard M Gergel on 11/1/2011.(sshe, ) (Entered: 11/01/2011)
46 NOTICE of Hearing on Motion 29 MOTION for Preliminary Injunction : Motion Hearing set for 12/19/2011 10:00 AM in Charleston Courtroom 3, U. S. Court House, 81 Meeting St, Charleston before Honorable Richard M Gergel. (sshe, ) (Entered: 11/01/2011)
47 TEXT ORDER By order dated 10/14/11, the Court requested the parties to address the issue of whether the United States was a "required party" pursuant to Rule 19 of the Federal Rules of Civil Procedure. (Dkt. No. 5 ). The parties and the United States responded to the Court's inquiry. (Dkt. No. 28,

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37 and 38). Subsequently, the United States initiated a related action, United States v. South Carolina (2:11−2958). The parties are advised that the Court does not intend at this time to address this matter further unless a party files a motion pursuant to Rule 19. AND IT IS SO ORDERED. Entered at the Direction of Honorable Richard M Gergel on 11/1/2011. (sshe, ) (Entered: 11/01/2011)
48 NOTICE of Appearance by Robin Lilley Jackson on behalf of James Alton Cannon (Jackson, Robin) (Entered: 11/01/2011)
50 MOTION for Leave to File Amicus Brief in Support of Plaintiffs by United Mexican States. Response to Motion due by 11/28/2011 (Attachments: # 1 [Lodged] Amicus Curiae Brief of the United Mexican States, # 2 Proposed Order)Proposed order is being emailed to chambers with copy to opposing counselAssociated Cases: 2:11−cv−02779−RMG, 2:11−cv−02958−RMG(Adams, Christopher) (Entered: 11/08/2011)
51 MOTION For Leave to Join Amicus Curiae Brief of the United Mexican States in Support of Plaintiffs by Government of Argentina, Government of Bolivia, Government of Brazil, Government of Chile, Government of Colombia, Government of Costa Rica, Government of Dominican Republic, Government of Ecuador, Government of El Salvador, Government of Guatemala, Government of Honduras, Government of Nicaragua, Government of Paraguay, Government of Peru, Government of Uruguay. Response to Motion due by 11/28/2011 (Attachments: # 1 Proposed Order)Proposed order is being emailed to chambers with copy to opposing counselAssociated Cases: 2:11−cv−02779−RMG, 2:11−cv−02958−RMG(Adams, Christopher) (Entered: 11/08/2011)
52 TEXT ORDER: The Court has received a motion from the United Mexican States for leave to file an amicus brief (Dkt. No. 50) and a motion by various Central and South American countries to join that amicus brief (Dkt. No. 51). The time for any parties to respond to these motions is hereby shortened to 11/16/11. AND IT IS SO ORDERED. Entered at the direction of the Honorable Richard M Gergel on 11/8/11. (ltap, ) (Entered: 11/08/2011)
53 MOTION for Leave to File Amicus Brief in Support of Plaintiffs' by American Immigration Lawyers Association. Response to Motion due by 12/1/2011 (Attachments: # 1 Amicus Brief, # 2 Proposed Order)Proposed order is being emailed to chambers with copy to opposing counselAssociated Cases: 2:11−cv−02779−RMG, 2:11−cv−02958−RMG(Keaveny, Amanda) (Entered: 11/11/2011)
54 MOTION to Appear Pro Hac Vice by Ranadeb Mukherjee ( Filing fee $ 250 receipt number 0420−3722554) by Asian American Justice Center, The. Response to Motion due by 12/1/2011 (Attachments: # 1 Affidavit, # 2 Proposed Order)Proposed order is being emailed to chambers with copy to opposing counsel(Sumter, Geraldine) Modified on 11/14/2011 to correct filer as listed on document(sshe, ). (Entered: 11/11/2011)
55 MOTION Excuse Defendant Cannon From Participation as a County Defendant by James Alton Cannon. Response to Motion due by 12/1/2011 (Attachments: # 1 Memo in Support, # 2 Exhibit Exhibit A: E−mail Correspondence)Proposed order is being emailed to chambers with copy to opposing counsel(Senn, Sandra) (Entered: 11/11/2011)
56 MOTION to Appear Pro Hac Vice by Russell H. Carpenter, Jr. ( Filing fee $ 250 receipt number 0420−3722563) by Asian American Justice Center, The. Response to Motion due by 12/1/2011 (Attachments: # 1 Affidavit, # 2 Proposed Order)Proposed order is being emailed to chambers with copy to opposing counsel(Sumter, Geraldine) Modified on 11/14/2011 to correct filer as listed on document(sshe, ). (Entered: 11/11/2011)
57 MOTION for Leave to File Unopposed Motion For Leave to Join Amicus Curiae Brief of The Asian American Justice Center And Other Organizations by Asian American Justice Center, The. Response to Motion due by 12/1/2011 (Attachments: # 1 Proposed Order)Proposed order is being emailed to chambers with copy to opposing counsel(Sumter, Geraldine) Modified on 11/14/2011 to

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correct party filer as listed on document(sshe, ). (Entered: 11/11/2011)
58 RESPONSE in Support re 29 MOTION for Preliminary Injunction Brief of Asian American Justice Center And Other Amici Curiae In Support of Plaintiffs' Motion for Preliminary Injunction Response filed by Asian American Justice Center, The. (Sumter, Geraldine) Modified on 11/14/2011 to correct docket text re party as filer listed on document(sshe, ). (Entered: 11/11/2011)
59 MOTION for Leave to File Amicus Curiae Brief by Legal Momentum. Response to Motion due by 12/1/2011 (Attachments: # 1 Exhibit Proposed Amici Curiae Brief)No proposed order(Tedeschi, Debra) (Entered: 11/11/2011)
60 TEXT ORDER: The Court has received a motion from the American Immigration Lawyers Association for leave to file an amicus brief (Dkt. No. 53), a motion by the Asian American Justice Center and Other Organizations to join that amicus brief (Dkt. No. 57), and a Motion from Legal Momentum for leave to file an amicus brief (Dkt. No. 59). The time for any parties to respond to these motions is hereby shortened to 11/18/11. AND IT IS SO ORDERED. Entered at the direction of the Honorable Richard M Gergel on 11/14/11. (ltap, ) (Entered: 11/14/2011)
61 MOTION to Appear Pro Hac Vice by Christopher R. Clark ( Filing fee $ 250 receipt number 0420−3726865) by Government of Argentina, Government of Bolivia, Government of Brazil, Government of Chile, Government of Colombia, Government of Costa Rica, Government of Dominican Republic, Government of Ecuador, Government of El Salvador, Government of Guatemala, Government of Honduras, Government of Nicaragua, Government of Paraguay, Government of Peru, Government of Uruguay, United Mexican States. Response to Motion due by 12/2/2011 (Attachments: # 1 Affidavit/Application for Pro Hac Vice Admission, # 2 Certificate of Good Standing)Proposed order is being emailed to chambers with copy to opposing counsel(Adams, Christopher) (Entered: 11/15/2011)
62 MOTION to Appear Pro Hac Vice by Carla Gorniak ( Filing fee $ 250 receipt number 0420−3726905) by Government of Argentina, Government of Bolivia, Government of Brazil, Government of Chile, Government of Colombia, Government of Costa Rica, Government of Dominican Republic, Government of Ecuador, Government of El Salvador, Government of Guatemala, Government of Honduras, Government of Nicaragua, Government of Paraguay, Government of Peru, Government of Uruguay, United Mexican States. Response to Motion due by 12/2/2011 (Attachments: # 1 Affidavit/Application for Pro Hac Vice Admission, # 2 Certificate of Good Standing)Proposed order is being emailed to chambers with copy to opposing counsel(Adams, Christopher) (Entered: 11/15/2011)
63 MOTION to Appear Pro Hac Vice by Henry L. Solano ( Filing fee $ 250 receipt number 0420−3726944) by Government of Argentina, Government of Bolivia, Government of Brazil, Government of Chile, Government of Colombia, Government of Costa Rica, Government of Dominican Republic, Government of Ecuador, Government of El Salvador, Government of Guatemala, Government of Honduras, Government of Nicaragua, Government of Paraguay, Government of Peru, Government of Uruguay, United Mexican States. Response to Motion due by 12/2/2011 (Attachments: # 1 Affidavit/Application for Pro Hac Vice Admission, # 2 Certificate of Good Standing)Proposed order is being emailed to chambers with copy to opposing counsel(Adams, Christopher) (Entered: 11/15/2011)
64 RESPONSE to Motion re 53 MOTION for Leave to File Amicus Brief in Support of Plaintiffs' Response filed by James Alton Cannon.Reply to Response to Motion due by 11/28/2011 (Senn, Sandra) (Entered: 11/15/2011)
65 RESPONSE to Motion re 59 MOTION for Leave to File Amicus Curiae Brief Response filed by James Alton Cannon.Reply to Response to Motion due by 11/28/2011 (Senn, Sandra) (Entered: 11/15/2011)
66 RESPONSE to Motion re 57 MOTION for Leave to File Unopposed Motion For Leave to Join Amicus Curiae Brief of The Asian American Justice Center And Other Organizations Response filed by James Alton Cannon.Reply to Response to Motion due by 11/28/2011 (Senn, Sandra) (Entered: 11/15/2011)

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11/15/2011 11/15/2011 11/15/2011 11/15/2011 11/15/2011 11/16/2011 11/16/2011 11/17/2011 11/17/2011 11/17/2011
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67 RESPONSE to Motion re 50 MOTION for Leave to File Amicus Brief in Support of Plaintiffs Response filed by James Alton Cannon.Reply to Response to Motion due by 11/28/2011 (Senn, Sandra) (Entered: 11/15/2011)
68 TEXT ORDER: The Court has received a motion from Defendant Canon to be excused from participation as a county defendant (Dkt. No. 55). The time for any parties to respond to this motion is hereby shortened to 11/21/11. AND IT IS ORDERED. Entered at the direction of the Honorable Richard M Gergel on 11/15/11. (ltap, ) (Entered: 11/15/2011)
69 MOTION for Leave to File Excess Pages by Nikki Haley, Alan Wilson, Scarlett A Wilson. Response to Motion due by 12/2/2011 Proposed order is being emailed to chambers with copy to opposing counsel(Smith, James) (Entered: 11/15/2011)
70 RESPONSE to Motion re 51 MOTION For Leave to Join Amicus Curiae Brief of the United Mexican States in Support of Plaintiffs Response filed by James Alton Cannon.Reply to Response to Motion due by 11/28/2011 (Senn, Sandra) (Entered: 11/15/2011)
71 ORDER granting 54 Motion of Ranadeb Mukherjee to Appear Pro Hac Vice; granting 56 Motion of Russell H. Carpenter, Jr to Appear Pro Hac Vice for Asian American Justice Center, The. Signed by Honorable Richard M Gergel on 11/15/2011.(sshe, ) (Entered: 11/16/2011)
72 MOTION to Appear Pro Hac Vice by Christos Ravanides ( Filing fee $ 250 receipt number 0420−3731408) by Legal Momentum. Response to Motion due by 12/5/2011 (Attachments: # 1 Pro Hac Vice Application)No proposed order(Tedeschi, Debra) (Entered: 11/16/2011)
73 MOTION to Appear Pro Hac Vice by Timothy Kearns ( Filing fee $ 250 receipt number 0420−3731484) by Legal Momentum. Response to Motion due by 12/5/2011 (Attachments: # 1 Pro Hac Vice Application Timothy Kearns)No proposed order(Tedeschi, Debra) (Entered: 11/16/2011)
74 ORDER granting 69 Motion for Leave to File Excess Pages Signed by Honorable Richard M Gergel on 11/17/2011.(sshe, ) (Entered: 11/17/2011)
75 NOTICE of Appearance by Sandra Jane Senn on behalf of Scarlett A Wilson (Senn, Sandra) (Entered: 11/17/2011)
76 ORDER granting (61)Motion to Appear Pro Hac Vice in case 2:11−cv−02779−RMG; granting (33)Motion to Appear Pro Hac Vice in case 2:11−cv−02958−RMG for Christopher R. Clark representing Government of Argentina, Government of Bolivia, Government of Brazil, Government of Chile, Government of Colombia, Government of Costa Rica, Government of Dominican Republic, Government of Ecuador, Government of El Salvador, Government of Guatemala, Government of Honduras, Government of Nicaragua, Government of Paraguay, Government of Peru, Government of Uruguay, United Mexican States. Signed by Honorable Richard M Gergel on 11/17/2011.Associated Cases: 2:11−cv−02779−RMG, 2:11−cv−02958−RMG(sshe, ) (Entered: 11/17/2011)
77 ORDER granting (62)Motion to Appear Pro Hac Vice in case 2:11−cv−02779−RMG; granting (32)Motion to Appear Pro Hac Vice in case 2:11−cv−02958−RMG for Carla Gorniak representing Government of Argentina, Government of Bolivia, Government of Brazil, Government of Chile, Government of Colombia, Government of Costa Rica, Government of Dominican Republic, Government of Ecuador, Government of El Salvador, Government of Guatemala, Government of Honduras, Government of Nicaragua, Government of Paraguay, Government of Peru, Government of Uruguay, United Mexican States. Signed by Honorable Richard M Gergel on 11/17/2011.Associated Cases: 2:11−cv−02779−RMG, 2:11−cv−02958−RMG(sshe, ) (Entered: 11/17/2011)
78 ORDER granting (63)Motion to Appear Pro Hac Vice in case 2:11−cv−02779−RMG; granting (34)Motion to Appear Pro Hac Vice in case 2:11−cv−02958−RMG for Henry L Solano representing Government of Argentina, Government of Bolivia, Government of Brazil, Government of

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Chile, Government of Colombia, Government of Costa Rica, Government of Dominican Republic, Government of Ecuador, Government of El Salvador, Government of Guatemala, Government of Honduras, Government of Nicaragua, Government of Paraguay, Government of Peru, Government of Uruguay, United Mexican States. Signed by Honorable Richard M Gergel on 11/17/2011.Associated Cases: 2:11−cv−02779−RMG, 2:11−cv−02958−RMG(sshe, ) (Entered: 11/17/2011)
79 ORDER granting 72 Motion of Christos Ravanides to Appear Pro Hac Vice; granting 73 Motion of Timothy Kearns to Appear Pro Hac Vice for Legal Momentum. Signed by Honorable Richard M Gergel on 11/18/2011.(sshe, ) (Entered: 11/18/2011)
80 RESPONSE in Opposition re 29 MOTION for Preliminary Injunction Response filed by Nikki Haley, Alan Wilson.Reply to Response to Motion due by 12/1/2011 (Attachments: # 1 Exhibit Ex. 1 − AL HB 56 statute, # 2 Exhibit Ex. 2 − US v. AL NDAL, # 3 Exhibit Ex. 3 − Hispanic Int. decision, # 4 Exhibit Ex. 4 − US v. AL CTA)(Smith, James) Modified on 12/6/2011 to reference 98 Additional Attachments filed 12/5/2011(sshe, ). (Entered: 11/18/2011)
81 RESPONSE to Motion re 29 MOTION for Preliminary Injunction Response filed by James Alton Cannon, Scarlett A Wilson.Reply to Response to Motion due by 12/1/2011 (Attachments: # 1 Memo in Support)(Senn, Sandra) (Entered: 11/18/2011)
82 MOTION to Excuse or to Stay by Scarlett A Wilson. Response to Motion due by 12/5/2011 Proposed order is being emailed to chambers with copy to opposing counsel(Senn, Sandra) (Entered: 11/18/2011)
83 RESPONSE to Motion re 55 MOTION Excuse Defendant Cannon From Participation as a County Defendant Response filed by Nikki Haley, Alan Wilson.Reply to Response to Motion due by 12/1/2011 (Jowers, Mary) (Entered: 11/21/2011)
84 TEXT ORDER: The Court has received a motion from Defendant Wilson to be excused from participation as a county defendant (Dkt. No. 82). The time for any parties to respond to this motion is hereby shortened to 12/1/11. AND IT IS ORDERED. Entered at the direction of the Honorable Richard M Gergel on 11/21/11. (ltap, ) (Entered: 11/21/2011)
85 TEXT ORDER: The Court, by text orders issued on 11/8/11 (Dkt. No. 52) and 11/14/11 (Dkt. No. 60), shortened the time for parties to respond to various motions to file amicus briefs or to join amicus briefs. (Dkt. Nos. 50, 51, 53, 57 and 59). No party responded in opposition to these motions. Therefore, the motions at Dkt. Nos. 50, 51, 53, 57 and 59 are hereby granted. AND IT IS SO ORDERED. Entered at the direction of the Honorable Richard M Gergel on 11/21/11.(ltap, ) (Entered: 11/21/2011)
86 MOTION to Appear Pro Hac Vice by Courtney Bowie ( Filing fee $ 250 receipt number 0420−3739720) by Lowcountry Immigration Coalition. Response to Motion due by 12/8/2011 (Attachments: # 1 Supporting Documents Application of Courtney Bowie, # 2 Exhibit Certificate of Good Standing)Proposed order is being emailed to chambers with copy to opposing counsel(Dunn, Susan) (Entered: 11/21/2011)
87 MOTION to Appear Pro Hac Vice by Alvaro Huerta ( Filing fee $ 250 receipt number 0420−3739800) by Lowcountry Immigration Coalition. Response to Motion due by 12/8/2011 (Attachments: # 1 Supporting Documents Application of Alvaro Huerta, # 2 Exhibit Certificate of Good Standing)Proposed order is being emailed to chambers with copy to opposing counsel(Dunn, Susan) Modified on 11/22/2011 to correct docket text spelling or grammar(sshe, ). (Entered: 11/21/2011)
88 RESPONSE to Motion re 82 MOTION to Excuse or to Stay Response filed by Nikki Haley, Alan Wilson.Reply to Response to Motion due by 12/2/2011 (Jowers, Mary) (Entered: 11/22/2011)

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89 MOTION for Leave to File Excess Pages Reply Memo in Support of Plaintiffs' Motion for Preliminary Injunction by Lowcountry Immigration Coalition. Response to Motion due by 12/12/2011 Proposed order is being emailed to chambers with copy to opposing counsel(Dunn, Susan) (Entered: 11/23/2011)
90 ORDER granting 87 Motion of Alvaro Huerta to Appear Pro Hac Vice for Plaintiffs Signed by Honorable Richard M Gergel on 11/28/2011.(sshe, ) (Entered: 11/28/2011)
91 ORDER granting 86 Motion of Courtney A Bowie to Appear Pro Hac Vice for Plaintiffs Signed by Honorable Richard M Gergel on 11/28/2011.(sshe, ) (Entered: 11/28/2011)
92 ORDER granting 89 Plaintiffs' Motion for Leave to File Excess Pages, a thirty (30) page reply memorandum in support of their Motion for Preliminary Injunction. Signed by Honorable Richard M Gergel on 11/29/2011.(sshe, ) (Entered: 11/29/2011)
93 RESPONSE in Support re 29 MOTION for Preliminary Injunction Response filed by Lowcountry Immigration Coalition. (Dunn, Susan) (Entered: 11/30/2011)
94 MOTION to Appear Pro Hac Vice by Andres C Benach Unopposed ( Filing fee $ 250 receipt number 0420−3757259) by American Immigration Lawyers Association. Response to Motion due by 12/19/2011 (Attachments: # 1 Affidavit, # 2 Certificate of Good Standing)Proposed order is being emailed to chambers with copy to opposing counselAssociated Cases: 2:11−cv−02779−RMG, 2:11−cv−02958−RMG(Keaveny, Amanda) (Entered: 12/01/2011)
95 REPLY to Response to Motion re 55 MOTION Excuse Defendant Cannon From Participation as a County Defendant Response filed by James Alton Cannon. (Senn, Sandra) (Entered: 12/01/2011)
96 REPLY to Response to Motion re 82 MOTION to Excuse or to Stay Response filed by James Alton Cannon, Scarlett A Wilson. (Senn, Sandra) (Entered: 12/02/2011)
98 Additional Attachments to Main Document 80 Response in Opposition to Motion, Clarification to Response in Opposition to PI Motion. (Smith, James) (Entered: 12/05/2011)
99 Local Rule 26.01 Answers to Interrogatories by Nikki Haley, Alan Wilson.(Smith, James) (Entered: 12/05/2011)
100 MOTION to Appear Pro Hac Vice by Justin B. Cox ( Filing fee $ 250 receipt number 0420−3764382) by Lowcountry Immigration Coalition. Response to Motion due by 12/27/2011 (Attachments: # 1 Exhibit Application, # 2 Exhibit Certificate of Good Standing)Proposed order is being emailed to chambers with copy to opposing counsel(Dunn, Susan) (Entered: 12/06/2011)
101 TEXT ORDER: The oral argument on the motions for preliminary injunction will be conducted utilizing the following order: (1) Plaintiffs in Civil Action No. 2:11−2779; (2) Plaintiff in the Civil Action No. 2:11−2958; and (3) Defendants in both pending civil actions. Plaintiffs in Civil Action No. 2:11−2779 and Defendants in both pending civil actions should designate one counsel to make oral argument on their behalf. Organizations participating by way of amicus will not be allocated time to participate in oral argument on the motions for preliminary injunction and are not obligated to attend the preliminary injunction hearing. The Court has not yet decided regarding the length of time to be allocated to the parties for oral argument and welcomes the input of the parties on this matter. To that end, the Court directs the parties to confer to determine if a joint request can be presented regarding the length of time that should be allocated to each of the three classes of parties referenced above and to advise the Court of any joint request for a time limitation on oral argument on or before the end of the business day on 12/13/11. The Court will thereafter set a final time schedule for oral argument. AND IT IS SO ORDERED. Entered at the direction of the Honorable Richard M Gergel on 12/9/11. Associated Cases: 2:11−cv−02779−RMG, 2:11−cv−02958−RMG(ltap, ) (Entered: 12/09/2011)

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102 TEXT ORDER: Defendants James Alton Cannon, in his official capacity as Sheriff of Charleston County, and Scarlett A. Wilson, in her official capacity as Solicitor of the Ninth Judicial Circuit, have moved to be "excused" from participation in this litigation. (Dkt. Nos. 55, 82). No party has objected to their motions. Both of these defendants have indicated that they intend to obey any order of this Court regardless of whether they are parties to this action. Rule 1 of the Federal Rules of Civil Procedure mandates that the rules of the court "should be construed and administered to secure the just, speedy and inexpensive determination of every action and proceeding." To that end, the Court construes pending motions 55 and 82 as motions to dismiss without prejudice. All parties who wish to respond to these motions as construed by the Court should do so on or before the end of the business day on 12/15/11. AND IT IS SO ORDERED. Entered at the direction of the Honorable Richard M Gergel on 12/9/11. (ltap, ) (Entered: 12/09/2011)
103 ORDER granting 94 Motion of Andres C Benach to Appear Pro Hac Vice for American Immigration Lawyers Association Signed by Honorable Richard M Gergel on 12/12/2011.(sshe, ) (Entered: 12/12/2011)
104 ORDER granting 100 Motion of Justin B Cox to Appear Pro Hac Vice for Plaintiffs Signed by Honorable Richard M Gergel on 12/12/2011.(sshe, ) (Entered: 12/12/2011)
105 MOTION to Appear Pro Hac Vice by Dale Schwartz ( Filing fee $ 250 receipt number 0420−3777923) by Anti−Defamation League. Response to Motion due by 1/3/2012 Proposed order is being emailed to chambers with copy to opposing counsel(Player, Tucker) (Entered: 12/13/2011)
106 MOTION for Leave to File Memorandum in Support of Plaintiff's Motion by Anti−Defamation League. Response to Motion due by 1/3/2012 (Attachments: # 1 Exhibit)No proposed order(Player, Tucker) (Entered: 12/13/2011)
107 REPLY by United States of America to (101 in 2:11−cv−02779−RMG, 52 in 2:11−cv−02958−RMG) Order,,,,, Report of Attorney Conference. Associated Cases: 2:11−cv−02958−RMG, 2:11−cv−02779−RMG(Nettles, William) (Entered: 12/13/2011)
110 MOTION to Reopen Motion to Intervene, Allow to offer evidence into record of scheduled hearing, Allow to Suggest Alternate Disposition by Marie Assa'ad−Faltas. Response to Motion due by 1/3/2012 No proposed orderAssociated Cases: 2:11−cv−02958−RMG, 2:11−cv−02779−RMG(sshe, ) (Entered: 12/14/2011)
108 TEXT ORDER : The Court hereby adopts the oral argument schedule set forth in the Report of Attorney Conference (Dkt. No. 53 in 2:11−cv−02958−RMG, 107 in 2:11−cv−02779−RMG). AND IT IS SO ORDERED. Entered at the direction of the Honorable Richard M Gergel on 12/14/11. Associated Cases: 2:11−cv−02779−RMG, 2:11−cv−02958−RMG(ltap, ) (Entered: 12/14/2011)
109 REPLY to Response to Motion re 82 MOTION to Excuse or to Stay, 55 MOTION Excuse Defendant Cannon From Participation as a County Defendant Response filed by Lowcountry Immigration Coalition. (Dunn, Susan) (Entered: 12/14/2011)
111 TEXT ORDER: The Anti−Defamation League has filed a motion to file a brief of amicus curiae in this matter and has attached a copy of the brief to its motion. (Dkt. No. 106). The motion is granted and the clerk is directed to file the brief of amicus curiae of the Anti−Defamation League in this matter. AND IT IS SO ORDERED. Entered at the direction of the Honorable Richard M Gergel on 12/14/11.(ltap, ) (Entered: 12/14/2011)
112 TEXT ORDER: The Court has reviewed and considered the Motions filed by Dr. Assa'ad−Faltas (Docket #110 filed in case 2:11−cv−02779−RMG and Docket #55 filed in case 2:11−cv−02958−RMG). The Court finds that these motions have no legal merit and hereby DENIES the motions. IT IS SO ORDERED. Entered at the direction of the Honorable Richard M Gergel on 12/14/11.Associated Cases: 2:11−cv−02779−RMG, 2:11−cv−02958−RMG(ltap, ) (Entered: 12/14/2011)

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12/14/2011 12/14/2011 12/14/2011 12/15/2011 12/15/2011 12/15/2011
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113 Amicus Curiae APPEARANCE BRIEF OF AMICUS CURIAE entered by Tucker S Player on behalf of Anti−Defamation League. (sshe, ) (Entered: 12/14/2011)
114 RESPONSE to Motion re 82 MOTION to Excuse or to Stay, 55 MOTION Excuse Defendant Cannon From Participation as a County Defendant Second Response filed by Nikki Haley, Alan Wilson.Reply to Response to Motion due by 12/27/2011 (Jowers, Mary) (Entered: 12/14/2011)
115 MOTION for Leave to File to Cite Supplemental Authority by Nikki Haley, Alan Wilson. Response to Motion due by 1/3/2012 No proposed order(Smith, James) (Entered: 12/14/2011)
116 MOTION to Stay Suit and Allow Act 69 to Take Effect by Nikki Haley, Alan Wilson. Response to Motion due by 1/3/2012 (Attachments: # 1 Exhibit Hickey v. Baxter, 833 F.2d 1005 (4th Cir. 1987))No proposed order(Smith, James) (Entered: 12/15/2011)
117 TEXT ORDER: Defendants' motions for leave to cite supplemental authority (Dkt. No. 57 in 2:11−2958 and Dkt. No. 115 in 2:11−2779) are hereby granted. AND IT IS SO ORDERED. Entered at the direction of the Honorable Richard M Gergel on 12/15/11. (ltap, ) (Entered: 12/15/2011)
118 TEXT ORDER: Defendants have moved to stay these actions and allow Act 69 to go into effect on the basis of the United States Supreme Court's recent grant of certiorari in Douglas v. Independent Living Center and State of Arizona v. US. (Dkt. No. 116 in 2:11−2779 and Dkt. No. 59 in 2:11−2958). The time for parties to respond to these motions is hereby shortened to 12/16/11. AND IT IS SO ORDERED. Entered at the direction of the Honorable Richard M Gergel on 12/15/11. Associated Cases: 2:11−cv−02779−RMG, 2:11−cv−02958−RMG(ltap, ) (Entered: 12/15/2011)
119 ***DOCUMENT Entry MAILED (112 in 2:11−cv−02779−RMG) (56 in 2:11−cv−02958−RMG) Text Order on Motion for Miscellaneous Relief, placed in U.S. Mail to Dr Marie Assa'ad−Faltas Associated Cases: 2:11−cv−02779−RMG, 2:11−cv−02958−RMG(sshe, ) (Entered: 12/15/2011)
120 RESPONSE in Opposition re 116 MOTION to Stay Suit and Allow Act 69 to Take Effect Response filed by Lowcountry Immigration Coalition.Reply to Response to Motion due by 1/3/2012 (Dunn, Susan) (Entered: 12/16/2011)
121 ORDER granting 105 Motion of Dale Schwartz to Appear Pro Hac Vice for Anti−Defamation League. Signed by Honorable Richard M Gergel on 12/16/2011.(sshe, ) (Entered: 12/16/2011)
122 Minute Entry. Proceedings held before Honorable Richard M Gergel: Motion Hearing held on 12/19/2011. Matter under advisement re: 29 Motion for Preliminary Injunction; granting without prejudice 55 Defendant's Cannon's Motion to be excused from participation as a County Defendant; granting without prejudice defendant Scarlett Wilson's 82 Motion to be excused from participation as a County Defendant; denying 116 Motion to Stay. Court to issue written order. Court Reporter Debbie Potocki. (erav, ) (Entered: 12/19/2011)
123 ORDER granting 29 Motion for Preliminary Injunction in case 2:11−cv−02779−RMG and 16 Motion for Preliminary Injunction in case 2:11−cv−02958−RMG regarding Sections 4,5 and 6 of Act 69, and S.C. Code Section 16−9−460, until further order of this Court. Signed by Honorable Richard M Gergel on 12/22/2011. Associated Cases: 2:11−cv−02958−RMG, 2:11−cv−02779−RMG (erav, ) (Entered: 12/22/2011)
124 TEXT ORDER: In light of the grant of preliminary injunctive relief today to plaintiffs and the recent grant of certiorari in Arizona v. United States, the Court would like the parties to respond within 15 days of this Order to whether the Court should stay discovery until the United States Supreme Court rules in the Arizona case. AND IT IS SO ORDERED. Entered at the direction of the Honorable Richard M Gergel on 12/22/11. Associated Cases: 2:11−cv−02779−RMG, 2:11−cv−02958−RMG(ltap, ) (Entered: 12/22/2011)

Case: 2:11-cv-2779 As of: 02/13/2013 02:39 PM EST 52 of 56

01/06/2012 01/09/2012 01/18/2012 01/19/2012 01/25/2012 02/21/2012
02/28/2012 05/02/2012 05/03/2012 06/27/2012 06/28/2012

125 REPLY by United States of America to (66 in 2:11−cv−02958−RMG, 66 in 2:11−cv−02958−RMG, 124 in 2:11−cv−02779−RMG, 124 in 2:11−cv−02779−RMG) Order, Set Deadlines,,,,. Associated Cases: 2:11−cv−02958−RMG, 2:11−cv−02779−RMG(Nettles, William) (Entered: 01/06/2012)
126 ORDER STAYING CASE. Signed by Honorable Richard M Gergel on 1/9/2012. Associated Cases: 2:11−cv−02958−RMG, 2:11−cv−02779−RMG(sshe, ) (Entered: 01/09/2012)
127 NOTICE OF INTERLOCUTORY APPEAL re 123 Order on Motion for Preliminary Injunction,,, − Filing fee $ 455, receipt number 0420−3841208. The Docketing Statement form, Transcript Order form and CJA 24 form may be obtained from the Fourth Circuit website at www.ca4.uscourts.gov (Smith, James) Modified docket text event description on 1/19/2012 (sshe, ). (Entered: 01/18/2012)
128 Transmittal Sheet for Notice of Appeal to USCA re 127 Notice of Appeal, The Clerk's Office hereby certifies the record and the docket sheet available through ECF to be the certified list in lieu of the record and/or the certified copy of the docket entries. (sshe, ) (Entered: 01/19/2012)
130 ORDER of USCA consolidating Case No. 12−1096 and 12−1099 as to (69 in 2:11−cv−02958−RMG) Notice of Appeal No. 12−1096(L), filed by South Carolina, State of, Nikki R Haley, (127 in 2:11−cv−02779−RMG) Notice of Appeal No. 12−1099, filed by Nikki Haley, Alan Wilson (sshe, ) (Entered: 01/25/2012)
131 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of motions hearing for date of 12−19−11, before Judge Richard M. Gergel, re (69 in 2:11−cv−02958−RMG) Notice of Appeal, (73 in 2:11−cv−02958−RMG) Notice of Interlocutory Appeal, (127 in 2:11−cv−02779−RMG) Notice of Appeal, Court Reporter/Transcriber Debra Potocki, Telephone number/e−mail 843−723−2208/potockidebra@bellsouth.net. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Parties have 7 calendar days from the filing of the transcript to file with the court a Notice of Intent to Request Redaction. Does this satisfy all appellate orders for this reporter? Y
Redaction Request due 3/13/2012. Redacted Transcript Deadline set for 3/23/2012. Release of Transcript Restriction set for 5/21/2012. (dpotocki, ) (Entered: 02/21/2012)
133 ORDER of USCA as to (73 in 2:11−cv−02958−RMG) Notice of Interlocutory Appeal, filed by Marie Assa'ad−Faltas. 4CCA consolidates No 12−1243 (re 2:11−cv−02779−RMG) with No 12−1233(L), lead case no. (sshe, ) (Entered: 02/28/2012)
135 Letter from Ken Sugarman. Associated Cases: 2:11−cv−02779−RMG, 2:11−cv−02958−RMG(Dunn, Susan) (Entered: 05/02/2012)
136 TEXT ORDER: Kenneth Sugarman, one of the named counsel for Plaintiffs, has moved to withdraw as counsel. The motion is hereby granted. AND IT IS SO ORDERED. Entered at the direction of the Honorable Richard M Gergel on 5/3/12. (ltap, ) (Entered: 05/03/2012)
137 NOTICE of Hearing: Telephone Status Conference set for 7/9/2012 at 10:00 AM before Honorable Richard M Gergel. Attorneys are to initiate conference call and then call into chambers or provide chambers a number to call into for the conference. Court staff needed.Associated Cases: 2:11−cv−02779−RMG, 2:11−cv−02958−RMG(ltap, ) (Entered: 06/27/2012)
138 ORDER re (137 in 2:11−cv−02779−RMG) Notice of Hearing status conference 7/9/2012. Details set forth in Order Signed by Honorable Richard M Gergel on 6/28/2012. Associated Cases: 2:11−cv−02958−RMG, 2:11−cv−02779−RMG(sshe, ) (Entered: 06/28/2012)

Case: 2:11-cv-2779 As of: 02/13/2013 02:39 PM EST 53 of 56

07/09/2012 07/09/2012 07/09/2012 07/09/2012
07/18/2012 08/16/2012 08/17/2012 08/22/2012 08/22/2012
08/24/2012

139 Minute Entry. Proceedings held before Honorable Richard M Gergel: Telephone Conference held on 7/9/2012. Court to issue written order. Court Reporter Virginia Druce, CS. (erav, ) (Entered: 07/09/2012)
140 ORDER In light of the Court's Order herein, Plaintiffs in Civil Action No. 2:11−2779 are directed, pursuant to FRCP 62.1(b), to advise the Clerk of the Fourth Circuit of the District Court's decision in this matter. Signed by Honorable Richard M Gergel on 7/9/2012. Associated Cases: 2:11−cv−02779−RMG, 2:11−cv−02958−RMG(sshe, ) (Entered: 07/09/2012)
141 TEXT ORDER: The parties have moved before the Court for a continuation of the stay previously entered while the appeal is pending before the Fourth Circuit. The motion is granted and the case is stayed until further order of the Court. AND IT IS SO ORDERED. Entered at the direction of the Honorable Richard M Gergel on 7/9/12. Associated Cases: 2:11−cv−02958−RMG, 2:11−cv−02779−RMG(ltap, ) (Entered: 07/09/2012)
142 TEXT ORDER: Pursuant to Section 17(E) of Act 69, the Chief of the South Carolina Law Enforcement Division is directed to negotiate a memorandum of agreement with United States Immigration and Customs Enforcement pursuant to Section 287(g) of the Immigration and Nationality Act "as soon as possible after the effective date of the Act." The State Defendants are directed to file a report with the Court within 10 days of this Order regarding all negotiations or planned negotiations in which the Chief of SLED or his designees have had with the federal immigration authorities and copy of any 287(g) agreement which may have been reached. The State Defendants are further directed to supplement this filing in the future should there be subsequent developments in this area. AND IT IS SO ORDERED. Entered at the direction of the Honorable Richard M Gergel on 7/9/12. Associated Cases: 2:11−cv−02958−RMG, 2:11−cv−02779−RMG(ltap, ) (Entered: 07/09/2012)
143 STATUS REPORT Report pursuant to text order of July 9, 2012 by Nikki Haley, Alan Wilson, Nikki R Haley, South Carolina, State of. Associated Cases: 2:11−cv−02958−RMG, 2:11−cv−02779−RMG(Smith, James) (Entered: 07/18/2012)
144 ORDER of USCA as to (69 in 2:11−cv−02958−RMG) Notice of Appeal, filed by South Carolina, State of, Nikki R Haley, (127 in 2:11−cv−02779−RMG) Notice of Appeal, filed by Nikki Haley, Alan Wilson. The Court remands the case to the district court to afford that court an opportunity to reexamine its opinion in light of the decision of the US Supreme Court in Arizona v. United States,____ U.S. ____, 132 S. Ct. 2492. Details in order. (jbry, ) (Entered: 08/16/2012)
146 ORDER and NOTICE of Hearing: Oral Argument set for 11/30/2012 10:00 AM in Charleston Courtroom TBD, U. S. Court House, Meeting St at Broad, Charleston before Honorable Richard M Gergel. Other details and deadlines set forth in Order. Associated Cases: 2:11−cv−02958−RMG, 2:11−cv−02779−RMG(sshe, ) (Entered: 08/17/2012)
147 MOTION to Amend/Correct (146 in 2:11−cv−02779−RMG) Notice of Hearing, Motion to Amend Scheduling Order by Nikki Haley, Alan Wilson, Nikki R Haley, South Carolina, State of. Response to Motion due by 9/10/2012. No proposed order.Associated Cases: 2:11−cv−02958−RMG, 2:11−cv−02779−RMG(Smith, James) (Entered: 08/22/2012)
148 ORDER and Notice of Rescheduled Hearing granting in part (101 in 2:11−cv−02958−RMG, 147 in 2:11−cv−02779−RMG) MOTION to Amend/Correct Motion to Amend Scheduling Order (146 in 2:11−cv−02779−RMG) Order and Notice of Hearing: Oral Argument rescheduled/set for 11/13/2012 10:00 AM in Charleston Courtroom, U. S. Court House, Meeting St at Broad, Charleston before Honorable Richard M Gergel. Revised deadlines and details set forth in Order Signed by Honorable Richard M Gergel on 8/22/2012. Associated Cases: 2:11−cv−02958−RMG, 2:11−cv−02779−RMG(sshe, ) (Entered: 08/22/2012)
149 USCA OPINION for 4CCA No 12−1233(L) and 12−1243 (73 in 2:11−cv−02958−RMG) Notice of Interlocutory Appeal, filed by Marie

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09/11/2012 09/11/2012 10/10/2012
10/10/2012 10/19/2012 10/23/2012 10/24/2012
10/24/2012 10/29/2012

Assa'ad−Faltas, (88 in 2:11−cv−02958−RMG) Notice of Interlocutory Appeal, filed by Marie Assa'ad−Faltas. Appeal Dismissed. (sshe, ) (Entered: 08/24/2012)
151 REPLY by Nikki Haley, Alan Wilson, Nikki R Haley, South Carolina, State of to (146 in 2:11−cv−02779−RMG) Notice of Hearing, (148 in 2:11−cv−02779−RMG) Order Setting Hearing on Motion,, Memorandum of Defendants on Limited Remand. (Attachments: # 1 Exhibit Copy of Valle del Sol decision)Associated Cases: 2:11−cv−02958−RMG, 2:11−cv−02779−RMG(Smith, James) (Entered: 09/11/2012)
152 REPLY by Lowcountry Immigration Coalition Memo on Supplemental Authority Pursuant to Limited Remand. Associated Cases: 2:11−cv−02779−RMG, 2:11−cv−02958−RMG(Dunn, Susan) Modified on 9/12/2012 to correct filer(s) listed on document per filing user(sshe, ). (Entered: 09/11/2012)
153 REPLY by Nikki Haley, Alan Wilson, Nikki R Haley, South Carolina, State of to (106 in 2:11−cv−02958−RMG, 152 in 2:11−cv−02779−RMG) Reply, (146 in 2:11−cv−02779−RMG, 100 in 2:11−cv−02958−RMG) Notice of Hearing, (109 in 2:11−cv−02958−RMG) Supplement, (107 in 2:11−cv−02958−RMG) Supplement, (148 in 2:11−cv−02779−RMG, 102 in 2:11−cv−02958−RMG) Order Setting Hearing on Motion,, Response to Memoranda of Plaintiffs on Limited Remand. Associated Cases: 2:11−cv−02958−RMG, 2:11−cv−02779−RMG(Smith, James) (Entered: 10/10/2012)
154 REPLY by Lowcountry Immigration Coalition to Memorandum of Defendants on Limited Remand. (Attachments: # 1 Exhibit Transcript of Hearing on Preliminary Injunction)(Dunn, Susan) (Entered: 10/10/2012)
155 MOTION to Appear Pro Hac Vice by Christina Iturralde ( Filing fee $ 250 receipt number 0420−4367193) by Lowcountry Immigration Coalition. Response to Motion due by 11/5/2012. (Attachments: # 1 Application, # 2 Exhibit Certificate of Good Standing)Proposed order is being emailed to chambers with copy to opposing counsel.(Dunn, Susan) Modified on 10/22/2012 to edit description for attachment(sshe, ). (Entered: 10/19/2012)
156 ORDER granting 155 Motion for Christina Iturralde to Appear Pro Hac Vice for Plaintiffs. Signed by Honorable Richard M Gergel on 10/23/2012.(sshe, ) (Entered: 10/24/2012)
157 REPLY by Nikki Haley, Alan Wilson, Nikki R Haley, South Carolina, State of to (144 in 2:11−cv−02779−RMG, 98 in 2:11−cv−02958−RMG) USCA Order, (111 in 2:11−cv−02958−RMG) Reply, (106 in 2:11−cv−02958−RMG, 152 in 2:11−cv−02779−RMG) Reply, (146 in 2:11−cv−02779−RMG, 100 in 2:11−cv−02958−RMG) Notice of Hearing, (151 in 2:11−cv−02779−RMG, 105 in 2:11−cv−02958−RMG) Reply, (109 in 2:11−cv−02958−RMG) Supplement, (107 in 2:11−cv−02958−RMG) Supplement, (154 in 2:11−cv−02779−RMG) Reply, (110 in 2:11−cv−02958−RMG, 153 in 2:11−cv−02779−RMG) Reply,, (148 in 2:11−cv−02779−RMG, 102 in 2:11−cv−02958−RMG) Order Setting Hearing on Motion,, Reply to Responses of Plaintiffs. Associated Cases: 2:11−cv−02958−RMG, 2:11−cv−02779−RMG(Smith, James) (Entered: 10/24/2012)
158 REPLY by Keller Barron, Yajaira Benet−Smith, Nuevos Caminos, Jane Doe(No 1), Jane Doe(No 2), John Doe, Sandra Jones, Lowcountry Immigration Coalition, John McKenzie, Service Employees International Union, South Carolina Hispanic Leadership Council, South Carolina Victim Assistance Network, Southern Regional Joint Board of Workers United, Mujeres De Triunfo to 152 Reply, 153 Reply,, to Defendants' Response Pursuant to Limited Remand. (Dunn, Susan) (Entered: 10/24/2012)
159 TEXT ORDER: The State Defendants have offered to submit an affidavit from the South Carolina Department of Public Safety regarding its interpretation of Act 69 § 6(D)(4) and whether state or local law enforcement officials can lawfully deliver a person suspected of being unlawfully present in the United States to a federal facility without express federal authorization. (Dkt. No. 113 at 4 n.3). State Defendants are directed to submit the offered affidavit within five days of this order. AND IT IS SO ORDERED. Entered at

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11/01/2012 11/06/2012
11/06/2012 11/06/2012
11/13/2012 11/15/2012 12/07/2012 12/10/2012 12/17/2012

the direction of the Honorable Richard M Gergel on 10/29/12. Associated Cases: 2:11−cv−02958−RMG, 2:11−cv−02779−RMG(ltap, ) (Entered: 10/29/2012)
160 AFFIDAVIT in Support re (113 in 2:11−cv−02958−RMG, 157 in 2:11−cv−02779−RMG) Reply,, Affidavit of Eddie Johnson, DPS. Associated Cases: 2:11−cv−02958−RMG, 2:11−cv−02779−RMG(Smith, James) (Main Document 160 replaced on 11/5/2012) (sshe, ). Modified on 11/5/2012 to add to main document a corrected attachment provided by filing user that was filed separately(sshe, ). (Entered: 11/01/2012)
161 MOTION for Leave to File PLAINTIFFS UNOPPOSED MOTION FOR LEAVE TO FILE SUR−REPLY by Keller Barron, Yajaira Benet−Smith, Nuevos Caminos, Jane Doe(No 1), Jane Doe(No 2), John Doe, Sandra Jones, Lowcountry Immigration Coalition, John McKenzie, Service Employees International Union, South Carolina Hispanic Leadership Council, South Carolina Victim Assistance Network, Southern Regional Joint Board of Workers United, Mujeres De Triunfo. Response to Motion due by 11/26/2012. (Attachments: # 1 PLAINTIFFS SUR−REPLY, # 2 ORDER GRANTING PLAINTIFFS MOTION FOR LEAVE TO FILE A SUR−REPLY)Proposed order is being emailed to chambers with copy to opposing counsel.(Dunn, Susan) (Entered: 11/06/2012)
162 ORDER GRANTING 161 PLAINTIFFS' MOTION FOR LEAVE TO FILE A SUR−REPLY Signed by Honorable Richard M Gergel on 11/6/2012.(sshe, ) (Entered: 11/06/2012)
163 REPLY by Keller Barron, Yajaira Benet−Smith, Nuevos Caminos, Jane Doe(No 1), Jane Doe(No 2), John Doe, Sandra Jones, Lowcountry Immigration Coalition, John McKenzie, Service Employees International Union, South Carolina Hispanic Leadership Council, South Carolina Victim Assistance Network, Southern Regional Joint Board of Workers United, Mujeres De Triunfo, United States of America to (115 in 2:11−cv−02958−RMG, 160 in 2:11−cv−02779−RMG) Affidavit in Support, (162 in 2:11−cv−02779−RMG) Order on Motion for Leave to File Plaintiffs Sur−Reply. Associated Cases: 2:11−cv−02779−RMG, 2:11−cv−02958−RMG(Dunn, Susan) (Entered: 11/06/2012)
164 Minute Entry. Proceedings held before Honorable Richard M Gergel: Oral Argument Hearing held on 11/13/2012. The Court will issue an order. Court Reporter Amy Diaz. (erav, ) (Entered: 11/13/2012)
165 ORDER: The Court hereby dissolves the preliminary injunction regarding Section 6 of Act 69, except as to Section 6(B)(2), and leaves in place all other aspects of the preliminary injunction issued on December 22, 2011. Further details set forth in Order. Signed by the Honorable Richard M Gergel on 11/15/12. Associated Cases: 2:11−cv−02958−RMG, 2:11−cv−02779−RMG(ltap, ) (Entered: 11/15/2012)
166 NOTICE OF INTERLOCUTORY APPEAL as to (165 in 2:11−cv−02779−RMG) Order, by Nikki Haley, Alan Wilson, Nikki R Haley, South Carolina, State of. Filing fee $ 455, receipt number 0420−4447983. The Docketing Statement form, Transcript Order form, and CJA 24 form may be obtained from the Fourth Circuit website at www.ca4.uscourts.gov Appeal Record due by 12/21/2012. (Smith, James) (Entered: 12/07/2012)
167 Transmittal Sheet for Notice of Appeal to USCA re (121 in 2:11−cv−02958−RMG, 166 in 2:11−cv−02779−RMG) Notice of Interlocutory Appeal, The Clerk's Office hereby certifies the record and the docket sheet available through ECF to be the certified list in lieu of the record and/or the certified copy of the docket entries. (sshe, ) (Entered: 12/10/2012)
169 MOTION to Withdraw as Attorney by Keller Barron, Yajaira Benet−Smith, Nuevos Caminos, Jane Doe(No 1), Jane Doe(No 2), John Doe, Sandra Jones, Lowcountry Immigration Coalition, John McKenzie, Service Employees International Union, South Carolina Hispanic Leadership Council, South Carolina Victim Assistance Network, Southern Regional Joint Board of Workers United, Mujeres De Triunfo. Response to Motion due by 1/7/2013. No proposed order. Filed by clerk per chambers.(sshe, ) (Entered: 12/17/2012)

Case: 2:11-cv-2779 As of: 02/13/2013 02:39 PM EST 56 of 56

12/17/2012 12/27/2012

171 ORDER of USCA consolidates 4CCA case nos. 12−2514, 12−2533 and 12−1096(L) as to (121 in 2:11−cv−02958−RMG, 166 in 2:11−cv−02779−RMG) Notice of Interlocutory Appeal, filed by South Carolina, State of, Nikki R Haley, Nikki Haley, Alan Wilson, (69 in 2:11−cv−02958−RMG) Notice of Appeal, filed by South Carolina, State of, Nikki R Haley, (127 in 2:11−cv−02779−RMG) Notice of Appeal, filed by Nikki Haley, Alan Wilson (sshe, ) (Entered: 12/18/2012)
172 ORDER granting 169 Motion to Withdraw as Attorney. Attorney Diana Sagorika Sen is terminated from representation in this matter. Signed by Honorable Richard M Gergel on 12/27/12.(ltap, ) (Entered: 12/27/2012)