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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.

) ) ) ) CIVIL ACTION NO. 2:11-cv-02958-RMG ) ) ) ) ) ) ) )

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

The United States of America, the plaintiff herein, respectfully alleges:

NATURE OF THE ACTION

1. In this action, the United States seeks to declare invalid and enjoin the enforcement of

certain provisions of Act No. 69, as enacted by the State of South Carolina on June 27, 2011,

because such provisions are preempted by federal law and therefore violate the Supremacy

Clause of the United States Constitution.

2. In our constitutional system, the federal government has preeminent authority to

regulate immigration matters and to conduct foreign relations. This authority derives from the

Constitution and numerous acts of Congress. The nation’s immigration laws reflect a careful and

considered balance of national law enforcement, foreign relations, and humanitarian interests.

Congress has assigned to the United States Department of Homeland Security, the Department of

Justice, and the Department of State, along with other federal agencies, the enforcement and

administration of these immigration-related laws. In administering these laws, the federal

agencies balance the complex – and often competing – objectives that animate federal

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immigration law and policy. Although States may exercise their police power in a manner that has an incidental or indirect effect on aliens, a State may not establish its own immigration policy or enforce state laws in a manner that interferes with federal immigration laws. The Constitution and the federal immigration laws do not permit the development of a patchwork of disparate state and local immigration policies throughout the country.
3. Despite the preeminent federal authority and responsibility over immigration and foreign relations, the State of South Carolina recently enacted Act No. 69, which addresses multiple aspects of immigration regulation and enforcement and is scheduled to become effective on January 1, 2012. The provisions of Act No. 69, working individually and in concert, seek to punish unlawful entry and presence of aliens such as by requiring, whenever practicable, a determination of immigration status during any lawful stop, detention, investigation, or arrest by the police where there is “reasonable suspicion” that an individual is unlawfully present, and by establishing new state criminal sanctions against unlawfully present aliens. The mandate to enforce Act No. 69 is reinforced by a provision allowing a resident of any political subdivision of South Carolina to file suit against any such subdivision that enacts “any ordinance or policy that intentionally limits or prohibits a law enforcement officer, local official, or local government employee from seeking to enforce a state law with regard to immigration” (Section 1). Any political subdivision held liable under this provision faces civil penalties between $1,000 and $5,000 “for each day that the enactment, action, policy, or practice remains or remained in effect.”
4. Act No. 69 requires state and local officers and officials to take certain actions in relation to aliens without regard to the objectives that Congress has established for the federal immigration system. This failure to abide by the interests animating federal immigration law
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provides sufficient reason that Act No. 69 is preempted. But just as importantly, even where South Carolina appears to pursue a goal of the federal system, it does so in a way that disregards federal priorities, thereby necessarily resulting in a disruption of federal enforcement and a burden on resources that focus on aliens who pose a threat to national security or public safety.
5. If allowed to go into effect, Act No. 69’s enforcement scheme will conflict with and undermine the federal government’s careful balance of immigration enforcement priorities and objectives. For example, it will impose significant and counterproductive burdens on the federal agencies charged with enforcing the national immigration scheme, diverting resources and attention from the dangerous aliens whom the federal government targets as its top enforcement priority. It will cause the detention and harassment of authorized visitors, immigrants, and citizens who do not have or carry identification documents specified by the statute, or who otherwise will be swept within Act No. 69’s rigid approach of universal, undifferentiated enforcement. It will conflict with longstanding federal law governing the registration and movement of aliens. It will undermine federal law and invade federal authority by imposing punitive sanctions for conduct that falls outside of the State’s police powers and that Congress affirmatively decided should not be subject to such sanctions. And it will interfere with and undermine the federal government’s control over relations with foreign governments.
6. The United States understands the State of South Carolina’s legitimate concerns about illegal immigration, and has undertaken significant efforts both to secure our nation’s borders and to address the problems created by unlawfully present aliens. The federal government, moreover, welcomes cooperative efforts by States and localities to aid in the enforcement of the nation’s immigration laws. But the United States Constitution forbids South Carolina from supplanting the federal government’s immigration regime with its own State-specific immigra-
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tion policy – a policy that, in purpose and effect, interferes with the numerous interests the federal government must balance when enforcing and administering the immigration laws and disrupts the balance actually established by the federal government. Accordingly, and as set forth below, Act No. 69 is invalid under the Supremacy Clause of the United States Constitution and must be declared unconstitutional and enjoined.
JURISDICTION AND VENUE 7. This action arises under the Constitution of the United States, Article VI, Clause 2, and Article I, Section 8, and the Immigration and Nationality Act (“INA”), 8 U.S.C. §§ 1101 et seq. This Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 1331 and 1345, and the United States seeks remedies under 28 U.S.C. §§ 1651, 2201, and 2202. 8. Venue lies in the District of South Carolina pursuant to 28 U.S.C. § 1391(b), and in the Charleston Division pursuant to Local Civil Rule 3.01(A)(1). Defendants are the State of South Carolina and the Governor of South Carolina, who resides in the State. A substantial part of the events or omissions giving rise to the claims in this action occurred in South Carolina, and the defendants do business in this Division relating to the events or omissions alleged herein.
PARTIES 9. The United States of America is the plaintiff in this action, suing on its own behalf, as well as on behalf of the United States Department of Homeland Security (“DHS”), the Department of Justice (“DOJ”), and the Department of State. 10. DHS is an executive department of the United States. See Homeland Security Act, Pub. L. No. 107-296, 116 Stat. 2135 (2002). DHS is responsible for the administration and enforcement of laws relating to immigration, as well as the investigation of immigration crimes and protection of the United States border against the illegal entry of aliens. See 8 U.S.C.
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§ 1103. DHS is also responsible for providing citizenship and immigration services through U.S. Citizenship and Immigration Services.
11. DOJ is an executive department of the United States. See Act to Establish the Department of Justice, ch. 150, 16 Stat. 162 (1870). The Attorney General, as the head of DOJ, shares certain immigration-related responsibilities with the Secretary of Homeland Security, and he may, among his various immigration functions, order aliens removed from the United States and order the cancellation of removal. See, e.g., 8 U.S.C. §§ 1103, 1158, 1182, 1227, 1229a, 1229b.
12. The Department of State is an executive department of the United States. See State Department Basic Authorities Act of 1956, Pub. L. No. 84-885, as amended; 22 U.S.C. §§ 2651 et seq. The Department of State manages the foreign affairs of the United States under the direction of the President, and is partially responsible for administering certain aspects of the federal immigration laws, including but not limited to the administration of visas.
13. Defendant, the State of South Carolina, is a State of the United States that entered the Union as the eighth State in 1788.
14. Defendant, Governor Nikki R. Haley, is the Governor of South Carolina, and is being sued in her official capacity.
FACTUAL ALLEGATIONS Federal Authority and Law Governing Immigration and the Status of Aliens 15. The Supremacy Clause of the United States Constitution mandates that “[t]his Constitution, and the Laws of the United States which shall be made in Pursuance thereof . . . 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. VI, cl. 2.
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16. The Constitution affords the federal government the power to “establish an 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. Further, the federal government has broad authority to establish the terms and conditions for the entry and continued presence of aliens in the United States, and to regulate the status of aliens within the boundaries of the United States.
17. The Constitution affords the President of the United States the authority to “take Care that the Laws be faithfully executed.” U.S. Const., art. II, § 3. Further, the President has broad authority over foreign affairs. The establishment and implementation of policies toward other countries are exclusively reserved for the federal government, and the treatment of immigrants from other countries is inextricably tied up with foreign policy. Immigration law, policy, and enforcement priorities are affected by and impact U.S. foreign policy, and are themselves the subject of diplomatic arrangements.
18. Congress has exercised its authority to make laws governing immigration and the status of aliens within the United States by enacting the various provisions of the Immigration and Nationality Act and other laws regulating immigration. Through the INA, Congress set forth the framework by which the federal government determines which aliens may be eligible to enter and reside in the United States, which aliens may be removed from the United States, the consequences of unlawful presence, the penalties on persons who violate the procedures established for entry, the conditions of residence, and the employment of aliens, as well as the process by which certain aliens may ultimately become naturalized citizens of the United States. See 8 U.S.C. §§ 1101 et seq. The INA also vests the executive branch with considerable discretion in enforcing the provisions of federal immigration laws, generally allowing federal agencies to ultimately decide whether particular immigration remedies are appropriate in individual cases.
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19. In exercising its significant enforcement discretion regarding aliens and immigration, the federal government prioritizes for arrest, detention, prosecution, and removal those aliens who pose a danger to national security or a risk to public safety. Consistent with these enforcement priorities, the federal government targets aliens engaged in or suspected of terrorism or espionage; aliens convicted of crimes, with a particular emphasis on violent criminals, felons, and repeat offenders; certain gang members; aliens subject to outstanding criminal warrants; and fugitive aliens, especially those with criminal records.
20. In crafting federal immigration law and policy, Congress has necessarily taken into account multiple and often competing national interests. Ensuring effective enforcement of the provisions against illegal immigration and unlawful presence is a highly important interest, but it is not the singular goal of the federal immigration laws. The laws also take into account other uniquely national interests, including facilitating trade and commerce; welcoming those foreign nationals who visit or immigrate lawfully and ensuring their fair and equitable treatment wherever they may reside; responding to humanitarian concerns at the global and individual levels; and otherwise ensuring that the treatment of aliens present in our nation does not harm our foreign relations with the countries from which they come or jeopardize the treatment of U.S. citizens abroad. Because immigration control and management is “a field where flexibility and the adaptation of the congressional policy to infinitely variable conditions constitute the essence of the program,” United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 543 (1950) (internal citations omitted), Congress vested substantial discretion in the President and the administering federal agencies to adjust the balance of these multiple interests as appropriate – both globally and in individual cases.
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21. Congress has tasked DHS and DOJ with overseeing significant portions of the United States’ immigration interests, and has provided each with specific powers to promote the various goals of the federal immigration scheme and to enforce the federal immigration authority under the INA. See 8 U.S.C. § 1103. The Department of State is also empowered by the INA to administer aspects of the federal immigration laws, including visa programs. See, e.g., id. § 1104. DHS may generally order an alien immediately removed where the alien either fails to present the appropriate documentation or commits fraud at the time of the alien’s inspection. DHS may also place an alien into removal proceedings, and may ultimately remove an alien who entered the United States unlawfully or violated the conditions of admission. See id. §§ 1182, 1225, 1227, 1228(b), 1229, 1229a, 1231. DOJ may order an alien removed for any of several reasons, including if the alien has stayed in the United States longer than permitted or has engaged in certain unlawful conduct. See id. §§ 1227, 1229a. In addition to removal, the statute authorizes DHS and DOJ to employ civil and criminal sanctions against an alien for immigration violations, such as unlawful entry, failing to properly register with the federal government, and document fraud. See, e.g., id. §§ 1325, 1306, 1324c. However, in the exercise of discretion, the administering agencies may decide not to apply a specific sanction and may, among other steps, permit the alien to depart the country voluntarily at his or her own expense and may even decide not to pursue removal of the alien if deferred federal enforcement will serve some other goal of the immigration system. See id. § 1229c.
22. Under federal law, both DHS and DOJ may, for humanitarian or other reasons, decline to exercise certain immigration sanctions or grant an otherwise unlawfully present or removable alien an immigration benefit – and potentially adjust that alien’s immigration status – if the alien meets certain conditions. See, e.g., 8 U.S.C. § 1158 (providing asylum eligibility for
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aliens who have a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion, if removed); id. § 1254a (providing temporary protected status for otherwise eligible nationals of a foreign state that the Secretary of Homeland Security has specially designated as undergoing armed conflict, a natural disaster, or other extraordinary circumstance); id. § 1227(a)(1)(E)(iii) (providing discretion to waive grounds for deportability “for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest” for aliens who are otherwise deportable for encouraging unlawful entry of an immediate family member); id. § 1229b (granting the Attorney General discretion to cancel removal for certain aliens). DHS also has the authority to permit aliens, including those who would be inadmissible, to temporarily enter the United States for “urgent humanitarian reasons” or “significant public benefit.” Id. § 1182(d)(5). DHS may also refrain from enforcement actions, in appropriate circumstances, against persons unlawfully present in the United States. See 8 C.F.R. § 274a.12(c)(14) (discussing deferred action).
23. In light of these statutory provisions, DHS and DOJ exercise discretion with respect to, among other things, whether to allow an unlawfully present alien to voluntarily depart, whether to place an alien into removal proceedings, whether to impose criminal sanctions on an alien who has committed an immigration violation, whether to allow an unlawfully present alien to remain in the country without physical detention in certain circumstances, and whether to grant an alien humanitarian or some other form of relief. Decisions to forego removal or criminal penalties result not only from resource constraints, but also from affirmative policy considerations – including humanitarian and foreign policy interests – established by Congress and balanced by the executive branch.
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24. Congress, which holds exclusive authority for establishing alien status categories and the consequences thereof and for setting the conditions of aliens’ entry and continued presence, has affirmatively decided that unlawful presence – standing alone – should not subject an alien to criminal penalties, incarceration, or other punitive measures, although unlawful presence may subject the alien to the civil remedy of removal. See 8 U.S.C. §§ 1182(a)(6)(A)(i), 1227(a)(1)(B) & (C). Unlawful presence becomes an element of a criminal offense, however, when an alien is found in the United States after having been previously removed or after voluntarily departing from the United States while a removal order was pending. See id. § 1326. Further, unlawful entry into the United States is a criminal offense. See id. § 1325. Congress has specifically authorized federal immigration officers to patrol the United States border, as well as to search vehicles and lands near the border, to prevent aliens from unlawfully entering the United States, and it has empowered those officers to arrest an alien who is seen attempting unlawful entry at the border or who the officer has reason to believe has unlawfully entered the county and is likely to escape before a warrant can be obtained. See id. § 1357.
25. Congress has also created a comprehensive alien registration system for monitoring the entry and movement of aliens within the United States. See 8 U.S.C. §§ 1201, 1301-1306; see also 8 C.F.R. Part 264 (regulations regarding “Registration and Fingerprinting of Aliens in the United States”). Under this federal alien registration system, aliens seeking to enter the United States, either permanently or temporarily (other than diplomatic and official visitors), must be registered by the Department of State at the time of visa application. See 8 U.S.C. §§ 1201(b), 1301, 1302. Any alien who is age 14 or over, who has not otherwise been registered and fingerprinted under the INA, and who remains in the United States for 30 days or longer, must apply to be registered and fingerprinted by DHS. See id. § 1302(a). The INA provides that
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any alien who is required to apply for registration and willfully fails to do so may be fined and imprisoned not more than six months. See id. § 1306(a); 18 U.S.C. § 3571. Aliens are required to report their change of address to DHS within ten days of such change. See 8 U.S.C. § 1305.
26. As part of this federal alien registration system, Congress further specified the content of the registration forms, see 8 U.S.C. § 1303, what special circumstances may require deviation, id., and the confidential nature of registration information, see id. § 1304. Aliens who are 18 years of age and older are required to carry in their possession their certificate of alien registration or alien registration receipt card. See id. § 1304(e). The INA provides that any alien who fails to comply with this requirement may be fined and imprisoned not more than 30 days. See id.; 18 U.S.C. § 3571.
27. However, there are several circumstances in which an alien would not be provided with evidence of registration notwithstanding the government’s knowledge of the alien’s presence. Federal law provides a variety of humanitarian options for aliens – including unlawfully present aliens – who have been victimized or fear persecution or violence, including but not limited to asylum, special visas for victims of trafficking, and special visas for victims of violent crime. In order to qualify for such a program, an alien needs to apply and satisfy the criteria required by the program. During the pendency of the application process, an alien may not have evidence of registration even though the federal government is aware of the alien’s presence, has decided against removing the alien, obviously has no interest in prosecuting the alien for a crime, and may even have affirmatively granted the alien authorization to work in the United States. These humanitarian programs demonstrate that one aspect of federal immigration policy is to assist and welcome such victims in the United States, notwithstanding possible temporary unlawful presence. It would therefore violate federal policy to prosecute or detain
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these types of aliens for lack of registration papers – which is often known to the federal government and, for affirmative policy reasons, not used as the basis for a removal proceeding or criminal prosecution.
28. Congress has further exercised its authority over the entry and movement of aliens by criminalizing the smuggling of unlawful aliens into the country, as well as the facilitation of unlawful immigration within the nation’s borders. See 8 U.S.C. § 1324. Specifically, federal law prohibits the knowing attempt to bring an alien into the United States “at a place other than a designated port of entry or place other than as designated by the [Secretary of Homeland Security],” id. § 1324(a)(1)(A)(i), and imposes criminal penalties on a person who, “knowing or in reckless disregard” of the fact that an alien has unlawfully entered or remained in the United States, attempts to “transport or move” the alien within the United States “in furtherance of such violation of law.” Id. § 1324(a)(1)(A)(ii). These criminal sanctions are directed at the smuggler and are not meant to serve as a criminal sanction for the unlawfully present alien or for incidental transportation. Congress chose not to penalize an unlawfully present alien’s mere movement within the country or across state lines unless other factors are present, nor do the federal immigration laws penalize the provision of transportation services in such situations.
29. Federal law also imposes criminal penalties on a person who, “conceals, harbors, or shields from detection,” an alien in “knowing or in reckless disregard” of the fact that the alien has unlawfully entered or remained in the United States. 8 U.S.C. § 1324(a)(1)(A)(iii). Federal law does not, as a general matter, restrict the movement of aliens – whether lawfully or unlawfully present – between different States. Federal law additionally exempts from certain of these prohibitions religious organizations which “encourage, invite, call, allow, or enable” an alien to
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volunteer as a minister or missionary, and which provide the alien with basic living expenses. Id. § 1324(a)(1)(C).
30. DHS is primarily charged with administering and enforcing the INA and other laws relating to immigration, which it accomplishes mainly through its components, U.S. Immigration and Customs Enforcement (“ICE”), U.S. Customs and Border Protection (“CBP”), and U.S. Citizenship and Immigration Services (“USCIS”). See 8 U.S.C. § 1103. DHS also receives state and local cooperation in its enforcement efforts. See id. § 1357(g). In addition, Congress prescribed by statute a number of ways in which States may assist the federal government in its enforcement of the immigration laws. See, e.g., id. § 1103(a)(10) (authorizing DHS to empower state or local law enforcement with immigration enforcement authority when an “actual or imminent mass influx of aliens . . . presents urgent circumstances requiring an immediate Federal response”); id. § 1357(g)(1) - (9) (authorizing DHS to enter into agreements to provide appropriately trained and supervised state and local officers with the authority to perform functions related to the investigation, apprehension, and detention of aliens); id. § 1252c (authorizing state and local law enforcement to arrest aliens who are unlawfully present in the United States and were previously removed after being convicted of a felony in the United States).
31. Through a variety of programs, DHS works cooperatively with States and localities to accomplish its mission to enforce the federal immigration laws. ICE administers the Law Enforcement Support Center (“LESC”), which is operational 24 hours a day, 7 days a week, and serves as a national enforcement operations center by – among other responsibilities – promptly providing immigration status and identity information to local, state, and federal law enforcement agencies regarding aliens suspected of, arrested for, or convicted of criminal activity.
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Further, ICE and CBP officers respond to requests from state and local law enforcement officers on a variety of immigration matters, including assisting with translation, determining alienage, and evaluating immigration documentation.
32. The opportunity that federal law provides for cooperation by state and local officials does not mean, however, that States can enact their own immigration policies to rival the national immigration policy; the formulation of immigration policy and the balancing of immigration enforcement priorities is a matter reserved for the federal government. Such regulation does not fall within the States’ traditional police powers and remains the exclusive province of the federal government.
South Carolina’s Act No. 69 33. On June 27, 2011, Governor Nikki R. Haley signed into law Act No. 69, which contains several provisions designed to work together to discourage and deter the entry into and presence of unlawful aliens in South Carolina through a statute that regulates numerous aspects of these aliens’ lives. Indeed, Governor Haley, in signing Act No. 69, said that one purpose of the law is to “make sure” that unlawfully present aliens find “another State to go to.” See Governor Nikki Haley Signs Illegal Immigration Reform Bill (video recording), available at http://www.youtube.com/watch?v=BMZikpA3_8U (uploaded by “nikkihaley”). 34. Act No. 69 implements South Carolina’s stated immigration policy through a wideranging immigration regime that regulates everything from the transportation and harboring of aliens (Section 4), to the carrying of identification and the making or using of false identification (Sections 5, 6, and 15), to the verification of immigration status (Section 6), and other aspects of an alien’s presence in the United States. Unlike federal law, for example, Act No. 69 criminalizes an alien’s own actions in “allowing” oneself to be transported or in “concealing” or
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“sheltering” oneself “with intent to” avoid apprehension or detection. Act No. 69 further expands the opportunities for South Carolina police to discover the commission of these various crimes, and thus to push aliens toward incarceration, by enforcing a mandatory immigration status verification system.
35. By pursuing retribution and ignoring every other objective embodied in the federal immigration system (including the federal government’s prioritization of the removal of criminal aliens), Act No. 69 conflicts with and otherwise stands as an obstacle to Congress’s demand for sufficient flexibility in the enforcement of federal immigration law to accommodate the competing interests of immigration control, national security and public safety, humanitarian concerns, and foreign relations – a balance implemented through the supervision and policies of the President and other executive officers with the discretion to enforce federal immigration laws. See 8 U.S.C. §§ 1101 et seq. South Carolina’s punitive scheme would further undermine federal foreign policy, in that the federal government has – as a matter of reciprocal, bilateral understandings – established that unlawfully present foreign nationals (who have not committed some other violation of law) should be removed without criminal sanction or other punitive measures and that the same treatment should be afforded to American nationals who are unlawfully present in other countries. Act No. 69 would thus interfere with federal policy and prerogatives in the enforcement of the U.S. immigration laws and the conduct of foreign affairs. All of these provisions are backed by a private right of action that ensures a policy of full enforcement by every political subdivision in the State (Section 1).
36. Act No. 69 attempts to override federal policies and priorities in the area of immigration enforcement and to directly regulate the conditions of an alien’s presence in the United States despite the fact that those subjects are federal domains. South Carolina’s adoption
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of a policy focused exclusively on punishing unlawful presence disrupts the national enforcement regime set forth in the INA and reflected in federal immigration enforcement policy and practice, including the federal government’s prioritization of enforcement against criminal aliens. Thus, because Act No. 69 attempts to set state-specific immigration policy, it legislates in an area constitutionally reserved to the federal government, conflicts with federal immigration laws and policy, and impedes the accomplishment and execution of the full purposes and objectives of Congress, and is therefore preempted.
37. Several other States have passed or are contemplating passing legislation similar to Act No. 69. The development and implementation of various conflicting state immigration enforcement policies will result in further and significant damage to (1) U.S. foreign relations, (2) the United States’ ability to fairly and consistently enforce the federal immigration laws and provide immigration-related humanitarian relief, and (3) the United States’ ability to exercise the discretion vested in the executive branch under the INA, and will result in a patchwork of differing requirements for unlawfully present aliens and therefore their non-uniform treatment across the United States.
Section 4 of Act No. 69 38. Section 4 of Act No. 69 establishes four criminal offenses related to the transportation or harboring of “a person who has come to, entered, or remained in the United States in violation of law” – two offenses involving aliens themselves and two involving persons who transport or harbor them. Under Section 4, it is unlawful for an unlawfully present alien, “with intent to further [his or her] unlawful entry into the United States or avoiding apprehension or detection of the person’s unlawful immigration status,” either (1) “to allow [him- or herself] to be transported, moved, or attempted to be transported within the State or to solicit or conspire to
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be transported or moved within the State” or (2) “to conceal, harbor, or shelter [him- or herself] from detection or to solicit or conspire to conceal, harbor, or shelter [him- or herself] from detection . . . .”
39. In relation to other persons, Section 4 makes it unlawful for a person, “knowingly or in reckless disregard” of the fact that someone is an unlawfully present alien and “with intent to further [the alien’s] unlawful entry into the United States or avoiding apprehension or detection of [the alien’s] unlawful immigration status,” either (1) “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,” or (2) “to conceal, harbor, or shelter from detection or to solicit or conspire to conceal, harbor, or shelter from detection that person . . . .”
40. All of these offenses are felonies, punishable by a fine up to $5,000 and/or imprisonment up to five years. Section 4 sets forth certain explicit exceptions, including “[p]roviding health care treatment or services to a natural person” and certain programs, such as soup kitchens, that provide certain “in-kind services at the community level.” S.C. Act No. 69 § 4 (amending S.C. Code § 16-9-460).
41. Congress already regulates numerous aspects of the movement of aliens, including imposing criminal sanctions on persons who unlawfully bring aliens into the United States, 8 U.S.C. § 1323; imposing criminal sanctions on persons who transport unlawfully present aliens in furtherance of their unlawful entry or presence and persons who conceal or harbor such aliens, id. § 1324(a); penalizing persons who assist certain inadmissible aliens to enter the country, id. § 1327; and penalizing the importation of aliens for immoral purposes, id. § 1328. In short, “it is the business of the political branches of the Federal Government, rather than that of either the States or the Federal Judiciary, to regulate the conditions of entry and residence of aliens.”
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Mathews v. Diaz, 426 U.S. 67, 84-85 (1976) (emphasis added). Congress indicated what role it saw for the States in this area when it expressly authorized “all . . . officers whose duty it is to enforce criminal laws” to make arrests for violation of 8 U.S.C. § 1324. See 8 U.S.C. § 1324(c).
42. Moreover, unlike the federal statutes in this area, Section 4 sets forth separate offenses expressly directed at aliens, contrary to Congress’s decision not to criminalize transportation and harboring activities on the part of aliens themselves. Further, even aside from these and other textual differences, enforcement of Section 4 will be subject to state decisions regarding prosecutorial discretion and statutory interpretation, which will undermine federal authority to establish immigration enforcement priorities and strategies. Thus, Section 4 of Act No. 69 conflicts with and otherwise stands as an obstacle to the full purposes and objectives of Congress in creating a comprehensive system of penalties for the transportation and harboring of unlawfully present aliens.
Sections 5, 6 (part), and 15 of Act No. 69 43. Section 5 of Act No. 69 makes it a misdemeanor, punishable by a fine up to $100 and/or imprisonment up to 30 days, “to fail to carry in the person’s personal 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.” S.C. Act No. 69 § 5 (adding S.C. Code § 16-17-750). 44. Section 6 of Act No. 69, in part, makes it a criminal offense to display or possess a false picture identification “for the purpose of offering proof of the person’s lawful presence in the United States.” A first offense is a misdemeanor punishable by a fine up to $100 or imprisonment up to 30 days, and each subsequent offense is a felony punishable by a fine up to
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$500 or imprisonment up to five years. S.C. Act No. 69 § 6 (adding S.C. Code § 17-13170(A)(2)).
45. Section 15 of Act No. 69 makes it a felony “to make, issue, or sell, or offer to make, issue, or sell, a false, fictitious, fraudulent, or counterfeit picture identification that is for use by an alien who is unlawfully present in the United States.” Violation is punishable by a fine up to $25,000 and/or imprisonment up to five years. S.C. Act No. 69 § 15 (adding S.C. Code § 16-13480).
46. Congress has created an extensive scheme for monitoring the entry and movement of aliens within the United States – that is, a comprehensive alien registration system. Congress has spoken in very specific terms regarding which aliens must register, see 8 U.S.C. §§ 1201, 1301, when they must register, id. § 1302, the content of the registration forms and what special circumstances may require deviation, id. § 1303, the confidential nature of registration information, id. § 1304, the circumstances under which an alien must possess registration documents after registering and the consequences for failing to do so, id., the circumstances under which a registered alien must report his movement to the government, id. § 1305, and the penalties for failing to register or to notify the government of a change in address, id. § 1306; see also 8 C.F.R. pt. 264 (Registration and Fingerprinting of Aliens in the United States). “[T]he federal government, in the exercise of its superior authority in this field, has enacted a complete scheme of regulation and has therein provided a standard for the registration of aliens, [and] states cannot, inconsistently with the purpose of Congress, conflict or interfere with, curtail or complement, the federal law, or enforce additional or auxiliary regulations.” Hines v. Davidowitz, 312 U.S. 52, 66-67 (1941); see United States v. Arizona, 641 F.3d 339, 354-56 (9th
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Cir. 2011). Accordingly, South Carolina’s attempt to enter this field by means of these provisions in Act No. 69 is preempted.
47. Moreover, all three of these South Carolina provisions establish criminal penalties that differ from those imposed by federal law and independent state mechanisms for enforcement, with likely prosecutorial decisions and judicial interpretations differing from those of federal authorities. Although state authorities may enforce federal immigration laws in cooperation with federal authorities, they must adhere to federal priorities and federal court interpretations in doing so; in contrast, South Carolina’s enforcement of its own immigration statutes would not be so constrained, creating the potential for contradictory interpretations and priorities.
Section 6 of Act No. 69 48. Other portions of Section 6 of Act No. 69 provide that if a law enforcement officer, in making a stop or arrest or even an investigation “for a criminal offense . . . 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.” The person is presumed to be lawfully present if he or she provides a valid driver’s license or picture identification issued by South Carolina or another State, a picture ID issued by the United States (including a passport or military identification), or a tribal picture identification. In absence of such identification, the person “may” still be presumed to be lawfully present “if the officer is able to otherwise verify that the person has been issued any of those forms of picture identification.”
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49. If an individual does not meet the presumption set forth in Section 6, the officer “shall make a reasonable effort, when practicable, to verify the person’s lawful presence in the United States,” either by contacting the State Illegal Immigration Enforcement Unit created by Act No. 69 (Section 17), by “submitting an Immigration Alien Query through the International Justice and Public Safety Network,” or by contacting U.S. Immigration and Customs Enforcement (“ICE”) within the Department of Homeland Security. The effort to determine lawful presence may last for “a reasonable amount of time.”
50. The federal government is responsible for “determining what aliens shall be admitted to the United States” and their “registration, documentation [of registration], and possession of [the] proof thereof.” See Toll v. Moreno, 458 U.S. 1, 11 (1982) (internal quotation marks omitted); United States v. Arizona, 641 F.3d at 355-56; see also Hines, 312 U.S. at 66-67. Identifying, detaining, and removing unlawfully present aliens are among the functions of U.S. Immigration and Customs Enforcement. See 8 U.S.C. § 1226; 8 C.F.R. § 236.1. The efforts of ICE to identify, detain, and remove unlawfully present aliens are focused on – in this order – “[a]liens who pose a danger to national security or a risk to public safety,” “[r]ecent illegal entrants,” and “[a]liens who are fugitives or otherwise obstruct immigration controls.” See Civil Immigration Enforcement: Priorities for the Apprehension, Detention, and Removal of Aliens (Mar. 2, 2011), available at http://www.ice.gov/news/releases/1103/110302washingtondc.htm.
51. Nevertheless, Congress has set forth certain specific circumstances under which state and local law enforcement officers may assist the federal government in enforcing immigration laws. For example, under the heading “Performance of immigration officer functions by State officers and employees,” an officer or employee of a State or political subdivision may, pursuant to a written agreement with the federal government, “perform a function of an immigration
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officer in relation to the investigation, apprehension, or detention of aliens in the United States.” 8 U.S.C. § 1357(g)(1). In doing so, however, “an officer or employee of a State or political subdivision of a State shall be subject to the direction and supervision” of federal officials. Id. § 1357(g)(3). Even without a written agreement, a state or local officer may “otherwise . . . cooperate with the Attorney General in the identification, apprehension, detention, or removal of aliens not lawfully present in the United States.” Id. § 1357(g)(10)(B) (emphasis added). But any systematic efforts by state and local governments to identify, apprehend, and detain aliens must be carried out in cooperation with the responsible federal officials, and “in a manner that maintains the ability to conform to the policies and priorities of [the Department of Homeland Security] and that ensures that individual state and local officers are at all times in a position to be – and, when requested, are in fact – responsive to the direction and guidance of federal officials.” See Guidance on State and Local Governments’ Assistance in Immigration Enforcement and Related Matters, available at http://www.dhs.gov/files/resources/guidancestate-local-assistance-immigration-enforcement.shtm.
52. Accordingly, Section 6 of Act No. 69 is preempted in at least three respects. First, given that Congress has clearly expressed its intent that state and local government officers may participate in identifying and apprehending unlawfully present aliens only in cooperation with federal officials, a state law that systematically requires state and local officers to identify and apprehend aliens contrary to that intent would be preempted. Under the mandatory verification scheme set forth in Section 6, however, all law enforcement officers in South Carolina must attempt to determine the immigration status of every person who is stopped, detained, investigated, or arrested for any “criminal offense” when “reasonable suspicion” of unlawful presence exists. The statute contains no provision for seeking or adhering to federal guidance
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regarding when such a determination is necessary or what constitutes “reasonable suspicion,” and no acknowledgment of the federal government’s focus on aliens who pose a danger or risk to public safety.
53. Second, Section 6 will significantly increase the submission of immigration verification requests to the federal government by presumptively requiring a determination of immigration status every time an officer “stops, detains, investigates, or arrests a person for a criminal offense” and has “reasonable suspicion” of unlawful presence. Indeed, Senator Larry Martin, a sponsor of the bill that became Act No. 69, said during a discussion of the bill in the South Carolina Senate Judiciary Committee that he “want[ed] the phones of the federal government to ring off the hook” as a result of the immigration status verifications required by Act No. 69. See 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-immigrationproposal-goes.html. Section 6 will require DHS to shift resources away from its chosen priorities, given both the sheer number of likely verification requests and the difficulty of differentiating between high and low priority requests. South Carolina’s submission of verification requests for even minor offenses would make it more difficult for DHS to pay timely attention to inquiries related to high-priority or time-sensitive enforcement targets – that is, those who pose a danger to national security or a risk to public safety.
54. Third, one of the objectives of Congress in immigration enforcement is “to protect the personal liberties of law-abiding aliens” – to protect them from “indiscriminate and repeated interception and interrogation by public officials . . . to leave them free from the possibility of inquisitorial practices and police surveillance.” Hines, 312 U.S. at 65-66, 74. Section 6 of Act No. 69, however, creates a significant risk of harassment of lawfully present aliens and even U.S.
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citizens. In absence of appropriate federal coordination and supervision, “reasonable suspicion” such as to require an immigration check under Act No. 69 could be understood as arising from a person’s inability to speak English well, a particular manner of dress, or even certain physical traits – characteristics shared by unlawful aliens, lawful aliens, and citizens. Further, many categories of aliens may not have documentation indicating that their presence is lawful – such as citizens of countries participating in the Visa Waiver Program or persons who have applied for asylum or temporary protected status, see 8 U.S.C. §§ 1158, 1187, 1254a – thus giving rise to “reasonable suspicion” of unlawful presence and requiring further detention for a “reasonable amount of time” while verification occurs. Indeed, nothing would prevent multiple detentions of the same lawfully present alien.
FIRST CAUSE OF ACTION – VIOLATION OF THE SUPREMACY CLAUSE 55. Plaintiff incorporates paragraphs 1 through 54 of the Complaint as if fully stated herein. 56. Sections 4, 5, 6, and 15 of Act No. 69, taken in whole and in part, represent an impermissible effort by South Carolina to establish its own immigration policy and to directly regulate the immigration status of aliens. In particular, these sections conflict with federal law and foreign policy, disregard federal policies, interfere with federal enforcement priorities in areas committed to the discretion of plaintiff United States, and otherwise impede the accomplishment and execution of the full purposes and objectives of federal law and foreign policy. 57. Sections 4, 5, 6, and 15 of Act No. 69 violate the Supremacy Clause, and are invalid.
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SECOND CAUSE OF ACTION – PREEMPTION UNDER FEDERAL LAW 58. Plaintiff incorporates paragraphs 1 through 54 of the Complaint as if fully stated herein. 59. Sections 4, 5, 6, and 15 of Act No. 69 are preempted by federal law, including 8 U.S.C. §§ 1101 et seq.
PRAYER FOR RELIEF WHEREFORE, plaintiff, the United States of America, respectfully prays that the Court: (1) Declare that Sections 4, 5, 6, and 15 of Act No. 69 are invalid, null, and void; (2) Enter a preliminary and a permanent injunction against the State of South Carolina, and its officers, agents, and employees, prohibiting the enforcement of Sections 4, 5, 6, and 15 of Act No. 69; (3) Assess the costs of this litigation against the defendants; and (4) Grant the plaintiff such other relief as the Court deems just and proper.
Respectfully submitted, TONY WEST Assistant Attorney General

s/William N. Nettles

WILLIAM N. NETTLES (I.D. #6586)

United States Attorney

Wells Fargo Building

1441 Main Street Suite 500

Columbia, South Carolina 29201

Telephone: (803) 929-3005

Facsimile: (803) 254-2912

E-mail:

bill.nettles@usdoj.gov

BARBARA M. BOWENS (I.D. #4004) Civil Chief

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Dated: October 31, 2011

ARTHUR R. GOLDBERG Assistant Director

W. SCOTT SIMPSON Senior Trial Counsel

Attorneys, Department of Justice

Civil Division, Room 7210

Post Office Box 883

Washington, D.C. 20044

Telephone: (202) 514-3495

Facsimile: (202) 616-8470

E-mail:

scott.simpson@usdoj.gov

COUNSEL FOR PLAINTIFF UNITED STATES OF AMERICA

26

 
 2:11-cv-02958-RMG Date Filed 12/22/11 Entry Number 64 Page 1 of 42

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

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State of South Carolina and Nikki R.

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Defendants,

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Lowcountry Immigration Coalition, et al., )

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Plaintiffs,

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Nikki R. Haley, in her official capacity as )

the Governor ofthe State of South Carolina,)

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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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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

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 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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 2:11-cv-02958-RMG Date Filed 03/04/14 Entry Number 153 Page 1 of 16

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

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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

2:11-cv-02958-RMG Date Filed 03/04/14 Entry Number 153 Page 4 of 16
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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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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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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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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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

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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

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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

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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

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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.

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The llonorable Richard M. Gergel
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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.

 
 Case: 2:11-cv-2958 As of: 03/27/2017 06:00 PM EDT 1 of 21

U.S. District Court District of South Carolina (Charleston) CIVIL DOCKET FOR CASE #: 2:11−cv−02958−RMG

CLOSED

United States of America v. South Carolina, State of et al Assigned to: Honorable Richard M Gergel related Case: 2:11−cv−02779−RMG Case in other court: 4CCA, 12−01233
4CCA, 12−01853 4CCA, 12−02514 12−01096, 4CCA Cause: 28:2201 Constitutionality of State Statute(s) Plaintiff

Date Filed: 10/31/2011 Date Terminated: 03/04/2014 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Plaintiff

United States of America

represented by William Norman Nettles Bill Nettles Law 2008 Lincoln Street Columbia, SC 29201 803−814−2826 Fax: 888−745−1381 Email: bill.nettles@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Arthur Robert Goldberg US Department of Justice Civil Division 20 Massachusetts Ave NW Room 6118 Washington, DC 20530 202−514−4783 Email: arthur.goldberg@usdoj.gov PRO HAC VICE ATTORNEY TO BE NOTICED

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 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 PRO HAC VICE ATTORNEY TO BE NOTICED

V. Defendant South Carolina, State of

represented by

Case: 2:11-cv-2958 As of: 03/27/2017 06:00 PM EDT 2 of 21

Defendant Nikki R Haley in her official capacity as the Governor of South Carolina
V. Interested Party Dr Marie Assa'ad−Faltas TERMINATED: 11/07/2011 Amicus United Mexican States

James Emory Smith , Jr SC Attorney General's Office PO Box 11549 Columbia, SC 29211 803−734−3970 Fax: 803−734−3677 Email: esmith@scag.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Dewayne Cook SC Attorney General's Office PO Box 11549 Columbia, SC 29211 803−734−3792 Fax: 803−734−3524 Email: bcook@scag.gov ATTORNEY TO BE NOTICED
represented by James Emory Smith , Jr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Dewayne Cook (See above for address) ATTORNEY TO BE NOTICED
represented by Christopher W Adams Christopher W Adams Law Office 102 Broad Street Suite C Charleston, SC 29401 843−577−2153 Fax: 877−883−9114 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 212−259−7163 Email: crclark@dl.com

Case: 2:11-cv-2958 As of: 03/27/2017 06:00 PM EDT 3 of 21

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

PRO HAC VICE
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
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
Henry L Solano (See above for address) PRO HAC VICE
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
Henry L Solano (See above for address) PRO HAC VICE
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

Case: 2:11-cv-2958 As of: 03/27/2017 06:00 PM EDT 4 of 21

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

Henry L Solano (See above for address) PRO HAC VICE
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
Henry L Solano (See above for address) PRO HAC VICE
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
Henry L Solano (See above for address) PRO HAC VICE
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
Henry L Solano (See above for address) PRO HAC VICE

Case: 2:11-cv-2958 As of: 03/27/2017 06:00 PM EDT 5 of 21

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

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

Case: 2:11-cv-2958 As of: 03/27/2017 06:00 PM EDT 6 of 21

Amicus Government of Honduras
Amicus Government of Nicaragua
Amicus Government of Paraguay

(See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Christopher R Clark (See above for address) PRO HAC VICE
Henry L Solano (See above for address) PRO HAC VICE
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
Henry L Solano (See above for address) PRO HAC VICE
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
Henry L Solano (See above for address) PRO HAC VICE
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)

Case: 2:11-cv-2958 As of: 03/27/2017 06:00 PM EDT 7 of 21

Amicus Government of Peru
Amicus Government of Uruguay
Amicus American Immigration Lawyers Association

PRO HAC VICE
Henry L Solano (See above for address) PRO HAC VICE
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
Henry L Solano (See above for address) PRO HAC VICE
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
Henry L Solano (See above for address) PRO HAC VICE
represented by Amanda Bethea Keaveny Amanda Bethea Keaveny Law Office 752 St Andrews Blvd Charleston, SC 29407 843−766−8430 Fax: 843−766−3688 Email: amanda@akilaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 10/31/2011
10/31/2011

# Docket Text
1 COMPLAINT against Nikki R Haley, South Carolina, State of, filed by United States of America.(sshe, ) (Entered: 11/01/2011)
2 Local Rule 26.01 Answers to Interrogatories by United States of America.(sshe, ) (Entered: 11/01/2011)

Case: 2:11-cv-2958 As of: 03/27/2017 06:00 PM EDT 8 of 21

10/31/2011 11/01/2011 11/01/2011 11/01/2011
11/01/2011
11/02/2011 11/02/2011
11/04/2011 11/07/2011 11/07/2011 11/07/2011 11/07/2011

4 Summons Issued as to Nikki R Haley, South Carolina, State of. (sshe, ) (Entered: 11/01/2011)
5 NOTICE of Hearing: Telephone Conference set for 11/1/2011 11:00 AM before Honorable Richard M Gergel. Attorneys are to initiate conference call and then call into Chambers. Court Staff needed.(sshe, ) (Entered: 11/01/2011)
6 MOTION to Appear Pro Hac Vice by William Scott Simpson by United States of America. Response to Motion due by 11/18/2011 (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(Bowens, Barbara) (Entered: 11/01/2011)
7 TEXT ORDER The parties have jointly requested the following schedule regarding the Plaintiff's preliminary injunction motion: (1) Plaintiff will move for a preliminary injunction by 11/7/11; (2) Defendants will respond to Plaintiff's motion for preliminary injunction by 11/22/11; (3) Plaintiff will file a reply to Defendants' memorandum regarding the motion for preliminary injunction by 12/5/11; (4) Defendants' time to answer or otherwise plead is extended to 1/17/12; and (5) Oral argument on the motion for preliminary injunction is 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. The Court hereby sets 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, ) Modified on 11/4/2011 to edit docket text per Chambers re (3) reply due by 12/5/11(sshe, ). (Entered: 11/01/2011)
8 MOTION to Intervene by Dr Marie Assa'ad−Faltas. Response to Motion due by 11/18/2011 (Attachments: # 1 Supporting Documents Exhibits 1−3, # 2 Supporting Documents Exhibit 4)No proposed order(sshe, ) Modified on 11/2/2011 to reference 11 Additional Attachments filed 11/2/2011(sshe, ). (Main Document 8, Attachment 1, Attachment 2 replaced on 11/4/2011) Modified on 11/4/2011 Clerk reattached same original documents to correct ECF error message re 'Unable to Combine PDF'(sshe, ). (Entered: 11/02/2011)
10 ORDER granting 6 Motion of William Scott Simpson to Appear Pro Hac Vice for United States of America Signed by Honorable Richard M Gergel on 11/2/2011.(sshe, ) (Entered: 11/02/2011)
11 Additional Attachments captioned "Proposed Intervenor Complaint" to Main Document 8 MOTION to Intervene. (Attachments: # 1 Supporting Documents)(sshe, ) (Main Document 11, Attachment 1 replaced on 11/4/2011) (sshe, ). Modified on 11/4/2011 Clerk reattached same original documents to correct ECF error message re 'Unable to Combine PDF'(sshe, ). (Entered: 11/02/2011)
12 Proposed Intervenor Assa'ad−Faltas' MOTION for Temporary Restraining Order and Preliminary Injunction ( Response to Motion due by 11/21/2011) by Marie Assa'ad−Faltas. No proposed order(sshe, ) (Entered: 11/07/2011)
13 ORDER denying 8 Dr. Faltas' Motion to Intervene Signed by Honorable Richard M Gergel on 11/7/2011.(sshe, ) (Entered: 11/07/2011)
14 ***DOCUMENT MAILED 13 Order on Motion to Intervene placed in U.S. Mail to Dr Marie Assa'ad−Faltas (sshe, ) (Entered: 11/07/2011)
15 MOTION for Leave to File Excess Pages (Unopposed) by United States of America. Response to Motion due by 11/28/2011 Proposed order is being emailed to chambers with copy to opposing counsel(Nettles, William) (Entered: 11/07/2011)
16 MOTION for Preliminary Injunction by United States of America. Response to Motion due by 11/28/2011 (Attachments: # 1 Memo in Support, # 2 Attachment 1, Declaration of William J. Burns, # 3 Attachment 2, Declaration of Lori Scialabba, # 4 Attachment 3, Declaration of Daniel H. Ragsdale, # 5 Attachment 4, Guidance on Immigration Enforcement, # 6 Attachment 5, Civil Immigration Enforcement, # 7 Attachment 6, Declaration of William M. Griffen, # 8 Attachment 7, Declaration of David V. Aguilar, # 9 Attachment 8, Declaration of Leon Lott, # 10 Attachment

Case: 2:11-cv-2958 As of: 03/27/2017 06:00 PM EDT 9 of 21

11/08/2011 11/08/2011 11/08/2011
11/08/2011
11/08/2011
11/08/2011 11/09/2011
11/09/2011 11/10/2011 11/10/2011 11/11/2011
11/14/2011

9, Declaration of Wendell Davis, # 11 Attachment 10, Declaration of Dominic Gentile)Proposed order is being emailed to chambers with copy to opposing counsel(Nettles, William) Modified on 11/10/2011 to reference 26 Additional Attachments Declaration of John Zumalt filed 11/9/2011(sshe, ). (Entered: 11/07/2011)
19 ORDER granting 15 Motion for Leave to File Excess Pages Signed by Honorable Richard M Gergel on 11/8/2011.(sshe, ) (Entered: 11/08/2011)
20 CERTIFICATE OF SERVICE by United States of America re 16 MOTION for Preliminary Injunction, 13 Order on Motion to Intervene, 15 MOTION for Leave to File Excess Pages (Unopposed) (Bowens, Barbara) (Entered: 11/08/2011)
21 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)
22 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)
23 TEXT ORDER: The Court has received a motion from the United Mexican States for leave to file an amicus brief (Dkt. No. 21) and a motion by various Central and South American countries to join that amicus brief (Dkt. No. 22). 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)
27 MOTION for Reconsideration re 13 Order on Motion to Intervene by Marie Assa'ad−Faltas. Response to Motion due by 11/28/2011 No proposed order(sshe, ) (Entered: 11/10/2011)
24 SUMMONS Returned Executed by United States of America. Nikki R Haley served on 11/2/2011, answer due 11/23/2011; South Carolina, State of served on 11/2/2011, answer due 11/23/2011. (Attachments: # 1 Return Receipt for Nikki Haley, # 2 Return Receipt for The State of South Carolina)(Bowens, Barbara) Modified on 11/9/2011 to correct answer due dates per ECF error(sshe, ). (Entered: 11/09/2011)
26 Additional Attachments to Main Document 16 MOTION for Preliminary Injunction. (Attachments: # 1 Declaration of John Zumalt)(Nettles, William) (Entered: 11/09/2011)
28 ORDER denying 27 Dr. Faltas' Motion for Reconsideration Signed by Honorable Richard M Gergel on 11/10/2011.(sshe, ) (Entered: 11/10/2011)
29 ***DOCUMENT MAILED 28 Order on Motion for Reconsideration placed in U.S. Mail to Marie Assa'ad−Faltas (sshe, ) (Entered: 11/10/2011)
30 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)
31 TEXT ORDER: The Court has received a motion from the American Immigration Lawyers Association for leave to file an amicus brief (Dkt. No.

Case: 2:11-cv-2958 As of: 03/27/2017 06:00 PM EDT 10 of 21

11/14/2011 11/14/2011 11/14/2011 11/17/2011 11/17/2011 11/17/2011

30). The time for any parties to respond to this motion 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)
32 MOTION to Appear Pro Hac Vice by Carla Gorniak ( Filing fee $ 250 receipt number 0420−3725824) 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 12/1/2011 (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: 11/14/2011)
33 MOTION to Appear Pro Hac Vice by Christopher R. Clark ( Filing fee $ 250 receipt number 0420−3725873) 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 12/1/2011 (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: 11/14/2011)
34 MOTION to Appear Pro Hac Vice by Henry L. Solano ( Filing fee $ 250 receipt number 0420−3725900) 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 12/1/2011 (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: 11/14/2011)
35 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)
36 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)
37 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 Chile, Government of Colombia, Government of Costa Rica, Government of

Case: 2:11-cv-2958 As of: 03/27/2017 06:00 PM EDT 11 of 21

11/20/2011 11/21/2011
11/21/2011
11/22/2011 11/22/2011 11/22/2011
12/01/2011
12/02/2011 12/02/2011 12/05/2011 12/06/2011 12/06/2011 12/07/2011

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)
38 MOTION for Leave to File Excess Pages by Nikki R Haley, South Carolina, State of. Response to Motion due by 12/8/2011 Proposed order is being emailed to chambers with copy to opposing counsel(Smith, James) (Entered: 11/20/2011)
39 MOTION to Appear Pro Hac Vice by Arthur R. Goldberg by United States of America. Response to Motion due by 12/8/2011 (Attachments: # 1 Application for Pro Hac Admission, # 2 Certificate of Good Standing)Proposed order is being emailed to chambers with copy to opposing counsel(Bowens, Barbara) (Entered: 11/21/2011)
40 TEXT ORDER: The Court, by text orders issued on 11/8/2011 (Dkt. No. 23) and 11/14/2011 (Dkt. No. 31), shortened the time for parties to respond to various motions to file amicus briefs or to join amicus briefs. (Dkt. Nos. 21, 22 and 30). No party responded in opposition to these motions. Therefore the motions at Dkt. Nos. 21, 22 and 30 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)
41 ORDER granting 39 Motion of Arthur R Goldberg to Appear Pro Hac Vice for United States of America Signed by Honorable Richard M Gergel on 11/22/2011.(sshe, ) (Entered: 11/22/2011)
42 ORDER granting 38 Motion for Leave to File Excess Pages Signed by Honorable Richard M Gergel on 11/21/2011.(sshe, ) (Entered: 11/22/2011)
43 RESPONSE in Opposition re 16 MOTION for Preliminary Injunction Response filed by Nikki R Haley, South Carolina, State of.Reply to Response to Motion due by 12/2/2011 (Attachments: # 1 Exhibit SC Act 69, # 2 Exhibit AL HB 56, # 3 Exhibit US v. ALA DCT, # 4 Exhibit Hisp. Int. Coa. DCT, # 5 Exhibit US v AL 11th Cir)(Smith, James) (Entered: 11/22/2011)
44 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)
45 MOTION for Extension of Time by United States of America. Response to Motion due by 12/19/2011 Proposed order is being emailed to chambers with copy to opposing counsel(Bowens, Barbara) (Entered: 12/02/2011)
46 ORDER granting 45 Motion for Extension of Time. Reply in Support of Plaintiff's Motion for Preliminary Injunction shall be filed by 12/6/2011. Signed by Honorable Richard M Gergel on 12/2/2011.(sshe, ) (Entered: 12/02/2011)
47 Local Rule 26.01 Answers to Interrogatories by Nikki R Haley, South Carolina, State of.(Smith, James) (Entered: 12/05/2011)
48 MOTION for Leave to File Excess Pages (Unopposed) by United States of America. Response to Motion due by 12/27/2011 Proposed order is being emailed to chambers with copy to opposing counsel(Nettles, William) (Entered: 12/06/2011)
49 REPLY to Response to Motion re 16 MOTION for Preliminary Injunction Response filed by United States of America. (Nettles, William) (Entered: 12/06/2011)
51 TEXT ORDER granting 48 Motion for Leave to File Excess Pages. Entered at the direction of the Honorable Richard M Gergel on 12/7/11.(ltap, ) (Entered:

Case: 2:11-cv-2958 As of: 03/27/2017 06:00 PM EDT 12 of 21

12/09/2011
12/13/2011 12/13/2011 12/14/2011 12/14/2011 12/14/2011 12/15/2011 12/15/2011 12/15/2011

12/07/2011)
52 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)
53 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)
55 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)
54 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)
56 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)
57 MOTION for Leave to File to Cite Supplemental Authority by Nikki R Haley, South Carolina, State of. Response to Motion due by 1/3/2012 No proposed order(Smith, James) (Entered: 12/14/2011)
58 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)
59 MOTION to Stay Suit and Allow Act 69 to Take Effect by Nikki R Haley, South Carolina, State of. Response to Motion due by 1/3/2012 (Attachments: # 1 Exhibit Hickey v. Baxter, 833 F.2d 1005 (4th Cir. 1987)(Table))No proposed order(Smith, James) (Entered: 12/15/2011)
60 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

Case: 2:11-cv-2958 As of: 03/27/2017 06:00 PM EDT 13 of 21

12/15/2011 12/16/2011 12/19/2011 12/22/2011
12/22/2011
01/06/2012 01/09/2012 01/18/2012
01/19/2012 01/25/2012 02/17/2012

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)
61 ***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)
62 RESPONSE in Opposition re 59 MOTION to Stay Suit and Allow Act 69 to Take Effect Response filed by United States of America.Reply to Response to Motion due by 1/3/2012 (Bowens, Barbara) (Entered: 12/16/2011)
63 Minute Entry. Proceedings held before Honorable Richard M Gergel: denying 59 Motion to Stay; taking under advisement 16 Motion for Preliminary Injunction; Motion Hearing held on 12/19/2011. Court to issue written order. Court Reporter Debbie Potocki. (erav, ) (Entered: 12/19/2011)
64 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)
66 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)
67 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)
68 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)
69 NOTICE OF INTERLOCUTORY APPEAL re 64 Order on Motion for Preliminary Injunction,,, − Filing fee $ 455, receipt number 0420−3840952. 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)
70 Transmittal Sheet for Notice of Appeal to USCA re 69 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)
72 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)
73 NOTICE OF INTERLOCUTORY APPEAL as to 13 Order on Motion to Intervene, 28 Order on Motion for Reconsideration by Marie Assa'ad−Faltas. The Docketing Statement form, Transcript Order form, and CJA 24 form may be obtained from the Fourth Circuit website at www.ca4.uscourts.gov. No fee paid. (sshe, ) (Entered: 02/21/2012)

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02/17/2012 02/21/2012 02/21/2012 02/21/2012
02/22/2012 02/22/2012 02/28/2012 05/02/2012 06/25/2012 06/27/2012 06/27/2012 06/27/2012 06/28/2012

74 MOTION for Leave to Proceed in forma pauperis on Appeal (Restricted Access) by Marie Assa'ad−Faltas. (sshe, ) (Entered: 02/21/2012)
75 MOTION TO APPEAL IN FORMA PAUPERIS TRANSFERRED TO CIRCUIT COURT re 73 Notice of Interlocutory Appeal (sshe, ) (Entered: 02/21/2012)
76 Transmittal Sheet for Notice of Appeal to USCA re 73 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: 02/21/2012)
77 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)
79 ASSEMBLED INITIAL ELECTRONIC RECORD TRANSMITTED TO FOURTH CIRCUIT COURT OF APPEALS re 73 Notice of Interlocutory Appeal, Electronic record successfully transmitted. (sshe, ) (Entered: 02/22/2012)
NON_ELECTRONIC SUPPLEMENTAL RECORD TRANSMITTED TO FOURTH CIRCUIT COURT OF APPEALS re 73 Notice of Interlocutory Appeal. Document 27 not included with Initial Electronic Record Transmission, unable to create combined PDF. Clerk transmitted via separate email. (sshe, ) (Entered: 02/22/2012)
81 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)
82 Letter from Ken Sugarman. Associated Cases: 2:11−cv−02779−RMG, 2:11−cv−02958−RMG(Dunn, Susan) (Entered: 05/02/2012)
83 MOTION Timely Rule 60(b) Motion to Reverse Denial of Intervention and Reopen for the Creation of a Factual Record re 13 Order on Motion to Intervene, 28 Order on Motion for Reconsideration, 56 Order on Motion for Miscellaneous Relief, by Marie Assa'ad−Faltas. Response to Motion due by 7/12/2012 No proposed order(sshe, ) (Entered: 06/27/2012)
84 TEXT ORDER The Court has reviewed the Motion Pursuant to Rule 60(b) (Dkt. No. 83 ). The motion is hereby DENIED. AND IT IS SO ORDERED. Entered at the Direction of Honorable Richard M Gergel on 6/27/2012.(sshe, ) (Entered: 06/27/2012)
85 ***DOCUMENT MAILED 84 Order on Motion for Miscellaneous Relief placed in U.S. Mail to Dr Marie Assa'ad−Faltas (sshe, ) (Entered: 06/27/2012)
86 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)
87 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,

Case: 2:11-cv-2958 As of: 03/27/2017 06:00 PM EDT 15 of 21

07/02/2012 07/02/2012 07/03/2012 07/05/2012 07/09/2012 07/09/2012 07/09/2012
07/09/2012 07/18/2012 08/16/2012 08/17/2012

2:11−cv−02779−RMG(sshe, ) (Entered: 06/28/2012)
88 NOTICE OF INTERLOCUTORY APPEAL as to 84 Order on Motion for Miscellaneous Relief by Marie Assa'ad−Faltas. The Docketing Statement form, Transcript Order form, and CJA 24 form may be obtained from the Fourth Circuit website at www.ca4.uscourts.gov. No fee paid. (sshe, ) (Entered: 07/02/2012)
89 Transmittal Sheet for Notice of Appeal to USCA re 88 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: 07/02/2012)
90 Amended Transmittal Sheet for Notice of Appeal to USCA re 88 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: 07/03/2012)
91 STATUS REPORT filed in Court of Appeals by United States of America. (Attachments: # 1 Main Document Status Report)(Bowens, Barbara) (Entered: 07/05/2012)
92 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)
93 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)
94 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)
95 Minute Entry. Proceedings held before Honorable Richard M Gergel: Telephone Conference held on 7/9/2012. Court to issue order. Court Reporter Virginia Druce, CS. (erav, ) (Entered: 07/10/2012)
97 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)
98 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)
100 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.

Case: 2:11-cv-2958 As of: 03/27/2017 06:00 PM EDT 16 of 21

08/22/2012 08/22/2012
08/24/2012 09/11/2012 09/11/2012 09/11/2012 09/28/2012 10/10/2012
10/10/2012 10/24/2012 10/24/2012

Associated Cases: 2:11−cv−02958−RMG, 2:11−cv−02779−RMG(sshe, ) (Entered: 08/17/2012)
101 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)
102 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)
103 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 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)
105 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)
106 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)
107 SUPPLEMENT by United States of America to 100 Notice of Hearing, 102 Order Setting Hearing on Motion,, in Support of Motion for Preliminary Injunction. (Attachments: # 1 Press Release, dated December 15, 2011)(Nettles, William) Modified on 10/1/2012 to reference filing of 109 Supplement, "Errata" re supplemental memorandum by United States of America(sshe, ). (Entered: 09/11/2012)
109 SUPPLEMENT by United States of America to 107 Supplement . (Nettles, William) (Entered: 09/28/2012)
110 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)
111 REPLY by United States of America to 105 Reply, Response by United States of America to Memorandum of Defendants on Limited Remand. (Nettles, William) (Entered: 10/10/2012)
112 ASSEMBLED SUPPLEMENTAL ELECTRONIC RECORD TRANSMITTED TO FOURTH CIRCUIT COURT OF APPEALS re 73 Notice of Interlocutory Appeal, 88 Notice of Interlocutory Appeal, Electronic record successfully transmitted. (sshe, ) (Entered: 10/24/2012)
113 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

Case: 2:11-cv-2958 As of: 03/27/2017 06:00 PM EDT 17 of 21

10/29/2012
11/01/2012 11/06/2012
11/13/2012 11/15/2012 11/26/2012 12/06/2012
12/07/2012

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)
114 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 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)
115 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)
116 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)
117 Minute Entry. Proceedings held before Honorable Richard M Gergel: Oral Argument Hearing held on 11/13/2012. Court to issue an order. Court Reporter Amy Diaz. (erav, ) (Entered: 11/13/2012)
118 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)
119 USCA OPINION for 88 Notice of Interlocutory Appeal, filed by Marie Assa'ad−Faltas. Decision of Appeals Court Affirmed Decision of District Court. (sshe, ) (Entered: 11/26/2012)
120 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings. Hearing held on November 13, 2012, before Judge Richard M. Gergel. Court Reporter/Transcriber Amy Diaz, Telephone number/E−mail 367−4604. 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.. Redaction Request due 12/27/2012. Redacted Transcript Deadline set for 1/7/2013. Release of Transcript Restriction set for 3/6/2013. (adia, ) (Entered: 12/06/2012)
121 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,

Case: 2:11-cv-2958 As of: 03/27/2017 06:00 PM EDT 18 of 21

12/10/2012 12/17/2012 01/18/2013 06/05/2013 06/06/2013 07/23/2013 09/16/2013 09/17/2013
09/18/2013

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)
122 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)
125 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)
126 USCA MANDATE re Judgment, entered 11/26/2012, takes effect 1/18/2013 as to 88 Notice of Interlocutory Appeal, filed by Marie Assa'ad−Faltas (Attachments: # 1 4CCA Judgment)(sshe, ) (Entered: 01/18/2013)
127 MOTION to Withdraw as Attorney by Keller Barron. Response to Motion due by 6/24/2013. Proposed order is being emailed to chambers with copy to opposing counsel.Associated Cases: 2:11−cv−02779−RMG, 2:11−cv−02958−RMG(Dunn, Susan) (Entered: 06/05/2013)
128 ORDER granting Motion for Mary C Bauer to Withdraw as Attorney (174) in case 2:11−cv−02779−RMG and (127) in case 2:11−cv−02958−RMG Signed by Honorable Richard M Gergel on 6/6/2013.Associated Cases: 2:11−cv−02958−RMG, 2:11−cv−02779−RMG(sshe, ) (Entered: 06/06/2013)
130 USCA OPINION for (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. Decision of Appeals Court Affirmed Decision of District Court. (sshe, ) (Entered: 07/23/2013)
131 USCA MANDATE re JUDGMENT, entered 7/23/2013, takes effect 9/16/2013 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 (Attachments: # 1 4CCA Judgment)(sshe, ) (Entered: 09/16/2013)
132 TEXT ORDER, By order dated July 23, 2013, the Fourth Circuit affirmed the District Court order granting a preliminary injunction to Plaintiffs. United States v. South Carolina, 720 F.3d 518 (2013). The Fourth Circuit issued its mandate on September 16, 2013. By earlier order dated July 9, 2012, the Court stayed all proceedings in the district court pending a decision by the Fourth Circuit on the order granting preliminary injunction. (Dkt. No. 141). Based upon the order of the Fourth Circuit and the issuance of the mandate,this Court hereby lifts the stay. Further, the Court sets a telephonic status conference on this matter on September 30, 2013 at 11:00. Counsel must initiate telephone call and then call into Chambers or provide a conference call number to be utilized. AND IT SO ORDERED. Entered at the direction of the Honorable Richard M Gergel on 9/17/2013. (erav, ) (Entered: 09/17/2013)
134 MOTION for Extension of Time by Nikki Haley, Alan Wilson, Nikki R Haley, South Carolina, State of. Response to Motion due by 10/7/2013. Proposed order is being emailed to chambers with copy to opposing counsel.Associated Cases: 2:11−cv−02958−RMG, 2:11−cv−02779−RMG(Smith, James) (Entered: 09/18/2013)

Case: 2:11-cv-2958 As of: 03/27/2017 06:00 PM EDT 19 of 21

09/19/2013
09/19/2013 09/26/2013 09/26/2013 09/26/2013 10/02/2013 10/02/2013 10/28/2013 10/30/2013 11/15/2013 11/18/2013
12/12/2013

135 ORDER granting (181) Motion for Extension of Time in case 2:11−cv−02779−RMG; granting (134) Motion for Extension of Time in case 2:11−cv−02958−RMG, that the Defendants have an extension of time to respond to the Complaints until 10/15/2013. The response to the Complaints in both of these cases will be due on 10/15/2013. Signed by Honorable Richard M Gergel on 9/19/2013.Associated Cases: 2:11−cv−02958−RMG, 2:11−cv−02779−RMG(sshe, ) (Entered: 09/19/2013)
136 TEXT ORDER The granting of the Defendants' motions to extend the time to answer or otherwise plead, entered this day, does not alter the time set for the Court's telephonic status conference of 9/30/13. AND IT IS SO ORDERED. Entered at the Direction of Honorable Richard M Gergel on 9/19/2013. Associated Cases: 2:11−cv−02958−RMG, 2:11−cv−02779−RMG(sshe, ) (Entered: 09/19/2013)
137 MOTION to Continue (Postpone) Telephonic Status Conference by Nikki Haley, Alan Wilson, Nikki R Haley, South Carolina, State of. Response to Motion due by 10/15/2013. No proposed order.Associated Cases: 2:11−cv−02958−RMG, 2:11−cv−02779−RMG(Smith, James) (Entered: 09/26/2013)
138 TEXT ORDER granting Dkt No 184 MOTION to Continue (Postpone) Telephonic Status Conference and rescheduling for 1:00 PM on 10/2/2013 Entered at the Direction of Honorable Richard M Gergel on 9/26/2013.Associated Cases: 2:11−cv−02958−RMG, 2:11−cv−02779−RMG(sshe, ) (Entered: 09/26/2013)
139 NOTICE OF RESCHEDULED HEARING Telephone Status Conference on September 30, 2013 at 11:00 AM cancelled and rescheduled to: Telephone Status Conference set for 10/2/2013 01:00 PM before Honorable Richard M Gergel. Counsel must initiate telephone call and then call into Chambers or provide a conference call number to be utilized.Associated Cases: 2:11−cv−02958−RMG, 2:11−cv−02779−RMG(sshe, ) (Entered: 09/26/2013)
140 Minute Entry. Proceedings held before Honorable Richard M Gergel: Telephone Conference held on 10/2/2013. Court will issue an order. Court Reporter Debbie Potocki. (erav, ) (Entered: 10/02/2013)
141 TEXT ORDER: The parties' consent motion, made during the telephone conference of 10/02/13, to extend the time for Defendants to file an answer is hereby granted. Accordingly, the time for Defendants to file an answer is extended to 10/30/13. AND IT IS SO ORDERED. Entered at the direction of the Honorable Richard M Gergel on 10/2/13. Associated Cases: 2:11−cv−02779−RMG, 2:11−cv−02958−RMG(ltap, ) (Entered: 10/02/2013)
143 ANSWER to Complaint by Nikki R Haley, South Carolina, State of.(Smith, James) (Entered: 10/28/2013)
145 DELETION OF DOCKET ENTRY NUMBER 144 Reason: Motion for PHV not applicable for parties in this related case Filing date of original filing: 10/29/2013 (sshe, ) (Entered: 10/30/2013)
146 STATUS REPORT by Nikki R Haley, South Carolina, State of, United States of America. Associated Cases: 2:11−cv−02779−RMG, 2:11−cv−02958−RMG(Smith, James) Modified on 11/18/2013 to add filer(s) listed on document(sshe, ). (Entered: 11/15/2013)
147 TEXT ORDER: The parties in United States v. South Carolina (Civil Action No. 2:11−2958, Dkt. No. 146) and Lowcountry Immigration Coalition v. Haley (Civil Action No. 2:11−2779, Dkt. No. 194) have moved jointly for an extension of time until 12/16/13 to provide the Court a status report regarding a plan for bringing these actions to a conclusion. For good cause shown, the motions are granted. AND IT IS SO ORDERED. Entered at the direction of the Honorable Richard M Gergel on 11/18/13. Associated Cases: 2:11−cv−02958−RMG, 2:11−cv−02779−RMG(ltap, ) (Entered: 11/18/2013)
148 STATUS REPORT by Nikki Haley, Alan Wilson, Nikki R Haley, South Carolina, State of, Lowcountry Immigration Coalition, United States of America, Scarlett A Wilson, Mujeres De Triunfo, Nuevos Caminos, South Carolina Victim Assistance

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12/13/2013
01/30/2014 01/31/2014
03/03/2014 03/04/2014 03/13/2014 03/17/2014 04/10/2014 04/18/2014 05/02/2014 05/02/2014

Network, South Carolina Hispanic Leadership Council, Service Employees International Union, Southern Regional Joint Board of Workers United, Jane Doe, John Doe, Yajaira Benet−Smith, Keller Barron, John McKenzie, Sandra Jones, James Alton Cannon . Associated Cases: 2:11−cv−02958−RMG, 2:11−cv−02779−RMG(Smith, James) Modified on 12/13/2013 to add filer(s) listed on document(sshe, ). (Entered: 12/12/2013)
149 STATUS REPORT ORDER: The parties have moved jointly for an extension of time until 1/31/14 to continue their settlement discussions and to submit another status report. For good cause shown, the motion is granted. The parties shall submit another status report on or before 1/31/13. AND IT IS SO ORDERED. Entered at the direction of the Honorable Richard M Gergel on 12/13/13. Associated Cases: 2:11−cv−02779−RMG, 2:11−cv−02958−RMG(ltap, ) (Entered: 12/13/2013)
150 STATUS REPORT Joint by Nikki Haley, Alan Wilson, Nikki R Haley, South Carolina, State of. Associated Cases: 2:11−cv−02779−RMG, 2:11−cv−02958−RMG(Smith, James) (Entered: 01/30/2014)
151 TEXT ORDER: The parties have moved jointly for thirty additional days to conduct settlement discussions. For good cause shown, the motion is granted. The parties shall file an updated status report on or before 3/3/14. AND IT IS SO ORDERED. Entered at the direction of the Honorable Richard M Gergel on 1/31/14. Associated Cases: 2:11−cv−02779−RMG, 2:11−cv−02958−RMG(ltap, ) (Entered: 01/31/2014)
152 STATUS REPORT Joint Report Regarding Case Status and Disposition by Nikki Haley, Alan Wilson, Nikki R Haley, South Carolina, State of. (Attachments: # 1 Addendum Opinion of the Office of the Attorney General 3.3.14, # 2 Addendum Proposed Final Judgment)Associated Cases: 2:11−cv−02958−RMG, 2:11−cv−02779−RMG(Smith, James) (Entered: 03/03/2014)
153 FINAL JUDGMENT All details set forth in Final Judgment Order. Associated Cases: 2:11−cv−02958−RMG, 2:11−cv−02779−RMG(sshe, ) (Entered: 03/04/2014)
154 MOTION for Extension of Time by Lowcountry Immigration Coalition. Response to Motion due by 3/31/2014. Proposed order is being emailed to chambers with copy to opposing counsel.Associated Cases: 2:11−cv−02779−RMG, 2:11−cv−02958−RMG(Dunn, Susan) (Entered: 03/13/2014)
155 TEXT ORDER: For good cause shown and with consent of counsel, the Court hereby grants Plaintiffs' motion for extension of time. (Dkt. No. 154). The deadline to file a motion for attorneys' fees is extended to 4/21/14. AND IT IS SO ORDERED. Entered at the direction of the Honorable Richard M Gergel on 3/17/14.(ltap, ) (Entered: 03/17/2014)
156 MOTION for Extension of Time by Lowcountry Immigration Coalition. Response to Motion due by 4/28/2014. Proposed order is being emailed to chambers with copy to opposing counsel.Associated Cases: 2:11−cv−02779−RMG, 2:11−cv−02958−RMG(Dunn, Susan) (Entered: 04/10/2014)
157 TEXT ORDER For good cause shown and with consent of counsel, the Court hereby grants Plaintiffs' motion for extension of time. (Dkt. No. 156 ). The deadline to file a motion for attorneys' fees is extended to 5/7/14. AND IT IS SO ORDERED. Directed by Honorable Richard M Gergel on 4/18/2014. (erav, ) (Entered: 04/18/2014)
158 MOTION for Extension of Time by Lowcountry Immigration Coalition. Response to Motion due by 5/19/2014. Proposed order is being emailed to chambers with copy to opposing counsel.Associated Cases: 2:11−cv−02779−RMG, 2:11−cv−02958−RMG(Dunn, Susan) (Entered: 05/02/2014)
159 TEXT ORDER: Plaintiffs in Civil Action No. 2:11−2779 have moved for a third time for an extension of time to file a motion for attorneys' fees, this time seeking an extension until June 6, 2014. (Dkt No. 206 and Dkt. No. 158 in Civil Action No. 2:11−cv−02958). The Court is informed Defendants do not object

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06/02/2014 06/06/2014

to the extension. The motion is granted but no further extensions will be granted. AND IT IS SO ORDERED. Signed by Honorable Richard M Gergel on 5/2/2014.Associated Cases: 2:11−cv−02779−RMG, 2:11−cv−02958−RMG(ltap, ) (Entered: 05/02/2014)
160 MOTION for Leave to File by Lowcountry Immigration Coalition. Response to Motion due by 6/19/2014. Proposed order is being emailed to chambers with copy to opposing counsel.Associated Cases: 2:11−cv−02779−RMG, 2:11−cv−02958−RMG(Dunn, Susan) (Entered: 06/02/2014)
161 ORDER that the Parties are to submit appropriate paperwork resolving the attorney fee dispute on or before July 7, 2014. Signed by Honorable Richard M Gergel on 6/2/2014. (erav, ) (Entered: 06/06/2014)