In three separate decisions issued on August 20, 2012, the Eleventh Circuit Court of Appeals, applying the U.S. Supreme Court’s decision in Arizona v. United States, held that key provisions of state immigration laws passed by Alabama and Georgia (HB 56 and HB 87 respectively) are preempted by federal law.

Sections of the Alabama law blocked by the Eleventh Circuit include provisions:

• requiring public schools to check the immigration status of new students, on the basis that this measure interferes with the right to education and, therefore, violates the Equal Protection clause of the Fourteenth Amendment to the U.S. Constitution;
• criminalizing the failure to carry appropriate federal immigration documents;
• criminalizing an undocumented immigrant’s application, solicitation, or performance of work without employment authorization;
• preventing state courts from enforcing contracts in which one party is an undocumented immigrant; and
• penalizing employers that hire undocumented workers.

The Eleventh Circuit also determined that measures in both the Alabama and Georgia laws that made it a state crime to harbor, transport, or induce undocumented immigrants to enter the state were preempted by federal law.

The court, however, upheld contentious provisions in both laws, which were similar to the section in Arizona’s immigration enforcement law (S.B. 1070) that provides that officers who conduct a stop, detention, or arrest must make efforts to verify the person’s immigration status with the federal government if reasonable suspicion exists that the person is in the United States illegally. Despite this ruling, the court left open the possibility of future challenges on civil rights or due process grounds if the law is unconstitutionally applied.

Practical implications

• The court’s decision seems to suggest that state immigration laws imposing criminal penalties on employees rather than employers and sanctioning employers for employing undocumented workers likely will not pass muster in court.
• Even though portions of these laws have been enjoined, employers in Alabama and Georgia should take steps to comply with federal law by ensuring that their workforces are legally in the United States through good faith efforts to verify the employment eligibility of their workers.
• Foreign nationals who are lawfully stopped in these states and cannot show proper documentation may now be detained by law enforcement authorities in order to check their status against federal immigration databases. As such, Alabama and Georgia employers that have workforces with large numbers of foreign national employees may well be impacted by these decisions.