U.S. District Judge Richard Gergel said he will decide soon how he will change his 2011 injunction of South Carolina’s tough new immigration law.
Meanwhile, the nation’s immigration rules could be changing in the wake of last week’s elections.
Gergel held a two-hour hearing Tuesday in Charleston to give South Carolina and those challenging its 2011 law a chance to argue how the U.S. Supreme Court’s recent ruling on Arizona’s immigration law should affect what happens here.
Arizona’s law served as a model for South Carolina’s.
Last year, Gergel ruled that parts of South Carolina’s law may not take effect, including the requirement that police check the immigration status of those they pull over for another violation if the officers suspect that the person is in the country illegally.
Since then the Supreme Court ruled against parts of Arizona’s immigration law, but the high court upheld Arizona’s requirement for police to make such checks.
Gergel questioned both sides Tuesday about how long police officers should be able to detain someone to check their immigration status.
He indicated that a delay of a few minutes might be lawful, but said officers do not have the legal authority to hold someone for 90 minutes solely to check their immigration status.
It would violate their rights under the 4th Amendment, he said. Gergel noted that it takes an average of 81 minutes to run an immigration check.
“I’m not sure the parties really disagree about the underlying law,” he said. “I think they just disagree about how it should be applied.”
S.C. Deputy Assistant Attorney General Emory Smith said he agreed that the state’s limits would mirror those in federal law.
South Carolina’s immigration law faced a challenge from the U.S. Justice Department and the American Civil Liberties Union. Attorney Andre Segura of the ACLU urged Gergel to keep his current injunction intact, saying the Arizona ruling “strongly supports this court’s reasoning.”
Gergel said he will rule “in a few days,” and his decision will come as the immigration issue arises again in the national debate. Republican Mitt Romney fared poorly among Hispanic voters in the presidential election.
U.S. Sen. Lindsey Graham, R-S.C., told Fox News that George W. Bush received 44 percent of the Hispanic vote in 2004, while Romney got only 27 percent.
Graham, who caught flak from some Republicans for pushing comprehensive immigration reform in the past, has resurrected the issue, saying it should start with securing the border and revamping Social Security cards so they can’t be faked.
Many Lowcountry immigrants said they are concerned about the status quo. Irving Purata, who came to the United States from Mexico five years ago, protested the state’s immigration law. He said Tuesday that some of his friends have been deported, and that if South Carolina’s immigration law gets tougher, “it will be hard.”
Diana Salazar, founder of the Latino Association of Charleston, said Tuesday, “Of course, there are a lot of folks who are concerned,” but she praised Gergel as a thoughtful judge.
Reach Robert Behre at 937-5771.
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