Appellate court: Immigrant driver law unconstitutional

A state appeals court has ruled as unconstitutional a Louisiana law that makes it a felony for non-citizens to drive without documents proving they are legally in the United States.

The decision, handed down Wednesday by the Lake Charles-based 3rd Circuit Court of Appeal, found that the “operating a vehicle without lawful presence in the United States” statute is an improper effort by the state to enforce immigration laws, generally the exclusive realm of the federal government.

The ruling on Wednesday conflicts with a ruling in March from the Baton Rouge-based 1st Circuit Court of Appeal and sets the stage for the state Supreme Court to take up the issue.

Louisiana American Civil Liberties Union Executive Director Marjorie Esman said she suspects the Louisiana law will be declared unconstitutional, as have similar laws in other states.

“Generally speaking, I think every time one of those has been challenged, they’ve been struck down,” she said.

The 3rd Circuit decision came in the case of 30-year-old Alexis Sarrabea, a Honduran who was arrested on the “unlawful presence” charge after being pulled over in Lafayette Parish.

His immigration status remains unclear, according to the court record, but the “unlawful presence” law does not address a person’s actual status, only whether that person is carrying proper documentation when checked by law enforcement officers.

“If you don’t carry that document, they will arrest you for it,” said Chad Ikerd, the public defender who argued Sarrabea’s appeal.

The 3rd Circuit’s decision tossing Sarrabea’s conviction cited a controversial 2012 U.S. Supreme Court decision that overturned portions of an Arizona law with similar provisions requiring drivers to carry documents proving they were legally in the country.

That case turned on the questions of state enforcement of federal immigration laws, and the three judge 3rd Circuit panel wrote in its opinion this week that the U.S. Supreme Court “made it very clear in Arizona that the states may not in any manner ... intrude in an area of law entirely occupied by federal law.”

The 3rd Circuit’s take differed from that of the 1st Circuit Court of Appeal in a ruling handed down in March.

The 1st Circuit made a distinction that Louisiana’s law does not regulate immigration but rather only requires non-citizen drivers to carry certain documents.

In defending the law, the Louisiana Attorney General’s Office argued the statute does not single out illegal immigrants because any immigrant, legal or not, can be arrested for failing to carry proper documentation.

The differing opinions from two state appeals courts could lead the state Supreme Court to take up the issue on whether the “lawful presence” statute should stay on the books, said 15th Judicial District Attorney Mike Harson, whose office handled the Sarrabea prosecution in Lafayette Parish.

“It tends to be the burden of the Supreme Court to take it and give some guidance,” Harson said.

Harson said his office may wait until the issue is resolved before moving forward on any pending “lawful presence” cases.

“They will probably be in limbo,” he said.

Also increasing chances for the state Supreme Court to settle the issue is a ruling by 16th Judicial District Judge Charles Porter in November that declared the “unlawful presence” law unconstitutional in a case out of St. Martin Parish.

That case is set to bypass the appeals court and go directly to the state Supreme Court, the normal procedure when a district-level judge rules against a state law.

“I think, based on the Arizona case, that the Louisiana law can’t stand,” said attorney Frank Barber, who is handling the St. Martin Parish case.

The “lawful presence” statute was passed in 2002, the year after the Sept. 11 terrorist attacks, and the Louisiana Attorney General’s Office has argued in defending the law that the Legislature’s main goal in passing it was to fight terrorism rather than address illegal immigration.

“I think that was knee-jerk reaction they had. Everyone was screaming terrorist,” Barber said.

But the attorney said the law now seems to be targeting Hispanics.

“They are just shaking people down unnecessarily,” Barber said.

The Louisiana Attorney General’s Office has argued in support of the law in both of the appeals court cases and in the St. Martin Parish case.

In response to a question about the recent 3rd Circuit ruling, AG’s office spokeswoman Laura Gerdes Colligan said in an e-mail that the agency is “currently reviewing the ruling and determining the proper manner to proceed.”

The “lawful presence” statute carries a maximum penalty of one year in prison and a fine of up to $1,000.