United States v. State of South Carolina

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-1096

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

STATE OF SOUTH CAROLINA; NIKKI HALEY, in her official
capacity as the Governor of South Carolina,

Defendants – Appellants,

------------------------------

UNITED MEXICAN STATES; GOVERNMENT OF ARGENTINA; GOVERNMENT
OF BOLIVIA; GOVERNMENT OF BRAZIL; GOVERNMENT OF CHILE;
GOVERNMENT OF COLOMBIA; GOVERNMENT OF COSTA RICA;
GOVERNMENT OF DOMINICAN REPUBLIC; GOVERNMENT OF ECUADOR;
GOVERNMENT OF GUATEMALA; GOVERNMENT OF EL SALVADOR;
GOVERNMENT OF HONDURAS; GOVERNMENT OF NICARAGUA; GOVERNMENT
OF PARAGUAY; GOVERNMENT OF PERU; GOVERNMENT OF URUGUAY,

Amici Supporting Appellee.

No. 12-1099

LOWCOUNTRY IMMIGRATION COALITION; MUJERES DE TRIUNFO;
NUEVOS CAMINOS; SOUTH CAROLINA VICTIM ASSISTANCE NETWORK;
SOUTH CAROLINA HISPANIC LEADERSHIP COUNCIL; SERVICE
EMPLOYEES INTERNATIONAL UNION; SOUTHERN REGIONAL JOINT
BOARD OF WORKERS UNITED; JANE DOE, No. 1; JANE DOE, No. 2;
JOHN DOE, No. 1; YAJAIRA BENET-SMITH; KELLER BARRON; JOHN
MCKENZIE; SANDRA JONES,

Plaintiffs – Appellees,
 v.

NIKKI HALEY, in her official capacity as the Governor of
South Carolina; ALAN WILSON, in his official capacity as
Attorney General of the State of South Carolina,

Defendants – Appellants,

and

JAMES ALTON CANNON, in his official capacity as the Sheriff
of Charleston County; SCARLETT A. WILSON, in her official
capacity as Solicitor of the Ninth Judicial Circuit,

Defendants.

No. 12-2514

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

STATE OF SOUTH CAROLINA; NIKKI HALEY, in her official
capacity as the Governor of South Carolina,

Defendants – Appellants.

No. 12-2533

LOWCOUNTRY IMMIGRATION COALITION; MUJERES DE TRIUNFO; NUEVOS
CAMINOS; SOUTH CAROLINA VICTIM ASSISTANCE NETWORK; SOUTH
CAROLINA HISPANIC LEADERSHIP COUNCIL; SERVICE EMPLOYEES
INTERNATIONAL UNION; SOUTHERN REGIONAL JOINT BOARD OF
WORKERS UNITED; JANE DOE, No. 1; JANE DOE, No. 2; JOHN DOE,
No. 1; YAJAIRA BENET-SMITH; KELLER BARRON; JOHN MCKENZIE;
SANDRA JONES,

Plaintiffs – Appellees,

2
 v.

NIKKI HALEY, in her official capacity as the Governor of
South Carolina; ALAN WILSON, in his official capacity as
Attorney General of the State of South Carolina,

Defendants – Appellants,

and

JAMES ALTON CANNON, in his official capacity as the Sheriff
of Charleston County; SCARLETT A. WILSON, in her official
capacity as Solicitor of the Ninth Judicial Circuit,

Defendants.

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

Argued: May 14, 2013 Decided: July 23, 2013

Before DUNCAN, AGEE, and DAVIS, Circuit Judges.

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

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

3
JUSTICE, Washington, D.C., for Federal Appellee. Linton
Joaquin, Nora A. Preciado, Melissa S. Keaney, Alvaro M. Huerta,
NATIONAL IMMIGRATION LAW CENTER, Los Angeles, California; Andre
Segura, Omar Jadwat, Lee Gelernt, AMERICAN CIVIL LIBERTIES UNION
FOUNDATION, New York, New York; Cecillia D. Wang, Katherine
Desormeau, San Francisco, California, Justin B. Cox, AMERICAN
CIVIL LIBERTIES UNION FOUNDATION – IMMIGRANTS' RIGHTS PROJECT,
Atlanta, Georgia; Susan K. Dunn, AMERICAN CIVIL LIBERTIES UNION
OF SOUTH CAROLINA, Charleston, South Carolina; Victor
Viramontes, MEXICAN AMERICAN LEGAL DEFENSE AND EDUCATIONAL FUND,
Los Angeles, California; Michelle R. Lapointe, Naomi Tsu,
Atlanta, Georgia, Samuel Brooke, SOUTHERN POVERTY LAW CENTER,
Montgomery, Alabama; Alice Paylor, ROSEN, ROSEN & HAGOOD,
Charleston, South Carolina; Foster Maer, LATINO JUSTICE PRLDEF,
New York, New York for Appellees Lowcountry Immigration
Coalition, Mujeres De Triunfo, Nuevos Caminos, South Carolina
Victim Assistance Network, South Carolina Hispanic Leadership
Council, Service Employees International Union, Southern
Regional Joint Board of Workers United, Jane Doe, No. 1, Jane
Doe, No. 2, John Doe, No. 1, Yajaira Benet-Smith, Keller Barron,
John Mckenzie, Sandra Jones. Stephen Nickelsburg, Carla
Gorniak, Alexander M. Feldman, CLIFFORD CHANCE US LLP,
Washington, D.C.; Henry L. Solano, WILSON ELSER MOSKOWITZ
EDELMAN & DICKER LLP, Denver, Colorado, for The United Mexican
States, Amicus Curiae.

4
DAVIS, Circuit Judge:

In 2011, the South Carolina legislature passed, and the

governor signed, a package of immigration laws known as Act 69

(“the Act”). In this pre-enforcement challenge, the district

court preliminarily enjoined Sections 4, 5, and 6(B)(2) of the

Act on federal preemption grounds. These sections made it a

state criminal offense for (1) a person unlawfully present in

the United States to conceal, harbor, or shelter herself from

detection, or allow herself to be transported within the state;

(2) a third party to participate in concealing, sheltering, or

transporting a person unlawfully present in the United States;

(3) an alien 18 years or older to fail to carry an alien

registration card; and (4) an individual to display or possess a

false identification card for the purpose of proving lawful

presence. South Carolina (“the State”) brings this interlocutory

appeal. For the reasons that follow, we affirm.

I.

A.

The South Carolina General Assembly passed the Act, a

comprehensive package of laws and regulations regarding

immigration, in response to a perceived failure of the United

States to secure its southern border and protect its national

security. See United States v. South Carolina, 840 F. Supp. 2d

898, 904 (D.S.C. 2011) (“South Carolina I”), remanded for

5
reconsideration, No. 12-1096, Doc. 72 (4th Cir. Aug. 16, 2012).

Legislative supporters of the Act said they hoped the bill would

encourage persons unlawfully present in South Carolina to find

“a different state to go to.” Id. The Act was signed by the

governor in 2011 and scheduled to take effect January 1, 2012.

The Act contained twenty sections, only three of which are

at issue in this appeal. Subsections 4(A) and (C) make it a

state felony for an unlawfully present person to allow himself

or herself to be “transported or moved” within the state or to

be harbored or sheltered to avoid detection. 1 Violation of those

1
Sections 4(A) and (C) provide, in full:

(A) It is a felony for a person who has come to,
entered, or remained in the United States in violation
of law to allow themselves to be transported, moved,
or attempted to be transported within the State or to
solicit or conspire to be transported or moved within
the State with intent to further the person’s unlawful
entry into the United States or avoiding apprehension
or detection of the person’s unlawful immigration
status by state or federal authorities.

. . .

(C) It is a felony for a person who has come to,
entered, or remained in the United States in violation
of law to conceal, harbor, or shelter themselves from
detection or to solicit or conspire to conceal,
harbor, or shelter themselves from detection in any
place, including a building or means of
transportation, with intent to further that person’s
unlawful entry into the United States or avoiding
apprehension or detection of the person’s unlawful
immigration status by state or federal authorities.

Act 69, 2011 S.C. Acts (S.B. 20); J.A. 106-07.

6
subsections is punishable by a fine not to exceed $5,000, up to

five years in prison, or both.

Subsections 4(B) and (D) make it a state felony, also

punishable by a fine not to exceed $5,000, up to five years in

prison, or both, to “transport, move or attempt to transport” or

“conceal, harbor or shelter” a person “with intent to further

that person’s unlawful entry into the United States” or to help

that person avoid apprehension or detection. 2

2
Sections 4(B) and (D) provide, in full:

(B) It is a felony for a person knowingly or in
reckless disregard of the fact that another person has
come to, entered, or remained in the United States in
violation of law to transport, move, or attempt to
transport that person within the State or to solicit
or conspire to transport or move that person within
the State with intent to further that person’s
unlawful entry into the United States or avoiding
apprehension or detection of that person’s unlawful
immigration status by state or federal authorities.

. . .

(D) It is a felony for a person knowingly or in
reckless disregard of the fact that another person has
come to, entered, or remained in the United States in
violation of law to conceal, harbor, or shelter from
detection or to solicit or conspire to conceal,
harbor, or shelter from detection that person in any
place, including a building or means of
transportation, with intent to further that person’s
unlawful entry into the United States or avoiding
apprehension or detection of that person’s unlawful
immigration status by state or federal authorities.

Act 69, 2011 S.C. Acts (S.B. 20); J.A. 106-07.

7
 Section 5 makes it a state misdemeanor for any person 18

years or older to “fail to carry” “a certificate of alien

registration or alien registration receipt card.” 3 A violation of

Section 5 is punishable by a fine of not more than $100, up to

30 days’ imprisonment, or both.

Subsection 6(B)(2) makes it unlawful for any person to

display or possess a counterfeit or false ID for the purpose of

providing proof of lawful presences in the United States. 4

Conviction for a first violation of subsection 6(B)(2) is a

misdemeanor punishable by a fine of not more than $100 or

imprisonment of not more than 30 days. Conviction for a second

3
Section 5 provides, in relevant part:

(A) It is unlawful for a person eighteen years of age
or older to fail to carry in the person’s possession
any certificate of alien registration or alien
registration receipt card issued to the person
pursuant to 8 U.S.C. Section 1304 while the person is
in this State.

Act 69, 2011 S.C. Acts (S.B. 20); J.A. 108.
4
Section 6(B)(2) provides:

It is unlawful for a person to display, cause or
permit to be displayed, or have in the person’s
possession a false, fictitious, fraudulent, or
counterfeit picture identification for the purpose of
offering proof of the person’s lawful presence in the
United States.

Act 69, 2011 S.C. Acts (S.B. 20); J.A. 108-09.

8
offense under the section is a felony punishable by a fine of

not more than $500 or imprisonment of not more than five years.

B.

In two separate actions filed in the United States District

Court for the District of South Carolina, the Lowcountry

Immigration Coalition (“Lowcountry Plaintiffs”) and the United

States challenged various sections of the Act, largely on

preemption grounds. Lowcountry Plaintiffs is a group of

individuals and organizations, including the National

Immigration Law Center, the Southern Poverty Law Center, and the

American Civil Liberties Union of South Carolina.

The district court, after consolidating the cases, found

Sections 4, 5, and 6(B)(2) (as well as other subsections of

Section 6 not relevant here) were preempted by federal law and

issued a preliminary injunction as to those sections. South

Carolina I, 840 F. Supp. 2d 898. Before we could hear the

State’s appeal from that order, the Supreme Court decided

Arizona v. United States, 132 S. Ct. 2492 (2012), striking down

several provisions of an Arizona law that, inter alia, made it a

state crime for an alien to fail to carry an alien registration

document and for an unauthorized alien to apply for, solicit, or

perform work. We remanded the instant case to the district court

for reconsideration in light of Arizona. On remand, the district

9
court let stand its injunction of Sections 4, 5, and 6(B)(2). 5

United States v. South Carolina, 906 F. Supp. 2d 463, 466-69,

473-74 (D.S.C. 2012) (“South Carolina II”).

South Carolina appealed to this Court. We have jurisdiction

pursuant to 28 U.S.C. § 1292(a)(1).

II.

We “review the decision to grant a preliminary injunction

for abuse of discretion. Factual determinations are reviewed for

clear error and legal conclusions de novo.” E. Tenn. Natural Gas

Co. v. Sage, 361 F.3d 808, 828 (4th Cir. 2004). “Faithful to the

abuse-of-discretion standard, we are obliged to affirm [a grant

of a preliminary injunction when] the district court applied a

correct preliminary injunction standard, made no clearly

erroneous findings of material fact, and demonstrated a firm

grasp of the legal principles pertinent to the underlying

dispute.” Greater Balt. Ctr. for Pregnancy Concerns, Inc. v.

Mayor and City Council of Balt., --- F.3d ---, No. 11-1111, slip

op. at 57 (4th Cir. July 3, 2013) (en banc) (citation and

internal quotation marks omitted).

5
The district court had initially enjoined other
subsections of Section 6, but dissolved the injunction as to
those other sections on remand. See United States v. South
Carolina, 906 F. Supp. 2d 463, 470-73 (D.S.C. 2012).

10
 “The purpose of a preliminary injunction is merely to

preserve the relative positions of the parties until a trial on

the merits can be held.” Univ. of Tex. v. Camenisch, 451 U.S.

390, 395 (1981). “The traditional office of a preliminary

injunction is to protect the status quo and to prevent

irreparable harm during the pendency of a lawsuit ultimately to

preserve the court’s ability to render a meaningful judgment on

the merits.” In re Microsoft Corp. Antitrust Litig., 333 F.3d

517, 525 (4th Cir. 2003).

III.

Before reaching the merits of this case, we must resolve

several threshold issues. South Carolina argues that Lowcountry

Plaintiffs do not have a right of action to seek an injunction

and that, under Younger abstention, the district court should

have declined to hear the case. Both arguments lack merit.

A.

South Carolina first presses its argument that Lowcountry

Plaintiffs do not have a right of action under the Supremacy

Clause or 42 U.S.C. § 1983 to bring their claim. (The State does

not argue that the United States lacks a right of action.) The

State argues that because the Supremacy Clause is not a source

of substantive federal rights, it cannot be the basis for a

private right of action here. The State leans heavily on Chief

Justice Roberts’s dissent in Douglas v. Independent Living

11
Center of Southern California, Inc., 132 S. Ct. 1204 (2012),

arguing it stands for the proposition that the Supremacy Clause

does not create a private right of action.

Douglas concerned three California statutes that reduced

payments to Medicaid recipients. Id. at 1208. The state

submitted the changes to a federal agency charged with reviewing

any changes to how Medicaid payments are calculated. Id. But

before the agency could complete its review, groups of Medicaid

providers and beneficiaries filed a series of lawsuits seeking

to enjoin the reductions on the ground that they were preempted

by federal Medicaid law. Id. The Ninth Circuit “ultimately

affirmed or ordered preliminary injunctions that prevented the

State from implementing its statutes” and “held that the

Medicaid providers and beneficiaries could directly bring an

action based on the Supremacy Clause.” Id. at 1209.

The Supreme Court granted certiorari “to decide whether

Medicaid providers and recipients may maintain a cause of action

under the Supremacy Clause to enforce a federal Medicaid law.”

132 S. Ct. at 1207. But about a month after oral argument in the

Supreme Court, the federal agency charged with reviewing the

payment change approved the reductions. Douglas, 132 S. Ct. at

1209. That raised the question of whether the plaintiffs should

seek review of the agency determination under the Administrative

Procedure Act, rather than in a Supremacy Clause challenge, and

12
so the Court remanded for the Ninth Circuit to answer that

question. Id. at 1201-11. (The Ninth Circuit has not yet

answered the question.) Given the remand based on changed

circumstances, the Court explicitly stated that “we do not

address whether the Ninth Circuit properly recognized a

Supremacy Clause action to enforce this federal statute before

the agency took final action.” Id. at 1211.

Chief Justice Roberts, joined by Justices Scalia, Thomas,

and Alito, dissented in Douglas. He stated that he believed

there is no private right of action under the Supremacy Clause

to enforce 42 U.S.C. § 1396a(a)(30)(A), the relevant provisions

of the Medicaid Act, which requires a state’s Medicaid plan and

amendments to meet certain standards of efficiency, economy, and

quality of care. Noting that the Supremacy Clause is not a

source of any federal rights, the Chief Justice stated:

Indeed, to say that there is a federal statutory right
enforceable under the Supremacy Clause, when there is
no such right under the pertinent statute itself,
would effect a complete end-run around this Court's
implied right of action and 42 U.S.C. § 1983
jurisprudence.

Douglas, 132 S. Ct. at 1213 (Roberts, C.J., dissenting).

The Chief Justice distinguished the situation in Douglas

from Ex parte Young, 209 U.S. 123 (1908), and its progeny, which

“present quite different questions involving the pre-emptive

assertion in equity of a defense that would otherwise have been

13
available in the State’s enforcement proceedings at law.”

Douglas, 132 S. Ct. at 1213 (Roberts, C.J., dissenting)

(citation and internal quotation marks omitted). He continued,

“Nothing of that sort is at issue here; the respondents are not

subject to or threatened with any enforcement proceeding like

the one in Ex parte Young. They simply seek a private cause of

action Congress chose not to provide.” Id.

We find no merit in the State’s contention. Nothing in the

Chief Justice’s dissent disturbed the prior holdings of the

Supreme Court or circuit courts that have allowed private

parties to seek injunctive relief from state statutes allegedly

preempted by federal law. A long line of cases confirms this

right of action. See Shaw v. Delta Air Lines, Inc., 463 U.S. 85,

96 n.14 (1983) (“A plaintiff who seeks injunctive relief from

state regulation, on the ground that such regulation is 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.”); Local Union No. 12004,

United Steelworkers of Am. v. Massachusetts, 377 F.3d 64, 75

(1st Cir. 2004) (“[I]n suits against state officials for

declaratory and injunctive relief, a plaintiff may invoke the

jurisdiction of the federal courts by asserting a claim of

preemption, even absent an explicit statutory cause of

14
action.”); Loyal Tire & Auto Ctr., Inc. v. Town of Woodbury, 445

F.3d 136, 149 (2d Cir. 2006) (Sotomayor, J., majority opinion)

(a plaintiff’s “right to bring an action seeking declaratory and

injunctive relief from municipal regulation on the ground that

federal law preempts that regulation is undisputed”); Qwest

Corp. v. City of Santa Fe, New Mexico, 380 F.3d 1258, 1266 (10th

Cir. 2004) (“A party may bring a claim under the Supremacy

Clause that a local enactment is preempted even if the federal

law at issue does not create a private right of action.”);

Georgia Latino Alliance for Human Rights v. Georgia, 691 F.3d

1250, 1262 (11th Cir. 2012) (“GLAHR”) (finding, in a challenge

to a Georgia immigration law, that private plaintiffs had a

right of action, and stating, “[l]ike the other circuits to

address the issue head on, we ‘have little difficulty in holding

that [Plaintiffs] have an implied right of action to assert a

preemption claim seeking injunctive . . . relief’” (quoting

Planned Parenthood of Houston & Se. Tex. v. Sanchez, 403 F.3d

324, 334 n. 47, 335 (5th Cir. 2005)).

This Court, too, has allowed private parties to assert

preemption claims seeking injunctive relief. See AES Sparrows

Point LNG, LLC v. Smith, 527 F.3d 120, 127 (4th Cir. 2008)

(finding federal preemption, under the Supremacy Clause, of a

local zoning ordinance in a case brought by private companies);

Norfolk S. Ry. Co. v. City of Alexandria, 608 F.3d 150, 160 (4th

15
Cir. 2010) (finding preemption, under the Supremacy Clause, of a

municipal haul ordinance in case brought by railroad company).

As the above cited cases make clear, the State’s reliance on the

Douglas dissent is misplaced.

We hold that under the Supremacy Clause Lowcountry

Plaintiffs have an implied right of action to seek injunctive

relief from South Carolina’s Act 69 on federal preemption

grounds.

B.

South Carolina next argues that the district court should

have declined to hear the case under Younger abstention. A

district court’s decision to decline to abstain under Younger v.

Harris, 401 U.S. 37 (1971), is reviewed for abuse of discretion.

Life Partners, Inc. v. Morrison, 484 F.3d 284, 301 (4th Cir.

2007).

“Abstention from the exercise of federal jurisdiction is

the exception, not the rule.” Colo. River Water Conservation

Dist. v. United States, 424 U.S. 800, 813 (1976). As a general

rule, “federal courts have a strict duty to exercise the

jurisdiction that is conferred upon them by Congress.”

Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 716 (1996). One

of the limited exceptions to this rule is found in Younger,

where the Supreme Court held that federal courts should not stay

or enjoin pending state court criminal prosecutions except in

16
special circumstances, such as bad faith or harassment. 401 U.S.

at 41, 54. We have explained that Younger applies when the

requested relief would interfere with “‘(1) an ongoing state

judicial proceeding, instituted prior to any substantial

progress in the federal proceeding; that (2) implicates

important, substantial, or vital state interests; and (3)

provides an adequate opportunity for the plaintiff to raise the

federal constitutional claim advanced in the federal lawsuit.’”

Laurel Sand & Gravel, Inc. v. Wilson, 519 F.3d 156, 165 (4th

Cir. 2008) (quoting Moore v. City of Asheville, 396 F.3d 385,

390 (4th Cir. 2005)). As there is no ongoing state judicial

proceeding here, Younger abstention is inapplicable.

South Carolina, however, asserts that it is basing its

argument on Younger’s warning about federal courts enjoining

“threatened or anticipated state criminal proceedings.”

Appellant’s Opening Br. 22-23 (emphasis in original). 6 Younger

states:

‘[W]hen absolutely necessary for protection of
constitutional rights, courts of the United States
have power to enjoin state officers from instituting
criminal actions. But this may not be done, except
under extraordinary circumstances, where the danger of
irreparable loss is both great and immediate.
Ordinarily, there should be no interference with such
officers; primarily, they are charged with the duty of

6
We observe that the word “anticipated” does not appear in
Younger.

17
 prosecuting offenders against the laws of the state,
and must decide when and how this is to be done. The
accused should first set up and rely upon his defense
in the state courts, even though this involves a
challenge of the validity of some statute, unless it
plainly appears that this course would not afford
adequate protection.’

Younger, 401 U.S. at 45 (quoting Fenner v. Boykin, 271 U.S. 240,

243-44 (1926)). Those principles, Younger stated, “have been

repeatedly followed and reaffirmed in other cases involving

threatened prosecutions.” 401 U.S. at 45. The State argues that,

based on principles of comity and federalism, it is

inappropriate for a federal court to enjoin threatened state

criminal proceedings when the federal issue could be raised as a

defense in a state proceeding.

We disagree. We have held that Younger does not bar the

granting of federal injunctive relief when a state criminal

prosecution is expected and imminent. Age of Majority Educ.

Corp. v. Preller, 512 F.2d 1241, 1243 (4th Cir. 1975) (en banc).

We have also drawn a distinction between the commencement of

“formal enforcement proceedings,” at which point Younger

applies, versus the period of time when there is only a “threat

of enforcement,” when Younger does not apply. Telco Commc’ns,

Inc. v. Carbaugh, 885 F.2d 1225, 1229 (4th Cir. 1989), cert.

denied, 495 U.S. 904 (1990). In Telco, where a state agency had

commenced an investigation of a firm, we held that abstention

was not appropriate because the state proceedings were in a

18
preliminary stage. Id. at 1228. We observed that the state’s

contention – “that abstention is required whenever enforcement

is threatened” – “would leave a party’s constitutional rights in

limbo while an agency contemplates enforcement but does not

undertake it.” Id. at 1229. Further, if Younger abstention were

to apply, “[a] federal plaintiff would be placed ‘between the

Scylla of intentionally flouting state law and the Charybdis of

forgoing what [it] believes to be constitutionally protected

activity in order to avoid becoming enmeshed in enforcement

proceedings.’” Id. (quoting Steffel v. Thompson, 415 U.S. 452,

462 (1974)) (second alteration in original).

Other circuits have endorsed the Telco reasoning. See,

e.g., Guillemard-Ginorio v. Contreras-Gomez, 585 F.3d 508, 519

(1st Cir. 2009) (finding that the Telco rule, “requiring the

commencement of ‘formal enforcement proceedings’ before

abstention is required, better comports with the Supreme Court’s

decisions in Younger and its progeny, in which an indictment or

other formal charge had already been filed against the parties

seeking relief at the time the federal action was brought”); La.

Debating & Literary Ass’n v. City of New Orleans, 42 F.3d 1483,

1490 (5th Cir. 1995) (in a scenario similar to Telco, finding

that “Younger abstention was inappropriate because there was no

ongoing state proceeding”).

19
 The Supreme Court has made clear that injunctions of state

criminal statutes may be proper when constitutional rights are

at issue:

It is correct that generally a court will not enjoin
the enforcement of a criminal statute even though
unconstitutional, since such a result seriously
impairs the State's interest in enforcing its criminal
laws, and implicates the concerns for federalism which
lie at the heart of Younger. But this is not an
absolute policy and in some circumstances injunctive
relief may be appropriate. To justify such
interference there must be exceptional circumstances
and a clear showing that an injunction is necessary in
order to afford adequate protection of constitutional
rights.

Wooley v. Maynard, 430 U.S. 705, 712-13 (1977) (emphasis added)

(citations and internal quotation marks omitted). See also Doran

v. Salem Inn, Inc., 422 U.S. 922, 929-31 (1975) (affirming grant

of preliminary injunction to two bar owners challenging town

ordinance prohibiting topless dancing, finding Younger

abstention inapplicable, and holding that, in the absence of a

state criminal proceeding, “a plaintiff may challenge the

constitutionality of the state statute in federal court,

assuming he can satisfy the requirements for federal

jurisdiction”).

Following our reasoning in Telco, we hold that Younger

abstention is inapplicable where, as here, state proceedings

have not begun against the federal plaintiffs and the plaintiffs

seek injunctive relief to protect their constitutional rights.

20
Plaintiffs need not wait to be arrested under the challenged

sections of the Act before they can assert a constitutional

claim. They need not live under a cloud of “prolonged

uncertainty” as to their rights. Telco, 885 F.2d at 1229. The

district court was correct to decline to abstain.

IV.

We turn now to the merits. The district court issued

preliminary injunctions for Sections 4, 5, and 6(B)(2) of Act

69, finding those sections preempted by federal immigration law

and regulations. South Carolina II, 960 F. Supp. 2d at 466. The

State argues the Act is a proper exercise of its police powers

and does not undermine or conflict with federal law. Courts

recognize three types of federal preemption: (1) express

preemption, in which Congress expressly states its intent to

preempt state law, Cox v. Shalala, 112 F.3d 151, 154 (4th Cir.

1997); (2) field preemption, in which Congress occupies a

certain field by “regulating so pervasively that there is no

room left for the states to supplement federal law,” id. (citing

Fid. Sav. & Loan Ass’n v. de la Cuesta, 458 U.S. 141, 153

(1982)), or where there is a “federal interest . . . so dominant

that the federal system will be assumed to preclude enforcement

of state laws on the same subject,” Arizona, 132 S. Ct. at 2501

(citation and internal quotation marks omitted); and (3)

conflict preemption, arising when state law is preempted “to the

21
extent it actually conflicts with federal law,” Cox, 112 F.3d at

154 (citing Pac. Gas & Elec. Co. v. State Energy Res.

Conservation & Dev. Comm’n, 461 U.S. 190, 204 (1983)). The

Supreme Court has instructed that conflict preemption “includes

cases where compliance with both federal and state regulations

is a physical impossibility, and those instances where the

challenged state law stands as an obstacle to the accomplishment

and execution of the full purposes and objectives of Congress.”

Arizona, 132 S. Ct. at 2501 (citations and internal quotation

marks omitted). The district court enjoined Sections 4, 5, and

6(B)(2) under theories of field and conflict preemption.

We note that the presumption against preemption does not

apply here because immigration is an area traditionally

regulated by the federal government. This Court has declined to

apply the presumption against preemption when dealing with a

state law that “regulates an area with authorized federal

presence,” such as national banking. Epps v. JP Morgan Chase

Bank, N.A., 675 F.3d 315, 322 (4th Cir. 2012). We further

decline to apply the presumption to state laws that concern

immigration, an area with extensive federal presence. See

Arizona, 132 S. Ct. at 2510 (observing that “[i]mmigration

policy shapes the destiny of the Nation” and “[t]he National

Government has significant power to regulate immigration”).

A.

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 Sections 4(A) and (C) of the Act make it a state felony for

an unlawfully present person to allow himself or herself to be

“transported or moved” within the state or to be harbored or

sheltered to avoid detection. The district court found these

subsections essentially criminalize mere presence. South

Carolina II, 960 F. Supp. 2d at 467-70. The State argues that

these sections do not punish mere unlawful presence because they

“require that the illegally present alien take action to

transport, harbor or shelter themselves” with the intent to

further his or her unlawful entry into the United States or to

avoid apprehension or detection. Appellant’s Opening Br. 46.

South Carolina also presses the argument that these sections

only concern “the historic police powers” of the State and thus

should be given great deference. Id. at 41.

The Supreme Court recognized in Arizona that “[a]s a

general rule, it is not a crime for a removable alien to remain

present in the United States.” 132 S. Ct. at 2505. We are hard-

pressed to see how an unlawfully present alien, going about her

normal daily life, would be able to avoid violating Sections

4(A) and (C) of the Act. Simply staying in one’s home could be

viewed as an attempt to “shelter” oneself from detection. Taking

a bus or driving home at the end of the workday would be

“transport[ing]” oneself to the shelter of one’s home to avoid

detection. The broad sweep of these sections violates the clear

23
rule of Arizona that unlawful presence is not a criminal

offense.

In an analogous case, the Eleventh Circuit affirmed a

preliminary injunction against a section of an Alabama statute

that prohibited state courts from enforcing a contract to which

an unlawfully present alien was a party. United States v.

Alabama, 691 F.3d 1269, 1296 (11th Cir. 2012). The court found

the statute to be “extraordinary and unprecedented,” and

criticized its broad sweep: “Essentially, the ability to

maintain even a minimal existence is no longer an option for

unlawfully present aliens in Alabama.” Id. at 1293. In finding

the section preempted, the court noted that it burdened “a

capability that, in practical application, is essential for an

individual to live and conduct daily affairs.” Id. at 1294.

In essence, Sections 4(A) and (C) operate to criminalize

unlawful presence, a stance plainly at odds with federal law.

Under federal law, unlawfully present aliens are subject to

civil removal proceedings. See 8 U.S.C. § 1227. “A principal

feature of the removal system is the broad discretion exercised

by immigration officials.” Arizona, 132 S. Ct. at 2499. This

discretion is necessary because it “involves policy choices that

bear on this Nation’s international relations.” Id. The State,

by criminalizing what Congress has deemed a civil offense and

entrusted to the discretion of the executive branch, is

24
“pursu[ing] policies that undermine federal law.” Id. at 2510.

Sections 4(A) and (C) are thus conflict preempted because they

stand as an obstacle to the execution of the federal removal

system and interfere with the discretion entrusted to federal

immigration officials. They make criminals out of aliens

attempting to do no more than go to school, go to work, and care

for their families. Cf. Arizona, 132 S. Ct. at 2504 (“[M]aking

criminals out of aliens engaged in unauthorized work – aliens

who already face the possibility of employer exploitation

because of their removable status – would be inconsistent with

federal policy and objectives.”).

The district court was correct to enjoin Sections 4(A) and

(C) because they criminalize actions that Congress has, as a

policy choice, decided are a civil matter. We hold that Sections

4(A) and (C) are preempted by federal law.

B.

Sections 4(B) and (D) of the Act make it a state felony to

“transport, move or attempt to transport” or “conceal, harbor or

shelter” a person “with intent to further that person’s unlawful

entry into the United States” or to help that person avoid

apprehension or detection. The district court found the

provisions present “a classic case of field preemption.” South

Carolina I, 840 F. Supp. 2d at 917. The sections are similar to

a federal statute that makes it unlawful to “transport or move”

25
or “conceal[], harbor[] or shield[]” an unlawful alien. 8 U.S.C.

§ 1324(a)(1)(A)(ii) and (iii). While the federal law authorizes

state and local law enforcement officers to make arrests for

violations under the statute, prosecution is at the discretion

of federal prosecutors and the cases are brought in federal

court. Id. § 1324(c).

The State argues that it is possible to comply with both

the federal and state harboring laws, and that the state law is

not field preempted because the federal regulations do not

provide “a full set of standards.” Id. Provisions of the United

States Code, however, show otherwise. The Immigration and

Naturalization Act (“the INA”) provides for penalties against

third parties engaged in a full set of harboring and

transporting offenses: the INA authorizes penalties against

those who conceal, harbor, or shield unlawfully present aliens

from detection, 8 U.S.C. § 1324(a)(1)(A)(iii); those who

encourage or induce aliens to enter the United States without

lawful authorization, id. § 1324(a)(1)(A)(iv); those who

transport an alien within the United States in furtherance of

the alien’s violation of federal immigration laws, id. §

1324(a)(1)(A)(ii); and those who assist or conspire in the

commission of those acts, id. § 1324(a)(1)(A)(v). There are also

penalties for smuggling or otherwise bringing aliens into the

United States without lawful authorization, id. §§ 1323,

26
1324(a)(1)(A)(i), 1324(a)(2), and for knowingly aiding or

assisting certain inadmissible aliens to enter unlawfully, id. §

1327. The federal government has clearly occupied the field of

regulating the concealing, harboring, and transporting of

unlawfully present aliens.

The Eleventh Circuit affirmed preliminary injunctions

against similar anti-harboring schemes in Alabama and Georgia.

See GLAHR, 691 F.3d 1250; United States v. Alabama, 691 F.3d

1269. The court found that Section 7 of Georgia’s Illegal

Immigration Reform and Enforcement Act of 2011, which made it a

state criminal offense to transport, conceal, or harbor a

removable alien, was both field and conflict preempted. GLAHR,

691 F.3d at 1263-64. The section was field preempted because

“the federal government has clearly expressed more than a

‘peripheral concern’ with the entry, movement, and residence of

aliens within the United States, and the breadth of these laws

illustrates an overwhelmingly dominant federal interest in the

field.” Id. at 1264. The court found the section was conflict

preempted because, by allowing for state prosecution of

immigration crimes that Congress had confined to federal court,

the section “present[ed] an obstacle to the execution of the

federal statutory scheme and challenge[d] federal supremacy in

the realm of immigration.” Id. at 1265.

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 The Eleventh Circuit also affirmed a preliminary injunction

of Section 13 of Alabama’s Taxpayer and Citizen Protection Act.

Section 13 of the statute created state crimes for concealing,

harboring, transporting, or shielding an unlawfully present

alien. The Eleventh Circuit found the section to be both field

and conflict preempted, Alabama, 691 F.3d at 1285-88, and

observed that “federal law provides a comprehensive framework to

penalize the transportation, concealment, and inducement of

unlawfully present aliens,” id. at 1285 (citation and internal

quotation marks omitted). Alabama, by enacting concurrent state

legislation in a field of federal concern, “undermines the

intent of Congress to confer discretion on the Executive Branch

in matters concerning immigration.” Id. at 1287.

We find the Eleventh Circuit’s reasoning persuasive.

Sections 4(B) and (D) of the Act are field preempted because the

vast array of federal laws and regulations on this subject, see

supra, slip op. at 24-25, is “so pervasive . . . that Congress

left no room for the States to supplement it.” Arizona, 132 S.

Ct. at 2501 (citation and internal quotation marks omitted).

“[W]here the federal government, in the exercise of its superior

authority in this field, has enacted a complete scheme of

regulation . . . states cannot, inconsistently with the purpose

of Congress, conflict or interfere with, curtail or complement,

28
the federal law, or enforce additional or auxiliary

regulations.” Hines v. Davidowitz, 312 U.S. 52, 66-67 (1941).

Furthermore, the sections are conflict preempted because

“there is a federal interest . . . so dominant that the federal

system will be assumed to preclude enforcement of state laws on

the same subject.” Arizona, 132 S. Ct. at 2501 (citation and

internal quotation marks omitted). We observe that “[t]he

dynamic nature of relations with other countries requires the

Executive Branch to ensure that enforcement policies are

consistent with this Nation’s foreign policy with respect to

these and other realities.” Id. at 2499. Sections 4(B) and (D)

create an obstacle to the smooth functioning of federal

immigration law, improperly place in the hands of state

officials the nation’s immigration policy, and strip federal

officials of the authority and discretion necessary in managing

foreign affairs.

We hold that Sections 4(B) and (D) of Act 69 are preempted

by federal law.

C.

Section 5 makes it a state misdemeanor for any person 18

years or older to “fail to carry” “a certificate of alien

registration or alien registration receipt card issued to the

person pursuant to 8 U.S.C. Section 1304.” This provision is

almost identical to the federal registration statute, 8 U.S.C. §

29
1304(e), which requires every alien in the U.S. over the age of

18 to “at all times carry with him and have in his personal

possession any certificate of alien registration or alien

registration receipt card” issued under that statute.

In Arizona v. United States, the Supreme Court confronted a

similar statute. Section 3 of Arizona’s S.B. 1070 forbade the

“willful failure to complete or carry an alien registration

document . . . in violation of 8 United States Code section

1304(e) or 1306(a).” Ariz. Rev. Stat. Ann. § 11–1509(A) (West

Supp. 2011). The Supreme Court held Section 3 to be preempted by

federal law. Arizona, 132 S. Ct. at 2503. Detailing the

framework and penalties Congress has established for alien

registration, the Court found that “the Federal Government has

occupied the field of alien registration.” Id. at 2502. “Where

Congress occupies an entire field, as it has in the field of

alien registration, even complementary state regulation is

impermissible.” Id.

Accordingly, we hold that Section 5 is field preempted by

federal law.

D.

Section 6(B)(2) makes it unlawful for any person to display

or possess a false or counterfeit ID for the purpose of proving

lawful presence in the United States. Federal law makes it a

crime to counterfeit federal immigration documents or to use

30
such documents in an effort to satisfy immigration requirements.

8 U.S.C. § 1324c(a)(1) and (2); 18 U.S.C. § 1546. The district

court found that Section 6(B)(2), like Section 5, dealt with

alien registration and, following Arizona, was preempted because

Congress has occupied the field of alien registration. South

Carolina II, 960 F. Supp. 2d at 469.

South Carolina argues that Section 6(B)(2) “should not be

encompassed by the alien registration field recognized by

Arizona because this statute addresses ordinary fraud.”

Appellant’s Opening Br. 49-50. The State further argues that the

presumption against preemption applies to this section because

“fraud is an area traditionally for state legislation.” Id. at

50. Appellee United States responds that Section 6(B)(2) does

not address ordinary fraud but rather “constitutes the State’s

attempt to enforce federal provisions designed to prevent aliens

from circumventing federal immigration law.” United States Br.

23. Further, “protecting the integrity of the federal

immigration scheme is an exclusively federal function and not

the purview of the States.” Id. at 23-24.

As an initial matter, when the fraud at issue involves

federal immigration documents, the presumption against

preemption does not apply. Cf. Buckman Co. v. Plaintiffs’ Legal

Comm., 531 U.S. 341, 347 (2001) (“Policing fraud against federal

agencies is hardly a field which the States have traditionally

31
occupied . . . .”) (citation and internal quotation marks

omitted).

As with other immigration-related measures, prosecution for

counterfeiting or using federal immigration documents is at the

discretion of the Department of Justice acting through the

United States Attorney, and allowing the state to prosecute

individuals for violations of a state law that is highly similar

to a federal law strips federal officials of that discretion. As

the Arizona Court observed, “Discretion in the enforcement of

immigration law embraces immediate human concerns” and also

“involve[s] policy choices that bear on this Nation’s

international relations.” 132 S. Ct. at 2499.

Section 6(B)(2) is field preempted in that Congress has

passed several laws dealing with creating, possessing, and using

fraudulent immigration documents. See 8 U.S.C. § 1324c(a)(1) and

(2); 18 U.S.C. § 1546 (providing penalties up to 25 years’

imprisonment). Congress has occupied this field and, in such a

case, even complementary or auxiliary state laws are not

permitted. See Hines, 312 U.S. at 66-67; Arizona, 132 S. Ct. at

2501-02. In addition, Section 6(B)(2) is conflict preempted

because enforcement of these federal statutes necessarily

involves the discretion of federal officials, and a state’s own

law in this area, inviting state prosecution, would “stand[] as

32
an obstacle to the accomplishment and execution of the full

purposes and objectives of Congress.” Hines, 312 U.S. at 67.

We hold Section 6(B)(2) is preempted by federal law.

V.

To obtain a preliminary injunction, a moving party must

establish the presence of the following: (1) “a clear showing

that it will likely succeed on the merits”; (2) “a clear showing

that it is likely to be irreparably harmed absent preliminary

relief”; (3) the balance of equities tips in favor of the moving

party; and (4) a preliminary injunction is in the public

interest. Real Truth About Obama, Inc. v. Fed. Election Comm.,

575 F.3d 342, 346–47 (4th Cir. 2009); W. Va. Ass’n of Club

Owners & Fraternal Servs., Inc. v. Musgrave, 553 F.3d 292, 298

(4th Cir. 2009).

We have held that Lowcountry Plaintiffs and the United

States have made a clear showing that they are likely to succeed

on the merits of their challenge to Sections 4, 5, and 6(B)(2)

of Act 69. We further hold that the appellee-plaintiffs have

made a clear showing they will likely suffer irreparable harm if

an injunction is not granted, that the balance of equities tips

in favor of the appellee-plaintiffs, and that preliminary

injunctive relief is in the public interest. See South Carolina

I, 840 F. Supp. 2d at 924-27. The irreparable injury to the

nation’s foreign policy if the relevant sections take effect has

33
been clearly established by the United States. And for

individual, unlawfully present immigrants and others, the

likelihood of chaos resulting from South Carolina enforcing its

separate immigration regime is apparent.

VI.

For the reasons stated, the order of the district court

granting a preliminary injunction is

AFFIRMED.

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