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District Court Upholds Extreme Anti-immigrant Provisions in Alabama's HB 56

by Carrie Rosenbaum

On September 28, 2011 U.S. District Court Judge Sharon Lovelace Blackburn issued a decision in the controversial U.S. v. Alabama case. The District Court decision was the first in the nation to uphold anti-immigrant provisions such as those requiring schools to identify undocumented students, forbids state courts from enforcing a contract with an undocumented person, makes entering a business transaction a felony for undocumented people, and permit local law to ask individuals for immigration documents, and criminalizes failure to carry such identification. The issues decided upon by the District Court, primarily hinging on whether these state laws on immigration are preempted by federal law, will likely end up before the Supreme Court.

HB 56 was signed into law on June 9, 2011, by Governor Robert Bentley. The DOJ and public interest organizations sued to block it, succeeding in obtaining provisional order preventing enforcement of the law on August 29. The law, considered the most anti-immigrant of all recent legislative efforts nationwide, contains provisions which :

1) Requires immigrants to carry alien registration documents and makes failure to carry documentation of immigration status a misdemeanor;
2) Requires state and local law enforcement to verify the immigration status of all people stopped on the basis that there is a "reasonable suspicion" that they are undocumented;
3) Requires school officials to collect information on the immigration status of all students (though does not expressly prohibit enrollment of undocumented students);
4) Permits detention and prosecution of unlicensed drivers in the U.S. without authorization and allows for transfer to immigration custody;
5) Nullifies any contracts entered into by undocumented immigrants;
6) Makes entering a business transaction a felony for undocumented people; and,
7) Forbids any transaction between an undocumented immigrant and any division of the state.

The court upheld the first three provisions above, including the controversial "papers please" and verification of student's immigration status provisions. Arizona and Georgia courts enjoined provisions similar to the provision empowering local law enforcement officers to question and detain anyone they thought had a "reasonable suspicion" of being in the U.S. without authorization. Civil rights groups and the courts have expressed grave concerns about racial profiling, presumably a primary way, if not the only way to ascertain the "reasonable suspicion" that an individual is undocumented.

With respect to the school enrollment provision, civil rights groups challenged the provision on the basis that it would deter students from attending school, however the court dismissed their challenge for lack of standing and did not rule on the merits of the argument. Scholars have suggested that the school provision is questionable in light of the 1982 Supreme Court decision in Plyler v. Doe where the Court struck a Texas ban on the enrollment of undocumented students in K-12 schools. While the Plyler case considered an express ban on enrollment in public schools, arguably, the Alabama law has already had a significant chilling effect on undocumented students seeking a public education. Students, families, and farm workers have begun fleeing Arizona en masse as a result of the District Court decision.

The Court entered a preliminary injunction against a provision that would have outlawed solicitation of work or performance of work by undocumented immigrants, and a provision that would have made transporting or renting housing to undocumented immigrants a state crime, amongst other provisions. The decision was in keeping in part with the Third Circuit Court of Appeals decision in Hazleton v. Lozano where the court struck down mandatory use of E-verify.

Justice Blackburn's rationale took an unsurprisingly "state's rights" perspective. In upholding the controversial provisions noted above she emphasized that states essentially had the right to enact laws pertaining to immigration, and such efforts were not preempted. On the basis of federal preemption, the judge did however strike down provisions making it to a misdemeanor for undocumented people to work in Alabama, and making it a crime to harbor undocumented immigrants.

Aside from being ethically and morally contrary to the founding principles of our nation and counterproductive in terms of public safety, laws discouraging participation of immigrants in society and our economy are arguably damaging to the U.S. economy - unauthorized immigrants comprised roughly 4.2% of the state's workforce (or 95,000 workers) in 2010, according to a report by the Pew Hispanic Center. Moreover, if all unauthorized immigrants were removed from Alabama, the state would arguably lose $2.6 billion in economic activity, $1.1 billion in gross state product, and approximately 17,819 jobs, even accounting for adequate market adjustment time, according to a report by the Perryman Group as reported by the Immigration Policy Center.

Given Congress' inaction on immigration reform it seems more likely that the Supreme Court may rule on the controversial anti-immigrant measures being passed and litigated in the states and in municipalities before the nation sees immigration reform. While the Administration has made new policy statements with respect to prosecutorial discretion in recent months, without a doubt, the U.S. is still plagued by an anti-immigrant climate, contrary to the health and potential prosperity of the nation.

About The Author

Carrie Rosenbaum is an immigration attorney in private practice in San Francisco directly serving immigrant clients and serving as an appellate and litigation consultant for immigration attorneys. She has served as the co-chair of the National Lawyers Guild Immigration Committee, is a member of the American Immigration Lawyers Association and provides pro bono services to the National Immigration Project, Lawyers Committee for Civil Rights, AIDS Legal Referral Panel, and La Raza Centro Legal.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.