Judge Blackburn Rules on Alabama's Immigration Law

September 29, 2011

Judge Blackburn entered Orders and Memorandum Opinions in 3 different cases: USA v. State of Alabama (2 page Order, 115 page Memorandum Opinion), Rt. Rev. Henry Parsley, Jr. v. Robert Bentley (1 page Order 13 page Memorandum Opinion) and Hispanic Interest Coalition of Alabama v. Robert Bentley (2 page Order and 106 page Memorandum Opinion). These cases sought Preliminary Injunctions preventing the implementation of various parts of the Immigration Law. House Bill 56, approved by the Alabama Legislature on June 2, signed into law by Governor Bentley on June 9, is referred to as the Beason-Hammon Alabama Taxpayer and Citizen Protection Act. I will address each of these cases in order as set forth above.

In the case of United States v. State of Alabama, the court found that "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....A preliminary injunction is an extraordinary and drastic remedy; it is never awarded as of right".

The court found that the US did not meet its burden of proof as to Sections 10, 12(a), 18, 27, 28 and 30 of HB 56. As such, these provisions, subject to a possible stay on appeal, are in effect as of today.

Section 10 states: "(a) In addition to any violation of federal law, a person is guilty of willful failure to complete or carry an alien registration document if the person is in violation of 18 USC Section 1304(e) or 8 USC Section 1306(a), and the person is an alien unlawfully present in the United States." The court found that Section 10 "creates Alabama state crimes for unlawfully present aliens who engage in conduct that constitutes existing federal crimes under the INA (The Immigration and Nationality Act).

Section 12(a) "sets forth circumstances under which state, county and municipal law enforcement officers must attempt to verify the citizenship and immigration status of persons detained or arrested." "Upon any lawful stop, detention, or arrest made by any state, county or municipal law enforcement officer....where reasonable suspicion exists that the person is an alien who is unlawfully present in the United States, a reasonable attempt shall be made, when practicable, to determine the citizenship and immigration status of the person, except if the determination may hinder or obstruct an investigation."

Section 18 amended Alabama Code Section 12-6-9 which requires one to have in his or her immediate possession ones drivers' license. HB 56 provides that if a law enforcement officer arrests a person for a violation of this section, and is unable to determine by other means that the person has a valid drivers' license, the officer shall transport the person to the nearest or most accessible magistrate. A verification inquiry shall be made within 48 hours to the Law Enforcement Support Center of the United States Department of Homeland Security. If the person is determined to be an alien unlawfully present in the US, the person SHALL be considered a flight risk and SHALL be detained until prosecution or until handed over to federal immigration authorities.

Section 27 provides in substance that an Alabama court cannot enforce the terms of a contract between a party and an alien unlawfully present in the US if the party had direct or constructive knowledge that the person was in the US unlawfully at the time the contract was entered into, and the contract required the alien to remain unlawfully in the US for more than 24 hours after the time the contract was entered into or performance could not reasonably be expected to occur without such remaining. This section does NOT apply to a contract for lodging for one night, the purchase of food to be consumed by the alien, a contract for medical services or a contract for transportation if it is intended to facilitate the alien's return to his or her country of origin.

Section 28 deals with elementary and secondary school students, and requires schools to determine at enrollment whether the student was born outside the US or is the child of an alien not lawfully present in the US, and qualifies for assignment to an English as Second Language class or other remedial program. If upon review of the student's birth certificate, it is determined that the student was born outside the US or is the child of an alien not lawfully present in the US, the parent, guardian or legal custodian shall notify the school of the student's citizenship or immigration status. Each school district is required to collect and compile this data and submit it to the State Board of Education as an annual report. HB 56 PROHIBITS the public disclosure of any information which personally identifies any student, with some limited exceptions. The student will not be prohibited from attending school if he/she is not legally in the country.

Section 30 prohibits an alien not lawfully present in the US, or a person acting on their behalf, from entering or attempting to enter into a business transaction with the state or a political subdivision of the state. Any person entering into a business transaction with the state or political subdivision of the state shall be required to demonstrate his/her US citizenship, or if an alien, their lawful presence in the US. A violation of this section is a class C felony. The court interprets Section 30 as prohibiting unlawfully present aliens from contracting with state and local governments, applying for or renewing drivers' licenses and identification cards, and applying for and renewing motor vehicle license plates.

In her Order, Judge Blackburn entered a preliminary injunction PROHIBITING the following sections of HB 56 from taking effect:

Section 11(a) which states "It is unlawful for a person who is an unauthorized alien to knowingly apply for work, solicit work in a public or private place, or perform work as an employee or independent contractor in this state."

Section 13 which makes it unlawful for a person to "conceal, harbor, or shield or attempt to conceal, harbor or shield...an alien from detection in any place in this state, including any building or means of transportation, if the person knows or recklessly disregards the fact that the alien..." is unauthorized; to encourage or induce an unauthorized alien to come to or reside in Alabama; "transport or attempt to transport...an alien in furtherance of the unlawful presence of the alien in the United States"; or to harbor an unauthorized alien by entering into a rental agreement to provide accommodations to him/her.

Section 16 which prohibits a business from taking "as a deductible business expense for any state income or business tax purposes in this state" any wages or compensation paid to an unauthorized alien. Section 16 also imposes a penalty equal to 10 times the business expense deduction.

Section 17 which makes it a "discriminatory practice for a business entity or employer to fail to hire a job applicant who is a US citizen or an alien who is authorized to work in the US....while retaining or hiring an employee who the business entity or employer knows, or reasonably should have known, is an unauthorized alien." Section 17 also has an attorney fee shifting provision, which is rare in Alabama.

The sections of HB 56 addressed by Judge Blackburn in her Order and Memorandum Opinion are detailed above. She did not address the following sections of HB 56 in this case:

Section 1: Naming the law

Section 2: Setting forth the legislative intent.

Section 3: Setting forth definitions of various words and phrases

Section 4: Authorizing the Attorney General to attempt to negotiate a Memorandum of Understanding between Alabama and the US Department of Homeland Security concerning the enforcement of federal immigration laws, detentions and removals, and related investigations.

Section 5: Prohibiting an official or agency of Alabama from restricting or limiting the enforcement of federal immigration laws by limiting communications between state and federal agencies.

Section 6: Prohibiting any official or agency of Alabama from interfering with the enforcement of this Act.

Section 7: Prohibiting unlawful aliens from receiving any state or local public benefits. Permitting individuals to receive various services WITHOUT verification of lawful presence in the US, including primary and secondary school education; obtaining emergency health care items and services; short term, non-cash in kind emergency disaster relief; public health assistance for immunizations; programs and services such as soup kitchens and crisis counseling; prenatal care; and child and adult protective services.

Section 8: Prohibits an alien not lawfully present in the US from attending any public post secondary education institution in Alabama. This provision has been enjoined from being enforced in the HICA case.

Section 9: Requiring, as a condition for the award of any contract, grant or incentive by the state or political subdivision thereof, that the employer shall not knowingly employ, hire for employment or continue to employ an unauthorized alien and shall attest to it by sworn affidavit. Section 9 requires the mandatory use of the E-Verify system as of January 1, 2012. You can read my prior posts for more details about this section and penalties.

Section 14: Making it a crime to deal in false identification documents, including birth, death, marriage and divorce certificates.

Section 15: Making it illegal for all employers to knowingly hire for employment or continue to employ an unauthorized alien to perform work in Alabama. Section 15 also mandates the use of E-Verify for all business in the state of Alabama effective April 1, 2012. Again, I have written on this section in more detail in previous posts.

Sections 19 and 20: Addresses the arrest and/or conviction of an unauthorized alien.

Section 21: Stays the provisions of HB 56 for a victim of a crime until all proceeding are concluded.

Sections 22, 23 and 24: Address various requirements of the Alabama Department of Homeland Security.

Section 25: Makes it a crime to solicit someone to violate this act.

Section 26: Requires Alabama Department of Homeland Security to establish and maintain an E-Verify employer agent service for employers with 25 or fewer employees, which shall be in place within 90 days of the effective date of the act which runs from September 28. The Alabama DHS shall, every 3 months, request from the US DHS a list of every business entity or employer enrolled in E-Verify make the list available on its website.

Section 29: Imposes requirements for voter registration.

In the case of Parsley v. Robert Bentley, the court denied the Amended Motion for Preliminary Injunction as to Section 27, based on lack of standing, and addressed the request for a Preliminary Injunction as to Section 13 by referring to the opinion in the case of United States v. State of Alabama.

In the case of HICA v. Bentley, the court granted a Preliminary Injunction as to Section 8, the last sentence of Sections 10(e), 11(e) and 13(h), and Section 11(f) and (g). The court denied the request for a preliminary injunction as to Sections 10 (except the last sentence), 12, 18-20, 27 28 and 30.

As set forth above in detail, Section 8 prohibits an "alien who is not lawfully present in the United States" from attending or enrolling in an Alabama "public postsecondary education Institution in this state". The court enjoined the enforcement of this provision.

The last sentence of Sections 10(e), 11(e) and 13(h) are identical: "A court of this state shall consider only the federal government's verification in determining whether an alien is lawfully present in the United States". The court enjoined the enforcement of this language.

Section 11(f) and (g) make it illegal for an occupant of a motor vehicle that is stopped on a street, roadway or highway to attempt to hire or hire and pick up passengers for work at a different location if the motor vehicle blocks or impedes the normal movement of traffic, and 11(g) which prohibits a person from entering such a vehicle. The court enjoined the enforcement of these provisions.

Practice pointers. This is only the first step in what is going to be a long, hard fought battle through the court system, most likely ending up in the Supreme Court. Many states have already passed immigration laws, and more are considering them. I expect that these cases will only be over when the Supreme Court addresses the numerous issues raised in the many lawsuits that have been filed around the country.

As expected, the employment related provisions of Alabama's law have been upheld as of now. Without a stay on appeal, the provisions are effective as set forth in bill: E-Verify for state contractors as of January 1, 2012, and all other employers April 1, 2012. Violations of these requirements may result in the loss of business licenses and permits, so they should be taken seriously. Now is the time for employers and businesses in Alabama to get ready: perform I-9 audits, begin using E-Verify as soon as possible, and train the entire workforce as to the immigration issues that exist in the workplace.

Judge Blackburn Rules on Alabama's Immigration Law

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