Alabama Immigration Law Update
Recently, I have been asked by several people to explain the effects of Alabama’s new immigration law. The law was signed into effect by Governor Robert Bentley in June of this year and since then has been the center of much debate and controversy. Alabama’s immigration law may be the most extreme position taken by any state so far regarding illegal immigrants. The law is located beginning at Alabama Code 31-9C-1, and I would suggest that anyone who has any dealings with potential illegal immigrants look it up and read it. The law takes a very tough stand on illegal immigrants and contains some pretty serious penalties for any violators, American citizen and illegal immigrant alike. I would like to, and may in the future, break down the law and attempt to explain what it does and what it means for local residents. For now, however, that would be impossible considering the ongoing litigation regarding the law’s constitutionality. The only thing I can address now, is the status of the ongoing federal court litigation.
I usually write these columns for the Post on the Wednesday before the paper is published on Monday. I am writing this article on October 12, 2011. I mention that because what has happened thus far in the litigation process may change before this article is released.
After the law was signed into being, there were two federal lawsuits filed in Alabama Federal Court that attempted to have the law declared unconstitutional. The United States filed one suit and the Hispanic Interest Coalition of Alabama filed the other. The main argument in both lawsuits is basically that the State of Alabama (or any other State for that matter) does not have the authority to make such immigration laws. The Plaintiffs argue that this power can only come through the federal government.
The Plaintiffs’ efforts to block the law were generally rejected by U.S. District Court Judge Sharon Lovelace Blackburn on September 28. The law went into effect the next day. Judge Blackburn let stand measures requiring people to carry proof they have the right to be in the U.S.; directing police to check the immigration status of drivers involved in traffic stops and arrests; barring entering contracts with illegal immigrants; requiring schools to check the immigration status of enrollees and prohibiting illegal immigrants from entering into business transactions with state and local government.
Both plaintiffs are appealing Judge Blackburn’s ruling and want the 11th Circuit Federal Appeals Court to temporarily “stay” (or not enforce) the law until it rules on the appeal. This sort of legal procedure is called a “preliminary injunction.” In response, the State of Alabama filed a response asking that the 11th Circuit Federal Appeals Court keep the law in effect during the appeal.
The State of Alabama argues that the law does not infringe on the federal government’s role in immigration enforcement, but instead helps ensure that federal immigration law is respected. The State further argues that illegal immigrants are taking jobs from U.S. citizens and others authorized to work in the U.S., that it is difficult to collect taxes from them and that illegal immigrants make up a substantial part of the state’s prison population. The Plaintiffs argue that Alabama has no authority to act in the area of immigration, even to gather information or to cooperate with federal officials. In fact, The United States Department of Justice argues it has exclusive authority over immigration law and that states cannot develop a “patchwork” immigration system across the country.
Ultimately, the law will be argued over for several months, and may end up in United States Supreme Court. But, at least for today, the law remains in force.
Since last week’s article involving Alabama’s Immigration law, the 11th Circuit Federal Appeals Court has issued an injunction preventing enforcement of additional sections of the law. Previous to that, the Alabama Federal District Court had enjoined enforcement of several provisions. Although there will be further litigation on the issue, at this moment, the following sections of the Immigration Law are enforceable. Please note that I have only included a very general overview of what I feel are the most relevant sections of the Immigration Law in this article.
First of all, the law states that an immigrant is presumed to be lawfully present in the State if they have either a valid, unexpired Alabama Driver’s License or nondriver ID card ; a valid tribal enrollment card or other tribal ID card with a photo or biometric identifier; a valid U.S. or state government issued ID document with photo or biometric identifier; a foreign passport with an unexpired U.S. visa and corresponding stamp or notation; or a foreign passport issued by a visa waiver country with an entry stamp and unexpired duration of stay annotation or any I-94W form.
Section 7 tells us that verification of an immigrant’s lawful presence in the State is not required for primary or secondary school education; health care items and service necessary for treatment of an emergency medical condition not related to organ transplant; Short term emergency disaster relief; public health assistance for immunizations; soup kitchens, crises counseling and intervention, short-term shelter, etc.; prenatal care; and/or child protective services, adult protective service, or domestic violence services.
Anyone applying for state or local public benefits, however, shall sign a declaration that he or she is a U.S. citizen. If someone receives such a benefit and turns out to be an illegal immigrant, each offense amounts to a separate violation of 2nd degree perjury.
Section 9 of the law states that, to be awarded any contract, grant or incentive by the state, an employer must not knowingly hire or continue to employ an unauthorized alien. In fact, the employer must enroll in “E-Verify” online system by January 1, 2012 and verify every employee that is required to be verified by federal rules. Upon the first violation of this section, the Attorney General may bring an action to suspend the contractor’s business license up to 60 days. Further, the business must file affidavit with local District Attorney within 3 days saying that the aliens were fired. On a second violation, the contract will be terminated and the contractor’s business license can be potentially permanently revoked
Section 12 states that upon any lawful stop, detention, or arrest made in the enforcement of any state law or ordinance where reasonable suspicion exists that the person is an alien who is unlawfully present in the U.S., a reasonable attempt shall be made, when practicable, to determine the citizenship and immigration status of the person. Immigration status must be verified with federal government within 24 hours of arrest. If delayed beyond the time that the alien would otherwise be released, the alien shall be released after that time. If the person is an illegal alien, law enforcement must cooperate in the transfer of custody of the person to the federal government.
Section 14 makes it a crime for anyone to knowingly reproduce, manufacture, sell, or offer for sale any false identification document. This crime, known as “dealing in false identification documents” is a Class C felony. It does not apply, however, to persons under 21 using a false ID to acquire alcohol or persons under 19 using a false ID to acquire tobacco.
Section 15 regards employers, and states that no employer shall knowingly employ or hire an unauthorized alien. Effective April 1, 2012, every employer shall enroll in “E-Verify” online verification system and shall use it when hiring employees. The first violation of this law carries a 10 day business license suspension and a 3 year probationary period requiring the employer to file quarterly reports with District Attorney of each new employee hired during that time. Upon a second violation, the court shall order permanent suspension of business licenses and permits “specific to the business location where the unauthorized alien performed work.” Any violation thereafter results in permanent suspension of the employer’s business license throughout the state. This section does not apply, however, to employees performing “casual domestic labor within a household.”
Section 18 states that if a law officer arrests a person for a violation of this section and the officer is unable to determine that the person has a valid driver’s license, the officer shall transport the person to the nearest or most accessible magistrate. Within 48 hours, reasonable efforts are supposed to be used to determine whether the person is a legal citizen. If the person is unlawfully present, he or she is considered a flight risk and detained until prosecution or transfer to federal custody.
Similarly, section 19 says that when a person is put in jail and bail is required, a reasonable effort to determine if he or she is an alien unlawfully present should be made within 48 hours. If the person is unlawfully present, he or she is considered a flight risk and should be detained until prosecution or transfer to federal custody.
Section 21 prevents enforcement of this act if the person is a victim of a criminal act (or child of victim) or a critical witness in any prosecution (or child of such witness). This “stay” of enforcement is good until all legal proceedings are concluded. However, the State shall comply with any federal request to take custody of the person regardless of the above.
Section 27 states that contracts are invalid between a party and an alien unlawfully present in the U.S., if the party had direct or constructive knowledge that the alien was unlawfully present in the U.S. at the time the contract was entered into, and the performance of the contract requires the alien to remain unlawfully present in the U.S. 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 provision does not apply to contracts for lodging for one night; for the purchase of food to be consumed by the alien; contracts for medical services; or contracts for transportation of the alien that is intended to facilitate the alien’s return to his or her country of origin.
Section 30 requires proof of citizenship or lawful presence in the State be presented for any transaction between a person and the state or political subdivision, including, but not limited to, applying for or renewing a motor vehicle license plate, driver’s license, nondriver identification card, or a business license. This law does not include, however, proof of lawful presence when applying for a marriage license.
The provisions enjoined by the Federal District and 11th Circuit Appeals Court at this point are: Section 8 (prohibition against illegal aliens enrolling in public college); Section 10 (making it a crime to be unlawfully present in the U.S.) and it enjoined the enforcement of Section 11(a) (Misdemeanor for illegal alien to apply for work); Section 11(f) and (g) (related to picking up illegal workers on the roadside); Section13: (related to concealing, harboring, shielding, or renting property to an illegal alien); Section 16 (forbidding employers from taking tax deductions for money paid to illegal aliens) and Section 17 (providing for civil cause of action against employers) and Section 28 (requiring public schools to ascertain immigration status and keep records)