Friday, October 14, 2011

Alabama Immigration HB56: Additional Provisions Stayed by the Eleventh Circuit

With little substantive discussion in its 16 page Order today, a panel of the Eleventh Circuit Court of Appeals issued an injunction pending appeal on two sections of Alabama's highly controversial immigration law, HB 56.

Recall that on September 28, the district judge enjoined various sections of the statute in very lengthy separate opinions in the companion cases of United States v. Alabama and Hispanic Interest Coalition of Alabama v. Bentley

Ruling on motions for injunction pending appeal, the Eleventh Circuit enjoined section 10 and section 28 of HB56:

Section 10(a) creates a criminal misdemeanor violation under Alabama law for willful failure to complete or carry an alien registration document if the person is in violation of 8 U.S.C. § 1304(e) or 8 U.S.C. § 1306(a) and is unlawfully present in the United States. 

Section 28 requires every public elementary and secondary school in Alabama to determine if an enrolling student was born outside the jurisdiction of the United States or is the child of an unlawfully present alien and qualifies for assignment to an English as second language class or other remedial program.

  11thCircuitflagWhile granting injunctions on sections 10 and 28, the Eleventh Circuit panel denied the request to enjoin sections 12(a), 18, 27, and 30. Thus, the following provisions of HB56 remain in effect:

UPDATE HERE

H.B. 56 § 12(a), which requires a law enforcement officer to make a reasonable attempt, when practicable, to determine the citizenship and immigration status of a person stopped, detained or arrested when reasonable suspicion exists that the person is an alien who is unlawfully present in the United States.

H.B. 56 § 18, which amends Ala. Code 32-6-9 to include a provision that if a person is arrested for driving without a license, and the officer is unable to determine that the person has a valid driver’s license, the person must be transported to the nearest magistrate; a reasonable effort shall be made to determine the citizenship of the driver, and if found to be unlawfully present in the United States the driver shall be detained until prosecution or until handed over to federal immigration authorities.

H.B. 56 § 27, which bars Alabama courts from enforcing a contract to which a person who is unlawfully present in the United States is a party. This section does not apply to contracts for lodging for one night, contracts for the purchase of food, contracts for medical services, or contracts for transportation for an alien to return to his or her country of origin.

H.B. 56 § 30, which makes it a felony for an alien not lawfully present in the United States to enter into a “business transaction” with the State of Alabama or any political subdivision thereof.

Judge Barkett dissented as to sections 12 and 18. 

RR

http://lawprofessors.typepad.com/conlaw/2011/10/alabama-immigration-hb56-additional-provisions-stayed-by-the-eleventh-circuit-.html

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Comments

Kudos to Alabama for asserting its constitutional primacy over immigration, a primacy which, like most state powers, has been relentlessly and, so far, successfully corroded by a runaway and overreaching federal government. Did a piece on this primacy issue at opinerlog.blogspot.com entitled "Feds Usurp State Immigration Authority". Would appreciate your take on this viewpoint, RR.

Posted by: Jim Delaney | Oct 15, 2011 8:56:45 AM

Why shouldn't a school collect information on alienage? Every other "suspect classification" is part of most public schools' enrollment forms.

Posted by: Query | Oct 28, 2011 8:36:09 AM

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