Circuit Court Further Enjoins Alabama Law

By Jon Feere and Jon Feere on October 17, 2011

The 11th U.S. Circuit Court of Appeals granted an injunction Friday, temporarily blocking parts of Alabama's "Beason-Hammon Alabama Taxpayer and Citizen Protection Act." The order is available online. It was not a decision on the merits of the law. A full hearing to determine the constitutionality of the enjoined provisions is expected to be held sometime in the next few months. The provisions that Alabama will not be able to enforce until after the hearing now include Section 10, which makes it a misdemeanor for an illegal alien to not carry alien registration documents, and Section 28, which requires public schools to document the immigration status of students. The full text of the bill is available online, as is the state's overview of the litigation.

Previously, the act was brought into district court after a lawsuit by the Obama administration and an additional lawsuit by private plaintiffs. Numerous sections of the law were challenged by the plaintiffs. On September 28, 2011, the district court granted the Obama administration's motion, in part, and enjoined the enforcement of Sections 11(a), 13, 16, and 17. The district court also granted the private plaintiffs' motion, in part, and enjoined Sections 8, 10(e), 11(e), 11(f), and 11(g). The sections that the court did not enjoin went into effect the following day, September 29.

On October 7, 2011, both the Obama administration and the private plaintiffs filed a motion for injunction in the 11th Circuit, but only to Sections 10(a), 12(a), 18, 27, 28, and 30. The Circuit Court granted the additional motions only as to Sections 10 and 28, as mentioned above. All enjoined provisions cannot be enforced until a full hearing on the merits can take place.

The policy-focused sections that are now in effect include Section 5, 6, 7, 9, 12, 14, 15, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 29, and 30. These sections are summarized here:

Section 5: Prohibits sanctuary cities by prohibiting polices or practices that limit or restrict the enforcement of federal immigration laws by limiting communication between local/states officers and federal immigration officials.

Section 6: Prohibits state agencies and officials from adopting policies or practices that interfere with the enforcement of this act.

Section 7: Prohibits illegal aliens who are not defined under federal law as eligible for public benefits from receiving any state or local benefits. This section exempts the public benefits of primary and secondary education, emergency health care, non-cash emergency disaster relief, certain public health benefits like immunization, and certain other programs. Verification of lawful presence is to be made through the Systematic Alien Verification for Entitlements (SAVE) program.

Section 9: Requires as a condition for the award of any contract, grant, or incentive by the state (or any political subdivision thereof) that a business use E-Verify. Violations can result in business licenses and contracts being revoked for up to 60 days. A second violation can result in termination of the contract.

Section 12: Requires a law enforcement officer – upon making "any lawful stop, detention, or arrest" in the enforcement of state or local law and upon reasonable suspicion that person stopped, detained, or arrested is unlawfully present in the United States – to make a reasonable attempt, "when practicable", to determine the citizenship and immigration status of the person. A person is presumed not to be an illegal alien if he presents a valid driver's license, a valid Alabama ID card, an unexpired and government-issued ID bearing a photograph or other biometric identifier, a tribal ID card, or a foreign passport with an unexpired visa. Law enforcement may not consider race, color, or national origin in implementing this section. The section also requires law enforcement to verify the immigration status of the individual with the federal government within 24 hours of arresting the alien. If federal verification is delayed beyond the time that the alien would otherwise be released from custody, then the alien must be released from custody.

Section 14: Makes it a felony to knowingly deal in false identification documents.

Section 15: Requires every business entity or employer in Alabama to enroll in E-Verify by April 1, 2012. Knowingly hiring and illegal alien and/or continuing to hire an illegal alien is prohibited.

Section 18: If a person is arrested for driving without a license, and the officer is unable to determine by any other means that the person has a valid driver's license, the officer is required to transport the arrested person to the nearest magistrate. If the person is found to be in the country illegally, the alien is to be considered a flight risk and must be detained until prosecution or until handed over to federal immigration authorities.

Section 19: When a person is charged with a crime for which bail is required, or is confined for any period in a state, county, or municipal jail, a reasonable effort must be made, within 48 hours, to determine if the person is an alien unlawfully present in the United States by verification with the federal government. If the person is determined to be an alien unlawfully present in the United States, the person is to be considered a flight risk and must be detained until prosecution or until handed over to federal immigration authorities.

Section 20: If an alien who is unlawfully present in the United States is convicted of a violation of state or local law and is within 30 days of release or has paid any fine as required by operation of law, the agency responsible for his or her incarceration must notify ICE and the Alabama DHS.

Section 21: Requires that if an illegal alien is a victim of a criminal act, the child of a victim of a criminal act, a critical witness in any prosecution, or is the child of a critical witness in any prosecution of a state or federal crime, all provisions of this act shall be stayed until all of the related legal proceedings are concluded.

Section 22-25: Sets guidelines for the Alabama DHS; makes a solicitation, attempt, or conspiracy to violate this act have the same penalty as a violation of this act.

Section 26: Requires Alabama DHS to establish and maintain a free E-Verify employer agent service for employers with 25 or fewer employees. Also requires the agency to request from the federal DHS, every three months, a list of all businesses in Alabama using E-Verify and then post the data online.

Section 27: Prevents Alabama courts from enforcing the terms of, or otherwise regarding as valid, any contract between a party and an illegal alien if the party had direct or constructive knowledge that the alien was an illegal alien at the time the contract was entered into, and the performance of the contract required the alien to remain unlawfully present in the United States for more than 24 hours after the time the contract was entered into or performance could not reasonably be expected to occur without remaining unlawfully for more than 24 hours. This section does not apply to a contract for lodging for one night, a contract for the purchase of food to be consumed by the alien, a contract for medical services, or a contract for transportation of the alien that is intended to facilitate the alien's return to his country of origin.

Section 29: Imposes requirements for voter registration.

Section 30: Makes it a felony for an illegal alien to enter into or attempt to enter into a "business transaction" with the State of Alabama or any political subdivision thereof. A "business transaction" is defined as including, but not limited to, applying for or renewing a motor vehicle license plate, applying for or renewing a driver's license or nondriver identification card, or applying for or renewing a business license. Applications for marriage licenses are exempted.

It is important to remember that the court which hears this case on the merits after a full briefing and oral argument is not bound by the order rendered by this court.