What a mess. HB 56 became Alabama's Immigration Law in 2011. Various provisions were enjoined by Judge Blackburn, and additional provisions were enjoined by the 11th Circuit. The 11th Circuit announced it would not rule on the merits of the appeal pending the SCOTUS decision on Arizona's Immigration law. The Alabama Legislature revised the State's Immigration Law by enacting HB 658, which was signed into law by Governor Bentley in 2012. HB 658 repealed some of HB 56 and added some new provisions. The SCOTUS released it's opinion on the Arizona law on Monday, June 25. So, what is the current status of Alabama's law and how will the Arizona decision impact Alabama's law? Let me try to sort it out.
Section 2(B) of Arizona's law was upheld by the SCOTUS. It provides that state officers make a "reasonable attempt...to determine the immigration status of any person they stop, detain or arrest on some other legitimate basis if reasonable suspicion exists that the person is an alien and is unlawfully in the United States." HB 56 provides that "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." This language appears to be similar to Arizona's law, and will probably be held as constitutional by the 11th Circuit. HB 658 did not amend or repeal this provision, so the language in HB 56 is still the current law. It should be noted that this section was not stayed by either Judge Blackburn or the 11th Circuit.
Section 3 of Arizona's law was found by SCOTUS to be preempted by federal law and unenforceable. Section 3 creates a new state misdemeanor forbidding the "willful failure to complete or carry an alien registration document" as required by US law. HB 56 provides that "a person is guilty of willful failure to 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." This language is virtually identical to Arizona's law, and I anticipate that the 11th Circuit will find in unenforceable as it is preempted by Federal Law. HB 658 did not amend or repeal this provision, so the language in HB 56 is still the current law. It should be noted that this provision was stayed by the 11th Circuit.
Section 5(C) of Arizona's law was found by SCOTUS to be preempted by federal law and unenforceable. Section 5(C) makes it a misdemeanor for "an unauthorized alien to knowingly apply for work, solicit work in a public place or perform work as an employee or independent contractor". HB 56 provides that "It is unlawful for a person who is an unauthorized alien to knowingly apply for work, solicit work in a public place, or perform work as an employee or independent contractor in this state." This language is identical, and thus I expect the 11th Circuit to find it unenforceable. HB 658 did not amend or repeal this language, so the language in HB 56 is still the current law. It should be noted that this provision had been stayed by Judge Blackburn.
Section 6 of Arizona's law was found by SCOTUS to be preempted by federal law and unenforceable. Section 6 provides that a state law enforcement officer "without a warrant, may arrest a person if the officer has probable cause to believe...[the person] has committed any public offense that makes [him] removable from the United States." HB 56 and HB 658 do not have a similar provision.
Practice Pointers. It appears as if the stays entered by Judge Blackburn and the 11th Circuit are consistent with the provisions of the Arizona law addressed by the SCOTUS. Based on news reports from yesterday, it looks as if the Federal Government will not cooperate with Arizona in detaining and deporting illegal aliens unless there is a serious mitigating factor, such as being convicted of a felony. I have heard this referred to as a "catch and release" problem: if the Federal Government will not detain and deport illegal aliens, the impact of the law will be minimized at the state and local level. But that is a different issue for a different day. Keep in mind that the E-Verify provisions of the Alabama law are still in place and the use of E-Verify is mandatory.