Alabama Employment Law Report : Alabama Employment Lawyer & Attorney : Daniel J. Burnick : Sirote & Permutt Law Firm

On Monday, August 20th, the 11th Circuit issued 2 opinions addressing HB56,  USA v. Alabama and HICA v. Alabama.  I have previously written extensively about the law, Judge Blackburn's original opinions, and the 11th Circuit's preliminary rulings on the injunctions.  Yesterday's opinions address in detail (57 pages in the USA case and 27 pages in the HICA case) the Court's rulings on the Preliminary Injunctions and the status of HB 56.  It is important to note that the Alabama Legislature rewrote HB 56 with HB 658 during the 2012 legislative session, and these opinions will have some impact on the new law.

In the USA V. Alabama opinion, the Court addressed 10 provisions of HB 56, referring to the original sections as opposed to the official code sections:

1.  Section10, which created a new state crime for an unlawfully present alien's "willful failure to complete or carry an alien registration document."  Judge Blackburn did not enjoin the enforcement of this section, but on the initial appeal, the 11th Circuit  enjoined the enforcement of this section. In its most recent opinion, the 11th Circuit concluded that the US is likely to succeed on its preemption claim, the Court reversed Judge Blackburn's decision and remanded the case for the entry of a preliminary injunction as to Section 10.

2.  Section 11, which criminalizes an unauthorized alien's application for, solicitation of, or performance of work inside Alabama.  Judge Blackburn enjoined the enforcement of this section, and the 11th Circuit affirmed the injunction.

3.  Section 12, which requires law enforcement officers to determine a lawfully seized individuals immigration status when the officer has reasonable suspicion that the seized individual is unlawfully present in the US.  The enforcement of this section was not stayed by Judge Blackburn, the 11th Circuit affirmed this decision, and Section 12 is enforceable. 

4.  Section 13, which creates 3 new state crimes: the concealment, harboring or shielding from detection of any alien, as well as any attempt to do so; the encouraging or inducing of an alien to "come to or reside in" Alabama; and transporting, attempting to transport, or conspiracy to transport an alien "in furtherance of the unlawful presence of the alien in the US."  Judge Blackburn enjoined the enforcement of this section, and the 11th Circuit affirmed the injunction.

5.  Section 16, which disallows an employer's state tax deduction for wages and compensation paid to an alien unauthorized to work in the US and imposing a penalty equal to 10 times the deduction claimed if done so willingly.  Judge Blackburn enjoined the enforcement of this section, and the 11th Circuit affirmed the injunction.

6.  Section 17, which makes it a discriminatory practice for an employer to fire or fail to hire a US citizen or authorized alien, while employing or hiring an unauthorized alien to work for the employer.  Judge Blackburn enjoined the enforcement of this section and the 11th Circuit affirmed the injunction.

7.  Section 18, which requires that if a driver does not have his drivers' license in his possession, a reasonable effort must be made within 48 hours to determine citizenship, and if an alien, whether he is lawfully present in the US.  The enforcement of this section was not stayed by Judge Blackburn, and the 11th Circuit affirmed this decision, and Section 18 is enforceable.

8.  Section 27, which prohibits courts from enforcing a contract to which an unlawfully present alien is a party, provided that the other party "had direct or constructive knowledge" of the alien's unlawful presence and the performance of the contract would require the alien to remain in Alabama for more than 24 hours. Judge Blackburn did not enjoin this section, but on the initial appeal, the 11th Circuit enjoined the enforcement of this section.  In the new opinion, the 11th Circuit reversed Judge Blackburn's refusal to enjoin this section, and remanded the case for Judge Blackburn to enjoin the enforcement of Section 27. 

9.  Section 28 which sets out a process for schools to collect data about the immigration status of students who enroll in public schools.   The 11th Circuit initially enjoined the enforcement of this section. The 11th Circuit did not further address Section 28 in this opinion, since it was decided in the HICA decision.

10.  Section 30 which prohibits an unlawfully present alien from entering or attempting to enter into a business transaction with the state or political subdivision thereof.  The 11th Circuit initially enjoined the enforcement of this section. In this latest decision, the 11th Circuit affirmed Judge Blackburn and Section 30 is enforceable. 

In the HICA v. Alabama opinion, the Court addressed several provisions of HB56 that were not addressed in the USA v. Alabama decision.

1.  Section 8, which provides that an unlawfully present alien "shall not be permitted to enroll in or attend any public post secondary education institution" in Alabama.  Judge Blackburn enjoined the enforcement of this section, and the 11th Circuit found that HB 658 eliminated the challenged language, and vacated the injunction as moot. 

2.  Section 28, which provides a process for schools to collect data about the immigration status of students who enroll in public schools,  was not enjoined by Judge Blackburn.  The 11th Circuit, on the initial appeal, did enjoin this section.  In the current opinion, the 11th Circuit reversed Judge Blackburn and remanded the case requiring Judge Blackburn to enter in injunction prohibiting the enforcement of Section 28.

3.  The court reached the same conclusions in this case as in the USA case regarding Sections 12, 18 and 30, finding these sections enforceable.

Practice pointers.  In 2012, the Alabama Legislature rewrote HB 56 through HB 658.  Although a portion of the 11th Circuit's opinions referred to HB 658, I anticipate that there will be some additional challenges to the new immigration law in the near future.  As expected, the 11th Circuit relied heavily on the Supreme Court case of Arizona v. United States.  The Supreme Court was clear that their decision in upholding parts of Arizona's law could be challenged in the future depending on how the state enforced the law and whether it can be shown that the actual enforcement of the law may raise additional preemption and constitutional issues.   The same can be said for Alabama:  I anticipate additional court challenges based on how the law is enforced concerning Sections 12, 18 and 30.  Only time will tell how the immigration issue will ultimately be resolved. 

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Earlier today I had the opportunity to speak with Colin O'Keefe of LXBN regarding the Supreme Court's ruling on Arizona's controversial Support Our Law Enforcement and Safe Neighborhoods Act. In the interview, I explain what was tossed out, what the Court upheld and what it means for other states, including Alabama.

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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. 

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