Appeals court moves forward on AL, GA immigration laws

The Eleventh Circuit Court of Appeals in Atlanta turned down Alabama's and Georgia's motions to stay its proceedings over their immigration laws in light of the U.S. Supreme Court's decision to review Arizona's immigration laws.
That was no surprise.  Appellate matters, generally, move at a glacial pace, so stopping an appellate proceeding is akin to freezing it in place and having to thaw it out again when it's time to move forward.
No party -- either for or against Alabama's and Georgia's immigration laws -- can glean anything from the Eleventh Circuit's ruling.  It is entirely procedural.
But the U.S. Supreme Court's decision to grant certiorari and consider issuing its opinion concerning Arizona's immigration laws is important.  U.S. District Judge Susan Bolten blocked the unconstitutional provisions of Arizona's laws a year ago, a decision that was upheld by the U.S. Court of Appeals for the Ninth Circuit.  So the U.S. Supreme Court will consider only those provisions blocked by Judge Bolten.
Among the provisions blocked in Arizona and Georgia -- but not in Alabama -- was the "reasonable suspicion" provision which allowed local law enforcement officials to stop and possibly imprison people who might appear to be "not from around here".  But the infamous "show me your papers" provision of Alabama's law was blocked -- not by U.S. District Judge Sharon Lovelace Blackburn of Birmingham -- but by the Eleventh Circuit Court of Appeals, which may understand the U.S. Constitution.  That, however, is yet to be determined.
The last state to successfully implement a "show me your papers" law was Nazi Germany.  That state did so successfully for almost ten years.  A Jew back then would be asked for his "papers".  If he didn't have them on his person, or if his "papers" were not in order, the Nazis would arrest him, send him to a labor camp, then transfer him to a concentration camp and later incinerate him.
Judge Bolten blocked the Arizona "show me your papers" law.  Judge Blackburn did not. The U.S. Supreme Court may support Judge Bolten's opinion or Judge Blackburn's and the Nazis' opinion.  We'll see which one prevails.
Republicans in the Alabama Legislature set the state back more than 50 years.  Some people still remember the civil rights era when black people suffered in the South because of their race and color.  So far, economic development officials in Athens, Demopolis and Monroeville say that foreign-owned companies have told them the companies' jobs -- hundreds of jobs -- are not coming to Alabama.  The foreign-owned companies won't tell these economic development officials exactly why, of course, but everyone knows why.
If I worked for the Alabama Development Office, I would think about finding something else to do.  If you were an economic development official in another state, competing for the same jobs offered by these foreign-owned companies, wouldn't you accuse Alabamians -- with good reason -- of being xenophobes, the new racists of the 21st century?  Of course you would.  You would use every tool at your disposal.

Federal judge blocks far-reaching part of Alabama immigration law

When I first read H.B. 56, Alabama's new immigration laws, it was a bill pending in the Alabama Legislature.  I noticed section 30 immediately as the most far-reaching provision in the bill, one I had not seen before, and one so draconian that it made the entire state of Alabama inhospitable to people who don't have their "papers."
I don't know who came up with the idea, but I suspect is was Chris Kobach, the Kansas secretary of state.  I didn't see the provision in the laws passed by Arizona, Utah, Georgia or South Carolina.
Basically, section 30 provides that no state or local government agency may transact business, grant a license application, etc., unless it obtains proof of citizenship or legal residence before entering into the transaction. I'm not sure how I could find enough papers to prove my citizenship or legal residence, but I guess I'm going to have to try before it's time to renew my business license.
On November 23, U.S. District Judge Myron Thompson of the Middle District of Alabama, in Montgomery, issued a 10-page order blocking enforcement of section 30.  Two John Does had petitioned for a restraining order, stating that they had to renew registrations for the mobile homes by November 30, and enforcement of section 30 would drive their families from their homes.
Section 30 requires an alien's status to be verified using the Systematic Alien Verification for Entitlements (SAVE) online system, a program of the federal government. The system allegedly can tell you whether the person asking for some government service or benefit is legally present in the United States. I don't believe it, but that's what the system was designed to do.
The Elmore County revenue commissioner and probate judge testified at the November 23 hearing that they had not employed the system but were trying to develop one to comply with the law.
The lawsuit stated that the purpose of section 30 is to drive undocumented immigrants, "and in particular minority immigrants of Latino heritage, out of Alabama by making living conditions miserable for them or by funneling them into deportation proceedings."
Sen. Scott Beason of Gardendale and Rep. Mickey Hammon of Huntsville testified that the provision was aimed at undocumented immigrants, regardless of national origin. Hammon noted that some language in the bill forbids racial profiling.
Here's the lawyer talking:  I don't think an Alabama federal judge has yet closely examined the legislative record and legislative intent.

Justice Department wants Alabama schools to report

More than 130 Alabama public school superintendents received a letter from the U.S. Department of Justice (DOJ) by Nov. 1 asking the school districts to report any student who is turned away from school, other than for a disciplinary problem.
The letters request records of enrollment by race and lists of students who have withdrawn since the beginning of the year, broken down by race, national origin, and whether they are classified as English Language Learners.  DOJ also wants a list of unexplained absences since Alabama's draconian immigration law took effect on Sept. 27.
"(Superintendents) want to know if this is part of collection of data for the Justice Department's case against the state, or if the Justice Department is collecting information to develop actions against school systems," said Eric Mackey, director of School Superintendents of Alabama.
Section 28(a) of Alabama's new immigration law took unequivocal action to prevent undocumented children and U.S. citizen children of undocumented parents from attending school.
Section 28(a) requires "[e]very public elementary and secondary school ..., at the time of enrollment in kindergarten or any grade in such school, shall determine whether the student enrolling in public school was born outside the jurisdiction of the United States or is the child of an alien not lawfully present in the United States[.]" It requires educators and teachers to presume that the student is an alien unlawfully present in the United States if the student cannot produce proof of lawful presence within 30 days.
While it is true that the cost of public elementary and secondary school to educate unlawfully present children or the children of unlawfully present alien parents is the single biggest cost of illegal immigration, it is also true that states are required to educate these children in accordance with federal law. To fail to do so will very likely cost the state of Alabama Department of Education, which funds local school boards, around $100 million. My source is the FY2011 Fiscal Stabilization Fund that comes not from Alabamians' tax money, but from the federal government. The feds could pull the money out if Alabama educators and teachers are deemed to be violating federal education policy.
The U.S. Court of Appeals of the Eleventh Circuit blocked section 28, pending the DOJ's appeal of a U.S. district court judge rulling, allowing section 28 to go into effect.

Appeals court blocks enforcement of two key parts of Alabama immigration law

The Eleventh Circuit Court of Appeals in Atlanta has restored my faith (somewhat) in applying the words in the United States Constitution to Alabama's stupid immigration laws. Section 28 was blocked Friday (Oct. 14). That provision made Alabama schoolteachers immigration police, requiring them to check students' immigration status, as well as their parents'.
The chilling effect, of course, is that parents, whether here legally or not, are withdrawing their children from elementary, middle, and high school or not allowing them to attend.
And the appeals court blocked section 10 from being enforced. This is the Nazi-era "show me your papers" provision of the Alabama law. The last country to successfully enforce a "show me your papers" law was Nazi Germany. Prior to World War Two, when a Jew was encountered in public "without his papers", he was arrested and sent to a labor camp, transferred to a concentration camp, and later incinerated.
I regret to inform my readers that Alabama is no better than Nazi Germany.
I say again that we need smart immigration reform. What Alabama has done is Kris Kobach stupid.
Oh, you don't know Kris Kobach? He is writing Alabama's laws, but he is the secretary of state of Kansas. Winner of Phyllis Shlafly's Eagle Award in 2008. Now there's something he can be proud of.

Dream Act now the law in CA, TX and NM

The Dream Act is now the law in California. Gov. Jerry Brown signed it into law Saturday, Oct. 8.
The new law allows illegal immigrant college-age children to qualify for state financial aid. Only two other states -- Texas and New Mexico -- have similar laws. California is one of about a dozen states that allow illegal immigrant students to pay in-state tuition, based on attendance and graduation from a state high school.
"The Dream Act benefits us all by giving top students a chance to improve their lives and the lives of all of us," Brown said. Last July, Brown signed into law a companion bill to allow illegal immigrant children to qualify for privately funded college scholarships.
Opponents of the California Dream Act have argued that public funds should not be used to help illegal immigrants, especially as California faces deep budget woes that have prompted cuts in education and higher tuitions at the state's public colleges and universities.
A federal Dream Act that would have created a pathway to citizenship for illegal immigrants who attend college or serve in the military failed in the U.S. Senate last year, but Sen. Dick Durbin (D.-Ill.) couldn't even bring the bill up for debate in the summer of 2007. Some members of Congress actually believe the children are criminals even though most -- if not all -- did not have the capacity to break the law (a misdemeanor) when their parents brought them across the U.S.-Mexico border without inspection.
The new California law would affect 3,633 students, or less than one percent of the 440,000 students enrolled in the current school year.  Of the nearly 2.9 million community college enrollees in California, 34,057 would be affected, or one-tenth of one percent.

Alabama schoolteachers are now immigration police

U.S. District Court Chief Judge Sharon Lovelace Blackburn inexplicably blocked section 8 of Alabama's new immigration law, but left the chilling and controversial section 28 in place, which may prevent many legal immigrant and U.S. citizen children from going to elementary, middle, and high school.
Section 8 prohibits “[a]n alien who is not lawfully present in the United States” from attending or enrolling in an Alabama “public postsecondary education institution in this state,” and requires any alien attending such an institution to possess either “lawful permanent residence or an appropriate nonimmigrant visa," pending issuance of the court's final judgment. That was blocked. Why she didn't block the more discriminatory and unconstitutional section 28 regarding elementary and secondary school students is not clear.
Section 28 basically makes schoolteachers immigration police and requires them to collect information about  students' parents. That's the chilling effect. I don't think, as conservative as the Eleventh Circuit Court of Appeals is, the court will give effect to section 28, arguably the most harmful provision in Alabama's immigration law. To quote a former federal judge and law school dean, "That's a quantum leap in nastiness."
The judge enjoined the state from enforcing the last sentence of sections 10(e), 11(e), and 13(h) of the immigration bill, so-called "HB 56" wherein a court of this state shall consider only the federal government’s verification in determining whether an alien is lawfully present in the United States.”
Fnally, the judge enjoined the state from enforcing section 11(f) and (g) of H.B. 56 – “(f) It is unlawful for an occupant of a motor vehicle that is stopped on a street, roadway, or highway to attempt to hire or hire and pick up passengers for work at a different location if the motor vehicle blocks or impedes the normal movement of traffic,” and “(g) It is unlawful for a person to enter a motor vehicle that is stopped on a street, roadway or highway in order to be hired by an occupant of the motor vehicle and to be transported to work at a different location if the motor vehicle blocks or impedes the normal movement of traffic."
That surprised me. But what really surprised me was the "driving while Latino" provisions, which, in my humble opinion, are blatantly unconstitutional. Sections 10 and 12 should have been struck down, given the legislative history when HB 56 was passed by the Alabama Legislature.
The judge's rulings pertain to the Hispanic Coalition lawsuit. Earlier she blocked portions of HB 56 in connection with the lawsuit filed by the U.S. attorney general and threw out the so-called "bishops' lawsuit", which challenged HB 56 on First Amendment issues regarding free speech, freedom of religion, and freedom of association.
But most of all, Alabama's new immigration law does not come from a conservative political position; it comes from Republicans who are not at all conservative. In fact, these Republicans are burdening Alabamians with new unfunded state mandates, which is not an action true conservatives take in order to enact public policy. Republicans as liberal do-gooders who force us to spend our money to enforce their laws? Believe it.
Another conservative principle the Alabama immigration laws violate is the concept of limited government. HB 56 is a huge state government intrusion into the lives of Alabamians.
The third conservative principle the Alabama immigration laws violate is the creation of an activist judicial system in which tort reform becomes a Republican joke.  HB 56 actually created causes of action for failure to enforce HB 56, unleashing what may be a torrent of lawsuits across the state.
The only conservative principle the Alabama immigration laws did not violate is "no wars of opportunity or adventure". I'm sure if these neo-liberals could have figured out a way to start a war with HB 56, they would have. They certainly got a bunch of other countries riled up.
Is this stupid immigration reform or what? Get used to it, Alabama.

Judge blocks parts of Alabama's new immigration law

U.S. District Court Chief Judge Sharon Lovelace Blackburn blocked four key parts of Alabama's new immigration law, often referred to as "HB 56".
The judge enjoined the state from executing or enforcing section 11(a) of HB 56 – “It is unlawful for a person who is an unauthorized alien to knowingly apply for work, solicit work in a public or private place, or perform work as an employee or independent contractor in this state,” – pending issuance of the court's final judgment.
Alabama may not enforce section 13, which prohibits concealing, harboring, transporting, etc., of unlawfully present aliens, nor section 16, which concerns the taking of a state tax deduction for wages paid to an unauthorized alien employee.
Finally, the judge enjoined the state from executing or enforcing section 17, which creates a state “discrimination” cause of action based on the retention or hiring of an unauthorized alien.
Of great interest to my clients was whether the judge would block enforcement of section 15, which is basically the E-Verify part of the new immigration law. I had already told my clients it would very likely survive a challenge to its constitutionality or to interference with contracts, so I was not surprised that the judge did not block enforcement of section 15.
Section 15 says that no business entity shall knowingly employ or continue to employ an unauthorized alien and orders all Alabama businesses to enroll in E-Verify no later than April 1, 2012, and verify their employees' eligibility for employment. It's going to be expensive and a burden for my small business clients. But they can't complain if they didn't complain to their Republican legislative representatives and senators during last spring's legislative session.
And I've said it before:  This federal database is dirty. Sure, it will catch a few guys named Pedro Gonzalez, but think how many Susan Smiths were born in Alabama and got married and divorced a few times and whose name entered into E-Verify will be kicked out of the system like a football.

Judge temporarily blocks Alabama immigration law

A federal judge has temporarily blocked Alabama's new immigration law from going into effect on Sept. 1.

The brief order of U.S. District Court Presiding Judge Sharon Lovelace Blackburn says she is not ruling on the merits of the motions filed by the parties in court, but will issue an order so ruling no later than Sept. 28.

The injunction is in effect until Sept. 29 or when the judge rules on the motions, whichever comes first.

U.S. Justice Department sues Alabama over law

The U.S. Department of Justice has sued the State of Alabama over a restrictive immigration law called the toughest in the nation.

http://media.al.com/bn/other/U.S.%20Justice%20Department%20lawsuit.pdf

Alabama's new immigration law challenged

On July 8, 2011, the Southern Poverty Law Center of Montgomery, Alabama, and the American Civil Liberties Union's Immigrants Rights Project filed a lawsuit in U.S. District Court for the Northern District of Alabama, Northeastern Division, seeking to prevent Alabama's new anti-immigrant law from taking effect on Sept. 1, 2011. The law is also known as HB56.

The bill was passed by the Alabama Legislature on June 2, 2011. Alabama Gov. Robert Bentley signed the bill, making it state law, on June 9, 2011. All provisions of the law will take effect on Sept. 1 except for sections 22 and 23, which concern state law enforcement staffing and coordination, and sections 9 and 15, which concern employment verification and will go into effect in 2012.

That is, unless a federal court judge invalidates, as unconstitutional, all or parts of HB56.

The most interesting aspect of the immigration law is that it creates new state crimes that are tied to one's immigration status or a means or process for determining one's immigration status which, the new law acknowledges, can only be determined by the federal government.

But Department of Homeland Security officials have said its immigration "databases cannot be relied upon to determine immigration status ... because immigration status is dynamic ..." and databases are normally outdated. What I call "garbage in, garbage out." Imagine losing your car, your job, your freedom and your life because your name is "not in the computer", or that's your name alright, but it is attached to someone else's social security number.

In addition to the Supremacy Clause, Fourth Amendment, Sixth Amendment, and Fourteenth Amendment violations represented by the new Alabama immigration law, which I had seen before in the laws passed in Arizona, Georgia, Indiana, Utah, what I found interesting were the First Amendment violations, specifically with respect to the Contracts Clause.

The Contracts Clause of the United States Constitution, specifically Article I, Section 10, says, in part, "No State shall ... pass any ... Law impairing the Obligation of Contracts." Alabama's new immigration law forbids the enforcement of contracts "between a party and an alien unlawfully present in the United States, within the meaning of HB56, if the party had direct or constructive knowledge that the alien was unlawfully present in the United States 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 such remaining."

That language is tortured, but I think you get the meaning. This one is the most far-reaching provision in HB56. It will affect all manner of written and oral agreements between and among Alabamians and aliens "unlawfully present". Leases, mortgages, deeds, sales agreements, you name it. It makes it impossible for aliens unlawfully present to live here.

Section 6 makes it illegal to enter into a rental agreement with an alien if the lessor knows or recklessly disregards the fact that the alien has come to, has entered, or remains in the United States in violation of law.

Section 6 also makes it illegal to transport or attempt to transport or move an alien in the state in furtherance of the presence of the unauthorized alien in a means of transportation if the person knows or recklessly disregrards the fact that the alien has come to, has entered, or remains in the United States in violation of law. Violation of this provision subjects your vehicle to mandatory immobilization or impoundment. Violation of this provision is a misdemeanor, unless you're caught transporting 10 or more unauthorized aliens. Then it's a Class C felony.

But the provision that attacks the state's obligations to educate children within its borders is the most draconian, in my view. I have long been a supporter of the DREAM Act, which would enable kids who were brought here from south of the border as babies, to get a college education and contribute to our economy. So section 28(a) took unequivocal action to prevent undocumented children and U.S. citizen children of undocumented parents from attending school.

Section 28(a) requires "[e]very public elementary and secondary school ..., at the time of enrollment in kindergarten or any grade in such school, shall determine whether the student enrolling in public school was born outside the jurisdiction of the United States or is the

child of an alien not lawfully present in the United States[.]" It requires educators and teachers to presume that the student is an alien unlawfully present in the United States if the student cannot produce proof of lawful presence within 30 days.

While it is true that the cost of public elementary and secondary school to educate unlawfully present children or the children of unlawfully present alien parents is the single biggest cost of illegal immigration, it is also true that states are required to educate these children in accordance with federal law. To fail to do so will very likely cost the state of Alabama Department of Education, which funds local school boards, around $100 million. My source is the FY2011 Fiscal Stabilization Fund that comes not from Alabamians' tax money, but from the federal government. The feds could pull the money out if Alabama educators and teachers are deemed to be violating federal education policy.

I don't put all of my faith in the courts, even though I'm a lawyer, but I am confident that most federal judges understand the United States Constitution was written to both establish a government and to protect the people from their government. The Fourteenth Amendment, as applied to the states, is the primary tool the federal courts have to protect the people's rights and prevent states from hurting people.

Much of Alabama's new immigration law will likely be struck down as unconstitutional, but depending upon the judge who is assigned to the case, some of the provisions, including the business license provision and/or businesses' mandatory use of E-Verify, might survive.

A tiny bang for your taxpayer buck

According to a new study published by the National Immigration Forum, last year the federal government deported 197,000 immigrants with no criminal record, at a cost of $23,000 each. The government spends $7,500 for every person apprehended on our southern border, a 500 percent increase over what it spent six years ago with no real change in the number of people caught.

While the number of people crossing the border illegally has decreased, the U.S. Border Patrol budget has increased by an average of $300 million since 2005.

The Center for American Progress Analysis found that mass deportation of undocumented immgrants would be very expensive and trigger profound collateral consequences. The total cost of mass deportation and continuing border interdiction and interior enforcement efforts would be $285 billion (in 2008 dollars) over a five-year period.

We need smart immigration reform.

Presumptions

We have changed. The United States has changed -- for the worse, for the worst. We are not the same country I grew up in in the 1950s; we have morphed into an evil, suspicious country that has adopted unfortunate presumptions that have changed the very nature of the United States, its government and its people.

As early as the mid-1990s, I could fly to Frankfurt, Germany, with a German friend and when we landed, my German friend went to Customs, while I went to the Auslander line (for foreigners). But the reverse was not true. When my German friend and I flew to the United States, something changed. Both of us were ordered to an "immigration control" line, as if we were both foreigners? Why? Because the United States had -- overnight -- created a "presumption" that every person who emptied an international flight was an "applicant" for entry into the United States.

All of a sudden, Customs was not good enough for "us" (i.e., those born and raised in the United States). All of a sudden "we" were now considered "not U.S. citizens" until we proved to the satisfaction of an immigration officer (who has no legal jurisdiction over U.S. citizens, by the way) that we "are" U.S. citizens.

It gets worse.

The United States government now has a presumption that "we" are all terrorists.

I am not kidding. Think about it. When you go to an airport to get on a domestic or international flight, you are searched. Why? Because "our" federal government -- which no longer has our best interests at heart -- has adopted a "presumption" that you are a terrorist until you have been thoroughly searched.

A renegade federal government must be opposed when it seeks to usurp rights guaranteed to citizens of the United States by the United States Constitution and federal law.

Something is wrong with this picture. Am I nuts, or are these presumptions counter to everything we hold dear as a nation?