A Legacy of “Cussedness”

 Update on Alabama’s Harsh Immigration Enforcement Laws

By Susan Weishar, Ph.D.

Journalist Tom Baxter, a native of Alabama who has written about politics in the South for over 40 years, describes two essential qualities of Alabamians: “cussedness and compassion.”¹  HB 56—the harsh immigration enforcement bill passed by the Alabama legislature in 2011 to drive undocumented immigrants out of the state by making their everyday lives unbearable—was drenched in “cussedness.” Since the bill’s passage, federal courts temporarily enjoined several of the harshest aspects of the law, but not before thousands of immigrants fled the state, many millions of dollars of crops rotted in the field, and Alabama’s reputation as having moved past its shameful history of racial injustice was severely damaged. Coming a scant year after passage of Arizona’s well-publicized SB 1070, Alabama’s law prompted its own court challenges and is affected as well by the recent Supreme Court decision on the Arizona law.

A summary of federal court actions directly affecting Alabama’s HB 56

On September 28, 2011, the following key provisions of HB 56 were temporarily enjoined (i.e. their merits will be decided at a later date) in federal district court:

• Section 8, which bans undocumented immigrants from attending postsecondary education in Alabama;
• Section 11 (a), which prohibits the solicitation of work by undocumented immigrants; and
• Section 13, which criminalizes transporting or renting to an undocumented immigrant.²

On October 14, 2011, the 11th Circuit Court of Appeals temporarily enjoined the following provisions:

• Section 28, that “chilled” children’s legal right of access to school by requiring school officials to check the immigration status of enrolling children and their parents; and
• Section 10, which criminalizes immigrants for failure to complete or carry immigration documents with them at all times.³

In March, 2012, the 11th Circuit Court of Appeals revisited HB 56 and enjoined the following provisions:

• Section 27, that prevents an undocumented immigrant from accessing a state court in order to enforce a contract (e.g. a rental agreement); and
• Section 30, that prevents an undocumented immigrant AND anyone acting in their behalf from engaging in any “business transaction” with the state except for the purpose of obtaining a marriage license.⁴

Arizona’s SB1070 and Alabama’s HB56

In June 2012, the U.S. Supreme Court held that federal law preempted and rendered invalid three sections of Arizona’s SB 1070. Two of the three provisions the Supreme Court stuck down were mimicked in Alabama’s HB 56:

• Section 10 requiring immigrants to register with the federal government and carry their documents at all times; and
• Section 11 that makes it a state crime for immigrants to seek or hold jobs without proper documents.

Unlike Arizona’s SB 1070, however, HB 56 had no provisions that allowed for warrantless arrests of persons suspected of being deportable. This provision in SB 1070 was the third provision of that law struck down by the Supreme Court.

The Supreme Court said there was not enough evidence at that time to strike down the section of SB 1070 that requires police to determine the immigration status of people they stop or arrest if they suspect they are in the U.S. illegally. This is known as the “papers please” provision. A similar provision in HB 56, Section 12, will continue to be upheld until the racial profiling which this provision invites is successfully challenged in court.⁵  Many legal observers consider this challenge inevitable.

Another Alabama Statute

Despite how HB 56 had placed Alabama in a negative spotlight and made the state the “poster child” for how harsh anti-immigrant legislation can lead to unexpected damaging consequences, Alabama legislators failed to address major concerns from business, faith, and civil rights leaders in the 2012 legislative session that ended in May. In fact a new law, HB 586, makes life even more difficult for immigrants in Alabama in several ways. Most notably, a provision in HB 586 requires Alabama courts to send the names, charges, and final dispositions of all undocumented persons that appear in an Alabama court to the state’s Department of Homeland Security, which must publish this information on its website.

According to Alabama Arise policy analyst Stephen Stetson, other provisions in HB 586 will make sections of HB 56 easier to defend in court.⁶  For example, it is now again within the realm of possibility that sections of HB 56 that ban undocumented immigrants from attending postsecondary institutions in Alabama and require school officials to investigate the immigration status of enrolling students and their parents could be permitted by a federal court.

In other words, it appears as though Alabama cussedness has won out again.

1. From a February 15, 2012, panel discussion that included Tom Baxter, Director Chris Weitz, and journalist and undocumented immigrant Jose Vargas. Weitz and Vargas teamed up to create a series of compelling videos entitled “Is This Alabama?”, on the impact of Alabama’ HB 56 on everyday life in that state. See panel discussion and videos at http://isthisalabama.org/

2. Campbell Robertson,” Part of Alabama Immigrant Law Blocked,” The New York  Times, October 14, 2011. http://www.nytimes.com/2011/10/15/us/2-alabama-immigration-law-provisions-are-blocked.html

3. Ibid.

4. Karen Lucas, State & Local Immigration Enforcement Litigation Updates, March 13, 2012. Catholic Legal Immigration Network at http://cliniclegal.org/sites/default/file/litigation%20updates%20march%202012_0.pdf

5. Phone interview with Stephen Stetson, Policy Analyst for Alabama Arise, July 20, 2012.

6. Ibid.