Bloomberg News

Rights Groups Say Alabama Immigration Laws Should Stay on Hold

September 30, 2011

Sept. 30 (Bloomberg) -- A coalition of civil rights groups said new Alabama immigration laws cleared for enforcement by a U.S. judge should be blocked until a federal appeals court has reviewed legal challenges.

The American Civil Liberties Union, Southern Poverty Law Center and other groups asked U.S. District Judge Sharon Lovelace Blackburn in Birmingham, Alabama, for an order staying application of those laws she deemed enforcible in a trio of Sept. 28 rulings, while the organizations pursue an appeal.

“Enjoining those provisions pending appeal is appropriate in order to maintain the status quo,” the groups said in papers filed yesterday.

Blackburn’s decision allows Alabama authorities to question the status of people detained or arrested, upon reasonable suspicion they’re in the U.S. illegally, and criminalizes an illegal resident’s failure to carry alien-registration papers.

Enforcement of the provisions will cause irreparable harm to people who have filed suit challenging the legislation signed into law by Alabama Governor Robert Bentley, the groups said in papers filed at the U.S. court in Birmingham yesterday.

In a separate filing, the organizations said they are asking a federal appeals court in Atlanta to review Blackburn’s decision.

The U.S. Justice Department, which argued that only the federal government is authorized to set immigration policy, is reviewing Blackburn’s ruling, Xochitl Hinojosa, a spokeswoman, said in an e-mail.

Federal Law

“We will continue to evaluate state immigration-related laws and will not hesitate to bring suit if, in fact, a state creates its own immigration policy or enforces state laws in a manner that interferes with federal immigration law,” she said.

A San Francisco-based federal appeals court panel in April blocked enforcement of similar measures signed into law by Arizona Governor Jan Brewer. The state has petitioned the U.S. Supreme Court for review of that ruling.

Richard Samp, a lawyer for the Washington Legal Foundation, filed a non-party brief with the San Francisco panel on behalf of four members of Congress and four organizations supporting the Arizona law. In a phone interview yesterday, he said Blackburn’s decisions were in accord with recent high court precedent.

‘Invited’ Assistance

“There’s no indication that Congress intended to do what’s called ‘occupy the field’ and keep all state regulation out,” Samp said. “Congress has, on numerous occasions, invited assistance from the states.”

Cleveland lawyer David W. Leopold, a past-president of the American Immigration Lawyers Association, disagreed. The AILA filed a friend of the court brief in the Arizona dispute while Leopold was the group’s leader.

“The Supreme Court has always recognized that immigration is about national security, it’s about who controls the borders,” he said by phone yesterday. “That’s the plenary authority of the Congress.”

Nothing in the federal Immigration and Nationality Act “expressly preempts states from legislating on the issue of verification of an individual’s citizenship and immigration status,” Blackburn said in her 115-page ruling addressing the U.S. Justice Department challenge.

That provision was one she had said “concerned her” often during a hearing last month, saying “it might lead to lawsuits.”

Church Leaders

Bentley, a first-term Republican, signed the immigration measure into law on June 9. After the U.S. government, church leaders and civil rights groups sued to block it, Blackburn issued a provisional order barring its enforcement on Aug. 29, two days before it was scheduled to take effect.

The governor, in a statement posted on his website, called the rulings a “victory” for Alabama. “The court agreed with us on a majority of the provisions that were challenged,” he said.

The Beason-Hammon Alabama Taxpayer and Citizen Protection Act, named in part for its sponsors, Senator Scott Beason of Gardendale and Representative Micky Hammon of Decatur, includes provisions requiring public schools to collect data on the enrollment of children of unlawful residents and criminalizing the failure of illegal immigrants to complete or carry alien registration documents.

Blackburn’s ruling allows Alabama to enforce that part of the law making failure to carry documentation a misdemeanor, as well as the school data portion of the law and a provision enabling police to take drivers arrested without a valid license before a magistrate for determination of their citizenship.

Unlicensed Drivers

Unlicensed drivers found to be in the U.S. illegally can then be detained for prosecution or turned over to federal immigration agents.

The judge also let stand a provision making it a felony for illegal aliens to enter into business transactions with the state or any of its political subdivisions.

Episcopal Bishop Henry Parsley is a member of one of four Christian groups that sued the state in a separate case, saying the law barred their mission to feed and transport the needy. The Sept. 28 decision blocks the state from criminalizing such activities.

The group claims a win. By temporarily stopping enforcement of the law’s provision making it illegal to transport or house an undocumented immigrant, the ruling gave the clergy what they sought, said Parsley’s lawyer Augusta Dowd.

“We can conduct our Christian ministries without interference from the state,” Parsley’s attorney, Augusta Dowd, said in a phone interview.

Different Issues

Blackburn issued separate rulings in each of the challenges to the legislation. While her rulings in the church leaders’ case closely tracked those in the U.S. lawsuit decision, the judge faced different issues in a case pressed by lawyers from the ACLU and the Southern Poverty Law Center.

She blocked a state law provision barring those who are in the U.S. illegally from enrolling in public colleges or being eligible for scholarships and financial aid and requiring any aliens enrolled to have lawful permanent resident status or an appropriate visa.

“I think that’s a significant ruling,” ACLU attorney Lee Gelernt said in a telephone interview.

“The court acknowledged candidly that in upholding several of the provisions, her decision was in square conflict with those of several other courts,” Gelernt said. “The court also did not discount the very real harms that people in Alabama will suffer as a result of the law.”

Patchwork of Laws

“Setting immigration policy and enforcing immigration laws is a national responsibility that cannot be addressed through a patchwork of state immigration laws,” U.S. Attorney General Eric Holder said in an Aug. 1 statement when the federal government sued Alabama.

Defending the measure in court filings, Alabama argued that the U.S. sought an unprecedented application of the doctrine of preemption, to prevent the state from legislating upon what the U.S. asserts is a strictly federal matter.

“Lawsuits have been filed in every state that has passed a strong immigration law,” Bentley said in an Aug. 1 statement e- mailed to Bloomberg News.

‘Continue Fighting’

“The federal government did not do what it was supposed to do to enforce laws against illegal immigration,” the governor said. “That is why I campaigned on the need for a strong immigration law in Alabama. The legislature passed that law and I signed it. I will continue fighting at every turn to make sure we have a strong immigration law in Alabama.”

Samp, the Washington Legal Foundation lawyer, said from a state perspective, the Sept. 28 split rulings could be deemed a victory because Blackburn let portions of the law stand, while enforcement of Arizona’s law remains barred.

“I would think immigration enforcement is a bigger issue in border states than in other states, but that’s not to say its unecesaary in other states,” Samp said.

Leopold, the former immigration lawyers association president, said there is a “terrible void” in U.S. immigration policy, adding that the solution should come from congress, not from states acting individually.

“If every state had its own immigration policy, there would be no need for a federal government,” he said. “We wouldn’t need a United States, and in fact, there wouldn’t be a United States.”

Blackburn consolidated the three lawsuits before hearing argument Aug. 24 on the challenges brought by the U.S., church leaders and the ACLU. She dissolved the consolidation order to ease appellate review two days after issuing her Aug. 29 ruling blocking enforcement of the measure.

The cases are Hispanic Interest Coalition of Alabama v. Bentley, 5:11-cv-2484, Parsley v. Bentley, 5:11-cv-2736, and U.S. v. Bentley, 5:11-cv-2746, U.S. District Court, Northern District of Alabama (Birmingham).

--Editors: {Mary Romano}, Steve Farr

To contact the reporters on this story: Andrew Harris in Chicago at aharris16@bloomberg.net; Laurence Viele Davidson in Atlanta at lviele@bloomberg.net.

To contact the editor responsible for this story: Michael Hytha at mhytha@bloomberg.net.


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