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What is the Status of Alabama’s Anti-Immigrant Legislation?

 
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After a series of legal battles, federal courts have blocked many of the harshest provisions of Alabama’s H.B. 56 and H.B. 658. Unfortunately, some parts of these laws remain in effect, including the following provisions:

  • Undocumented immigrants cannot enroll in public universities and colleges and are  not eligible for financial aid in Alabama.
  • People are required to prove they are in the United States legally in order to obtain or renew a driver’s license, register a vehicle, or obtain a business license, commercial license, or professional license.
  • All employers must use the E-Verify system to determine whether new hires are eligible to work in the U.S.
  • Law enforcement officers are required to check the immigration status of people arrested and booked into jail.
  • Undocumented immigrants convicted of violating a state law must be reported to Immigration and Customs Enforcement (ICE) and the Alabama Department of Homeland Security.
  • Law enforcement officers are required to check the immigration status of anyone they reasonably suspect is in the country without authorization. However, they cannot detain or hold someone, nor prolong detention, solely to check immigration status. 

As a result of court decisions, the following provisions of H.B. 56 and H.B. 658 have been amended.  Currently:

  • Proof of lawful status is not necessary to pay state or local taxes, register a mobile home, apply for a marriage license, rent housing, enforce contracts in court, or enroll children in elementary or secondary school.
  • It is not illegal to provide a ride or rent housing to an undocumented immigrant.
  • Attorneys do not need to report their clients’ immigration status to state or federal officials.
  • People in Alabama can hire and work as day laborers.
  • Passengers in cars are not required to answer questions about immigration status. Drivers may only be asked about their immigration status if they fail to present a valid driver’s license.
  • Law enforcement officers cannot stop someone for the sole purpose of checking his or her immigration status or prolong an individual’s detention any longer than the stop otherwise requires in order to check immigration status.

Some areas of the law remain in dispute. H.B. 658 required Alabama to post publically on its website a list of all undocumented immigrants who were detained for a state law violation and appeared in court.  Alabama state officials have said they do not currently have any plans to start maintaining such a list. However, a lawsuit is underway in federal district court challenging the legality of this mandate. The suit alleges that the list would facilitate private discrimination and violate the Supremacy and Due Process clauses of the Constitution. A federal judge in May denied the state’s motion to dismiss the lawsuit.

Finally, while it is not legal to deny children access to elementary or secondary education based on immigration status, there are reports that this may still be occurring in Alabama. The Southern Poverty Law Center notified Alabama’s state superintendent in May that school districts are still asking new students for birth certificates and social security numbers, without indicating that supplying such documentation is voluntary. The U.S. Departments of Justice and Education have recently issued guidance clarifying what documentation schools may ask for from parents.

 

 

 

 

This document was prepared in July 2014 by CLINIC Advocacy Intern Kelly Kidwell Hughes. It is for informational purposes only and is not intended as legal advice. For questions, please contact State & Local Advocacy Attorney Jen Riddle at jriddle@cliniclegal.org or (301) 565-4807. 

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Recent State & Local Immigration Developments (May 2014)

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Florida Becomes 20th State to Offer In-State Tuition to Undocumented Students

Advocates had been pushing for tuition equity in Florida for over a decade.  On May 2, 2014 the state legislature passed HB 851, a bi-partisan bill that will grant in-state tuition at public universities and colleges to all qualified Florida residents, regardless of immigration status.  The bill is still awaiting signature by Governor Rick Scott who called it “an exciting day for every student that dreams of a college education.”  Under the new law, Florida high school graduates who attended at least 3 years of high school in the state will now qualify for in-state tuition rates. Approximately 200,000 students may now be able to pursue higher education. According to one young advocate: “Some of Florida’s best and brightest students are forced into low-wage jobs instead of going to college—jobs in construction, agriculture, and housekeeping—that kept me and my fellow immigrant students in the shadows instead of giving us the opportunity to contribute our best to our communities and our state…For me, the passage of the bill is the answer to my prayers and the prayers of all the undocumented youth in Florida.”

 

Legislature Attempts to Pave the Way for Undocumented Lawyers Seeking Bar Admission in Florida

On May 1, 2014, the Florida legislature passed HB 755, a family law bill with a provision authorizing the State Supreme Court to admit to the Florida Bar undocumented attorneys who were brought to the U.S. as children, have been in the country for over 10 years, and have received work authorization and a social security number as long as they meet the other admission requirements.  This law followed a March decision by the Supreme Court of Florida denying admission to DACA recipient Jose Godinez-Samperio based on his undocumented status.  It is now up to the Florida Supreme Court to reconsider its previous decision and decide whether to admit Mr. Godinez-Samperio.  Florida’s law is similar to one passed by the California legislature last year.

 

Supreme Court Will Not Interfere with Fremont’s Anti-Immigrant Housing Ordinance

This month, the U.S. Supreme Court declined to hear the legal challenge to the Fremont, Nebraska ordinance aimed at preventing undocumented immigrants from renting housing.  As a result, the 8th Circuit Court of Appeals’ 2013 decision, which found the city’s rental ordinance does not interfere with federal immigration laws, will stand.  City police began implementing the ordinance last month and report that 140 occupancy licenses have already been issued to renters who have paid the $5 fee and attested to their immigration status. According to Fremont’s mayor, the town has already spent $186,000 defending and enforcing the ordinance and plans to spend up to $1.5 million moving ahead.  Opponents are monitoring the ordinance’s implementation and may bring a future legal challenge if prospective tenants report discriminatory enforcement.  Kansas’ Secretary of State, Kris Kobach, who defended the ordinance, called the Supreme Court’s decision a “bright green light” for cities in other states in the jurisdiction of the 8th Circuit (Arkansas, Iowa, Minnesota, Missouri, North Dakota, and South Dakota) to adopt similar measures. Earlier this year, the Supreme Court declined to hear cases involving similar ordinances in Hazelton, Pennsylvania and Farmers Branch, Texas that were found to be unconstitutional by the 3rd and 5th Circuit Courts. Despite the obvious circuit split, the Supreme Court has been unwilling to get involved so far but may decide to weigh in on the issue at some point in the future.

 

Federal Government Reminds Schools about Immigrants’ Right to Education

On May 8, the Departments of Education and Justice updated their guidance to public elementary and secondary schools about their obligations to provide all children with equal access to an education.  The resources aim “to ensure the schoolhouse door remains open to all” and that enrollment processes do not discriminate on the basis of race, color, national origin, citizenship, or immigration status (including the status of students’ parents or guardians).  Included in the practical guidance are examples of the types of documents schools may accept as proof of a child’s age or residency (including foreign birth certificates) and reminders about the impermissibility of requiring certain documents – such as parents’ state-issued driver’s licenses (which are often unavailable to undocumented residents).  Schools are asked to translate information about enrollment into languages other than English for parents with limited English proficiency.  The Department of Education has resolved complaints against 11 schools or districts since 2011 and investigations are ongoing against schools in Louisiana, New Mexico, and South Carolina. The Justice Department has entered into settlement agreements with school districts in Georgia, Florida, and Virginia.  Examples of improper practices include requiring students to provide their immigration status or date of entry into the U.S. or denying enrollment because of a parent’s decision not to provide the child’s Social Security number.    

 

California Legislature Continues to Lead the Country with Pro-Immigrant Bills

For those looking to promote pro-immigrant integration bills in state legislatures, consider some measures being debated in California this session.  SB 1005 would extend affordable, all-inclusive health coverage to undocumented Californians.  Specifically, it would expand eligibility for Medi-Cal (California's Medicaid program) to low-income individuals who cannot currently qualify due to lack of immigration status and would also create a state-run exchange for the undocumented to purchase health care insurance. Its sponsor claims the bill will save taxpayers money by facilitating preventative treatment and reducing reliance on expensive emergency room care.

Another California bill, SB 1159, would remove professional licensing barriers that prevent undocumented workers from practicing their occupations including doctors, nurses, dentists, psychologists, pharmacists, real estate agents, and security guards.  The bill would allow 40 state boards to accept a federal Individual Taxpayer Identification Number (ITIN) in lieu of a Social Security number as proof of identity for individuals applying for professional licenses.  The bill was passed by the Senate on May 8, 2014 and will now go to the Assembly.  The change would be of tremendous benefit to California’s workforce, an estimated 1.85 million of who are undocumented.

On May 23, the California State Assembly passed AB 1876, a bill that would reduce the cost of phone calls for immigrants and others detained in California’s jails and limit the ability of phone companies, law enforcement agencies, and private prison corporations to profit from inflated phone rates. The exorbitant cost of phone calls for those held in county jails is an affront to human dignity because it prevents detainees from communicating with their families and limits their ability to obtain and communicate with legal counsel.  The bill now moves to the Senate.  

On May 28, the Senate passed SB 1210 which would create the California DREAM loan program to provide loans of up to $4,000 to qualifying undocumented youth who wish to study at participating institutions within the University of California and California State University systems.

 

Reacting to Court Decisions on Immigration Detainers, Dozens of Counties Say “No” to ICE

Two recent court decisions on the use of ICE detainers have resulted in a domino effect of local law enforcement policies limiting cooperation with ICE in enforcing immigration laws. In March, the Third Circuit Court of Appeals found that immigration detainers are not mandatory and that Lehigh County, Pennsylvania could be violating the Constitution by complying with ICE detainers.  In April, a U.S. District Court in Oregon found that Clackamas County sheriffs had violated the Fourth Amendment rights of an individual they continued to hold under an ICE detainer without probable cause. In the wake of these decisions, local law enforcement agencies across the country are changing their policies about when they will hold individuals for ICE.  More than 75 counties in Colorado, Washington, Oregon, and California as well as Lehigh County, Pennsylvania and Somerville, Massachusetts have announced they will only honor detainer requests from ICE under limited circumstances, such as when a federal magistrate has issued an arrest warrant.  Many local law enforcement leaders cited fears of civil liability in addition to concerns about the constitutionality of ICE detainers. A complete list of the jurisdictions that limit compliance with ICE detainers is available here.

In addition, the Department of Homeland Security (DHS) is in the process of conducting a review of federal immigration enforcement policies following a request in March by President Obama to look into ways to make enforcement more “humane.” On May 29, 2014, DHS Secretary Jeh Johnson testified at an oversight hearing before the House Committee on Homeland Security that the controversial Secure Communities program “need[s] a fresh start.”  Through Secure Communities, the fingerprints of people arrested by local police are automatically run through a DHS database so that ICE can decide whether to issue detainers in order to take these individuals into immigration custody.

 

The 15 States with the Largest Immigrant Populations

The Pew Research Center recently compiled a summary of the percentages of foreign-born residents living in each of the 15 “top immigrant states.” According to the 2012 data, 79% of the country’s total immigrants reside in these 15 states. In California, New York, New Jersey, and Florida, one in five residents are foreign-born. Click here to see the data in addition to how the rankings have changed over the past two decades.

 

 

 

 This document was prepared in May 2014 for informational purposes only and is not intended as legal advice. For questions, please contact CLINIC’s State & Local Advocacy Attorney Jen Riddle at jriddle@cliniclegal.org or (301) 565-4807.

Recent Immigration Developments from the States (Mar 2014)

Supreme Court Leaves Lower Court Decisions on Anti-Immigrant Housing Regulations Intact

On March 3, the U.S. Supreme Court declined to hear appeals brought by the towns of Hazelton, Pennsylvania and Farmers Branch, Texas related to their anti-immigrant housing ordinances. As a result, the decisions of the 3rd and 5th Circuit Courts of Appeals, finding that the housing ordinances were unconstitutionally preempted by federal immigration law, remain intact. Both ordinances would have required prospective tenants to prove their lawful presence in the United States and obtain a rental license before being permitted to rent an apartment. At this time, the only discriminatory housing ordinance that has withstood legal challenge is the policy that will go into effect on April 10 in Fremont, Nebraska. The 8th Circuit Court of Appeals upheld Fremont’s anti-immigrant rental ordinance last year and a majority of the town’s residents voted last month to keep the law. Fortunately, other localities across the country, including Omaha and Lincoln, Nebraska, are choosing instead to embrace and integrate immigrants into their communities and economies through a number of welcoming initiatives.        

 

Legal Settlement Blocks Key Sections of South Carolina’s 2011 Anti-Immigrant Law

Following in the steps of Arizona, Alabama, and Georgia, South Carolina is the latest state to limit enforcement of its harsh anti-immigrant law. The state has agreed to a settlement in legal challenges to key provisions of SB 20 that sought to criminalize undocumented immigrants and drive them out of the state. Once the settlement with civil rights organizations and the U.S. Department of Justice is approved by the federal court, it will limit how the state can enforce the law’s controversial “show me your papers” provisions which permit local police to request immigration status documents from individuals stopped or detained for other lawful reasons.  The South Carolina Attorney General issued a formal opinion clarifying that law enforcement agents cannot continue to hold people to investigate their immigration status after the original reason for stopping or detaining them has been resolved. The pending settlement will also permanently block the section of the law that makes it a state misdemeanor to fail to carry immigration documents. Finally, the settlement will permanently enjoin the provisions making it a state felony to engage in such routine interactions with undocumented immigrants as driving them to church or renting them a room. Similar provisions criminalizing transporting and harboring have also been blocked in Alabama and Georgia. 

 

Tuition Equity Bill Advances in Florida Legislature While Financial Aid Bill Is Defeated in New York

On March 20, the Florida House voted to approve HB 851 that would permit undocumented residents to pay in-state tuition at state universities. All eyes now turn to the state Senate where the Judiciary Committee recently approved a similar proposal (SB 1400) that must eventually clear the Senate as a whole.  Reports indicate that Governor Scott would sign the tuition equity bill, if passed by the legislature. If Florida does enact this legislation, it would become the 20th state with a law or policy extending in-state tuition to undocumented residents.  Only four of these states (California, New Mexico, Texas, and Washington) also permit undocumented students to qualify for state financial aid. New York, which has offered in-state tuition to undocumented residents since 2002, was considering a bill enabling undocumented students to qualify for state financial aid, but the legislation was defeated by the state Senate on March 17.  Click here for CLINIC’s Talking Points on Why States Should Offer In-State Tuition to All Residents.

 

Massachusetts May Become Third State to Decline to Hold Individuals for ICE

Massachusetts’ SB 1135, an Act to restore community trust in Massachusetts law enforcement, passed out of the Joint Public Safety Committee on March 19. This legislation would limit the use of scarce state and local law enforcement resources to do the federal government’s job of enforcing immigration laws. Specifically, Massachusetts law enforcement would only be able to hold someone under an ICE detainer when the individual is over 18, has been convicted of a certain felony, and has either been ordered removed or charged with being removable, and when ICE has agreed to reimburse the law enforcement agency for all associated costs. Recent ICE statistics show that an alarming percentage of individuals deported from Massachusetts as a result of federal partnerships with local law enforcement had no criminal convictions or had only been charged with minor offenses. According to the bill’s sponsor, it will limit “unjust, unnecessary, and unsafe federal deportation programs, therefore restoring the trust between immigrant communities and police, and increasing the public safety for all residents in Massachusetts.”  While the Maryland legislature had been considering similar legislation this session (HB 29/SB554), the Maryland Law Enforcement Trust Act failed to move out of the necessary House and Senate committees.

 

This document was prepared in March 2014 for informational purposes only and is not intended as legal advice. For questions, please contact CLINIC’s State & Local Advocacy Attorney Jen Riddle at jriddle@cliniclegal.org or (301) 565-4807.

 

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Circuit Court Split on Constitutionality of Local Anti-Immigrant Housing Ordinances (Aug 2013)

Circuit Court Split on Constitutionality of Local Anti-Immigrant Housing Ordinances (August 2013)                                                         

Underlying many anti-immigrant measures passed by states and cities in recent years is the policy goal of “enforcement by attrition” or “self-deportation.” The belief is that, by making daily existence for the unauthorized population as difficult as possible, they will decide to leave the U.S. of their own accord.  Examples of such strategies include expanding local enforcement of federal immigration laws, criminalizing unlawful presence and unauthorized work, and restricting the ability of undocumented immigrants to attend school, obtain driver’s licenses, engage in business transactions, rent housing, and otherwise participate in society. Such anti-immigrant strategies fly in the face of Catholic social teaching on the fundamental right of all humans to decent living conditions including faith, family life, food, education, employment, health care, and housing.  As Archbishop of Los Angeles and Chair of the United States Conference of Catholic Bishops’ Committee on Migration José Gómez wrote in Immigration and the Next America: Renewing the Soul of Our Nation: 

Nobody ever forfeits his humanity or his right to be treated with dignity.  No matter where he comes from or how he got here. No matter what kind of papers he has or doesn’t have.  Even if he has broken a law, he is still a person, and he still has rights and dignity.

Starting in 2006, we witnessed localities across the U.S. -- from Hazelton, Pennsylvania and Riverside, New Jersey to Valley Park, Missouri and Escondido, California -- passing ordinances banning the rental of property to undocumented residents. What became of these attempts to force hardworking immigrants and their families to leave the cities they call home? Many of these discriminatory housing ordinances were challenged in court and several were subsequently reversed.  This summer, three federal appeals courts have issued decisions in the legal challenges to restrictive rental policies in Fremont, Nebraska, Farmers Branch, Texas, and Hazelton, Pennsylvania.1  The outcomes were mixed.  The 5th and 3rd Circuit Courts of Appeals prevented the cities of Farmers Branch and Hazelton, respectively, from enforcing restrictive rental prohibitions.  However, the 8th Circuit permitted the Fremont housing ordinance to go into effect.  The three recent circuit court decisions are summarized below.  

1 In addition, last year the 11th Circuit found that Alabama’s state law criminalizing the harboring of an unlawfully present person by entering into a rental agreement with that person to be an untenable expansion of the federal harboring provision and, thus, preempted by federal law. United States v. Alabama, 691 F.3d 1269 (11th Cir. 2012).

In light of the current circuit split resulting from divergent interpretations of federal law, the constitutionality of anti-immigrant housing regulations may be an issue that the U.S. Supreme Court would agree to address in the near future.  For a map of the eleven circuits in the U.S. Circuit Court of Appeals system, click here .  

 

8th Circuit Allows Nebraska City to Restrict Housing Based on Immigration Status

On June 28, a three-judge panel of the 8th Circuit Court of Appeals upheld  a 2010 ordinance requiring anyone wishing to rent housing in Fremont, Nebraska to first obtain a permit from the city after proving their lawful presence in the U.S.2  In 2012, a lower court had temporarily prevented the provision from going into effect after finding that denying housing permits to the undocumented is discriminatory and interferes with federal law.  The 8th Circuit disagreed and held that the rental provision is not preempted by federal law because it does not require local officials to determine whether an individual is removable from the U.S. but only mandates that city officials defer to the federal government’s determination of whether an undocumented renter is unlawfully present. Now that the 8th Circuit has reversed the lower court, the city of Fremont can begin enforcing the law on its residents.  It is not yet clear whether the Plaintiffs in the case will petition for a rehearing of the full 8th Circuit.        

2 Keller v. City of Fremont, 719 F.3d 931, (8th Cir. 2013).

3 Villas at Parkside Partners v. City of Farmers Branch, Texas, No. 10-10751, 2013 WL 3791664 (5th Cir. July 22, 2013).

In his dissenting opinion, 8th Circuit Judge Bright argued that the ordinance is unconstitutional because it conflicts with the federal government’s exclusive immigration authority to decide who may and may not reside in the U.S.  According to Judge Bright, the law “prevents undocumented persons from renting in Fremont, which is tantamount to preventing them from living in the city at all.”  He also pointed to the fact that all the other Circuit Courts that have ruled on this issue have found similar rental prohibitions to be in conflict with our federal system for removal of undocumented immigrants. 

 

5th Circuit Finds Texas Housing Ordinance Unconstitutional

Less than a month after the 8th Circuit upheld the Nebraska city ordinance, the 5th Circuit reached a different decision  about a nearly identical provision attempting to prevent the undocumented from renting housing in Farmers Branch, Texas.3  On July 22, an en banc panel of the Fifth Circuit Court of Appeals struck down an immigration ordinance that would require prospective tenants to acquire a residential occupancy license after the city verified their lawful presence in the U.S.  In addition to prohibiting landlords from renting to unauthorized immigrants, the ordinance would impose criminal penalties on both landlords and tenants.  The court relied on the U.S. Supreme Court's 2012 decision invalidating key provisions of Arizona’s notorious SB 1070 to hold that the ordinance conflicted with federal immigration law in violation of the Supremacy Clause of the Constitution. Specifically, the court found that the ordinance conflicts with the federal government’s authority to arrest and detain people for possible unlawful presence as well as with the federal anti-harboring law, 8 USC 1324(a)(1)(A)(iii), which makes it a felony to harbor, shield, or conceal an undocumented immigrant.  According to two judges who concurred in the judgment, the “purpose and effect” of the ordinance was “the exclusion of Latinos from the city of Farmers Branch.”   

 

Pennsylvania Housing Ordinance Found Unconstitutional by 3rd Circuit

On July 26, the 3rd Circuit Court confirmed that Hazelton, Pennsylvania’s anti-immigrant housing ordinances were unconstitutional and upheld  the lower court’s rulings that had blocked the discriminatory laws from going into effect.4  One ordinance made legal immigration status a precondition to being able to enter into a lease and criminalized “harboring” an unauthorized immigrant by leasing or renting a dwelling unit to such an individual.  A second ordinance required prospective tenants to obtain an occupancy permit which required proof of citizenship or legal residency.  The court found that, operating together, the two ordinances attempted to regulate residence based solely on immigration status and effectively prohibited unauthorized immigrants from living in any rental housing in the city of Hazelton.  According to the 3rd Circuit, these provisions are preempted by federal law both because the field of immigration is completely occupied by the federal government and because the requirements they impose upon immigrants conflict with federal law.  It is worth noting that, in addition to finding the housing provisions of the ordinances unconstitutional, the court also found that the provision attempting to regulate the employment of unauthorized immigrants was pre-empted by federal immigration law.  

4 Lozano v. City of Hazleton, No. 07-3531, 2013 WL 3855549 (3d. Cir. July 26, 2013).

5 Lozano v. City of Hazleton, 620 F.3d 170, 220–21 (3d Cir. 2010).  

 

In conclusion, it is noteworthy that no new municipal ordinances preventing unauthorized immigrants from renting housing have been enacted since 2010.  If the U.S. Supreme Court does decide to resolve the current split between the circuits, we can be hopeful the high court will adopt the sound reasoning articulated by the 3rd and 5th Circuits in finding such ordinances to be unconstitutional.  In addition to preempting federal immigration law, such housing ordinances are clearly bad public policy. They have cost cities across the country substantial time and resources to defend against lawsuits. They divide communities and increase discrimination against individuals based on their perceived immigration status. As the 3rd Circuit wrote: “It is difficult to conceive of a more effective method of ensuring that persons do not enter or remain in a locality than by precluding their ability to live in it.”5 Archbishop Gómez reminds us that unauthorized presence is not a crime:  

The fact is that most “illegals” are the people next door.  They go to work every day. Their kids go to school with our kids.  We sit next to them at church on Sunday. Most have been living in our country for five years or more.  Two-thirds have been here for a least a decade. 

 Our Catholic commitment to care for the stranger includes the basic need for shelter and extends to all human beings regardless of their immigration status. 

 

This document was prepared in August 2013 by CLINIC’s State & Local Advocacy Attorney Jen Riddle. This document is provided for informational purposes only and is not intended as legal advice. For questions, please contact Jen Riddle at jriddle@cliniclegal.org or (301) 565-4807.

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