Federal court rejects Alabama`s request for immigration law rehearing

Marking a possible end to 16 months of litigation, the 11th Circuit Court of Appeals on Tuesday rejected Alabama’s request for a rehearing concerning the state’s immigration law.

The state had requested a rehearing in HICA v. Alabama in September, after the court affirmed a preliminary injunction against a provision in the immigration law that would have required schools in the state to collect data on undocumented students.The court rejected the state’s request for a rehearing in U.S. v. Alabama last month. That was a separate lawsuit in which the 11th Circuit blocked provisions of the law, known as HB 56, that required aliens to carry papers to prove their status and another that barred courts from enforcing contracts made with those unlawfully present in the country.

Both suits were filed in the summer of 2011, weeks before most of the law’s provisions were scheduled to go into effect.

“Basically this means Alabamians’ families can focus on getting their children to school, and not have to worry about school administrators intruding on their citizenship status,” said Marielena Hincapie, executive director of the National Immigration Law Center, which represented plaintiffs in the case, along with the American Civil Liberties Union and the Southern Poverty Law Center.

“This also sends a message that the state should really focus on issues that affect its citizens.”

Suzanne Webb, a spokeswoman for Alabama Attorney General Luther Strange, said the office had no comment on the ruling. Jennifer Ardis, a spokeswoman for Gov. Robert Bentley, also declined comment on the ruling. At the time the requests were filed, Bentley said the state was pursuing the rehearing “based on principle.”

HB 56 passed in 2011 and was signed by Gov. Robert Bentley that June.

Rep. Micky Hammon, R-Decatur, the bill’s sponsor, said at the time that the bill was aimed at trying to make undocumented immigrants leave the state by making it difficult for them to live in Alabama. However, court decisions and revisions to the law have stopped most — though not all — of the most controversial provisions from going into effect.?

In August, the 11th Circuit overturned the school data provision, saying it significantly interfered with a child’s right to a public education and violated the Equal Protection Clause of the 14th Amendment.?

A section allowing law enforcement to detain those they have “reasonable suspicion” of being in the country unlawfully remains in effect, as does a provision banning those unlawfully present from attending post-secondary institutions in the state. Another provision that requires law enforcement to check the status of those found driving without a driver’s license also was upheld.

Besides the school, contracts and papers sections, courts have blocked provisions making it illegal to “harbor, conceal or shield” undocumented aliens; making it a discriminatory act to not hire lawfully present individuals while employing unlawfully present ones and a section forbidding courts from enforcing contracts made with those unlawfully present.

Last spring, the Legislature narrowed a provision of the law banning government entities from doing business with undocumented aliens to motor vehicle and business licenses. A section requiring employers to enroll in the E-Verify system for checking the status of employees was not challenged, having been upheld by the U.S. Supreme Court in 2011, before litigation over HB 56 began.

Hincapie said the state could still appeal the rehearing to the U.S. Supreme Court.

The school provision, known as Section 28, required schools to determine the citizenship status of students at time of enrollment, through a birth certificate. If the family could not provide one, or if the birth certificate showed the student was born outside the United States, the parents were required to submit proof of the child’s citizenship or a written declaration of the child’s lawful status, under penalty of perjury.

If the documentation was not submitted, the child would be considered unlawfully present, but would be allowed to attend school.

Proponents of the measure argued it was a simply a way to collect data on any costs associated with educating unlawfully present students, but critics charged it was intended to intimidate families and students

“The law contemplates no interest in the birthplace of any child who is lawfully present, and the blanket requirement that all students show a birth certificate is simply a necessary means by which section 28 forces unlawfully present aliens to divulge their unlawful status,” the court wrote.

The state also challenged the standing of the three dozen plaintiffs represented in HICA v. Alabama, arguing that none of them were charged with enrolling students in school.

Attorneys for the state argued in their request for the hearing that the law did not mandate disparate treatment of students.

“If a student fails to provide the documentation, nothing happens to the student,” the request stated. “If a student says he is an unlawfully present alien, nothing happens to the student.”

The reasonable suspicion provision that remains in effect was closely modeled on a similar one in Arizona’s immigration law. Last June, the U.S. Supreme Court upheld that provision, though it did not rule future challenges to the enforcement of that section. Hincapie said it was “a little too early” for legal action on that front, though she expected fights to continue.

“There will be additional litigation, unfortunately, until these laws are repealed by legislature,” Hincapie said.

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