Eleventh Circuit Decision: Alabama Immigration Law

The Eleventh Circuit issued its decision today in the companion cases challenging Alabama’s immigration law, House Bill 56 known as the Beason-Hammon Alabama Taxpayer and Citizen Protection Act. The Court preliminarily enjoined the enforcement of most of the challenged provisions (all except sections 8, 12, 18, and 30).

The companion cases filed by the United States and by a group of private plaintiffs lead by the Hispanic Interest Coalition of Alabama (HICA) challenged these provisions of the immigration law:

• Section 8 – which provides that an unlawfully present alien shall not be permitted to enroll in or attend any public postsecondary education institution in Alabama
• Section 10 – which creates a new state crime for an unlawfully present alien’s failure to complete or carry an alien registration document
• Section 11 – which criminalizes an unauthorized alien’s application for, solicitation of, or performance of work inside the state of Alabama
• Section 12 – which requires officers to determine a lawfully seized individual’s immigration status when the officer has reasonable suspicion that the seized individual is unlawfully present in the United States
• Section 13 – which criminalizes the harboring or transportation of an alien and the act of encouraging an alien to come into Alabama
• Section 16 – which disallows an employer’s state tax deduction for wages and compensation paid to an alien unauthorized to work in the United States
• Section 17 – which counts as a discriminatory practice an employer’s act of firing or failing to hire a U.S. citizen or an alien authorized to work while that employer simultaneously employs or hires an alien unauthorized to work in the country
• Section 18 – which provides that reasonable effort must be made within 48 hours to determine whether a driver not in possession of a drivers’ license is permissibly present in the country
• Section 27 – which prohibits state courts from enforcing a contract to which an unlawfully present alien is a party
• Section 28 – which provides a process for schools to collect data about the immigration status of students enrolled in public schools and requires schools to ascertain the immigration status of students
• Section 30 – which prohibits unlawfully present aliens from entering or attempting to enter into business transactions with the state or a political subdivision thereof

Before these challenged provisions became effective, the United States asked the District Court to enjoin their enforcement on the ground that they are an impermissible attempt to regulate immigration and are, therefore, preempted by federal law. The District Court found that the federal government’s preemption challenges to sections 11(a), 13, 16, and 17 would likely succeed and that preliminary injunction of their enforcement was, therefore, appropriate. However, the District Court did not find a likelihood of success in the preemption challenges to sections 10, 12(a), 18, 27, 28, and 30, and did not enjoin their enforcement.

Also before the provisions became effective, HICA and the other private entities filed suit challenging sections 8, 10, 11(a), 12(a), 13, 18, 27, 28, and 30 based upon federal preemption of immigration regulation; challenging section 28 as violative of the Equal Protection Clause of the U.S. Constitution; and challenging sections 10(e), 11(e), and 13(h) as violative of the Compulsory Process Clause of the U.S. Constitution. The District Court found that the HICA entities’ challenges to sections 8, 10(e), 11(a), 11(e), and 13 would likely succeed on the merits and that a preliminary injunction of their enforcement was, therefore, appropriate. However, the District Court determined that the private entities lacked standing to challenge section 28 on equal protection grounds.

Following the District Court’s orders, the United States, the state of Alabama, and the HICA entities appealed. While the appeals in the two companion cases were under consideration, the Eleventh Circuit enjoined enforcement of sections 10, 27, 28, and 30; thus, only two of the challenged provisions—sections 12 and 28—were enforceable during the pendency of the appeal.

After considering briefs and oral argument, the Eleventh Circuit partially affirmed and partially reversed the preliminary injunction orders of the District Court:

• The Eleventh Circuit affirmed the District Court’s decision not to preliminarily enjoin the enforcement of sections 12(a), 18, and 30 after finding no proof that those provisions were facially invalid.
• The Eleventh Circuit found a likelihood of success as to the federal government’s challenges to sections 10, 11(a), 13(a), 16, 17, and 27, which warranted preliminary injunction of their enforcement.
• The Eleventh Circuit additionally found that at least one of the HICA entities had standing to challenge section 28 on equal protection grounds and, finding a likelihood of success, determined that a preliminary injunction as to section 28 was warranted.
• The Alabama legislature has removed the challenged language of section 8, thereby rendering moot the HICA entities’ challenge to that provision.

Bottom Line: The enforcement of sections 10, 11, 13, 16, 17, 27, and 28 is preliminary enjoined pending a determination on the merits of the various challenges to those sections, but the state may enforce the provisions of sections 12, 18, and 30.