M
EMORANDUM
To: Senate President Pro Tempore Del MarshHouse Speaker Mike HubbardFrom: Attorney General StrangeCC: Cooper Shattuck, Legal Advisor to the Governor Date: December 1, 2011Re: Immigration Act Suggested RevisionsAt your request, I have compiled a list of suggested revisions to Alabama’s ImmigrationLaw, Act No. 2011-535. My goals are to (1) make the law easier to defend in court; (2) assistlaw enforcement in implementation; and (3) remove burdens on law abiding citizens. All whilenot weakening the law.In making these suggestions, I have considered only ways that the statute can be madeclearer, or that specific legal challenges can be addressed. I have not addressed complaints thatvarious parties have made to the
policy
decisions made by the Legislature. Under our system of government, the Legislature makes laws, and I respect that separation of powers so stronglyembedded in our Constitution. These suggestions are therefore limited to ways that the policychoices of the Legislature may be made more defensible in a court of law.
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5
AND
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6Background:
Among other things, Sections 5 and 6 purport to authorize private lawsuitsagainst public officials to compel their enforcement of the Act or their compliance with federalimmigration law through the imposition of civil penalties ranging from $1,000 to $5,000 per day.
Recommendation:
Repeal Sections 5 and 6.
Legal/Litigation Concerns:
Repeal would cure problems under the State Constitution withrespect to sovereign immunity and jurisdiction, particularly standing.
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8Background:
Section 8 of the Act concerns public postsecondary education. It is the subject of an Equal Protection challenge in
Hispanic Interest Coalition of Alabama v. Bentley
and has beenenjoined by the District Court.
Recommendation:
Delete the second sentence of Section 8.
December 1, 2011Page 2
Legal/Litigation Concerns:
Our litigation position, which is supported by the Department of Postsecondary Education, is that the section should be read only as barring illegal aliens fromattending a public postsecondary institution. The District Court rejected this reading based onthe presence of the second sentence in the Act. Accordingly, the State’s interests would beserved by a legislative tweak that would make the plain text consistent with the overall intent of the section by deleting the second sentence.
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10Background
: Section 10 makes it a state crime for an illegal alien to fail to carry registrationdocuments. It is the subject of challenges in
United States v. Alabama
and
Hispanic Interest Coalition of Alabama v. Bentley
, and has been enjoined by the Eleventh Circuit.
Recommendation
: Repeal Section 10.
Legal/Litigation Concerns:
Arizona’s version of Section 10 has been preliminarily enjoined inthe Arizona case, and when the District Court in
United States v. Alabama
and
Hispanic Interest Coalition of Alabama v. Bentley
declined to preliminarily enjoin it, the Eleventh Circuit took thehighly unusual step of enjoining it pending appeal. Because federal law already makes the failureto carry registration documents a crime, Section 10 adds little in terms of enforcement, and if itwere repealed, law enforcement would be able to focus on more important aspects of the law.
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13Background
: Section 13 makes it a state-law crime to harbor an illegal alien or to transport himin furtherance of his illegal presence when the defendant knows or has reason to know that the person is here illegally. It specifies that renting a dwelling to an illegal alien is harboring. It isthe subject of challenges in
United States v. Alabama
and Hispanic Interest Coalition of Alabama v. Bentley
, and has been enjoined by the District Court.
Recommendation
: Amend Section 13 to (1) eliminate the specification that renting is harboring;(2) create an exception for religious activities that mirrors federal law, 8 U.S.C. § 1324(a)(1)(C);(3) eliminate Section 13(a)(2), which deals with encouraging and inducing an alien to come tothe state; (4) eliminate the conspiracy provision in Section 13(a)(4); and (5) specify that Section13 will be interpreted in the same manner that federal courts interpret the parallel federalharboring provision.
Legal/Litigation Concerns
: The District Court has preliminarily enjoined Section 13 on therationale that it does not parallel federal law sufficiently, and this amendment would eliminatethis concern with no costs in terms of enforcement.
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18
AND
19
December 1, 2011Page 3
Background:
In part, Section 18(d) and Section 19(b) provide “If the person is determined to bean alien unlawfully present in the United States, the person shall be considered a flight risk andshall be detained until prosecution or until handed over to federal immigration authorities.”
Recommendation:
Delete the above-quoted sentences.
Legal/Litigation Concerns:
Repeal would cure constitutional issues.
Ex parte Colbert
, 805So.2d 687, 688 (Ala. 2001) (The Alabama Constitution provides that an accused has “an absoluteright to bail in all noncapital cases.”);
see also
Ala. Const. Art. I, § 16.
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20Background:
Section 20 concerns illegal aliens who have been “convicted of a violation of stateor local law” who are “within 30 days of release or [have] paid any fine as required by operationof law.” It requires notification to the federal government, and provides that the Department of Corrections, as opposed to the Alabama Department of Homeland Security, maintains custody of the individual during the transfer of custody to the federal government.
Recommendation:
Delete “or has paid any fine as required by operation of law.” Additionally,delete “Alabama Department of Corrections” and replace it with “agency responsible for his or her incarceration.”
Legal/Litigation Concerns:
The reference to a fine has been read by some as suggesting thatState and local officials would take someone into custody specifically for the purpose of transferring custody to the federal government. The suggested revision clarifies that Section 20was intended to concern illegal aliens who are already lawfully in custody. The second change isrecommended because the Alabama Department of Corrections is not necessarily the entity thatwould have custody of the illegal alien.
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27Background:
Section 27 concerns contracts entered into by illegal aliens.
Recommendation:
Specify that Section 27 only applies to contracts entered into after Section27 became effective.
Legal/Litigation Concerns:
Clarifying that Section 27 applies prospectively would avoid any potential ambiguity and additional litigation.
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