MEMORANDUM

To: Senate President Pro Tempore Del Marsh House Speaker Mike Hubbard

From: Attorney General Strange CC: Cooper Shattuck, Legal Advisor to the Governor

Date: December 1, 2011 Re: Immigration Act Suggested Revisions

At your request, I have compiled a list of suggested revisions to Alabama’s Immigration Law, Act No. 2011-535. My goals are to (1) make the law easier to defend in court; (2) assist law enforcement in implementation; and (3) remove burdens on law abiding citizens. All while not weakening the law. In making these suggestions, I have considered only ways that the statute can be made clearer, or that specific legal challenges can be addressed. I have not addressed complaints that various 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 strongly embedded in our Constitution. These suggestions are therefore limited to ways that the policy choices of the Legislature may be made more defensible in a court of law.

SECTION 5 AND SECTION 6 Background: Among other things, Sections 5 and 6 purport to authorize private lawsuits against public officials to compel their enforcement of the Act or their compliance with federal immigration 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 with respect to sovereign immunity and jurisdiction, particularly standing.

SECTION 8 Background: 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 been enjoined by the District Court. Recommendation: Delete the second sentence of Section 8.

December 1, 2011 Page 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 from attending a public postsecondary institution. The District Court rejected this reading based on the presence of the second sentence in the Act. Accordingly, the State’s interests would be served by a legislative tweak that would make the plain text consistent with the overall intent of the section by deleting the second sentence.

SECTION 10 Background: Section 10 makes it a state crime for an illegal alien to fail to carry registration documents. 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 in the 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 the highly unusual step of enjoining it pending appeal. Because federal law already makes the failure to carry registration documents a crime, Section 10 adds little in terms of enforcement, and if it were repealed, law enforcement would be able to focus on more important aspects of the law.

SECTION 13 Background: Section 13 makes it a state-law crime to harbor an illegal alien or to transport him in 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 is the 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 to the state; (4) eliminate the conspiracy provision in Section 13(a)(4); and (5) specify that Section 13 will be interpreted in the same manner that federal courts interpret the parallel federal harboring provision. Legal/Litigation Concerns: The District Court has preliminarily enjoined Section 13 on the rationale that it does not parallel federal law sufficiently, and this amendment would eliminate this concern with no costs in terms of enforcement.

SECTIONS 18 AND 19

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Background: In part, Section 18(d) and Section 19(b) provide “If the person is determined to be an alien unlawfully present in the United States, the person shall be considered a flight risk and shall 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, 805 So.2d 687, 688 (Ala. 2001) (The Alabama Constitution provides that an accused has “an absolute right to bail in all noncapital cases.”); see also Ala. Const. Art. I, § 16.

SECTION 20 Background: Section 20 concerns illegal aliens who have been “convicted of a violation of state or local law” who are “within 30 days of release or [have] paid any fine as required by operation of 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 that State 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 20 was intended to concern illegal aliens who are already lawfully in custody. The second change is recommended because the Alabama Department of Corrections is not necessarily the entity that would have custody of the illegal alien.

SECTION 27 Background: Section 27 concerns contracts entered into by illegal aliens. Recommendation: Specify that Section 27 only applies to contracts entered into after Section 27 became effective. Legal/Litigation Concerns: Clarifying that Section 27 applies prospectively would avoid any potential ambiguity and additional litigation.

SECTION 28

December 1, 2011 Page 4 Background: Section 28 directs public schools to collect data about immigration status at the time of enrollment. Section 28 is the subject of challenges in Hispanic Interest Coalition of Alabama and United States v. Alabama, and has been enjoined by the Eleventh Circuit. Recommendation: Repeal Section 28. Legal/Litigation Concerns: It is my understanding that the purpose of Section 28 was to collect data for future litigation involving the State. As chief law officer for the State, my judgment is that the costs of gathering this data at this point in time, in terms of diversion of resources and the effect this section has had on the current litigation, far outweigh any need to gather data for future litigation. I recommend repealing this section so that resources can be focused on other priorities.

SECTION 29 Background: Section 29 imposes identification requirements as a pre-requisite to voter registration in an apparent effort to prevent illegal aliens from voting. Section 29, as currently drafted, requires preclearance under Section 5 of the Voting Rights Act of 1965, 42 U.S.C. § 1973c. Recommendation: Replace the current Section 29 with a provision focused on education and enforcement of the existing citizenship requirements for voting. Legal/Litigation Concerns: Section 29 is unnecessary. Alabama law already requires that persons who register to vote must declare under penalty of perjury that they are United States citizens. Ala. Code §17-3-52; see also Ala. Const. Art. VIII, §177. Suggested Replacement Provision: I recommend that Section 29 be replaced with a provision that requires District Attorneys to notify the Secretary of State of prosecutions brought against non-citizens who seek to attempt to register to vote, or otherwise aims to collect data as to the scope of the problem. Additionally, a replacement for Section 29 might call for the Secretary of State to educate District Attorneys about the existence of the citizenship requirement.

SECTION 30 Background: Section 30 makes it a Class C felony for an illegal alien (or anyone on his behalf) to enter into, or attempt to enter into, a business transaction with the state or a political subdivision of the state. Section 30 provides that a business transaction includes “any transaction between a person and the state or a political subdivision of the state, including, but not limited to, applying for or renewing a motor vehicle license plate, applying for or renewing a driver’s license or nondriver identification card, or applying for or renewing a business license.” Section 30 provides that a business transaction does not include “applying for a marriage license.”

December 1, 2011 Page 5 Recommendation: Section 30 should be amended to clarify the definition of a “business transaction.” “Business transaction” should be defined to embrace only specifically enumerated license transactions. Legal/Litigation Concerns: This amendment would be consistent with the sensible interpretation of Section 30 adopted by the District Court. Clarifying the reach of this section would likely improve the implementation of the law and reduce potential litigation challenges.

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