Immigration.social.work

Making a Case for Social Justice – Opening the Door of Access and Opportunity for Everyone

Immigration and the LawBy John R. Wible, J.D.1

Acknowledgement/Caveat: The presentation which this paper accompanies is based upon the legal analysis of Greg Locklier, Assistant General Counsel, ADPH. Mr. Locklier is not responsible for my additions and they do not necessarily represent his opinion. The author is not your lawyer; therefore this may not be relied upon as legal advice. No representation is made that this presentation represents the opinion of the Alabama Department of Public Health, its Office of General Counsel, officers, agents, servants, or employees.

Unless you are a Native American, IE. a descendant of an American Indian tribe2, you are an immigrant. America is a nation of immigrants. Bill Murray’s character famously stated in the movie, “Stripes,3”

We're all very different people. We're not Watusi. We're not Spartans. We're Americans, with a capital 'A', huh? You know what that means? Do ya? That means that our forefathers were kicked out of every decent country in the world. We are the wretched refuse. We're the underdog. We're mutts! . . . But there's no animal that's more faithful, that's more loyal, more loveable than the mutt.

America was once known as the “great melting pot.” Now, it’s more accurate to state that we’re the “Great Salad Bowl.”

Historically, American immigration history can be viewed in four periods:

the colonial period, the mid-nineteenth century, the turn of the twentieth century, and Post-1965.

Each period brought distinct national groups, races and ethnicities to the United States.

During the seventeenth century, approximately 175,000 Englishmen4 migrated to Colonial America. 5 Over half of all European immigrants to Colonial America during the 17th and 18th centuries arrived as indentured servants.6

1 John R. Wible is retired General Counsel, Alabama Department of Public Health.2 The historical four tribes of Alabama are the Choctaw, Chickasaw, Cherokee, and Creek tribes.3 “Stripes” is a 1981 American film directed by Ivan Reitman, starring Bill Murray, Harold Ramis, Warren Oates, P. J. Soles, and John Candy.4 Or, more politically correct, “English Persons.”5 "Leaving England: The Social Background of Indentured Servants in the Seventeenth Century", The Colonial Williamsburg Foundation.6 "Indentured Servitude in Colonial America". Deanna Barker, Frontier Resources.

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The mid-nineteenth century saw mainly an influx from northern Europe; the early twentieth-century mainly from Southern and Eastern Europe; post-1965 mostly from Latin America and Asia.

Historians estimate that fewer than one million immigrants—perhaps as few as 400,000—crossed the Atlantic during the 17th and 18th centuries.7 A 1790 Act limited naturalization to "free white persons"; it was expanded to include African Americans in the 1860s and Asians in the 1950s.8 In the early years of the United States, immigration was fewer than 8,000 people a year,9 including French refugees from the slave revolt in Haiti. After 1820, immigration gradually increased. From 1836 to 1914, over 30 million Europeans migrated to the United States.10 The death rate on these transatlantic voyages was high, during which one in seven travelers died.11 In 1875, the nation passed its first immigration law.12

The peak year of European immigration was in 1907, when 1,285,349 persons entered the country, most through Ellis Island processing center.13 By 1910, 13.5 million immigrants were living in the United States.14 In 1921, the Congress passed the Emergency Quota Act, also known as the Emergency Immigration Act of 1921, the Immigration Restriction Act of 1921, the Per Centum Law, and the Johnson Quota Act.15 It was followed by the Immigration Act of 1924.16 The 1924 Act was aimed at further restricting the Southern and Eastern Europeans, especially Jews, Italians, and Slavs, and Asians17 (principally Chinese) who had begun to enter the country in large numbers beginning in the 1890s.18 Interestingly enough, most of the European refugees fleeing the Nazis during World War II were barred from coming to the United States.19

Immigration patterns of the 1930s were dominated by the Great Depression, which hit the U.S. hard and lasted over ten years, not really ending until the outbreak of World War II. In the final

7 "A Look at the Record: The Facts Behind the Current Controversy Over Immigration." American Heritage Magazine, December 1981. Volume 33, Issue 1.8 Schultz, Jeffrey D. (2002). Encyclopedia of Minorities in American Politics: African Americans and Asian Americans. p. 284. ISBN 9781573561488. Retrieved 2010-03-25.9 A Nation of Immigrants". American Heritage Magazine. February/March 1994. Volume 45, Issue 1.10 Nicholas J. Evans ,"Indirect passage from Europe: Transmigration via the UK, 1836–1914", in Journal for Maritime Research , Volume 3, Issue 1 (2001), pp. 70–84.11 Wilson, Donna M; Northcott, Herbert C (2008). Dying and Death in Canada. Toronto: University of Toronto Press. p. 27. ISBN 9781551118734.12 Will, George P. (May 2, 2010). "The real immigration scare tactics". Washington, DC: Washington Post. pp. A17.13 "TURN OF THE CENTURY (1900–1910)". HoustonHistory.com14 "An Introduction to Bilingualism: Principles and Processes". Jeanette Altarriba, Roberto R. Heredia (2008). p.212. ISBN 080585135615 42 Stat. 5 (May 19, 1921.)16 Immigration Act of 1924, or Johnson–Reed Act, including the National Origins Act, and Asian Exclusion Act (P.L. 68-139, 43 Stat. 153, enacted May 26, 1924.)17 It is likely that the Anglo-American stereotypes of these various ethnicities were set in our collective consciousness during this period.18 "Old fears over new faces", The Seattle Times, September 21, 2006.19 United States Holocaust Memorial Museum.

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prosperous year before the Great Crash, 1929, there were 279,678 immigrants recorded.20 This dropped dramatically to the point where in 1933, only 23,068 came to the U.S.21 In the early 1930s, more people emigrated from the United States than immigrated to it.22

During this period, the U.S. government sponsored a Mexican Repatriation program which was intended to encourage people to voluntarily move to Mexico, but thousands were deported23 against their will.24 Altogether about 400,000 Mexicans were repatriated.25 The event, carried out by American authorities, took place without due process. Some 35,000 were deported, among many hundreds of thousands of other immigrants who were deported during this period. The Immigration and Naturalization Service targeted Mexicans because of "the proximity of the Mexican border, the physical distinctiveness of Mestizos, and easily identifiable barrios." 26 In the post-war era, in the heart of the McCarthy “Red Scare” xenophobic period, the Justice Department launched Operation Wetback, under which 1,075,168 Mexicans were deported in 1954.27

The Immigration and Nationality Act of 1965,28 also known as the Hart-Cellar Act, abolished the system of national-origin quotas. By equalizing immigration policies, the act resulted in new immigration from non-European nations, which changed the ethnic make-up of the United States.29 While European immigrants accounted for nearly 60% of the total foreign population in 1970, they accounted for only 15% in 2000.30 Immigration doubled between 1965 and 1970, and again between 1970 and 1990. In 1990, President George H. W. Bush (Bush 43) signed the Immigration Act of 1990, which increased legal immigration to the United States by 40%.31

Appointed by President Clinton, the U.S. Commission on Immigration Reform recommended reducing legal immigration from about 800,000 people per year to approximately 550,000.32 While an influx of new residents from different cultures presents some challenges, "the United

20 Persons Obtaining Legal Permanent Resident Status in the United States of America, Source: US Department of Homeland Security21 "A Look at the Record: The Facts Behind the Current Controversy Over Immigration". American Heritage Magazine. December 1981. Volume 33, Issue 1.22 A Great Depression?, by Steve H. Hanke, Cato Institute23 Thus presently, we see history repeating itself.24 Thernstrom, Harvard Guide to American Ethnic Groups (1980)25 The Great Depression and New Deal, by Joyce Bryant, Yale-New Haven Teachers Institute.26 Ruiz, Vicki L. (1998). From Out of the Shadows: Mexican Women in Twentieth-Century America. New York: Oxford University Press. ISBN 0-19-513099-5.27 Navarro, Armando, Mexicano political experience in occupied Aztlán (2005)28 P.L. 89-236.29 U.S. Senate, Subcommittee on Immigration and Naturalization of the Committee on the Judiciary, Washington, D.C., Feb. 10, 1965. pp. 1–3.30 "Trends in International Migration 2002: Continuous Reporting System on Migration". Organisation for Economic Co-Operation and Development (2003). OECD Publishing. p.280. ISBN 926419949731 "The Paper curtain: employer sanctions' implementation, impact, and reform". Michael Fix (1991). The Urban Institute. p.304. ISBN 087766550832 Plummer Alston Jones (2004). "Still struggling for equality: American public library services with minorities". Libraries Unlimited. p.154. ISBN 1591582431

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States has always been energized by its immigrant populations," said President Clinton in 1998. "America has constantly drawn strength and spirit from wave after wave of immigrants [...] They have proved to be the most restless, the most adventurous, the most innovative, the most industrious of people."33

An analysis of census data found that nearly eight million immigrants entered the United States from 2000 to 2005, more than in any other five-year period in the nation's history; an estimated 3.7 million of them, nearly half, entered illegally.34 Since 1986 Congress has passed seven amnesties for illegal immigrants.35 In 1986 president Ronald Reagan signed immigration reform36 that gave amnesty to 3 million illegal immigrants in the country.37 Hispanic immigrants were among the first victims of the late-2000s recession,38 but since the recession's end in June 2009; immigrants posted a net gain of 656,000 jobs. 1.1 million Immigrants were granted legal residence in 2009.39

The immigration laws in the United States have experienced uneven progress. During colonial times independent colonies created their immigration laws. While it is true that the very first attempt to naturalize foreigners was through the Naturalization Act of 1790, many years later the Chinese Exclusion Act was passed to stop the immigration of Chinese people.40 The Immigration Act of 1924 put a quota on how many immigrants are permitted, based on nationality. The Immigration and Nationality Act of 195241 led to the creation of the Immigration and Naturalization Service, the INS or as they say in the vernacular, “The Inmigración.”

The five major departments of the federal government involved in the immigration process are the Department of Homeland Security, the Department of Justice, the Department of State, the Department of Labor, and the Department of Health and Human Services. Of the five, the Department of Homeland Security, which replaced the INS, enforces immigration laws and bestows benefits on aliens.

It is subdivided into three distinct departments: US Citizenship and Immigration Services, Immigration and Customs Enforcement (ICE), and Customs and Border Protection (CBP.)

Every year, the Federal government conducts a Diversity Visa Lottery. The lottery grants citizens of other countries legal entry into the United States; however only citizens of countries "with low rates of immigration to the United States" are allowed to apply. 33 Mary E. Williams, Immigration. 2004. Page 69.34 Camarota, Steven A, Immigrants at Mid-Decade: A Snapshot of America's Foreign-Born Population in 2005. http://www.cis.org/articles/2005/back1405.html. Accessed March 6, 2012.35 "Debate Could Turn on a 7-Letter Word". The Washington Post. May 30, 2007.36 The Immigration Reform and Control Act (IRCA), P.L. 99-603, 100 Stat. 3359, enacted November 6, 1986, also known as the Simpson-Mazzoli Act.37 "A Reagan Legacy: Amnesty For Illegal Immigrants". NPR: National Public Radio. July 4, 201038 "Crisis hits Hispanic community hard". France24. February 27, 2009.39 “U.S. Legal Permanent Residents: 2009”. Office of Immigration Statistics Annual Flow Report.40 Chinese Exclusion Act of 1882.41 P.L. 82-414, 66 Stat. 163, enacted June 27, 1952, also known as the McCarran–Walter Act.

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Presently there are two different types of US visas: one for people seeking to live in the US; termed Immigrant Visas, and the other for people coming for limited durations termed Non-Immigrant Visas. The former visa has "per country-caps", and the latter does not. Most non-immigrant visas are for work purposes, and usually require an offer of employment from a US business. Other categories include student, family and tourist visas.

The United States allows more than 1 million aliens to become Legal Permanent Residents every year, which is more than any other country in the world.42

Immigration law became a serious political issue in the United States particularly after 9/11 – and nowhere more so recently than in the State of Alabama.

Under the Constitution of the United States, immigration has traditionally been a matter given to the federal government, not the states. However, the Constitution never uses the word immigration, so how is it that the rules for immigrants and quotas for countries are set by the federal government and not by the state governments? After all, as the 10th Amendment states, “all powers not delegated to the federal government are held by the states, or the people.”

The answer lies in judicial interpretation. The Supreme Court has ruled that the Congressional power to regulate naturalization, taken from Article 1, Section 8, includes the power to regulate immigration. See, for example, Hampton v. Mow Sun Wong43 in which the High Court held that it would not make sense to allow Congress to pass laws to determine how an immigrant becomes a naturalized resident if the Congress cannot determine how, or even if, that immigrant can come into the country in the first place. Just because the Constitution lacks the word immigration does not mean that it lacks the concept of immigration.

There is also an argument that immigration is an implied power of any sovereign nation, and as such, the federal government has the power to regulate immigration because the United States is a sovereign nation. While it is true that the United States is a sovereign nation, and it may be true that all sovereign nations have some powers inherent in that status, it is not necessary to determine if immigration is such a power that does not even require constitutional mention, because the Naturalization Clause44 handles the power. Thus, Professor Karl Manheim of Loyola Law School observes:

“States have no power to pass immigration laws because it’s an attribute of foreign affairs. Just as states can’t have their own foreign policies or enter into treaties, they can’t have their own immigration laws either.”45

42 American Visa Bureau (2011-12-22,) "US visas." 43 426 U.S. 88 (1976.)44 Fourteenth Amendment, Section 1, sentence 1.S45 Karl Manheim, Director of the Program for Law & Technology at the California Institute of Technology and Loyola Law School.

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Several states over the years have attempted to regulate the immigration of foreign nationals into their borders, most notably California, Arizona, Georgia and now, Alabama.

The Beason-Hammond Alabama Taxpayer and Citizen Protection Act, HB 56, (Act 2011-535) was signed into law by Alabama Governor Dr. Robert Bentley on June 9, 2011. It is hereafter referred to as “the Act.” It was modeled after Arizona’s SB 1070, which likewise generated a river of controversy.

Arizona’s SB 1070, given the arguably self-serving title, “Support Our Law Enforcement and Safe Neighborhoods Act,46” went into effect on April 23, 2010. Seven days later, the Governor signed into law a set of amendments to Senate Bill 1070 under the rubric, House Bill 2162.47

On July 6, 2010, the United States filed a Complaint in the United States District for the District of Arizona challenging the constitutionality of S.B. 1070, and it also filed a Motion requesting that the Court issue a preliminary injunction to enjoin Arizona from enforcing S.B. 1070 until the Court can make a final determination as to its constitutionality. The United States argued principally that the power to regulate immigration is vested exclusively in the federal government, and that the provisions of S.B. 1070 are therefore preempted by federal law.48

The United States Supreme Court, in December, 2011, granted the State of Arizona's petition for writ of certiorari in Arizona v. United States49 involving Arizona's controversial immigration statute, SB 1070. 

The petition for writ of certiorari filed by Arizona seeks review of the Ninth Circuit opinion upholding the district court's preliminary injunction against specific provisions of as SB 1070.   Arizona, represented by Paul Clement, contends it bears the brunt of illegal immigration and that the federal government is not sufficiently addressing the problem, setting the factual and political context for its claim that its statute is not preempted under the Supremacy Clause. 

The petition argued that "The Ninth Circuit’s rule50—that States may not take any investigative or enforcement action against aliens based on their civil violations of the immigration laws without an express permission slip from Congress—directly conflicts with the approach" taken in other circuits. 

The petition also argued that the Ninth Circuit opinion “contradicts our Federalism" by failing to recognize co-operative enforcement and implicitly assuming that immigration is a matter of nearly exclusive federal concern.  It also argues that the Ninth Circuit completely misconstrued preemption doctrine according to the petition, perhaps most egregiously when it allowed

46 2010 Arizona Session Laws, Chapter 113.47 2010 Arizona Session Laws, Chapter 211.1.48 703 F.Supp.2d 980 (D. Ariz., 2010.)49 Cert. granted, ___ U.S. ___ (Docket No. 11-182, 1911.)50 641 F.3d 339 (9th Cir., 2011.)

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"complaints by foreign government officials and the disagreement of the Executive Branch to trump congressional intent."

Alabama’s HB 56 is usually identified by protestors according to its House Bill number, HB 56. Its purpose was to “discourage illegal immigration” according to Section 2 of the text and statements by the sponsor. As you might remember, the model, Arizona SB 1070 made it a requirement for local police to investigate the citizenship status of anyone whom they considered “reasonably suspicious,” creating an atmosphere of xenophobia, fear and racial profiling that caused many to flee the state. That Arizona law is presently in the breast of the United Supreme Court, a fact that will become very important to Alabamians we shall see later.

Section 2 of the Alabama Act states:

The State of Alabama finds that illegal immigration is causing economic hardship and lawlessness in this state and that illegal immigration is encouraged when public agencies within this state provide public benefits without verifying immigration status. Because the costs incurred by school districts for the public elementary and secondary education of children who are aliens not lawfully present in the United States can adversely affect the availability of public education resources to students who are United States citizens or are aliens lawfully present in the United States, the State of Alabama determines that there is a compelling need for the State Board of Education to accurately measure and assess the population of students who are aliens not lawfully present in the United States, in order to forecast and plan for any impact that the presence such population may have on publicly funded education in this state.

The State of Alabama further finds that certain practices currently allowed in this state impede and obstruct the enforcement of federal immigration law, undermine the security of our borders, and impermissibly restrict the privileges and immunities of the citizens of Alabama.

Therefore, the people of the State of Alabama declare that it is a compelling public interest to discourage illegal immigration by requiring all agencies within this state to fully cooperate with federal immigration authorities in the enforcement of federal immigration laws. The State of Alabama also finds that other measures are necessary to ensure the integrity of various governmental programs and services.

Many citizens believe this is not a good law while many believe it addresses serious issues. A very wise man once said, “Render, therefore unto Caesar that which is Caesar’s. . .” This fits that category, therefore . . .51

Inter alia, the Act Declares “unlawfully present” aliens to be ineligible to receive “public benefits” or to obtain licenses/permits from state or local agencies. It requires employers to

51 Matthew 22:21.

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verify citizenship/lawful presence of its employees. Further, it makes it illegal to enter into a contract with an unlawfully present alien and proclaims it illegal to even assist such persons.

Some pertinent definitions include:

(1) ALIEN. Any person who is not a citizen or national of the United States, as described in 8 U.S.C. § 1101, et seq., and any amendments thereto.52  

(10) LAWFUL PRESENCE or LAWFULLY PRESENT. A person shall be regarded as an alien unlawfully present in the United States only if the person’s unlawful immigration status has been verified by the federal government pursuant to 8 U.S.C. § 1373(c ).

No officer of this state or any political subdivision of this state shall attempt to independently make a final determination of an alien’s immigration status. An alien possessing self-identification in any of the following forms is entitled to the presumption that he or she is an alien lawfully present in the United States:

a. A valid, unexpired Alabama driver’s license.

b. A valid, unexpired Alabama nondriver identification card.

c. A valid tribal enrollment card or other form of tribal identification bearing a photograph or other biometric identifier.

d. Any valid United States federal or state government issued identification document bearing a photograph or other biometric identifier, if issued by an entity that requires proof of lawful presence in the United States before issuance.

e. A foreign passport with an unexpired United States Visa and a corresponding stamp or notation by the United States Department of Homeland Security indicating the bearer’s admission to the United States.

f. A foreign passport issued by a visa waiver country with the corresponding entry stamp and unexpired duration of stay annotation or an I-94W form by the United States Department of Homeland Security indicating the bearer’s admission to the United States.

This is a confusing and feeble attempt53 to pretend that the person is presumed to be legal unless he has been “E-verified” not to be here illegally.  The bill does not make it clear how a person is brought under suspicion as being an alien. Profiling is certainly possible here. My friend, Mrs. Sitz, who has been a naturalized citizen for probably 30 years but is very Mexican looking will be immediately under suspicion whereas my friend, Candyce Dekruyff (a recently naturalized Canadian citizen) will not be merely because she looks like “an American,” (albeit with a funny accent, “eh?)

52 If one reads 8 USC § 1101, it basically defines an alien as anyone who is not legally in the country and who is not already a US citizen.53 In this writer’s view.

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The Act also defines:

(14) STATE-FUNDED ENTITY. Any governmental entity of the state or a political subdivision thereof or any other entity that receives any state monies. Any entity that receives any state grants will be subject to the law.

On August 1, 2011 two lawsuits were filed in the United States District for the Northern District of Alabama. The United States sued the State of Alabama and Governor Bentley, alleging that various provisions of Act No. 2011-535 are preempted by federal law. United States v. Alabama, Case No. 2:11-cv-02746-SLB (N.D. Ala., 2011.) 

A group of Church Leaders sued Governor Bentley, Attorney General Strange, and a district attorney.  Parsley v. Bentley, Case No. 5:11-cv-02736-SLB (N.D. Ala.)  The plaintiffs are: the Bishop of the Episcopal Church in the Diocese of Alabama; the Bishop of the North Alabama Conference of the United Methodist Church; the Roman Catholic Archbishop of Mobile; the Roman Catholic Bishop of Birmingham; the Benedictine Sisters of Cullman, Alabama, Inc.; and, the Benedictine Society of Alabama. The Church Leaders focused on Sections 13 and 27 of the Act, which they alleged violate their federal constitutional rights with respect to religion. 

The lower Court, the U.S. District Court for the Northern District of Alabama, Judge Blackburn, issued a preliminary injunction of Section 8 of HB56, as preempted by federal immigration law. 

HB 56 §8 provides:

An alien who is not lawfully present in the United States shall not be permitted to enroll in or attend any public postsecondary education institution in this state. An alien attending any public postsecondary institution in this state must either possess lawful permanent residence or an appropriate nonimmigrant visa under 8 U.S.C. § 1101, et seq. For the purposes of this section, a public postsecondary education institution officer may seek federal verification of an alien’s immigration status with the federal government pursuant to 8 U.S.C. § 1373(c). A public postsecondary education institution officer or official shall not attempt to independently make a final determination of whether an alien is lawfully present in the United States. Except as otherwise provided by law, an alien who is not lawfully present in the United States shall not be eligible for any postsecondary education benefit, including, but not limited to, scholarships, grants, or financial aid.

The District Judge found that Congressional intent was contrary and clear, and thus the state law was preempted.  Only Congress, the judge stated, may "classify aliens" including for postsecondary education.

Secondly, the Judge issued a preliminary injunction of the last sentences of Sections 10(e), 11(e), and 13(h) based on the Compulsory Process Clause of the Sixth Amendment.  These sentences provide that "A court of this state shall consider only the federal government’s verification in determining whether an alien is lawfully present in the United States."   The judge found that to

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the extent Sections 10(e), 11(e), and 13(h) of H.B. 56 are interpreted as allowing a defendant to be convicted based on a certificate of nonexistent record (CNR) without testimony from the clerk or officer preparing the report, these sections violate the Confrontation Clause, but because there is no evidence this has occurred, the Confrontation Clause argument does not merit a preliminary injunction. 

As to the Compulsory Process Clause challenge, however, Judge Blackburn ruled that by "limiting evidence admissible in a state-court proceeding to only the federal government verification of lawful presence, Sections 10(e), 11(e), and 13(h) deny every person accused of violating Sections 10, 11 or 13 of H.B. 56 the constitutionally-protected right to present a defense. By denying accused individuals the opportunity to prove lawful presence, Alabama has denied all individuals charged under these sections with their right to compulsory process."

Thirdly, the Judge had issued a preliminary injunction of Sections 11 (f) and (g) based on the First Amendment.  These provisions provide:

(f) It is unlawful for an occupant of a motor vehicle that is stopped on a street, roadway, or highway to attempt to hire or hire and pick up passengers for work at a different location if the motor vehicle blocks or impedes the normal movement of traffic.(g) It is unlawful for a person to enter a motor vehicle that is stopped on a street, roadway or highway in order to be hired by an occupant of the motor vehicle and to be transported to work at a different location if the motor vehicle blocks or impedes the normal movement of traffic.

The judge found that these provisions were not content neutral because they applied to a particular subject matter of expression - - - solicitation of employment - - - rather than to particular conduct, such as blocking traffic.  Yet the judge also analyzed the provisions under the commercial speech doctrine Alabama advocated, finding them failing to satisfy that lower standard.

October 14, the United States Court of Appeals for the 11th Circuit approved the U.S. Justice Department's request to temporarily block parts of Alabama’s law pending the outcome of an appeal. 54 Among them is the requirement that public schools determine the immigration status of their students. But they did have to report back to the state information about which students didn't have birth certificates or other documents showing that they are here legally.

The court blocked enforcement a provision that makes it a crime not to have documents proving you are in the country legally. In other words, everybody had to have their papers on them or they could be subjected to arrest on a misdemeanor charge.

Thus, on appeal, the 11th Circuit enjoined the enforcement of Sections 10 and 28, which permit law enforcement to charge immigrants, unable to demonstrate lawful presence in the United States, with a misdemeanor and require schools to check new students' immigration status. However, the court denied an injunction on Sections 12, 18, 27 and 30, provisions that:

54 See Hispanic Coalition of Ala. et al. v. Governor, et al.

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Allow police to check immigration status during traffic stops, based on reasonable suspicion, bar Alabama courts from enforcing contracts involving an illegal immigrant party, and make it a felony for an illegal immigrant to apply for a driver's license, license plate or non-driver identification card.

The court also refused to halt a provision that would require police in Alabama to do immigration status checks under certain circumstances. The Court did not deal with Section 13 “giving assistance” to undocumented persons (the lower court had denied an injunction as moot for want of standing.)

On March 8, 2012, the Eleventh Circuit issued an order55 additionally enjoining the State from enforcing Sections 27 and 30 of the Act during the appeal.  Again, this is an injunction pending appeal, rather than a final decision on the merits.  The Court announced at oral argument that it will not issue a final decision until after the U.S. Supreme Court renders its decision in a pending Arizona case.

Thus, as it stands until the United States Supreme Court rules on the Arizona case,56 the following sections of HB 56 are temporarily enjoined: 10, 27, 28, and 30. These sections deal, respectively with:

Need to carry ID; Inability to make contracts; School requirements; and State permits.

Enjoined Section 10 provides:

(a) In addition to any violation of federal law, a person is guilty of willful failure to complete or carry an alien registration document if the person is in violation of 8 U.S.C. Section 1304(e) or 8 U.S.C. Section 1306(a), and the person is an alien unlawfully present in the United States. (b) In the enforcement of this section, an alien's immigration status shall be determined by verification of the alien's immigration status with the federal government pursuant to 8 U.S.C. Section 1373(c). A law enforcement officer shall not attempt to independently make a final determination of whether an alien is lawfully present in the United States.

(c) A law enforcement official or agency of this state or a county, city, or other political subdivision of this state may not consider race, color, or national origin in the enforcement of this section except to the extent permitted by the United States Constitution and the Constitution of Alabama of 1901.

(d) This section does not apply to a person who maintains authorization from the federal government to be present in the United States.

55 United States v. Alabama, (Cir. 11, Docket No. 11-14535-CC, March 8, 2012,) consolidated with Hispanic Coalition of Alabama, et al. v. Governor, et al. (supra,) and Parsley v. Bentley, et al. (supra.)56 See supra.

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(e) Any record that relates to the immigration status of a person is admissible in any court of this state without further foundation or testimony from a custodian of records if the record is certified as authentic by the federal government agency that is responsible for maintaining the record. A verification of an alien's immigration status received from the federal government pursuant to 8 U.S.C. Section 1373(c) shall constitute proof of that alien's status. A court of this state shall consider only the federal government's verification in determining whether an alien is lawfully present in the United States.

(f) An alien unlawfully present in the United States who is in violation of this section shall be guilty of a Class C misdemeanor and subject to a fine of not more than one hundred dollars ($100) and not more than 30 days in jail.

(g) A court shall collect the assessments prescribed in subsection (f) and remit 50 percent of the assessments to the general fund of the local government where the person was apprehended to be earmarked for law enforcement purposes, 25 percent of the assessments to the Alabama Department of Homeland Security, and 25 percent of the assessments to the Department of Public Safety.

Enjoined Section 27 provides:

(a) No court of this state shall enforce the terms of, or otherwise regard as valid, any contract between a party and an alien unlawfully present in the United States, if the party had direct or constructive knowledge that the alien was unlawfully present in the United States at the time the contract was entered into, and the performance of the contract required the alien to remain unlawfully present in the United States for more than 24 hours after the time the contract was entered into or performance could not reasonably be expected to occur without such remaining.

(b) This section shall not apply to a contract for lodging for one night, a contract for the purchase of food to be consumed by the alien, a contract for medical services, or a contract for transportation of the alien that is intended to facilitate the alien's return to his or her country of origin.

(c) This section shall not apply to a contract authorized by federal law.

(d) In proceedings of the court, the determination of whether an alien is unlawfully present in the United States shall be made by the federal government, pursuant to 8 U.S.C. Section 1373(c). The court shall consider only the federal government's determination when deciding whether an alien is unlawfully present in the United States. The court may take judicial notice of any verification of an individual's immigration status previously provided by the federal government and may request the federal government to provide further automated or testimonial verification.

Enjoined Section 28 provides:

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(a)(1) Every public elementary and secondary school in this state, at the time of enrollment in kindergarten or any grade in such school, shall determine whether the student enrolling in public school was born outside the jurisdiction of the United States or is the child of an alien not lawfully present in the United States and qualifies for assignment to an English as Second Language class or other remedial program.

(2) The public school, when making the determination required by subdivision (1), shall rely upon presentation of the student's original birth certificate, or a certified copy thereof.

(3) If, upon review of the student's birth certificate, it is determined that the student was born outside the jurisdiction of the United States or is the child of an alien not lawfully present in the United States, or where such certificate is not available for any reason, the parent, guardian, or legal custodian of the student shall notify the school within 30 days of the date of the student's enrollment of the actual citizenship or immigration status of the student under federal law.

(4) Notification shall consist of both of the following: a. The presentation for inspection, to a school official designated for such purpose by the school district in which the child is enrolled, of official documentation establishing the citizenship and, in the case of an alien, the immigration status of the student, or alternatively by submission of a notarized copy of such documentation to such official. b. Attestation by the parent, guardian, or legal custodian, under penalty of perjury, that the document states the true identity of the child. If the student or his or her parent, guardian, or legal representative possesses no such documentation but nevertheless maintains that the student is either a United States citizen or an alien lawfully present in the United States, the parent, guardian, or legal representative of the student may sign a declaration so stating, under penalty of perjury.

(5) If no such documentation or declaration is presented, the school official shall presume for the purposes of reporting under this section that the student is an alien unlawfully present in the United States.

(b) Each school district in this state shall collect and compile data as required by this section.

(c) Each school district shall submit to the State Board of Education an annual report listing all data obtained pursuant to this section.

(d)(1) The State Board of Education shall compile and submit an annual public report to the Legislature.

(2) The report shall provide data, aggregated by public school, regarding the numbers of United States citizens, of lawfully present aliens by immigration classification, and of aliens believed to be unlawfully present in the United States

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enrolled at all primary and secondary public schools in this state. The report shall also provide the number of students in each category participating in English as a Second Language Programs enrolled at such schools.

(3) The report shall analyze and identify the effects upon the standard or quality of education provided to students who are citizens of the United States residing in Alabama that may have occurred, or are expected to occur in the future, as a consequence of the enrollment of students who are aliens not lawfully present in the United States.

(4) The report shall analyze and itemize the fiscal costs to the state and political subdivisions thereof of providing educational instruction, computers, textbooks and other supplies, free or discounted school meals, and extracurricular activities to students who are aliens not lawfully present in the United States.

(5) The State Board of Education shall prepare and issue objective baseline criteria for identifying and assessing the other educational impacts on the quality of education provided to students who are citizens of the United States, due to the enrollment of aliens who are not lawfully present in the United states, in addition to the statistical data on citizenship and immigration status and English as a Second Language enrollment required by this act. The State Board of Education may contract with reputable scholars and research institutions to identify and validate such criteria. The State Board of Education shall assess such educational impacts and include such assessments in its reports to the Legislature.

(e) Public disclosure by any person of information obtained pursuant to this section which personally identifies any student shall be unlawful, except for purposes permitted pursuant to 8 U.S.C. Sections 1373 and 1644. Any person intending to make a public disclosure of information that is classified as confidential under this section, on the ground that such disclosure constitutes a use permitted by federal law, shall first apply to the Attorney General and receive a waiver of confidentiality from the requirements of this subsection.

(f) A student whose personal identity has been negligently or intentionally disclosed in violation of this section shall be deemed to have suffered an invasion of the student's right to privacy. The student shall have a civil remedy for such violation against the agency or person that has made the unauthorized disclosure.

(g) The State Board of Education shall construe all provisions of this section in conformity with federal law.

(h) This section shall be enforced without regard to race, religion, gender, ethnicity, or national origin.

Enjoined Section 30 provides:

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(a) For the purposes of this section, "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. "Business transaction" does not include applying for a marriage license.

(b) An alien not lawfully present in the United States shall not enter into or attempt to enter into a business transaction with the state or a political subdivision of the state and no person shall enter into a business transaction or attempt to enter into a business transaction on behalf of an alien not lawfully present in the United States.

(c) Any person entering into a business transaction or attempting to enter into a business transaction with this state or a political subdivision of this state shall be required to demonstrate his or her United States citizenship, or if he or she is an alien, his or her lawful presence in the United States to the person conducting the business transaction on behalf of this state or a political subdivision of this state. United States citizenship shall be demonstrated by presentation of one of the documents listed in Section 29(k). An alien's lawful presence in the United States shall be demonstrated by this state's or a political subdivision of this state's verification of the alien's lawful presence through the Systematic Alien Verification for Entitlements program operated by the Department of Homeland Security, or by other verification with the Department of Homeland Security pursuant to 8 U.S.C. Section 1373(c).

(d) A violation of this section is a Class C felony.

(e) An agency of this state or a county, city, town, or other political subdivision of this state may not consider race, color, or national origin in the enforcement of this section except to the extent permitted by the United States Constitution or the Constitution of Alabama of 1901.

(f) In the enforcement of this section, an alien's immigration status shall be determined by verification of the alien's immigration status with the federal government pursuant to 8 U.S.C. Section 1373(c). An official of this state or political subdivision of this state shall not attempt to independently make a final determination of whether an alien is lawfully present in the United States.

In Central Alabama Fair Housing Center, et al. v. Julie Magee, et al. the Alabama Supreme Court enjoined the Department of Revenue’s policy stemming from a provision of HB 56 that criminalized “business transactions” with the state by undocumented immigrants.

In December, 2011, the Court enjoined enforcement of a regulation requiring any person who attempts to pay a fee to prove citizenship/lawful immigration status. It is not, under HB 56 illegal to apply for such. This case is probably moot due to the 11th Circuit order of March 8, supra.

The Alabama Attorney General reported as of November 4, 2011 that in late July, 2011, five individuals filed suit against Governor Bentley and Attorney General Strange in Montgomery

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County Circuit Court styled Doe v. Bentley, Case No. CV-2011-882 (Montgomery County Circuit Court). Two of the plaintiffs were illegal aliens, two were citizens originally from Mexico, and one was a citizen married to an illegal alien. The plaintiffs filed a motion for a preliminary injunction early on, and then withdrew it. They also amended their Complaint twice, asserting federal and state claims. Hearings were held and on November 3, 2011, the plaintiffs moved to voluntarily dismiss their suit. The next day, on November 4, 2011, the Court granted the plaintiff’s motion dismissing the case. 

In late 2011, a German born Manager of the Tuscaloosa Mercedes-Benz plant was arrested in Tuscaloosa for having no driver’s license thus being unable to establish lawful presence in the State. After some embarrassing moments, the case was dismissed. Later, a Japanese-born employee of the Honda plant in Lincoln was arrested in North Alabama. The case was dismissed when it was discovered that the employee actually had in his possession and had presented to the policeman, a valid international driver’s license. The Governor has personally apologized to Germany and to Japan and stated “we want your business.”

No one has as of yet arrested for “giving assistance to” undocumented persons in violation of the Act. At this point, it serves the reader well to understand the potential general effects on Public Health.

"I don't want to spread fear, but any time people are afraid to get medical care there are potential complications.” - Dr. Jim McVay, ADPH.

Realistically, the possible public health consequences were listed in a David Letterman-type “Top Ten” List by the Center for American Progress Immigration Team on November 14, 2011.57

1. Children may not get immunization program that protects all residents against diseases such as chicken pox, measles, polio, and even the flu. Health workers in Alabama report that people are afraid to come to their clinics for flu shots. Some parents may be afraid to get flu shots for themselves or to get required children’s immunizations. A key safeguard of public health is a robust their children, even though the law technically says that lawful status is not required for immunizations, our whole society is put at risk.

2. Communicable diseases may spread. Another bedrock of public health is accessible screening and treatment programs for communicable diseases. Tuberculosis and hepatitis are contagious diseases that are detected only through vigorous testing and cured only through consistent treatment. Alabama public-health officials warned the state years ago that if undocumented residents of Alabama were afraid of the immigration consequences of going to a health clinic, there would be increased risk of “severe health problems and the spread of infections.”

3. Mothers may not get adequate prenatal care. It is common knowledge that healthy mothers are more likely to give birth to healthy babies. The Alabama law does not require lawful status for prenatal care, but undocumented mothers who are afraid to go to health clinics for fear

57 http://www.americanprogress.org/issues/2011/11/alabama_top10_public_health.html. Accessed March 6, 2012.

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of being asked for “papers please” won’t get the care they need. The head of the Alabama Department of Public Health, Don Williamson, warned in testimony in 2007 that there had already been a sharp increase in low-birthweight babies and infant deaths among the Hispanic population in the state and that fewer than half of Hispanic mothers had received prenatal care. Williamson urged that the state avoid establishing “restrictions for programs that serve pregnant women, infants and children.”

4. Babies born to mothers who have not received good prenatal care may require additional medical care and will be a challenge to the public-health services in the state. As Dr. Williamson noted in his testimony, lack of access to maternal and infant preventative care can result in medical problems becoming “serious and more expensive.”

5. 5. U.S. citizen children and those in lawful status may not get adequate health care. Citizen children of parents who are afraid to go to clinics, or whose parents aren’t sure if they are barred by the “business transaction” provision of the law, won’t get the health care they need and deserve. “Waiting rooms that once were full at some county health clinics just a few weeks ago now have empty seats because Hispanic patients stopped showing up,” reports Dr. Jim McVay of the Alabama Department of Public Health. Citizen kids will suffer lifetime consequences that follow from not getting adequate health care when they are young.

6. Water may be less safe. Clean water is a fundamental requirement for a healthy society. Serious public-health risks such as E. coli infections and even cholera can spread through contaminated water. If residents of Alabama can’t get public water and sewer service, and can’t even get permits to repair or install safe septic tanks, they will be forced to use potentially unsafe water, which could expose them to health risks and then others they come in contact with. Broken septic systems also can contaminate the public water supply. Everyone will be exposed to unnecessary health risks and dangers.

7. Restaurants may be unable to get health permits. The Alabama Department of Public Health is now requiring proof of citizenship for health permits for restaurants. While many restaurant owners who can’t meet this requirement will shut down, others may simply try to operate underground without health permits, at least until overworked health inspectors locate and stop them. The risk to public health will only increase under these conditions.

8. Food supplies may be less safe. Safe food is a fundamental requirement for a healthy society. Outbreaks of E. coli in the food supply have already alarmed the public in recent months. If residents of Alabama are unable to obtain septic permits, the resulting contaminated water will run off into farms and fields, and the food supply will be less safe. Public risk of food-borne disease will increase.

9. Public health costs will increase. Alabama’s new immigration law may temporarily reduce the cost of providing medical care to undocumented residents, but it will greatly increase the overall cost of medical care for all residents of Alabama who will be exposed to increased risk and disease as the result of the shortsighted policies listed above. The more people delay primary care, for example, the greater the likelihood that they will require more expensive emergency care down the road.

10. Bottom line: All of the people of Alabama may suffer negative health consequences. The 4.8 million people of Alabama will suffer unnecessary and increased public health risks as the result of a law intended to punish and drive out 2.5 percent of the population. Such high risk for such alleged benefit does a terrible disservice to all of the people of Alabama.

The Center also has a “Top Ten” “List of things You Should Know about” the Act.

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1. 2.5 percent—The percentage of Alabama’s population that is undocumented. That makes Alabama 20th in the nation in terms of the number of undocumented immigrants (120,000) residing there, well below states such as California (more than 2 million) or even Colorado (180,000).2. $40 million—A conservative estimate of how much Alabama’s economy would contract if only 10,000 undocumented immigrants stopped working in the state as a result of H.B. 56.3. $130 million—The amount Alabama’s undocumented immigrants paid in taxes in 2010. These include state and local, income, property, and consumption taxes. This revenue would be lost if H.B. 56 were to do its job and drive all unauthorized immigrants from the state.4. $300,000—The amount one farmer, Chad Smith of Smith Farms, estimates he has lost because of labor shortages in the wake of H.B. 56. Another farmer, Brian Cash of K&B Farm, estimates that he lost $100,000 in one single month because of the law.5. 2,285—The number of Hispanic students who did not attend class on the first Monday following the judge’s ruling upholding key parts of H.B. 56., including the provision mandating schools to check the immigration status of students.6. 15 percent—The percentage of absent Hispanic students (at peak) too afraid to attend school, comprising 5,143 children, since the law went into effect.7. 1.3 percent—The percentage of Alabama schoolchildren who are not citizens of the United States. H.B. 56 intends to expend considerable resources to drive out a small percentage of the school-age population.8. 2,000—The number of calls made in the first week to the Southern Poverty Law Center’s hotline. Calls to hotline are reporting civil rights concerns related to the impact of H.B. 56, highlighting the extreme anxiety among the immigrant population.9. $1.9 million—The amount of money that was spent by Arizona to defend S.B. 1070, a similar anti-immigrant law. The Arizona litigation is ongoing and can expect higher costs. With Alabama already facing multiple rounds of legal challenges, their costs are certain to be just as high, if not higher.10. $2.8 billion—What it would cost the government if they were to deport all 120,000 undocumented migrants in Alabama. Each deportation costs American taxpayers $23,482.58

Thus the following sections if allowed to stand, could have an immediate effect on health and social care:

Section 7: Public Benefits - (effective.) Section 9: Contracts - (effective.) Section 29: Birth Certificates - (Enjoined.) Section 30: Business Transactions - (Enjoined.)

The affect on directly offering health care services is apparent under Section 7. An alien that is not legally present in the U.S. is not entitled to receive certain public benefits. As already defined, an alien is a person who is not a U.S. citizen or national. The term “public benefits” 58 http://www.americanprogress.org/issues/2011/11/top_10_alabama_immigration.html. Accessed March 6, 2012.

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includes certain healthcare services including well-baby checkups. However and admittedly, many services/programs are excluded or exempt from the citizenship/lawful presence verification requirements pursuant to state or federal law/rules/guidance. Exempt programs or services include the following:

WIC, Immunizations, In kind disaster relief, Communicable disease, Pre-natal care, Emergency medical treatment, Child or adult protective services, Family planning ABCCEDP (Cancer screening,) and Tobacco Cessation programs.

Section 9 could affect the direct administration of health and social care licenses in the following programs:

Environmental, Emergency Medical Services, Radiation Control, Health Care Facilities, and Issuance of Birth Certificates.

Likewise, verification of U.S. Citizenship and lawful presence of aliens participating in the following programs is also not required as the Alabama Medicaid Agency determines eligibility to receive the services:

Patient First, Plan First, EPSDT, Dental (Medicaid clients), and Home Health (Medicaid/Medicare clients.)

The problem with permits obtains because an “alien not lawfully present in U.S. may not enter into a ‘business transaction’ with the state. To contract, the Act requires that every “person entering into a business transaction shall be required to demonstrate U.S. citizenship or lawful presence in the U.S.” A “business transaction” includes licenses/permits issued to individuals by ADPH. However, Attorney General Opinion 2011-01 holds that this provision is to be enforced only when “SAVEd” and ADPH is still “lost.” That is to say, if an agency does not have a SAVE account, it doesn’t have to verify until it gets one. ADPH has applied as required by the Act, but it has been months and ADPH has not yet been notified that it is approved. Thus, ADPH does not apply this requirement of the Act.

However, Act 2011-535 only impacts the licensing and permitting of individuals. It does not impact the licensing or permitting of business entities, other than sole proprietorships Thus, a

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partnership or corporation which runs a restaurant or other potential permitee is not subject to “SAVing.”

For purposes of implementing the Act, an applicant for a license/permit is the individual to whom a permit/license is issued, not necessarily the person signing or submitting the application. It is the applicant’s citizenship/lawful presence that must be determined.

How do you determine if an applicant is a business entity other than sole proprietorship? Check the application for the name of the business to which the permit/license is issued - Inc., LLC, and LLP indicate types of business entities other than sole proprietorships. You must require the applicant to provide the legal name of the business on the application and the type of business entity.

However, verification is required for Non-Medicaid dental services, private pay or indigent home health and social services, prostate screenings, and non-Medicaid covered services provided to walk-in clients. Example: blood pressure checks and administration of patient carried medication prescribed by outside provider.

As stated supra., CHIP is already required to verify citizenship or lawful presence of aliens but is authorized by Act 2011-535 to utilize other means approved by the Federal government. ADPH CHIP already has an account with SAVE and already verifies applicants. An attachment is a list of benefits/programs and whether included in prohibition or excluded.

Section 15 of the Act requires employment verification. Beginning in April, 2012, all employers, including state agencies must E-verify all new hires using SAVE, an inter-governmental initiative designed to aid benefit-granting agencies in determining an applicant's immigration status, and thereby ostensibly ensuring that only entitled applicants receive federal, state, or local public benefits and licenses. The Program is an information service for benefit-issuing agencies, institutions, licensing bureaus, and other governmental entities.

The means of verifying include the following. Attachment 1 is the form used by ADPH to verify.

Completion of a declaration form by client/applicant. Provision of documents demonstrating U.S. citizenship. Provision of documents demonstrating lawful presence of an alien AND verification of

lawful presence through the federal government’s Systematic Alien Verification for Entitlements (SAVE) Program or

Rely on documents provided by client and determinations made by SAVE. Determinations of citizenship cannot be made based upon race, color, or national origin.

One method of verifications is by personal declaration. They file a Declaration Form which must be submitted when initially presenting for health and social services and applying for or renewing permits or licenses. It is important to ensure that all sections are completed. The application process is incomplete without a properly completed declaration form. You should not issue license or provide a service if it is incomplete. The applicant must sign and date form. A parent or legal guardian may sign the form on behalf of the minor receiving services

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If the applicant declares himself/herself to be U.S. citizen, he/she must present a document demonstrating such from List A. A valid Alabama driver’s license is acceptable. A valid driver’s license from another state may not be. A legible copy of a document indicating U.S. citizenship is also acceptable.

If the applicant declares to be a lawfully present alien, he/she must present a document demonstrating such. Federal law requires non-citizens 18 years or older to have immigration documentation in their possession at all times. Acceptable forms of documentation are found in List B and include so-called “green cards.”

Most non-citizen registration documents may be photocopied. Any INS document that cannot be photocopied will have a warning printed on the document. Do not photocopy an INS document with a warning not to copy. Information from the document including, but not necessarily limited to, the full name of the applicant, the date of birth, and the alien registration number on the document may be communicated to the designated SAVE user.

If the applicant declares to be a lawfully present alien and provides supporting documentation from List B, provide information from the document to the designated SAVE user for your office to verify lawful presence through SAVE. The SAVE response is generally instantaneous.

Likewise, the following may be used to demonstrate lawful presence of an alien.

(Remainder of page intentionally left blank.)

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Below is a flow chart of services and how the field practitioner makes a determination as to whether to render services.

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SAVE is an inter-governmental initiative designed to aid benefit-granting agencies in determining an applicant's immigration status, and thereby ensure that only entitled applicants receive federal, state, or local public benefits and licenses. The Program is an information service for benefit-issuing agencies, institutions, licensing bureaus, and other governmental entities.It is important to note that the SAVE Program does not make determinations on any applicant's eligibility for a specific benefit or license. Neither does SAVE verify status for employment. To verify the status of a new employee, one must go to: "E-Verify Employment Verification Program.”

The SAVE Program uses electronic and paper records for accessing information to verify an applicant’s immigration status. As stated, earlier, ADPH is in the process of registering to use SAVE. The process may take 60-90 days. Only designated users may access the SAVE Program.

The eligibility of an applicant cannot be based upon an applicant’s race, color, or national origin, therefore you should not single out individuals who look or sound foreign for closer scrutiny or require them to provide more documentation of citizenship or immigration status than what is required. Decisions about U.S. citizenship shall only be based upon documentation provided.

Under the Act, ADPH must provide a certified copy of a birth certificate free of charge for the purpose of registering to vote in this state. A sworn affidavit is required stating that the person plans to vote in this state and does not possess documents that constitute evidence of U.S. citizenship. ADPH has found that while it has had a few requests for these, there have not really been many requests.

Hospitals and EMTALA. The Act has a possible conflict with the federal Emergency Medical Treatment and Labor Act (EMTALA).59 Under EMTALA, to protect against hospitals refusing patients who cannot pay or who do not have insurance, the hospital must perform an emergency screening examination, provide emergency medical care until the condition is resolved or stabilized and the patient is able to provide self-care following discharge, or if unable, can receive needed continual care. The hospital must transfer the patient if it is unable to care for the patient.

There are, however, emergency exceptions – a hospital may not turn away any person regardless of nationality or immigration status if such person needs emergency care and may not discharge such person until stable, though law enforcement may be used to keep them secure. Also applies to hospital-based clinics/services (EMS.) EMTALA does not apply to other health care providers. HB 56 excludes “emergency treatment.”

The quandary is when a person is brought into a publically supported hospital on an emergency basis, is stabilized and treated and the emergency situation brought under control and a subsequent condition is found while in hospital. Under the Act, the hospital may not render services to the person for subsequent, non-emergent conditions.

59 42 U.S.C. § 1395dd.

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HIPAA Consequences. Under the Health Information Portability and Accountability Act (HIPAA),60 a covered entity may, but is not required to disclose protected health information (PHI) without a patient’s consent if such disclosure is required by law to: follow a court order or comply with subpoena, locate a fugitive or suspect alert law enforcement of a crime taking place on premises (I.E. violating Alabama Immigration Law.) HIPAA, itself does not require disclosure, it is permissive only. Even so, disclosures must be only “minimum necessary” PHI.

This could present a technical conflict with the required reporters provision of the Act.

Required Reporters. State employees, only, are required reporters under HB 56. Required reporters have a legal duty to inform the authorities of violations of the law. See: 13A-10-2, Code of Alabama 1975. Failure to do so is a misdemeanor offense. This duty does not apply to private citizens. Thus, an employee of a publicly funded hospital that does not inform authorities of the undocumented status of a patient is in technical violation of HB 56. Contrawise, if the employee does report such, he/she is in technical violation of HIPAA.

Proposed Amendments. In recognition of the controversy and in response to objections by certain religious, law enforcement and advocacy groups, both Gov. Bentley and legislators have pledged to introduce some revisions to HB 56. However, they have cautioned that such amendments will be only minor in scope and that the overall tough will not be compromised.

For example, the House Public Safety and Homeland Security Committee passed a bill61 in early February that would allow military identification to be presented as proof of citizenship when conducting official government business or purchasing car tags.

However, other legislators feel that these proposed changes are missing the mark and are instead proposing their own amendments. For example, Senator Gerald Dial (R-Lineville) -- who previously voted in favor of the bill -- has now introduced a measure calling for amendments to HB 56 based in part on the recommendations of the Alabama Attorney General. Some of these amendments include:

A Good Samaritan clause so that those who provide assistance to an undocumented immigrant wouldn't face potential criminal charges;

A measure preventing teachers from verifying the immigration status of students; and A measure allowing military IDs to be accepted as identification for all circumstances.

Sen. Billy Beasley (D-Clayton) has pre-filed a bill seeking to repeal the law. However, he already admits that the bill faces a real challenge in the Republican-dominated state legislature. Likewise Sen. Vivian Figures and others filed SB-41 and Rep. Todd filed HB-106 which would repeal HB 56. HB-256 by Rep. J. Hubbard would “clarify” the provisions of HB 56 requiring schools to ID students. SB 57, 75 and 195 all deal with the E-Verify provisions.

60 P.L. 104-191, 110 Stat. 1936, (enacted August 21, 1996,) as amended by Subtitle D of the Health Information Technology for Economic and Clinical Health Act (HITECH Act), enacted as part of the American Recovery and Reinvestment Act of 2009, P.L. 111-5.61 HB-413.

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Though there are a few other bills which propose minor amendments, I find no proposed amendments that would significantly change the substance of HB 56 short of the bills proposing outright repeal. As Sen. Beasley observed, that prospect is very dim indeed.

Summary. HB 56 in substantially its present is not only the law in Alabama, but it appears that it will continue to be the law for the foreseeable future. If that is the case, the State’s General Fund which has an enormous shortfall this year, is in for even leaner times.

A recent study62 by Dr. Samuel Addy, an economist at the University of Alabama, looked into the costs and benefits of Alabama’s HB 56 immigration law and found that the legislation is actually “rather costly to the state.” The Addy report found that HB 56 would cause Alabama to lose about 70,000 to 140,000 jobs, $2.3 billion to $10.8 billion in GDP (that is 1.3 to 6.2 percent of the economy), $56.7 million to $264.5 million in state income and sales taxes and $20 million to $93.1 million in local taxes.

The report estimates that HB 56 will cause between 40,000 and 80,000 workers to leave the state each year.  “Some say that all of these jobs will be filled by unemployed legal residents … but you can’t replace all the workers, no matter what you do. The economy shrinks,” said Dr. Addy in a conference call.

Most of Alabama’s 85,000 undocumented workers are in the agriculture, construction, accommodation and food services, and drinking places sectors, according to the study. Undocumented workers make up about 24% of the workforce for these sectors in Alabama. It won’t be easy to fill all of these jobs even in a distressed economy, according to Dr. Addy.

For an interesting video see: November 15, 2011 “Rock Center with Brian Williams.”http://www.bing.com/videos/watch/video/help-not-wanted-alabama-immigration-law-sparks-feud/60bci5h

62 Center for Business and Economic Research. Culverhouse School of Business, University of Alabama. http://cber.cba.ua.edu/New%20AL%20Immigration%20Law%20-%20Costs%20and%20Benefits.pdf. Accessed March 8, 2012.

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ALABAMA DEPARTMENT OF PUBLIC HEALTHDECLARATION OF CITIZENSHIP AND LAWFUL PRESENCE OF AN