Immigration


In response to an inquiry from GOP Senator Del Marsh,  Legislative Reference Service Director Jerry Bassett issued an opinion of HB56, the Alabama Anti-Immigration Law. The independent service confirms that law exposes churches to criminal prosecution, exactly what has been said time and time and time and time and time and time and time and time  again:

A church’s charitable activity would most likely run afoul of the act when transportation or shelter is provided to unlawfully present persons if these actions are deemed to be unlawful transporting or harboring.”

The letter notes a key element of the law: The person being prosecuted must have knowledge of the immigrant’s illegal status or recklessly disregards it. If churches knowingly and recklessly assist illegal immigrants, they could face sanctions, the letter warns.

“If a church engages in a program that offers shelter primarily directed toward immigrant groups, and it is common knowledge in the community that this group is comprised of unlawfully present aliens,” the letter reads, “a court could conclude that the church ‘recklessly disregarded’ that the benefits provided were to unlawfully present aliens.”

A few points of comment:

Mikey Hammon and Scott Beason do not care about the laws impact on churches: this “unintended consequence.” They purposely excluded the church exemptions because they believe churches are actually “importing” illegals into the state “because they believe that is a good thing.” As shown by the article:

The bill’s lead sponsor, Rep. Micky Hammon, R-Decatur, said the law is not intended to interfere with the practice of religion, and he thinks some of the concerns are “exaggerated.”

“I’m very confident if we do see unintended consequences, we will address those,” Hammon said. “But we will not make the law weaker, and we will not allow Alabama to be a sanctuary state.”

In their minds, providing an exception for churches is making the law “weak.” Remember, these two intentionally and specifically stripped the Senate bill of exceptions and exemptions for churches!

 

In this debate, you can feel that these Republican icons, at least, recognized the complexity of the issue.

Sen. Scott Beason published his defense of HB56, the Alabama Anti-Immigration Law, in the USA Today op-ed. The crux of his argument was:

Alabama has passed a law that is being decried as draconian, racist, outrageous, inhumane, harsh, cruel, too far reaching, etc. People are surprised to find that most of Alabama’s new law mirrors current United States immigration law. The state of Alabama and the federal government now have similar laws, but Alabama plans to enforce them.

Does HB56 “mirror” federal law?  This “mirrors” language has become a political talking point for supporters of this law (Bentley, Rush Limbaugh). It is, in fact, the legal theory raised in defense of HB56.

I think Senator Beason will be surprised to learn that it does not mirror current immigration law.

First, the description of HB56 as a mirror of federal law is a false description.  “To mirror” something is to to reflect, represent, follow, mimic, imitate or depict faithfully. Beason-Hammon does not simply follow federal law, it creates crimes entirely new (e.g., those that punish workers, not employers), and even when they rely on a violation of a federal provision, they provide different punishments.

Now, several law professors have debunked the legal basis of the  “mirror image” theory of the Arizona law and its copycats. (Remember the Alabama law is Arizona on crack.) For instance, Margaret Stock, professor at the University of Alaska, shows that the Arizona’s law (and the copycat, Alabama HB56) go well beyond federal law:

In defending the federal lawsuit, Arizona has argued that S.B. 1070 is a permissible attempt to engage in concurrent enforcement of federal law because S.B. 1070 only criminalizes behavior that is already unlawful under federal law.  In fact, however, the Arizona law criminalizes much behavior that is only a civil violation under federal law.

Under S.B. 1070, Arizona has chosen to criminalize all immigration violations, including those that are civil violations under federal immigration law.  For example, Arizona’s law criminalizes the act of being present in Arizona without being authorized under federal immigration law to be present in the United States, but being present without authorization is only a civil violation under federal law.  Normally, someone who is present without authorization – such as a person who overstays her permission to be in the United States – would not be charged with a crime by federal authorities, but would merely be ordered to appear before an administrative law judge.  If such a person is present in Arizona when S.B. 1070 goes into effect, however, that person will be charged under Arizona state law with a crime; she will be booked into the Arizona state jail system and provided with a defense attorney if she cannot afford one; that attorney must also – under the recent Supreme Court case in Padilla v. Kentucky– provide the person with expert advice as to the immigration consequences of the Arizona criminal conviction.  An Arizona state prosecutor must prosecute the case, which may involve determining whether the person is “removable” under federal immigration law; the prosecutor must also prove beyond a reasonable doubt that the person has violated federal immigration law, a matter that will require Arizona prosecutors and defense lawyers to become immigration and citizenship law experts.  Once provided with defense counsel, the defendant may also find out that he is really a United States citizen or otherwise entitled to apply for immigration benefits, thus mooting the state prosecution (and potentially giving the person a cause of action for damages for wrongful prosecution).

Congress has created a complex system of civil and criminal immigration laws that are legendary for their variety and complexity.  The Department of Homeland Security, the federal agency primarily charged with enforcing this complex code, has generally lacked the full resources necessary to enforce federal law to the letter, and has accordingly adopted a strategy of prioritizing its efforts so as to concentrate on the worst immigration offenders.  DHS uses a variety of civil and criminal tools to implement that strategy. To supplement its efforts, the Department has long sought assistance from state and local authorities—but only when the federal government has been able to direct and control those efforts.  By creating mandatory state criminal sanctions for even the most minor civil immigration violations, Arizona’s foray into immigration enforcement is likely to disrupt federal immigration enforcement efforts, creating a surge of immigration cases in the civil immigration and federal criminal court systems.  If other states copy Arizona’s law, the resulting tidal wave of cases could completely overwhelm federal resources.  Given these practical realities, it is understandable that the United States has chosen to seek an injunction against the Arizona law.  Rather than being a “force multiplier,” Arizona’s law would impose an even greater burden on the already overwhelmed federal immigration system, threatening to become a “ball and chain” that pushes the system to complete dysfunctionality.

That tidal wave will first hit already understaffed state courtrooms and overcrowded jails first.

(Professor Clack makes a point which will cause an extreme problem for HB56. The Alabama law makes it a crime for an immigrant not to carry his documentation. However, the”law fails to recognize that not all lawfully present immigrants are given documentary proof of their status by federal authorities.” Accordingly, some lawfully present immigrant will be arrested for not possessing “papers” that were never issued to them.)

By criminalizing the “status” of the undocumented, Alabama legislators went well beyond the immigration-enforcement assistance previously allowed by federal law.

In a just released law review, Law Professors Gabriel Chin and Marc Miller explain how the power to arrest is separate from the power to criminalize.

While a state actor’s decision to arrest “leave[s] crucial decision-making power in the hands of the Federal government, which is free to choose among criminal, civil and administrative sanctions and remedies authorized by the INA,” state decisions to legislate or to prosecute eliminate that federal discretion.

They explain further:

The distinction between arrest, on the one hand, and criminalization and prosecution on the other, is critical. Arrests leave discretionary decisions in the hands of the federal authorities. Even after an independent state decision to arrest, the suspect is handed over to federal authorities for disposition. Under the INA federal authorities can still decide whether to proceed with a prosecution, use a civil remedy or grant some form of relief or visa to which the noncitizen is entitled under the law. The discretion inherent in the federal immigration regime, and in federal criminal enforcement more generally—the power to charge or not, to decide what to charge, to use civil or administrative responses—is as much of part of the law of immigration as the relevant statutory text. States are free to support federal civil policies in various ways, including hearing some federal claims as such in state courts, and passing complementary civil laws. In the criminal context the rule is reversed. By Supreme Court decision and federal statutes dating the Judiciary Act of 1789, federal crimes may be tried only in federal courts.

As an excellent example of the precedent being requested, the professors show:

For example, local police are authorized by federal statute to arrest deserters from active duty service in the United States military.110 However, this does not imply that states and
localities are invited to establish rules for military discipline of active duty troops and try them in their courts.

Even if states are allowed to “mirror” federal laws, as mentioned above, HB56 does not follow or repeat federal immigration law. Professor Carissa Hessick points out that mirror image is not even applicable for some provisions of HB56.

Of course, not all of the challenged provisions in S.B. 1070 can be justified under the mirror image theory.  For example, Section 5(C) criminalizes unauthorized work and attempts to secure such work, even though federal legislation targets employers who hire unauthorized workers rather than the workers themselves.”

This is the crux of the preemption arguments; it is also the reason most of the law will likely be struck down as unconstitutional.

Under HB56, are you ready to prove your legal status on the road and at work and at home and at school? We now see that you will also have to prove your citizenship for every transaction with the state government.  As reported in the Shelby County Reporter:

House Bill 56, which deals with illegal immigrants in Alabama and was passed by the Alabama Legislature during its 2011 session, requires anyone applying for or renewing a driver’s license or car tag in the state to present two forms of identification in person.

Clanton Advertiser further detailed this provision of HB56,

According to an Aug. 26 press release, Act 2011-535 of the Alabama Legislature, also known as the Immigration Act, will require everyone to show proof of U.S. citizenship for every business transaction made through the Alabama Department of Revenue, Motor Vehicle Division and County Licensing Offices.

“Business transactions” include applying for or renewing a license plate, a driver’s license, a non-driver identification card or a certificate of title.

“It’s really going to change the way we do everything in our office,” said Tim Little, Chilton County tax collector. “Just be patient with us. We’re going to suffer along with the public until we can get the wrinkles ironed out.”

Beginning Sept. 1, any person applying for or renewing a license plate, driver’s license, non-driver identification card or certificate of title must come into the Motor Vehicle Registration Office and present documents proving U.S. citizenship or lawful presence in the U.S.

“You will have to go in and show the proper I.D.,” Little said. “No more online renewals. It’s going to be bad.”

Examples of acceptable documents for U.S. citizenship, original or photocopied clearly, include:

•A valid, unexpired driver’s license or non-driver identification card issued by the Alabama Department of Public Safety.

•A U.S. birth certificate.

•A valid or expired passport with I.D. and passport number.

•Naturalization documents or the certificate of naturalization number.

According to the press release, applicants trying to prove lawful presence must present one document for verification each year, such as a valid, unexpired Alabama driver’s license, a valid, unexpired non-driver identification card or a valid tribal enrollment card.

“It (immigration law) can be interpreted so many different ways,” Little said. “We’re trying to let the public know what to expect come September 1.”

I bet GOP Majority Leader Hammon is surprised to see these “signs of laziness” show up in Chilton County and even Fortress GOP Shelby County.  But the GOP will assist these “unmotivated” local officials:

State Sen. Cam Ward, R-Alabaster, said the abolishment of the online and mail-in renewal system was an “unintended consequence” of the immigration bill.

“As a legislature, we will definitely have to address that next year. That’s something we are going to have to fix,” Ward said. “This is a problem that came up that was not intended.”

I would like to see how prominent “unintended consequence” and “tweak” would appear in a word-cloud of recent GOP speeches.  What was an intended consequence? The people of Alabama will just deal with “nightmare” of “unintended consequences” until they can “tweak” the unpopular parts of the law next session. Problem is: tweaks will not undo the damage of the legislation. If I were a betting man though, I think we will see a special session out of this ill-considered, short-sighted, and rushed piece of legislation.

Your papers, please. . .

If you have always wanted to see an execution of a “traitor,” go to John McMillan’s Facebook page.

His “friends” have recently said the following of this GOP Ag. Commisioner:

    • “I thank you are way out in LEFT field with this one.”
    • “You’re officially a left-wing darling. Every time the people who are making the problem want to sound legit, they call you.”
    • “The socio-ethnic special interest groups & the liberal media are taking advantage of you. Being their darling won’t help you get reelected.”
    • “I second @Nathan Rager’s comment – I’m bitterly disappointed that you are taking this stand against enforcing our country’s borders.”
    • “i spect you won’t get my vote again.”

“Though you have done nothing shameful, they will want you to be ashamed. They will want you to kneel and weep and say you should have been like them. And once you say you are ashamed, reading the page they hold out to you, then such light as you have made in your history will leave you. They will no longer need to pursue you. You will pursue them, begging forgiveness. They will not forgive you. There is no power against them. It is only candor that is aloof from them, only an inward clarity, unashamed, that they cannot reach. – Wendell Berry

Mitt Romney is about to test the Tea Party’s resolve on illegal immigration:

Mitt Romney starts to make the contrast with Rick Perry over immigration, an area where the Texas governor’s critics see an opening, in his remarks at the National Hispanic Assembly in Florida this morning.
Continue Reading

Romney urged “completing construction of a high-tech fence,” and pointed to another key issue: “Finally, we must stop providing the incentives that promote illegal immigration. As governor, I vetoed legislation that would have provided in-state tuition rates to illegal immigrants.”

While he never mentioned Perry, the comment was designed to highlight the Texas bill, signed by Perry, permitting in-state tuition for some illegal immigrants.

Will the Tea Parties stomach Rick Perry’s open-borders stance? Or will they treat him “pretty ugly?”

Ultra-conservative, radio talk-show host Laura Ingraham skewered Scott Beason yesterday over the violation of religious liberty by the Alabama Anti-Immigration Law, #HB56. He finally implicitly concedes that churches and families working working soup lines or even providing assistance to illegal immigrant tornado victims violate HB56.  The audio can be found here.

A few points of rebuttal, though:

1. Beason is wrong; corrupt motives and intent are not required to violate this law. Based upon legal precedent, any support provided to a “illegal alien” will be deemed to encourage “their unlawful presence. Rather, the broad definition of “knowing” is the operative word in the statute and, therefore,  makes it so dangerous.

2. Beason, in the radio interview, actually changed his explanation for intentionally removing the church exemptions from the legislation. Before, his reason was that “bona fide religious organization” was not defined in federal law. (It is, though.) Now, he says it was removed because of churches were “importing” illegals into the state “because they believe that is a good thing.”

3. Beason states that he does not believe any pastors or people will be arrested for being Good Samaritans. However, he forgets that law enforcement officials and prosecutors will be sued if they don’t fully and vigorously enforce the law.

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