Will law enforcement arrest all “unauthorized children” too?

Will we be seeing pictures like this in Alabama soon: “undocumented alien” children being arrested for just being here?

The Code of Alabama, 12-15-102 defines a delinquent act as “an act committed by a child that is designated a violation, misdemeanor, or felony offense pursuant to the law of the municipality, county, or state in which the act was committed or pursuant to federal law.”

The Beason-Hammon Alabama Taxpayer and Citizen Protection Act aka the Alabama Immigration Bill creates several new “crimes” which undocumented alien children in Alabama can commit.

• Failure to possess alien registration documentation i.e every undocumented alien child (Section 10a)
• Being employed or applying for work (Section 11)
• Transporting another illegal alien i.e their parents or relatives[(Section 13(3)]
• Vital records identify fraud i.e possesses a fake i.d. [Section14(b)

The statute makes no differentiation or exception for children.  (There is no prosecutorial discretion at all for anyone; in fact, the prosecutor can be sued if he is not zealous enough) Arrest for these delinquent acts are almost certain. From 2002 until 2007,  immigration authorities apprehended more than 80,000 juveniles.

I originally believed this statute would overwhelm our foster care system.  As I wrote here:

In January 2009, DHS’s Inspector General reported that between 1998 and 2007, the government deported 108,434 alien parents of U.S. citizen children. DHS data estimated that from 1997 to 2007, the United States deported the lawful permanent resident mother or father of approximately 103,000 children. (44,ooo of these children were under the age of 5 when their parent was deported.)

88% of these children are US citizens.  Presumably, the remaining 12% are subject to arrest and prosecution under the new statute. So the delinquency courts will be filled as well.

Consider all that in addition to the following:

Section 28. (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.

Would you enroll your child knowing you were exposing your child to charges of delinquency and possible deportation? In fact, would you go at all because you would be admitting your own “guilt?”

Will all this have a chilling effect on public school enrollment of undocumented children? It certainly will and therefore it is certainly unconstitutional. According to the US Supreme Court per this DOJ letter:

Additionally, the United States Supreme Court held in the case of Plyler v. Doe, 457 U.S.
202 (1982), that a State may not deny access to a basic public education to any child residing in
the State, whether present in the United States legally or otherwise. Denying “innocent children”
access to a public education, the Court explained, “imposes a lifetime hardship on a discrete
class of children not accountable for their disabling status. . . . By denying these children a basic
education, we deny them the ability to live within the structure of our civic institutions, and
foreclose any realistic possibility that they will contribute in even the smallest way to the
progress of our Nation.” Plyler, 457 U.S. at 223. As Plyler makes clear, the undocumented or
non-citizen status of a student (or his or her parent or guardian) is irrelevant to that student’s
entitlement to an elementary and secondary public education.

But the unfortunate answer to the original question is yes; we will see photographs of arrested children in the near future in Alabama. So while the Congress debates the DREAM Act; Alabama has passed the NIGHTMARE Act for many unauthorized children in Alabama.

 

Republicans move Alabama Children’s Family Act for vote on Wednesday

Although it had 20 Republican co-sponsors in the Senate and 28 Republican c0-sponsors in the House, I believed that the Republicans were taking the wiser course (see here and here and here) and that the radical bill, the Alabama Children’s Family Act, was going away.  After all, Gerald Dial, the bill’s co-Sponsor, rightly announced he was voting against the bill and did not think it would pass. And the Montgomery Advertiser declared the bill was “Bad for Kids” and reasoned:

Before any legislator votes for this legislation, we suggest they reread (or read) 1 Kings in the Old Testament, specifically the story of the Judgment of Solomon. It’s difficult to read these bills without the story of splitting the baby in half coming to mind.

Under this rule, it’s easy to see situations where a child will be jerked from one home to another, one school to another, and perhaps one city to another, every other year. Children need two parents; there’s no denying that. But they also need stability. They do not need the rules to be changed every other year.

There probably are reforms that need to be made to custody law in Alabama, but these bills go too far in trying to protect parental rights when the real emphasis should be on protecting the rights of children.

We suggest that these bills be killed. . .

A substitute bill has been tendered now. Senator Bussman, the sponsor of the bill and also chairman of the committee, intends to bring the bill up for a vote tomorrow morning (Wednesday April 13) at 9:30 a.m. in the “Children, Youth, and Human Resources” committee.

The substitute does not address the underlying problems of the legislation, but in fact worsens them. This substitute more specifically defines “unfitness.”  Someone must have shown the senator Section 12-15-319 of the Code of Alabama; his substitute definition copies the listed grounds for Termination of Parental Rights (TPR) almost verbatim.

Now, in order to avoid “jerking a child from one home to another,” the court will have to determine, not what is in the best interest of the child, but whether the other parent deserves the family law equivalent of the death penalty: Termination of Parental Rights.

Really: compare 12-15-319 with the following SB196 substitute language:

(2)(a) FACTORS TO DETERMINE PARENTAL UNFITNESS.
(a) If the court finds competent, material and relevant in nature that one parent has committed an act of domestic violence against the other parent pursuant to Section 30-3-130 to 30-3-135, inclusive.  All orders by the court of domestic violence must include written findings of fact and conclusion of law.
(b)  If the court finds from clear and convincing evidence, competent, material and relevant in nature, that the parent of a child is unable or unwilling to discharge their responsibilities to and for the child, or that the conduct or condition of the parent renders them unable to properly care for the child and that the conduct or condition is unlikely to change in the foreseeable future, it may limit child custody solely to one parent.  In determining whether or not the parent is unable or unwilling to discharge their responsibilities to and for the child the court shall consider the following factors including, but not limited to, the following:
(1) That the parent has abandoned the child provided that in these cases, proof shall not be required of reasonable efforts to prevent removal or reunite the child with the parent.
(2) Emotional illness, mental illness or mental deficiency of the parent, or excessive use of alcohol or controlled substances, of a duration or nature as to render the parent unable to care for the needs of the child.
(3) That the parent has tortured, abused, cruelly beaten, or otherwise maltreated the child or the other parent, or attempted to torture, abuse cruelly beat or otherwise maltreat the child or the child or the other parent is in clear and present danger of being thus tortured, abused, cruelly beaten or otherwise maltreated.
(4) Conviction of and imprisonment of a felony.
(5) Unexplained serious physical injury to the child under those circumstances as would indicate that the injuries resulted from the intentional conduct or willful neglect of the parent.
(6) Failure by the parent to maintain consistent parenting time with the child in accordance with the parenting plan, and agreed to by the parent.
(7) Failure by the parent to maintain consistent contact or communication with the child provided there has been no interference of contact or communication by the other parent.
(8) If either parent willfully prevents the child from having freedom of association with the other parent, without just cause, there shall be a rebuttable presumption the parent denying such freedom of associations is unfit for joint custody and the non-offending parent shall have sole custody of the child.
(9) Lack of effort by the parent to adjust his or her circumstances to meet the needs of the child in accordance with the parenting plan.

From a purely partisan perspective, I would love the Republicans to pass this bill; it would be a tactical blunder. After just one month of this law being applied in custody cases in Alabama courtrooms, it would decimate them in the next election cycle. However, from a matter of justice  and from concern for the welfare of children and their families in this state, I wholeheartedly oppose it and suggest you contact your senators and representatives to vote against it.