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.