Exhibiting the technical intricacies and complexities of federal immigration law, immigration attorney David Isaacson demonstrates in this preliminary examination the many ways in which the Alabama Anti-Immigrant Law too simplistically categorizes people as legal vs “unauthorized.” He finds multiple conflicts between the new law and federal practice.
Among other things, the law appears to bar refugees fleeing political persecution from Alabama’s public universities; make it illegal to provide housing or transportation to someone so that they can attend a proceeding at which the federal government has specifically demanded they be present; and generally attempt to rewrite the Immigration and Nationality Act so that many classes of persons allowed by Congress and the federal government to apply for various sorts of lawful immigration status will be as a practical matter unable to reside in Alabama while doing so. Because it seeks to regulate “the conditions under which a legal entrant may remain” in the United States, De Canas v. Bica, 424 U.S. 351, 352 (1976), HB 56 “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress in enacting the INA,” id. at 364, and should be found preempted by federal law and thus unconstitutional.
All of these problems with HB 56 may in large part rest on the same underpinning: the highly oversimplified model of U.S. immigration law that seems to have existed in the minds of Alabama state legislators and others lobbying for similar laws. In this simplistic view of the world, there are only three possibilities: any noncitizen either has a valid nonimmigrant visa, is a lawful permanent resident with a green card, or is “illegal” and thus entitled only to be swiftly removed from the country with no hope of review. This is simply not an accurate representation of the Immigration and Nationality Act and implementing regulations, which contain many more ways of obtaining and retaining some form of lawful authorization to remain in the United States than such an oversimplified model suggests. It is partly because immigration law is actually so complicated that any state attempts to meddle in it are more likely to lead to disaster or farce than to any positive consequence.
Alabama has no power to abolish asylee and refugee status as inconvenient anomalies, forbid out-of-status aliens from remaining in the United States so as to seek asylum within the one-year deadline for doing so, require that a nonimmigrant maintain a valid unexpired visa in order to maintain valid status, or require potential applicants for adjustment of status under INA § 245 or cancellation of removal under INA § 240A(b) to depart on pain of homelessness before their applications have been adjudicated by an Immigration Judge or reviewed on appeal by the Board of Immigration Appeals or a federal court. Such highly inadvisable modifications of our immigration law could only be made by Congress, and likely never will be. Alabama’s attempts to modify the basic structure of immigration law on its own are pre-empted and unconstitutional.