Alabama immigration gets through one court, and it’s on to the next

Civil and immigrant rights groups have expressed outrage about a federal judge’s decision to allow many of the provisions of Alabama’s new immigration enforcement law to go into effect. However, the groups have already filed an appeal with the Eleventh Circuit Court of Appeals, and expect a preliminary decision very soon.

Judge Sharon Lovelace Blackburn, a George H.W. Bush appointee, blocked a number of the law’s provision in response to lawsuits from both the U.S. Justice Department and a coalition of civil rights groups including the ACLU, the National Immigration Law Center and the Southern Poverty Law Center. The most significant of the blocked sections was one that criminalized harboring, transporting or renting housing to an undocumented immigrant.

However, the judge allowed many of the provisions to stand, including one that requires police to check the immigration status of anyone they stop, detain or arrest, and allows police to hold anyone stopped for a traffic violation if they cannot immediately verify the person is of legal status.

Another upheld provision criminalizes the “willful failure” of undocumented immigrants to carry their federal papers. But Karen Tumlin, managing attorney of the National Immigration Law Center, says this will not only affect the undocumented: “If you are a U.S. citizen you may feel compelled to carry additional documents.”

“The freedom to move has been compromised for people based on the fact that they look Hispanic,” she said.

State laws including the so-called “papers, please” section have been blocked in Arizona, Georgia, Indiana and Utah. In Indiana, the judge who blocked the law was a Reagan appointee, and the Utah law was blocked by a George W. Bush appointee. The Arizona and Georgia laws were both blocked by Clinton appointees.

The coalition opposing the law has already filed an appeal and an emergency motion to stop the law from being enforced. Tumlin says they expect a preliminary decision from the Eleventh Circuit Court of Appeals as soon as next week, and that the coalition is “completely confident” the appellate court’s opinion on the Alabama law will fall in line with what other federal courts have expressed on similar immigration laws.

For many immigrant rights activists and for the attorneys involved with the case, the most surprising part of the decision was that it allowed the K-12 schooling-related provision to go through. The provision would require public schools to count the number of undocumented children who attend them. Opponents of the law believe that asking schools to count undocumented children would have a “chilling effect” on the right to a public education.

It’s a prediction that appears to be coming true already. The Mobile Press-Register reported Friday Hispanic children attending Alabama public schools are showing up distraught, or not attending class at all:

Many of the 223 Hispanic students at Foley Elementary came to school Thursday crying and afraid, said Principal Bill Lawrence.

Nineteen of them withdrew, and another 39 were absent, Lawrence said, the day after a federal judge upheld much of Alabama’s strict new immigration law, which authorizes law enforcement to detain people suspected of not being U.S. citizens and requires schools to ask new enrollees for a copy of their birth certificate.

Even more of the students — who are U.S. citizens by birth, but their parents may not be — were expected to leave the state over the weekend, Lawrence said.

Using K-12 schooling to regulate immigration was ruled unconstitutional by the Supreme Court under a 1982 case, Plyler v. Doe. That’s why “nothing like this has ever really happened before,” according to Tumlin.

But Judge Blackburn didn’t address the constitutional issue of the K-12 schooling section directly, instead saying in her decision the plaintiffs did not have the legal right to challenge that part of the law.

It’s a paradox of the work of groups that challenge laws like Alabama’s, in that they are frequently unable to stop a law they argue will infringe certain rights because defendants will argue in response that you aren’t legally allowed to challenge a law that hasn’t hurt anybody yet. Of course, that means the law will necessarily have to go into effect before its offending provisions can be challenged. Tumlin says it’s a problem that occurs “more often than you would think.”

It’s why the federal government, when challenging the Arizona and Alabama laws, chose to avoid civil rights-related challenges, focusing on arguing that state-level immigration enforcement preempts federal law. And it’s this argument that has had the most success in stopping the new immigration laws from going into effect.

Tumlin said she believes that the decision “was a rallying cry for immigrant rights activists.”

Other groups agree. “This law harkens back to similar laws in Alabama’s past. We have been down this road before, and this is not a part of Alabama’s history that bears repeating,” said Janet Murguía, president of the National Council of La Raza, in a statement. “Judge Blackburn’s decision endangers the civil rights and public safety of every Alabamian and the education of every child in the state.”

Pressure from Hispanic groups appears to be having results, at least at the federal level. The U.S. Justice Department says it is reviewing immigration laws in Utah, Georgia, South Carolina and Indiana in order to determine whether they will file similar lawsuits to those carried out in Arizona and Alabama.

In the meantime, the Alabama law is in effect. For the undocumented, life in the state is about to change. “I can’t imagine what I would do if I were in that situation,” Lawrence told the Press-Register. “I’d be pulling my children close to me as well, doing whatever I needed to do.”