United Sttaes v. Alabama

691 F.3d 1269

23 Fla. L. Weekly Fed. C 1418

UNITED STATES of America, Plaintiff–Appellant Cross Appellee,

v. State of ALABAMA, Governor of Alabama, Defendants–Appellees Cross Appellants,National Fair Housing Alliance, Inc., Defendant–Appellee.

Nos. 11–14532, 11–14674.

United States Court of Appeals, Eleventh Circuit.

Aug. 20, 2012.

Preempted

Ala.Code 1975, §§ 31–13–10, 31–13–11, 31–13–13, 31–13–16, 31–13–17, 31–13–26.

Recognized as Unconstitutional

Ala.Code 1975, § 31–13–27

Recognized as Preempted

A.R.S. §§ 13–1509(A), 13–2928(C)

Michael P. Abate, Beth S. Brinkmann, William H. Orrick, III, Jeffrey Eric Sandberg, Mark B. Stern, U.S. Dept. of Justice, Civ. Div., App. Section, Varu Chilakamarri, C. Lee Reeves, II, Daniel Tenny, Tony West, Joshua Wilkenfeld, U.S. Dept. of Justice—Civ. Div., Benjamin M. Shultz, U.S. Dept. of Justice, Washington, DC, Ramona Albin, Praveen S. Krishna, Joyce White Vance, Birmingham, AL, for Plaintiff–Appellant Cross Appellee.

James W. Davis, Prim F. Escalona, Misty S. Fairbanks, Margaret L. Fleming, John Cowles Neiman, Jr., William Glenn Parker, Jr., Winfield J. Sinclair, Luther J. Strange, III, Atty. Gen.'s Office, Montgomery, AL, for Defendants–Appellees Cross Appellants.

James Uriah Blacksher, Birmingham, AL, for Defendant–Appellee.

Mark R. Von Sternberg, New York City Bar Ass'n, Henry Lawrence Solano, Dewey & LeBoeuf, LLP, New York City, Dale M. Schwartz, Dale M. Schwartz & Associates, LLP, John J. Park, Jr., Strickland Brockington Lewis, LLP, Atlanta, GA, Roger L. Rice, Miguel A. Perez Vargas, META, Inc., Somerville, MA, Richard Peter Hutchison, Landmark Legal Foundation, Kansas City, MO, Edward Lawrence White, Am. Ctr. for Law and Justice, Erin Elizabeth Mersino, Thomas More Law Ctr., Robert Joseph Muise, Am. Freedom Law Ctr., Ann Arbor, MI, Barnaby W. Zall, Weinberg Jacobs & Tolani, LLP, Rockville, MD, John J. Bursch, Atty. Gen.'s Office, Lansing, MI, for New York City Bar Ass'n Committee on Imm. and Nationality Law, Anti–Defamation League, META, Inc., Landmark Legal Foundation, United Mexican States, Am. Ctr. for Law and Justice, Am. Unity Legal Defense Fund, State of Michigan, State of Arizona, State of Georgia, State of Idaho, State of Kansas, State of Nebraska, State of Oklahoma, State of South Carolina, Thomas More Law Ctr., State of Florida, Am. Imm. Lawyers Ass'n, Government of Argentina, Bolivia, Brazil, Chile, Colombia, Costa Rica, Dominican Republic, Ecuador, El Salvador, Guatemala, Honduras, Nicaragua, Paraguay, Peru, Uruguay, The United Mexican States, et al., Amici Curiae.

Appeals from the United States District Court for the Northern District of Alabama.

Before WILSON and MARTIN, Circuit Judges, and VOORHEES,^* District Judge.

WILSON, Circuit Judge:

On June 9, 2011, Governor Robert Bentley signed into law House Bill 56, titled the “Beason–Hammon Alabama Taxpayer and Citizen Protection Act” (H.B. 56). The stated purpose of the legislation is to discourage illegal immigration within the state and maximize enforcement of federal immigration laws through cooperation with federal authorities. See Ala.Code § 31–13–2. A total of ten provisions of H.B. 56 are at issue in the appeal before us, ¹ some of which have been amended by an act of the Alabama legislature, House Bill 658 (H.B. 658), which Governor Bentley signed into law on May 18, 2012.

Section 10² of H.B. 56 creates a new state crime for an unlawfully present alien's “willful failure to complete or carry an alien registration document.” Ala.Code § 31–13–10(a). An unlawfully present alien violates section 10 when he or she is found to be in violation of 8 U.S.C. §§ 1304(e) or 8 U.S.C. § 1306(a), the federal provisions governing alien registration. A violation of this provision carries with it a fine of up to $100 and not more than thirty days in prison. Ala.Code § 31–13–10(f).

Section 11 criminalizes an “unauthorized” alien's application for, solicitation of, or performance of work, whether as an employee or independent contractor, inside the state of Alabama. Ala.Code § 31–13–11(a). An alien who is authorized to work within the United States is not subject to penalty under this provision, id. § 31–13–11(d), and section 11 is otherwise construed as consistent with 8 U.S.C. § 1324a, id. § 31–13–11(j). The United States has challenged the criminalization of the underlying conduct described in subsection (a).

Through section 12, Alabama requires officers to determine a lawfully seized individual's immigration status when the officer has reasonable suspicion that the seized individual is unlawfully present in the United States. Id.§ 31–13–12(a). The immigration-status determination is made pursuant to a request under 8 U.S.C. § 1373(c). Id. A similar request is required for any alien arrested and booked into custody. Id.§ 31–13–12(b).

Section 13 creates three new state crimes similar to those codified in 8 U.S.C. § 1324(a)(1)(A). First, it criminalizes the concealment, harboring, or shielding from detection of any alien, as well as any attempt to do so. Ala.Code § 31–13–13(a)(1). Second, it criminalizes the act of encouraging or inducing an alien to “come to or reside in” Alabama. Id. § 31–13–13(a)(2). Third, it criminalizes transporting, attempting to transport, or conspiring to transport an alien “in furtherance of the unlawful presence of the alien in the United States.” Id. § 31–13–13(a)(3). An individual who engages in “conspiracy to be so transported” is also subject to prosecution. Id. Each individual crime requires knowledge or reckless disregard of the fact that the alien is unlawfully present, see id. § 31–13–13(a)(1)–(3), and H.B. 658 amended the statute to clarify that each crime is to be interpreted consistent with 8 U.S.C. § 1324(a)(1)(A). As originally enacted, section 13 also criminalized certain instances of entering into a rental agreement with an unlawfully present alien. An amendment included in H.B. 658 moved this provision to a different part of the Alabama Code but left it substantively intact. See H.B. 658, § 6.

The next two provisions at issue, section 16 and section 17, concern employment of undocumented workers. Section 16 disallows an employer's state tax deduction for wages and compensation paid to an alien unauthorized to work in the United States. Ala.Code § 31–13–16(a). An employer who knowingly fails to comply with this requirement is “liable for a penalty equal to 10 times” the deduction claimed. Id. § 31–13–16(b). Section 17 similarly concerns employment, and it labels as a “discriminatory practice” an employer's act of firing or failing to hire a U.S. citizen or an alien authorized to work while the employer simultaneously employs or hires an alien unauthorized to work in the country. Id.§ 31–13–17(a). An employer who engages in this practice is subject to a state civil action for compensatory relief, id.§ 31–13–17(b), and the losing party in that action must pay court costs and attorneys' fees, id.§ 31–13–17(c).

Section 18 amends a state provision governing drivers' licenses, Ala.Code § 32–6–9. The preexisting statute required all drivers to possess a drivers' license and display it upon the request of a proper state official. Id. § 32–6–9(a). Section 18 adds that, when a driver is found to be in violation of subsection (a), a reasonable effort must be made within forty-eight hours to determine that driver's citizenship and, if an alien, whether the individual is permissibly present in the country. Id. § 32–6–9(c).³

Section 27 prohibits state courts from enforcing a contract to which an unlawfully present alien is a party, provided that the other party “had direct or constructive knowledge” of the alien's unlawful presence and that performance of the contract would require the alien to remain in the state for more than twenty-four hours after its formation. Id.§ 31–13–26(a). Section 27 does contain exemptions from its scope, including contracts for overnight lodging, purchase of food, medical services, or transportation to facilitate the alien's return to his country of origin. Id.§ 31–13–26(b). Additionally, any federally authorized contract is outside the scope of section 27, as are any contracts entered into prior to the section's enactment and any contracts for retention of legal counsel. Id.§ 31–13–26(c); H.B. 658, § 1.

Next, section 28 provides a process for schools to collect data about the immigration status of students who enroll in public school. Schools are required to determine whether an enrolling child “was born outside the jurisdiction of the United States or is the child of an alien not lawfully present in the United States.” Id.§ 31–13–27(a)(1). That determination is made based on the birth certificate of the child. Id.§ 31–13–27(a)(2). If none is available, or if the certificate reflects that “the student was born outside ... the United States or is the child of an alien not lawfully present in the United States,” then the enrolling child's parent or guardian must notify the school of the “actual citizenship or immigration status of the student under federal law.” Id.§ 31–13–27(a)(3). This notification consists of (a) official citizenship or immigration documentation and (b) an attestation under penalty of perjury that the document identifies the child. Id.§ 31–13–27(a)(4). If the statutory notification is not provided, then the student is presumed to be “an alien unlawfully present in the United States.” Id.§ 31–13–27(a)(5).

Finally, as originally enacted, section 30 prohibited unlawfully present aliens from entering, or attempting to enter, into a “business transaction” with the state or a political subdivision thereof. Id.§ 31–13–29(b) (2011), amended by H.B. 658, § 1. A business transaction was defined as including “any transaction,” except for the application of marriage licenses. Id.§ 31–13–29(a). As amended by H.B. 658, the provision now prohibits unlawfully present aliens from entering, or attempting to enter, into a “public records...