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  1. 1. Making a Case for Social Justice – Opening the Door of Access and Opportunity for Everyone Immigration and the Law By John R. Wible, J.D.1 Acknowledgement/Caveat: The presentation which this paper accompanies is based upon the legal analysis of Greg Locklier, Assistant General Counsel, ADPH. Mr. Locklier is not responsible for my additions and they do not necessarily represent his opinion. The author is not your lawyer; therefore this may not be relied upon as legal advice. No representation is made that this presentation represents the opinion of the Alabama Department of Public Health, its Office of General Counsel, officers, agents, servants, or employees.Unless you are a Native American, IE. a descendant of an American Indian tribe2, you are animmigrant. America is a nation of immigrants. Bill Murray‘s character famously stated in themovie, ―Stripes,3‖ Were all very different people. Were not Watusi. Were not Spartans. Were Americans, with a capital A, huh? You know what that means? Do ya? That means that our forefathers were kicked out of every decent country in the world. We are the wretched refuse. Were the underdog. Were mutts! . . . But theres no animal thats more faithful, thats more loyal, more loveable than the mutt.America was once known as the ―great melting pot.‖ Now, it‘s more accurate to state that we‘rethe ―Great Salad Bowl.‖Historically, American immigration history can be viewed in four periods: the colonial period, the mid-nineteenth century, the turn of the twentieth century, and Post-1965.Each period brought distinct national groups, races and ethnicities to the United States.During the seventeenth century, approximately 175,000 Englishmen4 migrated to ColonialAmerica. 5 Over half of all European immigrants to Colonial America during the 17th and 18thcenturies arrived as indentured servants.61 John R. Wible is retired General Counsel, Alabama Department of Public Health.2 The historical four tribes of Alabama are the Choctaw, Chickasaw, Cherokee, and Creek tribes.3 “Stripes” is a 1981 American film directed by Ivan Reitman, starring Bill Murray, Harold Ramis, Warren Oates, P. J.Soles, and John Candy.4 Or, more politically correct, “English Persons.”1|Page
  2. 2. The mid-nineteenth century saw mainly an influx from northern Europe; the early twentieth-century mainly from Southern and Eastern Europe; post-1965 mostly from Latin America andAsia.Historians estimate that fewer than one million immigrants—perhaps as few as 400,000—crossed the Atlantic during the 17th and 18th centuries.7 A 1790 Act limited naturalization to"free white persons"; it was expanded to include African Americans in the 1860s and Asians inthe 1950s.8 In the early years of the United States, immigration was fewer than 8,000 people ayear,9 including French refugees from the slave revolt in Haiti. After 1820, immigrationgradually increased. From 1836 to 1914, over 30 million Europeans migrated to the UnitedStates.10 The death rate on these transatlantic voyages was high, during which one in seventravelers died.11 In 1875, the nation passed its first immigration law.12The peak year of European immigration was in 1907, when 1,285,349 persons entered thecountry, most through Ellis Island processing center.13 By 1910, 13.5 million immigrants wereliving in the United States.14 In 1921, the Congress passed the Emergency Quota Act, also knownas the Emergency Immigration Act of 1921, the Immigration Restriction Act of 1921, the PerCentum Law, and the Johnson Quota Act.15 It was followed by the Immigration Act of 1924.16The 1924 Act was aimed at further restricting the Southern and Eastern Europeans, especiallyJews, Italians, and Slavs, and Asians17 (principally Chinese) who had begun to enter the countryin large numbers beginning in the 1890s.18 Interestingly enough, most of the European refugeesfleeing the Nazis during World War II were barred from coming to the United States.195 "Leaving England: The Social Background of Indentured Servants in the Seventeenth Century", The ColonialWilliamsburg Foundation.6 "Indentured Servitude in Colonial America". Deanna Barker, Frontier Resources.7 "A Look at the Record: The Facts Behind the Current Controversy Over Immigration." American HeritageMagazine, December 1981. Volume 33, Issue 1.8 Schultz, Jeffrey D. (2002). Encyclopedia of Minorities in American Politics: African Americans and AsianAmericans. p. 284. ISBN 9781573561488. Retrieved 2010-03-25.9 A Nation of Immigrants". American Heritage Magazine. February/March 1994. Volume 45, Issue 1.10 Nicholas J. Evans ,"Indirect passage from Europe: Transmigration via the UK, 1836–1914", in Journal for MaritimeResearch , Volume 3, Issue 1 (2001), pp. 70–84.11 Wilson, Donna M; Northcott, Herbert C (2008). Dying and Death in Canada. Toronto: University of Toronto Press.p. 27. ISBN 9781551118734.12 Will, George P. (May 2, 2010). "The real immigration scare tactics". Washington, DC: Washington Post. pp. A17.13 "TURN OF THE CENTURY (1900–1910)". HoustonHistory.com14 "An Introduction to Bilingualism: Principles and Processes". Jeanette Altarriba, Roberto R. Heredia (2008). p.212.ISBN 080585135615 42 Stat. 5 (May 19, 1921.)16 Immigration Act of 1924, or Johnson–Reed Act, including the National Origins Act, and Asian Exclusion Act (P.L.68-139, 43 Stat. 153, enacted May 26, 1924.)17 It is likely that the Anglo-American stereotypes of these various ethnicities were set in our collectiveconsciousness during this period.18 "Old fears over new faces", The Seattle Times, September 21, 2006.19 United States Holocaust Memorial Museum.2|Page
  3. 3. Immigration patterns of the 1930s were dominated by the Great Depression, which hit the U.S.hard and lasted over ten years, not really ending until the outbreak of World War II. In the finalprosperous year before the Great Crash, 1929, there were 279,678 immigrants recorded.20 Thisdropped dramatically to the point where in 1933, only 23,068 came to the U.S.21 In the early1930s, more people emigrated from the United States than immigrated to it.22During this period, the U.S. government sponsored a Mexican Repatriation program which wasintended to encourage people to voluntarily move to Mexico, but thousands were deported23against their will.24 Altogether about 400,000 Mexicans were repatriated.25 The event, carried outby American authorities, took place without due process. Some 35,000 were deported, amongmany hundreds of thousands of other immigrants who were deported during this period. TheImmigration and Naturalization Service targeted Mexicans because of "the proximity of theMexican border, the physical distinctiveness of Mestizos, and easily identifiable barrios." 26 Inthe post-war era, in the heart of the McCarthy ―Red Scare‖ xenophobic period, the JusticeDepartment launched Operation Wetback, under which 1,075,168 Mexicans were deported in1954.27The Immigration and Nationality Act of 1965,28 also known as the Hart-Cellar Act, abolished thesystem of national-origin quotas. By equalizing immigration policies, the act resulted in newimmigration from non-European nations, which changed the ethnic make-up of the UnitedStates.29 While European immigrants accounted for nearly 60% of the total foreign population in1970, they accounted for only 15% in 2000.30 Immigration doubled between 1965 and 1970, andagain between 1970 and 1990. In 1990, President George H. W. Bush (Bush 43) signed theImmigration Act of 1990, which increased legal immigration to the United States by 40%.3120 Persons Obtaining Legal Permanent Resident Status in the United States of America, Source: US Department ofHomeland Security21 "A Look at the Record: The Facts Behind the Current Controversy Over Immigration". American HeritageMagazine. December 1981. Volume 33, Issue 1.22 A Great Depression?, by Steve H. Hanke, Cato Institute23 Thus presently, we see history repeating itself.24 Thernstrom, Harvard Guide to American Ethnic Groups (1980)25 The Great Depression and New Deal, by Joyce Bryant, Yale-New Haven Teachers Institute.26 Ruiz, Vicki L. (1998). From Out of the Shadows: Mexican Women in Twentieth-Century America. New York:Oxford University Press. ISBN 0-19-513099-5.27 Navarro, Armando, Mexicano political experience in occupied Aztlán (2005)28 P.L. 89-236.29 U.S. Senate, Subcommittee on Immigration and Naturalization of the Committee on the Judiciary, Washington,D.C., Feb. 10, 1965. pp. 1–3.30 "Trends in International Migration 2002: Continuous Reporting System on Migration". Organisation for EconomicCo-Operation and Development (2003). OECD Publishing. p.280. ISBN 926419949731 "The Paper curtain: employer sanctions implementation, impact, and reform". Michael Fix (1991). The UrbanInstitute. p.304. ISBN 08776655083|Page
  4. 4. Appointed by President Clinton, the U.S. Commission on Immigration Reform recommendedreducing legal immigration from about 800,000 people per year to approximately 550,000.32While an influx of new residents from different cultures presents some challenges, "the UnitedStates has always been energized by its immigrant populations," said President Clinton in 1998."America has constantly drawn strength and spirit from wave after wave of immigrants [...] Theyhave proved to be the most restless, the most adventurous, the most innovative, the mostindustrious of people."33An analysis of census data found that nearly eight million immigrants entered the United Statesfrom 2000 to 2005, more than in any other five-year period in the nations history; an estimated3.7 million of them, nearly half, entered illegally.34 Since 1986 Congress has passed sevenamnesties for illegal immigrants.35 In 1986 president Ronald Reagan signed immigrationreform36 that gave amnesty to 3 million illegal immigrants in the country.37 Hispanic immigrantswere among the first victims of the late-2000s recession,38 but since the recessions end in June2009; immigrants posted a net gain of 656,000 jobs. 1.1 million Immigrants were granted legalresidence in 2009.39The immigration laws in the United States have experienced uneven progress. During colonialtimes independent colonies created their immigration laws. While it is true that the very firstattempt to naturalize foreigners was through the Naturalization Act of 1790, many years later theChinese Exclusion Act was passed to stop the immigration of Chinese people.40 The ImmigrationAct of 1924 put a quota on how many immigrants are permitted, based on nationality. TheImmigration and Nationality Act of 195241 led to the creation of the Immigration andNaturalization Service, the INS or as they say in the vernacular, ―The Inmigración.‖The five major departments of the federal government involved in the immigration process arethe Department of Homeland Security, the Department of Justice, the Department of State, theDepartment of Labor, and the Department of Health and Human Services. Of the five, theDepartment of Homeland Security, which replaced the INS, enforces immigration laws andbestows benefits on aliens.32 Plummer Alston Jones (2004). "Still struggling for equality: American public library services with minorities".Libraries Unlimited. p.154. ISBN 159158243133 Mary E. Williams, Immigration. 2004. Page 69.34 Camarota, Steven A, Immigrants at Mid-Decade: A Snapshot of Americas Foreign-Born Population in 2005. Accessed March 6, 2012.35 "Debate Could Turn on a 7-Letter Word". The Washington Post. May 30, 2007.36 The Immigration Reform and Control Act (IRCA), P.L. 99-603, 100 Stat. 3359, enacted November 6, 1986, alsoknown as the Simpson-Mazzoli Act.37 "A Reagan Legacy: Amnesty For Illegal Immigrants". NPR: National Public Radio. July 4, 201038 "Crisis hits Hispanic community hard". France24. February 27, 2009.39 “U.S. Legal Permanent Residents: 2009”. Office of Immigration Statistics Annual Flow Report.40 Chinese Exclusion Act of 1882.41 P.L. 82-414, 66 Stat. 163, enacted June 27, 1952, also known as the McCarran–Walter Act.4|Page
  5. 5. It is subdivided into three distinct departments: US Citizenship and Immigration Services,Immigration and Customs Enforcement (ICE), and Customs and Border Protection (CBP.)Every year, the Federal government conducts a Diversity Visa Lottery. The lottery grantscitizens of other countries legal entry into the United States; however only citizens of countries"with low rates of immigration to the United States" are allowed to apply.Presently there are two different types of US visas: one for people seeking to live in the US;termed Immigrant Visas, and the other for people coming for limited durations termed Non-Immigrant Visas. The former visa has "per country-caps", and the latter does not. Most non-immigrant visas are for work purposes, and usually require an offer of employment from a USbusiness. Other categories include student, family and tourist visas.The United States allows more than 1 million aliens to become Legal Permanent Residents everyyear, which is more than any other country in the world.42Immigration law became a serious political issue in the United States particularly after 9/11 – andnowhere more so recently than in the State of Alabama.Under the Constitution of the United States, immigration has traditionally been a matter given tothe federal government, not the states. However, the Constitution never uses the wordimmigration, so how is it that the rules for immigrants and quotas for countries are set by thefederal government and not by the state governments? After all, as the 10th Amendment states,―all powers not delegated to the federal government are held by the states, or the people.‖The answer lies in judicial interpretation. The Supreme Court has ruled that the Congressionalpower to regulate naturalization, taken from Article 1, Section 8, includes the power to regulateimmigration. See, for example, Hampton v. Mow Sun Wong43 in which the High Court held that itwould not make sense to allow Congress to pass laws to determine how an immigrant becomes anaturalized resident if the Congress cannot determine how, or even if, that immigrant can comeinto the country in the first place. Just because the Constitution lacks the word immigration doesnot mean that it lacks the concept of immigration.There is also an argument that immigration is an implied power of any sovereign nation, and assuch, the federal government has the power to regulate immigration because the United States isa sovereign nation. While it is true that the United States is a sovereign nation, and it may be truethat all sovereign nations have some powers inherent in that status, it is not necessary todetermine if immigration is such a power that does not even require constitutional mention,42 American Visa Bureau (2011-12-22,) "US visas."43 426 U.S. 88 (1976.)5|Page
  6. 6. because the Naturalization Clause44 handles the power. Thus, Professor Karl Manheim of LoyolaLaw School observes: ―States have no power to pass immigration laws because it‘s an attribute of foreign affairs. Just as states can‘t have their own foreign policies or enter into treaties, they can‘t have their own immigration laws either.‖45Several states over the years have attempted to regulate the immigration of foreign nationals intotheir borders, most notably California, Arizona, Georgia and now, Alabama.The Beason-Hammond Alabama Taxpayer and Citizen Protection Act, HB 56, (Act 2011-535)was signed into law by Alabama Governor Dr. Robert Bentley on June 9, 2011. It is hereafterreferred to as ―the Act.‖ It was modeled after Arizona‘s SB 1070, which likewise generated ariver of controversy.Arizona‘s SB 1070, given the arguably self-serving title, ―Support Our Law Enforcement andSafe Neighborhoods Act,46‖ went into effect on April 23, 2010. Seven days later, the Governorsigned into law a set of amendments to Senate Bill 1070 under the rubric, House Bill 2162.47On July 6, 2010, the United States filed a Complaint in the United States District for the Districtof Arizona challenging the constitutionality of S.B. 1070, and it also filed a Motion requestingthat the Court issue a preliminary injunction to enjoin Arizona from enforcing S.B. 1070 until theCourt can make a final determination as to its constitutionality. The United States arguedprincipally that the power to regulate immigration is vested exclusively in the federalgovernment, and that the provisions of S.B. 1070 are therefore preempted by federal law.48The United States Supreme Court, in December, 2011, granted the State of Arizonas petition forwrit of certiorari in Arizona v. United States49 involving Arizonas controversial immigrationstatute, SB 1070.The petition for writ of certiorari filed by Arizona seeks review of the Ninth Circuit opinionupholding the district courts preliminary injunction against specific provisions of as SB 1070.Arizona, represented by Paul Clement, contends it bears the brunt of illegal immigration and thatthe federal government is not sufficiently addressing the problem, setting the factual and politicalcontext for its claim that its statute is not preempted under the Supremacy Clause.44 Fourteenth Amendment, Section 1, sentence 1.S45 Karl Manheim, Director of the Program for Law & Technology at the California Institute of Technology and LoyolaLaw School.46 2010 Arizona Session Laws, Chapter 113.47 2010 Arizona Session Laws, Chapter 211.1.48 703 F.Supp.2d 980 (D. Ariz., 2010.)49 Cert. granted, ___ U.S. ___ (Docket No. 11-182, 1911.)6|Page
  7. 7. The petition argued that "The Ninth Circuit‘s rule50—that States may not take any investigativeor enforcement action against aliens based on their civil violations of the immigration lawswithout an express permission slip from Congress—directly conflicts with the approach" takenin other circuits.The petition also argued that the Ninth Circuit opinion ―contradicts our Federalism" by failing torecognize co-operative enforcement and implicitly assuming that immigration is a matter ofnearly exclusive federal concern. It also argues that the Ninth Circuit completely misconstruedpreemption doctrine according to the petition, perhaps most egregiously when it allowed"complaints by foreign government officials and the disagreement of the Executive Branch totrump congressional intent."Alabama‘s HB 56 is usually identified by protestors according to its House Bill number, HB 56.Its purpose was to ―discourage illegal immigration‖ according to Section 2 of the text andstatements by the sponsor. As you might remember, the model, Arizona SB 1070 made it arequirement for local police to investigate the citizenship status of anyone whom they considered―reasonably suspicious,‖ creating an atmosphere of xenophobia, fear and racial profiling thatcaused many to flee the state. That Arizona law is presently in the breast of the United SupremeCourt, a fact that will become very important to Alabamians we shall see later.Section 2 of the Alabama Act states: The State of Alabama finds that illegal immigration is causing economic hardship and lawlessness in this state and that illegal immigration is encouraged when public agencies within this state provide public benefits without verifying immigration status. Because the costs incurred by school districts for the public elementary and secondary education of children who are aliens not lawfully present in the United States can adversely affect the availability of public education resources to students who are United States citizens or are aliens lawfully present in the United States, the State of Alabama determines that there is a compelling need for the State Board of Education to accurately measure and assess the population of students who are aliens not lawfully present in the United States, in order to forecast and plan for any impact that the presence such population may have on publicly funded education in this state. The State of Alabama further finds that certain practices currently allowed in this state impede and obstruct the enforcement of federal immigration law, undermine the security of our borders, and impermissibly restrict the privileges and immunities of the citizens of Alabama. Therefore, the people of the State of Alabama declare that it is a compelling public interest to discourage illegal immigration by requiring all agencies within this state to50 641 F.3d 339 (9th Cir., 2011.)7|Page
  8. 8. fully cooperate with federal immigration authorities in the enforcement of federal immigration laws. The State of Alabama also finds that other measures are necessary to ensure the integrity of various governmental programs and services.Many citizens believe this is not a good law while many believe it addresses serious issues. Avery wise man once said, ―Render, therefore unto Caesar that which is Caesar‘s. . .‖ This fits thatcategory, therefore . . .51Inter alia, the Act Declares ―unlawfully present‖ aliens to be ineligible to receive ―publicbenefits‖ or to obtain licenses/permits from state or local agencies. It requires employers toverify citizenship/lawful presence of its employees. Further, it makes it illegal to enter into acontract with an unlawfully present alien and proclaims it illegal to even assist such persons.Some pertinent definitions include: (1) ALIEN. Any person who is not a citizen or national of the United States, as described in 8 U.S.C. § 1101, et seq., and any amendments thereto.52 (10) LAWFUL PRESENCE or LAWFULLY PRESENT. A person shall be regarded as an alien unlawfully present in the United States only if the person‘s unlawful immigration status has been verified by the federal government pursuant to 8 U.S.C. § 1373(c ). No officer of this state or any political subdivision of this state shall attempt to independently make a final determination of an alien‘s immigration status. An alien possessing self-identification in any of the following forms is entitled to the presumption that he or she is an alien lawfully present in the United States: a. A valid, unexpired Alabama driver‘s license. b. A valid, unexpired Alabama nondriver identification card. c. A valid tribal enrollment card or other form of tribal identification bearing a photograph or other biometric identifier. d. Any valid United States federal or state government issued identification document bearing a photograph or other biometric identifier, if issued by an entity that requires proof of lawful presence in the United States before issuance. e. A foreign passport with an unexpired United States Visa and a corresponding stamp or notation by the United States Department of Homeland Security indicating the bearer‘s admission to the United States.51 Matthew 22:21.52 If one reads 8 USC § 1101, it basically defines an alien as anyone who is not legally in the country and who is notalready a US citizen.8|Page
  9. 9. f. A foreign passport issued by a visa waiver country with the corresponding entry stamp and unexpired duration of stay annotation or an I-94W form by the United States Department of Homeland Security indicating the bearer‘s admission to the United States.This is a confusing and feeble attempt53 to pretend that the person is presumed to be legal unlesshe has been ―E-verified‖ not to be here illegally. The bill does not make it clear how a person isbrought under suspicion as being an alien. Profiling is certainly possible here. My friend, Mrs.Sitz, who has been a naturalized citizen for probably 30 years but is very Mexican looking willbe immediately under suspicion whereas my friend, Candyce Dekruyff (a recently naturalizedCanadian citizen) will not be merely because she looks like ―an American,‖ (albeit with a funnyaccent, ―eh?)The Act also defines: (14) STATE-FUNDED ENTITY. Any governmental entity of the state or a political subdivision thereof or any other entity that receives any state monies. Any entity that receives any state grants will be subject to the law.On August 1, 2011 two lawsuits were filed in the United States District for the Northern Districtof Alabama. The United States sued the State of Alabama and Governor Bentley, alleging thatvarious provisions of Act No. 2011-535 are preempted by federal law. United States v. Alabama,Case No. 2:11-cv-02746-SLB (N.D. Ala., 2011.)A group of Church Leaders sued Governor Bentley, Attorney General Strange, and a districtattorney. Parsley v. Bentley, Case No. 5:11-cv-02736-SLB (N.D. Ala.) The plaintiffs are: theBishop of the Episcopal Church in the Diocese of Alabama; the Bishop of the North AlabamaConference of the United Methodist Church; the Roman Catholic Archbishop of Mobile; theRoman Catholic Bishop of Birmingham; the Benedictine Sisters of Cullman, Alabama, Inc.; and,the Benedictine Society of Alabama. The Church Leaders focused on Sections 13 and 27 of theAct, which they alleged violate their federal constitutional rights with respect to religion.The lower Court, the U.S. District Court for the Northern District of Alabama, Judge Blackburn,issued a preliminary injunction of Section 8 of HB56, as preempted by federal immigration law.HB 56 §8 provides: An alien who is not lawfully present in the United States shall not be permitted to enroll in or attend any public postsecondary education institution in this state. An alien attending any public postsecondary institution in this state must either possess lawful permanent residence or an appropriate nonimmigrant visa under 8 U.S.C. § 1101, et seq. For the purposes of this section, a public postsecondary education institution officer may seek federal verification of an alien‘s immigration status with the federal government pursuant to 8 U.S.C. § 1373(c). A public postsecondary education institution officer or official shall not attempt to independently make a final determination of whether an alien is lawfully present in the United States. Except as otherwise provided by law, an alien53 In this writer’s view.9|Page
  10. 10. who is not lawfully present in the United States shall not be eligible for any postsecondary education benefit, including, but not limited to, scholarships, grants, or financial aid.The District Judge found that Congressional intent was contrary and clear, and thus the state lawwas preempted. Only Congress, the judge stated, may "classify aliens" including forpostsecondary education.Secondly, the Judge issued a preliminary injunction of the last sentences of Sections 10(e), 11(e),and 13(h) based on the Compulsory Process Clause of the Sixth Amendment. These sentencesprovide that "A court of this state shall consider only the federal government‘s verification indetermining whether an alien is lawfully present in the United States." The judge found that tothe extent Sections 10(e), 11(e), and 13(h) of H.B. 56 are interpreted as allowing a defendant tobe convicted based on a certificate of nonexistent record (CNR) without testimony from the clerkor officer preparing the report, these sections violate the Confrontation Clause, but because thereis no evidence this has occurred, the Confrontation Clause argument does not merit a preliminaryinjunction.As to the Compulsory Process Clause challenge, however, Judge Blackburn ruled that by"limiting evidence admissible in a state-court proceeding to only the federal governmentverification of lawful presence, Sections 10(e), 11(e), and 13(h) deny every person accused ofviolating Sections 10, 11 or 13 of H.B. 56 the constitutionally-protected right to present adefense. By denying accused individuals the opportunity to prove lawful presence, Alabama hasdenied all individuals charged under these sections with their right to compulsory process."Thirdly, the Judge had issued a preliminary injunction of Sections 11 (f) and (g) based on theFirst Amendment. These provisions provide: (f) It is unlawful for an occupant of a motor vehicle that is stopped on a street, roadway, or highway to attempt to hire or hire and pick up passengers for work at a different location if the motor vehicle blocks or impedes the normal movement of traffic. (g) It is unlawful for a person to enter a motor vehicle that is stopped on a street, roadway or highway in order to be hired by an occupant of the motor vehicle and to be transported to work at a different location if the motor vehicle blocks or impedes the normal movement of traffic. The judge found that these provisions were not content neutral because they applied to a particular subject matter of expression - - - solicitation of employment - - - rather than to particular conduct, such as blocking traffic. Yet the judge also analyzed the provisions under the commercial speech doctrine Alabama advocated, finding them failing to satisfy that lower standard.October 14, the United States Court of Appeals for the 11th Circuit approved the U.S. JusticeDepartments request to temporarily block parts of Alabama‘s law pending the outcome of anappeal. 54 Among them is the requirement that public schools determine the immigration status of54 See Hispanic Coalition of Ala. et al. v. Governor, et al.10 | P a g e
  11. 11. their students. But they did have to report back to the state information about which studentsdidnt have birth certificates or other documents showing that they are here legally.The court blocked enforcement a provision that makes it a crime not to have documents provingyou are in the country legally. In other words, everybody had to have their papers on them or theycould be subjected to arrest on a misdemeanor charge.Thus, on appeal, the 11th Circuit enjoined the enforcement of Sections 10 and 28, which permitlaw enforcement to charge immigrants, unable to demonstrate lawful presence in the UnitedStates, with a misdemeanor and require schools to check new students immigration status.However, the court denied an injunction on Sections 12, 18, 27 and 30, provisions that: Allow police to check immigration status during traffic stops, based on reasonable suspicion, bar Alabama courts from enforcing contracts involving an illegal immigrant party, and make it a felony for an illegal immigrant to apply for a drivers license, license plate or non-driver identification card.The court also refused to halt a provision that would require police in Alabama to do immigrationstatus checks under certain circumstances. The Court did not deal with Section 13 ―givingassistance‖ to undocumented persons (the lower court had denied an injunction as moot for wantof standing.)On March 8, 2012, the Eleventh Circuit issued an order55 additionally enjoining the State fromenforcing Sections 27 and 30 of the Act during the appeal. Again, this is an injunction pendingappeal, rather than a final decision on the merits. The Court announced at oral argument that itwill not issue a final decision until after the U.S. Supreme Court renders its decision in a pendingArizona case.Thus, as it stands until the United States Supreme Court rules on the Arizona case,56 thefollowing sections of HB 56 are temporarily enjoined: 10, 27, 28, and 30. These sections deal,respectively with: Need to carry ID; Inability to make contracts; School requirements; and State permits.Enjoined Section 10 provides: (a) In addition to any violation of federal law, a person is guilty of willful failure to complete or carry an alien registration document if the person is in violation of 8 U.S.C. Section 1304(e) or 8 U.S.C. Section 1306(a), and the person is an alien unlawfully present in the United States.55 United States v. Alabama, (Cir. 11, Docket No. 11-14535-CC, March 8, 2012,) consolidated with Hispanic Coalitionof Alabama, et al. v. Governor, et al. (supra,) and Parsley v. Bentley, et al. (supra.)56 See supra.11 | P a g e
  12. 12. (b) In the enforcement of this section, an aliens immigration status shall be determined by verification of the aliens immigration status with the federal government pursuant to 8 U.S.C. Section 1373(c). A law enforcement officer shall not attempt to independently make a final determination of whether an alien is lawfully present in the United States. (c) A law enforcement official or agency of this state or a county, city, or other political subdivision of this state may not consider race, color, or national origin in the enforcement of this section except to the extent permitted by the United States Constitution and the Constitution of Alabama of 1901. (d) This section does not apply to a person who maintains authorization from the federal government to be present in the United States. (e) Any record that relates to the immigration status of a person is admissible in any court of this state without further foundation or testimony from a custodian of records if the record is certified as authentic by the federal government agency that is responsible for maintaining the record. A verification of an aliens immigration status received from the federal government pursuant to 8 U.S.C. Section 1373(c) shall constitute proof of that aliens status. A court of this state shall consider only the federal governments verification in determining whether an alien is lawfully present in the United States. (f) An alien unlawfully present in the United States who is in violation of this section shall be guilty of a Class C misdemeanor and subject to a fine of not more than one hundred dollars ($100) and not more than 30 days in jail. (g) A court shall collect the assessments prescribed in subsection (f) and remit 50 percent of the assessments to the general fund of the local government where the person was apprehended to be earmarked for law enforcement purposes, 25 percent of the assessments to the Alabama Department of Homeland Security, and 25 percent of the assessments to the Department of Public Safety.Enjoined Section 27 provides: (a) No court of this state shall enforce the terms of, or otherwise regard as valid, any contract between a party and an alien unlawfully present in the United States, if the party had direct or constructive knowledge that the alien was unlawfully present in the United States at the time the contract was entered into, and the performance of the contract required the alien to remain unlawfully present in the United States for more than 24 hours after the time the contract was entered into or performance could not reasonably be expected to occur without such remaining. (b) This section shall not apply to a contract for lodging for one night, a contract for the purchase of food to be consumed by the alien, a contract for medical services, or a contract for transportation of the alien that is intended to facilitate the aliens return to his or her country of origin.12 | P a g e
  13. 13. (c) This section shall not apply to a contract authorized by federal law. (d) In proceedings of the court, the determination of whether an alien is unlawfully present in the United States shall be made by the federal government, pursuant to 8 U.S.C. Section 1373(c). The court shall consider only the federal governments determination when deciding whether an alien is unlawfully present in the United States. The court may take judicial notice of any verification of an individuals immigration status previously provided by the federal government and may request the federal government to provide further automated or testimonial verification.Enjoined Section 28 provides: (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. (2) The public school, when making the determination required by subdivision (1), shall rely upon presentation of the students original birth certificate, or a certified copy thereof. (3) If, upon review of the students birth certificate, it is determined that the student was born outside the jurisdiction of the United States or is the child of an alien not lawfully present in the United States, or where such certificate is not available for any reason, the parent, guardian, or legal custodian of the student shall notify the school within 30 days of the date of the students enrollment of the actual citizenship or immigration status of the student under federal law. (4) Notification shall consist of both of the following: a. The presentation for inspection, to a school official designated for such purpose by the school district in which the child is enrolled, of official documentation establishing the citizenship and, in the case of an alien, the immigration status of the student, or alternatively by submission of a notarized copy of such documentation to such official. b. Attestation by the parent, guardian, or legal custodian, under penalty of perjury, that the document states the true identity of the child. If the student or his or her parent, guardian, or legal representative possesses no such documentation but nevertheless maintains that the student is either a United States citizen or an alien lawfully present in the United States, the parent, guardian, or legal representative of the student may sign a declaration so stating, under penalty of perjury. (5) If no such documentation or declaration is presented, the school official shall presume for the purposes of reporting under this section that the student is an alien unlawfully present in the United States.13 | P a g e
  14. 14. (b) Each school district in this state shall collect and compile data as required by this section. (c) Each school district shall submit to the State Board of Education an annual report listing all data obtained pursuant to this section. (d) (1) The State Board of Education shall compile and submit an annual public report to the Legislature. (2) The report shall provide data, aggregated by public school, regarding the numbers of United States citizens, of lawfully present aliens by immigration classification, and of aliens believed to be unlawfully present in the United States enrolled at all primary and secondary public schools in this state. The report shall also provide the number of students in each category participating in English as a Second Language Programs enrolled at such schools. (3) The report shall analyze and identify the effects upon the standard or quality of education provided to students who are citizens of the United States residing in Alabama that may have occurred, or are expected to occur in the future, as a consequence of the enrollment of students who are aliens not lawfully present in the United States. (4) The report shall analyze and itemize the fiscal costs to the state and political subdivisions thereof of providing educational instruction, computers, textbooks and other supplies, free or discounted school meals, and extracurricular activities to students who are aliens not lawfully present in the United States. (5) The State Board of Education shall prepare and issue objective baseline criteria for identifying and assessing the other educational impacts on the quality of education provided to students who are citizens of the United States, due to the enrollment of aliens who are not lawfully present in the United states, in addition to the statistical data on citizenship and immigration status and English as a Second Language enrollment required by this act. The State Board of Education may contract with reputable scholars and research institutions to identify and validate such criteria. The State Board of Education shall assess such educational impacts and include such assessments in its reports to the Legislature. (e) Public disclosure by any person of information obtained pursuant to this section which personally identifies any student shall be unlawful, except for purposes permitted pursuant to 8 U.S.C. Sections 1373 and 1644. Any person intending to make a public disclosure of information that is classified as confidential under this section, on the ground that such disclosure constitutes a use permitted by federal law, shall first apply to the Attorney General and receive a waiver of confidentiality from the requirements of this subsection.14 | P a g e
  15. 15. (f) A student whose personal identity has been negligently or intentionally disclosed in violation of this section shall be deemed to have suffered an invasion of the students right to privacy. The student shall have a civil remedy for such violation against the agency or person that has made the unauthorized disclosure. (g) The State Board of Education shall construe all provisions of this section in conformity with federal law. (h) This section shall be enforced without regard to race, religion, gender, ethnicity, or national origin.Enjoined Section 30 provides: (a) For the purposes of this section, "business transaction" includes any transaction between a person and the state or a political subdivision of the state, including, but not limited to, applying for or renewing a motor vehicle license plate, applying for or renewing a drivers license or nondriver identification card, or applying for or renewing a business license. "Business transaction" does not include applying for a marriage license. (b) An alien not lawfully present in the United States shall not enter into or attempt to enter into a business transaction with the state or a political subdivision of the state and no person shall enter into a business transaction or attempt to enter into a business transaction on behalf of an alien not lawfully present in the United States. (c) Any person entering into a business transaction or attempting to enter into a business transaction with this state or a political subdivision of this state shall be required to demonstrate his or her United States citizenship, or if he or she is an alien, his or her lawful presence in the United States to the person conducting the business transaction on behalf of this state or a political subdivision of this state. United States citizenship shall be demonstrated by presentation of one of the documents listed in Section 29(k). An aliens lawful presence in the United States shall be demonstrated by this states or a political subdivision of this states verification of the aliens lawful presence through the Systematic Alien Verification for Entitlements program operated by the Department of Homeland Security, or by other verification with the Department of Homeland Security pursuant to 8 U.S.C. Section 1373(c). (d) A violation of this section is a Class C felony. (e) An agency of this state or a county, city, town, or other political subdivision of this state may not consider race, color, or national origin in the enforcement of this section except to the extent permitted by the United States Constitution or the Constitution of Alabama of 1901. (f) In the enforcement of this section, an aliens immigration status shall be determined by verification of the aliens immigration status with the federal government pursuant to 8 U.S.C. Section 1373(c). An official of this state or political subdivision of this state shall15 | P a g e
  16. 16. not attempt to independently make a final determination of whether an alien is lawfully present in the United States.In Central Alabama Fair Housing Center, et al. v. Julie Magee, et al. the Alabama SupremeCourt enjoined the Department of Revenue‘s policy stemming from a provision of HB 56 thatcriminalized ―business transactions‖ with the state by undocumented immigrants.In December, 2011, the Court enjoined enforcement of a regulation requiring any person whoattempts to pay a fee to prove citizenship/lawful immigration status. It is not, under HB 56 illegalto apply for such. This case is probably moot due to the 11th Circuit order of March 8, supra.The Alabama Attorney General reported as of November 4, 2011 that in late July, 2011, fiveindividuals filed suit against Governor Bentley and Attorney General Strange in MontgomeryCounty Circuit Court styled Doe v. Bentley, Case No. CV-2011-882 (Montgomery CountyCircuit Court). Two of the plaintiffs were illegal aliens, two were citizens originally fromMexico, and one was a citizen married to an illegal alien. The plaintiffs filed a motion for apreliminary injunction early on, and then withdrew it. They also amended their Complaint twice,asserting federal and state claims. Hearings were held and on November 3, 2011, the plaintiffsmoved to voluntarily dismiss their suit. The next day, on November 4, 2011, the Court grantedthe plaintiff‘s motion dismissing the case.In late 2011, a German born Manager of the Tuscaloosa Mercedes-Benz plant was arrested inTuscaloosa for having no driver‘s license thus being unable to establish lawful presence in theState. After some embarrassing moments, the case was dismissed. Later, a Japanese-bornemployee of the Honda plant in Lincoln was arrested in North Alabama. The case was dismissedwhen it was discovered that the employee actually had in his possession and had presented to thepoliceman, a valid international driver‘s license. The Governor has personally apologized toGermany and to Japan and stated ―we want your business.‖No one has as of yet arrested for ―giving assistance to‖ undocumented persons in violation of theAct.At this point, it serves the reader well to understand the potential general effects on PublicHealth. "I dont want to spread fear, but any time people are afraid to get medical care there are potential complications.‖ - Dr. Jim McVay, ADPH.Realistically, the possible public health consequences were listed in a David Letterman-type―Top Ten‖ List by the Center for American Progress Immigration Team on November 14, 2011.57 1. Children may not get immunization program that protects all residents against diseases such as chicken pox, measles, polio, and even the flu. Health workers in Alabama report that people are afraid to come to their clinics for flu shots. Some parents57 Accessed March 6,2012.16 | P a g e
  17. 17. may be afraid to get flu shots for themselves or to get required children‘s immunizations. A key safeguard of public health is a robust their children, even though the law technically says that lawful status is not required for immunizations, our whole society is put at risk. 2. Communicable diseases may spread. Another bedrock of public health is accessible screening and treatment programs for communicable diseases. Tuberculosis and hepatitis are contagious diseases that are detected only through vigorous testing and cured only through consistent treatment. Alabama public-health officials warned the state years ago that if undocumented residents of Alabama were afraid of the immigration consequences of going to a health clinic, there would be increased risk of ―severe health problems and the spread of infections.‖ 3. Mothers may not get adequate prenatal care. It is common knowledge that healthy mothers are more likely to give birth to healthy babies. The Alabama law does not require lawful status for prenatal care, but undocumented mothers who are afraid to go to health clinics for fear of being asked for ―papers please‖ won‘t get the care they need. The head of the Alabama Department of Public Health, Don Williamson, warned in testimony in 2007 that there had already been a sharp increase in low-birthweight babies and infant deaths among the Hispanic population in the state and that fewer than half of Hispanic mothers had received prenatal care. Williamson urged that the state avoid establishing ―restrictions for programs that serve pregnant women, infants and children.‖ 4. Babies born to mothers who have not received good prenatal care may require additional medical care and will be a challenge to the public-health services in the state. As Dr. Williamson noted in his testimony, lack of access to maternal and infant preventative care can result in medical problems becoming ―serious and more expensive.‖ 5. 5. U.S. citizen children and those in lawful status may not get adequate health care. Citizen children of parents who are afraid to go to clinics, or whose parents aren‘t sure if they are barred by the ―business transaction‖ provision of the law, won‘t get the health care they need and deserve. ―Waiting rooms that once were full at some county health clinics just a few weeks ago now have empty seats because Hispanic patients stopped showing up,‖ reports Dr. Jim McVay of the Alabama Department of Public Health. Citizen kids will suffer lifetime consequences that follow from not getting adequate health care when they are young. 6. Water may be less safe. Clean water is a fundamental requirement for a healthy society. Serious public-health risks such as E. coli infections and even cholera can spread through contaminated water. If residents of Alabama can‘t get public water and sewer service, and can‘t even get permits to repair or install safe septic tanks, they will be forced to use potentially unsafe water, which could expose them to health risks and then others they come in contact with. Broken septic systems also can contaminate the public water supply. Everyone will be exposed to unnecessary health risks and dangers. 7. Restaurants may be unable to get health permits. The Alabama Department of Public Health is now requiring proof of citizenship for health permits for restaurants. While many restaurant owners who can‘t meet this requirement will shut down, others may simply try to operate underground without health permits, at least until overworked health inspectors locate and stop them. The risk to public health will only increase under these conditions.17 | P a g e
  18. 18. 8. Food supplies may be less safe. Safe food is a fundamental requirement for a healthy society. Outbreaks of E. coli in the food supply have already alarmed the public in recent months. If residents of Alabama are unable to obtain septic permits, the resulting contaminated water will run off into farms and fields, and the food supply will be less safe. Public risk of food-borne disease will increase. 9. Public health costs will increase. Alabama‘s new immigration law may temporarily reduce the cost of providing medical care to undocumented residents, but it will greatly increase the overall cost of medical care for all residents of Alabama who will be exposed to increased risk and disease as the result of the shortsighted policies listed above. The more people delay primary care, for example, the greater the likelihood that they will require more expensive emergency care down the road. 10. Bottom line: All of the people of Alabama may suffer negative health consequences. The 4.8 million people of Alabama will suffer unnecessary and increased public health risks as the result of a law intended to punish and drive out 2.5 percent of the population. Such high risk for such alleged benefit does a terrible disservice to all of the people of Alabama.The Center also has a ―Top Ten‖ ―List of things You Should Know about‖ the Act. 1. 2.5 percent—The percentage of Alabama‘s population that is undocumented. That makes Alabama 20th in the nation in terms of the number of undocumented immigrants (120,000) residing there, well below states such as California (more than 2 million) or even Colorado (180,000). 2. $40 million—A conservative estimate of how much Alabama‘s economy would contract if only 10,000 undocumented immigrants stopped working in the state as a result of H.B. 56. 3. $130 million—The amount Alabama‘s undocumented immigrants paid in taxes in 2010. These include state and local, income, property, and consumption taxes. This revenue would be lost if H.B. 56 were to do its job and drive all unauthorized immigrants from the state. 4. $300,000—The amount one farmer, Chad Smith of Smith Farms, estimates he has lost because of labor shortages in the wake of H.B. 56. Another farmer, Brian Cash of K&B Farm, estimates that he lost $100,000 in one single month because of the law. 5. 2,285—The number of Hispanic students who did not attend class on the first Monday following the judge‘s ruling upholding key parts of H.B. 56., including the provision mandating schools to check the immigration status of students. 6. 15 percent—The percentage of absent Hispanic students (at peak) too afraid to attend school, comprising 5,143 children, since the law went into effect. 7. 1.3 percent—The percentage of Alabama schoolchildren who are not citizens of the United States. H.B. 56 intends to expend considerable resources to drive out a small percentage of the school-age population. 8. 2,000—The number of calls made in the first week to the Southern Poverty Law Center‘s hotline. Calls to hotline are reporting civil rights concerns related to the impact of H.B. 56, highlighting the extreme anxiety among the immigrant population. 9. $1.9 million—The amount of money that was spent by Arizona to defend S.B. 1070, a similar anti-immigrant law. The Arizona litigation is ongoing and can expect higher costs.18 | P a g e
  19. 19. With Alabama already facing multiple rounds of legal challenges, their costs are certain to be just as high, if not higher. 10. $2.8 billion—What it would cost the government if they were to deport all 120,000 undocumented migrants in Alabama. Each deportation costs American taxpayers $23,482.58Thus the following sections if allowed to stand, could have an immediate effect on health andsocial care:  Section 7: Public Benefits - (effective.)  Section 9: Contracts - (effective.)  Section 29: Birth Certificates - (Enjoined.)  Section 30: Business Transactions - (Enjoined.)The affect on directly offering health care services is apparent under Section 7. An alien that isnot legally present in the U.S. is not entitled to receive certain public benefits. As alreadydefined, an alien is a person who is not a U.S. citizen or national. The term ―public benefits‖includes certain healthcare services including well-baby checkups. However and admittedly,many services/programs are excluded or exempt from the citizenship/lawful presenceverification requirements pursuant to state or federal law/rules/guidance. Exempt programs orservices include the following: WIC, Immunizations, In kind disaster relief, Communicable disease, Pre-natal care, Emergency medical treatment, Child or adult protective services, Family planning ABCCEDP (Cancer screening,) and Tobacco Cessation programs.Section 9 could affect the direct administration of health and social care licenses in the followingprograms: Environmental, Emergency Medical Services, Radiation Control, Health Care Facilities, and Issuance of Birth Certificates.Likewise, verification of U.S. Citizenship and lawful presence of aliens participating in thefollowing programs is also not required as the Alabama Medicaid Agency determines eligibilityto receive the services:58 Accessed March 6,2012.19 | P a g e
  20. 20.  Patient First,  Plan First,  EPSDT,  Dental (Medicaid clients), and  Home Health (Medicaid/Medicare clients.)The problem with permits obtains because an ―alien not lawfully present in U.S. may not enterinto a ‗business transaction‘ with the state. To contract, the Act requires that every ―personentering into a business transaction shall be required to demonstrate U.S. citizenship or lawfulpresence in the U.S.‖ A ―business transaction‖ includes licenses/permits issued to individuals byADPH. However, Attorney General Opinion 2011-01 holds that this provision is to be enforcedonly when ―SAVEd‖ and ADPH is still ―lost.‖ That is to say, if an agency does not have a SAVEaccount, it doesn‘t have to verify until it gets one. ADPH has applied as required by the Act, butit has been months and ADPH has not yet been notified that it is approved. Thus, ADPH does notapply this requirement of the Act.However, Act 2011-535 only impacts the licensing and permitting of individuals. It does notimpact the licensing or permitting of business entities, other than sole proprietorships Thus, apartnership or corporation which runs a restaurant or other potential permitee is not subject to―SAVing.‖For purposes of implementing the Act, an applicant for a license/permit is the individual towhom a permit/license is issued, not necessarily the person signing or submitting the application.It is the applicant’s citizenship/lawful presence that must be determined.How do you determine if an applicant is a business entity other than sole proprietorship?Check the application for the name of the business to which the permit/license is issued - Inc.,LLC, and LLP indicate types of business entities other than sole proprietorships. You mustrequire the applicant to provide the legal name of the business on the application and the type ofbusiness entity.However, verification is required for Non-Medicaid dental services, private pay or indigent homehealth and social services, prostate screenings, and non-Medicaid covered services provided towalk-in clients. Example: blood pressure checks and administration of patient carriedmedication prescribed by outside provider.As stated supra., CHIP is already required to verify citizenship or lawful presence of aliens butis authorized by Act 2011-535 to utilize other means approved by the Federal government.ADPH CHIP already has an account with SAVE and already verifies applicants. An attachment isa list of benefits/programs and whether included in prohibition or excluded.Section 15 of the Act requires employment verification. Beginning in April, 2012, all employers,including state agencies must E-verify all new hires using SAVE, an inter-governmental initiativedesigned to aid benefit-granting agencies in determining an applicants immigration status, andthereby ostensibly ensuring that only entitled applicants receive federal, state, or local public20 | P a g e
  21. 21. benefits and licenses. The Program is an information service for benefit-issuing agencies,institutions, licensing bureaus, and other governmental entities.The means of verifying include the following. Attachment 1 is the form used by ADPH to verify. Completion of a declaration form by client/applicant. Provision of documents demonstrating U.S. citizenship. Provision of documents demonstrating lawful presence of an alien AND verification of lawful presence through the federal government‘s Systematic Alien Verification for Entitlements (SAVE) Program or Rely on documents provided by client and determinations made by SAVE. Determinations of citizenship cannot be made based upon race, color, or national origin.One method of verifications is by personal declaration. They file a Declaration Form which mustbe submitted when initially presenting for health and social services and applying for orrenewing permits or licenses. It is important to ensure that all sections are completed. Theapplication process is incomplete without a properly completed declaration form. You shouldnot issue license or provide a service if it is incomplete. The applicant must sign and date form. Aparent or legal guardian may sign the form on behalf of the minor receiving servicesIf the applicant declares himself/herself to be U.S. citizen, he/she must present a documentdemonstrating such from List A. A valid Alabama driver‘s license is acceptable. A valid driver‘slicense from another state may not be. A legible copy of a document indicating U.S. citizenshipis also acceptable.If the applicant declares to be a lawfully present alien, he/she must present a documentdemonstrating such. Federal law requires non-citizens 18 years or older to have immigrationdocumentation in their possession at all times. Acceptable forms of documentation are found inList B and include so-called ―green cards.‖Most non-citizen registration documents may be photocopied. Any INS document that cannot bephotocopied will have a warning printed on the document. Do not photocopy an INS documentwith a warning not to copy. Information from the document including, but not necessarilylimited to, the full name of the applicant, the date of birth, and the alien registration number onthe document may be communicated to the designated SAVE user.If the applicant declares to be a lawfully present alien and provides supporting documentationfrom List B, provide information from the document to the designated SAVE user for your officeto verify lawful presence through SAVE. The SAVE response is generally instantaneous.Likewise, the following may be used to demonstrate lawful presence of an alien.(Remainder of page intentionally left blank.)21 | P a g e
  22. 22. Below is a flow chart of services and how the field practitioner makes a determination as towhether to render services.22 | P a g e
  23. 23. 23 | P a g e
  24. 24. SAVE is an inter-governmental initiative designed to aid benefit-granting agencies indetermining an applicants immigration status, and thereby ensure that only entitled applicantsreceive federal, state, or local public benefits and licenses. The Program is an information servicefor benefit-issuing agencies, institutions, licensing bureaus, and other governmental entities.It is important to note that the SAVE Program does not make determinations on any applicantseligibility for a specific benefit or license. Neither does SAVE verify status for employment. Toverify the status of a new employee, one must go to: "E-Verify Employment VerificationProgram.‖The SAVE Program uses electronic and paper records for accessing information to verify anapplicant‘s immigration status. As stated, earlier, ADPH is in the process of registering to useSAVE. The process may take 60-90 days. Only designated users may access the SAVE Program.The eligibility of an applicant cannot be based upon an applicant‘s race, color, or national origin,therefore you should not single out individuals who look or sound foreign for closer scrutiny orrequire them to provide more documentation of citizenship or immigration status than what isrequired. Decisions about U.S. citizenship shall only be based upon documentation provided.Under the Act, ADPH must provide a certified copy of a birth certificate free of charge for thepurpose of registering to vote in this state. A sworn affidavit is required stating that the personplans to vote in this state and does not possess documents that constitute evidence of U.S.citizenship. ADPH has found that while it has had a few requests for these, there have not reallybeen many requests.Hospitals and EMTALA. The Act has a possible conflict with the federal Emergency MedicalTreatment and Labor Act (EMTALA).59 Under EMTALA, to protect against hospitals refusingpatients who cannot pay or who do not have insurance, the hospital must perform an emergencyscreening examination, provide emergency medical care until the condition is resolved orstabilized and the patient is able to provide self-care following discharge, or if unable, canreceive needed continual care. The hospital must transfer the patient if it is unable to care for thepatient.There are, however, emergency exceptions – a hospital may not turn away any person regardlessof nationality or immigration status if such person needs emergency care and may not dischargesuch person until stable, though law enforcement may be used to keep them secure. Also appliesto hospital-based clinics/services (EMS.) EMTALA does not apply to other health care providers.HB 56 excludes ―emergency treatment.‖The quandary is when a person is brought into a publically supported hospital on an emergencybasis, is stabilized and treated and the emergency situation brought under control and asubsequent condition is found while in hospital. Under the Act, the hospital may not renderservices to the person for subsequent, non-emergent conditions.59 42 U.S.C. § 1395dd.24 | P a g e
  25. 25. HIPAA Consequences. Under the Health Information Portability and Accountability Act(HIPAA),60 a covered entity may, but is not required to disclose protected health information(PHI) without a patient‘s consent if such disclosure is required by law to: follow a court order orcomply with subpoena, locate a fugitive or suspect alert law enforcement of a crime taking placeon premises (I.E. violating Alabama Immigration Law.) HIPAA, itself does not requiredisclosure, it is permissive only. Even so, disclosures must be only ―minimum necessary‖ PHI.This could present a technical conflict with the required reporters provision of the Act.Required Reporters. State employees, only, are required reporters under HB 56. Requiredreporters have a legal duty to inform the authorities of violations of the law. See: 13A-10-2, Codeof Alabama 1975. Failure to do so is a misdemeanor offense. This duty does not apply to privatecitizens. Thus, an employee of a publicly funded hospital that does not inform authorities of theundocumented status of a patient is in technical violation of HB 56. Contrawise, if the employeedoes report such, he/she is in technical violation of HIPAA.Proposed Amendments. In recognition of the controversy and in response to objections by certainreligious, law enforcement and advocacy groups, both Gov. Bentley and legislators have pledgedto introduce some revisions to HB 56. However, they have cautioned that such amendments willbe only minor in scope and that the overall tough will not be compromised.For example, the House Public Safety and Homeland Security Committee passed a bill61 in earlyFebruary that would allow military identification to be presented as proof of citizenship whenconducting official government business or purchasing car tags.However, other legislators feel that these proposed changes are missing the mark and are insteadproposing their own amendments. For example, Senator Gerald Dial (R-Lineville) -- whopreviously voted in favor of the bill -- has now introduced a measure calling for amendments toHB 56 based in part on the recommendations of the Alabama Attorney General. Some of theseamendments include: A Good Samaritan clause so that those who provide assistance to an undocumented immigrant wouldnt face potential criminal charges; A measure preventing teachers from verifying the immigration status of students; and A measure allowing military IDs to be accepted as identification for all circumstances.Sen. Billy Beasley (D-Clayton) has pre-filed a bill seeking to repeal the law. However, he alreadyadmits that the bill faces a real challenge in the Republican-dominated state legislature. LikewiseSen. Vivian Figures and others filed SB-41 and Rep. Todd filed HB-106 which would repeal HB56. HB-256 by Rep. J. Hubbard would ―clarify‖ the provisions of HB 56 requiring schools to IDstudents. SB 57, 75 and 195 all deal with the E-Verify provisions.60 P.L. 104-191, 110 Stat. 1936, (enacted August 21, 1996,) as amended by Subtitle D of the Health InformationTechnology for Economic and Clinical Health Act (HITECH Act), enacted as part of the American Recovery andReinvestment Act of 2009, P.L. 111-5.61 HB-413.25 | P a g e
  26. 26. Though there are a few other bills which propose minor amendments, I find no proposedamendments that would significantly change the substance of HB 56 short of the bills proposingoutright repeal. As Sen. Beasley observed, that prospect is very dim indeed.Summary. HB 56 in substantially its present is not only the law in Alabama, but it appears that itwill continue to be the law for the foreseeable future. If that is the case, the State‘s General Fundwhich has an enormous shortfall this year, is in for even leaner times.A recent study62 by Dr. Samuel Addy, an economist at the University of Alabama, looked into thecosts and benefits of Alabama‘s HB 56 immigration law and found that the legislation is actually―rather costly to the state.‖ The Addy report found that HB 56 would cause Alabama to loseabout 70,000 to 140,000 jobs, $2.3 billion to $10.8 billion in GDP (that is 1.3 to 6.2 percent ofthe economy), $56.7 million to $264.5 million in state income and sales taxes and $20 million to$93.1 million in local taxes.The report estimates that HB 56 will cause between 40,000 and 80,000 workers to leave the stateeach year. ―Some say that all of these jobs will be filled by unemployed legal residents … butyou can‘t replace all the workers, no matter what you do. The economy shrinks,‖ said Dr. Addyin a conference call.Most of Alabama‘s 85,000 undocumented workers are in the agriculture, construction,accommodation and food services, and drinking places sectors, according to the study.Undocumented workers make up about 24% of the workforce for these sectors in Alabama. Itwon‘t be easy to fill all of these jobs even in a distressed economy, according to Dr. Addy.For an interesting video see: November 15, 2011 ―Rock Center with Brian Williams.‖ Center for Business and Economic Research. Culverhouse School of Business, University of Alabama. AccessedMarch 8, 2012.26 | P a g e
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  29. 29. ALABAMA DEPARTMENT OF PUBLIC HEALTH DECLARATION OF CITIZENSHIP AND LAWFUL PRESENCE OF AN ALIEN FOR PUBLIC BENEFITS AND LICENSING/PERMITTING PROGRAMSTitle IV of the federal Personal Responsibility and Work Opportunity Reconciliation Act of 1996,8 U.S.C. § 1621, provides that, with certain exceptions, only United States citizens, United States non-citizen nationals,non-exempt ―qualified aliens‖ (and sometimes only particular categories of qualified aliens), nonimmigrants, and certainaliens paroled into the United States are eligible to receive covered state or local public benefits.With certain exceptions, Alabama Act 2011-535 prohibits aliens unlawfully present in the U.S. from receiving state or localbenefits. Every U.S. Citizen applying for a state or local public benefit must sign a declaration of Citizenship, and thelawful presence of an alien in the U.S. must be verified by the Federal Government.Act 2011-535 also requires every individual applying for a permit or license to demonstrate his/her U.S. citizenship or if theapplicant is an alien, he/she must demonstrate his/her lawful presence in the United States.Directions: This form must be completed and submitted by applicants for health care benefits/services that are notexempt or excluded from citizenship/lawful presence verification requirements. Medicaid/Medicare clients are notrequired to complete this form as eligibility to receive services has already been determined by Medicaid/Medicare.This form must also be completed by individuals applying for licenses or permits. An individual includes a soleproprietorship, but does not include other business entities such as corporations. SECTION 1 --- APPLICANT INFORMATIONNAME: ___________________________________________________________________________________________(Print or Type) (Last) (First) (M.I.)DATE OF BIRTH: ______________________________________________________________________________ SECTION II --- U.S. CITIZENSHIP OR NATIONAL STATUSAre you a citizen or national of the United States (check one) ___ Yes ___ NoIf you answered YES: (1) Provide an original or legible copy of document from attached List A or other document thatdemonstrates U.S. citizenship or nationality and (2) Complete Section IV.If you answered No: Complete Sections III and IV.Name of document provided: __________________________________________________________________ SECTION III – ALIEN STATUSAre you an alien lawfully present in the United States? ___ Yes ___ NoIf you answered Yes: (1) Provide an original or legible copy of the front and back (if any) of a document from attachedList B or other document that demonstrates lawful presence in the United States. (2) Complete Section IV. Informationfrom the documentation provided will be used to verify lawful presence through the United States Government.If you answered No: Complete Section IV.Name of document provided: _________________________________________________________________. SECTION IV -- DECLARATIONI declare under penalty of perjury under the laws of the State of Alabama that the answers and evidence I provided are trueand correct to the best of my knowledge.__________________________________________________ _______________APPLICANT‘S/ LEGAL REPRESENTATIVE‘S SIGNATURE DATE______________________________________________ _________________________________If signed by legal representative, Relationship to Patient Health Dept. Employee 29 | P a g e