But 11th Circuit Decision on Ala., Ga. Laws Preserves Some Abusive Provisions
(New York) – A federal appeals court ruling on August 20, 2012, that held that Alabama and Georgia overstepped their authority to regulate immigrants left intact abusive provisions. The court preserved provisions that allow authorities to investigate a person’s legal status during police stops.
The US 11th Circuit Court of Appeals ruled in three cases that Alabama authorities may not require immigration verification of children before they enroll in school nor prohibit state courts from enforcing contracts in which one party was an unauthorized immigrant. The court also held that Georgia may not punish people who work with or transport undocumented immigrants.
“We’re seeing the courts repeatedly slap down states that pass overbroad, highly punitive laws on unauthorized immigrants,” said Maria McFarland, acting US Program director at Human Rights Watch. “Other states should be wary of following Georgia and Alabama’s path.”
The 11th Circuit left intact, however, a key part of immigrant laws in Alabama and Georgia that allows authorities to demand proof of legal status during police stops, which has already resulted in abuses in Alabama.
Human Rights Watch’s 2011 report “No Way to Live” found that the Beason-Hammon Alabama Taxpayer Citizen and Protection Act, known as HB 56, resulted in increased incidents of discriminatory harassment by state authorities and private individuals. Alabama state officials publicly insisted they would not tolerate racial profiling, but in practice, reports of harassment grew.
The International Convention on the Elimination of All Forms of Racial Discrimination, which the United States ratified in 1994, requires the government to ensure that immigration policies do not result in discrimination based on race, color, descent, or national or ethnic origin. Actions by the police that have discriminatory effects, even in the absence of an intent to discriminate, put the government in violation of the treaty. In 2010 the federal government reminded all state governors of their obligations under the anti-racism treaty.
Alabama’s law also attempted to require students in public schools to disclose their immigration status. While the US Supreme Court held in 1982 that unauthorized immigrants could not be barred from public primary education, passage of HB 56 resulted in many parents pulling their children out of school, as documented in “No Way to Live.” The 11th Circuit found that forcing students to reveal their unauthorized status would lead to “criminal prosecution, harassment, and intimidation” and would violate the US Constitution’s Equal Protection Clause, which provides that no one in the United States should be denied the equal protection of the law.
The court also struck down a section of the Alabama law that would bar state courts from enforcing contracts in which one party is an unauthorized immigrant. The court said that, as a result of the provision, “essentially, the ability to maintain even a minimal existence is no longer an option for unlawfully present aliens in Alabama.” The court found that the provision conflicted with the federal government’s ability to permit the presence of the immigrant in the state, and was therefore preempted by federal law.
The US federal immigration system, as documented in several Human Rights Watch reports, frequently falls short of international human rights standards, from failing to create safe conditions in immigration detention to failing to ensure that all victims of crimes, including immigrants, have access to justice. Free-standing state immigrant laws hinder the US government’s ability to regulate immigration in a way that respects the rights of everyone within US borders.
The US Congress should move swiftly toward comprehensive immigration reform that respects human rights and prevents racially motivated abuses.
“Legal challenges to state-level abuses against immigrants will keep coming and may prevail,” McFarland said. “But to prevent further harm, Congress should jump into the fray and enact comprehensive immigration reform.”