11th Circuit Court Hearings on HB 56/HB 87

It had rained heavily and so the angels of mercy were kind as we encountered no additional rain as we left Northport at 3 AM CST to be at the court house in Atlanta for 8 AM EST.   I had been able to get in two hours of good sleep before setting out so I wondered how I would fare the drive and the day.

At the 56 Forsyth Street court house the majority of people waiting to sit in on the hearing appeared to be attorneys but in the line waiting to enter were familiar faces.  And across the street immigrants began to gather to carry signs, to march, and to show their outrage that our fair country would seek to bar them from living towards their full potential as human beings. Somos Tuskaloosa members who came with me to Atlanta joined the picket line to make their presence known.  I was grateful the Rev. Jan Tadeo of our Unitarian Universalist Gwinnett County congregation joined me inside.

There were three judges hearing this case: Judge Martin, Wilson, and Voorhees from North Carolina.   Voorhees for the most part remained stoic and silent in the procedures, only offering two or three questions or comments.  He was the hardest of the judges to read.

The disappointing news was the court decided to withhold their judgment until after the Supreme Court rules on the Arizona SB 1070 case.  Several of the sections being contested were similar to that case and they will defer to the Supreme Court case.  This is disappointing because there are other parts of AL HB 56 and GA HB 87 that are not in the SB 1070 statute and unless continued to be enjoined would cause continued harm and humanitarian crisis in our respective states. The judges heard the arguments pertaining GA’s HB 87 law first.

The judges wanted to know how GA HB 87 was different from the 1956 PA vs Nelson case which pertains to a sedition act the state of Pennsylvania passed. The courts ruled that Pennsylvania’s Sedition act over rode the Federal law and states cannot pass laws that do that. Judge Martin stated HB 87 seems to be doing the same thing.

The judges brought out that there are individuals that are without documentation but are allowed to be in this country.  Police are going to look at the plain language of this law and not accept a person who is allowed to be here but not legal.  The police are asked to make this determination of legal status and detention which is squarely placed in the role of federal officers. How does HB 87 compliment the Federal law and not usurp its authority in this matter?

At one point, Judge Wilson wondered if illegal population laws have morphed into a public safety concern and therefore states can regulate for the health and safety of the public; including penalizing people who assist undocumented aliens as part of that public safety concern.

The notion that controlling immigrant populations could be considered a public safety concern like controlling rat populations is a public safety concern sickens me, yet I realized this is indeed the point of view that Georgia, Alabama, and Arizona have taken.

It was the Alabama’s case, where the judges asked the harder questions.  HB 56 includes that undocumented persons are not to enter into any transaction within the state.  Where will the undocumented live, how will they access utilities such as water?  The penalties are harsh, the judges said.  What happens with the individual who is in violation of HB 56, criminalized for their presence within AL, charged and convicted with a felony, and jailed under this law; and then an immigration judge determines the person is free to remain in the country?  Where are they to live?  It is illegal for them to be in Alabama.  What if all 50 states were to pass similar laws?   What makes this law not an expulsion law of immigrants?

The attorneys tried to argue that the State Attorney General did not interpret the law in this manner.  Landlords would not be penalized if they rented without knowing the person’s status, and utilities would not be denied regardless of status.  The judges shot back that we can not elevate the Attorney General’s opinion regarding the law over the face of the law.  You can say the Attorney General said that but where does it say that in the statute regarding water?

Could an illegal alien get a more favorable treatment in Minnesota than in Alabama? Yes.  Is this therefore not a policy of expulsion?  The attorneys for the state said, No this is not the intent.  The judge shot back, I don’t see how this law operates in any other way.  [Rep. Hammon stated this law was to make life untenable in all arenas of life for undocumented immigrants forcing them to leave the state-in short a policy of expulsion.]

Again, if all 50 states had this provision where would an unlawful person live, who was determined to be allowed to remain in the country?  Does the federal government that is in negotiation with another country have the right to determine whether an undocumented person can remain in the country? Homeland Security as the determining voice in the statute would only be able to confirm if person was unlawfully present, not that the person is allowed to remain, that decision might be issued later by an immigration judge.  In the meantime, the person is sentenced and jailed in Alabama as a felon criminal.

The judges asked if the school registration requirement was anything more than a scare tactic.  They wondered how the birth status of a child determines if the parent is undocumented?  Isn’t there the fear that if children are declared undocumented they could then face deportation?  The judges did not state this plainly, but it seemed they were pointing to the 5th amendment regarding not participating in self-incrimination.

The state argued this was at most a classification edict to determine the number of immigrants. While the state could be required by the federal government to release this information to them, that is not the intent of this law.  If this information is sent to the federal government, the attorney general must be notified.  The child has the choice to not self declare their status and will be able to remain in school regardless of status. Judge Martin shot back, but if the student does not self-declare they are presumed to be undocumented so how does offering them a choice matter?

The attorneys arguing for this section to be struck stated that while all students are allowed to remain in school, it is what happens after the point of inquiry of status that also needs consideration.  It is the stigmatizing effect that results in removal of the student.  The attorney is referring to the increased ethnic bullying that is occurring in the schools by both teachers and students, regardless of the students’ status.

It is this stigmatizing and apparent societal permission to expressing racism that is occurring through out Alabama and Georgia as a result of these laws.  People who are casually speaking Spanish in public are being confronted with shouts of being illegal. Citizens who are brown are being accosted by strangers and angrily told to go back to Mexico.  People are feeling justified in their racism because this law exists. When laws justify racism then they are unjust laws that seek not to keep harmony within the community but rather seek to divide it.

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One Comment

  1. Thank you for attending and reporting. It truly is sickening to witness some people’s views on immigrants. It also is clear that laws such as these empower people to speak and act in ways that disregard basic human rights and decency.


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