Alabama appeals part of immigration decision to U.S. Supreme Court

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Gov. Robert Bentley signed the state’s immigration law on June 9, 2011. (Montgomery Advertiser, Mickey Welch)

The Attorney General’s office has appealed a ruling on the state’s controversial immigration law to the U.S. Supreme Court, arguing an appeals court erred in striking down a law banning the concealment or harboring of undocumented aliens.

The petition for a writ of certiorari was filed Tuesday. The Attorney General’s office declined to comment on the appeal Wednesday.

Last August, the 11th Circuit Court of Appeals upheld a district court’s injunction of several provisions of the law, known as HB 56, in its decision in United States v. Alabama. The district court blocked the harboring provision, saying it was pre-empted by federal law and led to “an untenable expansion of the federal harboring provision,” and adding it could even prevent an undocumented alien from being a passenger in a vehicle.

In its decision, the 11th Circuit used the Supreme Court’s ruling in Arizona v. United States, handed down last June, which struck down a number of provisions in the Arizona law. That law, known as SB 1070, was a model for Alabama’s statute.

In its brief, the Attorney General’s office argues the provision “supplements” existing federal law and notes the provision was not included in the court’s Arizona decision. The Attorney General’s office also argued the 11th Circuit “misapplied” the Arizona ruling to the Alabama case.

“For each criminal activity that both the States and federal government choose to prohibit, there will always be a possibility that a local D.A. will pursue a case that a local U.S. Attorney has chosen to let go,” the brief argues. “But the courts do not normally call this phenomenon ‘conflict preemption.’ They normally call it ‘federalism.’”

Besides the harboring provision, the 11th Circuit Court of Appeals in August also enjoined Section 10 of the law, which made it a state crime for an unlawfully present alien to willfully fail to “complete or carry a registration document,” and Section 27, which prohibited the enforcement of contracts with unlawfully present aliens. The harboring provision is the only part of the 11th Circuit’s United States v. Alabama decision the state is appealing.

In a separate case — Hispanic Interest Coalition et. al. v. Alabama — the appeals court struck down a provision that would have required schools to collect data on undocumented students at the time of enrollment. As of late Wednesday morning, the state had not filed a petition with the U.S. Supreme Court on that case.

– posted by Brian Lyman

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