Ana is a nine-year-old girl who lives in a small town in rural Alabama. She attends elementary school and has excelled at reading. She goes through about two books a week. I met Ana and her family recently at a legal clinic for low-income immigrant families in her small part of Alabama. As an immigration attorney, I have been fortunate to participate in several legal clinics across Alabama assisting the state’s underserved immigrant population. Ana was born in Alabama, about a year after her mother and older sister rejoined her father, who had been working in the United States. In her home, she speaks Spanish, and in school she learns all of her subjects in English.
Ana’s father left Guatemala for the United States to find work twelve years ago. Like many other Hispanics, he found work in a poultry plant. The work was grueling, but he was happy to have the employment and sent nearly half of his income to Guatemala for his wife to buy food for herself and their oldest daughter Celina. The Guatemalan Civil War had ended just a few years before, but the country was still ravaged by thirty years of war and human rights violations by the country’s military, a military that received funds from the United States in the 1960s and 1970s.
Because she was born in the United States, Ana is a U.S. citizen. When she grows up, she can work for the federal government if she chooses, and when she turns eighteen, she can vote. Her sister Celina is without legal status because she crossed the border with her parents without a visa when she was three years old, and she will not be able to obtain a driver’s license when she turns sixteen in a few years.
Ana and her family came to me because they wanted to know what could be done about their immigration status. They also wanted to know more about Alabama’s infamous immigration law, H.B. 56, and how it may affect the parents’ ability to work or the children’s opportunity to attend school.
The Beason-Hammon Alabama Taxpayer and Citizen Protection Act, also known as the Alabama Immigration Law, or H.B. 56, went into effect on September 28, 2011. Despite its name, the bill fails to provide any protection for certain taxpayers—undocumented immigrants who paid $130 million in taxes in Alabama in 2010. After the bill was proposed in March, it labored for months in the State House while the immigrant community in Alabama scrambled for information on the bill’s contents and implications. The panic reached a fever pitch in June, when Governor Robert Bentley signed the bill into law, and continued as nonprofit organizations, the U.S. Department of Justice (DOJ), and religious leaders battled the state over the law. Community organizations, such as the Hispanic Interest Coalition of Alabama (¡HICA!), saw a dramatic increase in the number of clients seeking services including powers of attorney, consultations on immigration issues, and assistance with passport applications. ¡HICA! saw an increase in clients in 2011 by over 50 percent from those served in 2010.
Alabama Brings the Immigration Issue into the Classroom
One growing concern about H.B. 56 has been the effect that the law has had on education, particularly on immigrant children. Clearly, children are not immune to what takes place outside of school. That being said, the Alabama law takes the immigration issue one step further than any other state. By bringing the issue of immigration directly into the classroom, Alabama has created an even greater distraction for immigrant and nonimmigrant kids in school.
While some sections of the law were blocked by U.S. District Court Judge Sharon Blackburn, likely the most controversial part of the law, section 28, was allowed to go into effect. Section 28 states that “[e]very 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.” Therefore, the law requires that every public school in the state inquire into the immigration status of students and their parents when students enroll in school.
Schools cannot deny education to a child based on immigration status, as held by the U.S. Supreme Court in Plyler v. Doe, 457 U.S. 202 (1982). The Court found that the Texas state statute in the case violated the Fourteenth Amendment of the Equal Protection clause because the state failed to show that it had a substantial government interest. The Court also explained that denying children access to education “imposes a lifetime hardship on a discrete class of children not accountable for their disabling status. . . . By denying these children a basic education, we deny them the ability to live within the structure of our civic institutions and foreclose any realistic possibility that they will contribute even in the smallest way to the progress of our Nation.” Id. at 223. Therefore, kids like Celina, who crossed the border with their parents as children, should not be persecuted for the acts of their parents.
While there is no rationale given for section 28 by the state of Alabama, many state residents have expressed concerns over tax dollars and how an increase in immigration to Alabama over the last ten years has affected the public school systems. According to the 2010 Census, Alabama had the second highest growth of Latino population in the country since 2000. However, the Alabama lawmakers who sponsored the bill have shown clear evidence of prejudice against racial or national origin minorities. Senator Scott Beason used a racial slur while wearing a wire during an FBI investigation into an alleged vote-buying scheme. Representative Micky Hammon quoted numbers of Alabama’s Hispanic population when asked about how many undocumented immigrants were in the state. During a legal challenge to one section of H.B. 56, U.S. District Judge Myron Thompson cited examples of Alabama lawmakers using the terms “Hispanic” and “illegal immigrant” interchangeably. Judge Thompson stated that the H.B. 56 legislative debate was “laced with derogatory comments about Hispanics.”
Regardless of the intent behind section 28, the DOJ issued a memo in May to state agencies explaining that the immigration status of students is irrelevant in administering education. Further, schools cannot use that information to discriminate against students of a particular race or national origin. While the law does not facially discriminate against Hispanics, it clearly has had that effect since its enactment.
The Monday after H.B. 56 took effect, 2,285 Latino students were absent from school out of the 34,000 Latino students statewide. That absentee rate is nearly double what it would be on a normal day. Over fear of Alabama’s immigration law, many parents elected to keep their kids out of school. The DOJ memo also recommended that states review their enrollment procedures to ensure that they do not have a chilling effect on education. Drops in attendance of Hispanics, such as the one in Alabama, are evidence of a potential barrier to education that violates the United States’ long line of cases that ensure all children of a right to an education. Even though section 28 was later blocked by the Eleventh Circuit Court, the damage had been done.
In the first few months after the enactment of H.B. 56, the Latino community in Alabama was in a complete panic. Even the elected state officials will admit that the seventy-page law is extremely confusing. Imagine how an immigrant, who may not speak English proficiently, would fare in deciphering it.
To further complicate an understanding of H.B. 56, there have been many developments in the courts as to which sections are blocked as well as interpretations made in different counties and city governments on parts of the law. Since the law went into effect, government agencies, religious organizations, and many nonprofit organizations, including ¡HICA!, the Southern Poverty Law Center (SPLC), and Alabama Appleseed, have worked diligently to educate the community on the contents of the law. However, there is virtually no way to educate everyone on how the law is being interpreted in each county. I have spoken with many school officials and law enforcement officers that stated that they had absolutely zero training on H.B. 56 before the law took effect. Furthermore, there are no provisions in the law to provide funding for this dramatic expansion of state employees’ duties.
Numerous teachers have reported that children have been unable to concentrate because they are fearful or are being bullied. Immigrant children, both those with immigration status and those without, do not know if they will be back in school the next day. One parent reported that her Puerto Rican and therefore U.S. citizen son was asked by a classmate if he had a green card. When her son answered in the negative, the classmate said, “You’ll have to leave the country.”
Even children who are not being bullied have been significantly less attentive in the classroom. Jefferson County ESL Coordinator Lari Valtierra explained that many immigrant children, even those who are U.S. citizens, have their bags packed in case they need to leave Alabama. Children call home during the day to see if their parents are still there or if police or immigration picked them up. One Birmingham area teacher had to reassure a legal permanent resident student that she did not need to go home to check to see if her parents, who are also legal permanent residents, had been detained. Children are also fearful of their parents losing their jobs, which would mean that they would no longer be able to obtain health insurance. Valtierra explains that H.B. 56 has affected high school students more than middle and elementary school kids. Some teenagers have begun working forty hours per week in addition to attending school to help support their family because one or both parents have been detained or fired due to their immigration status.
Several schools have tried to help Hispanic kids by giving them flyers on the immigration law. However, some parents reported that their children received the papers because they had foreign-sounding names or because the school felt that they looked like immigrants. In providing this information to people based on their national origin or race, it differentiates children from their classmates and further drives the wedge that Alabama has created between immigrant and nonimmigrant children.
A License to Discriminate
There have been many reports of schools using this law to discriminate against immigrant children. For instance, several parents reported in one community that a school official called out the Latino children and questioned them about their immigration status. While there were reports of discrimination prior to H.B. 56, now many people feel that Alabama has created a sense of empowerment for those who wish to discriminate.
Unfortunately, section 28 is far from being the only provision of H.B. 56 that has been affecting education in Alabama. Section 30 provides that any undocumented immigrant who conducts business with the state has committed a Class C felony. This provision has been interpreted very broadly to include not only vehicle, and until recently mobile home, registration, but also by denying undocumented immigrants access to electricity and water for their homes. Several of my immigrant clients have stated that their local water boards have denied them water service because they are not citizens. When my clients or I asked utility company employees about how a company could deny someone such a basic human necessity, they often responded, “that’s our policy.” While some companies are merely trying to protect themselves from liability, it would be naïve to believe that the world is free of people who choose to discriminate against others due to their accent or the color of their skin. H.B. 56 compounds the problem by empowering them to do so.
The state-sponsored acceptance of discrimination is even more obvious in the effects of section 27, which prevents state courts from enforcing a contract when a party is undocumented. In reliance of this law, auto dealers have been repossessing cars purchased by immigrants because there is no recourse for undocumented buyers in the courts. Similarly, tenants are being kicked out of their apartments with little or no warning because leases possessed by undocumented immigrants are no longer enforceable.
Undocumented immigrants have been made prisoners in their own homes for fear of this immigration law. Based on my conversations with immigrant families, many immigrants do not leave their homes unless absolutely necessary and keep the lights off so as not to alert law enforcement that anyone is home. Because they cannot renew their vehicle registration under section 30, they are afraid to even take their kids to school. Even if parents are not pulled over for driving with expired tags on the way to school, there are often police officers who sit waiting outside the school.
To further complicate driving with an expired vehicle registration, section 12 is included in H.B. 56. This section, also known as “Papers, Please,” states that an officer in the course of a lawful stop must determine the person’s immigration status if he/she has reasonable suspicion that the immigrant is undocumented. The issue over what may be used to raise reasonable suspicion has been a major source of concern for immigrant communities across the country. Any use of race to suspect that someone is undocumented is a clear violation of the Fourth Amendment.
Police in Alabama are required to inform ICE of the identity and whereabouts of a person believed to be undocumented. If the law enforcement officer’s stop or search of the immigrant is unlawful, the criminal charges may be dropped, but ICE can still continue with removal proceedings. Therefore, H.B. 56 allows officers to assist in the deportation of an immigrant even through an unlawful search.
Clearly, officers are put in a difficult position because they have to be concerned about their own liability. Not only did the law fail to provide time or training for police officers, but it also opened them up to personal liability for not enforcing the immigration laws. Officers can be held liable criminally, and as outrageous as it sounds, in civil court from lawsuits filed by any legal state resident for failure to uphold H.B. 56.
“We Don’t Want to Be Alabama”
Alabamians have worked for fifty years to erase the reputation the state earned for itself during the Civil Rights Movement—the darkest time in Alabama’s history. The indelible images of firemen literally knocking people off their feet with fire hoses and police dogs jumping to attack high school students burn an all-too-familiar picture in the minds of Alabamians. In less than one year, the state has managed to undo much of the progress that was made over the last fifty years and rewrite itself as a leader in denying basic civil rights to its residents. Alabama leaders were able to lure foreign investment into the state as three major auto manufacturers built and currently maintain plants in the state. Since the enactment of H.B. 56, state officials have arrested or stopped executives from two of those plants who had legal immigration status to interrogate them in accordance with H.B. 56. Alabamians merely need to look at their past to know that denying people basic civil rights, such as equal protection under the law, due to the color of their skin is wrong. March 7, 2012, marked forty-seven years since “Bloody Sunday,” a day when many protestors were brutally beaten and injured during a civil rights march from Selma to Montgomery. The reenactment of the march was heavily attended and included multiple speakers on rights being denied to Alabama residents due to H.B. 56. If Alabamians do not learn from their mistakes of the past century, they dishonor those who fought and died so that this one would be better for mankind.
Prior to enacting H.B. 56, Alabama possessed a crystal ball by which its residents could see the future it faced if the state passed a law similar to those in Arizona, Utah, and Georgia. Alabamians had the opportunity to see the billions of dollars lost by the economies of other states due to boycotts, lost investments, and a gross shortage of immigrant labor to pick crops. Despite these alarming events, Alabama’s elected officials decided to create an even more egregious immigration law than those states could muster. Prior to passing H.B. 56, Senator Beason suggested that Alabama should do everything it could to combat illegal immigration in the state. Using Senator Beason’s words, instead of heeding the warnings of its neighbors, Alabama decided to “empty the clip.”
Many states considering passing immigration laws steered clear of provisions directly relating to education, such as Alabama’s controversial section 28. State legislators have stuck to provisions that have been upheld, such as the mandatory use of E-Verify, an employment authorization system sponsored by the U.S. Department of Homeland Security. States such as Georgia, Louisiana, South Carolina, and Tennessee have begun requiring the use of E-Verify. Alabama now requires E-Verify for new public employees and contracts, and will begin mandatory use of the program for all other new employees by April 1, 2012. One exception to states avoiding immigration laws aimed at education is Missouri’s S.B. 590. State Senator Will Kraus proposed the bill, which would require schools to ask students for birth certificates when enrolling in school. The bill includes provisions for data collection on immigration status and enrollment in ESL classes.
In Ana’s case, her parents have always been very adamant about their kids’ education. However, over fear of H.B. 56, they kept Ana and Celina home for a week after the law took effect. Her father was able to keep his job at the poultry plant, but he saw many other coworkers leave without even picking up their paychecks. Ana and Celina will be able to graduate from high school due to the right of all students to elementary and secondary education. However, because Celina crossed the border without a visa, she will not be able to attend college in Alabama because section 8 of the act states that all undocumented immigrants are ineligible for enrollment in post-secondary education. She is also ineligible for scholarships to attend college.
The U.S. Congress and some state legislatures have discussed passing DREAM Acts, which would allow certain undocumented students who meet attendance and grade requirements to apply for financial aid to attend college. For Celina to have such an opportunity, she would have to leave Alabama. One common misconception that I hear in my law practice is that a U.S. citizen child can file for permanent residence for his/her parents and siblings. While a U.S. citizen can file for parents and siblings, he/she cannot do so before the age of twenty-one. In twelve years when Ana turns twenty-one, she can file for her parents and sister. However, Celina would have to wait an additional eleven years to become a permanent resident due to the immigrant visa waiting period for siblings. Also, due to their unlawful entry into the United States, once Ana applies for her relatives, they would have to return to Guatemala and ask for I-601 waivers based on extreme hardship. Under our current immigration system, obtaining some form of lawful status is a very long road for immigrant families.
Some state representatives, such as Senator Kraus from Missouri, explain that state immigration bills are merely temporary solutions and attempt to force the Obama administration to address the issue at the federal level. In my experience, most people on both sides of the issue favor federal immigration action, but the contents of such legislation would be hotly contested.
Reports have shown that over the first few months of 2012, many immigrants who left Alabama due to H.B. 56 have since returned. Families like Ana’s that have kids in school are reluctant to move due to the roots that they have put down in the state. Many immigrants have expressed to me that Alabama is their home and they want to ride out the legal battle over H.B. 56 to see if some reprieve from this harsh law will arrive. As one immigrant who attended this year’s Selma march stated, “All I’ve tried to do is work hard and raise my family to love America and Alabama. And this law hurts me to my soul.”
The debate over immigration will rage on in each state, on the campaign trail, and in the courtroom. In the meantime, the most vulnerable victims are the children whose education has become disjointed and wracked with distractions. Many states have avoided immigration laws aimed at education to distance themselves from the example set by Alabama. The state already ranks as one of the least educated in the nation. The solution is not to turn and blame immigrants for its problems but to ensure that Alabama remains a sweet home for immigrants and for everyone.