Central Alabama Fair Housing Center et al v. Magee et al
OPINION AND ORDER that defendant Julie Magee's 57 Motion to Dissolve the Temporary Restraining Order is denied as further set out in the opinion and order. Signed by Honorable Judge Myron H. Thompson on 12/1/2011. (dmn, )
IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION
CENTRAL ALABAMA FAIR
HOUSING CENTER, et al.,
JULIE MAGEE, in her
official capacity as
JIMMY STUBBS, in his
official capacity as
Elmore County Probate
CIVIL ACTION NO.
OPINION AND ORDER
Defendant Julie Magee, Revenue Commissioner for the
State of Alabama, has filed a motion
November 23, 2011.
to dissolve the
In that order, Central Alabama Fair
Housing Center v. Magee, 2011 WL 5878363 (M.D. Ala. Nov.
23, 2011), the court found that the plaintiffs were
likely to prevail on their claim that § 30 of the BeasonHammon Alabama Taxpayer and Citizen Protection Act, 2011
manufactured-homes statute, 1975 Ala. Code § 40-12-255,
is preempted by federal law.
Magee, 2011 WL 5878363, at
Commissioner Magee’s motion to dissolve will be
As explained, § 30 of HB 56 makes it unlawful for
“[a]n alien not lawfully present in the United States” to
transaction with the state or a political subdivision of
HB 56 § 30 (Doc. No. 31-1, at 68).
§ 30(d) of HB 56, an individual who enters into or
attempts to enter into such a transaction commits a Class
C felony, id., and can be imprisoned up to ten years.
1975 Ala. Code 13A-5-6(a)(3).
Meanwhile, in lieu of an
ad valorem property tax, § 40-12-255 requires that owners
of manufactured homes pay an annual registration fee to
displayed on the exterior of their manufactured home.
1975 Ala. Code § 40-12-255(a).
The registration and fee
are due October 1 of each year and considered delinquent
compliant owner of a manufactured home can be given a
misdemeanor, punishable up to three months in jail.
requires that the owner of a manufactured home obtain a
permit “to move said manufactured home on the highways of
obtain the moving permit.
1975 Ala. Code § 40-12-255(j).
As above, moving a manufactured home without a permit is
subject to civil penalties and criminal prosecution as a
Class C misdemeanor.
Taken together, application of § 30 of HB 56 to § 4012-255 puts in an intractable dilemma aliens who wish to
keep their mobile homes but are unable to verify their
lawful residency: they face civil and criminal liability
simultaneously facing civil and criminal liability if
they attempt to remove their homes from the State.
can neither stay, nor can they go.
In addition, even
verification of lawful residence amounts to a felony.
Because States “enjoy no power with respect to the
classification of aliens,” Plyler v. Doe, 457 U.S. 202,
225 (1982), and the power to “regulate immigration is
unquestionably exclusively a federal power,” state laws
that conflict with federal laws are invalid as preempted.
DeCanas v. Bica, 424 U.S. 351, 354 (1976).
In its prior
application of § 30 of HB 56 to § 40-12-255 was likely
preempted because she was not, as required by HB 56
Systematic Alien Verification for Entitlements (SAVE)
criteria” for determining immigration status, which is
See DeCanas, 424 U.S. at 355; League of
United Latin Am. Citizens v. Wilson, 908 F. Supp. 755,
770 (C.D. Cal. 1995) (Pfaelzer, J.).
In response, as expressed in a memorandum dated
November 28, 2011, and sent to various unnamed county
officials (probate judges, revenue commissioners, county
Commissioner Magee has interpreted the court’s ruling as
determining an alien’s lawful presence in the United
States” and as inapplicable to “the process to be used in
determining a person’s United States Citizenship.” Magee
Memo (Doc. No. 57-1, at 1).
Based on a distinction
between determining citizenship and an alien’s lawful
presence, the Department of Revenue’s policy now allows
state and local officials encountering those who wish to
agency to first ask whether the individual has a valid
If a person says “yes,” state and
local officials may use “the AL-Verify Program to confirm
driver’s license or non-driver’s identification card.”
If a person says “no” but claims to be a United
citizenship through an enumerated list of documents.
(The list, apparently, is derived from § 29(k) of HB 56,
which § 30 incorporates by reference).
The policy does
not state what happens to a person who claims to be a
citizen but does not have an acceptable document for
verification; presumably the officials must refuse the
However, if a person says “no”
to having a driver’s license and again says “no” to being
a citizen but instead “states that he is a lawful alien
person’s status as a lawful alien should be verified
through” SAVE or DHS.
Id. at 2.
As the new policy recognizes, registration for SAVE
is not automatic.
Instead, as indicated by the
website, use of SAVE requires each agency to apply for
authorization by providing background information on the
“authorizing [the] agency to administer the benefit or
license or engage in another activity for which [the]
estimate of the “number of queries [the] agency will
submit each year.”
USCIS Website (Doc. No. 67-7, at 2).
After that, an agency must await “legal review,” which
can take several weeks to complete.
Id. at 3.
agency must then enter into a memorandum of agreement
obligations and the amount it will pay to use SAVE.
memorandum acknowledges that state and local officials
cannot begin using SAVE immediately.
No. 57-1, at 2-3).
Magee Memo (Doc.
At the same time, this memorandum
says nothing about how any state or local subdivision
will obtain DHS verification under 8 U.S.C. § 1373(c).
Regardless, where DHS does not verify the lawful
presence of an alien, the new policy recognizes that
Commissioner Magee’s old standards, listed in § 12(d) of
HB 56, are “no longer valid” and that state or county
officials “can no longer allow an alien to document his
lawful presence in the United States through the use of
documents or legible photocopies of documents.”
Memo (Doc. No. 57-1, at 2-3).
Instead, if state or local
officials are unable to verify an alien’s lawful presence
through SAVE or verification with DHS, then the officials
“should allow the alien to conduct the requested business
Commissioner Magee argues these policy changes, as
temporary restraining order no longer exists” and that
the order should therefore be dissolved.
(Doc. No. 57, at 2).1
Mo. to Dissolve
The court cannot agree.
As an initial matter, Commissioner Magee has failed
to point to any legal standard or Federal Rule of Civil
Procedure under which the court should find her requested
relief is warranted.
The plaintiffs argue that the court
preliminary injunction should be modified or dissolved,
significant change in factual conditions or law.”
1. The court reads Magee’s motion to dissolve as
applying to only whether the plaintiffs can demonstrate
a substantial likelihood of success on the merits of
their claim, not as challenging any of the other factors
that are necessary to obtain temporary equitable relief.
Accordingly, Magee’s motion in no way questions the
determination made in court’s prior order regarding these
factors, Magee, 2011 WL 5878363, at * 3.
Wright et al., Federal Practice and Procedure § 2961 (2d
This standard echos the test described in
Rufo v. Inmates of Suffolk County Jail, where the Supreme
Court explained that a party seeking modification of a
significant change in circumstances warrants revision of
the decree” and that this burden may be satisfied “by
showing either a significant change in factual conditions
or in law.”
502 U.S. 367, 383-84 (1992).
If the moving
“whether the proposed modification is suitably tailored
to the changed circumstance.”
The Eleventh Circuit Court of Appeals has applied
Rufo to the context of permanent injunctions, see Riccard
v. Prudential Ins. Co., 307 F.3d 1277, 1298 (11th Cir.
2002), and other courts have relied on the same standard
in the preliminary-injunction context as well.
Concilio de Salud Integral de Loiza, Inc. v. PerezPerdomo,
Co. v. CAT Communications Int’l, Inc.,
335 F.3d 235, 242 (3d Cir. 2003).
Given this analogous treatment of requests to modify
or dissolve various forms of equitable relief and because
Indeed, the rationale behind looking to
changed circumstances is especially applicable in this
“The need for changed circumstances prevents an
enjoined party from constantly challenging the imposition
of a[n] ... injunction,” Sprint, 335 F.3d at 242, and a
court should redraft or vacate its order only when doing
so is necessary “to insure that the decree accomplishes
its intended result.”
Wright, supra, § 2961 (emphasis
restraining order was to ensure that, statewide, § 30 of
HB 56 would in no way be applied to individuals seeking
to renew their manufactured-home decals under § 40-12255.
While the memorandum indicates that, under the new
identified in the prior order can no longer be used,
nothing about that policy change, by itself and in the
abstract, indicates that state and local officials have
stopped engaging in conduct preempted by federal law.
Put differently, nothing in the memorandum necessarily
change in the actual circumstances of how § 30 of HB 56
will be and has been applied.
In fact, and contrary to the new policy as expressed
evidence indicating that, in practice, nothing on the
ground has changed, and particularly at the county level:
On November 28 and 29, 2011, the first two business days
following the court’s order, plaintiffs’ counsel say that
they received numerous calls from individuals who were
not permitted to pay registration fees because they could
not provide sufficient proof of their immigration status.
See Tumlin Decl. (Doc. No. 67-4, at 2); Brooke Decl.
(Doc. No. 67-1, at 2).
These reports were from five
counties in the state.
A woman in Gadsden (Etowah
County, Alabama), for example, was “told nothing had
changed” in light of the court’s order, “and that she had
to produce a driver’s license.”
67-1, at 2).
Brooke Decl. (Doc. No.
in Birmingham and Bessemer
(both in Jefferson County) two individuals were told,
respectively, that they needed a valid driver’s license
immigration status” to register their manufactured homes.
Tumlin Decl. (Doc. No. 67-4, at 3).
In similar fashion,
an employee of plaintiff Central Alabama Fair Housing
November 28, and was told that “a driver’s license is
Singh Decl. (Doc. No. 67-3, at 2).2
2. In addition, before the court is the plaintiffs’
motion, filed yesterday, to enforce the temporary
restraining order. This motion, as supported by
declarations, alleges that more individuals, including at
least one in a sixth county, have been denied the ability
to register their manufactured homes on the basis that
they failed to provide evidence of citizenship or lawful
residence. See id. at 5-7; Brooke Decl. (Doc. No. 70-1).
Additional record evidence, the plaintiffs argue,
suggests that compliance has not been confirmed:
the plaintiffs’ attorneys notified Commissioner Magee’s
counsel that several individuals across five counties
were still being denied the ability to register their
manufactured homes because they could not demonstrate
lawful immigration status, defense counsel replied that
the new policy memorandum had been sent to these offices.
Brooke Decl. (Doc. No. 67-1, at 3).
When asked about how
the memorandum was sent and to whom it was sent and, most
important, about whether there was any way to confirm
counsel failed to confirm.
Instead, he replied: “I am
representing to you that the referenced offices ... have
received Commissioner Magee’s ... Memo.
If you would
notify me of an office unaware of the Memo, I would
Id. at 6 (emphasis added).
The problem, of course, is that awareness is not
memorandum expressed a new policy for enforcement of HB
56 does not necessarily reflect a change in practice. As
the adage goes, a change in theory does not always mean
a change in practice.
Confronted with the plaintiffs’
conclude at this time on the current record, without a
hearing, that circumstances have changed in a manner to
3. The court makes no finding, at this time, that
the plaintiffs’ noncompliance allegation is true. The
denial of Commissioner Magee’s motion for immediate
dissolution is therefore without prejudice to her right
to challenge the evidence submitted by the plaintiffs.
To warrant immediate dissolution of a temporary
restraining order, without a hearing, based on changes
circumstances, a movant would have to come forward with
undisputable evidence of full compliance in all material
aspects or ask for a hearing on the disputed evidence,
although, as indicated later in the instant opinion and
order, Magee’s motion is due to be denied on other
grounds as well.
Indeed, with their motion to enforce, see supra note
2, the plaintiffs also contend that there is a change in
In any event, even assuming that there has been a
Magee’s memorandum, the court is not convinced that this
new policy achieves the intended result of the court’s
To be perfectly clear, the court intends
modification by HB 56 or reference to citizenship status;
the question of citizenship or lawful immigration status
is completely off-the-table.
By its text, § 40-12-255
requires only that:
“The owner of the manufactured home
shall furnish to the registration
official the make, model, year, length,
width, number of transportable modules,
and serial number of the manufactured
homes and the registration official
manufactured home owner containing the
above referenced information.”
1975 Ala. Code. § 40-12-255(a) (emphasis added).
Even under the new policy, however, the State appears
to burden manufactured home registration in ways not
contemplated by § 40-12-255, which could, in practical
effect, deter individuals from attempting to register
their manufactured homes.
As the memorandum concedes,
there is no practical way any state agency could have
registered for SAVE over the weekend, and the memorandum
does nothing to address how verification from DHS works
or how it can be obtained.
Therefore, if an alien lacks
documentation and the agency cannot lawfully verify his
proposed procedures, that alien will have gone through a
three-step process related to immigration status all for
naught, for regardless of the outcome of this questioning
he must be given the registration papers.
The purpose of
the court’s prior order was not to empower state and
inconsequential questioning and possible harassment for
those attempting to reside in their manufactured homes
without violating § 40-12-255.
The fact that the new policy still allows state and
status will be verified by either SAVE or § 1373(c), but
acknowledges that this verification will not actually
occur is akin to a fraud.
On one hand, state and local
actors make public--for example, through probate office
websites--their intention to condition manufactured home
residence, but, on the other hand, simultaneously and
quietly recognize that such verification, and the denial
of a manufactured home registration, cannot actually
Cf. Singh Decl. (Doc. No. 67-3, at 5) (depicting
county website indicating that “proof of U.S. Citizenship
is required when renewing all manufactured homes”); Crook
Decl. (Do. No. 67-2, at 5,9) (same).
ultimately hollow requirement of verification is not
insubstantial: it comes backed, as per the text of HB 56,
with the threat of felony criminal sanction should anyone
knowing they lack verification.
Just as a wooden owl
perched atop the bridge of a fishing boat wards off
seagulls with its menacing but ultimately harmless glare,
the Commissioner’s new policy appears designed to keep
undocumented immigrants from even attempting to register
their mobile homes, even though their immigration status
can have no bearing on that transaction.
In short, the
court is not convinced that the new policy outlined in
indirectly what the court’s order directly prohibits.
convinced that dissolving the temporary restraining order
would be inappropriate.
As noted in the prior order, the
plaintiffs have presented several reasons why § 30 of HB
56 as applied to § 40-12-255 should be enjoined.
finding preemption as well, none of which turn upon
enforce § 30 of HB 56.
The court finds that the plaintiffs are substantially
likely to prevail on their claim that § 30 of HB 56 is
preempted as applied to Alabama’s manufactured homes
State law is “naturally preempted to the extent
of any conflict with a federal statute,”
Crosby v. Nat’l
Foreign Trade Council, 530 U.S. 363, 372 (2000), which
can occur when a state law frustrates “the accomplishment
of a federal objective.”
Geier v. Am. Honda Motor Co.,
529 U.S. 861, 873 (2000).
Here, that federal “objective”
(INA), 8 U.S.C. § 1101 et seq., a “comprehensive federal
naturalization” that sets “the terms and conditions of
admission to the country and subsequent treatment of
aliens lawfully in the country.”
Chamber of Commerce v.
Whiting, 131 S. Ct. 1968, 1973 (2011) (internal quotes
The INA establishes a number of classifications for
aliens who have entered the United States (for example,
visitors and other non-immigrants, immigrants who plan on
staying permanently, or those seeking refugee or asylum)
and each classification has its own set of statutory
requirements for determining the length, conditions, and
terms of an alien’s stay.
At the heart of this scheme is
enforcement, which rests squarely within the discretion
of the executive branch of the federal government, and
often times the Attorney General.
§ 1229b(a) (empowering the Attorney General to withhold
removal); 8 U.S.C. § 1229b(b)(2) (providing discretion to
withhold removal for victims of domestic abuse).
even with this discretion, the federal determination
about whether aliens must be deported or the conditions
under which they may remain is incomplete; the executive
must provide a hearing before an immigration law judge to
remove a person from the United States or when it seeks
to determine whether an individual deserves some other
form of relief.
See, e.g., 8 U.S.C. § 1254a (barring
deportation of those with “temporary protected status”);
8 U.S.C. § 1255(a) (setting standards for adjustment of
permits, and due process may require, judicial review of
8 U.S.C. § 1229a; Alhuay v. U.S.
Atty Gen., ___ F.3d___, 2011 WL 5061386, at *10 (11th
Cir. Oct. 26, 2011).
Thus, given the INA, the executive
has wide latitude to allow aliens to remain in the
country as a matter of discretion, and may be prevented
from deporting certain individuals all-together.
Applied to § 40-12-255, § 30 of HB 56 stands as an
obstacle to the INA’s balance of discretion and process
by making it difficult for those who have been permitted
to remain in the country to live in their homes.
Congress has created a number of statutes sanctioning
various forms of unlawful entry into the United States,
see, e.g., 8 U.S.C. §§ 1323-28, and for the “harboring”
of an alien, 8 U.S.C. § 1324, Congress never criminalized
an alien’s attempt to lawfully reside in his home; nor
has Congress permitted States to regulate the residence
Any state law, like HB56, that “imposes
federal scheme that includes no ... carve out for state
regulation” is likely preempted.
Ga. Latino Alliance for
Human Rights v. Deal, 2011 WL 2520752, at *14 (N.D. Ga.
June 27, 2011) (Thrash, J.).
In fact, every court that has considered a locality’s
attempt to regulate immigration by limiting access to
housing for individuals who cannot prove citizenship or
lawful residence has been enjoined as preempted.
e.g., Lozano v. City of Hazleton, 620 F.3d 170 (3d Cir.
2010), vacated and remanded on other grounds, 131 S. Ct.
2958 (2011); Villas at Parkside Partners v. City of
Farmers Branch, 701 F. Supp. 2d 835 (N.D. Tex. 2010)
(Boyle, J.); Garrett v. City of Escondido, 465 F. Supp.
2d 1043 (S.D. Cal. 2006) (Houston, J.).
Perhaps most convincingly, the other provisions of HB
56 that, on their face, apply to housing were enjoined as
likely preempted in United States v. Alabama, 2011 WL
4469941, at *41-45 (Sept. 28, 2011) (Blackburn, C.J.).
There, it was clear that § 13 of HB 56--which prohibits
anyone from entering into rental agreements with aliens
without verifying their lawful residence--applied to the
housing context, but the court did not believe, and
expressly declined to find, that § 30 had the broad reach
it has been given.
Id. at 59-60 & n.25.
It is now clear
that § 30 of HB 56 reaches § 40-12-255 and thereby
conditions lawful residence in a manufactured home upon
verification of immigration status.
In light of this
consistent body of precedent, the court finds that the
plaintiffs are substantially likely to prevail on their
Magee’s motion to dissolve the temporary restraining
order (Doc. No. 57) is denied.
DONE, this the 1st day of December, 2011.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE
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